             NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
              is not citable as precedent. It is a public record.

United States Court of Appeals for the Federal Circuit


                                       04-3208



                              WARREN S. MATTHEWS,

                                                      Petitioner,

                                          v.

                         UNITED STATES POSTAL SERVICE,

                                                      Respondent.



                          __________________________

                          DECIDED: November 17, 2004
                          __________________________




Before NEWMAN, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and BRYSON, Circuit
Judge.

PER CURIAM.




      Warren S. Matthews petitions for review of the decision of the Merit Systems

Protection Board, Docket No. NY3443010339-B-1, dismissing his appeal. We affirm the

decision of the Board.
Background

       Mr. Matthews was employed as a mail carrier by the U.S. Postal Service in

Baltimore, Maryland. In 1986 he requested a transfer from Baltimore to the Binghamton,

New York area so that his wife could care for her ill parents, who lived in the area.

Although he had not been transferred, Mr. Matthews moved his family to Binghamton in

October 1989 and continued to work in Baltimore.              Due to the difficulties of this

arrangement, he resigned on February 21, 1991.

       Mr. Matthews appealed the agency's failure to transfer him on August 27, 2001. In

the Initial Decision the administrative judge dismissed the appeal on the ground that Mr.

Matthews had not established that the Board had jurisdiction of the appeal. The AJ

observed that an agency's decision not to select an employee for a particular position is not

appealable to the Board. The full Board, vacating that ruling, characterized Mr. Matthews'

claim as one for involuntary retirement rather than non-selection for a particular position.

The Board remanded so that the AJ could apprise Mr. Matthews of what he must show in

order to establish the Board's jurisdiction, citing Burgess v. Merit Systems Protection Board,

758 F.2d 641, 643-44 (Fed. Cir. 1985).

       Upon remand, the AJ found that Mr. Matthews had established that the Board had

jurisdiction of his claim for involuntary retirement, but had not pleaded facts that, if proven,

would establish such a claim. The AJ also found that Mr. Matthews had not shown that his

appeal was timely or that conditions existed that excused the late filing of his appeal. The

AJ dismissed the appeal, the full Board declined further review, and this appeal followed.




04-3208                                        2
Discussion

       Voluntary resignation from federal employment is not appealable to the Board. See,

e.g., Braun v. Department of Veterans Affairs, 50 F.3d 1005 (Fed. Cir. 1995). However, an

employee's resignation is not voluntary if it is deemed to have been coerced by the agency.

In order to show coercion the employee must establish that "the agency effectively

imposed the terms of the employee's resignation or retirement, that the employee had no

realistic alternative but to resign or retire, and that the employee's resignation or retirement

was the result of improper acts by the agency." Staats v. United States Postal Service, 99

F.3d 1120 (Fed. Cir. 1996) (citing Schultz v. United States Navy, 810 F.2d 1133, 1136

(Fed. Cir. 1987)).

       The act that Mr. Matthews identifies as an act of coercion is the agency's failure to

transfer him to Binghamton.       However, the circumstances that made his continued

employment in Baltimore intolerable were not the result of actions taken by the agency.

Although Mr. Matthews moved his family to Binghamton for strong family reasons, the

agency has no obligation to help solve the problems that accompanied that move.

Coercion requires more than unpleasant or difficult circumstances. Cf. Staats, 99 F.3d at

1124 ("[T]he doctrine of coercive involuntariness is a narrow one. It does not apply to a

case in which an employee decides to resign or retire because he does not want to accept

a new assignment, a transfer, or other measures that the agency is authorized to adopt,

even if those measures make continuation in the job so unpleasant for the employee that

he feels that he has no realistic option but to leave.") Transfer to a remote location is not a

routine aspect of employment, and failure to transfer, without more, is not reasonably

viewed as grounds of coerced resignation.


04-3208                                        3
         Mr. Matthews states that there were issues of discrimination in the agency's refusal

to transfer him to Binghamton, while offering to transfer him to New York City. To the

extent the discrimination issues were before the Board, for appeal to this court the

discrimination aspects must be waived. See Williams v. Department of the Army, 715 F.2d

1485, 1491 (Fed. Cir. 1983) ("We hold that where jurisdiction lies in the district court under

5 U.S.C. §7703(b)(2)1, the entire action falls within the jurisdiction of that court and this

court has no jurisdiction, under 5 U.S.C. §7703(b)(1), over such cases. This holding is

limited to situations in which the employee is challenging judicially the board's

determinations of both the discrimination and the nondiscrimination issues.").

         Substantial evidence supports the Board's conclusion that the agency's failure to

grant the requested transfer does not meet the criteria of a coerced resignation. We affirm

on this ground, and do not address the Board's further finding that the appeal was untimely

filed.

         No costs.




        1     5 U.S.C. '7703(b)(2) provides:
  (2) Cases of discrimination subject to the provisions of section 7702 of this title shall be
  filed under section 717(c) of the Civil Rights Act of 1964 (42 U.S.C. '2000e-16(c)),
  section 15(c) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. '633a(c)),
  and section 16(b) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C.
  '216(b)), as applicable. Notwithstanding any other provision of law, any such case filed
  under any section must be filed within 30 days after the date the individual filing the case
  received notice of the judicially reviewable action under section 7702.



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