Gary Thurman v. United States Postal Service , 2022 MSPB 21 ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2022 MSPB 21Docket No. AT-0752-17-0162-I-1
Gary L. Thurman,
Appellant,
v.
United States Postal Service,
Agency.
July 12, 2022
Harvey G. Orr, Riverdale, Georgia, for the appellant.
Candace D. Embry, Landover, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal based on a single charge of improper condu ct. For the
reasons discussed below, we DENY the petition for review and AFFIRM the
initial decision. We also take this opportunity to revisit the Board’s decision in
Wynn v. U.S. Postal Service, 115 M.S.P.R. 146 (2010), and similar cases, to
clarify the factors the Board will consider in determining whether a previously
raised affirmative defense has been effectively waived or abandoned by the
appellant.
2
BACKGROUND
¶2 The agency removed the appellant from his position as a PS -4 Laborer
Custodial based on a single charge of “improper conduct” following an
investigation conducted by the U.S. Postal Inspection Service into two workplace
incidents. Initial Appeal File (IAF), Tab 4 at 15-20, 27-30, 49-73. According to
the agency’s charge, the appellant violated the agency’s Employee and Labor
Relations Manual’s prohibition against violent and/or threatening behavior when
he told a coworker that if his vehicle was towed from the agency parking lot
again, he “would come into work and end up shooting someone out of revenge
and anger.” Id. at 27. The agency also alleged that the appellant told the same
coworker that he was having law enforcement follow her because of a verbal
dispute the two had a year earlier and that the “only reason [he] didn’t have
anything ‘bad’ happen to her was because she has children.” Id. According to
the agency, the following day the appellant told the same coworker that he was
having law enforcement follow and harass a supervisor’s son in retaliation for his
vehicle being towed from the agency parking lot and that he would make sure t hat
the supervisor’s son was “booked” for “Driving Under the Influence . . . and other
traffic violations.” Id.¶3 The appellant filed a Board appeal in which he asserted, among other
things, that the evidence did not show that he engaged in the alleged misconduct.
IAF, Tab 1 at 2. He also indicated on his appeal form that he was raising the
affirmative defense of retaliation for prior protected activity, including his filing
of a Board appeal challenging his placement on an emergency suspension for
essentially the same conduct that formed the basis of the removal action . 1 IAF,
1
The administrative judge dismissed the appellant ’s previous appeal as settled. That
decision became the final decision of the Board when neither party filed a petition for
review. Thurman v. U.S. Postal Service, MSPB Docket No. AT-0752-16-0601-I-1,
Initial Decision (Sept. 6, 2016).
3
Tab 1 at 2, Tab 4 at 104; Thurman v. U.S. Postal Service, MSPB Docket No.
AT-0752-16-0601-I-1, Initial Decision (Sept. 6, 2016).
¶4 After holding the appellant’s requested hearing, the administrative judge
found that the agency proved the improper conduct charge by preponderant
evidence. IAF, Tab 14, Initial Decision (ID) at 3-7. The administrative judge
also found that the agency established a nexus between the misconduct and the
efficiency of the service, and that the penalty of removal was reasonable. ID
at 7-8. He affirmed the removal action. ID at 9.
¶5 The appellant has filed a petition for review in which he argues, among
other things, that he did not engage in the alleged misconduct, that the
administrative judge erred in his credibility determinations, and that the employee
to whom he allegedly made the statements possessed poor character, had
attendance deficiencies, had made inconsistent statements about the alleged
incidents, had been untruthful in the past, and committed perjury in her hearing
testimony. Petition for Review (PFR) File, Tab 1 at 1-6. He also argues that the
agency violated title VII of the Civil Rights Act of 1964 when it towed his
vehicle but did not tow the vehicles of other employees and that the agency used
his filing of grievances and discrimination complaints to show that he made
threats, but that his past filings show that he resolved his problems through means
other than threats. 2 Id. at 7-8. The agency has filed a response to the petition for
review. PFR File, Tab 3.
2
The appellant also argues on review that it is unclear if his parking in an unauthorized
parking spot was a specification of misconduct. PFR File, Tab 1 at 7. To the extent he
is arguing that his parking violations were inappropriately considered as a separate
specification of the improper conduct charge, this argument is without merit. While the
proposal letter does note that the appellant’s vehicle was towed for improper parking,
this information was included in the agency’s narrative charge to provide context about
the events that preceded the appellant’s statements that formed the basis of the
improper conduct charge. IAF, Tab 4 at 27.
