William B. Jolley v. Department of Housing and Urban Development

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WILLIAM B. JOLLEY, DOCKET NUMBERS

Appellant, SF-0752-13-0583-I-1

SF-0752-14-0286-I-1

v.

DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT, DATE: June 16, 2015

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

William B. Jolley, Brunswick, Georgia, pro se.

Jo Ann Riggs, Seattle, Washington, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

dismissed his alleged involuntary retirement appeals for lack of jurisdiction.

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

1

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

2

erroneous 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 these appeals, 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).

¶2 The appellant, whose most recent period of employment with the agency

commenced in 2004, has, over the years, filed numerous appeals alleging

violations of the Uniformed Services Employment and Reemployment Rights Act

(USERRA). In 2010, he retired from his Director position at the agency’s Boise

Field Office, claiming that he did so involuntarily. He unsuccessfully challenged

the action by filing suit in the U.S. District Court for the Southern District of

Georgia under the Age Discrimination in Employment Act (ADEA). 2 See Jolley

v. Department of Housing & Urban Development, MSPB Docket No. SF-0752-13-

0583-I-1, Initial Appeal File (IAF 13-0583), Tab 11 at 37-47. His writ of

mandamus was denied on appeal. Id. at 56-58. He also filed a USERRA appeal

against the Department of Justice (DOJ), arguing that that agency should be

considered his “employer” because, having provided direction and advice to the

agency in connection with his ADEA litigation, DOJ had control over his

USERRA appeals and therefore the adverse employment actions taken by the

agency. The administrative judge dismissed the appeal for lack of jurisdiction,

2

The appellant was 79 years old when he retired.

3

Jolley v. Department of Justice, MSPB Docket No. SF-4324-14-0405-I-1, Initial

Decision (Apr. 11, 2014), the Board denied the appellant’s petition for review of

that decision, Jolley v. Department of Justice, MSPB Docket No. SF-4324-14-

0405-I-1, Final Order (Aug. 28, 2014), and the U.S. Court of Appeals for the

Federal Circuit affirmed the Board’s decision, Jolley v. Department of Justice,

No. 2014-3202, 2015 WL 527485 (Fed. Cir. Feb. 10, 2015).

¶3 While those matters were pending, the appellant filed a new appeal, again

arguing that his retirement was involuntary, but based on 38 U.S.C. § 4311(b)(1),

which prohibits discrimination or retaliation because a person has taken an action

to enforce a protection afforded under 38 U.S.C. chapter 43. IAF 13-0583, Tab 1.

The appellant contended that the agency had committed a constructive adverse

action, tantamount to a removal, based on his participation in “veteran personnel

appeals by . . . himself and . . . others.” Id. at 5. He specifically declined a

hearing. Id. at 2.

¶4 The administrative judge issued an order advising the appellant that

retirement actions are presumed to be voluntary and not appealable to the Board

and that his appeal would be dismissed unless he amended it to allege that his

retirement was the result of duress, coercion, or misrepresentation by the agency.

Id., Tab 2. In response, the appellant argued that, in 2007, the agency had

directed his reassignment from Jacksonville, Florida to Boise, Idaho, that he was

not allowed to choose other “more geographically advantageous” positions or to

“swap” positions with another Director, and that he ultimately was forced to retire

“to be closer to family and personal interests.” Id., Tabs 5, 9-10. The agency

urged that the appeal be dismissed for lack of jurisdiction on the basis that the

appellant had the choice to continue working in Boise or to retire, and that the

fact that he found neither option attractive did not render his decision to retire

involuntary. Id., Tab 11 at 12. The agency further argued that the appellant

failed to show that his protected activity of filing USERRA appeals or assisting

4

others in so doing had any bearing on the voluntariness of his retirement. Id.

at 13-14.

¶5 While this appeal was pending, the appellant filed another appeal in which

he again argued that his retirement was involuntary, this time claiming that it was

in retaliation for his protected whistleblowing disclosures. Jolley v. Department

of Housing & Urban Development, MSPB Docket No. SF-0752-14-0286-I-1,

Initial Appeal File (IAF 14-0286), Tab 1. According to the appellant, he

disclosed a violation of law, rule, or regulation, and gross mismanagement by the

agency in connection with his directed reassignment, and various irregularities in

DOJ’s Assistant U.S. Attorney’s representation of the agency in his ADEA

litigation. Id. at 5, 7-10. Again, the appellant specifically declined a hearing. Id.

at 2.

