Stanley Scheiner v. Federal Communications Commission

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STANLEY SCHEINER, DOCKET NUMBERS
Appellant, DC-0752-14-0744-I-3
DC-1221-17-0037-W-1 1
v.
FEDERAL COMMUNICATIONS
COMMISSION, DATE: March 30, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 2
Douglas Hartnett, Esquire, Washington, D.C., for the appellant.
Christopher Morgan and Lily Sara Farel, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 3
1
We have joined these two appeals on review based on our determination that joinder
will expedite processing of the cases and will not adversely affect the interests of the
parties. 5 C.F.R. § 1201.36(b).
2
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 jud ges 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).
3
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 The appellant has filed petitions for review of the initial decisions, which
dismissed as settled the appeal of his removal and his individual right of action
(IRA) appeal. Generally, we grant petitions such as this one only in the following
circumstances: the initial decisions contain erroneous findings of material fact;
the initial decisions are 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 during either the course of the appeal s or the initial
decisions were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the cases; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the records closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in these appeals, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition s for review.
Therefore, we DENY the petitions for review and AFFIRM the initial decisions,
which are now the Board’s final decisions. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 Effective March 31, 2014, the agency removed the appellant, an Attorney
Advisor, based on: (1) excessive absences; and (2) absence without leave and
failure to request leave following proper procedures. Scheiner v. Federal
Communications Commission, MSPB Docket No. DC-0752-14-0744-I-1, Initial
Appeal File (IAF), Tab 1 at 19-26. On appeal to the Board, he argued that the
charges were unsubstantiated and that the penalty was too severe, and he alleged
that the agency’s action was due to disability discrimination based on failure to
accommodate and retaliation for engaging in equal employment opportunity
activity, making protected disclosures, and exercising his rights under the Family
and Medical Leave Act. Id. at 6-7. He requested a hearing. Id. at 2. The
3
administrative judge dismissed the appeal without prejudice for a period of 60
days, in part because the appellant indicated that he had a complaint pending
before the Office of Special Counsel (OSC) regarding his claim of whistleblower
retaliation. IAF, Tab 6, Initial Decision at 1-3. The administrative judge
dismissed the refiled appeal without prejudice after determining that the parties
were actively engaged in extensive discovery and that it did not appear that they
would be ready for the scheduled hearing. Scheiner v. Federal Communications
Commission, MSPB Docket No. DC-0752-14-0744-I-2, Tab 70, Initial Decision
at 1-3. After the appeal was again refiled, discovery continued. Scheiner v.
Federal Communications Commission, MSPB Docket No. DC-0752-14-0744-I-3,
Appeal File (I-3 AF), Tabs 3-14, 16-22, 24-31, 40-43, 45-53.
¶3 During a prehearing conference, the administrative judge informed the
parties that the appellant had failed to file an IRA appeal and that his
whistleblowing claim would be limited to the removal action. Subsequently, the
appellant filed a “Motion to Consolidate this Complaint with Appellant’s IRA
Complaint 4 filed on October 16, 2016.” I-3 AF, Tab 54. He indicated that,
beginning in 2011 and continuing to date, he made disclosures to agency
management, the Office of Inspector General, Human Resources officials, and
OSC concerning alleged fraud in a specific program that was under investigation.
Id. at 16, 35-41. He stated that he already had filed complaints with OSC but that
they had been dismissed. Id. at 17. The appellant claimed that, again, beginning
in 2011, the agency began to retaliate against him based on his disclosures and
that the retaliation continued up until his removal in 2014. Id. at 18-30. He
stated that he only received OSC’s closure letters dated July 22, 2015, August 24,
2015, and May 17, 2016, id. at 47-50, on October 15, 2016, id. at 30-31, and he
argued that, under the circumstances, the deadline for filing his IRA appeal
4
As did the administrative judge, we understand the appellant’s motion to be a request
that the administrative judge join his removal appeal with the IRA appeal he was filing
that day.
4
should be equitably tolled. Id. at 42-43. The appellant submitted an affidavit in
support of his position, id. at 44-45, and he also filed a supplemental pleading
regarding his motion to join his appeals, I-3 AF, Tab 55. In her prehearing
conference summary, the administrative judge denied the ap pellant’s motion, not
crediting his claims in support of his request for waiver of the filing deadline . I-3
AF, Tab 57 at 13-14.
