                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                        2008-3252

                                      JULIA DAVIS,

                                                           Petitioner,

                                             v.

                     DEPARTMENT OF HOMELAND SECURITY,

                                                           Respondent.


      Julia Davis, of Studio City, California, pro se.

       Domenique Kirchner, Senior Trial Counsel, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
her on the brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E.
Davidson, Director, and Todd M. Hughes, Deputy Director.

Appealed from: Merit Systems Protection Board
                        NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                        2008-3252

                                       JULIA DAVIS,

                                                       Petitioner,


                                             v.

                      DEPARTMENT OF HOMELAND SECURITY,

                                                        Respondent.


Petition for review of the Merit Systems Protection Board in SF-0752-04-0760-M-1.

                            ___________________________

                            DECIDED: December 18, 2008
                            ___________________________

Before RADER, PLAGER, and GAJARSA, Circuit Judges.

PER CURIAM.

       On remand from this court, the Merit Systems Protection Board dismissed Ms.

Julia Davis’s adverse action claim alleging involuntary resignation for lack of jurisdiction.

Because the Board properly dismissed Ms. Davis’s claim, this court affirms.
                                             I

       The present case is on appeal from this court’s remand in Davis v. Department of

Homeland Security, 2007 WL 1551204 (Fed. Cir. 2007) (“Davis I”).                The facts

surrounding Ms. Davis’s adverse action claim are set forth in great detail in that opinion.

Accordingly, this opinion will only discuss those facts necessary to understand the

limited issue on appeal.

       In Davis I, this court upheld the Board’s decision to deny the admission of the

EEOC hearing transcript into evidence after the record was closed on May 23, 2005.

However, faced with a potential inconsistency with another agency opinion, this court

concluded that the Board should have considered the EEOC final decision in rendering

its opinion.   On that point only, this court remanded to the Board for further

consideration. This court cautioned that “remand does not necessarily require that the

Board reach a different result; for example, the Board could find that the sexual

harassment was too far removed in time from Ms. Davis’s resignation to have rendered

that resignation involuntary, or that her resignation was voluntary.” Id.

       On remand, after reviewing the EEOC final opinion for any inconsistency and

considering the parties’ submissions on the issue, the Board again found that Ms.

Davis’s resignation was voluntary. The Board found that the alleged sexual harassment

of Ms. Davis occurred more than a year prior to her resignation and did not establish

that, under the circumstances, a reasonable employee would have been compelled to

resign. The Board also concluded that the involuntariness of the petitioner’s resignation

was not identically before the EEOC or necessary to resolve the sexual harassment

claim. Thus, the EEOC’s finding that Ms. Davis involuntarily resigned was dicta and not




2008-3252                                    2
binding on the Board. The Board reinstated its prior decision and dismissed Ms. Davis’s

appeal for lack of jurisdiction. Ms. Davis timely appealed to this Court. This court has

jurisdiction under 28 U.S.C. § 1295(a)(9).

                                             II

      This court possesses limited authority to review a Board decision. The Board’s

decision must be affirmed unless it is: (1) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with the law; (2) obtained without procedures required

by law, rule, or regulation having been followed; or (3) unsupported by substantial

evidence. 5 U.S.C. § 7703(c) (2000); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307,

1311 (Fed. Cir. 2003). Whether the Board has jurisdiction to hear an appeal presents a

matter of law, which this court reviews without deference.        Middleton v. Dept. of

Defense, 185 F.3d 1374, 1379 (Fed. Cir. 1999).

      The Board’s jurisdiction is limited to those areas delineated by statute, rule, or

regulation. Saunders v. Merit Sys. Prot. Bd., 757 F.2d 1288, 1290 (Fed. Cir. 1985).

This court has recognized that the Board is without jurisdiction over voluntary

resignations. Cruz v. Dept. of Navy, 934 F.2d 1240, 1248 (Fed. Cir. 1991). Because

employee resignations and retirements are presumed to be voluntary, this presumption

may only be rebutted by a showing of sufficient evidence to establish that the retirement

or resignation was involuntary. Middleton v. Dept. of Defense, 185 F.3d at 1379. Thus,

the former employee bears the heavy burden of pleading and proving that her

resignation was involuntary, and thus, within the jurisdiction of the Board. Id. This can

be shown with evidence that the resignation was the product of: (1) misinformation or




2008-3252                                    3
deception by the agency, or (2) coercion by the agency. Staats v. United States Postal

Service, 99 F.3d 1120, 1123-1124 (Fed. Cir. 1996).

       Coercion may occur when “working conditions [are] so intolerable for the

employee that he or she is driven to involuntarily resign or retire.” Id. at 1123. A three-

part test is used for determining whether coercion or duress renders an apparently

voluntary resignation or retirement involuntary:

         (1) that one side involuntarily accepted the terms of another; (2) that

         circumstances permitted no other alternative; and (3) that said

         circumstances were the result of coercive acts of the opposite party . . . .

Middleton v. Dept. of Defense, 185 F.3d at 1379. The most probative evidence of

involuntariness “will usually be evidence in which there is a relatively short period of

time between the employer’s alleged coercive acts and the employee’s retirement.”

Terban v. Dept. of Energy, 216 F.3d 1021, 1024 (Fed. Cir. 2000).

       On appeal, Ms. Davis argues that the Board erred in failing to consider evidence

that her resignation was involuntary. However, these arguments have already been

considered and fall outside the limited scope of this court’s remand.         The remand

instruction was narrow: consider the EEOC final decision and resolve any

inconsistencies with the other agency’s decision.

       The Board did exactly that and reached the same result.                 The Board

reconsidered the record in view of the EEOC final opinion—and again concluded that

Ms. Davis’s resignation was voluntary. Because nothing in the EEOC final opinion

overcame the presumption that her resignation was voluntary, the Board’s conclusion is

supported by substantial evidence.




2008-3252                                    4
       Ms. Davis further argues that the Board is bound by the EEOC final opinion’s

language regarding the issue of involuntary resignation. Collateral estoppel, or issue

preclusion, is appropriate when (1) the issue is identical to that involved in the prior

action; (2) the issue was actually litigated in the prior action; (3) the determination on the

issue in the prior action was necessary to the resulting judgment; and (4) the party

against whom issue preclusion is sought had a full and fair opportunity to litigate the

issue in the prior action. Mayer/Berkshire Corp. v. Berkshire Fashions, Inc., 424 F.3d

1229, 1232 (Fed. Cir. 2005).

       As the Board reasoned in its decision, the issues before the EEOC and the

MSPB were not identical. The issue of involuntary resignation was not litigated before

the EEOC and it was not necessary to resolve the sexual harassment claim. Even the

EEOC final opinion acknowledged that the issue of involuntary resignation was not

before it. Thus the Board correctly concluded that it was not bound by the EEOC final

opinion’s dicta regarding the involuntariness of Ms. Davis’s resignation.

       For these reasons, this court affirms the Board’s dismissal for lack of jurisdiction.




2008-3252                                     5
