  United States Court of Appeals
      for the Federal Circuit
                ______________________

            CHARLES T. JENKINS, JR.,
                  Petitioner

                           v.

     MERIT SYSTEMS PROTECTION BOARD,
                   Respondent
             ______________________

                      2017-2193
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. DA-0752-16-0080-I-2.
                ______________________

               Decided: January 2, 2019
                ______________________

   AARON BENJAMIN FRUMKIN, Gibson, Dunn & Crutcher
LLP, Los Angeles, CA, argued for petitioner.

    TARA JEAN KILFOYLE, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, argued
for respondent. Also represented by TRISTAN LEAVITT,
KATHERINE MICHELLE SMITH; DAVID PEHLKE, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, Washington, DC.
                 ______________________

 Before REYNA, WALLACH, and TARANTO, Circuit Judges.
2                                             JENKINS v. MSPB




    Opinion for the court filed by Circuit Judge WALLACH.
         Dissenting opinion filed by Circuit Judge REYNA.
WALLACH, Circuit Judge.
     Petitioner Charles T. Jenkins, Jr. seeks review of a
Merit Systems Protection Board (“MSPB”) final decision
dismissing his appeal for lack of jurisdiction. See Jenkins
v. Dep’t of the Army, No. DA-0752-16-0080-I-2, 2017 WL
1209626 (M.S.P.B. Mar. 31, 2017) (J.A. 1–28). 1 We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2012). We
affirm.
                          BACKGROUND
     For nearly thirty-three years, Mr. Jenkins was em-
ployed by the U.S. Department of the Army (“Army”), and
prior to his retirement, worked as a Supervisory Army
Community Services (“ACS”) Division Chief. J.A. 71.
From August 2010 to January 2012, Mr. Jenkins continu-
ally failed performance reviews and at one point served a
three-day suspension in connection with submitting “an
ACS Information Paper” to a higher command without
routing and gaining the necessary approval through his
first-level supervisor. See J.A. 400–06. As a result of his
reviews, Mr. Jenkins was put on a Performance Im-
provement Plan (“PIP”). See J.A. 407–14. After notifying
Mr. Jenkins that he failed his PIP, see J.A. 163, his first-



     1  An administrative judge issued an initial decision
on March 31, 2017, see J.A. 1–28, which became final
when Mr. Jenkins did not file a petition for review, see
J.A. 21; see also 5 C.F.R. § 1201.113 (2014) (providing
“[t]he initial decision of the judge will become the
[MSPB]’s final decision [thirty-five] days after issuance”
unless, inter alia, “any party files a petition for review”).
Therefore, we refer to the Initial Decision as the MSPB’s
Final Decision.
JENKINS v. MSPB                                            3



level supervisor asked him whether he would be interest-
ed in moving to a nonsupervisory position at the same
grade and pay level, J.A. 206. Mr. Jenkins refused.
J.A. 119. In February 2012, Mr. Jenkins’s first-level
supervisor proposed his removal for unacceptable perfor-
mance. J.A. 38–46 (Notice of Proposed Removal). After
receiving the Notice of Proposed Removal, but before he
was officially removed by the Army, Mr. Jenkins sent an
email to his first-level supervisor stating that “[e]ffective
31 March 2012 I will retire.” J.A. 37.
    Mr. Jenkins submitted written responses challenging
the basis for his removal, however, after “consider[ation]
and review[ of his] written reply,” the Army issued a Final
Removal Decision informing Mr. Jenkins that he would be
removed from service effective April 1, 2012.           See
J.A. 237–39. That same day, March 21, 2012, the Army
issued Mr. Jenkins a “Cancellation of Decision on Remov-
al” stating “[Mr. Jenkins is] scheduled to retire from
federal service effective 31 March 2012” and “[i]f [he]
retire[s] from federal service on 31 March 2012, this
memorandum will serve as revocation and cancellation
effective 31 March 2012.” J.A. 47. Following the Final
Removal Decision, Mr. Jenkins indicated on a Standard
Form-50 (“SF-50”) that he intended to retire pursuant to
his previously submitted retirement application, J.A.
241–43, stating “voluntary retirement effective 31
Mar[ch]      [20]12”      as      his     “[r]easons    for
[r]esignation/[r]etirement” J.A. 241. It is undisputed that
the “revocation and cancellation . . . of the [Notice of
Proposed Removal]” took effect upon that March 31, 2012
retirement. J.A. 47 (Cancellation of Decision on Remov-
al). Subsequently, Mr. Jenkins appealed to the MSPB
alleging that his retirement was involuntary because the
4                                            JENKINS v. MSPB




