Estevez v. Merit Systems Protection Board ( 2006 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3346
JOSE J. ESTEVEZ,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
and
DEPARTMENT OF HOMELAND SECURITY,
Intervenor.
__________________________
DECIDED: August 3, 2006
__________________________
Before NEWMAN, RADER, and GAJARSA, Circuit Judges.
NEWMAN, Circuit Judge.
Mr. Jose J. Estevez petitions for review of the decision of the Merit Systems
Protection Board dismissing his appeal for lack of jurisdiction.1 We affirm.
BACKGROUND
1 Estevez v. Dep't of Homeland Sec., No. NY0752050010-I-1, 2005 MSPB
LEXIS 1229, 3827 (Feb. 8, 2005).
Mr. Estevez was an Air and Marine Group Supervisor, GS-14, with the Department
of Homeland Security Bureau of Immigration and Customs Enforcement (the "agency"). He
supervised approximately ten employees, of whom six were aircraft pilots. On April 7, 2004
the agency proposed to demote him to a GS-13 aircraft pilot position and reassign him from
San Juan, Puerto Rico to Jacksonville, Florida, based on a charge of unprofessional and/or
unacceptable conduct. Deciding Official William F. Oliver considered Mr. Estevez's oral
reply, and issued a letter dated September 14, 2004 sustaining the charge and finding the
proposed adverse action "warranted." However, instead of instituting the action, Mr. Oliver
ruled that "it is my decision that the service efficiency will be served by agreeing to and
effecting the terms of the attached settlement agreement." The attached agreement was
signed by Mr. Oliver and provided that the parties would
agree to voluntarily enter into a Settlement Agreement regarding the decision
to suspend the Employee without pay for fourteen (14) calendar days for
Unprofessional and/or Unacceptable Conduct of a Supervisor, as stated in
the April 7, 2004, Notice of Proposal. This settlement has been reached
freely and in good faith, in consideration of the mutual promises made below.
Under the agreement, the agency promised to
hold the Decision to Suspend in abeyance for a period not to exceed two (2)
years from the date on which the last party signs this Agreement [and upon]
successful completion of the terms of this Agreement, the deciding official will
rescind the Decision to Suspend.
In turn, Mr. Estevez would promise to "initiate a request for a Voluntary Change to Lower
Grade," not engage in any misconduct, and waive any appeal rights.
Mr. Estevez declined to sign the agreement, and instead filed an appeal with the
MSPB on October 8, 2004. Mr. Oliver then sent another decision letter, dated October 15,
2004, stating:
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This letter rescinds my decision letter dated September 14, 2004 in its
entirety. This action is necessary as a result of your decision to recant on our
mutual acceptance of Settlement Agreement referred to in the subject letter.
Therefore the September 14, 2004 letter is replaced in whole by the
enclosed decision letter dated October 15, 2004.
The October 15 letter announced that the service efficiency would be served by demoting
Mr. Estevez to a GS-13 aircraft pilot position and reassigning him to Jacksonville, Florida.
The October 15 letter, unlike the September 14 letter, explained Mr. Estevez' appeal rights
and the deadline for appeal, and stated that the "demotion will be effective as soon as
funds are available to relocate you."
Meanwhile, the MSPB appeal proceeded as to the September 14 letter. On October
29, 2004 the administrative judge questioned whether the September 14 letter was a final
appealable action. Mr. Estevez argued that the agency's rescission of that letter on
October 15 had not mooted the action because the agency had not returned him to the
status quo ante. The administrative judge held that the September 14 letter was not a final
agency action and thus was not subject to review, and dismissed the appeal for lack of
jurisdiction. The administrative judge observed that Mr. Estevez had taken a separate
appeal of the October 15, 2004 final decision. The disposition of that second appeal is
reported at Estevez v. Dep't of Homeland Sec., No. NY0752050021-I-1, 2005 MSPB LEXIS
1632 (Mar. 31, 2005) (dismissing appeal because the agency rescinded its October 15
decision and reinstated Mr. Estevez with back pay and benefits). The full Board denied
review of the September 14 decision, and Mr. Estevez appeals to this court.
DISCUSSION
We review the decision of the Board to determine whether it was arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; obtained
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without procedures required by law, rule, or regulation; or unsupported by substantial
evidence. See 5 U.S.C. §7703(c); Cheeseman v. Office of Pers. Mgmt., 791 F.2d 138, 140
(Fed. Cir. 1986). Whether the Board has jurisdiction is a question of law, which this court
reviews de novo. Hayes v. United States Postal Serv., 390 F.3d 1373, 1376 (Fed. Cir.
2004).