4
ANALYSIS
The appellant has not shown error in the administrative judge ’s credibility
determinations and well-reasoned findings of fact and conclusions of law.
¶6 In sustaining the charged misconduct, the administrative judge thoroughly
addressed the record evidence, including the hearing testimony concerning the
contested conversations, and provided a detailed explanation for why he found the
agency witness’s version of events more credible. 3 ID at 5-7. The administrative
judge based his findings in part on the witnesses’ demeanor. ID at 6. The Board
must defer to an administrative judge’s credibility determinations when they are
based, explicitly or implicitly, on observing the demeanor of witnesses testifying
at a hearing, and may overturn such determinations only when it has “sufficiently
sound” reasons for doing so. Haebe v. Department of Justice, 288 F.3d 1288,
1301 (Fed. Cir. 2002); see Purifoy v. Department of Veterans Affairs, 838 F.3d
1367, 1373 (Fed. Cir. 2016); Sabio v. Department of Veterans Affairs,
124 M.S.P.R. 161, ¶ 38 (2017). The appellant’s arguments on review regarding
the credibility of the agency’s witness are insufficient to cause us to disturb the
administrative judge’s well-reasoned findings. Clay v. Department of the Army,
123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason to disturb the administrative
judge’s findings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions on the issue of credibility); Broughton
v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
3
In making his credibility determinations, the administrative judge relied on the factors
set forth in Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). ID at 5-7.
In Hillen, the Board found that, in assessing a witness ’s credibility, an administrative
judge should consider the following factors: (1) the witness’s opportunity and capacity
to observe the event or act in question; (2) the witness’s character; (3) any prior
inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the
contradiction of the witness’s version of events by other evidence or its consistenc y
with other evidence; (6) the inherent improbability of the witness’s version of events;
and (7) the witness’s demeanor. 35 M.S.P.R. at 458.
5
¶7 The appellant argues for the first time on review that the agency engaged in
“intentional discrimination in violation of title VII of the Civil Rights Act of
1964” by towing his vehicles, but not those of a number of other agency
employees. PFR File, Tab 1 at 7-8. The Board generally will not consider an
argument raised for the first time in a petition for review absent a showing that it
is based on new and material evidence not previously available d espite the party’s
due diligence. Clay, 123 M.S.P.R. 245, ¶ 6; Banks v. Department of the Air
Force, 4 M.S.P.R. 268, 271 (1980). Here, the appellant has not explained why
this argument could not have been raised before the administrative judge, and
thus we need not consider it. In any event, the claim is unduly vague; the
appellant does not identify which type of discrimination this action represented,
and he provides no explanation for how this alleged discrimination related to his
removal for improper conduct. Thus, the argument provides no basis to grant the
appellant’s petition for review. See 5 C.F.R. § 1201.115(d).
¶8 Regarding the appellant’s argument that the agency used his history of
filing grievances and discrimination complaints to show that he “must have made
the threats as alleged,” the appellant similarly did not make this argument before
the administrative judge, and therefore we need not consider it either. PFR File,
Tab 1 at 8; see Clay, 123 M.S.P.R. 245, ¶ 6; Banks, 4 M.S.P.R. at 271.
Additionally, the appellant mischaracterizes the agency’s reason for raising his
history of filing grievances and equal employment opportunity (EEO) complaints.
On cross-examination during the hearing, the agency asked the appellant about a
series of EEO complaints he unsuccessfully filed against the agency and asked
whether his failure to succeed in those complaints motivated him to make the
alleged threatening statements. IAF, Tab 13, Hearing Compact Disc (HCD)
(testimony of the appellant). Such an inquiry into the appellant’s potential
motive is not impermissible, and accordingly, this argument also does not provide
any basis for granting the petition for review. See 5 C.F.R. § 1201.115(d).
6
We overrule the holding in Wynn that the Board must always remand a case for
consideration of an affirmative defense if an administrative judge has failed to
comply with its requirements and now make clear that the Board will consider a
number of relevant factors in determining whether an appellant’s apparent waiver
or abandonment of a previously raised affirmative defense was effective.
