Vanderlee v. MSPB

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KENDRA S. VANDERLEE,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2014-3203
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0353-06-0658-1-2.
______________________
Decided: March 6, 2015
______________________
KENDRA S. VANDERLEE, Grand Haven, MI, pro se.
CALVIN M. MORROW, Office of the General Counsel,
Merit Systems Protection Board, Washington, D.C., for
respondent. Also represented by BRYAN G. POLISUK.
______________________
Before DYK, O’MALLEY, and WALLACH, Circuit Judges.
2 VANDERLEE v. MSPB
PER CURIAM.
Petitioner Kendra S. VanderLee appeals the July 14,
2014, decision of the Merit Systems Protection Board
(“Board”) dismissing her petition for review of her restora-
tion appeal for lack of jurisdiction. See VanderLee v. U.S.
Postal Serv., No. CH-0353-0658-1-2 (M.S.P.B. July 14,
2014) (“Final Order”). For the reasons set forth below,
this court affirms.
BACKGROUND
Ms. VanderLee was a “Rural Carrier” with the United
States Postal Service (“Agency”) when, in 1998, she “suf-
fered a compensable injury” and consequently missed
work. Final Order at 2. Because of her injury, the Agen-
cy reassigned her to a clerk position on September 9,
2000. In 2004, Ms. VanderLee’s doctor released her from
all medical restrictions and she requested to be placed on
the priority reemployment 1 list for a Rural Carrier posi-
tion. After the Agency denied her request, her union
filed a grievance and Ms. VanderLee simultaneously filed
an “instant restoration appeal” 2 to the Board.
Pursuant to the union grievance, and prior to arbitra-
tion or a settlement agreement, the parties entered into a
stipulation on December 15, 2006 (“2006 Stipulation”), to
1 “An employee who separated because of a com-
pensable injury and whose full recovery takes longer than
1 year . . . is entitled to priority consideration, agen-
cywide, for restoration. . . . [C]onsideration is accorded by
entering the individual on the [A]gency’s reemployment
priority list[.]” 5 C.F.R. § 353.301 (2013).
2 Ms. VanderLee had the right to “appeal a viola-
tion of []her restoration rights to the Merit Systems
Protection Board under the provisions of the Board’s
regulations.” 5 C.F.R. § 302.501 (2013).
VANDERLEE v. MSPB 3
have Ms. VanderLee “withdraw her [B]oard appeal so
that the case could proceed in a single forum.” Id. This
withdrawal was not absolute—“if the Agency refused to
arbitrate, the appellant reserved her right to refile her
Board appeal within 30 days of receiving notice of the
refusal.” Id. (emphasis added). As a result of the 2006
Stipulation, an administrative judge (“AJ”) dismissed the
Board appeal on December 18, 2006. Ms. VanderLee
claims she entered into the 2006 Stipulation because the
Agency incorrectly told her that she could not continue
both suits simultaneously and she was required to choose
between the union grievance and the Board appeal. Id. at
4.
The union and the Agency settled Ms. VanderLee’s
grievance on June 5, 2008, without entering arbitration
(“the 2008 Settlement”). Ms. VanderLee claims the Union
settled without her consent and that she learned about it
several years later, on April 5, 2013. Ms. VanderLee
refiled her appeal on April 9, 2013. On July 26, 2013, the
AJ entered an Initial Decision, and dismissed the appeal
for lack of jurisdiction, finding the 2006 Stipulation was
valid and the conditions to refile—that the Agency refuse
to arbitrate—had not been met. VanderLee v. U.S. Postal
Serv., No. CH-0353-0658-1-2 (M.S.P.B. July 26, 2013)
(“Initial Decision”). Ms. VanderLee filed a petition for
review before a Board Panel. On July 14, 2014, the Board
denied the petition, finding it lacked jurisdiction for the
same reasons stated by the AJ. Ms. VanderLee appeals
the Board’s Final Order to this court.
DISCUSSION
I. Standard of Review and Jurisdiction
This court’s “scope of . . . review of [B]oard decisions is
limited to whether they are (1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law,
rule, or regulation having been followed; or (3) unsupport-
4 VANDERLEE v. MSPB
ed by substantial evidence.” Forest v. Merit Sys. Prot. Bd.,
47 F.3d 409, 410 (Fed. Cir. 1995) (citing 5 U.S.C. § 7703(c)
(1988)). The issue of Board jurisdiction is a question of
law this court reviews de novo. Johnston v. Merit Sys.
Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008). This court is
bound by the Board’s jurisdictional factual findings “un-
less those findings are not supported by substantial
evidence.” Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313,
1316 (Fed. Cir. 1998).
Ms. VanderLee bears the burden of demonstrating
Board jurisdiction by a preponderance of [the] evidence.
Fields v. Dep’t of Justice, 452 F.3d 1297, 1302 (Fed. Cir.
2006); 5 C.F.R. § 1201.56(a)(2)(i) (2013). “Those who
employ the judicial appellate process to attack a settle-
ment through which controversy has been sent to rest
bear a properly heavy burden.” Asberry v. U.S. Postal
Serv., 692 F.2d 1378, 1380 (Fed. Cir. 1982).
II. The Board Properly Found It Lacked Jurisdiction to
Hear the Appeal
Ms. VanderLee has not met her burden to show Board
jurisdiction. The Board held the 2006 Stipulation was
valid and it precluded Ms. VanderLee from appealing to
the Board because the Agency had not refused to arbi-
trate. This court addresses these holdings in turn.
A. The Board’s Finding the 2006 Stipulation Was Valid Is
Supported by Substantial Evidence
Ms. VanderLee first contends the 2006 Stipulation
was invalid because it equated to “[f]raud and misrepre-
sentation on the part of the [A]gency to coerce an employ-
ee into a settlement agreement.” Pet’r’s Br. at 1 ¶ 3. She
claims the Agency pressured her into signing the 2006
Stipulation because the Agency incorrectly told her she
must “choose between proceeding with her Board appeal
and proceeding with her grievance.” Final Order at 4.
VANDERLEE v. MSPB 5
Ms. VanderLee has not cited any law or pointed to
any record evidence demonstrating Agency fraud or
misrepresentation. Her only contentions are factual, and
this court must adhere to the Board’s factual findings
unless they are not supported by substantial evidence.
Bolton, 154 F.3d at 1316. Though Ms. VanderLee points
to a misstatement made by the Agency regarding her
ability to pursue simultaneous actions in multiple fora,
the Board correctly found this misstatement did not
amount to fraud. Indeed, as the Board stated, Mrs.
VanderLee “was represented by an attorney, was free to
disagree with the challenged statement in the stipulation
and refuse to withdraw the [B]oard appeal.” Final Order
at 5. Accordingly, Ms. VanderLee has not met her burden
and the Board’s conclusions were supported by substan-
tial evidence.
B. The Board’s Finding that the Agency Did Not Abandon
Arbitration Is Supported by Substantial Evidence
Ms. VanderLee also argues the required condition for
refiling an appeal—that the Agency refuse to arbitrate—
was met after the 2008 Settlement because her claim was
not heard by an arbitrator. See Pet’r’s Br. at 1 ¶ 2; see
also Final Order at 3. She contends the 2008 Settlement
was invalid because it was made without her approval
and “made by the union where the union officers worked
to the detriment of the employee.” Pet’r’s Br. at 1 ¶ 3.
The Board found Ms. VanderLee “has presented abso-
lutely no evidence to support her allegation of [A]gency
refusal.” Initial Decision at 9. This finding is supported
by substantial evidence. As the Board stated, “[t]he [2006
S]tipulation does not allow [Ms. VanderLee] to refile her
appeal if her grievance does not go to arbitration for any
reason.” Final Order at 3 (emphasis added). Here, “[t]he
grievance at issue . . . was settled by consent of the par-
ties prior to arbitration.” Id. at 4. Because “the [A]gency
did not unilaterally refuse to arbitrate,” id., the conditions
6 VANDERLEE v. MSPB
for refiling the appeal were not met. The fact that Ms.
VanderLee claims she had no knowledge of the settlement
is immaterial. Indeed, as the Board stated, “the result of
this case would be the same no matter when [Ms.
VanderLee] received notice of the settlement because
there simply was no refusal to arbitrate.” Id. Ms.
VanderLee is unable to show the Board lacked substantial
evidence for this finding, and this court accordingly
affirms its finding of no jurisdiction.
CONCLUSION
Ms. VanderLee has failed to meet her burden of
demonstrating the Board has jurisdiction over this case.
See Fields, 452 F.3d at 1302. For the reasons set forth
above, the decision of the Board is
AFFIRMED
COSTS
No Costs.