The Board's holding was based on prudential concerns of ripeness and finality,
implemented by statute, see 5 U.S.C. §1204(h) ("The Board shall not issue advisory
opinions.") In Port of Boston Marine Terminal Assoc. v. Rederiaktiebolaget Transatlantic,
400 U.S. 62, 71 (1970), the Supreme Court summarized the relevant considerations for
determining the finality of an agency action for purposes of judicial review:
The relevant considerations in determining finality are whether the process of
administrative decisionmaking has reached a stage where judicial review will
not disrupt the orderly process of adjudication and whether rights or
obligations have been determined or legal consequences will flow from the
agency action.
Id. at 71 (1970) (citations omitted). The principles that caution against a federal court's
intrusion into administrative decisionmaking suggest similar restraint by the Board in its role
of providing appellate review of agency decisionmaking. See Data General Corp. v.
Johnson, 78 F.3d 1556, 1565 (Fed. Cir. 1996) ("Although the Board is not a court," it has
authority to apply judicial doctrines where the same principles of judicial efficiency justify
their application). The statutes and regulations governing the Board do not contemplate,
and indeed would be frustrated by, the disruption of orderly agency decisionmaking by the
issuance of opinions before "rights or obligations have been determined or legal
consequences will flow from the agency action." Port of Boston, 400 U.S. at 71.
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The administrative judge in this case relied on the Board's opinion in Murray v.
Department of Defense, 92 M.S.P.R. 361 (2002) to determine whether the agency's
decision was final. In Murray the Board considered the issue of whether it had jurisdiction
of an appellant's appeal of a thirty-day suspension that had been held in abeyance pending
exhaustion of the administrative process pursuant to a collective bargaining agreement
provision. The Board held that it had jurisdiction over the suspension held in abeyance
because "the decision to suspend the appellant has all the attributes of a final agency
action and the issues are fit for adjudication." Id. at 373. The Board further reasoned that
"the stay of the action does not affect the agency's decision-making but only the timing of
the execution of the decision." Id.Mr. Estevez argues that the Board erred in dismissing his appeal for lack of
jurisdiction. He states that the agency decision letter of September 14, 2004 was a final
decision that was stayed pending consideration of the settlement. Mr. Estevez observes
that under Board precedent, a "stay of the action does not affect the agency's
decision-making but only the timing of the execution of the decision." Murray, 92 M.S.P.R.
at 373. Mr. Estevez states that the agency had finally decided as of September 14, 2004
that he would be subject to a 14-day suspension in the absence of settlement, and that he
was informed by Ms. Maushumi Carey of the Labor Relations Office of the Department of
Homeland Security that the September 14 letter would be placed in his official personnel
record if he did not sign the agreement. Mr. Estevez further states that the decision to
demote him had been implemented by September 14, 2004, for his duties as supervisor
were divested and his group was reassigned to another supervisor by that date.
05-3346 5
The Board replies that in Murray the employing agency had issued a proposed
adverse decision, set an effective date for the personnel action, and then granted a request
to stay the implementation of the decision pursuant to a collective bargaining agreement,
pending appeal to the Board. In contrast, the September 14, 2004 letter to Mr. Estevez did
not indicate that a final decision had been made to take an adverse action appealable to
the Board, did not set an effective date for any such action, and did not apprise Mr. Estevez
of his appeal rights, whereas the October 15 letter to Mr. Estevez exhibited all of these
indicia of finality. The Board states that the September 14 letter simply reflected a decision
to enter a settlement agreement, in accordance with its terms, and that final disposition was
contingent on Mr. Estevez's acceptance or rejection of the settlement offer. The Board
states that the relevant statute setting forth MSPB jurisdiction, 5 U.S.C. §7512, does not
provide for review of a change in supervisory responsibilities, or of the placement of a letter
in a file, or of the other alleged actions taken by the agency as of September 14.
We agree with the Board and the Department of Homeland Security that the
September 14 letter was not a final decision appealable to the Board. The agency had
proposed a settlement and was awaiting response by Mr. Estevez. "Rights" and
"obligations" had not yet been determined, and Board review would have been "disruptive."
Port of Boston, 400 U.S. at 71. Unlike the "final decision" in Murray that had been stayed,
the September 14 letter included no statement of decision, other than a decision to enter
the settlement agreement if Mr. Estevez were to accept the terms. Further, the September
14 letter did not state an effective date or advise Mr. Estevez of his appeal rights. The
promises contained in the agreement were clearly "contingent" on the occurrence of a
future event, i.e., Mr. Estevez's agreement to the settlement terms.
05-3346 6
When it became apparent that Mr. Estevez had rejected the settlement, the agency
rescinded the September 14 letter and issued the letter of October 15, 2004, which states
the agency's "decision that the service efficiency will best be served by demoting" Mr.
Estevez. The letter further states that the "demotion will be effective as soon as funds are
available to relocate you" and advises Mr. Estevez of his appeal rights. This rescission of
the earlier offer of settlement fully supports the Board's position that the agency had not yet
taken an appealable final action as of September 14, 2004.
We conclude that the Board did not err in dismissing Mr. Estevez's appeal of the
September 14, 2004 letter. The decision is affirmed.
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