William B. Jolley v. Department of Housing and Urban Development ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM B. JOLLEY, DOCKET NUMBERS
Appellant, SF-0752-13-0583-I-1
SF-0752-14-0286-I-1
v.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT, DATE: June 16, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
William B. Jolley, Brunswick, Georgia, pro se.
Jo Ann Riggs, Seattle, Washington, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his alleged involuntary retirement appeals for lack of jurisdiction.
Generally, we grant petitions such as this one only when: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the judge’s rulings during either the course of the
appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. See
Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in these appeals, and based on the
following points and authorities, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant, whose most recent period of employment with the agency
commenced in 2004, has, over the years, filed numerous appeals alleging
violations of the Uniformed Services Employment and Reemployment Rights Act
(USERRA). In 2010, he retired from his Director position at the agency’s Boise
Field Office, claiming that he did so involuntarily. He unsuccessfully challenged
the action by filing suit in the U.S. District Court for the Southern District of
Georgia under the Age Discrimination in Employment Act (ADEA). 2 See Jolley
v. Department of Housing & Urban Development, MSPB Docket No. SF-0752-13-
0583-I-1, Initial Appeal File (IAF 13-0583), Tab 11 at 37-47. His writ of
mandamus was denied on appeal. Id. at 56-58. He also filed a USERRA appeal
against the Department of Justice (DOJ), arguing that that agency should be
considered his “employer” because, having provided direction and advice to the
agency in connection with his ADEA litigation, DOJ had control over his
USERRA appeals and therefore the adverse employment actions taken by the
agency. The administrative judge dismissed the appeal for lack of jurisdiction,
2
The appellant was 79 years old when he retired.
3
Jolley v. Department of Justice, MSPB Docket No. SF-4324-14-0405-I-1, Initial
Decision (Apr. 11, 2014), the Board denied the appellant’s petition for review of
that decision, Jolley v. Department of Justice, MSPB Docket No. SF-4324-14-
0405-I-1, Final Order (Aug. 28, 2014), and the U.S. Court of Appeals for the
Federal Circuit affirmed the Board’s decision, Jolley v. Department of Justice,
No. 2014-3202, 2015 WL 527485 (Fed. Cir. Feb. 10, 2015).
¶3 While those matters were pending, the appellant filed a new appeal, again
arguing that his retirement was involuntary, but based on 38 U.S.C. § 4311(b)(1),
which prohibits discrimination or retaliation because a person has taken an action
to enforce a protection afforded under 38 U.S.C. chapter 43. IAF 13-0583, Tab 1.
The appellant contended that the agency had committed a constructive adverse
action, tantamount to a removal, based on his participation in “veteran personnel
appeals by . . . himself and . . . others.” Id. at 5. He specifically declined a
hearing. Id. at 2.
¶4 The administrative judge issued an order advising the appellant that
retirement actions are presumed to be voluntary and not appealable to the Board
and that his appeal would be dismissed unless he amended it to allege that his
retirement was the result of duress, coercion, or misrepresentation by the agency.
Id., Tab 2. In response, the appellant argued that, in 2007, the agency had
directed his reassignment from Jacksonville, Florida to Boise, Idaho, that he was
not allowed to choose other “more geographically advantageous” positions or to
“swap” positions with another Director, and that he ultimately was forced to retire
“to be closer to family and personal interests.” Id., Tabs 5, 9-10. The agency
urged that the appeal be dismissed for lack of jurisdiction on the basis that the
appellant had the choice to continue working in Boise or to retire, and that the
fact that he found neither option attractive did not render his decision to retire
involuntary. Id., Tab 11 at 12. The agency further argued that the appellant
failed to show that his protected activity of filing USERRA appeals or assisting
4
others in so doing had any bearing on the voluntariness of his retirement. Id.
at 13-14.
¶5 While this appeal was pending, the appellant filed another appeal in which
he again argued that his retirement was involuntary, this time claiming that it was
in retaliation for his protected whistleblowing disclosures. Jolley v. Department
of Housing & Urban Development, MSPB Docket No. SF-0752-14-0286-I-1,
Initial Appeal File (IAF 14-0286), Tab 1. According to the appellant, he
disclosed a violation of law, rule, or regulation, and gross mismanagement by the
agency in connection with his directed reassignment, and various irregularities in
DOJ’s Assistant U.S. Attorney’s representation of the agency in his ADEA
litigation. Id. at 5, 7-10. Again, the appellant specifically declined a hearing. Id.
at 2.
