Harvin v. Merit Systems Protection Board
666 F. App'x 914
| Fed. Cir. | 2016Background
- Harvin, an Agriculture Dept. employee, was informed she would be removed for unacceptable performance and was given the option to resign; she submitted a resignation effective October 24, 2013.
- Harvin appealed to the MSPB claiming her resignation was involuntary and that she attempted to rescind it before the effective date.
- An AJ initially dismissed for lack of jurisdiction (voluntary resignation). On review the MSPB found Harvin’s allegation of attempted rescission nonfrivolous and remanded for a jurisdictional hearing.
- On remand the AJ held a hearing, evaluated witness credibility under Hillen factors, and found Harvin did not communicate a desire to withdraw the resignation before it became effective.
- The MSPB denied review of the AJ’s second decision and reinstated it as the final decision; Harvin appealed to this court. The court reviews jurisdictional questions de novo and factual findings for substantial evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MSPB had jurisdiction because Harvin rescinded her resignation before its effective date | Harvin says she attempted to rescind her resignation (records and witness testimony show attempt) | Agency/MSPB say she did not communicate a rescission before effective date; resignation was voluntary | MSPB lacked jurisdiction; substantial evidence supports finding Harvin did not rescind before effective date |
| Whether omitted IComplaint System records would change outcome | Those records contain "crucial information" proving rescission | Records are not probative of rescission and were not supplied with substantiating documents | Court finds records do not undermine the AJ’s credibility findings or outcome |
| Whether the AJ improperly weighed witness testimony | Harvin contends her witness proves she tried to rescind | AJ applied Hillen credibility factors and found witness showed only attempts to reach agency, not rescission | Court affirms AJ’s credibility determinations as supported by substantial evidence |
| Whether Harvin’s other involuntariness claims (duress, coercion, discrimination) support jurisdiction | Harvin previously raised these claims before MSPB | MSPB found those claims frivolous and insufficient to establish jurisdiction | Court limits appeal to rescission issue and affirms MSPB’s prior finding of frivolousness on other claims |
Key Cases Cited
- Parrott v. Merit Sys. Prot. Bd., 519 F.3d 1328 (Fed. Cir. 2008) (standard of review: jurisdiction de novo; factual findings substantial-evidence)
- Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322 (Fed. Cir. 2006) (nonfrivolous allegation entitles appellant to a jurisdictional hearing; burden to prove jurisdiction by preponderance)
- Van Wersch v. Dep’t of Health & Human Servs., 197 F.3d 1144 (Fed. Cir. 1999) (MSPB jurisdiction is limited to matters conferred by law)
- Shoaf v. Dep’t of Agric., 260 F.3d 1336 (Fed. Cir. 2001) (voluntary resignations are not appealable to MSPB)
- Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301 (Fed. Cir. 2009) (unsubstantiated allegations and speculation do not constitute substantial evidence)