¶4 That same day, the administrative judge docketed the appellant’s IRA
appeal. Scheiner v. Federal Communications Commission, MSPB Docket
No. DC-1221-17-0037-W-1, Initial Appeal File (W-1 IAF), Tab 1. The
administrative judge set forth the time limits for filing an IRA appeal with t he
Board under 5 U.S.C § 1214(a)(3) and 5 C.F.R. § 1209.5(a)(1) and (2) which
provide, in pertinent part, that an IRA appeal must be filed no later than 65 days
after the date of issuance of OSC’s written notification that it has terminated its
investigation of the appellant’s allegations or, if the appellant shows that OSC’s
notification was received more than 5 days after the date of issuance, within
60 days after the date the appellant received OSC’s notification. W-1 IAF, Tab 4
at 1-2. The administrative judge advised the appellant that, based on the May 17,
2016 closure letter from OSC, his October 16, 2016 IRA appeal appeared to have
been filed 87 days late. Id. at 2. The administrative judge further explained that
a “good cause” standard did not apply to such a timeliness determination but that
the appellant could attempt to establish that the principle of equitable tolling
should be applied to waive the filing deadline and under what circumstances
Federal courts typically extend such relief. Id. at 2-3. The administrative judge
afforded the appellant 10 days in which to respond to her order, id. at 3, which he
did in several “preliminary” submissions, W-1 IAF, Tabs 6-8, and the agency also
filed a response, W-1 IAF, Tab 10.
¶5 Meanwhile, the appellant filed a motion to reschedule the hearing on his
removal appeal, set to begin in 6 days, pending the administrative judge’s ruling
on the timeliness of the IRA appeal, I-3 AF, Tab 64, and he also moved that the
5
administrative judge reconsider her denial of his motion to join the two appeals,
1-3 AF, Tab 65. The administrative judge denied both motions, stating that the
appellant would have a full opportunity to brief the issue of the timeliness of his
IRA appeal, after which, upon review, she would either dismiss the appeal as
untimely or schedule a hearing on the IRA appeal at a future date. W-1 IAF,
Tab 11. Thereafter, the appellant sought an extension of time in which to file
additional evidence on the timeliness issue, W-1 IAF, Tab 12, which the
administrative judge granted, W-1 IAF, Tab 13.
¶6 On the day of the administrative judge’s order and prior to the scheduled
hearing, however, the parties submitted a settlement agreement resolving both
appeals. W-1 IAF, Tab 14; I-3 AF, Tab 67. The agreement provided in pertinent
part that the agency would pay the appellant’s attorney $150,000, rescind and
expunge any and all documentation referencing the removal action from the
appellant’s Official Personnel File, and process his resignation “for medical
reasons,” effective March 31, 2014, the date of his removal. The appellant agreed
to waive his right to pursue and irrevocably release the agency from all claims
arising out of his employment with the agency which he brought or could have
brought in any forum. W-1 IAF, Tab 14; I-3 AF, Tab 67. On the basis of the
agreement, the administrative judge dismissed the appeals as settled. W -1 IAF,
Tab 15, Initial Decision; I-3 AF, Tab 68, Initial Decision.
¶7 The appellant has filed identical petitions for review in both appeals,
Scheiner v. Federal Communications Commission, MSPB Docket No. DC-1221-
17-0037-W-1, Petition for Review (W-1 PFR) File, Tab 1; Scheiner v. Federal
Communications Commission, MSPB Docket No. DC-0752-14-0744-I-3, Petition
for Review (I-3 PFR) File, Tab 1, the agency has filed identical responses, W-1
PFR File, Tab 5; I-3 PFR File, Tab 5, and the appellant has filed identical
replies, 5 W-1 PFR File, Tab 6; I-3 PFR File, Tab 6.
5
In our discussion on review, we will cite only to “PFR File” f or the sake of clarity.
6
ANALYSIS
¶8 A party may challenge the validity of a settlement agreement if he believes
that it is unlawful, involuntary, or the result of fraud or mutual mistake. E.g.,
Sargent v. Department of Health & Human Services, 229 F.3d 1088, 1091 (Fed.
Cir. 2000); Wade v. Department of Veterans Affairs, 61 M.S.P.R. 580, 583
(1994). To establish that a settlement was fraudulent as a result of coercion or
duress, a party must prove that he involuntarily accepted the other party’s terms,
that circumstances permitted no other alternative, and that such circumstances
were the result of the other party’s coercive acts. Potter v. Department of
Veterans Affairs, 111 M.S.P.R. 374, ¶ 6 (2009). A party challenging the validity
of a settlement agreement bears a “heavy burden.” Asberry v. U.S. Postal
Service, 692 F.2d 1378, 1380 (Fed. Cir. 1982). An appellant’s mere
post-settlement remorse or change of heart cannot serve as a basis for setting
aside a valid settlement agreement. Potter, 111 M.S.P.R. 374, ¶ 6; Thompson v.
Department of Veterans Affairs, 52 M.S.P.R. 233, 237 (1992).
¶9 The appellant does not allege, nor do we discern any basis upon which to
find, that the settlement agreement here was unlawful. Neither does the appellant
suggest, nor the record show, that he entered into the agreement involuntarily.
Paragraph 10 of the settlement agreement specifically provided that the parties
agreed that the agreement constituted a voluntary act, free from undue influence,
fraud, misrepresentation, or coercion. W-1 IAF, Tab 14; I-3 AF, Tab 67.
