Green v. MSPB

Case: 26-1012 Document: 50 Page: 1 Filed: 11/13/2026 United States Court of Appeals for the Federal Circuit ______________________ RONALD L. GREEN, Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________ 2026-1012 ______________________ Petition for review of the Merit Systems Protection Board in No. SF-0752-23-0397-I-1. ______________________ Decided: November 13, 2026 ______________________ RONALD L. GREEN, Henderson, NV, pro se. ELIZABETH W. FLETCHER, Office of the General Coun- sel, United States Merit Systems Protection Board, Wash- ington, DC, for respondent. Also represented by KATHERINE MICHELLE SMITH. ______________________ Before MOORE, Chief Judge, PROST and TARANTO, Circuit Judges. PER CURIAM. Case: 26-1012 Document: 50 Page: 2 Filed: 11/13/2026 2 GREEN v. MSPB Ronald L. Green was employed as a revenue agent by the Internal Revenue Service (IRS, or agency) in Las Ve- gas, Nevada. In August 2006, the agency indefinitely sus- pended him from his job, based on suspicion that he had filed fraudulent personal tax returns. Just before his sus- pension was set to go into effect, Mr. Green filed for an im- mediate disability retirement. And just after his suspension went into effect, Mr. Green invoked arbitration under the governing collective bargaining agreement (CBA) to challenge his suspension. His retirement appli- cation was granted by the Office of Personnel Management (OPM) in January 2007. An arbitrator then reversed his indefinite suspension in March 2007. In May 2023, Mr. Green filed an appeal to the Merit Systems Protection Board (Board) in which he challenged his 2006 retirement as involuntary. A Board-assigned ad- ministrative judge (AJ) dismissed the appeal for lack of ju- risdiction, concluding that Mr. Green failed to nonfrivolously allege involuntariness. Green v. Depart- ment of the Treasury, No. SF-0752-23-0397-I-1, 2025 WL 2242608 (M.S.P.B. July 31, 2025) (Decision). The AJ’s deci- sion soon became the Board’s final decision, and Mr. Green then petitioned us for review. Because Mr. Green failed to allege nonfrivolously that he was either coerced or misled into retiring, we affirm. I A In early 2006, the IRS audited Mr. Green after learning of his large, reported winnings at Las Vegas casinos. S. Appx. 105. 1 On June 5, 2006, the IRS proposed that Mr. Green be indefinitely suspended from his IRS job because 1 “S. Appx.” refers to the supplemental appendix submitted to this court by the government. Case: 26-1012 Document: 50 Page: 3 Filed: 11/13/2026 GREEN v. MSPB 3 it believed that he was guilty of a crime for which impris- onment could be imposed, i.e., the filing of fraudulent tax returns. Decision, at 5; 2 see S. Appx. 108 (CBA allowing removal “where the Employer has reasonable cause to be- lieve the employee has committed a crime for which a sen- tence of imprisonment may be imposed”). That indefinite suspension became effective on August 9, 2006. Decision, at 6. Based on Mr. Green’s suspension and on other person- nel actions allegedly taken by the agency between fall 2005 and summer 2006 (e.g., failing to promote him, giving him a less-than-favorable performance review, and delaying ap- proval of extended sick leave), Mr. Green pressed various challenges in various forums. Between 2005 and 2006, he filed (1) an equal employment opportunity (EEO) com- plaint alleging race and disability discrimination, (2) a claim for compensation based on injuries allegedly sus- tained because of agency action, (3) a grievance for arbitra- tion of the validity of his indefinite suspension based on the agency’s asserted belief that he had committed an impris- onable offense, and (4) an application for disability retire- ment based on various diseases and injuries, some of which he alleged were made worse by agency action. Two of Mr. Green’s challenges are particularly relevant here. First, on June 15, 2006, ten days after receiving no- tice of his proposed suspension, Mr. Green filed an applica- tion for immediate disability retirement. Decision, at 7. He alleged that his dysthymic disorder (persistent depression), diabetes, hypertension, and hemorrhoids, when coupled with workplace stress, rendered him “[un]able to return to the position of [r]evenue [a]gent or any other gainful em- ployment.” Id. at 8–10. 