agency “proposed to remove” him if he did not retire.
J.A. 31–35. 2
    In March 2017, the MSPB “dismissed [Mr. Jenkins’s
appeal] for lack of jurisdiction.” J.A. 21. Specifically, the
MSPB found that it lacked jurisdiction over Mr. Jenkins’s
challenge to the Army’s proposed removal because “the
[Army] rescinded the removal decision upon [Mr. Jen-
kins]’s retirement” and nothing in the record indicated he
sought to withdraw his retirement prior to the effective
removal date. J.A. 6; see J.A. 336–38 (providing argument
and evidence, by the Army, that the March 21, 2012
Decision of Proposed Removal issued “26-days after [Mr.
Jenkins] filed an application of retirement”). The MSPB
also found it lacked jurisdiction over his involuntary
retirement claim because Mr. Jenkins failed to make a
non-frivolous claim. J.A. 21.
                        DISCUSSION
    Mr. Jenkins contends the MSPB erred by finding it
lacked jurisdiction over his claim because: (1) “the Army
issued [the] [F]inal [R]emoval [D]ecision before Mr. Jen-
kins retired,” Pet’r’s Br. 17 (capitalizations modified); see
id. at 17–25, and (2) its decision that his retirement was
voluntary was not supported by substantial evidence due
to the fact that his retirement was “based on misinfor-
mation” and “was obtained through coercion,” id. at 26,
29; see id. at 25–33. We first discuss the relevant stand-
ards of review and legal standards, and then address each
of Mr. Jenkins’s arguments.



    2  When Mr. Jenkins filed his Federal Circuit Rule
15(c) Statement Concerning Discrimination on July 7,
2017, he abandoned his formerly asserted discrimination
claims. Pet’r’s Fed. Cir. R. 15(c) Statement, ECF No. 10;
see Oral Arg. at 12:31–40, http://oralarguments.cafc.
uscourts.gov/default.aspx?fl=2017-2193.mp3.
JENKINS v. MSPB                                            5



                   I. Standard of Review
     We will uphold a decision of the MSPB unless it is
“arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law” or “unsupported by substan-
tial evidence.” 5 U.S.C. § 7703(c)(1), (3) (2012). We
review whether the MSPB has jurisdiction over an appeal
de novo. Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905,
909 (Fed. Cir. 2008). “Findings of fact underlying the
[MSPB]’s jurisdictional decision are reviewed for substan-
tial evidence.” Bledsoe v. Merit Sys. Prot. Bd., 659 F.3d
1097, 1101 (Fed. Cir. 2011) (internal quotation marks and
citation omitted). “Substantial evidence is more than a
mere scintilla of evidence, but less than the weight of the
evidence.” Jones v. Dep’t of Health & Human Servs., 834
F.3d 1361, 1366 (Fed. Cir. 2016) (internal quotation
marks and citations omitted). “The petitioner bears the
burden of establishing error in the [MSPB]’s decision.”
Harris v. Dep’t of Veterans Affairs, 142 F.3d 1463, 1467
(Fed. Cir. 1998).
             II. The Improper Removal Claim
                    A. Legal Standard
   The MSPB’s “jurisdiction is limited to those matters
over which it has been given jurisdiction by law, rule, or
regulation.” 5 C.F.R. § 1201.3(a). The petitioner must
establish by preponderant evidence that the MSPB has
jurisdiction over his appeal. 5 C.F.R. § 1201.56(b)(2)(i)(A).
Generally, the MSPB has jurisdiction over appeals of
removals of non-probationary employees, based on unac-
ceptable performance. See 5 C.F.R. § 1201.3(a)(5); 5
U.S.C. § 4303(e). “If an appealable action is canceled or
rescinded by an agency, any appeal from that action
becomes moot,” thereby depriving the MSPB of jurisdic-
tion. Cooper v. Dep’t of the Navy, 108 F.3d 324, 326 (Fed.
Cir. 1997).
6                                          JENKINS v. MSPB