¶6 As he did in the earlier appeal, the administrative judge issued an order

advising the appellant that retirements are presumed to be voluntary and that his

appeal would be dismissed unless he amended it to allege that he retired because

of duress, coercion, or misrepresentation by the agency. Id., Tab 5. In response,

the appellant argued that, based on the agency’s actions, he had no realistic

alternative but to retire. Id., Tab 8. The agency urged that the appeal be

dismissed for lack of jurisdiction on the basis that the appellant could have

remained in his position in Boise, and that his decision, after 2 years, to retire did

not render his retirement involuntary. Id., Tab 10 at 8-9. The agency further

argued that the appellant’s whistleblower allegations lacked merit because, to the

extent, he made any protected disclosures, he did so only after he had retired. Id.

at 9-12.

¶7 Having determined that the two appeals concerned similar issues, the

administrative judge joined them for adjudicatory purposes, id., Tab 16, Initial

5

Decision (ID) at 1 n.1, and dismissed both appeals for lack of jurisdiction, 3 ID

at 3, 12. The administrative judge found no evidence that the appellant’s directed

reassignment and the agency’s decision not to transfer him as a part of his

requested “swap” were in any way motivated by a desire to coerce his retirement.

ID at 8. The administrative judge further found that the appellant had a choice to

continue working in Boise or to retire, and that the fact that he did not desire

either option did not render his decision to retire involuntary. ID at 8-9. Finally,

the administrative judge found that the appellant’s discrimination and retaliation

claims did not support a finding that his retirement was involuntary. ID at 9-12.

¶8 The appellant has filed a petition for review, 4 Petition for Review (PFR)

File, Tabs 1, 3, to which the agency has responded in opposition, id., Tab 4.

¶9 On review, the appellant argues that the Board has jurisdiction over his

appeal under USERRA. PFR File, Tab 1 at 7. However, at the outset, the

appellant styled his appeal as a forced retirement, a constructive adverse action,

tantamount to a removal, and the product of coercion by the agency, IAF

13-0583, Tab 1, and, during adjudication, he continued to focus on the

involuntariness of his decision to retire, id., Tabs 5, 13. The administrative judge

properly advised the appellant of the means by which he could establish the

Board’s jurisdiction over his appeal as a claimed involuntary action. 5 Id., Tab 2;

3

Based on this disposition, the administrative judge d id not address the timeliness of

the appellant’s constructive removal appeals. ID at 3 n.3.

4

On review, the appellant has submitted a Motion Regarding Appeals Settlement

Program in which he suggests that it might be “economical of Court [Court of Appeals

for the Federal Circuit], MSPB, and Federal resources” to consider a global settlement

that includes his earlier USERRA appeal against DOJ which is, according to the

appellant, now before the court on his Informal Petition for Panel Rehearing. PFR File,

Tab 3. Based on the different parties invo lved and the varying stages of processing of

these matters, the appellant’s motion is DENIED.

5

Although the appellant argues on review that the agency provided no evidence to

support its position that his retirement was voluntary, PFR File, Tab 1 at 21, it is well

established that an appellant bears the burden of proof as to issues of jurisdiction,

5 C.F.R. § 1201.56(a)(2)(i).

6

Searcy v. Department of Commerce, 114 M.S.P.R. 281, ¶ 12 (2010) (an

employee-initiated action is presumed to be voluntary, and thus outside the

Board’s jurisdiction, unless the employee presents sufficient evidence to establish

that the action was obtained through duress or coercion or show that a reasonable

person would have been misled by the agency). Although the appellant has set

forth, below and on review, a series of actions by the agency which he claims led

to his retirement, see, e.g., IAF 13-0583, Tab 5; PFR File, Tab 1 at 9-18, he has

not shown error in the administrative judge’s finding that the agency’s decisions

to direct the appellant’s reassignment and to disallow his request for a “swap” of

positions, actions he claims that forced him to retire, were motivated by a desire

to coerce his retirement, ID at 7-9; see Staats v. U.S. Postal Service, 99 F.3d

1120, 1124 (Fed. Cir. 1996) (no coercion where employee decides to retire

because he does not want to accept a new assignment, even if doing so makes

continuation in the job so unpleasant that the employee feels he has no other

realistic option but to leave).

¶10 Regarding the appellant’s claim that he retired because of retaliation by the

agency for having filed USERRA appeals and assisted others in doing so, the

administrative judge properly stated that that claim could only be considered as it

related to the issue of voluntariness. ID at 6; see Hosozawa v. Department of

Veterans Affairs, 113 M.S.P.R. 110, ¶ 5 (2010). Yet, in analyzing this claim and

rejecting it, the administrative judge found that the appellant failed to show that

his protected activity was a motivating factor in the agency’s denial of his “swap”

request which, he claimed, led him to retire. ID at 10. To the extent the

administrative judge found that the appellant did not prevail in his claim of

retaliation for protected USERRA activity, that analysis went beyond the

administrative judge’s own correct statement of what analysis is appropriate

under the circumstances. The appellant was not required to establish his claim

under the USERRA statute; rather, he was required to show that the agency

retaliated against him for USERRA activity, and that that retaliation had a bearing

7

on the voluntariness of his retirement. Axsom v. Department of Veterans Affairs,

110 M.S.P.R. 605, ¶ 12 (2009). However, because the appellant failed to show

how his retaliation claim related to the voluntariness of his decision to retire, the

administrative judge’s error did not prejudice the appellant’s substantive rights

and provides no basis for reversal of an initial decision. See Panter v.

Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).

¶11 The appellant loosely suggests that the administrative judge failed to

address the credibility of a piece of evidence. PFR File, Tab 1 at 31. That piece

of evidence is a signed, sworn declaration by the then-Acting Assistant Deputy

Secretary for Field Policy and Management who denied the appellant’s request

for a job “swap.” IAF 13-0583, Tab 11 at 60-64. Therein, she stated that, until

the appeal was filed, she was unaware of the appellant’s previous USERRA

claims or of any assistance he may have provided to others regarding their

USERRA rights. Id. at 64. The record reflects that the appellant filed a motion

in limine, asking the administrative judge to determine the declaration to be

“inadequate” on the basis that the appellant had once rejected the declarant’s

amorous advance. Id., Tab 14. The administrative judge denied the motion,

deeming the matter to be one of credibility and weight of the evidence and

therefore not appropriate to such a motion. Id., Tab 26. In the initial decision,

the administrative judge relied upon the declaration to find that the appellant did

not establish that the acts leading up to his retirement rendered his decision

involuntary because of his USERRA involvement, noting that he (the

administrative judge) had previously denied the appellant’s motion in limine. ID

at 10, n.5. As to the administrative judge’s crediting the declaration on this issue

over the appellant’s contrary “bare assertion,” we discern no reason to reweigh

the evidence or substitute our assessment of the record evidence for that of the

administrative judge. ID at 10; see Crosby v. U.S. Postal Service, 74 M.S.P.R.

98, 105-06 (1997).

8

¶12 The appellant alleges on review that the administrative judge denied him

due process by ruling on several motions without allowing him an opportunity to

object. PFR File, Tab 1 at 29-30. In the initial decision, the administrative judge

denied the appellant’s motion to add DOJ as a party to these appeals, his motion

to compel the agency to produce all documentation regarding that issue, and his

“Motion for Judgment As A Matter of Law.” ID at 11 n.6. Although the

appellant refers to the Board’s Judges’ Handbook to support his claim, the

Handbook itself provides that it is guidance, that its procedures are not

mandatory, and that adjudicatory error is not established by a failure to comply

with any of its provisions. Judges’ Handbook, U.S. Merit Systems Protection

Board, at 1 (Oct. 2007). In any event, the administrative judge explained the

basis for his rulings, ID at 11 n.6., and the appellant has not, on review, provided

a specific objection to any of them.

¶13 The appellant alleges that the administrative judge “did not notify anyone of

any ‘close of record.’” PFR File, Tab 1 at 30. On the contrary, the evidence

reflects that, in the first appeal, the administrative judge issued an order on

September 13, 2013, providing that the record would close on October 9, 2013,

IAF 13-0583, Tab 16, and that, in a subsequent order, he extended the

close-of-record date to October 25, 2013, due to the government shutdown. Id.,

Tab 28. Similarly, in the second appeal, the administrative judge advised the

parties in a February 5, 2015 order that the record would close within 20 calendar

days, IAF 14-0286, Tab 5, or on February 25, 2015. The appellant has not shown

any error on the part of the administrative judge regarding the close of the record.

5 C.F.R. § 1201.58.

¶14 Finally, the appellant argues that the administrative judge did not timely

decide his appeals. PFR File, Tab 1 at 27. Given that the administrative judge

had access to all of the record evidence, we find that the appellant has not shown

that any delay constituted adjudicatory error that prejudiced his substantive

rights. See Panter, 22 M.S.P.R. at 282.

9

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

IN MSPB DOCKET NO. SF-0752-13-0583-I-1

You have the right to request review of this final decision by the United

States Court of Appeals for the Federal Circuit. You must submit your request to

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

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 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 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.

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 information regarding pro bono

representation for Merit Systems Protection Board appellants before the Federal

Circuit. The Merit Systems Protection Board neither endorses the services

10

provided by any attorney nor warrants that any attorney will accept representation

in a given case.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

IN MSPB DOCKET NO. SF-0752-14-0286-I-1

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

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.

11

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 your appeal to

the 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

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.