¶6 As he did in the earlier appeal, the administrative judge issued an order
advising the appellant that retirements are presumed to be voluntary and that his
appeal would be dismissed unless he amended it to allege that he retired because
of duress, coercion, or misrepresentation by the agency. Id., Tab 5. In response,
the appellant argued that, based on the agency’s actions, he had no realistic
alternative but to retire. Id., Tab 8. The agency urged that the appeal be
dismissed for lack of jurisdiction on the basis that the appellant could have
remained in his position in Boise, and that his decision, after 2 years, to retire did
not render his retirement involuntary. Id., Tab 10 at 8-9. The agency further
argued that the appellant’s whistleblower allegations lacked merit because, to the
extent, he made any protected disclosures, he did so only after he had retired. Id.
at 9-12.
¶7 Having determined that the two appeals concerned similar issues, the
administrative judge joined them for adjudicatory purposes, id., Tab 16, Initial
5
Decision (ID) at 1 n.1, and dismissed both appeals for lack of jurisdiction, 3 ID
at 3, 12. The administrative judge found no evidence that the appellant’s directed
reassignment and the agency’s decision not to transfer him as a part of his
requested “swap” were in any way motivated by a desire to coerce his retirement.
ID at 8. The administrative judge further found that the appellant had a choice to
continue working in Boise or to retire, and that the fact that he did not desire
either option did not render his decision to retire involuntary. ID at 8-9. Finally,
the administrative judge found that the appellant’s discrimination and retaliation
claims did not support a finding that his retirement was involuntary. ID at 9-12.
¶8 The appellant has filed a petition for review, 4 Petition for Review (PFR)
File, Tabs 1, 3, to which the agency has responded in opposition, id., Tab 4.
¶9 On review, the appellant argues that the Board has jurisdiction over his
appeal under USERRA. PFR File, Tab 1 at 7. However, at the outset, the
appellant styled his appeal as a forced retirement, a constructive adverse action,
tantamount to a removal, and the product of coercion by the agency, IAF
13-0583, Tab 1, and, during adjudication, he continued to focus on the
involuntariness of his decision to retire, id., Tabs 5, 13. The administrative judge
properly advised the appellant of the means by which he could establish the
Board’s jurisdiction over his appeal as a claimed involuntary action. 5 Id., Tab 2;
3
Based on this disposition, the administrative judge d id not address the timeliness of
the appellant’s constructive removal appeals. ID at 3 n.3.
4
On review, the appellant has submitted a Motion Regarding Appeals Settlement
Program in which he suggests that it might be “economical of Court [Court of Appeals
for the Federal Circuit], MSPB, and Federal resources” to consider a global settlement
that includes his earlier USERRA appeal against DOJ which is, according to the
appellant, now before the court on his Informal Petition for Panel Rehearing. PFR File,
Tab 3. Based on the different parties invo lved and the varying stages of processing of
these matters, the appellant’s motion is DENIED.
5
Although the appellant argues on review that the agency provided no evidence to
support its position that his retirement was voluntary, PFR File, Tab 1 at 21, it is well
established that an appellant bears the burden of proof as to issues of jurisdiction,
5 C.F.R. § 1201.56(a)(2)(i).
6
Searcy v. Department of Commerce, 114 M.S.P.R. 281, ¶ 12 (2010) (an
employee-initiated action is presumed to be voluntary, and thus outside the
Board’s jurisdiction, unless the employee presents sufficient evidence to establish
that the action was obtained through duress or coercion or show that a reasonable
person would have been misled by the agency). Although the appellant has set
forth, below and on review, a series of actions by the agency which he claims led
to his retirement, see, e.g., IAF 13-0583, Tab 5; PFR File, Tab 1 at 9-18, he has
not shown error in the administrative judge’s finding that the agency’s decisions
to direct the appellant’s reassignment and to disallow his request for a “swap” of
positions, actions he claims that forced him to retire, were motivated by a desire
to coerce his retirement, ID at 7-9; see Staats v. U.S. Postal Service, 99 F.3d
1120, 1124 (Fed. Cir. 1996) (no coercion where employee decides to retire
because he does not want to accept a new assignment, even if doing so makes
continuation in the job so unpleasant that the employee feels he has no other
realistic option but to leave).