B. The MSPB Did Not Err in Holding It Lacked Jurisdic-
            tion over the Removal Claim
    The MSPB held that, because “[Mr. Jenkins] retired
before the removal action was effected, and the [Army]
rescinded the removal decision upon [his] retirement,” the
MSPB lacked jurisdiction over his appeal challenging the
proposed removal. J.A. 6 (emphasis added). Mr. Jenkins
avers the MSPB has jurisdiction over his appeal because
his retirement date was “after the Army issued a final
decision to remove him.” Pet’r’s Br. 17 (emphasis added).
We disagree with Mr. Jenkins.
     The sequence of retirement and rescission is not con-
trolling. Rather, the MSPB lacked jurisdiction because
the Army rescinded its removal. The Army proposed
removal of Mr. Jenkins on February 16, 2012, J.A. 38, Mr.
Jenkins indicated his intent to retire on February 23,
2012, J.A. 236, and the Army issued its Final Removal
Decision on March 21, 2012, J.A. 237–39. However, the
same day his retirement went into effect, the Army re-
scinded the removal decision. J.A. 47 (Cancellation of
Decision on Removal). The Army removed all references
to the proposed removal action in Mr. Jenkins’s personnel
file, thus eliminating any potential consequences the
removal could have had on his retirement. See J.A. 240–
43 (demonstrating that the Notice of Proposed Removal
and SF-50 do not reference the removal decision), 333
(acknowledging the agency evidence and arguments were
made under penalty of perjury), 358 (showing a printout
of a chronological listing of Mr. Jenkins’s SF-50s from
2010 through 2012). This rescinding of the removal
decision mooted Mr. Jenkins’s improper removal claim.
See Cooper, 108 F.3d at 326 (explaining, “[i]f an appeala-
ble action is canceled or rescinded by an agency, any
appeal from that action becomes moot” and that the
petitioner’s appeal was moot because the agency, inter
alia, removed “all references to [the removal action] from
[his] official personnel file” thereby “eliminat[ing] all
JENKINS v. MSPB                                                7



consequences of that action”). Therefore, the MSPB lacked
jurisdiction to hear the appeal.
     Mr. Jenkins’s primary counterargument fails. He
contends that his challenge to the removal is appealable
to the MSPB under 5 U.S.C. § 7701(j) because the MSPB
“consider[ed] [his] ‘retirement status’” when determining
whether it had jurisdiction. Pet’r’s Br. 23. Section 7701(j)
provides that the MSPB, in “determining the appealabil-
ity . . . of any case involving a removal from the service,”
may not take into account “an individual’s status under
any retirement system established by or under Federal
statute.” 5 U.S.C. § 7701(j) (emphasis added); see Mays v.
Dep’t of Transp., 27 F.3d 1577, 1579 (Fed. Cir. 1994)
(holding that “[t]he plain language of § 7701(j) means that
retirement status cannot be taken into account in deter-
mining the appealability of ‘any case involving a remov-
al’”). In Mays, we considered § 7701(j) and held that the
MSPB had jurisdiction over petitioner’s appeal because
the petitioner’s retirement was effective the same date as
her removal and her retirement form stated she “[r]etired
after receiving [final] written notice . . . of [the] decision to
separate.” 27 F.3d at 1578.
    Mays did not involve a rescission of the removal deci-
sion being appealed to the MSPB. In contrast, in Cooper,
we held that when an agency has “rescinded” an effectu-
ated removal action during the pendency of an appeal,
eliminated “all references to [the removal] action from [a
petitioner]’s official personnel file,” and “substituted a
separation” based on retirement for the removal, the
appeal of the removal is moot and § 7701(j) is not impli-
cated. 108 F.3d at 325–26; see id. (determining that,
because “the agency had rescinded his removal[,] the
[MSPB] did not need to consider [the appellant]’s retire-
ment status to reach its conclusion that his appeal was
8                                           JENKINS v. MSPB




moot”). 3 This case is governed by Cooper. Therefore,
§ 7701(j) does not provide jurisdiction because the case no
longer involved a removal. See id. at 326 (finding
§ 7701(j) did not apply). Because Mr. Jenkins’s case no
longer involved a removal, the MSPB did not need to
consider Mr. Jenkins’s retirement status in determining
that it lacked jurisdiction over the appeal.
          III. The Involuntary Retirement Claim
                    A. Legal Standard
    An involuntary retirement is an adverse employment
action “where an agency imposes the terms of an employ-



