James Chesney v. United States Postal Service ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES W. CHESNEY, DOCKET NUMBER
Appellant, PH-0752-19-0210-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: April 29, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Joseph J. Chester , Esquire, Pittsburgh, Pennsylvania, for the appellant.
Donna G. Marshall , Esquire, Philadelphia, Pennsylvania, 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 chapter 75 demotion appeal as moot. For the reasons discussed
below, we GRANT the appellant’s petition for review, VACATE the initial
decision, and DISMISS the appeal as moot on petition for review.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Effective March 30, 2019, the agency reduced the appellant in pay and
grade from EAS-21 Postmaster to EAS-17 Operations Programs Specialist.
Initial Appeal File (IAF), Tab 1 at 9-27, Tab 6 at 8. 2 The appellant filed a Board
appeal and requested a hearing. IAF, Tab 1 at 3. Although the appellant initially
indicated that he was “incorporat[ing] discrimination allegations [from] pending
[equal employment opportunity] claims,” id. at 5, he subsequently withdrew his
discrimination-based claims, IAF, Tab 26 at 39, Tab 38 at 4.
On November 3, 2020, prior to a hearing on the matter, the agency
informed the appellant via letter that it had rescinded his demotion and that it
would provide him with “the difference in pay from March 31, 2019 through
present.” IAF, Tab 74 at 6. The agency also filed a motion to dismiss the appeal
as moot, arguing that it had restored the appellant to the status quo ante. Id.
at 4-5. The appellant thereafter argued that the appeal was not moot and that he
was entitled to a hearing on the issue of mootness. IAF, Tab 78 at 4-7, Tab 83
at 4-15.
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal as moot. IAF, Tab 84, Initial
Decision (ID) at 2, 4. She explained that the appellant had withdrawn his
discrimination claims and, therefore, was ineligible for either compensatory or
consequential damages. ID at 3. She concluded that the appellant had therefore
received all of the relief to which he would have been entitled if the matter had
been adjudicated and he had prevailed. 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, 3-4. In his petition and reply, the appellant argues that the administrative
2
The agency initially proposed to reduce the appellant to the position of EAS-16
Business Service Network Representative; however, the agency explained in its decision
letter that this had been an administrative error and that no such position was available.
IAF, Tab 1 at 9, 24.
3
judge erred in dismissing the appeal as moot insofar as he was entitled to, but did
not receive, the following: (1) compensatory damages; (2) consequential
damages; (3) attorney fees; (4) restoration of his support staff; (5) restoration of
sick and annual leave that he used to work on his Board appeal; and
(6) “restoration of sick and vacation days he used rather than administrative leave
as [an] exempt employee.” PFR File, Tab 1 at 4-18, Tab 4 at 4-7.
Approximately 2 months after the appellant filed his reply, the agency
moved for leave to file a supplemental response in opposition to the appellant’s
petition for review. PFR File, Tab 7 at 4-5. The Office of the Clerk of the Board
issued an order that granted the agency’s motion. PFR File, Tab 9 at 1-2. The
agency then filed a supplemental response in which it averred that it had credited
the appellant with sick and annual leave that he would not have been required to
use had he not been temporarily demoted. PFR File, Tab 10 at 4-6. The appellant
has not replied to the agency’s supplemental response.
ANALYSIS
The Board may dismiss an appeal as moot if the appealable action is
cancelled or rescinded by the agency. Harris v. Department of the Air Force ,
96 M.S.P.R. 193, ¶ 5 (2004). For an appeal to be deemed moot, the agency’s
rescission of the appealed action must be complete, and the employee must be
returned to the status quo ante. Id. Status quo ante relief generally requires that
the appellant be placed back in his former position or in one substantially
equivalent in scope and status to his former position, with back pay. Id., ¶ 6; see
Murphy v. Department of Justice, 107 M.S.P.R. 154, ¶ 6 (2007) (explaining that
for an appeal to be rendered moot, an appellant must receive all of the relief that
he could have received if the matter had been adjudicated and he had prevailed).
Here, the appellant argues that the administrative judge erred in dismissing
the matter as moot because he was entitled to, but did not receive, compensatory
damages. PFR File, Tab 1 at 5-6, 15-16, Tab 4 at 5-6. He argues that he was
4
entitled to such damages “as a result of estoppel and laches” and because the
agency exhibited “bad-faith conduct” during the pendency of his appeal before
the administrative judge. PFR File, Tab 1 at 6, 15-16. However, we find no basis
to disturb the administrative judge’s reasoned conclusion that, because the
appellant withdrew his discrimination claims, he was ineligible for compensatory
damages. ID at 3; IAF, Tab 26 at 39, Tab 38 at 4; see Currier v. U.S. Postal
Service, 72 M.S.P.R. 191, 196-98 (1996) (explaining that compensatory damages
are available only when an appellant raises a claim of prohibited discrimination in
connection with an otherwise appealable action); see also 5 C.F.R. § 1201.201(d)
(stating that the Board may authorize an award of compensatory damages to a
prevailing party who is found to have been intentionally discriminated against
based on race, color, religion, sex, national origin, or disability).