2 We give the native page numbers on the AJ deci- sion as issued, which match the S. Appx. page numbers. Case: 26-1012 Document: 50 Page: 4 Filed: 11/13/2026 4 GREEN v. MSPB Second, on August 17, 2006, Mr. Green timely invoked arbitration under the CBA to challenge his indefinite sus- pension. Id. at 6. He argued that his suspension must be set aside because it was an act of discrimination on the ba- sis of race and disability and retaliation for whistleblowing. See id. at 6–7; S. Appx 107. Mr. Green separately pre- sented the discrimination claims in an EEO complaint. The agency processed his complaint, and Mr. Green there- after brought an appeal to the Equal Employment Oppor- tunity Commission (EEOC). After several levels of appeal, Mr. Green exhausted his administrative remedies in Jan- uary 2013 when the EEOC declined to reconsider its judg- ment in favor of the agency. Decision, at 5 (citing Green v. Department of the Treasury, EEOC Request No. 0520120611, 2013 WL 486760 (Jan. 31, 2013)). Mr. Green then brought a challenge in district court. The court granted summary judgment against all of Mr. Green’s claims, concluding that there was no genuine dispute of material fact, Green v. Lew, No. 2:13-cv-00740-KJF-VCF, 2014 WL 4471637 (D. Nev. Sep. 10, 2014), and the Ninth Circuit affirmed that grant, Green v. Mnuchin, 693 F. App’x 572 (9th Cir. July 5, 2017). OPM granted Mr. Green’s disability-retirement appli- cation on January 17, 2007, while the arbitration challenge to his indefinite suspension was still pending. Decision, at 11. Then, on March 24, 2007, the arbitrator sided with Mr. Green on the challenge to his suspension on different grounds. S. Appx. 104–23 (March 2007 Arbitration Deci- sion); see Decision, at 6. The arbitrator reasoned that the existence of an investigation into tax fraud, all by itself, could not support a reasonable belief that an imprisonable offense had been committed, and he ordered that Mr. Green be “reinstated without back pay.” S. Appx. 123; see Decision, at 6–7. On the other hand, the arbitrator rejected Mr. Green’s assertion that his suspension was an act of dis- crimination or whistleblower reprisal. S. Appx. 123. The agency then backdated Mr. Green’s disability retirement to Case: 26-1012 Document: 50 Page: 5 Filed: 11/13/2026 GREEN v. MSPB 5 his last date of pay, August 6, 2006, and expunged from his record all references to later-imposed non-pay statuses and suspensions. Decision, at 11. B On May 23, 2023, Mr. Green filed a Board appeal alleg- ing that his disability retirement, sought in 2006 and ap- proved in 2007, had been involuntary. S. Appx. 101. In his appeal-initiating form, Mr. Green identified the challenged action as “[i]nvoluntary [r]etirement” and stated that “[t]he IRS engaged in harmful procedural errors and committed a prohibited personnel practice ([u]nlawful [d]iscrimina- tion).” Id. The AJ ordered Mr. Green to show that the Board had jurisdiction to hear his appeal and that his appeal was timely filed. See S. Appx. 69–70. Mr. Green’s response de- scribed many of the same personnel actions as his earlier EEO complaint and accompanying district-court action. He explained that after the alleged discriminatory inci- dents raised in his EEO complaint took place, the IRS took eleven other “adverse, hostile, and harassing actions,” which he characterized as “[d]isability [d]iscrimination.” S. Appx. 84. He argued that those actions “worsened” his pre- existing depression, “requir[ing] extended sick leave to heal,” and that “a reasonable person in [his] position would have felt compelled to retire.” Id. (capitalization altered). Notably, ten of the eleven alleged actions appear to be the same as those raised in Mr. Green’s EEO filing and subse- quent district-court challenge. Compare S. Appx. 85, with Complaint at 2–4, Green v. Lew, No. 2:13-cv-00740-KJD- VCF, 2014 WL 4471637 (D. Nev. Sep. 10, 2014). The only new allegation was that a supervisor improperly interfered with what Mr. Green believed should have been a confiden- tial audit. As to all eleven allegations, Mr. Green argued that the agency’s actions were “discriminatory per se,” that is, “designed to mask actual discrimination.” S. Appx. 86. Case: 26-1012 Document: 50 Page: 6 Filed: 11/13/2026 6 GREEN v. MSPB On July 30, 2025, the AJ, without ruling on the ap- peal’s timeliness, dismissed the appeal because Mr. Green had failed to present nonfrivolous allegations that his re- tirement was involuntary. Decision, at 45, 46 n.19. The AJ explained that retirements are presumptively voluntary and applied both the Board’s specific involuntary-disabil- ity-retirement framework and its general involuntariness framework grounded in agency misinformation or coercion. See id. at 15–39; Rosario-Fabregas v. Merit Systems Protec- tion Board, 833 F.3d 1342, 1346 (Fed. Cir. 2016). Relying on statements made by Mr. Green and his physicians from the time of his retirement, the AJ reasoned that Mr. Green “submitted a disability retirement application, due to his conceded inability to hold gainful employment, long before the agency ever decided to suspend him, and long before the arbitration award.” Id. at 28. Thus, under either framework, “the