James F. Gibson v. Department of Transportation ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES F. GIBSON, DOCKET NUMBER
Appellant, SF-1221-13-0442-W-1
v.
DEPARTMENT OF DATE: August 21, 2014
TRANSPORTATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
James F. Gibson, Reno, Nevada, pro se.
Sara Jo Prose, Esquire, Washington, D.C., 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 initial decision, which
dismissed his individual right of action (IRA) appeal in part due to res judicata
and in part for lack of jurisdiction. Generally, we grant petitions such as this one
only when: the initial decision contains erroneous findings of material fact; the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
initial decision is based on an 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 this
appeal, 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. We MODIFY
the initial decision to the extent that the administrative judge determined that the
appellant was barred from challenging his January 1989 termination on res
judicata grounds; instead, this claim should have been dismissed because the
termination action predated the effective date of the Whistleblower Protection Act
(WPA). Except as expressly modified by this Final Order, we AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 In 1989, the agency terminated the appellant during his probationary period.
He filed an equal employment opportunity (EEO) complaint, and he was
reinstated as part of a settlement agreement. Gibson v. Card, EEOC DOC
03920084, 1992 WL 1374211 at *1 (June 29, 1992). In 1991, the appellant was
removed from his Aviation Safety Inspector position on two charges: failure to
satisfactorily complete flight course 20702, and insubordination in not complying
with the agency’s direction that he complete a reexamination of his airman
competency. Id. The appellant filed a Board appeal. The administrative judge
sustained the agency’s removal and found that the appellant failed to prove that
he was removed based on reprisal for his prior EEO activity. Id. The Board
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denied the petition for review, and the Equal Employment Opportunity
Commission affirmed the Board’s decision regarding the discrimination claim.
Id. In 2012, the appellant filed an Office of Special Counsel complaint, and in
2013, he filed an IRA appeal, claiming that his 1989 termination, his 1991
removal, and other actions constituted reprisal for prior whistleblowing activity.
See, e.g., Initial Appeal File (IAF), Tabs 1, 5, 7, 10, 15, 17-18, 24, 26, 31, 34.
¶3 In the initial decision, the administrative judge dismissed the appeal, in part
based on res judicata, and in part for lack of jurisdiction. IAF, Tab 35, Initial
Decision (ID). The appellant has filed a petition for review; the agency has filed
a response; and the appellant has filed a reply. Petition for Review (PFR) File,
Tabs 1, 5-6. In the appellant’s lengthy petition for review, he appears to review
the factual basis for his complaints and makes other broad assertions of error.
¶4 Under the doctrine of res judicata, a valid, final judgment on the merits of
an action bars a second action involving the same parties or their privies based on
the same cause of action. Peartree v. U.S. Postal Service, 66 M.S.P.R. 332, 337
(1995). Res judicata precludes parties from relitigating issues that were, or could
have been, raised in the prior action, and is applicable if: (1) the prior judgment
was rendered by a forum with competent jurisdiction; (2) the prior judgment was
a final judgment on the merits; and (3) the same cause of action and the same
parties or their privies were involved in both cases. Id. The Board has held that
generally an individual who appeals his removal directly to the Board is barred by
res judicata from bringing, after exhausting his administrative remedies, a second
whistleblower appeal challenging the same removal action. Ryan v. Department
of the Air Force, 113 M.S.P.R. 27, ¶ 13 (2009) (citing Sabersky v. Department of
Justice, 91 M.S.P.R. 210, ¶¶ 2-3, 7-8 (2002), aff’d, 61 F. App’x 676 (Fed. Cir.
2003)). Based on this precedent, we discern no error with the administrative
judge’s conclusion that the appellant’s earlier Board appeal regarding his 1991
removal bars him from raising a whistleblower appeal challenging the same
action in this matter.
4
¶5 In the initial decision, the administrative judge also determined that the
appellant was barred by res judicata from pursuing a claim related to his 1989
termination because the subsequent EEO complaint was resolved by a settlement
agreement. See ID at 4, 6. As support for her conclusion, the administrative
judge cited Ford-Clifton v. Department of Veterans Affairs, 661 F.3d 655 (Fed.
Cir. 2011), and Mays v. U.S. Postal Service, 995 F.2d 1056 (Fed. Cir. 1993). See
ID at 4. We find that both of these cases are distinguishable and conclude that it
is not appropriate to dismiss this claim on the grounds of res judicata.
¶6 In Ford-Clifton, our reviewing court noted that it was “widely agreed that
an earlier dismissal based on a settlement agreement constitutes a final judgment
on the merits in a res judicata analysis.” However, the court in Ford-Clifton
found that the parties’ settlement agreement was “lawful” and “a full and
complete settlement of all issues in the appeal.” Ford-Clifton, 661 F.3d at
660-61. Here, however, the parties’ settlement agreement, which resolved the
appellant’s EEO complaint, is not in the record. Although it appears that the
agreement provided for the appellant’s reinstatement and reassignment, and it
also included benefits and back pay, Gibson, EEOC DOC 03920084, 1992 WL
1374211 at *1; IAF, Tab 5 at 11, we cannot tell, and neither party represents,
whether the agreement constituted a “full and complete settlement” or contained
similar language regarding the 1989 termination and any other possible claims
arising at that time.
