       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

           RICHARD D. MONTGOMERY,
                   Petitioner

                           v.

     MERIT SYSTEMS PROTECTION BOARD,
                   Respondent
             ______________________

                      2014-3196
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. DA-0752-14-0098-I-1.
                ______________________

                Decided: March 9, 2015
                 ______________________

   RICHARD D. MONTGOMERY, Seagoville, TX, pro se.

   KATHERINE MICHELLE SMITH, Office of the General
Counsel, Merit Systems Protection Board, Washington,
DC, for respondent. Also represented by BRYAN G.
POLISUK.
               ______________________
2                                         MONTGOMERY   v. MSPB



Before WALLACH and HUGHES, Circuit Judges, and FOGEL
                  District Judge. *
PER CURIAM.
    Petitioner Richard Montgomery appeals the decision
of the Merit Systems Protection Board (“Board”) dismiss-
ing his appeal for lack of jurisdiction. Montgomery v.
Dep’t of the Air Force, No. DA-0752-14-0098-I-1 (M.S.P.B.
Feb. 10, 2014 (“Initial Decision”), Final Order, July 8,
2014). For the reasons set forth below, this court affirms.
                       BACKGROUND
    Mr. Montgomery was an employee with the Depart-
ment of the Air Force (“agency”) as an Aircraft Sheetmetal
worker. When Mr. Montgomery failed to appear for work,
the agency wrote him an undated letter, advising him
that his absence since June 15, 2007, was unauthorized
and he would be carried into Absent Without Leave
(“AWOL”) status. The letter acknowledged Mr. Mont-
gomery had been arrested and held without bond on June
15, 2007, and notified him that if he was not available to
work within ten days of the receipt of the letter, “action
w[ould] be taken to propose [him] removal from Air Force
employment.” Resp’t’s App. 23.
    On June 28, 2007, Mr. Montgomery sent a letter to
the agency stating he was “unable to return to work at the
present time or in the foreseeable future” and due to the
need of the Air Force to have a full-time employee, he
“resign[ed his] position effective this date.” Id. at 24. Mr.
Montgomery notified the agency that if it had any issue
processing his resignation it should contact his attorney.



    *   Honorable Jeremy Fogel, District Judge, United
States District Court for the Northern District of California,
and Director of the Federal Judicial Center, sitting by
designation.
MONTGOMERY   v. MSPB                                         3



When the agency processed his personnel action, the
“[r]eason for resignation” was listed as “[p]ersonal
[r]easons.” Id. at 29.
      On November 26, 2013, Mr. Montgomery filed an ap-
peal with the Board, alleging the agency coerced his
resignation by threatening to remove him and failing to
offer him retirement counseling. The Administrative
Judge (“AJ”) issued an order stating resignations are
assumed to be voluntary and the Board therefore lacked
jurisdiction. The AJ informed Mr. Montgomery it was his
burden to prove jurisdiction by preponderant evidence,
and ordered him to submit evidence demonstrating his
resignation had been the result of coercion. Mr. Mont-
gomery filed two responses, and stated that at the time of
his arrest he “had sufficient sick leave and annual leave
which, if credited, would have allowed him to retire with
the requisite thirty years government service.” Id. at 32.
Mr. Montgomery also alleged the agency failed to meet its
obligation to offer retirement seminars for eligible em-
ployees and “thus pressur[ed] [him] to either resign or be
terminated without ever advising him that he had a third
. . . option[,] that of retirement with all [of] its attendant
benefits.” Id. at 33.
     On February 10, 2014, the AJ found Mr. Montgomery
failed to make a nonfrivolous allegation that his resigna-
tion was involuntary and dismissed his appeal for lack of
jurisdiction. Mr. Montgomery filed a petition for review
but the Board denied the petition and affirmed the AJ’s
decision. Mr. Montgomery appeals and this court has
jurisdiction over this appeal pursuant to 28 U.S.C.
§ 1295(a)(9) (2012).
                         DISCUSSION
                   I. Standard of Review
    This court’s “scope of . . . review of [B]oard decisions is
limited to whether they are (1) arbitrary, capricious, an
4                                        MONTGOMERY   v. MSPB



abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law,
rule, or regulation having been followed; or (3) unsupport-
ed by substantial evidence.” Forest v. Merit Sys. Prot. Bd.,
47 F.3d 409, 410 (Fed. Cir. 1995) (citing 5 U.S.C. § 7703(c)
(1988)). The issue of Board jurisdiction is a question of
law this court reviews de novo. Johnston v. Merit Sys.
Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008). This court is
bound by the Board’s jurisdictional factual findings “un-
less those findings are not supported by substantial
evidence.” Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313,
1316 (Fed. Cir. 1998).
                   II. Legal Framework
    Mr. Montgomery bears the burden of demonstrating
Board jurisdiction by a preponderance of evidence. Fields
v. Dep’t of Justice, 452 F.3d 1297, 1302 (Fed. Cir. 2006); 5
C.F.R. § 1201.56(a)(2)(i) (2013). The Board’s jurisdiction
is “strictly defined and confined by statute and regula-
tion” to appeals of decisions involving “adverse actions.”
Bolton, 154 F.3d at 1316 (internal citation omitted). Such
actions consist of: (1) removals; (2) suspensions for more
than fourteen days; (3) reductions in grade; (4) reductions
in pay; and (5) furloughs of thirty days or less. 5 U.S.C.
§ 7512(1)–(5) (2012).
    III. Mr. Montgomery Has Not Met His Burden to
             Demonstrate Board Jurisdiction
    “Resignations are presumed voluntary, and the bur-
den of showing the resignation was involuntary is on the
petitioner.” Terban v. Dep’t of Energy, 216 F.3d 1021,
1024 (Fed. Cir. 2000) (citing Cruz v. Dep’t of Navy, 934
F.2d 1240, 1244 (Fed. Cir. 1991)). “The two principal
grounds on which employees have sought to show that
their resignations or retirements were involuntary are (1)
that the resignation or retirement was the product of
misinformation or deception by the agency, and (2) that
the resignation or retirement was the product of coercion
MONTGOMERY   v. MSPB                                     5



by the agency.” Conforto v. Merit Sys. Prot. Bd., 713 F.3d
1111, 1121 (Fed. Cir. 2013) (internal citation omitted).
“The touchstone of the ‘voluntariness’ analysis is whether,
considering the totality of the circumstances, factors
operated on the employee’s decision-making process that
deprived him of freedom of choice.” Vitale v. Dep’t of
Veterans Affairs, 107 M.S.P.R. 501, 509–10 (2007).
    Mr. Montgomery contends “the [Board] should have
considered the discriminatory failure of his superiors to
advise him prior to resignation of resignation alternatives
such as retirement.” Pet’r’s Br. 1. Though he argued to
the Board he was pressured to resign or be terminated,
nothing in the record suggests this is true. The letter
from the agency notified Mr. Montgomery his removal
would be proposed if he did not appear at work within ten
days, it had no reference to any resignation. Indeed, the
cautionary letter did not state that the agency was remov-
ing him nor did it actually propose his removal. His
response was an unsolicited letter of resignation and an
additional notice to contact his attorney if more infor-
mation was needed. “It is well established that the fact
that an employee is faced with the unpleasant choice of
either resigning or opposing a potential adverse action
does not rebut the presumed voluntariness of his ultimate
choice.” Schultz v. U.S. Navy, 810 F.2d 1133, 1136 (Fed.
Cir. 1987).
    Mr. Montgomery also contends the Board “failed to
adequately consider the fact that Petitioner was discrimi-
nated against due to his then pending charge.” Pet’r’s Br.
1. Mr. Montgomery did not raise any argument related to
his pending criminal charge before the AJ or the Board,
and it was therefore not considered. In any event, Mr.
Montgomery provides no support for this contention, and
he is therefore unable to show he was discriminated
against.
6                                        MONTGOMERY   v. MSPB



    Finally, Mr. Montgomery argues the Board “incorrect-
ly based [its] decision on [the] erroneous belief that coun-
sel rendered effective, or indeed any representation.”
Pet’r’s Br. at 2. The Board noted Mr. Montgomery was
represented by counsel in his criminal proceeding “who
could have researched and/or inquired whether retire-
ment was an option.” Initial Decision, at 5. This was not
the primary ground for the Board’s determination that
Mr. Montgomery’s resignation was not coerced or based
on a misrepresentation; it was an observation that rein-
forced the Board’s conclusion.
                       CONCLUSION
    In light of the foregoing, the Board’s determination
that Mr. Montgomery’s resignation was voluntary is
                       AFFIRMED
                          COSTS
    No Costs.
