Wilborn v. Merit System Protection Board
678 F. App'x 1021
Fed. Cir.2017Background
- Wilborn was a Supervisory Law Enforcement Communications Assistant at DHS and retired effective January 31, 2015 at his request.
- On October 12, 2015 he appealed to the MSPB alleging his retirement was involuntary (constructive removal) and raised USERRA and Whistleblower Protection Act (WPA) claims.
- The Board dismissed the appeal on July 1, 2016 for lack of jurisdiction, finding Wilborn failed to nonfrivolously allege facts supporting jurisdiction.
- Wilborn’s factual complaints included a one-day suspension for lack of candor, counseling, a Performance Improvement Plan, and a notice of unsatisfactory performance.
- He also alleged procedural defects in the agency’s EEO investigative file and asserted protected disclosures and military-status discrimination/leave denial under USERRA; he did not allege OSC exhaustion for a WPA IRA.
- The Federal Circuit reviews jurisdiction de novo and affirmed the Board, finding Wilborn’s allegations insufficient to establish jurisdiction or entitlement to a hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether retirement was involuntary / constructive removal | Wilborn: suspension, counseling, PIP, and notice of unsatisfactory performance coerced him to retire | Agency/MSPB: these facts are at most unpleasant or limiting, not coercive enough to render retirement involuntary | Court: Affirmed — allegations not nonfrivolous; no constructive removal jurisdiction |
| Effect of alleged incomplete EEO investigative file on voluntariness | Wilborn: lack of a complete investigative file affected voluntariness of retirement | MSPB: retirement occurred months before EEO investigation completed; procedural defect not shown to affect voluntariness | Court: Affirmed — procedural deficiency did not support involuntariness claim |
| WPA (Individual Right of Action) jurisdiction | Wilborn: he brought a WPA IRA for protected disclosures and retaliation | MSPB: Wilborn did not allege OSC exhaustion and failed to nonfrivolously allege protected disclosures or retaliatory motive | Court: Affirmed — no OSC exhaustion alleged and no nonfrivolous WPA allegations |
| USERRA hostile work environment / leave denial | Wilborn: harassment and denial of accrued sick leave due to military status | MSPB: no nonfrivolous allegation that military service was a motivating factor | Court: Affirmed — failed to allege military status motivated agency actions; no USERRA jurisdiction |
Key Cases Cited
- Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322 (Fed. Cir. 2006) (standard for constructive removal/coercion)
- Staats v. U.S. Postal Serv., 99 F.3d 1120 (Fed. Cir. 1996) (unattractive options do not make resignation involuntary)
- Rosario–Fabregas v. Merit Sys. Prot. Bd., 833 F.3d 1342 (Fed. Cir. 2016) (standard of review for Board jurisdictional decisions)