¶9 We now turn to a matter that was not addressed in the appellant ’s petition
for review but that nonetheless requires our attention. As noted above, the
appellant indicated on his appeal form that he was raising the affirmative defense
of retaliation for prior protected activity, including filing a Board appeal. 4 IAF,
Tab 1 at 2. In an order summarizing the prehearing conference that took place on
February 15, 2017, the administrative judge identified the issues presented on
appeal and noted that, during the conference, the appellant’s representative
indicated that the appellant was “raising no affirmative defenses.” IAF, Tab 9
at 2. The order also noted that the issues included in it were “to the exclusion of
all others” (emphasis in original) and allowed either party to object to the
summary, which neither party did. Id. at 1-2. The appellant did not discuss the
prior Board appeal or his claim of retaliation for filing that appeal in any
subsequent filing or during the hearing, and the administrative judge ’s initial
decision made no reference to the appellant’s prior Board appeal or to any
potential affirmative defense. HCD; ID. Additionally, neither the appellant’s
petition for review, nor the agency’s response, mentioned the prior Board appeal
or a claim of retaliation for filing a prior appeal or the administrative judge’s
handling of the appellant’s retaliation claim. PFR File, Tabs 1, 3.
¶10 In Wynn, 115 M.S.P.R. 146, ¶ 10, the Board held that when an appellant
raises an affirmative defense, the administrative judge must address the
affirmative defense in a close of record order or prehearing conference summary.
4
Although the appellant stated that his claim of retaliation included retaliation for
filing a previous Board appeal, thus suggesting that retaliation for the prior Board
appeal was not the only claim of retaliation he was raising, he did not identify another
retaliatory act or another prior protected activity. IAF, Tab 1 at 2.
7
Additionally, the Board held that if an appellant expressed an intention to
withdraw or abandon an affirmative defense, the administrative judge must, at a
minimum, identify the affirmative defense, explain that the Board will no longer
consider the affirmative defense in deciding the appeal, and provide the appellant
with an opportunity to object to the withdrawal of the affirmative defense. Id. If
an administrative judge failed to take the above steps in confirming an appellant’s
withdrawal or abandonment of a previously raised affirmative defense, and
neither the administrative judge’s orders nor the agency’s submissions provided
the appellant with notice of the proper burdens and elements of proof for that
affirmative defense, the Board determined that remand would be necessary. Id.,
¶¶ 12-13.
¶11 Although not specifically stated in Wynn, a careful reading of that decision
reveals that the appellant did not raise his affirmative defense s or the
administrative judge’s handling of them in his petition for review. Id., ¶¶ 3, 5.
Nevertheless, the Board in Wynn remanded the appeal with instructions for the
administrative judge to address the appellant’s affirmative defenses. Id., ¶ 14.
The Board followed the approach set forth in Wynn in Hall v. Department of
Transportation, 119 M.S.P.R. 180 (2013), where again, even though there is no
indication that the appellant raised several of his affirmative defenses or the
administrative judge’s handling of them on petition for review, the Board
remanded the appeal for adjudication of all of the appellant’s affirmative
defenses, even the ones he did not raise on review. Id., ¶¶ 2-3, 6-7, 9.
¶12 Although the Board followed the approach set forth in Wynn in Hall, the
Board has not been entirely consistent in its application of Wynn, and in a number
of nonprecedential decisions issued after Wynn, the Board identified an
administrative judge’s failure to provide the notice required by Wynn, but
nonetheless declined to remand the case for continued consideration of the
8
affirmative defense claim. 5 For example, in Brown v. Department of Defense,
MSPB Docket No. SF-0752-15-0761-I-1, Final Order, ¶¶ 15-18 (Dec. 29, 2016),
aff’d, 705 F. App’x 966 (Fed. Cir. 2017), the Board noted that the administrative
judge failed to address the appellant’s due process affirmative defense and, citing
Wynn, identified that failure as error. Id., ¶ 15. Nonetheless, the Board
determined that remand was not necessary because the matter could be resolved
on the undisputed record. Id., ¶¶ 15-18. Similarly, in Richard v. U.S. Postal
Service, MSPB Docket No. DE-0752-12-0398-I-1, Final Order at 4-8 (July 14,
2014), the Board noted that the administrative judge failed to specifically inform
the appellant that his affirmative defense of reprisal for the use of Family and
Medical Leave Act protected leave would be considered waived unless he raised
an objection to its exclusion from the prehearing conference summary. Id. at 6.