¶10 Regarding the appellant’s claim that he retired because of retaliation by the
agency for having filed USERRA appeals and assisted others in doing so, the
administrative judge properly stated that that claim could only be considered as it
related to the issue of voluntariness. ID at 6; see Hosozawa v. Department of
Veterans Affairs, 113 M.S.P.R. 110, ¶ 5 (2010). Yet, in analyzing this claim and
rejecting it, the administrative judge found that the appellant failed to show that
his protected activity was a motivating factor in the agency’s denial of his “swap”
request which, he claimed, led him to retire. ID at 10. To the extent the
administrative judge found that the appellant did not prevail in his claim of
retaliation for protected USERRA activity, that analysis went beyond the
administrative judge’s own correct statement of what analysis is appropriate
under the circumstances. The appellant was not required to establish his claim
under the USERRA statute; rather, he was required to show that the agency
retaliated against him for USERRA activity, and that that retaliation had a bearing
7
on the voluntariness of his retirement. Axsom v. Department of Veterans Affairs,
110 M.S.P.R. 605, ¶ 12 (2009). However, because the appellant failed to show
how his retaliation claim related to the voluntariness of his decision to retire, the
administrative judge’s error did not prejudice the appellant’s substantive rights
and provides no basis for reversal of an initial decision. See Panter v.
Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).
¶11 The appellant loosely suggests that the administrative judge failed to
address the credibility of a piece of evidence. PFR File, Tab 1 at 31. That piece
of evidence is a signed, sworn declaration by the then-Acting Assistant Deputy
Secretary for Field Policy and Management who denied the appellant’s request
for a job “swap.” IAF 13-0583, Tab 11 at 60-64. Therein, she stated that, until
the appeal was filed, she was unaware of the appellant’s previous USERRA
claims or of any assistance he may have provided to others regarding their
USERRA rights. Id. at 64. The record reflects that the appellant filed a motion
in limine, asking the administrative judge to determine the declaration to be
“inadequate” on the basis that the appellant had once rejected the declarant’s
amorous advance. Id., Tab 14. The administrative judge denied the motion,
deeming the matter to be one of credibility and weight of the evidence and
therefore not appropriate to such a motion. Id., Tab 26. In the initial decision,
the administrative judge relied upon the declaration to find that the appellant did
not establish that the acts leading up to his retirement rendered his decision
involuntary because of his USERRA involvement, noting that he (the
administrative judge) had previously denied the appellant’s motion in limine. ID
at 10, n.5. As to the administrative judge’s crediting the declaration on this issue
over the appellant’s contrary “bare assertion,” we discern no reason to reweigh
the evidence or substitute our assessment of the record evidence for that of the
administrative judge. ID at 10; see Crosby v. U.S. Postal Service, 74 M.S.P.R.
98, 105-06 (1997).
8
¶12 The appellant alleges on review that the administrative judge denied him
due process by ruling on several motions without allowing him an opportunity to
object. PFR File, Tab 1 at 29-30. In the initial decision, the administrative judge
denied the appellant’s motion to add DOJ as a party to these appeals, his motion
to compel the agency to produce all documentation regarding that issue, and his
“Motion for Judgment As A Matter of Law.” ID at 11 n.6. Although the
appellant refers to the Board’s Judges’ Handbook to support his claim, the
Handbook itself provides that it is guidance, that its procedures are not
mandatory, and that adjudicatory error is not established by a failure to comply
with any of its provisions. Judges’ Handbook, U.S. Merit Systems Protection
Board, at 1 (Oct. 2007). In any event, the administrative judge explained the
basis for his rulings, ID at 11 n.6., and the appellant has not, on review, provided
a specific objection to any of them.
¶13 The appellant alleges that the administrative judge “did not notify anyone of
any ‘close of record.’” PFR File, Tab 1 at 30. On the contrary, the evidence
reflects that, in the first appeal, the administrative judge issued an order on
September 13, 2013, providing that the record would close on October 9, 2013,
IAF 13-0583, Tab 16, and that, in a subsequent order, he extended the
close-of-record date to October 25, 2013, due to the government shutdown. Id.,
Tab 28. Similarly, in the second appeal, the administrative judge advised the
parties in a February 5, 2015 order that the record would close within 20 calendar
days, IAF 14-0286, Tab 5, or on February 25, 2015. The appellant has not shown
any error on the part of the administrative judge regarding the close of the record.
5 C.F.R. § 1201.58.
¶14 Finally, the appellant argues that the administrative judge did not timely
decide his appeals. PFR File, Tab 1 at 27. Given that the administrative judge
had access to all of the record evidence, we find that the appellant has not shown
that any delay constituted adjudicatory error that prejudiced his substantive
rights. See Panter, 22 M.S.P.R. at 282.
9
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
IN MSPB DOCKET NO. SF-0752-13-0583-I-1
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for an appeal to the
United States 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 Merit Systems Protection Board neither endorses the services
10
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
IN MSPB DOCKET NO. SF-0752-14-0286-I-1
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
11
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for your appeal to
the 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
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.