Case Information
*1 Before R EYNA , W ALLACH , and T ARANTO , Circuit Judges. Opinion for the court filed by Circuit Judge W ALLACH . Dissenting opinion filed by Circuit Judge R EYNA . W ALLACH , Circuit Judge .
Petitioner Charles T. Jenkins, Jr. seeks review of a Merit Systems Protection Board (“MSPB”) final decision dismissing his appeal for lack of jurisdiction. See Jenkins v. Dep’t of the Army , No. DA-0752-16-0080-I-2, 2017 WL 1209626 (M.S.P.B. Mar. 31, 2017) (J.A. 1–28). [1] We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2012). We affirm.
B ACKGROUND For nearly thirty-three years, Mr. Jenkins was em- ployed by the U.S. Department of the Army (“Army”), and prior to his retirement, worked as a Supervisory Army Community Services (“ACS”) Division Chief. J.A. 71. From August 2010 to January 2012, Mr. Jenkins continu- ally failed performance reviews and at one point served a three-day suspension in connection with submitting “an ACS Information Paper” to a higher command without routing and gaining the necessary approval through his first-level supervisor. See J.A. 400–06. As a result of his reviews, Mr. Jenkins was put on a Performance Im- provement Plan (“PIP”). See J.A. 407–14. After notifying Mr. Jenkins that he failed his PIP, see J.A. 163, his first- level supervisor asked him whether he would be interest- ed in moving to a nonsupervisory position at the same grade and pay level, J.A. 206. Mr. Jenkins refused. J.A. 119. In February 2012, Mr. Jenkins’s first-level supervisor proposed his removal for unacceptable perfor- mance. J.A. 38–46 (Notice of Proposed Removal). After receiving the Notice of Proposed Removal, but before he was officially removed by the Army, Mr. Jenkins sent an email to his first-level supervisor stating that “[e]ffective 31 March 2012 I will retire.” J.A. 37.
Mr. Jenkins submitted written responses challenging the basis for his removal, however, after “consider[ation] and review[ of his] written reply,” the Army issued a Final Removal Decision informing Mr. Jenkins that he would be removed from service effective April 1, 2012. See J.A. 237–39. That same day, March 21, 2012, the Army issued Mr. Jenkins a “Cancellation of Decision on Remov- al” stating “[Mr. Jenkins is] scheduled to retire from federal service effective 31 March 2012” and “[i]f [he] retire[s] from federal service on 31 March 2012, this memorandum will serve as revocation and cancellation effective 31 March 2012.” J.A. 47. Following the Final Removal Decision, Mr. Jenkins indicated on a Standard Form-50 (“SF-50”) that he intended to retire pursuant to his previously submitted retirement application, J.A. 241–43, stating “voluntary retirement effective 31 Mar[ch] [20]12” as his “[r]easons for [r]esignation/[r]etirement” J.A. 241. It is undisputed that the “revocation and cancellation . . . of the [Notice of Proposed Removal]” took effect upon that March 31, 2012 retirement. J.A. 47 (Cancellation of Decision on Remov- al). Subsequently, Mr. Jenkins appealed to the MSPB alleging that his retirement was involuntary because the agency “proposed to remove” him if he did not retire. J.A. 31–35. [2]
In March 2017, the MSPB “dismissed [Mr. Jenkins’s appeal] for lack of jurisdiction.” J.A. 21. Specifically, the MSPB found that it lacked jurisdiction over Mr. Jenkins’s challenge to the Army’s proposed removal because “the [Army] rescinded the removal decision upon [Mr. Jen- kins]’s retirement” and nothing in the record indicated he sought to withdraw his retirement prior to the effective removal date. J.A. 6; see J.A. 336–38 (providing argument and evidence, by the Army, that the March 21, 2012 Decision of Proposed Removal issued “26-days after [Mr. Jenkins] filed an application of retirement”). The MSPB also found it lacked jurisdiction over his involuntary retirement claim because Mr. Jenkins failed to make a non-frivolous claim. J.A. 21.