    3   The dissent states that the majority believes this
case is unlike Mays because “removing from Mr. Jenkins’s
file all the references to [his] removal eliminated ‘all
consequences’ of the removal” and that “Mr. Jenkins
would not have retired but for his removal.” Dissent
Op. 6. The dissent, however, fails to recognize that Mays
did not involve a rescission of a removal decision being
appealed to the MSPB. Like Cooper, the MSPB in this
case considered the rescission of the removal decision in
making the determination that it lacked jurisdiction over
the appeal. See Cooper, 108 F.3d at 326 (explaining, “in
deciding that [the] appeal was moot, the [MSPB] merely
relied on the fact that the agency had rescinded his re-
moval”). Section 7701(j) does not prohibit an employing
agency from taking an employee’s retirement status into
account in deciding whether to cancel a removal decision;
it only prohibits the MSPB from taking an appellant’s
retirement status into account in determining whether a
non-cancelled removal decision is appealable. See id.
Because the MSPB determined the Army rescinded Mr.
Jenkins’s removal decision, as in Cooper, it did not need to
consider his retirement status to determine that it lacked
jurisdiction over the appeal. J.A. 6.
JENKINS v. MSPB                                           9



ee’s resignation, the employee’s circumstances permit no
alternative but to accept, and those circumstances were
the result of improper acts of the agency.” Schultz v. U.S.
Navy, 810 F.2d 1133, 1136 (Fed. Cir. 1987) (internal
quotation marks omitted). “The [MSPB] has jurisdiction
over an involuntary retirement, which is treated as if it
were a removal.” Cooper, 108 F.3d at 326. “An employee
thus may seek reinstatement or back pay as a result of an
involuntary retirement.” Id. There is a presumption that
an employee retired voluntarily. Staats v. U.S. Postal
Serv., 99 F.3d 1120, 1123 (Fed. Cir. 1996). To overcome
this presumption, a petitioner must establish (1) the
retirement was the product of misinformation or decep-
tion by the agency; or (2) the retirement was the product
of coercion by the agency. Terban v. Dep’t of Energy, 216
F.3d 1021, 1024 (Fed. Cir. 2000); see Staats, 99 F.3d at
1124 (“[T]he doctrine of coercive involuntariness is a
narrow one.”). The test for involuntariness is “an objec-
tive one” that “considers the totality of the circumstanc-
es.” Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322,
1329 (Fed. Cir. 2006) (en banc) (internal quotation marks
and citation omitted).
 B. Substantial Evidence Supports the MSPB’s Finding
     that Mr. Jenkins’s Retirement Was Voluntary
    The MSPB considered all record evidence related to
the voluntariness of Mr. Jenkins’s retirement, see
J.A. 14–17 (analyzing, inter alia, the length of time
offered to improve performance, testimony and written
records regarding performance deficiencies, and various
communications between Mr. Jenkins and his first-level
supervisor), and determined that while Mr. Jenkins was
faced with the difficult choice of either retiring or oppos-
ing a removal action, this choice did not render his re-
tirement involuntary because he chose to follow through
with his retirement decision, J.A. 20–21. Mr. Jenkins
argues his retirement was involuntary because it was
based on “misinformation” such as “management officials”
10                                          JENKINS v. MSPB




