Andrew Faris v. United States Postal Service ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW D. FARIS, DOCKET NUMBER
Appellant, CH-3443-22-0155-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: April 29, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Andrew D. Faris , Indianapolis, Indiana, pro se.
Maryl Rosen , Esquire, St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal on the basis of adjudicatory efficiency. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the 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 administrative judge’s rulings
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. 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, 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 VACATE the initial decision and DISMISS the appeal for lack of
jurisdiction.
The appellant was a Laborer Custodial for the United States Postal Service.
Initial Appeal File (IAF), Tab 10 at 28. Effective February 14, 2020, the agency
removed him for violating a last chance agreement (LCA). Id. at 16-17. That
same month, he appealed his removal to the Board. Faris v. United States Postal
Service, MSPB Docket No. CH-0752-20-0205-I-1, IAF (0205 IAF), Tab 1. The
administrative judge dismissed the appeal for lack of jurisdiction. 0205 IAF,
Initial Decision (0205 ID) at 1, 8. After the appellant filed a petition for review,
the Board issued a Final Order that affirmed the initial decision. Faris v. United
States Postal Service, MSPB Docket No. CH-0752-20-0205-I-1, Final Order
(April 26, 2024) (0205 Final Order).
In January 2022, the appellant filed the instant appeal, again challenging
the merits of the agency’s decision to remove him for violating the LCA, and
alleging that the agency discriminated against him based on unspecified purviews
in connection to the removal, the LCA was invalid, the LCA included a
non-disclosure agreement (NDA) in violation of 5 U.S.C. § 2302(b)(13), and the
agency inconsistently applied its policies regarding absence without leave
(AWOL) and unscheduled leave. IAF, Tab 1 at 3, 5, Tab 4 at 5. In an order to
show cause, the administrative judge noted that, the appellant alleged that he was
“the subject of an adverse action from the United States [P]ostal [S]ervice almost
3
every other week.” IAF, Tab 3 at 2 (quoting IAF, Tab 1 at 5). She ordered the
appellant to identify the agency actions that he was appealing. Id. at 2, 4-5. She
provided a list of matters appealable to the Board. Id. at 2-4. The appellant
responded, reiterating his claims concerning the removal, discrimination, the
NDA, and AWOL and unscheduled leave while adding allegations that the agency
breached the LCA, defamed him in its February 3, 2020 removal decision letter,
and denied his due process rights by not allowing him “an opportunity to reply to
the charge” of removal. IAF, Tab 8 at 4-6, Tab 9 at 4, 8-11, 13. The agency
responded to the order to show cause. IAF, Tab 10. The agency argued that the
administrative judge must dismiss the appeal for a variety of reasons, including
on the grounds of adjudicatory efficiency because the appellant previously filed
several other appeals with the Board asserting identical claims. Id. at 10-12.
In her initial decision, the administrative judge dismissed the instant appeal
for lack of jurisdiction. IAF, Tab 11, Initial Decision (ID). She reasoned that it
was appropriate to dismiss the appellant’s claims regarding the merits of his
removal, the validity of the LCA, and the agency’s alleged breach of the LCA on
grounds of adjudicatory efficiency, finding that he had raised the matter in a prior
appeal, Faris v. United States Postal Service, MSPB Docket
No. CH-0752-20-0205-I-1 (0205 Appeal), that was then awaiting Board action on
the appellant’s petition for review. 1 ID at 1, 4. Regarding the appellant’s AWOL
1
Besides the 0205 Appeal, the appellant has filed a number of other appeals prior to the
instant one, including at least two that challenge his removal. See Faris v. United
States Postal Service, MSPB Docket No. CH-0752-21-0099-I-1, Initial Decision (March
2, 2021) (dismissing the appeal as untimely filed without good cause); Faris v. United
States Postal Service, MSPB Docket No. CH-3443-20-0495-I-1, Initial Decision
(November 6, 2020) (dismissing the appeal for lack of jurisdiction and declining to
consider the appellant’s claims related his the LCA and his removal on the basis of
adjudicatory efficiency). The appellant has filed petitions for review in those appeals,
which are still pending with the Board. He subsequently filed at least one additional
appeal concerning his removal, Faris v. United States Postal Service, MSPB Docket No.