D ISCUSSION Mr. Jenkins contends the MSPB erred by finding it lacked jurisdiction over his claim because: (1) “the Army issued [the] [F]inal [R]emoval [D]ecision before Mr. Jen- kins retired,” Pet’r’s Br. 17 (capitalizations modified); see id . at 17–25, and (2) its decision that his retirement was voluntary was not supported by substantial evidence due to the fact that his retirement was “based on misinfor- mation” and “was obtained through coercion,” id . at 26, 29; see id. at 25–33. We first discuss the relevant stand- ards of review and legal standards, and then address each of Mr. Jenkins’s arguments.
I. Standard of Review We will uphold a decision of the MSPB unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or “unsupported by substan- tial evidence.” 5 U.S.C. § 7703(c)(1), (3) (2012). We review whether the MSPB has jurisdiction over an appeal de novo. Johnston v. Merit Sys. Prot. Bd. , 518 F.3d 905, 909 (Fed. Cir. 2008). “Findings of fact underlying the [MSPB]’s jurisdictional decision are reviewed for substan- tial evidence.” Bledsoe v. Merit Sys. Prot. Bd ., 659 F.3d 1097, 1101 (Fed. Cir. 2011) (internal quotation marks and citation omitted). “Substantial evidence is more than a mere scintilla of evidence, but less than the weight of the evidence.” Jones v. Dep’t of Health & Human Servs. , 834 F.3d 1361, 1366 (Fed. Cir. 2016) (internal quotation marks and citations omitted). “The petitioner bears the burden of establishing error in the [MSPB]’s decision.” Harris v. Dep’t of Veterans Affairs , 142 F.3d 1463, 1467 (Fed. Cir. 1998).
II. The Improper Removal Claim
A. Legal Standard
The MSPB’s “jurisdiction is limited to those matters
over which it has been given jurisdiction by law, rule, or
regulation.” 5 C.F.R. § 1201.3(a). The petitioner must
establish by preponderant evidence that the MSPB has
jurisdiction over his appeal. 5 C.F.R. § 1201.56(b)(2)(i)(A).
Generally, the MSPB has jurisdiction over appeals of
removals of non-probationary employees, based on unac-
ceptable performance.
See
5 C.F.R. § 1201.3(a)(5); 5
U.S.C. § 4303(e). “If an appealable action is canceled or
rescinded by an agency, any appeal from that action
becomes moot,” thereby depriving the MSPB of jurisdic-
tion.
Cooper v. Dep’t of the Navy
,
B. The MSPB Did Not Err in Holding It Lacked Jurisdic-
tion over the Removal Claim The MSPB held that, because “[Mr. Jenkins] retired before the removal action was effected, and the [Army] rescinded the removal decision upon [his] retirement,” the MSPB lacked jurisdiction over his appeal challenging the proposed removal. J.A. 6 (emphasis added). Mr. Jenkins avers the MSPB has jurisdiction over his appeal because his retirement date was “ after the Army issued a final decision to remove him.” Pet’r’s Br. 17 (emphasis added). We disagree with Mr. Jenkins.
The sequence of retirement and rescission is not con-
trolling. Rather, the MSPB lacked jurisdiction because
the Army rescinded its removal. The Army proposed
removal of Mr. Jenkins on February 16, 2012, J.A. 38, Mr.
Jenkins indicated his intent to retire on February 23,
2012, J.A. 236, and the Army issued its Final Removal
Decision on March 21, 2012, J.A. 237–39. However, the
same day his retirement went into effect, the Army
re-
scinded the removal decision
. J.A. 47 (Cancellation of
Decision on Removal). The Army removed all references
to the proposed removal action in Mr. Jenkins’s personnel
file, thus eliminating any potential consequences the
removal could have had on his retirement.
See
J.A. 240–
43 (demonstrating that the Notice of Proposed Removal
and SF-50 do not reference the removal decision), 333
(acknowledging the agency evidence and arguments were
made under penalty of perjury), 358 (showing a printout
of a chronological listing of Mr. Jenkins’s SF-50s from
2010 through 2012). This rescinding of the removal
decision mooted Mr. Jenkins’s improper removal claim.
