                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                      2006-3302



                                    CAROL L. IDE,

                                                            Petitioner,

                                           v.


                      MERIT SYSTEMS PROTECTION BOARD,

                                                            Respondent,

                                          and

                       SOCIAL SECURITY ADMINISTRATION,

                                                            Intervenor.



      Randall A. Schmidt, of Savannah, Georgia, for petitioner.

      Raymond W. Angelo, Acting Associate General Counsel, Office of the General
Counsel, United States Merit Systems Protection Board, of Washington, DC, for
respondent. With him on the brief were B. Chad Bungard, General Counsel, and Rosa M.
Koppel, Deputy General Counsel.

       Brain S. Smith, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for intervenor. With him on the brief
were Peter D. Keisler, Acting Attorney General, and Kathryn A. Bleecker, Assistant
Director.

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                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                      2006-3302


                                    CAROL L. IDE,

                                                      Petitioner,

                                           v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                      Respondent,

                                          and

                        SOCIAL SECURITY ADMINISTRATION,

                                                       Intervenor.




                           ___________________________


                           DECIDED: October 10, 2007
                           ___________________________


Before RADER, Circuit Judge, CLEVENGER, Senior Circuit Judge, and DYK, Circuit
Judge.


RADER, Circuit Judge.

      Carol Ide appeals the final decision of the Merit Systems Protection Board

(“MSPB” or “Board”) denying her petition for review of the dismissal of her appeal of an

allegedly involuntary resignation. Ide v. Soc. Sec. Admin., No. AT-0752-03-0379-M-1
(M.S.P.B. Mar. 29, 2006). This court affirms.

                                           I

      Ms. Ide, a disabled veteran, began work on July 15, 2001 as a student trainee in

Savannah, Georgia for the Social Security Administration (“SSA” or “Agency”). Nearing

completion of her degree, Ms. Ide was slated to end her trainee position in Savannah

and begin a permanent position with the Agency in September 2002 in Statesboro,

Georgia.    Ms. Ide’s graduation from college was a prerequisite to starting in this

permanent position. In early August 2002, she learned that she had failed a Regents

examination and could not graduate before she was scheduled to begin her permanent

position with the Agency. Ms. Ide did not immediately inform her supervisors of her

situation, but waited until the third time she was questioned by Russell Waller (SSA

District Manager, Savannah) about her status after Ms. Ide knew that she had failed the

Regents exam. In September, Ms. Ide was informed that her employment would be

terminated, as she had not graduated from college as anticipated and there were no

funds allocated to continue her employment as a student trainee. She asked if she had

any options, and was informed by Mr. Waller that she could resign. On September 6,

2002, Ms. Ide signed a resignation letter, which stated that she was resigning for

“personal reasons.”

      In January 2003, Ms. Ide filed an appeal asserting that her resignation was not

voluntary. An MSPB administrative judge dismissed her appeal, finding that she did not

meet the statutory definition of “employee” entitled to file an appeal with the Board

under 5 U.S.C. § 7511(a)(1) (2000). After the MSPB denied her petition for review, Ms.

Ide appealed to this court, which reversed the Board’s decision, stating that the record




2006-3302                                  2
was insufficient to determine whether she was preference eligible and that she had

made nonfrivolous arguments on that issue. Ide v. Soc. Sec. Admin., 131 Fed. Appx.

728 (Fed. Cir. 2005) (unpublished). On remand, the administrative judge assumed that

Ms. Ide met the statutory definition of “employee,” but nonetheless concluded that the

Board lacked jurisdiction because she voluntarily resigned from her position.        After

unsuccessfully petitioning the MSPB for review, Ms. Ide now appeals to this court.

                                           II

      Whether the MSPB had jurisdiction to adjudicate a case is a question of law,

which this court reviews de novo. Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed.

Cir. 1995).   This court’s review of the Board’s factual determinations supporting its

assessment of jurisdiction is limited, and the Board must be affirmed unless its

determination 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).

      An appellant must prove by a preponderance of the evidence that his or her

appeal is within the Board’s jurisdiction. 5 C.F.R. § 1201.56(a)(2)(i). Resignation from

the federal service is presumed to be a voluntary act, outside the Board’s jurisdiction.

Braun v. Dep’t of Veterans Affairs, 50 F.3d 1005, 1007 (Fed. Cir. 1995). To rebut the

presumption, the appellant must show: “(1) that the resignation or retirement was the

product of misinformation or deception by the agency; or (2) that the resignation or

retirement was the product of coercion by the agency.” Terban v. Dep’t of Energy, 216

F.3d 1021, 1024 (Fed. Cir. 2000). Importantly, “where an employee is faced merely




2006-3302                                  3
with the unpleasant alternatives of resigning or being subject to removal for cause, such

limited choices do not make the resulting resignation an involuntary act.” Schultz v U.S.

