Appealed from: Merit Systems Protection Board
Before Michel, Circuit Judge, Skelton, Senior Circuit Judge, and Clevenger, Circuit Judge.
SKELTON, Senior Circuit Judge.
Appellant David A. Goodwin petitions for judicial review of the decision of the Merit Systems Protection Board (the board) dated December 20, 1991, Docket No. NYO7529010477, in which the board held that it did not have jurisdiction of appellant's appeal because he had voluntarily resigned from his position of Chief, Examination Branch, GM-15, with the Internal Revenue Service (the agency) in Buffalo, New York, effective June 16, 1987. We affirm for reasons set forth below.
Soon after appellant's attendance at an off-site, off-duty, after-hours Halloween party with some agency trainees, an anonymous report was made to the Buffalo District Director, Gary Matthews, regarding alleged misconduct of appellant at the party. Appellant was placed on special assignment by Matthews at the agency's Hamburg, N. Y., post of duty on or about December 8, 1986, pending an investigation into the allegations of appellant's misconduct.
On or about December 23, 1986, Matthews told appellant that the agency intended to propose appellant's demotion for misconduct unless he agreed to choose a voluntary demotion. From that date to January 29, 1987, appellant and his then attorney Philip Abramowitz negotiated with the agency to determine whether a settlement agreement could be reached whereby appellant would resign in exchange for a "clean record". These negotiations culminated in an oral agreement as follows:
(1) The appellant would resign after exhausting his accumulated sick leave:
(2) The agency would provide him with a "clean personnel record";
(3) The parties would agree on a letter of reference from the IRS District Director Gary Matthews; and
(4) The agency would publish in its local employee newspaper the appellant's stated personal reason for resigning.
Pursuant to this agreement, appellant submitted his resignation dated January 29, 1987, as follows:
I, David Goodwin, Chief Examination Division, Buffalo District, hereby resign from the Internal Revenue Service unconditionally and irrevocably upon termination of my accrued sick leave but no later than July 1, 1987.
The District Director Gary Matthews furnished a letter of reference to appellant in accordance with the agreement, and Standard Form (SF) 50, Notification of Personnel Action, showing that appellant had resigned effective June 16, 1987, was issued by the agency. We assume that the publication was made in the employee newspaper as required by provision (4) of the agreement, although there is nothing in the record about it. In any event, appellant has not raised any issue regarding it.
The agency filled appellant's vacant position on March 2, 1987. Notwithstanding this fact, the appellant wrote a letter, dated June 4, 1987, to Matthews attempting to rescind his resignation before it became effective on June 16, 1987. Matthews denied the request in a letter 1987. The board held that this denial was proper since appellant's ...