telling him that he needed to retire to protect his retire-
ment benefits, Pet’r’s Br. 26, and that it was obtained
through “coercion,” id. at 29. We disagree with Mr. Jen-
kins.
    Substantial evidence supports the MSPB’s finding
that Mr. Jenkins voluntarily retired. First, Mr. Jenkins
submitted personnel forms that indicate that his retire-
ment from the Army was voluntary. Specifically, under
the section asking for reasons for retirement it said
“[v]oluntary retirement.” See J.A. 243; see J.A. 243 (stat-
ing in the SF-50 the reason for retirement is “[v]oluntary
retirement”).
     Second, Mr. Jenkins’s retirement was not the product
of misinformation by the agency. The only evidence of
record cited by Mr. Jenkins regarding any alleged misrep-
resentation is that an unidentified individual told Mr.
Jenkins he should retire “to protect his retirement bene-
fits.” J.A. 425; see J.A. 425 (providing Mr. Jenkins’s pre-
hearing submissions). This evidence is insufficient to
support Mr. Jenkins’s position because he never identified
any individual who made this statement nor did he pro-
vide any foundation for the alleged statement. See
J.A. 425; see also J.A. 18–19 (explaining by the MSPB
that Mr. Jenkins admitted he did not receive misinfor-
mation about the ability to retire from Human Resources);
cf. Scharf v. Dep’t of the Air Force, 710 F.2d 1572, 1573–75
(Fed. Cir. 1983) (finding involuntary retirement where
petitioner proved reasonable reliance on a misrepresenta-
tion made by a specific agency counselor). For the first
time on appeal, Mr. Jenkins argues that a notation on his
final Notification of Personnel Action Form says his
reason for retirement was “to obtain retirement benefits.”
Pet’r’s Br. 27–28. While this notation may demonstrate
the Army knew Mr. Jenkins misunderstood the effect a
removal would have on his retirement benefits, it does not
evidence reliance by Mr. Jenkins upon alleged agency
misinformation. J.A. 241. Importantly, Mr. Jenkins
JENKINS v. MSPB                                          11



provided no evidence that he desired to retire based on
that belief. See J.A. 18–19 (explaining by the MSPB that
Mr. Jenkins provided no “specifics regarding the alleged
misrepresentation”); see Pet’r’s Br. 27–28. After he re-
ceived the Notice of Proposed Removal, J.A. 38–46, and
was informed of his appeal rights by the Army, J.A. 87, he
still elected to retire.
    Third, Mr. Jenkins’s retirement was not caused by co-
ercion. Mr. Jenkins argues that his retirement was the
product of coercion because the Army “imposed the terms
of [his] retirement” and he had “no [alternative] but to
retire.” Pet’r’s Br. 30–31. A petitioner can establish his
retirement was the product of coercion if he proves by
preponderant evidence that an agency created “working
conditions so intolerable” that he was “driven to involun-
tarily . . . retire.” Garcia, 437 F.3d at 1328–29. “[T]o
establish involuntariness on the basis of coercion” due to a
threatened or proposed adverse action, the employee must
show that: (1) he involuntarily accepted the terms “effec-
tively imposed” by the agency; (2) the circumstances
presented “no realistic alternative” but to retire; and
(3) his retirement was the result of “improper acts of the
agency.” Shoaf v. Dep’t of Agric., 260 F.3d 1336, 1341
(Fed. Cir. 2001). Here, however, Mr. Jenkins has adduced
no evidence to demonstrate that his working conditions
were intolerable. See generally Pet’r’s Br. Instead, Mr.
Jenkins simply had the choice of not retiring and opposing
the removal, or retiring. 4 Thus, the MSPB correctly found



   4    The dissent states that “the Army put Mr. Jenkins
in precisely the situation of making a forced choice be-
cause its offer to rescind his removal was conditioned
upon Mr. Jenkins first retiring.” Dissent Op. 2. In
Schultz, however, we explained that when “an employee is
faced merely with the unpleasant alternatives of resign-
ing or being subject to removal for cause, such limited
12                                         JENKINS v. MSPB




Mr. Jenkins failed to demonstrate that his retirement was
involuntary.
                      CONCLUSION
   We have considered Mr. Jenkins’s remaining argu-
ments and find them unpersuasive. Accordingly, the
Final Decision of the Merit Systems Protection Board is
                      AFFIRMED




choices do not make the resulting resignation an involun-
tary act.” 810 F.2d at 1136. Here, the MSPB simply
relied on Schultz, in addition to several MSPB cases, in
holding that the “unpleasant choice” to retire or be re-
moved “does not rebut the presumed voluntariness” of the
decision to retire. See J.A. 16 (citations omitted). While
Mr. Jenkins argues that his factual situation was differ-
ent because the “rescission was expressly conditioned” on
his retirement, Pet’r’s Br. 25, our precedent does not
support such a distinction, Schultz, 810 F.2d at 1136.
  United States Court of Appeals
      for the Federal Circuit
                 ______________________

             CHARLES T. JENKINS, JR.,
                   Petitioner

                            v.