Based on the administrative judge’s failure to inform Mr. Richard of his ability to
object to the summary and of the consequence of failing to object, the Board
found that his affirmative defense was not waived. Id. Nonetheless, the Board
found that the record on the affirmative defense at issue in that case was
sufficiently well developed to decide the question without a remand. Id. at 6-8.
¶13 There are also a significant number of nonprecedential decisions in which
the appellant raised an affirmative defense in the proceedings before the
administrative judge, the administrative judge failed to follow the instructions of
Wynn, the appellant either did not raise the affirmative defense or the
administrative judge’s failure to follow Wynn on review, and the Board did not
address the matter in the final decision. For example, in Day v. Department of
Homeland Security, the appellant originally asserted that he was filing claims
under both the Uniformed Services Employment and Reemployment Rights Act
5
We are not citing the following nonprecedential decisions as precedent in support of
our decision but rather to show that the Board has not been consistent in this area. See
5 C.F.R. § 1201.117(c)(2).
9
(USERRA) and the Veterans Employment Opportunities Act of 1998. Day v.
Department of Homeland Security, MSPB Docket No. PH-3330-13-0004-I-1,
Initial Appeal File (Day IAF), Tab 1 at 4-9. The administrative judge did not
address the USERRA claim in the Acknowledgment Order or the Close of Record
Order and did not issue a separate jurisdictional order narrowing the scope of
issues to be considered. See Day IAF, Tab 2 at 2; Tab 7. In the initial decision,
the administrative judge did not identify or refer to the USERRA claim. Day v.
Department of Homeland Security, MSPB Docket No. PH-3330-13-0004-I-1,
Initial Decision (Nov. 30, 2012). Although obedience to the holding in Wynn
would have required remand for consideration of the appellant’s USERRA claim
even though the appellant did not raise the claim in his petition for review, Day v.
Department of Homeland Security, MSPB Docket No. PH-3330-13-0004-I-1,
Petition for Review File, Tab 1, the Board nonetheless issued a Final Order
affirming the initial decision without any mention of the USERRA clai m or of
Wynn’s remand requirement. Day v. Department of Homeland Security, MSPB
Docket No. PH-3330-13-0004-I-1, Final Order (Dec. 23, 2013).
¶14 Similarly, in Freeland v. Department of Defense, on the initial appeal form
contesting his removal, the appellant checked the box identifying the affirmative
defense of discrimination. Freeland v. Department of Defense, MSPB Docket
No. PH-0752-12-0072-I-1, Initial Appeal File (Freeland IAF), Tab 1 at 5. As in
Day, the administrative judge did not provide the appellant with notice regarding
his burden of proving the affirmative defense, did not address the affirmative
defense in any close of record order or prehearing conference summary and order,
and did not address it in his initial decision. See Freeland IAF, Tabs 2, 8, 13;
Freeland v. Department of Defense, MSPB Docket No. PH-0752-12-0072-I-1,
Initial Decision (Mar. 15, 2012). Additionally, the appellant did not raise the
matter in his petition for review. Freeland v. Department of Defense, MSPB
Docket No. PH-0752-12-0072-I-1, Petition for Review File, Tab 1. In the
Board’s Final Order, it did not state that the discrimination affirmative defense
10
was waived and made no mention of the affirmative defense, or of Wynn.
Freeland v. Department of Defense, MSPB Docket No. PH-0752-12-0072-I-1,
Final Order (Jan. 22, 2013).
¶15 By obligating the Board on review to address apparently waived affirmative
defenses sua sponte, Wynn also represented a significant departure from the cases
that preceded it and upon which it purported to rely. In Erkins v. U.S. Postal
Service, 108 M.S.P.R. 367, ¶¶ 5, 9 (2008), a case Wynn identified as “similar,”
the Board remanded for adjudication of the appellant’s affirmative defenses when
the appellant specifically raised the administrative judge’s failure to address his
retaliation affirmative defense in his petition for review. Similarly, in Carlisle v.
