Opinion

Vincent Harrington v. Department of the Army

Court: Merit Systems Protection Board
Filed: Sep 10, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

VINCENT HARRINGTON, DOCKET NUMBER

Appellant, CH-0752-21-0234-I-1

DEPARTMENT OF THE ARMY, DATE: September 10, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Vincent Harrington , Bloomington, Indiana, pro se.

Emily L. Macey , Esquire, Rock Island, Illinois, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed his appeal as untimely filed without good cause shown for the delay .

For the reasons discussed below, we GRANT the appellant’s petition for review,

and VACATE the initial decision, but we DISMISS the appeal as barred by res

judicata.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

BACKGROUND

On January 11, 2019, the agency issued a decision removing the appellant

from his position as an Equal Employment Specialist effective January 18, 2019.

Harrington v. Department of the Army, MSPB Docket No. CH-0752-21-0234-I-1,

Initial Appeal File (0234 IAF), Tab 6 at 48-53. On January 17, 2019, the

appellant filed a formal discrimination complaint with the agency challenging his

removal, which the agency accepted on February 5, 2019. See Harrington v.

Department of the Army, MSPB Docket No. CH-0752-19-0154-I-1, Initial Appeal

File (0154 IAF), Tab 9 at 8-14. On January 28, 2019, the appellant filed a Board

appeal challenging his removal. 0154 IAF, Tab 1. The agency moved to dismiss

this appeal as premature, 0154 IAF, Tab 12 at 7-9, but in a June 17, 2019 status

conference order, the administrative judge declined to do so, concluding that, at

that point, 120 days had elapsed since the appellant filed his formal EEO

complaint, 0154 IAF, Tab 15 at 1. The administrative judge further noted that,

during the status conference, she asked the appellant’s counsel if he wanted her to

dismiss the appeal without prejudice to refiling for a period of 6 months so that

the appellant could proceed before the Equal Employment Opportunity

Commission (EEOC), but the appellant declined the opportunity to do so.

0154 IAF, Tab 15 at 1. Then, on August 1, 2019, the appellant filed a pleading

requesting to withdraw his Board appeal, and the same day, the administrative

judge issued an initial decision dismissing the appeal as withdrawn. 0154 IAF,

Tabs 20-21. That decision became final on September 5, 2019, when neither

party filed a petition for review of that decision. See 0154 IAF, Tab 21, Initial

Decision (0154 ID) at 2.

On March 19, 2021, the appellant filed the instant appeal seeking again to

challenge his removal. 0234 IAF, Tab 1. The agency moved to dismiss the

appeal as untimely filed, or in the alternative, because the appellant made a prior

election to challenge his removal through the EEO complaint hearing process.

0234 IAF, Tab 6 at 4-8. The administrative judge subsequently issued an order

noting that the appeal appeared to be untimely filed and ordered the appellant to

file evidence and argument regarding the timeliness of his appeal. 0234 IAF,

Tab 7 at 1-4. The appellant filed a response, in which he made substantive

arguments challenging his removal, and indicated that his appeal was timely filed

because more than 120 days had elapsed since he filed his formal EEO complaint

and the agency had not issued a final agency decision (FAD) on his complaint.

0234 IAF, Tab 9 at 3-4.

Without holding a hearing, the administrative judge issued an initial

decision dismissing the appeal as untimely filed. 0234 IAF, Tab 12, Initial

Decision (0234 ID) at 1-7. The administrative judge concluded that the

appellant’s prior appeal was a timely filed Board appeal of his mixed-case

complaint because it was pending before the Board after more than 120 days had

passed since the filing of his formal EEO complaint without a FAD being issued

by the agency. 0234 ID at 1-7. She further concluded that the appellant’s

voluntary decision to withdraw that appeal constituted an act of finality that

removed the appeal from the Board’s jurisdiction, and the subsequent EEOC

decision dated March 1, 2021, did not provide the appellant with additional Board

appeal rights under the agency’s mixed-case complaint procedures. 0234 ID at 7.