¶7 In Mays, the appellant’s union settled his grievance regarding a 21-day
suspension, he subsequently filed a Board appeal regarding that same action, and
the court concluded that the Board lacked jurisdiction over the appeal because the
appellant did not specifically reserve in his grievance the right to file a Board
appeal. Mays, 995 F.2d at 1057-60. Because the parties’ settlement agreement is
not in the record, we cannot ascertain whether the appellant waived his Board
appeal rights regarding his termination or any other actions during that time
frame. For these reasons, we are not persuaded by the administrative judge’s
5
reliance on these cases and cannot conclude that the appellant’s 1989 termination
is barred by res judicata. See Williams v. Department of Health & Human
Services, 112 M.S.P.R. 628, ¶ 9 (2009) (holding that a settlement agreement that
does not involve an examination of the merits of an agency action does not
constitute a judgment on the merits for res judicata purposes).
¶8 We note, however, that the appellant’s January 3, 1989 termination predates
the July 9, 1989 effective date of the WPA. Lundberg v. Department of the
Navy, 43 M.S.P.R. 382, 385 (1990). Accordingly, the appellant is barred from
pursuing this action and any other personnel action that allegedly occurred before
the effective date of the WPA. See McVay v. Arkansas Nat. Guard, 80 M.S.P.R.
120, 123 (1998) (agreeing with the administrative judge that the letter of
reprimand the appellant received cannot serve as the basis for an IRA appeal
because it was issued on May 4, 1989); Lundberg, 43 M.S.P.R. at 385 (because
the appellant received notice of his pending agency proceeding nearly 4 years
before the effective date of the WPA, the WPA does not apply).
¶9 We also discern no error with the administrative judge’s decision to dismiss
the appeal for lack of jurisdiction because the appellant did not nonfrivolously
allege that the agency took a personnel action against him. ID at 5-7. In the
initial decision, the administrative judge discussed the following other personnel
actions that the appellant alleged were taken against him: (1) his 2007
termination from a private company; (2) his belief that his former supervisor,
J.M., made negative comments about his flying ability and other disparaging
remarks over the years, which “effectively block[ed] him from obtaining a job in
the aviation industry”; (3) an EEO counselor told him in May 2012 that agency
employee J.M. said negative things about him during an EEO investigation; and
(4) his efforts regarding a 1993 checkride (also called a practical test), when he
had to enroll in refresher training at flight school. ID at 6-7. In relevant part, the
administrative judge noted that the whistleblower statutes prohibit a “personnel
action” from being taken “with respect to any employee or applicant for
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employment,” 5 U.S.C. § 2302(b)(8), and the appellant was not an employee or
applicant for employment at any time after his 1991 removal, when these
personnel actions allegedly occurred. See ID at 6-7. She also noted that J.M.’s
alleged negative comments did not constitute a personnel action. ID at 7.
¶10 We discern no error with the administrative judge’s decision in this regard.
In Pasley v. Department of the Treasury, 109 M.S.P.R. 105, ¶ 10 (2008), the
Board held that an action taken by a private sector employer “does not meet the
definition of ‘personnel action’ since it was not taken with respect to an employee
in a covered position in an agency or a governmental corporation,” and it
affirmed the administrative judge’s dismissal for lack of jurisdiction. Similarly,
here the Board lacks jurisdiction over any actions taken by the private employer
in 2007.
¶11 The appellant also has not persuaded us that the administrative judge erred
in her analysis of the remaining actions because, at the time of these alleged
actions, the appellant was neither an “employee” nor an “applicant” as set forth
in 5 U.S.C. §§ 2302(a)(2), (b)(8). See, e.g., Nasuti v. Merit Systems Protection
Board, 376 F. App’x 29, 33-34 (Fed. Cir. 2010) (holding that the agency’s
issuance of a Standard Form 50 did not qualify as a “personnel action” under the
WPA because it occurred after the appellant was no longer employed by the
agency). 2 Moreover, the appellant has not identified, and we are not aware of,
any legal authority to support the proposition that negative references by J.M.
constitute a personnel action under the WPA. 3
2
Although Nasuti is an unpublished decision, the Board may rely on unpublished U.S.
Court of Appeals for the Federal Circuit decisions if it finds the court’s reasoning
persuasive. E.g., Herring v. Department of the Navy, 90 M.S.P.R. 165, ¶ 13 n.* (2001).
We find the court’s reasoning persuasive.
3
Because we agree with the administrative judge that the appellant has not identified a
personnel action under the WPA, we need not address whether, among other things, the
appellant exhausted his administrative remedies or whether he made a nonfrivolous
allegation of a protected disclosure. See Yunus v. Department of Veterans Affairs,
242 F.3d 1367, 1371 (Fed. Cir. 2001).
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¶12 Finally, the appellant includes documentation on review, including an
affidavit from H.H.P, his March 1990 performance appraisal, an On-the-Job
Training Progress Report, a 1990 Order Granting Request for Stay regarding the
“609” decertification of the appellant’s airman’s pilot’s license, 4 and his May
2013 discovery requests to the agency. See PFR File, Tab 1, Exhibits. These
documents were in the record below and do not constitute new evidence, or they
do not change the outcome on review. Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980); Meier v. Department of the
Interior, 3 M.S.P.R. 247, 256 (1980). We have considered the appellant’s
remaining arguments, but they do not warrant a different outcome.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision.
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
4
Gibson v. Department of Transportation, MSPB Docket No. SF122190S0721, Stay
Order (Nov. 9, 1990), found at IAF, Tab 26 at 21-25.
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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.
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
iscontained 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 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 a list of attorneys who have expressed
interest in providing pro bono representation for Merit Systems Protection Board
appellants before the Federal Circuit. The Merit Systems Protection Board
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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.