55 Fair empl.prac.cas. 1675, 57 Empl. Prac. Dec. P 40,952 Julio M. Cruz v. Department of the Navy (1991)

We established that principle in our en banc decision in Garcia, and although the dissenting judge in this case disagrees with that decision, we are not free to disregard it. 5 Contrary to the dissent, Cruz did not hold that any employee “must prove that the discrimination existed in order to prove coercion (and therefore Board jurisdiction).” See Cruz, 934 F.2d at 1244 (“Cruz has submitted no evidence . . . indicating that his resignation was involun- tary.”).

In Cruz v. Department of the Navy, we held that, when presented with a mixed case of constructive removal and discrimination, the Board only had authority to decide the discrimination issue if the Board had jurisdiction over the alleged constructive adverse action. 934 F.2d 1240, 1251-53 (Fed.Cir.1991) (en banc).

We established that principle in our en banc decision in Garcia, and although the dissenting judge in this case disagrees with that decision, we are not free to disregard it. 5 Contrary to the dissent, Cruz did not hold that any employee “must prove that the discrimination existed in order to prove coercion (and therefore Board jurisdiction).” See Cruz, 934 F.2d at 1244 (“Cruz has submitted no evidence . . . indicating that his resignation was involun- tary.”).

Cir. 1991) (en banc), where “issues of involuntariness were mixed with claims of discrimination,” the Board’s ju- risdiction would only attach when “an employee carries his or her burden of establishing that a self-initiated personnel Case: 24-1514 Document: 43 Page: 10 Filed: 05/14/2026 10 TAVAKKOL v. MSPB action was coerced or otherwise involuntary”); see also id. at 1341 (“Discrimination issues may be considered insofar as they illuminate involuntariness.”).

Cir. 2006) (en banc); Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1244 (Fed.

“The Board has juris- diction to determine whether a resignation was voluntary or involuntary because it has jurisdiction to determine its jurisdiction, as do its AJ’s.” Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1244 (Fed.

A “mere assertion does not provide a basis for Board jurisdiction in [a] voluntary resignation case,” Cruz v. Dept. of the Navy, 934 F.2d 1240, 1245 (Fed.Cir. 1991) (en banc); rather, the petitioner’s allegations must be “supported by affidavits or other evidence.” Dick v. Dep’t of Veterans Affairs, 290 F.3d 1356, 1361 (Fed.Cir.2002) (overruled on other grounds).

“A resignation is either voluntary or involuntary on the date it was submitted, and jurisdiction must be determined as of that date.” Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1244 (Fed.Cir.1991).

See Bowen v. City of N.Y., 476 U.S. 467, 482 , 106 S.Ct. 2022 , 90 L.Ed.2d 462 (1986) (excusing claimants' failure to exhaust their administrative remedies for the same reasons the Court found the underlying timeliness requirement subject to equitable tolling); Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 , 102 S.Ct. 1127 , 71 L.Ed.2d 234 (1982) ("[F]iling a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court,…

Cir. 2006) (en banc) (citing Cruz v. Dep’t of Navy, 934 F.2d 1240, 1244 (Fed.

Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1244 (Fed.

But “[b]ecause mere proposals to remove are not listed in § 7512, they are not appealable adverse actions in themselves and the Board has no jurisdiction over them.” Cruz v. Dep’t of Navy, 934 F.2d 1240, 1243 (Fed.

But “[b]ecause mere proposals to remove are not listed in § 7512, they are not appealable adverse actions in themselves and the Board has no jurisdiction over them.” Cruz v. Dep’t of Navy, 934 F.2d 1240, 1243 (Fed.

This follows from the Board’s inherent authority to “determine its jurisdiction.” Cruz v. Dep’t of Navy, 934 F.2d 1240, 1244 (Fed.

While the Board has authority to review “mixed case” appeals involving allegations “that an appealable agency action was effected, in whole or in part, because of discrimination,” the Board has authority to review such cases only if they involve an agency action that would otherwise confer Board jurisdiction. 29 C.F.R. § 1614.302 ; 5 U.S.C. § 7702 ; Cruz v. Dep’t of Navy, 934 F.2d 1240, 1246 (Fed.

Cruz v. Dep't of Navy, 934 F.2d 1240, 1244 (Fed.

Cir. 2006) (en banc); Cruz v. Dep’t of Navy, 934 F.2d 1240, 1248 (Fed.

Mr. Montgomery Has Not Met His Burden to Demonstrate Board Jurisdiction “Resignations are presumed voluntary, and the burden of showing the resignation was involuntary is on the petitioner.” Terban v. Dep’t of Energy, 216 F.3d 1021, 1024 (Fed.Cir.2000) (citing Cruz v. Dep’t of Navy, 934 F.2d 1240, 1244 (Fed.Cir.1991)).

Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1245-46 (Fed.Cir.1991) (en banc).

See Garcia, 437 F.3d at 1325 (holding that “in a constructive adverse action case, a claimant must prove that the action was involuntary and that the Board may not reach discrimination issues in mixed cases unless jurisdiction is established with respect to the adverse action alleged”); Cruz v. Dep’t of Navy, 934 F.2d 1240, 1246 (Fed.Cir.1991) (en banc) (holding that a reprisal claim cannot be heard as part of a case over which the Board has no jurisdiction).