CH-3443-22-0253-I-1 (0253 Appeal). The parties have not sought review of the
administrative judge’s June 2022 initial decision dismissing that appeal, and that
decision is now final. 0253 Appeal, Initial Decision (June 7, 2022) (finding that the
Board lacks jurisdiction over the appellant’s challenge to the agency’s determination
4
and unscheduled leave claim, she found that was connected to his removal, which,
as just stated, she refused to adjudicate. Id. She also determined that the Board
had no jurisdiction over the appellant’s defamation allegation and due process
claims. ID at 4-5. As to his discrimination claims, the administrative judge noted
that the appellant had not raised a claim of discrimination based on uniformed
service. ID at 5 n.2. In addition, she observed that the appellant had not alleged
a violation of his veterans’ preference rights. Id.The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. In his petition for review, he reiterates his claims concerning the
merits of his removal, reasserts that the LCA is invalid and that the agency
violated his right to due process, and provides examples of “discrimination or
harassment.” 2 Id. at 4-5. He also argues that, to the extent he untimely filed his
appeal, it was for good cause. Id. at 5-6. The agency has filed a response.
PFR File, Tab 3.
When an appellant files an appeal that is identical to claims raised in an
earlier appeal after the initial decision in an earlier appeal was issued, but before
that he was AWOL, and declining to consider the appellant’s removal-related claims on
the basis of adjudicatory efficiency); see 5 C.F.R. § 1201.113(a) (stating that an initial
decision generally becomes final after 35 days if neither party files a timely petition for
review).
2
On review, the appellant submits the following new documentation: a December 11,
2019 message cancelling a doctor’s appointment for the next day; and emails dated
December 17, 2019, and January 3, 2020, between the appellant, agency, and union
personnel. PFR File, Tab 1 at 8-10. The rest of the documentation submitted with the
petition for review is in the record below. IAF, Tab 8 at 10, Tab 9 at 4-16; PFR File,
Tab 1 at 7, 11-19. The Board may consider new and material evidence or legal
argument on review if, despite the party’s due diligence, it was not available when the
record closed. Spivey v. Department of Justice, 2022 MSPB 24, ¶ 15; 5 C.F.R.
§ 1201.115(d). The documents submitted by the appellant with his petition for review
predate his appeal. He has not explained why he was unable to obtain them previously.
In any event, the documents are not relevant to the dispositive collateral estoppel issue,
and therefore provide no basis for granting review. Russo v. Veterans Administration,
3 M.S.P.R. 345, 349 (1980) (explaining that the Board will not grant a petition for
review based on new evidence absent a showing that it is of sufficient weight to warrant
an outcome different from that of the initial decision).
5
the full Board has acted on the appellant’s petition for review, it is appropriate to
dismiss the subsequent appeal on the grounds of adjudicatory efficiency.
See McNeil v. Department of Defense, 100 M.S.P.R. 146, ¶ 11 (2005). At the
time the administrative judge issued her initial decision, the appellant’s petition
for review in his 0205 Appeal was still pending at the Board. However, the
Board now has issued its decision on the petition for review in that case,
affirming the initial decision dismissing his appeal for lack of Board jurisdiction,
so the administrative judge’s basis for dismissing the appeal is no longer valid.
See id.; 0205 Final Order. Under these circumstances, it remains appropriate to
dismiss the instant appeal, though on jurisdictional grounds relying on the
doctrine of collateral estoppel, rather than on the basis of adjudicatory efficiency.
McNeil, 100 M.S.P.R. 146, ¶ 11.
The purpose of collateral estoppel is to “relieve the parties of the cost and
vexation of multiple lawsuits, conserve judicial resources, and, by preventing
inconsistent decisions, encourage reliance on adjudication.” Peartree v. U.S.