Consequently, she concluded that the instant appeal was untimely filed, and

because the appellant had not shown that he acted with due diligence or ordinary

prudence such that he should be entitled to waiver of the filing deadline, she

dismissed the appeal. 0234 ID at 7-8.

The appellant has filed a petition for review of the initial decision, arguing

that his attorney claimed that his prior Board appeal was dismissed without

prejudice to refiling, that his current Board appeal is within the proscribed filing

deadlines, and that his attorney experienced issues using the Board’s e-Appeal

system during the course of the prior Board appeal. 2 Petition for Review (PFR)

With regard to the appellant’s assertion that his attorney experienced difficulties in

attempting to access e-Appeal, this allegation relates to the prior, dismissed appeal and

not the instant appeal, so we need not consider it here. PFR File, Tab 1 at 3.

File, Tab 1. The agency has filed a response, and the appellant has not filed a

reply. PFR File, Tabs 1, 3.

DISCUSSION OF ARGUMENTS ON REVIEW

Under the doctrine of res judicata, a valid final judgment on the merits of

an action bars a second action involving the same parties or their privies based on

the same cause of action. Brown v. Department of the Navy, 102 M.S.P.R. 377,

¶ 10 (citing Peartree v. U.S. Postal Service, 66 M.S.P.R. 332, 337 (1995)). Res

judicata precludes parties from relitigating issues that were, or could have been

raised in the prior action, and is applicable if: (1) the prior judgment was

rendered by a forum with competent jurisdiction; (2) the prior judgment was a

final judgment on the merits; and (3) the same cause of action and the same

parties or their privies were involved in both cases. Id.

In this case, the appellant previously filed a Board appeal of the same

adverse action at issue in this case. 0234 ID at 2-3; see 0154 IAF, Tab 1.

Although the appeal was premature when filed, during the processing of the

appeal, 120 days elapsed from the date that the appellant filed his EEO complaint,

vesting his right to appeal his mixed-case complaint. See Miranne v. Department

of the Navy, 121 M.S.P.R. 235, ¶ 9 (2014) (explaining that, if the agency has not

resolved the employee’s discrimination claim or issued its FAD on the

discrimination issue within 120 days, the appellant may file an appeal with the

Board anytime thereafter). Thus, requirements (1) and (3) are satisfied, and the

application of res judicata turns on whether the dismissal of the appellant’s first

appeal was a final judgment on the merits.

The appellant moved to voluntarily withdraw his first appeal, making no

mention of his previously filed discrimination complaint, or giving any indication

that he wished to refile his Board appeal at a later date. 0154 IAF, Tab 20.

Additionally, in dismissing the appeal as withdrawn, the administrative judge

Additionally, the appellant has not provided any evidence to support his claim beyond

his bare assertion.

assigned to the prior appeal found that the appellant’s withdrawal was an “act of

finality” and had the effect of “removing the appeal from the Board’s

jurisdiction.” 0154 ID at 1. The appellant did not file a petition for review

contesting that determination.

Therefore, we conclude that the dismissal of the appellant’s first appeal

constituted a dismissal with prejudice of his Board appeal of his timely filed

mixed-case complaint. See Brown, 102 M.S.P.R. 377, ¶ 10 (finding that the

dismissal of the appellant’s prior appeal as withdrawn constituted a dismissal of

the appeal with prejudice when the withdrawal was not based on incorrect or

misleading information, and the appellant did not show that he did not

comprehend the implications of his decision). Dismissals with prejudice are

generally considered final, and relitigation of such appeals is barred by res

judicata. Id.; see Cavanagh v. U.S. Postal Service, 44 M.S.P.R. 485, 489 (1990)

(noting that when a party making a request for a voluntary dismissal affirmatively

appears to have intended to abandon the action, the party is barred from bringing

a new action on the same subject matter). Accordingly, we vacate the

administrative judge’s finding dismissing the appeal as untimely filed without

good cause shown for the delay and instead dismiss the appeal as barred by the

doctrine of res judicata.

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

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.

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:

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

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

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

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.

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