See Cooper
,
Mr. Jenkins’s primary counterargument fails. He
contends that his challenge to the removal is appealable
to the MSPB under 5 U.S.C. § 7701(j) because the MSPB
“consider[ed] [his] ‘retirement status’” when determining
whether it had jurisdiction. Pet’r’s Br. 23. Section 7701(j)
provides that the MSPB, in “determining the appealabil-
ity . . . of any case involving a removal from the service,”
may not take into account “
an individual’s status
under
any retirement system established by or under Federal
statute.” 5 U.S.C. § 7701(j) (emphasis added);
see Mays v.
Dep’t of Transp.
, 27 F.3d 1577, 1579 (Fed. Cir. 1994)
(holding that “[t]he plain language of § 7701(j) means that
retirement status cannot be taken into account in deter-
mining the appealability of ‘any case involving a remov-
al’”). In
Mays
, we considered § 7701(j) and held that the
MSPB had jurisdiction over petitioner’s appeal because
the petitioner’s retirement was effective the same date as
her removal and her retirement form stated she “[r]etired
after receiving [final] written notice . . . of [the] decision to
separate.”
Mays did not involve a rescission of the removal deci- sion being appealed to the MSPB. In contrast, in Cooper , we held that when an agency has “rescinded” an effectu- ated removal action during the pendency of an appeal, eliminated “all references to [the removal] action from [a petitioner]’s official personnel file,” and “substituted a separation” based on retirement for the removal, the appeal of the removal is moot and § 7701(j) is not impli- cated. 108 F.3d at 325–26; see id . (determining that, because “the agency had rescinded his removal[,] the [MSPB] did not need to consider [the appellant]’s retire- ment status to reach its conclusion that his appeal was moot”). [3] This case is governed by Cooper . Therefore, § 7701(j) does not provide jurisdiction because the case no longer involved a removal. See id. at 326 (finding § 7701(j) did not apply). Because Mr. Jenkins’s case no longer involved a removal, the MSPB did not need to consider Mr. Jenkins’s retirement status in determining that it lacked jurisdiction over the appeal.
III. The Involuntary Retirement Claim
A. Legal Standard
An involuntary retirement is an adverse employment
action “where an agency imposes the terms of an employ-
ee’s resignation, the employee’s circumstances permit no
alternative but to accept, and those circumstances were
the result of improper acts of the agency.”
Schultz v. U.S.
Navy
, 810 F.2d 1133, 1136 (Fed. Cir. 1987) (internal
quotation marks omitted). “The [MSPB] has jurisdiction
over an involuntary retirement, which is treated as if it
were a removal.”
Cooper
,
B. Substantial Evidence Supports the MSPB’s Finding
that Mr. Jenkins’s Retirement Was Voluntary The MSPB considered all record evidence related to the voluntariness of Mr. Jenkins’s retirement, see J.A. 14–17 (analyzing, inter alia, the length of time offered to improve performance, testimony and written records regarding performance deficiencies, and various communications between Mr. Jenkins and his first-level supervisor), and determined that while Mr. Jenkins was faced with the difficult choice of either retiring or oppos- ing a removal action, this choice did not render his re- tirement involuntary because he chose to follow through with his retirement decision, J.A. 20–21. Mr. Jenkins argues his retirement was involuntary because it was based on “misinformation” such as “management officials” telling him that he needed to retire to protect his retire- ment benefits, Pet’r’s Br. 26, and that it was obtained through “coercion,” id. at 29. We disagree with Mr. Jen- kins.
Substantial evidence supports the MSPB’s finding that Mr. Jenkins voluntarily retired. First, Mr. Jenkins submitted personnel forms that indicate that his retire- ment from the Army was voluntary. Specifically, under the section asking for reasons for retirement it said “[v]oluntary retirement.” See J.A. 243; see J.A. 243 (stat- ing in the SF-50 the reason for retirement is “[v]oluntary retirement”).