Department of Defense, 93 M.S.P.R. 280, ¶¶ 11-12 (2003), relied on in the Erkins
decision, the Board remanded the case to the administrative judge for
consideration of the appellant’s disability discrimination affirmative defense
claim, concluding that, although the administrative judge adjudicated the claim,
he improperly failed to consider evidence related thereto and failed to apprise the
appellant of the applicable burdens for proving it. But, as in Erkins, the Board
highlighted the fact that the appellant had specifically raised the affirmative
defense claim below and preserved the issue by raising it again in his petition for
review. Id., ¶ 11.
¶16 The inconsistent manner in which the Board has treated the requirements set
forth in Wynn and the departure that Wynn represents from prior precedent leads
us carefully to consider the wisdom of the inflexible approach articulated in that
decision. Moreover, a rule that almost mechanically requires a remand in most
situations in which an appellant raises an affirmative defense in his initial appeal
and then makes little or no effort to pursue it further could easily result in a
remand to address an affirmative defense that the appellant decided he did not
want to pursue or wanted to pursue in another forum. Such meaningless process
is not an efficient use of the Board’s limited adjudicatory resources, costs the
parties needless time and expense, and delays closure of the Board appeal. For
11
example, in Iskander v. Department of the Navy, MSPB Docket No. DC-0752-11-
0090-I-1, Final Order at 5-7 (Dec. 20, 2011), the Board concluded that the
administrative judge failed to address the appellant’s discrimination affirmative
defense and, citing Wynn, issued an order remanding the case with instructions
for the administrative judge to consider the affirmative defense, which was the
only matter at issue on remand. On remand, the appellant wi thdrew her
discrimination affirmative defense, stating that she intended to litigate her
discrimination claim through the Equal Employment Opportunity Commission
process, and the administrative judge issued a second initial decision that did
little more than note the appellant’s withdrawal and adopt the findings of the first
initial decision. Iskander v. Department of the Navy, MSPB Docket No.
DC-0752-11-0090-B-1, Initial Decision at 2-3 (Jan. 18, 2012). Thus, the Board
remand served no apparent purpose.
¶17 After careful consideration, we find that, to the extent Wynn held that, when
an administrative judge has failed to comply with its requirements, the Board
always must raise an affirmative defense waiver or abandonment issue sua sponte
and remand the case for consideration of the affirmative defense , it is overruled. 6
Instead, in determining whether an administrative judge erred in not addressing
an appellant’s affirmative defenses such that remand is necessary, the Board will
examine a number of factors that are instructive as to the ultimate question of
whether an appellant demonstrated his intent to continue pursuing his affirmative
defense, and whether he conveyed that intent after filing the initial appeal. 7
6
Cases that followed the approach set forth in Wynn, such as Hall, 119 M.S.P.R. 180,
are also overruled.
7
Nothing in our decision alters the requirement set forth in Wynn, 115 M.S.P.R. 146,
¶ 10, that administrative judges must, at a minimum, identify all affirmative defenses
raised in an appeal in any close of record order or prehearing conference summary and
order, explain that the Board will no longer consider an affirmative defense if an
appellant expresses the intention to withdraw it, and give the appellant an opportunity
to object to withdrawal of the affirmative defense.
12
¶18 The factors articulated below are not exhaustive, and none of the individual
factors identified will be dispositive in determining whether a particular appellant
will be deemed to have waived or abandoned a previously identified affirmative
defense. Instead, the applicability and weight of each factor should be
determined on a case-by-case basis. Among the relevant factors are:
(1) the thoroughness and clarity with which the appellant raised an affirmative
defense; (2) the degree to which the appellant continued to pursue the affirmative
defense in the proceedings below after initially raising it; (3) whether the
appellant objected to a summary of the issues to be decided that failed to include
the potential affirmative defense when specifically afforded an opportunity to
object and the consequences of the failure were made clear; (4) whether the
appellant raised the affirmative defense or the administrative judge’s processing
of the affirmative defense claim in the petition for review; (5) whether the
appellant was represented during the course of the appeal before the
administrative judge and on petition for review, and if not, the level of knowledge
of Board proceedings possessed by the appellant; and (6) the likelihood that the
presumptive abandonment of the affirmative defense was the product of
confusion, or misleading or incorrect information provided by the agency or the
Board. We now apply the factors set forth above to the facts of the instant case .
