The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MELVIN EUGENE GIBBS, DOCKET NUMBER
Appellant, DC-1221-14-0841-W-1
v.
DEPARTMENT OF DEFENSE, DATE: February 27, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL ∗
Melvin Eugene Gibbs, Florence, South Carolina, pro se.
Richard D. Saviet, Esquire, Fort Belvoir, Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as barred by the doctrine of laches. Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
∗
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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).
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interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the 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. See 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, and based on the following
points and authorities, 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 initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 According to the appellant’s June 11, 2014 initial appeal, the agency
retaliated against him for whistleblowing when, in March 1987, it “[s]topped [his]
fast track to GS-12.” Initial Appeal File (IAF), Tab 2 at 3. The administrative
judge found that the agency had demonstrated that the 27-year filing delay was
unreasonable and prejudiced its ability to defend itself because relevant
documents had been destroyed and the former supervisor could not be located.
IAF, Tab 8, Initial Decision (ID). Accordingly, the administrative judge
dismissed the appeal as barred by the doctrine of laches. ID. The appellant has
filed a petition for review, the agency has responded in opposition, and the
appellant has replied to the agency’s opposition. Petition for Review (PFR) File,
Tabs 1, 3-4.
¶3 The equitable defense of laches bars an appeal when an unreasonable delay
in bringing the appeal has prejudiced the agency. See Pueschel v. Department of
Transportation, 113 M.S.P.R. 422, ¶ 6 (2010); Brown v. Department of the Air
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Force, 88 M.S.P.R. 22, ¶ 9 (2001). The party asserting laches must prove both
unreasonable delay and prejudice. Pueschel, 113 M.S.P.R. 422, ¶ 6.
¶4 On review, the appellant appears to argue that delay was not unreasonable
because the agency caused his “complete and total mental disability” and his
psychiatrist ordered him not to pursue the case against the agency because he
“‘might’ kill those involved.” PFR File, Tab 1 at 6.
¶5 We agree with the administrative judge that a 27-year delay is unreasonable
on its face. See ID at 3; see also Brown, 88 M.S.P.R. 22, ¶¶ 3, 9 (absent a
satisfactory explanation for the delay in filing, a 6-year delay is unreasonable).
Moreover, as explained by the administrative judge, the appellant has not
provided any evidence to support his contention that his medical condition
precluded him from pursuing his appeal rights earlier or that he exercised due
diligence after the period of incompetence ended. See ID at 3-4. Absent any
evidence of mental incapacity or due diligence, the appellant has provided no
satisfactory or credible explanation for the extensive delay. Accordingly, we
discern no basis to disturb the administrative judge’s finding that the appellant’s
27-year delay was unreasonable.
¶6 Next, the appellant appears to argue that the administrative judge erred by
relying on agency employee declarations to demonstrate prejudice in defending
itself in this appeal. PFR File, Tab 1. The Board has held that the unavailability
of witnesses and absence of relevant documents concerning the alleged adverse
action substantially prejudice an agency’s ability to defend itself. Johnson v. U.S.
Postal Service, 121 M.S.P.R. 101, ¶ 9 (2014); see Brown, 88 M.S.P.R. 22, ¶¶ 8-9.
In the instant case, the administrative judge determined that the agency was
prejudiced by the filing delay because, as explained in declarations from three
agency employees, all potentially relevant documents had been destroyed
pursuant to the agency’s document retention policy and the former supervisor
could not be located. ID at 3; see IAF, Tab 5 at 12-14. Although the appellant
asserts that the employee declarations are insufficient, a declaration subscribed as
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true under penalty of perjury, if uncontested, proves the facts it asserts. Tram v.
U.S. Postal Service, 120 M.S.P.R. 208, ¶ 8 (2013). The appellant has not
presented any credible evidence contradicting the declarations. See IAF, Tabs 2,
7; PFR File, Tabs 1, 4. Accordingly, we discern no basis to disturb the
administrative judge’s finding that the agency was materially prejudiced by the
delay.
¶7 Based on the foregoing, we find that the administrative judge correctly
dismissed this appeal as barred by the doctrine of laches.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
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both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for a list of attorneys who have expressed
interest in providing pro bono representation for Merit Systems Protection Board
appellants before the Federal Circuit. The Merit Systems Protection Board
neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.