Second, Mr. Jenkins’s retirement was not the product
of misinformation by the agency. The only evidence of
record cited by Mr. Jenkins regarding any alleged misrep-
resentation is that an unidentified individual told Mr.
Jenkins he should retire “to protect his retirement bene-
fits.” J.A. 425;
see
J.A. 425 (providing Mr. Jenkins’s pre-
hearing submissions). This evidence is insufficient to
support Mr. Jenkins’s position because he never identified
any individual who made this statement nor did he pro-
vide any foundation for the alleged statement.
See
J.A. 425;
see also
J.A. 18–19 (explaining by the MSPB
that Mr. Jenkins admitted he did not receive misinfor-
mation about the ability to retire from Human Resources);
cf. Scharf v. Dep’t of the Air Force
,
Third, Mr. Jenkins’s retirement was not caused by co- ercion. Mr. Jenkins argues that his retirement was the product of coercion because the Army “imposed the terms of [his] retirement” and he had “no [alternative] but to retire.” Pet’r’s Br. 30–31. A petitioner can establish his retirement was the product of coercion if he proves by preponderant evidence that an agency created “working conditions so intolerable” that he was “driven to involun- tarily . . . retire.” Garcia , 437 F.3d at 1328–29. “[T]o establish involuntariness on the basis of coercion” due to a threatened or proposed adverse action, the employee must show that: (1) he involuntarily accepted the terms “effec- tively imposed” by the agency; (2) the circumstances presented “no realistic alternative” but to retire; and (3) his retirement was the result of “improper acts of the agency.” Shoaf v. Dep’t of Agric. , 260 F.3d 1336, 1341 (Fed. Cir. 2001). Here, however, Mr. Jenkins has adduced no evidence to demonstrate that his working conditions were intolerable. See generally Pet’r’s Br. Instead, Mr. Jenkins simply had the choice of not retiring and opposing the removal, or retiring. [4] Thus, the MSPB correctly found Mr. Jenkins failed to demonstrate that his retirement was involuntary.
C ONCLUSION We have considered Mr. Jenkins’s remaining argu- ments and find them unpersuasive. Accordingly, the Final Decision of the Merit Systems Protection Board is
AFFIRMED
choices do not make the resulting resignation an involun-
tary act.” 810 F.2d at 1136. Here, the MSPB simply
relied on
Schultz
, in addition to several MSPB cases, in
holding that the “unpleasant choice” to retire or be re-
moved “does not rebut the presumed voluntariness” of the
decision to retire.
See
J.A. 16 (citations omitted). While
Mr. Jenkins argues that his factual situation was differ-
ent because the “rescission was expressly conditioned” on
his retirement, Pet’r’s Br. 25, our precedent does not
support such a distinction,
Schultz
,
United States Court of Appeals for the Federal Circuit ______________________ CHARLES T. JENKINS, JR., Petitioner MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________ 2017-2193 ______________________ Petition for review of the Merit Systems Protection Board in No. DA-0752-16-0080-I-2.
______________________ R EYNA , Circuit Judge , dissenting.
The majority concludes that the Merit Systems Pro- tection Board lacks jurisdiction to review the agency’s removal decision because the agency rescinded its remov- al decision in exchange for Petitioner Charles T. Jenkins, Jr.’s retirement. See Maj. Op. 5–8. As a result, the ma- jority opinion undermines congressionally mandated protections for federal employees recognized by this court in Mays v. Department of Transportation , and provides federal agencies a playbook on how to structure the removal of federal employees to preclude judicial review of removal decisions. Now, the Catch-22 dilemma imposed on Mr. Jenkins will ensnare federal employees in the future. I respectfully dissent.