We are also mindful of Board and U.S. Court of Appeals for the Federal Circuit
precedent noting that an appellant must be provided with notice of his burden in
establishing Board jurisdiction over his claim, and nothing in our decision here alters
that obligation. See Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44
(Fed. Cir. 1985); Niemi v. Department of the Interior, 114 M.S.P.R. 143, ¶ 8 (2010).
Consistent with Burgess and its progeny, if the Board determines that an administrative
judge’s abandonment or waiver determination was erroneous, and neither the initial
decision nor the agency’s filings placed the appellant on notice of his burdens, a
remand still will be necessary to provide the appellant with adequate notice of his
burdens. See Parker v. Department of Housing & Urban Development, 106 M.S.P.R.
329, ¶ 8 (2007) (stating that an administrative judge’s failure to provide proper Burgess
notice can be cured if the agency’s pleadings or the initial decision contain the required
notice).
13
(1) The thoroughness and clarity with which the appellant raised his
affirmative defense
¶19 On his appeal form, the appellant raised “an affirmative defense of
retaliation for [] prior protected activity,” including, “filing of a Board appeal
concerning his emergency placement suspension.” IAF, Tab 1 at 2. This is the
only information the appellant provided related to his purported affirmative
defense of retaliation for filing a prior Board appeal. Id. The appellant described
the nature of his prior Board appeal as a challenge to his “emergency placement
on suspension,” but he did not provide any additional information about the prior
appeal or offer any explanation of how the agency’s later removal decision was
taken in retaliation for his filing of that appeal. The only additional information
in the record concerning the prior appeal was provided by the agency in its
response to the instant appeal, in which it confirmed that the prior appeal was
filed and was later resolved by settlement agreement. IAF, Tab 4 at 8-9. The
appellant did not challenge this characterization in any subsequent filing or at the
hearing, or offer to expand upon it. Such sparse information regarding the
potential affirmative defense amounts to little more than a pro forma allegation of
wrongdoing. E.g., Pinegar v. Federal Election Commission, 105 M.S.P.R. 677,
¶¶ 31-32 (2007) (finding insufficient a bare allegation of gender discrimination
unsupported by any factual assertions); Taylor v. U.S. Postal Service,
75 M.S.P.R. 322, 328 (1997) (determining that the appellant’s pro forma sex and
race discrimination claims on petition for review were inadequate to show that the
administrative judge erred in finding those claims unproven); cf. Clark v. U.S.
Postal Service, 123 M.S.P.R. 466, ¶ 7 (2016) (setting forth examples of cases in
which the Board distinguished between nonfrivolous and pro forma allegations
and finding that mere conclusory pleadings are insufficient ), aff’d per curiam,
679 F. App’x 1006 (Fed. Cir. 2017). The fact that the appellant failed to provide
a thorough and clear explanation of his affirmative defense also supports a
finding that he abandoned his claim.
14
(2) The degree to which the appellant continued to pursue his affirmative
defense in the proceedings below after initially raising it
¶20 As previously discussed, on his appeal form the appellant stated that he was
raising “an affirmative defense of retaliation for [] prior protected activity, ”
including “filing of a Board appeal concerning [the appellant ’s] emergency
placement suspension.” IAF, Tab 1 at 2. Following his initial filing, the
appellant did not reference this purported affirmative defense at any point
thereafter. The appellant’s silence on this point spanned his additional filings
below, IAF, Tabs 7, 9, and the entirety of the hearing, HCD. The failure to
mention the affirmative defense after the initial appeal suggests that the appellant
no longer wished to pursue the claim. This factor supports a finding that the
appellant abandoned his affirmative defense.
(3) Whether the appellant objected to a summary of the issues to be
decided that failed to include the potential affirmative defense when he was
specifically afforded an opportunity to object and the consequences of his
failure were made clear
¶21 As discussed above, following a February 15, 2017 prehearing conference,
the administrative judge issued an order that identified witnesses, approved
exhibits, and summarized all of the issues to be decided in the appellant ’s case.
IAF, Tab 9. The summary stated that, during the conference, the appellant’s
representative “indicated that he was raising no affirmative defenses. ” Id. at 2.
