                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     HARRY POST,                                     DOCKET NUMBER
                         Appellant,                  PH-3443-14-0011-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: September 23, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Harry Post, Seabrook, New Hampshire, pro se.

           Penny C. Colomb, and Scott W. Flood, Esquire, Portsmouth, New
             Hampshire, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his involuntary resignation appeal for lack of jurisdiction. Generally,
     we grant petitions such as this one only when:          the initial decision contains
     erroneous findings of material fact; the initial decision is based on an erroneous

     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                       2

     interpretation of statute or regulation or the erroneous application of the law to
     the facts of the case; the judge’s rulings during either the course of the appeal or
     the initial decision were not consistent with required procedures or involved an
     abuse of discretion, and the resulting error affected the outcome of the case; or
     new and material evidence or legal argument is available that, despite the
     petitioner’s due diligence, was not available when the record closed. See Title 5
     of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
     After fully considering the filings in this appeal, and based on the following
     points and authorities, we conclude that the petitioner has not established any
     basis under section 1201.115 for granting the petition for review. Therefore, we
     DENY the petition for review and AFFIRM the initial decision, which is now the
     Board’s final decision. 5 C.F.R. § 1201.113(b).

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The appellant was appointed to the position of Welder Helper in
     January 2011.   Initial Appeal File (IAF), Tab 28 at 4.      In July 2011, he was
     indefinitely suspended based on the suspension of his security clearance. The
     security clearance was required for retention of his job.        Id. at 13-21.   In
     March 2012, the appellant’s security clearance was reinstated with the condition
     that he refrain from certain further misconduct. Id. at 22. After returning to
     work, the appellant was reprimanded in April 2013, and May 2013. Id. at 23-25.
     In May 2013, the Department of Defense Consolidated Adjudications Facility
     notified the appellant of its intent to revoke his security clearance. Id. at 29-30.
     The appellant was suspended for 2 days in June 2013. Id. at 28. The appellant
     resigned effective June 28, 2013. IAF, Tab 7 at 7-8. He indicated at that time
     that he had been subjected to “the worst kind of intimidation and harassment
     since April 10, 2013.” Id. at 8.
¶3        The appellant filed a Board appeal in September 2013, alleging that the
     agency had failed to reinstate him to his position. IAF, Tab 1 at 5. He also
                                                                                           3

     argued that he was harassed, intimidated, and coerced into resigning. Id. The
     agency responded that the appellant was not subjected to duress or coercion, nor
     was he provided any misleading or deceptive information.            IAF, Tab 4 at 4,
     Tab 28 at 11. The appellant countered that a detective told him that it was in his
     best interest to resign and that the structural shop superintendent used
     “inaccuracies and outright lies” to initiate revocation of his security clearance.
     IAF, Tab 8 at 3. The appellant also argued that the agency did not provide him
     enough training pursuant to its apprentice program, required him to perform work
     in violation of medical orders, and disproportionately disciplined him.            IAF,
     Tab 12 at 3.
¶4        In the initial decision, the administrative judge found that the appellant
     failed to make a nonfrivolous allegation that the agency either coerced him into
     resigning or that his working conditions were so intolerable that a reasonable
     person would have felt compelled to resign. IAF, Tab 55, Initial Decision at 11.
     On petition for review, the appellant reasserted that his resignation was
     involuntary and presented arguments concerning the administrative judge’s
     discovery orders. 2 Petition for Review (PFR) File, Tabs 1, 6. He also asserted a
     conflict of interest as to the agency attorney. 3 Id.      The agency responded in
     opposition. PFR File, Tabs 3-4.

     2
        The appellant has not shown that the administrative judge abused his discretion in
     failing to grant discovery requests subsequent to an initial order to compel. See Fox v.
     Department of the Army, 120 M.S.P.R. 529, ¶ 42 (2014). The appellant challenged the
     administrative judge’s discovery rulings and renewed arguments of prejudice because
     the agency failed to provide him with his personnel file and instead directed him to
     another source to obtain the file. PFR File, Tab 1 at 3. These arguments, however, do
     not, demonstrate an abuse of discretion.
     3
       Although the appellant asserted that he had a long conversation with the agency
     attorney prior to his resignation, he admitted that the agency attorney informed him at
     that time that he represented the agency. IAF, Tab 11 at 3; PFR File, Tab 1 at 3. The
     administrative judge found that there was no conflict because the agency attorney was
     performing his duties and did not represent the appellant. IAF, Tab 36. We agree
     because the record does not reflect that the appellant reasonably alleged that the
     agency attorney had served in any representative or confidential capacity. See
                                                                                         4