1. Section 7701(j)
Section 7701(j) of Title 5 of the United States Code prohibits the Board from considering in “any case involv- ing a removal from the service . . . an individual’s status under any retirement system . . . [or] any [retirement] election.” In passing this statute as part of the Civil Service Due Process Amendments of 1990, “Congress intended to end the situation which forced federal em- ployees to choose between appealing a removal action and accepting retirement benefits.” Mays v. Dep’t. of Transp. , 27 F.3d 1577, 1580 (Fed. Cir. 1994). Yet the Army put Mr. Jenkins in precisely the situation of making a forced choice because its offer to rescind his removal was condi- tioned upon Mr. Jenkins first retiring.
2. Mays
This court’s decision in Mays plainly applies to this case. In Mays , we held that the appellant retained her appeal rights when she separated from service through retirement after “the agency had made the final decision to remove her.” 27 F.3d at 1580–81. Ms. Mays first received an initial notice of proposed removal. Id. at 1577–78. The agency then informed Ms. Mays by decision letter that removal had been approved and she would be removed from her position a few days later. Id. at 1578. Ms. Mays retired on the same date her removal became effective. Id. The SF-50 form in her personnel file indi- cated that she “[r]etired after receiving written notice . . . of [the] decision to separate for unacceptable perfor- mance.” Id. Ms. Mays appealed her removal, which the Board dismissed for lack of jurisdiction, holding that she had “divested the Board of jurisdiction” unless she could prove “her retirement was involuntary” because she retired on the same effective date as her removal. Id.
This court reversed upon determining that 5 U.S.C. § 7701(j) controls because Ms. Mays’s case “involve[d] a removal,” despite her retirement. Id. at 1581. We con- cluded that the case “involved a removal” because Ms. Mays could not “escape the final agency decision to re- move her,” and the agency did not dispute that Ms. Mays would not have retired when she did but for the removal action. Id. at 1580. The court found that the Board erred by considering Ms. Mays’s retirement status, which § 7701(j) prohibited because her case involved a removal. Id. We pointed to the legislative history of § 7701(j), noting that the legislation promised to “allow[] an em- ployee who is eligible to retire but who the agency wants to fire to take his or her annuity and still challenge the adverse action before the [Board].” Id. The majority opinion breaks away from that promise.
3. Cooper
The majority relies on Cooper v. Department of the Navy . Maj. Op. 7–8. In Cooper , the Navy removed Mr. Cooper for inability to perform his duties. Cooper v. Dep’t of the Navy , 108 F.3d 324, 325 (Fed. Cir. 1997). Mr. Cooper appealed, and in the course of the appeal, applied for disability retirement benefits. Id. Despite the remov- al decision, OPM approved Mr. Cooper for retirement benefits. Id. As to removal, the Board “held that as long as the removal was effected prior to OPM’s grant of disability retirement, the Board had jurisdiction to hear the appeal, regardless of the effective date of the retire- ment.” Id. In response to the Board’s holding, the Navy rescinded Mr. Cooper’s removal, removed all references to the removal action from his personnel file, and substitut- ed a disability retirement separation for the removal. Id. The Board then dismissed the appeal as moot. Id.
We affirmed in Cooper , holding that “[t]he Navy’s can- cellation of the removal action and the removal of all references to that action from Cooper’s official personnel file eliminated all the consequences of that action and thus rendered Cooper’s appeal moot.” Id. at 326. The Cooper court recognized the Mays court’s characterization of § 7701(j) as intended to “ensure that an employee who was eligible for retirement at the time of his removal could take a retirement annuity without forfeiting his right to challenge his removal.” Id. Mr. Cooper specifical- ly argued that to hold his appeal was moot would permit agencies to avoid review of removal decisions by removing an employee, waiting for that employee to file for retire- ment, and then rescinding the removal and moving to dismiss the appeal. In dismissing that argument, the Cooper court relied on the ability of employees to argue involuntary retirement as a safeguard against such agency tactics. See id. at 326.