The order allowed the parties to object to the content of the summary within
7 days and stated that a failure to object to an issue would preclude later
challenge of that issue, including on petition for review. Id. at 1. Neither party
objected to the content of the order, nor have they challenged i ts accuracy since
its issuance. Thus, despite being afforded the opportunity to do so, the appellant
did not object to the administrative judge’s prehearing conference summary
stating that he was not raising an affirmative defense and that his failure to object
to the content of the summary would preclude raising the issue at a later date .
15
Accordingly, this factor supports a finding that the appellant abandoned his
affirmative defense.
(4) Whether the appellant raised either his affirmative defense or the
administrative judge’s processing of the affirmative defense claim in his
petition for review
¶22 The Board’s regulations provide that “[t]he Board normally will consider
only issues raised in a timely filed petition for review or cross petition for
review.” 5 C.F.R. § 1201.115. This adjudicatory approach is consistent with the
concept that the Board’s administrative judges are in the best position to, among
other things, develop the record and simplify the issues and that the Board’s role
is to address contentions of error. See 5 C.F.R. §§ 1201.41(b), 1201.115. The
Board has consistently followed an approach of declining to address matters that
were not raised on petition for review on matters other than affirmative defenses.
In Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 6 n.4 (2016), for
example, the Board found that, because the appellant did not contest the
administrative judge’s finding that one of his disclosures was not protected and
because neither party challenged the administrative judge ’s findings regarding
which contested actions constituted personnel actions covered by the
whistleblower protection statutes, the Board would not consider the issues.
Likewise, in Ferrin-Rodgers v. U.S. Postal Service, 115 M.S.P.R. 140, ¶ 4 n.3
(2010), the Board declined to address the administrative judge ’s findings of a lack
of jurisdiction over several of the appellant’s claims because the petition for
review did not challenge the findings. Finally, in Cross v. Department of the
Army, 89 M.S.P.R. 62, ¶ 7 n.8 (2001), the Board did not address whether the
administrative judge properly found that the agency failed to prove a specification
16
because the agency did not allege error regarding the specification on review.
Board precedent since its creation is replete with similar examples. 8
¶23 Seemingly, only in the realm of affirmative defenses has the Board strayed
from the general practice of only addressing allegations of error raised on petition
for review, and, while the affirmative defenses addressed in Wynn are important,
we can discern no principled basis for the decision to treat these types of claims
differently than other types of claims within the Board’s jurisdiction. In the
instant case, then, the appellant’s failure to address his affirmative defense of
retaliation for filing a prior Board appeal or the administrative judge’s handling
of the affirmative defense claim in his petition for review supports a finding that
the appellant intended to abandon the claim.
8
Similarly, several U.S. Courts of Appeals generally deem issues not raised on appeal
to be abandoned. See, e.g., Butts v. Martin, 877 F.3d 571, 584 n.6 (5th Cir. 2017)
(noting the general rule that issues and arguments not briefed on appeal are abandoned);
Waldman v. Conway, 871 F.3d 1283, 1289 (11th Cir. 2017) (“Issues not briefed on
appeal . . . are deemed abandoned.”); New Jersey v. Merrill Lynch & Co., 640 F.3d 545,
547 n.3 (3d Cir. 2011) (holding that a failure to set forth an issue on appeal and present
arguments in support of that issue in an opening brief generally amounts to
abandonment and waiver of that issue); Advanced Magnetic Closures, Inc. v. Rome
Fastener Corp., 607 F.3d 817, 833 (Fed. Cir. 2010) (“This court has consistently held
that a party waives an argument not raised in its opening brief.”); Smith v. Marsh, 194
F.3d 1045, 1052 (9th Cir. 1999) (finding that arguments not raised by a party in its
opening brief on appeal are deemed waived); United States v. Quiroz, 22 F.3d 489, 490
(2d Cir. 1994) (noting the well-established principle that an argument not raised on
appeal is deemed abandoned); Boyd v. Ford Motor Co., 948 F.2d 283, 284 (6th Cir.
