Anthony Lee v. Department of the Army ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY TERRELL LEE, DOCKET NUMBER
Appellant, AT-1221-18-0208-C-1
v.
DEPARTMENT OF THE ARMY, DATE: February 12, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Anthony Terrell Lee , Saint Marys, Georgia, pro se.
Elizabeth Moseley , Millington, Tennessee, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the compliance initial
decision, which denied his petition for enforcement of the Board’s decision in the
underlying individual right of action (IRA) appeal. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the facts of the case; the administrative 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. 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 and AFFIRM the
compliance initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
On petition for review, the appellant raises the following arguments: the
administrative judge misconstrued his claims and conflated his appeals; the
administrative judge failed to follow the Board’s compliance procedures set forth
at 5 C.F.R. § 1201.183; and the administrative judge engaged in ex parte
communications when she allegedly received bribes from the agency.
Compliance Petition for Review (CPFR) File, Tab 3 at 9-15. To support his
arguments, the appellant has resubmitted documentation related to the Merit
Systems Protection Board’s report on due process, his prior Board appeals, and
his discrimination complaint. CPFR File, Tab 3 at 19-23, Tab 6 at 11;
Compliance File (CF), Tab 14 at 16-18, 23-25. For the first time on review, the
appellant has submitted a July 2013 press release from the U.S. Attorney’s Office
in the District of Columbia. 2 CPFR File, Tab 3 at 16-18.
2
The appellant has failed to explain why he was unable to submit such evidence despite
his due diligence prior to when the record before the administrative judge closed. See
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (finding that the Board
generally will not consider evidence submitted for the first time with the petition for
review absent a showing that it was unavailable before the record was closed despite the
party’s due diligence). Nevertheless, as discussed below, we find that such evidence
does not warrant a different outcome than that of the compliance initial decision.
3
After considering the appellant’s arguments and documents provided on
review, we discern no reason to disturb the compliance initial decision. We
acknowledge that the administrative judge’s adjudication of the appellant’s
petition for enforcement was premature at the time the compliance initial decision
was issued because the Board had not issued a final decision or order in his IRA
appeal. CF, Tab 17, Compliance Initial Decision (CID) at 1-2; see 5 C.F.R.
§ 1201.182(a) (providing that a party may petition the Board for enforcement of a
final decision or order issued under the Board’s appellate jurisdiction); cf.
Flaherty v. U.S. Postal Service, 68 M.S.P.R. 637, 638 (1995) (finding that the
adjudication of compliance issues would be premature because there was no final
order from which a petition for enforcement could be filed). Nevertheless, we
find that any error is immaterial to the outcome of this compliance proceeding.
Because the Board has issued a Final Order affirming the dismissal of the
underlying IRA appeal as untimely filed, the appellant has not been afforded any
relief and there is nothing for the Board to enforce. Lee v. Department of the
Army, MSPB Docket No. AT-1221-18-0208-W-1, Final Order (Feb. 12, 2024).
Similarly, we find that the administrative judge’s mischaracterization of the
disposition of his IRA appeal as dismissed for lack of jurisdiction, instead of as
dismissed as untimely filed, is immaterial to the outcome of this compliance
proceeding. CID at 2.
Moreover, we deny the appellant’s motion for a written transcript of the
January 26, 2010 prehearing conference held in his prior removal appeal because
it is not relevant to the adjudication of this compliance matter. CPFR File, Tab 6
at 5; CF, Tab 16 at 10-11. Further, we find that the appellant’s substantive rights
have not been prejudiced by the administrative judge’s failure to address his
motion. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984)
(finding that adjudicatory error that is not prejudicial to a party’s substantive
rights provides no basis for reversal of an initial decision).
4
Finally, we discern no reason to disturb the compliance initial decision
based on the appellant’s conclusory assertion that the administrative judge
engaged in ex parte communications when she allegedly received bribes from the
agency. CPFR File, Tab 3 at 13, 15. The appellant’s submission of a July 2013
press release from the U.S. Attorney’s Office in the District of Columbia
concerning a bribery and kickback scheme involving the U.S. Army Corps of
Engineers does not lend support to his assertion. Id. at 16-18. To the extent the
appellant is alleging that the administrative judge’s analysis and rulings were
biased in favor of the agency, such an argument is unavailing. The Board will not
infer bias based on an administrative judge’s case-related rulings, Vaughn v.
Department of the Treasury, 119 M.S.P.R. 605, ¶ 18 (2013), and we find that the
appellant’s broad allegation of bias is insufficient to rebut the presumption of the
administrative judge’s honesty and integrity, see Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980).
Accordingly, we affirm the compliance initial decision denying the
appellant’s petition for enforcement.
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
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
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.
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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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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(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
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:
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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 petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
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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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.