The removal in this case is closer to Mays than Cooper . As in Mays , the agency in this case initially proposed removal, made a final decision to terminate, and took action by notifying Mr. Jenkins that he would be terminated. In addition, Mr. Jenkins retired the same day removal was effected and would not have retired but for the removal. The majority is correct that Mays did not involve a rescission of removal. But Mays remains appli- cable here because, like the agency in Mays , the Army forced its employee to choose between appealing the removal action and accepting retirement benefits, directly contravening the congressional intent of § 7701(j). As Mr. Jenkins argues, he retired to “protect his retirement benefits.” Maj. Op. 10; see also J.A. 241 (SF-50 form reflecting that he retired “to obtain retirement benefits”). The March 21, 2012 “Cancellation of Decision on Remov- al” memorandum received by Mr. Jenkins makes clear that rescission of his removal was conditioned upon him first retiring:
If you retire from federal service on 31 March 2012, this memorandum will serve as revocation and cancellation effective 31 March 2012 of the [Notice of Decision] dated 21 March 2012. Howev- er, if you do not retire effective 31 March 2012, the [Notice of Decision] dated 21 March 2012 will not be revoked and cancelled and your removal from your position and federal service will be effective as of 1 April 2012.
J.A. 240 (emphases added).
By contrast, Mr. Cooper’s agency never forced him to choose between appealing his removal action and accept- ing retirement benefits. The agency removed Mr. Cooper, and it was only after he appealed the removal decision that he applied for retirement benefits. Mr. Cooper was not offered rescission in exchange for retiring and giving up his right to appeal.
The majority states that the “sequence of retirement and rescission is not controlling.” Maj. Op. 6. But timing is not what distinguishes this case from Cooper . The question is whether there was a conditional offer of re- scission in exchange for voluntary retirement. This distinction is key in the context of § 7701(j). In Cooper , the Board “merely relied on the fact that the agency had rescinded his removal [and] did not need to consider Cooper’s retirement status to reach its conclusion that his appeal was moot.” 108 F.3d at 326. But here, in direct violation of § 7701(j), the Board expressly considered Mr. Jenkins’s retirement in concluding that the removal had been rescinded as a direct result of his retirement:
Here, the appellant retired before the removal ac- tion was effected, and the agency rescinded the removal decision upon the appellant’s retirement . The agency removed all references to the removal action in the employee’s personnel file, eliminat- ing all consequences of the removal.
J.A. 6 (emphases added). By conditioning rescission upon Mr. Jenkins’s retirement, the agency forced the Board to “consider [the employee’s] retirement status to reach its conclusion that his appeal was moot.” Cooper , 108 F.3d at 326. Unlike in Cooper , the Board could not have consid- ered the rescission without also considering Mr. Jenkins’s retirement status.
Finally, the majority reasons that removing from Mr. Jenkins’s file all the references to Mr. Jenkins’s removal eliminated “all consequences” of the removal, therefore making this case unlike Mays . Maj. Op. 6, 7–8 n.3. This is incorrect because Mr. Jenkins would not have retired but for his removal. In addition, removing references to the removal action from his file was conditioned on anoth- er more enduring and significant consequence: Mr. Jen- kins loses his right to challenge the removal action by making an appeal.
The majority decision is an exercise in splitting hairs
that runs contrary to the Supreme Court’s directive to
take an “expansive view” of “remedial legislation.”
Ne.
Marine Terminal Co. v. Caputo
,
Here, reversal is warranted to condemn what are in- iquitous tactics by agencies to force employees to choose whether to be fired, or to retire. They are iniquitous because the tactics insulate agency decisions from judicial review in cases where employees choose to preserve their retirement benefits. The result of this choice is the em- ployee’s loss of the valuable ability to appeal conferred by federal statute. See 5 U.S.C. § 7701(a). To read Cooper as holding that all rescinded removal decisions escape the scope of § 7701(j), especially when offered in exchange for an employee’s voluntary retirement, is counter to legisla- tive intent. Once an employee has been forced to make this choice, what a personnel officer writes in the employ- ee’s file is a distinction that makes no difference. The majority’s decision will incentivize agencies to condition rescissions of removals on an employee’s first retiring to avoid the burden of defending removal actions.