Bd., 675 F.3d 1319, 1323 (Fed.Cir. 2012) (citing Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1245-46 (Fed.Cir.1991) (en banc)). *72 Conclusion Accordingly, Dr. Johnson has not met his burden in establishing that the Board has jurisdiction over this appeal.

See 5 U.S.C. § 7512 ; Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1245-46 (Fed.Cir.1991).

Finally, Mr. Oguma’s remaining allegations regarding discrimination and prohibited personnel practices do not constitute independent bases for Board jurisdiction. *458 See Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1245 (Fed.Cir.1991) (en banc).

Cruz v. Dep’t of Navy, 934 F.2d 1240, 1246 (Fed.Cir.1991) (en banc); see also 5 U.S.C. § 2302 (listing prohibited personnel practices for which the Office of Special Counsel has authority to investigate and to remedy).

Garcia, 437 F.3d at 1342-43 ; Cruz v. Dep’t of Navy, 934 F.2d 1240, 1245-46 (Fed.Cir.1991) (en banc).

The Board has “only that jurisdiction conferred on it by Congress.” Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1243 (Fed.Cir.1991).

Garcia, 437 F.3d at 1342-43 ; Cruz v. Dep’t of Navy, 934 F.2d 1240, 1245-46 (Fed.Cir.1991) (en banc).

Cruz v. Dept. of Navy, 934 F.2d 1240, 1248 (Fed.Cir.1991).

Cruz v. Dep’t of Navy, 934 F.2d 1240, 1244 (Fed.Cir.1991) (en banc) (“Resignations are presumed voluntary....”).

Cruz v. Dept. of Navy, 934 F.2d 1240, 1248 (Fed.

Cruz v. Dep’t of Navy, 934 F.2d 1240, 1245 (Fed.Cir.1991); see 5 U.S.C. § 7701 (c)(2)(B) (if agency action is before the Board, prohibited personnel practice may be raised as an affirmative defense).

Garcia, 437 F.3d at 1342-43 ; Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1245-46 (Fed.Cir.1991) (en banc).

Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1244 (Fed.Cir.1991) (en banc).

See 5 U.S.C. § 7702 (a)(1); Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1245 (Fed.Cir.1991) (en banc).

Cir.2006); Cruz v. Dep’t of Navy, 934 F.2d 1240, 1248 (Fed.Cir.1991) (en banc).

The Board lacks jurisdiction over a discrimination claim except where it is accompanied by an adverse action claim over which the Board does have jurisdiction. 5 U.S.C. § 7702 (a)(1); Garcia, 437 F.3d at 1340 ; Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1245 (Fed.Cir.1991) (en banc).

Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1243 (Fed.

Id. at *4 (citing Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1245 (Fed.

Cruz v. Department of the Navy, 934 F.2d 1240, 1243 (Fed.

However, “[b]ecause mere proposals to remove are not listed in § 7512, they are not appealable adverse actions in themselves and the Board has no jurisdiction over them.” Cruz v. Department of the Navy, 934 F.2d 1240, 1243 (Fed.

See Garcia, 437 F.3d at 1344 (finding that once an appellant makes nonfrivolous allegations of jurisdiction over a constructive adverse action, she is entitled to a hearing at which she then must prove that the Board has jurisdiction over her appeal); Cruz v. Department of the Navy, 934 F.2d 1240, 1245 (Fed.

Cir. 2007) (citing Cruz v. Department of the Navy, 934 F.2d 1240, 1244 (Fed.

See, e.g., 5 U.S.C. § 7512 (enumerating the actions that are directly appealable to the Board under chapter 75); Cruz v. Department of the Navy, 934 F.2d 1240, 1245-46 (Fed.

See Trinkl, 727 F. App’ at 1009; Terban, 216 F.3d at 1024 ; Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1244 (Fed.

In Cruz v. Department of the Navy, 934 F.2d 1240, 1244 (Fed.

In Cruz v. Department of the Navy, 934 F.2d 1240, 1244 (Fed.

Cir. 1994) (stating that the Board’s jurisdiction does not extend to proposed removals); Cruz v. Department of the Navy, 934 F.2d 1240, 1243 (Fed.

Thus, in order to bring a mixed case appeal before the MSPB, and thus to exhaust his administrative remedies through a mixed case appeal, a plaintiff must allege that the defendant has taken one of the five designated actions against him and that “a basis for the action was discrimination” in violation of Title VII. 4 See Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1243-46 (Fed.Cir.1991) (en banc); Dews-Miller v. Clinton, 707 F.Supp.2d 28, 44-45 (D.D.C.2010); Greenhouse v. Ger…

Cruz v. Dep’t of Navy, 934 F.2d 1240, 1245 (Fed.Cir.1991) (“This court has repeatedly held that the imminence of a less desirable alternative does not render involuntary the choice made.”).

In one, exemplified by Cruz v. Department of the Navy, 934 F.2d 1240, 1251-53 (Fed.Cir.1991) (en banc), Mr. Cruz failed to prove by a preponderance of the evidence that his resignation was involuntary, so the MSPB dismissed his case for want of jurisdiction.