Navy, 810 F.2d 1133, 1136 (Fed. Cir. 1987). But, if an employee can prove that the

agency knew that its reason for threatened removal could not be substantiated, then the

threatened action was coercive. Id.

      To rebut the presumption that her resignation was voluntary, Ms. Ide argues that

the Agency’s reason for removal cannot be substantiated for two reasons: 1) she was

not required by regulation or by her contract to graduate by a particular date, but only to

graduate within a reasonable time; and 2) there was no immediate need to terminate

her position, as she was without fault for failing her examination and the student position

was funded throughout the fiscal year.

      The Board found that Ms. Ide had told the agency repeatedly that she would

graduate in August 2002. In making this determination, the Board weighed Ms. Ide’s

testimony against the testimony of Mr. Waller and Tommy Morris (SSA Georgia Area

Director), documentary evidence including two emails between Mr. Waller and Mr.

Morris from March 2002 and July 2002 indicating that they understood Ms. Ide intended

to graduate in August and begin her permanent position in September, Ms. Ide’s own

testimony that she had purchased a car in July 2002 in anticipation of commuting to her

new job in Statesboro, and Ms. Ide’s own acknowledgement that she was ineligible to

start her permanent position prior to graduation. Mr. Morris also testified before the

administrative judge that he decided that extending Ms. Ide’s student position was

unwarranted given her unforthcoming approach to disclosing her failure to graduate as

well as the staffing commitments already made for the next fiscal year.




2006-3302                                   4
      After conducting a hearing, the administrative judge concluded that the agency’s

version of the events “simply ma[de] sense,” while Ms. Ide’s assertions were “inherently

improbable.” Ide v. Soc. Sec. Admin., No. AT-0752-03-0379-M-1 (M.S.P.B. Nov. 16,

2005). This court is ill-positioned to second-guess the administrative judge’s credibility

determinations on which his overall findings rest. Indeed, an administrative judge’s

credibility determinations are “virtually unreviewable.” Frey v. Dep’t of Labor, 359 F.3d

1355, 1361 (Fed. Cir. 2004) (quoting King v. Dep’t of Health & Human Services, 133

F.3d 1450, 1453 (Fed. Cir. 1998)). Although the administrative judge did not specifically

address the requirement in 5 C.F.R. § 213.3202(b) cited by Ms. Ide that graduation

must be “accomplished in a reasonable and appropriate timeframe,” that provision only

applies to Ms. Ide’s temporary position and does not authorize appointment to a

permanent position before completion of graduation. Nor do the regulations guarantee

permanent positions to students who successfully complete program requirements:

“[s]tudents, who are U.S. citizens, may be noncompetitively converted from the Student

Career Experience Program to a term, career or career-conditional appointment.” 5

C.F.R. § 213.3202(b)(11) (2001) (emphasis added).            The administrative judge’s

conclusion that Ms. Ide’s permanent employment with the Agency was contingent upon

her August 2002 graduation was thus based on substantial evidence and was not

clearly erroneous.

      Ms. Ide’s assertion that she should have been retained at least through the end

of the fiscal year in her student position is intertwined with her argument that she was

subjected to time pressure to resign, an indication of involuntariness. Time pressure

may provide a basis for involuntariness, but only where the agency demands that the




2006-3302                                   5
employee make an “immediate decision.” Middleton v. Dep’t of Def., 185 F.3d 1374,

1381 (Fed. Cir. 1999) (quoting Staats v. U.S. Postal Serv., 99 F.3d 1120, 1126 (Fed.

Cir. 1996).   Ms. Ide was informed that she would be terminated and signed the

resignation on the same date. But, Ms. Ide has not pointed to anything in the hearing

record that indicates that she was to be terminated that very day. The Board did not

abuse its discretion in concluding that Ms. Ide’s resignation was not coerced.

        Substantial evidence therefore supports the MSPB’s conclusion that the SSA

had a supportable reason for removing Ms. Ide, namely that her continued employment

required her to graduate from college. Although Ms. Ide may have been faced with the

“unpleasant alternatives” of resigning or being terminated, this does not make her

choice involuntary. In resigning, Ms. Ide preserved her good standing to reapply for a

future job with the Agency, but sacrificed the procedural protections that are afforded to

a terminated employee. She cannot now seek relief from the MSPB or this court for this

voluntary choice.

       Because the MSPB’s conclusion that Ms. Ide’s resignation was voluntary is

supported by substantial evidence, the Board properly determined it lacked jurisdiction

over her appeal, and its decision is therefore affirmed.




2006-3302                                    6