Moreover, the appellant was represented by counsel during negotiations, and his
attorney signed the agreement as did he. Cf. Swidecki v. U.S. Postal Service,
101 M.S.P.R. 110, ¶ 18 (2006) (finding that representation by counsel is
significant in determining the validity of an appeal -rights waiver).
¶10 The appellant has not shown that the agency acted fraudulently regarding
the settlement agreement. Any purported error by OSC in sending the closure
letter to a prior representative of the appellant ’s cannot be attributed to the
agency. With his petition for review, the appellant has submitted a December 5,
7
2016 letter from OSC suggesting such an error. PFR File, Tab 1 at 10. Although
the letter is dated after the close of the record on review, to constitute new and
material evidence, the information contained in the document, not just the
document itself, must have been unavailable despite due diligence when the
record closed. Grassell v. Department of Transportation, 40 M.S.P.R. 554, 564
(1989). The appellant has failed to show that he could no t have timely secured
this information by contacting OSC earlier regarding the status of his complaint.
¶11 In addition, the appellant has not shown that the parties operated under
mutual mistake sufficient to justify striking the agreement as invalid. Although
they may have shared the perception that the appellant’s IRA appeal was
untimely, the administrative judge had not explicitly ruled on that issue prior to
the date the parties settled the appeals. On the contrary, she had directed the
parties to address the issue of equitable tolling and had granted the appellant’s
request for additional time in which to submit his evidence and argument on that
issue, but the parties reached a settlement only several days after the
administrative judge granted the appellant’s request for an extension. W-1 IAF,
Tabs 11-14.
¶12 Finally, the appellant has not shown that he had no other option but to
accept the terms of the agreement. As we have found, he could have timely
pursued the matter with OSC to learn the status of his complaint and included that
information in his response to the administrative judge’s order on the issue of the
applicability of equitable tolling. He also could have proceeded to hearing in his
removal appeal and presented evidence on his claim of retaliation for
whistleblowing. Even after he had signed the agreement, the appellant could have
acted on its right-to-revoke provision, I-3 AF, Tab 67 at 6; W-1 IAF, Tab 14 at 6;
yet he did not exercise that option.
¶13 In sum, we find that the appellant has failed to meet his burden of showing
that the settlement agreement was unlawful, involuntary, or the result of fraud or
mutual mistake. Asberry, 692 F.2d at 1380.
8
¶14 On review, the appellant argues that the time limit for the filing of his IRA
appeal should be equitably tolled based on the December 5, 2016 letter from OSC
that he submitted with his petition for review and that we have declined to
consider, having found that it is not new evidence. In any event, the issue of the
timeliness of the appellant’s IRA appeal is no longer before the Board because of
the parties’ settlement agreement, which we have found to be valid.
¶15 The appellant also challenges on review the administrative judge’s earlier
denial of his request to join his two appeals, arguing that the administrative judge
was misled into thinking that he had agreed that the representative to whom the
May 16, 2016 closure letter was sent was actually his rep resentative at the time,
when that was not the case. PFR File, Tab 1 at 8-9. Administrative judges have
wide discretion to control the proceedings over which they preside , including
ruling on motions. 5 C.F.R. § 1201.41(b)(8). The appellant’s motion for joinder
was filed a week before the removal hearing was set to begin, after the parties had
participated in extensive discovery regarding that appeal over several years. The
administrative judge’s denial of the motion based on the record before her was
well within her discretion. As noted, she advised the parties that she would
consider the timeliness of the appellant’s IRA appeal after considering their
additional evidence and argument and that, if she found the appeal timely, she
would schedule a hearing at a future date. W-1 IAF, Tabs 11, 13. The appellant
agreed to settle both appeals the following day. W-1 IAF, Tab 14. Although he
suggests that proceeding to hearing following the administrative judge’s ruling
would have been, for him, a “fruitless exercise,” PFR File, Tab 1 at 5, his
suggestion assumes that the administrative judge would have found his IRA
appeal untimely. As we have found, however, she had not yet made a finding as
to timeliness, and it was the appellant’s decision to settle his appeals that
prevented her from making a definitive ruling on that issue. Th e appellant has
not shown that the administrative judge’s ruling was an abuse of discretion or that
it otherwise prejudiced his substantive rights. Cf. Fulton v. Department of the
9
Army, 95 M.S.P.R. 79, ¶ 11 (2003) (finding that the Board will not disturb an
administrative judge’s denial of a party’s proposed witnesses unless such denial
constitutes an abuse of discretion).
NOTICE OF APPEAL RIGHTS 6
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).
6
Since the issuance of the initial decisions in these matters, 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.
10
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
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. ____ , 137 S. Ct. 1975 (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
11
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:
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
12
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. 7 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
7
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.
13
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.