The appellant contends that he was entitled to, but did not receive,
consequential damages, to include compensation for travel and commuting
expenses that he incurred because his demotion temporarily changed his duty
station. PFR File, Tab 1 at 10-11; IAF, Tab 79 at 23-37. Again, however, we
find no basis to disturb the administrative judge’s conclusion that the appellant
was ineligible for such damages. ID at 3; see 5 C.F.R. § 1201.201(c) (explaining
that the Board may award consequential damages only when it orders corrective
action in a whistleblower appeal under 5 U.S.C. § 1221 or when it orders
corrective action in a Special Counsel complaint under 5 U.S.C. § 1214). Thus, a
different outcome is not warranted.
The appellant asserts that the administrative judge erred in dismissing his
appeal as moot because he had claimed entitlement to $48,081.00 in attorney fees
and associated costs. PFR File, Tab 1 at 12-13. Outstanding attorney fee issues,
however, do not prevent the dismissal of an appeal as moot. Currier, 72 M.S.P.R.
at 198. Indeed, the Board considers attorney fee issues in an addendum
proceeding after an appellant files a separate petition on that issue. See 5 C.F.R.
5
§§ 1201.201-1201.205. Thus, the appellant’s assertion regarding attorney fees
does not provide a basis to disturb the initial decision.
The appellant also argues that the appeal was not moot because he was
entitled to, but did not receive, restoration of either (1) the same “quantum” of
support staff that he enjoyed prior to his demotion or (2) leave that he used to
“prepare and defend” his Board appeal. PFR File, Tab 1 at 5, 11-12. We
disagree. Indeed, the appellant does not cite, and we are unable to locate, any
legal authority, such as a provision in the Postal Service’s Employee and Labor
Relations Manual (ELM), 3 to support his apparent assertion that, had the matter
been adjudicated and he had prevailed, the agency would have been required to
either restore staffing levels or compensate him for leave that he used to work on
his Board appeal. See Murphy, 107 M.S.P.R. 154, ¶ 6.
Last, the appellant argues that he was entitled to “restoration of sick and
vacation days he used rather than administrative leave as [an] exempt employee.”
PFR File, Tab 1 at 5. Essentially, the appellant is arguing that he was required to
use more of his sick and annual leave during the period of his demotion because
the temporary downgrade in position rendered him ineligible for “personal
absence time.” We agree with the appellant that this is additional relief to which
he would have been entitled if the appeal had been fully adjudicated and he had
prevailed. See Galatis v. U.S. Postal Service, 110 M.S.P.R. 399, ¶ 7 (finding that
the appellant was entitled to the restoration of certain leave that he used while
temporarily demoted because he would not have been required to use the leave
had he remained in his supervisory position), modified on reconsideration,
111 M.S.P.R. 484 (2009); see also ELM § 519.72 (stating that Fair Labor
Standards Act exempt Postal Service employees may request time off to attend to
personal matters during the workday, which may be considered “personal absence
time” and not charged as annual leave, sick leave, or leave without pay). The
record shows that the agency had not yet restored this leave to the appellant at the
3
https://about.usps.com/manuals/elm/elm.htm (last visited Apr. 29, 2024).
6
time the initial decision was issued. PFR File, Tab 10 at 4-5, 32; ID. Therefore,
the appeal was not moot when the administrative judge dismissed it.
Nevertheless, we find that the appeal became moot during the pendency of
the petition for review. The agency has filed evidence showing that, on or about
May 27, 2021, it restored all leave to which the appellant may have been entitled
pursuant to ELM § 519.72, i.e., leave that may properly have been categorized as
“personal absence time” had the appellant remained in his EAS-21 Postmaster
position. PFR File, Tab 10 at 6, 32. The appellant does not dispute this matter.
Accordingly, we find that no factual dispute remains regarding leave owed to the
appellant by virtue of his temporary ineligibility for personal absence time, and
therefore, the appeal is now moot. See Murray v. Department of Defense,
92 M.S.P.R. 361, ¶ 16 (2002) (explaining that mootness can arise at any stage of
litigation and that the Board must dismiss an appeal as moot when it cannot grant
any effectual relief in favor of the appellant).
ORDER
This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
7
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
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.
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:
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
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
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
9
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:
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
10
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).
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.
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
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.