Gibbs v. Merit Systems Protection Board , 615 F. App'x 685 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MELVIN EUGENE GIBBS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2015-3122
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-14-0841-W-1.
______________________
Decided: August 31, 2015
______________________
MELVIN EUGENE GIBBS, Florence, SC, pro se.
JEFFREY GAUGER, Office of the General Counsel, Unit-
ed States Merit Systems Protection Board, Washington,
DC, for respondent. Also represented by BRYAN G.
POLISUK.
______________________
2 GIBBS v. MSPB
PER CURIAM.
Melvin Eugene Gibbs appeals from the final order of
the Merit Systems Protection Board (Board) dismissing
his whistleblower appeal under the doctrine of laches.
Because the allegations before the Board support dismis-
sal for failure to state a claim upon which relief can be
granted, we affirm.
BACKGROUND
Mr. Gibbs claims to be entitled to relief based on a se-
ries of events dating back to March of 1987, when he was
an employee of a government agency 1 under the Depart-
ment of Defense. His allegations are as follows: As part
of a dispute about reimbursement of his travel expenses,
he discovered that his superior, a colonel, was misusing
funds. He reported this misuse. Shortly thereafter, he
was reassigned to a position that would have placed him
on a “fast track” from the GS-11 to the GS-12 pay grade.
The colonel, angry that Mr. Gibbs reported the misuse of
funds, retaliated by removing him from this desirable
position. Shortly after these events, a psychiatrist diag-
nosed Mr. Gibbs with a mental illness. On this psychia-
trist’s recommendation, he was placed on permanent-
disability leave. The psychiatrist also recommended that
Mr. Gibbs not pursue legal action against his employer.
On February 12, 2014—nearly 27 years after the al-
leged retaliation—Mr. Gibbs filed a complaint under the
Whistleblower Protection Act with the Office of Special
Counsel. What remedy Mr. Gibbs sought is unclear from
the record before us, but he appears to have alleged that
but for the retaliatory action, he would have been promot-
ed from the GS-11 to the GS-12 pay grade on a “fast
track.” He presumably takes the position that this pro-
1 Mr. Gibbs does not identify the agency that em-
ployed him.
GIBBS v. MSPB 3
motion would have entitled him to an increase in the
leave pay that he claims to have received. After investi-
gating his allegations, the Office of Special Counsel closed
his file on April 17, 2014, and Mr. Gibbs timely appealed
this determination to the Board. On a motion by the
Department of Defense, the administrative judge issued
an initial decision dismissing the appeal pursuant to the
doctrine of laches. The Board affirmed this decision and
made it final.
Mr. Gibbs appeals the Board’s final decision, attack-
ing its conclusion that his delay was not excused.
DISCUSSION
We have jurisdiction over this appeal under 5 U.S.C.
§§ 1221(h) and 7703(b)(1), and 28 U.S.C. § 1295(a)(9). We
affirm the Board’s decision unless it was (1) arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed;
or (3) unsupported by substantial evidence. 5 U.S.C. §
7703(c).
In order to prevail on its defense of laches, the gov-
ernment must show “(1) unreasonable and unexcused
delay in bringing the claim, and (2) material prejudice to
the defendant as a result of the delay.” Advanced Cardio-
vascular Sys., Inc. v. Scimed Life Sys., 988 F.2d 1157,
1161 (1993) (citing A.C. Aukerman Co. v. R.L. Chaides
Construction Co., 960 F.2d 1020, 1028 (Fed. Cir. 1992) (en
banc)). We review the Board’s dismissal de novo. See
Cambridge v. United States, 558 F.3d 1331, 1335 (Fed.
Cir. 2009).
The Board did not err in its determination that laches
bars Mr. Gibbs’ action. Mr. Gibbs concedes that he de-
layed filing by 27 years. He also does not dispute the
government’s claims that this 27-year delay materially
prejudiced its ability to defend against his allegations.
4 GIBBS v. MSPB
His sole argument that laches does not apply is that this
significant period of delay was reasonable or excused
because of his mental illness and because his psychiatrist
advised him against filing. Even assuming—as we must
on a motion to dismiss—that Mr. Gibbs will be able to
substantiate these claims, they cannot excuse a 27-year
delay.
We have considered Mr. Gibbs’ remaining arguments
and do not find them persuasive. 2
AFFIRMED
No costs.
2 Mr. Gibbs also seeks an order of summary judg-
ment in his favor. That request, which the Board did not
consider, is not properly before us.