record . . . lacked[] nonfrivolous allega- tions sufficient to impugn the presumptive voluntariness of his disability retirement.” Id. at 45. The AJ decision became the Board’s final decision on September 4, 2025. Mr. Green petitioned for our review on October 6, 2025. We have jurisdiction to review the Board’s final decisions under 28 U.S.C. § 1295(a)(9). II A We must first determine whether we have jurisdiction to hear Mr. Green’s petition. The general rule is that we lack jurisdiction to hear appeals from the Board in so-called “mixed cases”—cases that, as presented to the Board, in- volve an agency action that is assertedly appealable to the Board and that is asserted to be based, either in whole or in part, on statutorily proscribed discrimination based on race, color, religion, sex, national origin, or disability. 5 U.S.C. § 7703(b)(2) (citing 5 U.S.C. § 7702); see Perry v. Merit Systems Protection Board, 582 U.S. 420, 422 (2017); Toyama v. Merit Systems Protection Board, 481 F.3d 1361, Case: 26-1012 Document: 50 Page: 7 Filed: 11/13/2026 GREEN v. MSPB 7 1364 (Fed. Cir. 2007). Under that rule, those seeking judi- cial review of a Board decision in a mixed case must instead file in district court. Kloeckner v. Solis, 568 U.S. 41, 50 (2012). But when a petitioner seeks review of a Board de- cision in such a mixed case in this court, an “explicit waiver” of the discrimination claims by the petitioner “ef- fectively converts the case to a standard appeal of the ad- verse personnel action—providing this court with jurisdiction to review the Board’s decision.” Harris v. SEC, 972 F.3d 1307, 1318 (Fed. Cir. 2020). It is undisputed that the claims initially before the Board included allegations of discrimination and, there- fore, the case before the Board was a mixed case. See ECF No. 5 at 1; Response Br. at 10–11. At issue is whether Mr. Green’s filings before us constitute a sufficient waiver of his discrimination claims to avail himself of our jurisdic- tion. We conclude that they do, deciding the sufficiency of the waiver, a matter of our jurisdiction, de novo. See Woodard v. Sage Products, Inc., 818 F.2d 841, 844 (Fed. Cir. 1987). In his Form 10 Statement Concerning Jurisdiction, filed pursuant to Federal Circuit Rule 15(c), Mr. Green both acknowledged that he had presented discrimination claims to the Board, ECF No. 5 at 1, and, by checking the relevant box, embraced the statement that he “wish[ed] to abandon those discrimination claims,” with the “under- stand[ing] that this means [he] will not be able to raise the discrimination claims at any later point,” id. at 3. On the other hand, Mr. Green stated in his Form 10 that “the MSPB never ruled on the merits of the discrimination claims . . . which [it] will be required to do should the [c]ourt reverse and remand the case.” Id. at 2. Mr. Green’s opening brief similarly states that his indefinite suspen- sion was “based in part on [race and disability] discrimina- tion,” Opening Br. at 5, and that “because the facts and evidence that establish this appeal . . . were intertwined Case: 26-1012 Document: 50 Page: 8 Filed: 11/13/2026 8 GREEN v. MSPB with . . . alleged discrimination and retaliation[,] . . . the Board’s jurisdiction . . . is irrefutable,” id. at 25. The foregoing would not suffice for waiver if it stood alone. Cf. Harris, 972 F.3d at 1318 (ambiguity not suffi- cient for waiver). But the record did not stop at what we have just quoted. After the government argued in its Re- sponse Brief that this court lacked jurisdiction, Mr. Green eventually declared to this court that he “hereby waive[s] any and all claims of discrimination . . . associated with this action.” Memo in Lieu of Oral Argument, at 4. We hold Mr. Green to his word and conclude that he has waived his discrimination claims in this case, barring him from pressing them now or at any later point. We therefore have jurisdiction to hear the non-discrimination elements of Mr. Green’s case. B On the substance, Mr. Green’s petition presents two principal challenges to the Board’s final decision. Mr. Green first argues that the Board failed to consider whether the agency backdating his retirement—rather than dissolving it and reemploying him as a revenue agent—violated the March 2007 Arbitration Decision. Mr. Green also challenges the Board’s determination that he failed to nonfrivolously plead an allegation of involuntary retirement. We reject both challenges. 