     MERIT SYSTEMS PROTECTION BOARD,
                   Respondent
             ______________________

                       2017-2193
                 ______________________

   Petition for review of the Merit Systems Protection
Board in No. DA-0752-16-0080-I-2.
                ______________________

REYNA, Circuit Judge, dissenting.
     The majority concludes that the Merit Systems Pro-
tection Board lacks jurisdiction to review the agency’s
removal decision because the agency rescinded its remov-
al decision in exchange for Petitioner Charles T. Jenkins,
Jr.’s retirement. See Maj. Op. 5–8. As a result, the ma-
jority opinion undermines congressionally mandated
protections for federal employees recognized by this court
in Mays v. Department of Transportation, and provides
federal agencies a playbook on how to structure the
removal of federal employees to preclude judicial review of
removal decisions. Now, the Catch-22 dilemma imposed
on Mr. Jenkins will ensnare federal employees in the
future. I respectfully dissent.
2                                           JENKINS v. MSPB




                      1. Section 7701(j)
    Section 7701(j) of Title 5 of the United States Code
prohibits the Board from considering in “any case involv-
ing a removal from the service . . . an individual’s status
under any retirement system . . . [or] any [retirement]
election.” In passing this statute as part of the Civil
Service Due Process Amendments of 1990, “Congress
intended to end the situation which forced federal em-
ployees to choose between appealing a removal action and
accepting retirement benefits.” Mays v. Dep’t. of Transp.,
27 F.3d 1577, 1580 (Fed. Cir. 1994). Yet the Army put
Mr. Jenkins in precisely the situation of making a forced
choice because its offer to rescind his removal was condi-
tioned upon Mr. Jenkins first retiring.
                           2. Mays
      This court’s decision in Mays plainly applies to this
case. In Mays, we held that the appellant retained her
appeal rights when she separated from service through
retirement after “the agency had made the final decision
to remove her.” 27 F.3d at 1580–81. Ms. Mays first
received an initial notice of proposed removal. Id. at
1577–78. The agency then informed Ms. Mays by decision
letter that removal had been approved and she would be
removed from her position a few days later. Id. at 1578.
Ms. Mays retired on the same date her removal became
effective. Id. The SF-50 form in her personnel file indi-
cated that she “[r]etired after receiving written notice
. . . of [the] decision to separate for unacceptable perfor-
mance.” Id. Ms. Mays appealed her removal, which the
Board dismissed for lack of jurisdiction, holding that she
had “divested the Board of jurisdiction” unless she could
prove “her retirement was involuntary” because she
retired on the same effective date as her removal. Id.
    This court reversed upon determining that 5 U.S.C.
§ 7701(j) controls because Ms. Mays’s case “involve[d] a
removal,” despite her retirement. Id. at 1581. We con-
JENKINS v. MSPB                                          3



cluded that the case “involved a removal” because Ms.
Mays could not “escape the final agency decision to re-
move her,” and the agency did not dispute that Ms. Mays
would not have retired when she did but for the removal
action. Id. at 1580. The court found that the Board erred
by considering Ms. Mays’s retirement status, which
§ 7701(j) prohibited because her case involved a removal.
Id. We pointed to the legislative history of § 7701(j),
noting that the legislation promised to “allow[] an em-
ployee who is eligible to retire but who the agency wants
to fire to take his or her annuity and still challenge the
adverse action before the [Board].” Id. The majority
opinion breaks away from that promise.
                         3. Cooper
    The majority relies on Cooper v. Department of the
Navy. Maj. Op. 7–8. In Cooper, the Navy removed Mr.
Cooper for inability to perform his duties. Cooper v. Dep’t
of the Navy, 108 F.3d 324, 325 (Fed. Cir. 1997). Mr.
Cooper appealed, and in the course of the appeal, applied
for disability retirement benefits. Id. Despite the remov-
al decision, OPM approved Mr. Cooper for retirement
benefits. Id. As to removal, the Board “held that as long
as the removal was effected prior to OPM’s grant of
disability retirement, the Board had jurisdiction to hear
the appeal, regardless of the effective date of the retire-
ment.” Id. In response to the Board’s holding, the Navy
rescinded Mr. Cooper’s removal, removed all references to
the removal action from his personnel file, and substitut-
ed a disability retirement separation for the removal. Id.
The Board then dismissed the appeal as moot. Id.
     We affirmed in Cooper, holding that “[t]he Navy’s can-
cellation of the removal action and the removal of all
references to that action from Cooper’s official personnel
file eliminated all the consequences of that action and
thus rendered Cooper’s appeal moot.” Id. at 326. The
Cooper court recognized the Mays court’s characterization
4                                            JENKINS v. MSPB