1991) (finding that issues raised in the district court but not raised on appeal are
considered abandoned on appeal and not reviewable). The Equal Employment
Opportunity Commission likewise held that an appellant abandoned certain
discrimination claims when she made “no mention of either of these bases in her
statements in support of [her] appeal” of a final agency decision. Hipp v. Department
of the Air Force, EEOC Document No. 01862916, 1987 WL 769084 (Jan. 13, 1987).
17
(5) Whether the appellant was represented during the course of his appeal
before the administrative judge and on petition for review and , if he was
not, the level of knowledge of Board proceedings possessed by the
appellant
¶24 In some circumstances, the Board will take an appellant’s pro se status into
consideration and be more lenient in the application of Board rules and
procedures. See, e.g., Ramos v. Office of Personnel Management, 82 M.S.P.R.
65, ¶ 7 (1999) (taking into consideration an appellant’s pro se status, among other
factors, in determining that he did not intend to withdraw his appeal); Moorman
v. Department of the Army, 68 M.S.P.R. 60, 62-63 (1995) (noting that the Board
will consider, among other things, the appellant’s pro se status in determining
whether good cause exists to waive the time limit for filing a petition for review),
aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table). Here, the appellant was represented
by a union representative at all stages of the proceeding, from the time the initial
appeal was filed through the hearing and on petition for review before the Board.
IAF, Tab 1 at 5-6; HCD; PFR File, Tab 1 at 9. Thus, the practice of leniency
toward pro se litigants in certain instances is not applicable here. Accordingly,
this factor supports a finding that the appellant intended to abandon his
affirmative defense.
(6) The likelihood that the presumptive abandonment of the affirmative
defense was the product of confusion, or misleading or incorrect
information provided by the agency or the Board
¶25 The Board has held that it will not give effect to the withdrawal of an
appeal that was based on misleading or incorrect information provided by the
agency or the Board. Rose v. U.S. Postal Service, 106 M.S.P.R. 611, ¶ 7 (2007);
see Potter v. Department of Veterans Affairs, 116 M.S.P.R. 256, ¶¶ 10, 15 (2011).
Similarly, the Board has, on occasion, granted leniency to appellants in
circumstances in which they obviously were confused or mistaken about the
Board’s instructions. See Luna v. Department of the Air Force, 86 M.S.P.R. 578,
¶ 9 (2000) (finding good cause for the appellant’s untimely petition for appeal
18
based, in part, on his pro se status and his obvious confusion), aff’d, 15 F. App’x
876 (Fed. Cir. 2001); Caldwell v. Department of the Treasury, 85 M.S.P.R. 674,
¶¶ 8-9 (2000) (same).
¶26 If there is reason to believe that an appellant’s withdrawal or apparent
abandonment of a previously raised affirmative defense was the result of
confusion, or misleading or incorrect information provided to the appellant or his
representative by the agency or the Board, that would weigh in favor of a finding
that the appellant did not intend to withdraw or abandon his claim. This may be
especially true if the appellant is proceeding pro se, and if there is evidence in the
record clearly demonstrating that he either does not understand the nature of the
affirmative defense or does not understand the consequences of its withdrawal.
¶27 In the instant case, there is no evidence that the app ellant’s representative
was confused or was misled by the agency or the administrative judge concerning
the affirmative defense of retaliation for the appellant’s prior Board appeal. As
previously noted, the appellant’s only reference to the claim was in his initial
appeal. Moreover, the only additional information provided by the agency
concerning the affirmative defense was factual in nature, and the agency did not
provide inaccurate or misleading information about the appellant ’s burden in
proving the affirmative defense. IAF, Tab 4 at 8-9. For the above reasons, this
factor, which considers whether the waiver or abandonment was the product of
confusion, mistake, or misleading information provided by the agency or
administrative judge, also favors a finding that the appellant intended to abandon
his affirmative defense in this case.
¶28 In sum, applying the nonexhaustive list of factors set forth in this decision
for determining whether an appellant abandoned his affirmative defense, we find
that the appellant in this case abandoned his affirmative defense and that there is
no basis for the Board to address the affirmative defense waiver issue on review.
Accordingly, we conclude that there is no basis to remand the appeal for
additional proceedings regarding the appellant’s affirmative defense.
19
ORDER
¶29 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113).
NOTICE OF APPEAL RIGHTS 9
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
9
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
20
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
21
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
22
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 10 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
10
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expir ed on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of App eals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
23
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.