1 Mr. Green asserts that the Board misconstrued his ap- peal when it did not address whether the agency failed to comply with the binding March 2007 Arbitration Decision by not restoring him to his position as a revenue agent. See Opening Br. at 4, 7. Because this argument was not clearly presented to the Board, Mr. Green has forfeited it here. Though we hold the pleadings of pro se litigants to “less stringent standards than formal pleadings drafted by law- yers,” petitioners challenging an agency decision still “may Case: 26-1012 Document: 50 Page: 9 Filed: 11/13/2026 GREEN v. MSPB 9 not raise claims for the first time on appeal” and claims must have been “raised with sufficient specificity and clar- ity that the tribunal is aware that it must decide the issue.” Oguntade v. Merit Systems Protection Board, ___ F.4th ___, 2026 WL 2832842, at *3 (Fed. Cir. Sep. 22, 2026). We apply that forfeiture standard, where forfeiture was not first de- cided by the lower tribunal, at our discretion. In re Google Technology Holdings LLC, 980 F.3d 858, 863 (Fed. Cir. 2020). In his appeal-initiating form at the Board, Mr. Green checked just one box to identify the nature of his action, declaring it to be a challenge to an “[i]nvoluntary [r]etire- ment”; he did not check the box to challenge an agency “[f]ailure to restore/reemploy/reinstate.” S. Appx. 101. Later in the proceedings before the Board, Mr. Green did refer to the arbitration decision, but he limited his chal- lenge to arguing that his retirement, sought in 2006 and approved in January 2007, was involuntary; he did not challenge the agency’s failure to restore his employment after the March 2007 Arbitration Decision as a failure to comply with that decision. His principal argumentative brief distilled the issue he was presenting to the following: When a federal agency notifies an employee of a proposed indefinite suspension without pay and he files a request for immediate retirement, when the agency suspends him anyway but an arbitrator later determines that the agency’s suspension was improper and awards that the employee be rein- stated, if instead, the agency retires the employee on the basis of disability without notice or consul- tation, can the agency’s disability retirement be con- sidered anything other than involuntary? S. Appx. 69 (emphasis added). Mr. Green’s discussion of the arbitration decision was limited to invoking it as proof that the agency misled him into retiring, one way of show- ing involuntariness of the retirement he sought in 2006 Case: 26-1012 Document: 50 Page: 10 Filed: 11/13/2026 10 GREEN v. MSPB and had approved in January 2007. See Covington v. De- partment of Health and Human Services, 750 F.2d 937, 942 (Fed. Cir. 1984); Decision, at 27; S. Appx. 84. That allega- tion properly falls under the involuntary-retirement um- brella and was considered and found unpersuasive by the AJ. Decision, at 25–30. But Mr. Green did not discernibly present what would be a quite different challenge, to later inaction by the agency—namely, that the agency failed to comply with the March 2007 Arbitration Decision by not restoring his employment. Accordingly, to the extent that Mr. Green now argues that the agency’s failure to restore his employment after March 2007 was inconsistent with the March 2007 Arbitra- tion Decision, that challenge is forfeited and we decline to reach it. See In re Google, 980 F.3d at 863. 2 What remains is Mr. Green’s challenge to the Board’s determination that he failed to nonfrivolously allege that his retirement was involuntary. We review this issue of the Board’s jurisdiction de novo. See Kahn v. Department of Justice, 528 F.3d 1336, 1341 (Fed. Cir. 2008). A nonfriv- olous allegation is one that, if proven, “could establish the matter at issue” and is “more than conclusory,” “plausible on its face,” and “material to the legal issues in the appeal.” 5 C.F.R. § 1201.4(s). Given Mr. Green’s waiver of discrimination claims, a waiver that is necessary to our jurisdiction, we disregard the discrimination claims in considering whether he non- frivolously alleged involuntariness of the retirement. One consequence of the waiver is that, although the Board ap- plied both its general involuntariness framework and its framework for assessing involuntary disability retirement specifically, we limit our discussion to the general involun- tariness framework. The involuntary-disability-retire- ment inquiry asks whether the individual was constructively forced to retire by agency failure to provide Case: 26-1012 Document: 50 Page: 11 Filed: 11/13/2026 GREEN v. MSPB 11 reasonable accommodations, which is in substance a ques- tion about whether the agency engaged in disability dis- crimination. See SanSoucie v. Department of Agriculture, 116 M.S.P.R. 149, 154–55 (2011) (describing the test for in- voluntary disability retirement). But Mr. Green has waived his disability claims, as described above. And in the absence of such a waiver, the presence of the disability basis for urging involuntariness would deprive us of juris- diction to review the Board decision even though the Board dismissed Mr. Green’s appeal for lack of jurisdiction. Perry, 582 U.S. at 436–37. We therefore do not review the Board’s application of the special standard for involuntary disability retirement. The decision to retire is presumed to be voluntary. Ro- sario-Fabregas, 833 F.3d at 1346. This presumption may be overcome if a petitioner shows that his retirement was the product of coercion or misinformation on the part of the agency. 