Michael S. Lambert v. United States Postal Service ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL S. LAMBERT, DOCKET NUMBER
Appellant, AT-0752-13-0368-C-1
v.
UNITED STATES POSTAL SERVICE, DATE: December 23, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Norman Jackman, Esquire, Cambridge, Massachusetts, for the appellant.
Christopher Pearson, Atlanta, Georgia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the compliance initial
decision, which found him in noncompliance with the terms of a settlement
agreement resolving his removal appeal. For the reasons that follow, the
compliance initial decision is VACATED and the agency’s petition for
1
A nonprecedential order is one that the Board has determined does not add
significantly 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 Parties may cite nonprecedential orders,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
enforcement is DISMISSED as moot. This is the Board’s final order in this
matter. 5 C.F.R. § 1201.113(b).
¶2 The appellant filed an initial appeal of his removal, and the parties entered
into a settlement agreement, which the administrative judge entered into the
record for the purposes of enforcement. MSPB Docket No. AT-0752-13-0368-I-
1, Initial Appeal File (IAF), Tab 14, Settlement Agreement, Tab 15, Initial
Decision. 2 The parties’ settlement agreement provided, inter alia, that the
appellant’s removal would be converted to a time-served suspension, he would be
returned to work for 1 year, and he would retire from employment with the
agency effective May 4, 2014. IAF, Tab 14 at 4. On May 5, 2014, the agency
filed a petition for enforcement alleging that the appellant had not retired from
federal service. MSPB Docket No. AT-0752-13-0368-C-1, Compliance File (CF),
Tab 1 at 4. The administrative judge subsequently issued a compliance initial
decision finding the appellant in noncompliance with the terms of the settlement
agreement, and she ordered the appellant to submit his application for retirement.
CF, Tab 9, Compliance Initial Decision at 4.
¶3 The appellant has filed a petition for review of the compliance initial
decision. MSPB Docket No. AT-0752-13-0368-C-1, PFR File, Tab 1. After
filing a response to the petition for review, the agency submitted notice that the
appellant had submitted his application for immediate retirement. PFR File, Tab
4. The Board issued a show cause order directing the agency to show cause why
its petition for enforcement should not be dismissed as moot. PFR File, Tab 5.
The agency has filed a response agreeing that its petition for enforcement should
2
The appellant filed a petition for review of the initial decision dismissing his initial
appeal as settled. MSPB Docket No. AT-0752-13-0368-I-1, Petition for Review (PFR)
File, Tab 1. In a nonprecedential remand order, the Board affirmed the dismissal of the
appellant’s appeal as settled as to all claims except his age discrimination affirmative
defense, and we remanded that claim to the administrative judge for further
adjudication. MSPB Docket No. AT-0752-13-0368-I-1, Remand Order (May 15, 2014).
Our decision dismissing the agency’s petition for enforcement as moot has no impact on
the remand proceeding currently pending with the administrative judge.
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be dismissed as moot, and it has appended a copy of the Postal Service Form 50
effecting the appellant’s retirement. PFR File, Tab 6 at 5. The appellant did not
respond to the order to show cause.
¶4 Based upon the foregoing, we find that the agency’s petition for
enforcement is moot. Mootness can arise at any stage of litigation, and a
compliance proceeding will be dismissed as moot where, inter alia, there is no
further relief the Board can grant. See Uhlig v. Department of
Justice, 83 M.S.P.R. 29, ¶ 7 (1999) (mootness standard); Mascarenas v.
Department of Defense, 60 M.S.P.R. 320, 323 (1993) (a petition for enforcement
will be dismissed as moot when the moving party has been afforded all of the
relief it could have obtained in a successful compliance proceeding). The record
reflects that the appellant submitted his application for immediate retirement and
that he has been separated from employment with the agency. PFR File, Tab 6 at
5. Under these facts, we find that the Board can grant no further relief on the
agency’s petition for enforcement and that the agency has obtained all of the
relief it would be entitled to if it were successful in the compliance proceeding.
See Mascarenas, 60 M.S.P.R. at 323. Accordingly we VACATE the compliance
initial decision and DISMISS the agency’s petition for enforcement as moot.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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.
4
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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.