of § 7701(j) as intended to “ensure that an employee who
was eligible for retirement at the time of his removal
could take a retirement annuity without forfeiting his
right to challenge his removal.” Id. Mr. Cooper specifical-
ly argued that to hold his appeal was moot would permit
agencies to avoid review of removal decisions by removing
an employee, waiting for that employee to file for retire-
ment, and then rescinding the removal and moving to
dismiss the appeal. In dismissing that argument, the
Cooper court relied on the ability of employees to argue
involuntary retirement as a safeguard against such
agency tactics. See id. at 326.
     The removal in this case is closer to Mays than
Cooper. As in Mays, the agency in this case initially
proposed removal, made a final decision to terminate, and
took action by notifying Mr. Jenkins that he would be
terminated. In addition, Mr. Jenkins retired the same
day removal was effected and would not have retired but
for the removal. The majority is correct that Mays did not
involve a rescission of removal. But Mays remains appli-
cable here because, like the agency in Mays, the Army
forced its employee to choose between appealing the
removal action and accepting retirement benefits, directly
contravening the congressional intent of § 7701(j). As Mr.
Jenkins argues, he retired to “protect his retirement
benefits.” Maj. Op. 10; see also J.A. 241 (SF-50 form
reflecting that he retired “to obtain retirement benefits”).
The March 21, 2012 “Cancellation of Decision on Remov-
al” memorandum received by Mr. Jenkins makes clear
that rescission of his removal was conditioned upon him
first retiring:
    If you retire from federal service on 31 March
    2012, this memorandum will serve as revocation
    and cancellation effective 31 March 2012 of the
    [Notice of Decision] dated 21 March 2012. Howev-
    er, if you do not retire effective 31 March 2012, the
    [Notice of Decision] dated 21 March 2012 will not
JENKINS v. MSPB                                          5



   be revoked and cancelled and your removal from
   your position and federal service will be effective
   as of 1 April 2012.
J.A. 240 (emphases added).
    By contrast, Mr. Cooper’s agency never forced him to
choose between appealing his removal action and accept-
ing retirement benefits. The agency removed Mr. Cooper,
and it was only after he appealed the removal decision
that he applied for retirement benefits. Mr. Cooper was
not offered rescission in exchange for retiring and giving
up his right to appeal.
    The majority states that the “sequence of retirement
and rescission is not controlling.” Maj. Op. 6. But timing
is not what distinguishes this case from Cooper. The
question is whether there was a conditional offer of re-
scission in exchange for voluntary retirement. This
distinction is key in the context of § 7701(j). In Cooper,
the Board “merely relied on the fact that the agency had
rescinded his removal [and] did not need to consider
Cooper’s retirement status to reach its conclusion that his
appeal was moot.” 108 F.3d at 326. But here, in direct
violation of § 7701(j), the Board expressly considered Mr.
Jenkins’s retirement in concluding that the removal had
been rescinded as a direct result of his retirement:
   Here, the appellant retired before the removal ac-
   tion was effected, and the agency rescinded the
   removal decision upon the appellant’s retirement.
   The agency removed all references to the removal
   action in the employee’s personnel file, eliminat-
   ing all consequences of the removal.
J.A. 6 (emphases added). By conditioning rescission upon
Mr. Jenkins’s retirement, the agency forced the Board to
“consider [the employee’s] retirement status to reach its
conclusion that his appeal was moot.” Cooper, 108 F.3d at
326. Unlike in Cooper, the Board could not have consid-
6                                           JENKINS v. MSPB




