Gladys J. Moran, Petitioner, v. Department of Justice, Respondent, 918 F.2d 186 (Fed. Cir. 1990)

Gladys J. Moran (Moran) appeals from the April 24, 1989, decision of the Administrative Judge (AJ), docket DC34438910226, which became the final decision of the Merit Systems Protection Board (board) when the board denied review on February 2, 1990. The AJ dismissed Moran's appeal for lack of jurisdiction. We affirm.

OPINION

The Board's jurisdiction "is limited to actions appealable to it 'under any law, rule, or regulation.' " Minor v. Merit Systems Protection Bd., 819 F.2d 280, 282 (Fed. Cir. 1987). Under 5 U.S.C. § 7513(d), the board has jurisdiction to entertain appeals of agency actions that are "adverse" to "employees."

The board found that there was no "adverse" agency action against Moran (because she voluntarily resigned) and that Moran was not an "employee" as defined in 5 U.S.C. § 7511(a) (1). These findings are not clearly erroneous, and either of them is sufficient to support the board's finding of no jurisdiction.

Although Moran now asserts that she "resigned under coercion and duress," the record belies that assertion. It indicates that she voluntarily resigned when reminded that her appointment was soon to expire. Moran also asserts that she was a preference eligible in the excepted service. Once again, that argument finds no support in the record. Moreover, the agency chose, within its discretion, not to convert Moran's two-year appointment in the excepted service to the competitive service. See Reed v. Department of the Army, 14 M.S.P.R. 271, 274 (1982).