Jenkins v. Merit Sys. Prot. Bd.
911 F.3d 1370
Fed. Cir.2019Background
- Jenkins was a long‑time Army supervisory employee who received consecutive poor performance reviews, was placed on a PIP, and faced a proposed removal for unacceptable performance in February 2012.
- Jenkins informed his supervisor he would retire effective March 31, 2012; the Army issued a Final Removal Decision on March 21, 2012 (removal effective April 1, 2012) and on the same day issued a separate memorandum canceling the removal effective March 31 if Jenkins retired that date.
- The Army processed Jenkins’s SF‑50 indicating "voluntary retirement" effective March 31, 2012, and removed references to the removal from his personnel file.
- Jenkins appealed to the MSPB alleging the removal was improper and that his retirement was involuntary (coerced or based on misinformation); MSPB dismissed for lack of jurisdiction and for failure to make a non‑frivolous involuntary‑retirement claim.
- The Federal Circuit affirmed, holding the MSPB lacked jurisdiction over the removal claim because the agency rescinded the removal (mooting the appeal) and that substantial evidence supported the MSPB’s finding that Jenkins’s retirement was voluntary.
Issues
| Issue | Jenkins' Argument | Army/MSPB Argument | Held |
|---|---|---|---|
| Jurisdiction over removal appeal after agency rescission | Jenkins: Final removal decision issued before his retirement, so MSPB retains jurisdiction (invoking 5 U.S.C. § 7701(j)) | Agency/MSPB: Removal was rescinded upon Jenkins’s retirement and references removed; rescission moots the appeal | Court: No jurisdiction—rescission rendered the removal moot; §7701(j) not implicated where removal was rescinded (Cooper control) |
| Whether Jenkins’s retirement was involuntary | Jenkins: Retirement was coerced or based on misinformation (told to retire to protect benefits) | Agency/MSPB: Record shows voluntary retirement forms, no specific misrepresenter identified, no intolerable working conditions; presumption of voluntariness not overcome | Court: Substantial evidence supports MSPB finding retirement was voluntary; involuntariness not shown (no adequate evidence of coercion or actionable misinformation) |
Key Cases Cited
- Cooper v. Department of the Navy, 108 F.3d 324 (Fed. Cir.) (rescission of a removal and deletion from personnel file can render an appeal moot)
- Mays v. Department of Transportation, 27 F.3d 1577 (Fed. Cir.) (§ 7701(j) prevents consideration of retirement status when the case involves a removal; employee may retire and still appeal)
- Schultz v. United States Navy, 810 F.2d 1133 (Fed. Cir.) (choice to resign or face removal does not necessarily make resignation involuntary)
- Terban v. Department of Energy, 216 F.3d 1021 (Fed. Cir.) (involuntary retirement can be shown by misinformation or coercion)
- Staats v. United States Postal Service, 99 F.3d 1120 (Fed. Cir.) (presumption that retirement is voluntary)