ered the rescission without also considering Mr. Jenkins’s
retirement status.
    Finally, the majority reasons that removing from Mr.
Jenkins’s file all the references to Mr. Jenkins’s removal
eliminated “all consequences” of the removal, therefore
making this case unlike Mays. Maj. Op. 6, 7–8 n.3. This
is incorrect because Mr. Jenkins would not have retired
but for his removal. In addition, removing references to
the removal action from his file was conditioned on anoth-
er more enduring and significant consequence: Mr. Jen-
kins loses his right to challenge the removal action by
making an appeal.
    The majority decision is an exercise in splitting hairs
that runs contrary to the Supreme Court’s directive to
take an “expansive view” of “remedial legislation.” Ne.
Marine Terminal Co. v. Caputo, 432 U.S. 249, 268 (1977);
see also Van Wersch v. Dep’t of Health & Human Servs.,
197 F.3d 1144, 1149 (Fed. Cir. 1999) (discussing that the
Civil Service Due Process Amendments of 1990, of which
§ 7701(j) is a part, were intended to “remedy [the] state of
affairs” for certain federal employees). To distinguish this
case from Mays on the basis that Mr. Jenkins’s record was
wiped clean of references to his removal is inconsistent
with this court’s obligation to interpret such statutes to
“avoid untenable distinctions and unreasonable results
whenever possible.” Mays, 27 F.3d at 1580 (quoting Am.
Tobacco Co. v. Patterson, 456 U.S. 63, 71 (1982), and
refusing to distinguish the case on the basis of what a
personnel officer writes in an employee’s file).
    Here, reversal is warranted to condemn what are in-
iquitous tactics by agencies to force employees to choose
whether to be fired, or to retire. They are iniquitous
because the tactics insulate agency decisions from judicial
review in cases where employees choose to preserve their
retirement benefits. The result of this choice is the em-
ployee’s loss of the valuable ability to appeal conferred by
JENKINS v. MSPB                                          7



federal statute. See 5 U.S.C. § 7701(a). To read Cooper as
holding that all rescinded removal decisions escape the
scope of § 7701(j), especially when offered in exchange for
an employee’s voluntary retirement, is counter to legisla-
tive intent. Once an employee has been forced to make
this choice, what a personnel officer writes in the employ-
ee’s file is a distinction that makes no difference. The
majority’s decision will incentivize agencies to condition
rescissions of removals on an employee’s first retiring to
avoid the burden of defending removal actions.
     The Government argues that Mr. Jenkins has not
been prejudiced because he can argue involuntary retire-
ment. See Cooper, 108 F.3d at 326. The majority con-
cludes that Mr. Jenkins could not show involuntary
retirement because he could not show intolerable working
conditions, and simply having to make a choice is not
sufficient to establish coercion. The majority notes that
“Mr. Jenkins simply had the choice of not retiring and
opposing the removal, or retiring.” Maj. Op. 11. This
characterization disregards the importance of pension
benefits to our nation’s federal employees. The majority’s
decision creates a jurisdictional loophole by showing
agencies how to divest federal employees of their right to
appeal a removal in the interest of protecting those bene-
fits, while ensuring their retirement remains sufficiently
voluntary to keep the Board from having jurisdiction at
all. See Schultz v. U.S. Navy, 810 F.2d 1133, 1136 (Fed.
Cir. 1987). 1 Forcing a choice between retiring and keep-



1   The majority relies on Schultz for the proposition that
that “where an employee is faced merely with the un-
pleasant alternatives of resigning or being subject to
removal for cause, such limited choices do not make the
resulting resignation an involuntary act.” Id. In that
case, we reversed the Board’s finding of lack of jurisdic-
tion on the grounds that the employee’s retirement was
8                                          JENKINS v. MSPB




ing your benefits or termination and loss of benefits is an
act of coercion, the very abuse that Congress recognized
by passing § 7701(j). See Mays, 27 F.3d at 1580. Here, we
have lost sight of the inherent right to appeal adverse
employment decisions that Congress has afforded to
federal employees.        See Civil Service Due Process
Amendments, Pub. L. No. 101-376, 104 Stat. 461, 461
(1990) (“An Act . . . to grant appeal rights to members of
the excepted service affected by adverse personnel ac-
tions.”). The safeguard hypothesized in Cooper fails to
protect against abuses such as the conditional rescission
of removal offered by the Army. For these reasons, I
respectfully dissent.




involuntary because the agency threatened removal for an
improper basis. Id. at 1136–37. That case has no bearing
on whether an agency’s final removal decision that is
rescinded in exchange for an employee’s voluntary retire-
ment should escape review under § 7701(j).