¶5        The appellant has challenged the basis for the disciplinary actions taken
     against him and the initiation of proceedings to revoke his security clearance.
     IAF, Tab 8 at 3.    The record also includes the appellant’s complaint that his
     qualifications for welding were suspended upon his return to work in April 2013,
     his disagreement with job assignments upon suspension of his qualifications and
     subsequent to a workplace injury, as well as his statement that he was not getting
     enough experience as an apprentice. IAF, Tab 12 at 3, 20. The appellant alleges
     that in June 2013, in the context of an investigation against him, a detective told
     him that it would be in his best interest to resign before he found himself in
     “more trouble.” IAF, Tab 8 at 3.
¶6        Generally, the Board lacks the authority to review an employee’s decision
     to resign or retire because these actions are presumed to be voluntary. Brown v.
     U.S. Postal Service, 115 M.S.P.R. 609, ¶ 9, aff’d, 469 F. App’x 852 (Fed. Cir.
     2011), cert denied, 133 S. Ct. 414 (2012). The Board will find that a resignation
     was involuntary, however, when it is the result of the agency’s coercion or duress
     or when the agency made misleading statements upon which the employee relied
     to his detriment. Murray v. U.S. Postal Service, 68 M.S.P.R. 177, 179 (1995).
     The fact that an employee is faced with either resigning or opposing a potential
     adverse action does not rebut the presumed voluntariness of his resignation.
     Baldwin v. Department of Veterans Affairs, 109 M.S.P.R. 392, ¶ 12 (2008).
     However, if the appellant can show that an agency knew that it would not prevail
     on a proposed adverse action, the proposed action is coercive and the resulting
     resignation is involuntary. Id.
¶7        Considering all of the appellant’s arguments, we agree with the
     administrative judge that the appellant has not made nonfrivolous allegations that
     his resignation was the result of coercion, duress, or misinformation. First, we


     generally Jones v. Small Business Administration, 121 M.S.P.R. 1, ¶ 17 (2014)
     (applying the California Rules of Professional Conduct to determine that the appellant
     did not reasonably believe that the agency attorney represented her).
                                                                                    5

find that the agency did not coerce the appellant into resigning. To the contrary,
according to a report from a union steward that the appellant submitted, the
appellant had previously expressed that he was resigning in April 2013, but
returned to work after he was asked by an agency human resources employee to
return. See IAF, Tab 12 at 6, 20. The appellant also challenged the veracity of
the information that served as the basis for initiating the revocation of his security
clearance which would have led to his ineligibility to retain his position.
However, he never alleged facts that would have demonstrated coercion such as
that the agency knew that it would be unable to sustain any of the adverse actions
it took or would have taken against him.            We therefore agree with the
administrative judge that the agency’s actions were not coercive. 4               See
Baldwin, 109 M.S.P.R. 392, ¶ 12.         Additionally, although the appellant has
clearly alleged his dissatisfaction with his work environment, and particularly
with the fact that discipline was imposed upon him, he has not made nonfrivolous
allegations that his working environment was so intolerable that he resigned
under duress. See Miller v. Department of Defense, 85 M.S.P.R. 310, ¶ 32 (2000)
(Dissatisfaction with work assignments, a feeling of being unfairly criticized, or
difficult or unpleasant working conditions are generally not so intolerable as to
compel a reasonable person to resign.). Finally, although the appellant stated that
he spoke with the agency attorney prior to his resignation and that the detective
told him that it was in his best interest to resign, the appellant did not allege that
his resignation was the result of specific misinformation provided by the agency.
See Murray, 68 M.S.P.R. at 179. Accordingly, we find that the appellant has not
nonfrivolously alleged that his resignation was involuntary.

4
  In an appeal of an adverse action based upon the denial or revocation of a security
clearance, the Board may review, inter alia, whether the position required a security
clearance, whether the clearance was denied or revoked, and whether the agency
complied with certain procedural requirements, but the Board may not review the merits
of the clearance determination itself. Buelna v. Department of Homeland Security,
121 M.S.P.R. 262, ¶¶ 14-15 (2014).
                                                                                  6

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
     You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

     The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
     If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States   Code,    at   our   website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
     If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
                                                                           7

Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