The Government argues that Mr. Jenkins has not
been prejudiced because he can argue involuntary retire-
ment.
See Cooper
, 108 F.3d at 326. The majority con-
cludes that Mr. Jenkins could not show involuntary
retirement because he could not show intolerable working
conditions, and simply having to make a choice is not
sufficient to establish coercion. The majority notes that
“Mr. Jenkins simply had the choice of not retiring and
opposing the removal, or retiring.” Maj. Op. 11. This
characterization disregards the importance of pension
benefits to our nation’s federal employees. The majority’s
decision creates a jurisdictional loophole by showing
agencies how to divest federal employees of their right to
appeal a removal in the interest of protecting those bene-
fits, while ensuring their retirement remains sufficiently
voluntary to keep the Board from having jurisdiction at
all.
See Schultz v. U.S. Navy
, 810 F.2d 1133, 1136 (Fed.
Cir. 1987).
[1]
Forcing a choice between retiring and keep-
ing your benefits or termination and loss of benefits is an
act of coercion, the very abuse that Congress recognized
by passing § 7701(j).
See Mays
,
involuntary because the agency threatened removal for an improper basis. Id. at 1136–37. That case has no bearing on whether an agency’s final removal decision that is rescinded in exchange for an employee’s voluntary retire- ment should escape review under § 7701(j).
Notes
[1] An administrative judge issued an initial decision on March 31, 2017, see J.A. 1–28, which became final when Mr. Jenkins did not file a petition for review, see J.A. 21; see also 5 C.F.R. § 1201.113 (2014) (providing “[t]he initial decision of the judge will become the [MSPB]’s final decision [thirty-five] days after issuance” unless, inter alia, “any party files a petition for review”). Therefore, we refer to the Initial Decision as the MSPB’s Final Decision.
[2] When Mr. Jenkins filed his Federal Circuit Rule 15(c) Statement Concerning Discrimination on July 7, 2017, he abandoned his formerly asserted discrimination claims. Pet’r’s Fed. Cir. R. 15(c) Statement, ECF No. 10; see Oral Arg. at 12:31–40, http://oralarguments.cafc. uscourts.gov/default.aspx?fl=2017-2193.mp3.
[3] The dissent states that the majority believes this case is unlike Mays because “removing from Mr. Jenkins’s file all the references to [his] removal eliminated ‘all consequences’ of the removal” and that “Mr. Jenkins would not have retired but for his removal.” Dissent Op. 6. The dissent, however, fails to recognize that Mays did not involve a rescission of a removal decision being appealed to the MSPB. Like Cooper , the MSPB in this case considered the rescission of the removal decision in making the determination that it lacked jurisdiction over the appeal. See Cooper , 108 F.3d at 326 (explaining, “in deciding that [the] appeal was moot, the [MSPB] merely relied on the fact that the agency had rescinded his re- moval”). Section 7701(j) does not prohibit an employing agency from taking an employee’s retirement status into account in deciding whether to cancel a removal decision; it only prohibits the MSPB from taking an appellant’s retirement status into account in determining whether a non-cancelled removal decision is appealable. See id. Because the MSPB determined the Army rescinded Mr. Jenkins’s removal decision, as in Cooper , it did not need to consider his retirement status to determine that it lacked jurisdiction over the appeal. J.A. 6.
[4] The dissent states that “the Army put Mr. Jenkins in precisely the situation of making a forced choice be- cause its offer to rescind his removal was conditioned upon Mr. Jenkins first retiring.” Dissent Op. 2. In Schultz , however, we explained that when “an employee is faced merely with the unpleasant alternatives of resign- ing or being subject to removal for cause, such limited
[1] The majority relies on Schultz for the proposition that that “where an employee is faced merely with the un- pleasant alternatives of resigning or being subject to removal for cause, such limited choices do not make the resulting resignation an involuntary act.” Id. In that case, we reversed the Board’s finding of lack of jurisdic- tion on the grounds that the employee’s retirement was