See Carmichael v. United States, 298 F.3d 1367, 1372 (Fed. Cir. 2002) (in a military personnel case, the Federal Circuit addressed the presumption: "A presumption of voluntariness generally exists where an employee tenders his resignation or retires; the plaintiff bears the burden of coming forward with evidence to demonstrate that his resignation or retirement was not voluntary.") (citations omitted); see also Christie v. United States, 207 Ct. Cl. 333, 338, 518 F.2d 584, 587 (1975) (in a civilian personnel case, the United States Court of Claims stated: "[e]mployee resignations are presumed to be voluntary."); Lopez-Velazquez v. United States, 85 Fed. Cl. 114, 136 (2008); Moody v. United States, 58 Fed. Cl. 522, 524 (2003); Gavin v. United States, 47 Fed. Cl. 486, 490 (2000), appeal dismissed, 25 F. App'x 882 (Fed. Cir. 2001). However, a "[p]laintiff can thus rebut the presumption that his resignation was voluntary if he can show that he resigned as a result of wrongful government action.

See Carmichael v. United States, 298 F.3d 1367, 1372 (Fed. Cir. 2002) (in a military personnel case, the Federal Circuit addressed the presumption: "A presumption of voluntariness generally exists where an employee tenders his resignation or retires; the plaintiff bears the burden of coming forward with evidence to demonstrate that his resignation or retirement was not voluntary.") (citations omitted); see also Christie v. United States, 207 Ct. Cl. 333, 338, 518 F.2d 584, 587 (1975) (in a civilian personnel case, the United States Court of Claims stated: "[e]mployee resignations are presumed to be voluntary."); Lopez-Velazquez v. United States, 85 Fed. Cl. 114, 136 (2008); Moody v. United States, 58 Fed. Cl. 522, 524 (2003); Gavin v. United States, 47 Fed. Cl. 486, 490 (2000), appeal dismissed, 25 F. App'x 882 (Fed. Cir. 2001).

The question of whether a resignation from public employment that has been requested by an employer is sufficiently involuntary to trigger the protections of the due process clause is one of first impression in this Circuit. As an initial matter, employee resignations are presumed to be voluntary. Angarita v. St. Louis County, 981 F.2d 1537, 1544 (8th Cir. 1992); Alvarado v. Picur, 859 F.2d 448, 453 (7th Cir. 1988); Christie v. United States, 518 F.2d 584, 587, 207 Ct.Cl. 333 (1975). "This presumption will prevail unless [the employee] comes forward with sufficient evidence to establish that the resignation was involuntarily extracted."

Defendant's Supplemental Motion to Dismiss Amended Complaint (hereinafter "Def.'s Suppl. Mot.") at 1. Resignations are presumed to be voluntary. Christie v. United States, 518 F.2d 584, 587 (Ct.Cl. 1975). Nevertheless, "[i]f the [P]laintiff alleges facts that would make out a prima facie case of involuntariness if proven, then this court will have jurisdiction and Plaintiff is entitled to a hearing on the voluntariness issue."

Also, claimants have alleged that the agency coerced them "by creating working conditions so intolerable for the employee that he or she is driven to involuntarily resign or retire." Shoaf, 260 F.3d at 1341; Staats v. U.S.Postal Serv., 99 F.3d 1120, 1123 (Fed. Cir. 1996); Christie v. United States, 207 Ct.Cl. 333, 518 F.2d 584, 587 (1975). Ms. Garcia's claim falls into this last category.

In Hargray , the Eleventh Circuit explained its standard for evaluating whether an employee's resignation amounts to constructive discharge as follows:[E]mployee resignations are presumed to be voluntary. Angarita v. St. Louis County , 981 F.2d 1537, 1544 (8th Cir. 1992) ; Alvarado v. Picur , 859 F.2d 448, 453 (7th Cir. 1988) ; Christie v. United States , 518 F.2d 584, 587, 207 Ct. Cl. 333 (1975). "This presumption will prevail unless [the employee] comes forward

It is a plaintiff's burden to demonstrate otherwise, essentially showing that his decision was not freely made. That proof may consist of evidence that the resignation or retirement: (i) resulted from deception or misrepresentation by a government official, Moyer, 190 F.3d at 1320; Scharf v. Dep't of the Air Force, 710 F.2d 1572, 1574-75 (Fed. Cir. 1983); (ii) was made while "the claimant [was unable] to understand the voluntariness of his actions due to mental incompetence," Warren v. United States, 41 F. App'x 408, 410 (Fed. Cir. 2002) (citing Scharf, 710 F.2d at 1574); or (iii) was procured through duress or coercion, Tippett, 185 F.3d at 1255; Christie v. United States, 518 F.2d 584, 587 (Ct. Cl. 1975). The presumption of voluntariness is not rebutted by showing that the service member faced an inherently difficult situation, as where his choice was limited to one of two unpleasant alternatives — "a choice, as the poet says, between . . . `Scylla and Charybdis.'"

In response, the NOPD argues that the findings of Civil Service Commission were correct. Specifically, the NOPD argues that Officer Mejia resigned from the police department at his own will, and that he was aware of the consequences of his voluntary resignation. The NOPD further notes that in Christie v. United States (1975), 207 Ct.Cl. 333, 518 F.2d 584, 588 the United States Court of Claims has previously upheld voluntary resignations which were submitted in response to a threatened termination. An employee's resignation is presumed as voluntary, unless he or she is able to sufficiently demonstrate that the resignation was "involuntarily extracted."

B. "Involuntary" Dismissal A decision to resign or retire is presumed to be voluntary. Christie v. United States, 207 Ct.Cl. 333, 518 F.2d 584, 587 (1975); Staats v. United States Postal Serv., 99 F.3d 1120, 1123 (Fed. Cir. 1996). An employee who voluntarily resigns or retires has no right to appeal to the MSPB. Staats, 99 F.3d at 1123-24.

Cruz, who has the burden of establishing jurisdiction, alleged before the Board that his resignation was involuntary because the agency knew that the charges it cited as the basis for proposing his removal could not be substantiated. That allegation was correctly found to be without merit. Resignations are presumed voluntary, Christie v. United States, 518 F.2d 584, 587, 207 Ct.Cl. 333 (1975), and Cruz has submitted no evidence overcoming that presumption or indicating that his resignation was involuntary. On the contrary, the record establishes a textbook example of a voluntary resignation submitted in the face of serious charges.