Postal Service, 66 M.S.P.R. 332, 336-37 (1995) (quoting Allen v. McCurry,
449 U.S. 90, 94 (1980)). Collateral estoppel may be grounds for dismissing an
appeal for lack of jurisdiction if a jurisdictional determination in a prior decision
is afforded collateral estoppel effect and the appellant provides no other valid
basis of Board jurisdiction. Noble v. U.S. Postal Service, 93 M.S.P.R. 693, ¶ 11
(2003). It is appropriate when: (1) the issue is identical to that involved in the
prior action; (2) the issue was actually litigated in the prior action; (3) the
determination on the issue in the prior action was necessary to the resulting
judgment; and (4) the party against whom the issue preclusion is sought had a full
and fair opportunity to litigate the issue in the prior action. McNeil, 100 M.S.P.R.
146, ¶ 15 (2005).
The Board’s jurisdiction over the appellant’s removal was actually litigated
before the Board in the appellant’s 0205 Appeal. The “actually litigated” element
is satisfied when the issue was properly raised by the pleadings, was submitted
6
for determination, and was determined. Kavaliauskas v. Department of the
Treasury, 120 M.S.P.R. 509, ¶ 6 (2014). In the initial decision in that case, the
administrative judge found, after providing the parties with an opportunity to
address the jurisdictional issue, that the appellant failed to allege that he complied
with the LCA; did not knowingly and voluntarily enter into the LCA; the agency
materially breached the LCA or acted in bad faith; and that the LCA resulted from
fraud or mistake. 0205 ID at 4-8. These findings were necessary to the
administrative judge’s determination in the initial decision that the Board lacks
jurisdiction over the appellant’s removal. Faris v. United States Postal Service,
0205 ID at 4-5, 8 (citing Willis v. Department of Defense, 105 M.S.P.R. 466, ¶ 17
(2007) (stating that the Board lacks jurisdiction over an action taken pursuant to
an LCA in which an appellant waives his right to appeal to the Board unless an
appellant establishes one of these bases for not enforcing the LCA). After the
appellant petitioned for review, the Board affirmed that decision. 0205 Final
Order. Finally, the appellant has fully represented himself in every one of his
appeals. Fischer v. Department of Defense, 64 M.S.P.R. 509, 515 (1994)
(determining that a party’s pro se status does not preclude the application of
collateral estoppel). Thus, the doctrine of collateral estoppel is appropriate here.
Because the doctrine of collateral estoppel prevents the appellant from relitigating
the issue of the Board’s jurisdiction over his removal, the Board does not have
jurisdiction over the instant appeal.
On review, in addition to challenging the enforceability of the LCA on
various bases, the appellant disputes the merits of his removal, argues that the
agency denied him procedural due process, and expands on his discrimination
claims. PFR File, Tab 1 at 4-5, 8-10, 12-16. He still does not specify the nature
of the agency’s alleged discrimination. Id. at 5. In the absence of jurisdiction,
we lack the authority to review the merits of the appellant’s removal.
See Schmittling v. Department of the Army, 219 F.3d 1332, 1337 (Fed. Cir. 2000)
(finding that the Board cannot review the merits of an appeal if it lacks
7
jurisdiction (citations omitted)). His remaining claims do not provide an
independent source of Board jurisdiction absent an otherwise appealable action.
See Penna v. U.S. Postal Service, 118 M.S.P.R. 355, ¶ 13 (2012) (finding that
absent an otherwise appealable action, the Board lacks jurisdiction over a claims
of harmful error and discrimination, and that the agency engaged in other
prohibited personnel practices); Smith v. Department of Defense, 106 M.S.P.R.
228, ¶ 13 (2007) (recognizing that the Board has no jurisdiction to review
constitutional claims that are not coupled with an independently appealable
action). Finally, although the appellant does not reassert his defamation claim on
review, we agree with the administrative judge that the Board lacks jurisdiction
over this claim. ID at 4-5; Paul v. Department of Agriculture, 66 M.S.P.R. 643,
650 (1995). Accordingly, we dismiss the instant appeal for lack of jurisdiction. 3
NOTICE OF APPEAL RIGHTS 4
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.
3
Because we find that the Board lacks jurisdiction over the appeal, we need not address
the appellant’s arguments concerning timeliness. PFR File, Tab 1 at 5-6.
4
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.
8
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
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
9
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
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:
10
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. 5 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).
5
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.
11
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.