3 Id. At the jurisdictional stage, a petitioner need only nonfrivolously allege that his retirement was a prod- uct of coercion or misinformation. Mr. Green has failed to allege nonfrivolously that his retirement was a product of coercion. Coercion amounting 3 The government argues that Mr. Green waived any general-involuntariness challenge by failing to raise it in his opening brief. Response Br. at 22–24. We conclude, in light of the standards for pro se filings, that Mr. Green’s opening brief sufficiently includes a challenge to his retire- ment on both involuntary disability and general involun- tariness grounds. See Opening Br. at 8 (“I only applied for [retirement] after the IRS proposed to suspend me.”), 11 (“Appellant believes he was misled by the [a]gency because he believed that the implementation of the arbitration de- cision . . . would lead to his return.”), 22; see also Reply Br. at 2, 4, 11. Case: 26-1012 Document: 50 Page: 12 Filed: 11/13/2026 12 GREEN v. MSPB to involuntariness exists where “(1) the agency effectively imposed the terms of the employee’s resignation or retire- ment; (2) the employee had no realistic alternative but to resign or retire; and (3) the employee’s resignation or re- tirement was the result of improper acts by the agency.” Garcia v. Department of Homeland Security, 437 F.3d 1322, 1329 (Fed. Cir. 2006) (en banc). What matters is what a reasonable person in Mr. Green’s position could have believed at the time of retirement. See id. (citing Shoaf v. Department of Agriculture, 260 F.3d 1336, 1341– 42 (Fed. Cir. 2001)). Before us, Mr. Green explains that he “only applied for disability retirement to avoid the IRS’[s] indefinite suspen- sion.” Opening Br. at 22. This, alone, is insufficient to sup- port a nonfrivolous allegation of coercion. And as the Board concluded, Mr. Green’s other claims of mistreatment—i.e., “interactions with management re: leave and workplace is- sues, not getting jobs he wanted, work assignments, or the like”—“evince[] relatively minor, and generally sporadic, employment issues.” Decision, at 33. Given that Mr. Green’s grievances (as alleged) were relatively minor, both when Mr. Green first filed for retirement in June 2006 and when his retirement was approved in January 2007, it could not be said that Mr. Green had “no realistic alterna- tives” to retirement. After all, he could have pursued his EEO complaint, arbitration challenge, and/or any other ad- ministrative remedies while remaining at the agency. As the Board noted, “all indications” in the record suggest that “the agency took his allegations seriously and investigated them” at every step. Decision, at 36. He has, therefore, failed to establish Board jurisdiction for coercion. Mr. Green has also failed to allege nonfrivolously that his retirement was a product of misinformation. Misinfor- mation supporting a determination of involuntariness ex- ists where “the employee shows that a reasonable person would have been misled by the agency’s statements” and the employee detrimentally relied on those statements. Case: 26-1012 Document: 50 Page: 13 Filed: 11/13/2026 GREEN v. MSPB 13 Covington, 750 F.2d at 942. Mr. Green’s pleadings before us allege only that agency statements after the March 2007 Arbitration Decision misled him into thinking that his re- tirement was undone and his employment reinstated. See Opening Br. at 11; Reply Br. at 11 (arguing that the agency “consistently misinformed” or, more correctly, failed to in- form him “that [he had] misinterpreted that the arbitration decision would lead to [his] return to employment”). But Mr. Green’s retirement took place well before any of the allegedly misleading statements were made by the agency. Those statements, therefore, could not have influenced his decision to retire. Mr. Green’s allegations fail to make a prima facie showing of involuntariness, either through coercion or mis- information. We conclude that the Board did not err in rul- ing that he did not present allegations that could overcome the presumption that his retirement was voluntary. III We have considered Mr. Green’s remaining arguments and find them unpersuasive. For the foregoing reasons, we affirm the Board’s decision. The parties shall bear their own costs. AFFIRMED