Vincent Harrington v. Department of the Army ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VINCENT HARRINGTON, DOCKET NUMBER
Appellant, CH-0752-21-0234-I-1
v.
DEPARTMENT OF THE ARMY, DATE: September 10, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Vincent Harrington , Bloomington, Indiana, pro se.
Emily L. Macey , Esquire, Rock Island, Illinois, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as untimely filed without good cause shown for the delay .
For the reasons discussed below, we GRANT the appellant’s petition for review,
and VACATE the initial decision, but we DISMISS the appeal as barred by res
judicata.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
On January 11, 2019, the agency issued a decision removing the appellant
from his position as an Equal Employment Specialist effective January 18, 2019.
Harrington v. Department of the Army, MSPB Docket No. CH-0752-21-0234-I-1,
Initial Appeal File (0234 IAF), Tab 6 at 48-53. On January 17, 2019, the
appellant filed a formal discrimination complaint with the agency challenging his
removal, which the agency accepted on February 5, 2019. See Harrington v.
Department of the Army, MSPB Docket No. CH-0752-19-0154-I-1, Initial Appeal
File (0154 IAF), Tab 9 at 8-14. On January 28, 2019, the appellant filed a Board
appeal challenging his removal. 0154 IAF, Tab 1. The agency moved to dismiss
this appeal as premature, 0154 IAF, Tab 12 at 7-9, but in a June 17, 2019 status
conference order, the administrative judge declined to do so, concluding that, at
that point, 120 days had elapsed since the appellant filed his formal EEO
complaint, 0154 IAF, Tab 15 at 1. The administrative judge further noted that,
during the status conference, she asked the appellant’s counsel if he wanted her to
dismiss the appeal without prejudice to refiling for a period of 6 months so that
the appellant could proceed before the Equal Employment Opportunity
Commission (EEOC), but the appellant declined the opportunity to do so.
0154 IAF, Tab 15 at 1. Then, on August 1, 2019, the appellant filed a pleading
requesting to withdraw his Board appeal, and the same day, the administrative
judge issued an initial decision dismissing the appeal as withdrawn. 0154 IAF,
Tabs 20-21. That decision became final on September 5, 2019, when neither
party filed a petition for review of that decision. See 0154 IAF, Tab 21, Initial
Decision (0154 ID) at 2.
On March 19, 2021, the appellant filed the instant appeal seeking again to
challenge his removal. 0234 IAF, Tab 1. The agency moved to dismiss the
appeal as untimely filed, or in the alternative, because the appellant made a prior
election to challenge his removal through the EEO complaint hearing process.
0234 IAF, Tab 6 at 4-8. The administrative judge subsequently issued an order
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noting that the appeal appeared to be untimely filed and ordered the appellant to
file evidence and argument regarding the timeliness of his appeal. 0234 IAF,
Tab 7 at 1-4. The appellant filed a response, in which he made substantive
arguments challenging his removal, and indicated that his appeal was timely filed
because more than 120 days had elapsed since he filed his formal EEO complaint
and the agency had not issued a final agency decision (FAD) on his complaint.
0234 IAF, Tab 9 at 3-4.
Without holding a hearing, the administrative judge issued an initial
decision dismissing the appeal as untimely filed. 0234 IAF, Tab 12, Initial
Decision (0234 ID) at 1-7. The administrative judge concluded that the
appellant’s prior appeal was a timely filed Board appeal of his mixed-case
complaint because it was pending before the Board after more than 120 days had
passed since the filing of his formal EEO complaint without a FAD being issued
by the agency. 0234 ID at 1-7. She further concluded that the appellant’s
voluntary decision to withdraw that appeal constituted an act of finality that
removed the appeal from the Board’s jurisdiction, and the subsequent EEOC
decision dated March 1, 2021, did not provide the appellant with additional Board
appeal rights under the agency’s mixed-case complaint procedures. 0234 ID at 7.
Consequently, she concluded that the instant appeal was untimely filed, and
because the appellant had not shown that he acted with due diligence or ordinary
prudence such that he should be entitled to waiver of the filing deadline, she
dismissed the appeal. 0234 ID at 7-8.
The appellant has filed a petition for review of the initial decision, arguing
that his attorney claimed that his prior Board appeal was dismissed without
prejudice to refiling, that his current Board appeal is within the proscribed filing
deadlines, and that his attorney experienced issues using the Board’s e-Appeal
system during the course of the prior Board appeal. 2 Petition for Review (PFR)
2
With regard to the appellant’s assertion that his attorney experienced difficulties in
attempting to access e-Appeal, this allegation relates to the prior, dismissed appeal and
not the instant appeal, so we need not consider it here. PFR File, Tab 1 at 3.
4
File, Tab 1. The agency has filed a response, and the appellant has not filed a
reply. PFR File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
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. Brown v. Department of the Navy, 102 M.S.P.R. 377,
¶ 10 (citing 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.In this case, the appellant previously filed a Board appeal of the same
adverse action at issue in this case. 0234 ID at 2-3; see 0154 IAF, Tab 1.
Although the appeal was premature when filed, during the processing of the
appeal, 120 days elapsed from the date that the appellant filed his EEO complaint,
vesting his right to appeal his mixed-case complaint. See Miranne v. Department
of the Navy, 121 M.S.P.R. 235, ¶ 9 (2014) (explaining that, if the agency has not
resolved the employee’s discrimination claim or issued its FAD on the
discrimination issue within 120 days, the appellant may file an appeal with the
Board anytime thereafter). Thus, requirements (1) and (3) are satisfied, and the
application of res judicata turns on whether the dismissal of the appellant’s first
appeal was a final judgment on the merits.
The appellant moved to voluntarily withdraw his first appeal, making no
mention of his previously filed discrimination complaint, or giving any indication
that he wished to refile his Board appeal at a later date. 0154 IAF, Tab 20.
Additionally, in dismissing the appeal as withdrawn, the administrative judge
Additionally, the appellant has not provided any evidence to support his claim beyond
his bare assertion.
5
assigned to the prior appeal found that the appellant’s withdrawal was an “act of
finality” and had the effect of “removing the appeal from the Board’s
jurisdiction.” 0154 ID at 1. The appellant did not file a petition for review
contesting that determination.
Therefore, we conclude that the dismissal of the appellant’s first appeal
constituted a dismissal with prejudice of his Board appeal of his timely filed
mixed-case complaint. See Brown, 102 M.S.P.R. 377, ¶ 10 (finding that the
dismissal of the appellant’s prior appeal as withdrawn constituted a dismissal of
the appeal with prejudice when the withdrawal was not based on incorrect or
misleading information, and the appellant did not show that he did not
comprehend the implications of his decision). Dismissals with prejudice are
generally considered final, and relitigation of such appeals is barred by res
judicata. Id.; see Cavanagh v. U.S. Postal Service, 44 M.S.P.R. 485, 489 (1990)
(noting that when a party making a request for a voluntary dismissal affirmatively
appears to have intended to abandon the action, the party is barred from bringing
a new action on the same subject matter). Accordingly, we vacate the
administrative judge’s finding dismissing the appeal as untimely filed without
good cause shown for the delay and instead dismiss the appeal as barred by the
doctrine of res judicata.
NOTICE OF APPEAL RIGHTS 3
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
3
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.
6
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
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
7
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. 420 (2017). If you have a representative in this case,
and your representative receives this decision before 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
8
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
(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. 4 The court of appeals must receive your
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired 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 Appeals
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.
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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.
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.