Jeffrey K. Jacobs v. United States Postal Service

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JEFFREY K. JACOBS, DOCKET NUMBER

Appellant, PH-0752-14-0736-I-1

v.

UNITED STATES POSTAL SERVICE, DATE: July 10, 2015

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Stanley C. Mason, Joppa, Maryland, for the appellant.

Jasmin A. Dabney, Esquire, Landover, Maryland, 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 the removal appeal 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 erroneous

interpretation of statute or regulation or the erroneous application of the law to

1

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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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).

¶2 Effective June 3, 2013, the appellant was removed from the position of Mail

Handler based on attendance-related charges. He appealed the agency’s action,

and, during proceedings before the Board, the parties entered into a last-chance

settlement agreement (LCA) that provided that the agency would hold the

appellant’s removal in abeyance for 1 year during which time the appellant would

“follow all typical and normal rules and regulations regarding employee

attendance, safety, conduct and performance.” Initial Appeal File (IAF), Tab 1.

The LCA further provided that “[u]nacceptable attendance” during the 1-year

term of the LCA “shall” result in reimposition of removal. Id. Unacceptable

attendance was defined as the “violation of any or all of the Agency’s policies

regarding attendance.” Id. The LCA also provided that the appellant waived any

right to appeal to the Board any agency action based on his failure to meet any

provision of the LCA. Id. The administrative judge found that the agreement was

voluntarily entered into by the parties, understood by the parties, and lawful on

its face, and she entered the LCA into the Board’s record for enforcement

purposes.

¶3 By letter dated May 23, 2014, the agency informed the appellant that he was

being removed for violating the LCA. Id. Specifically, the agency charged that

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the appellant violated the LCA by the following: 2 hours of unauthorized absence

from overtime on March 22, 2014; 8 hours of emergency annual leave on

March 17, 2014; 8 hours of unscheduled leave without pay (LWOP) on March 4,

2014; 8 hours of unscheduled annual leave in lieu of sick leave on February 21,

2014; 8 hours of unscheduled sick leave on February 20, 2014; 8 hours of

unscheduled annual leave in lieu of sick leave on February 19, 2014; 4 hours of

unscheduled sick leave and 4 hours of LWOP on December 28, 2013; and 16

hours of unscheduled LWOP on December 26-27, 2013. Id. The appellant

appealed the agency’s action. Id.

¶4 The administrative judge advised the appellant of the jurisdictional

requirements regarding an appeal of an adverse action based on violating an LCA

containing a waiver of appeal rights. IAF, Tab 2. She found that his facility had

made it known to employees that four or more occurrences of unscheduled

absences may result in disciplinary action being taken. IAF, Tab 21, Initial

Decision (ID) at 7. She determined that all of the appellant’s absences were

unscheduled and that he failed to support his assertions that any of his absences

were due to inclement weather or were in violation of his entitlements under the

Family and Medical Leave Act of 1993. ID at 4-6. She also found that the

appellant failed to support his assertion that he had worked the overtime that he

was charged with failing to work. ID at 5. She found, moreover, that the

appellant failed to make a nonfrivolous allegation of Board jurisdiction and did

not offer any evidence that the appeal rights waiver provision contained in the

LCA was not enforceable. ID at 7-8. She thus dismissed the appeal for lack of

jurisdiction. ID at 8.

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¶5 In his petition for review, the appellant asserts that the administrative judge

abused her discretion in denying his motion to compel discovery. 2 Petition for

Review File, Tab 1.

¶6 Discovery is the process by which a party may obtain relevant information

from another party to an appeal. 5 C.F.R. § 1201.72(a). “Relevant information

includes information that appears reasonably calculated to lead to the discovery

of admissible evidence.” Id. What constitutes relevant information in discovery

is to be liberally interpreted and uncertainty should be resolved in favor of the

movant absent any undue delay or hardship caused by such request. Ryan v.

Department of the Air Force, 113 M.S.P.R. 27, ¶ 15 (2009). “The scope of

discovery is broad: ‘[d]iscovery covers any nonprivileged matter that is relevant

to the issues involved in the appeal. . . .’” Baird v. Department of the

Army, 517 F.3d 1345, 1351 (Fed. Cir. 2008) (quoting 5 C.F.R. § 1201.72(b)). An

appellant may request discovery of relevant materials to help him meet his burden

of establishing the Board’s jurisdiction. See, e.g., Parker v. Department of

Housing & Urban Development, 106 M.S.P.R. 329, ¶ 9 (2007). The Board will

not reverse an administrative judge’s rulings on discovery matters absent an

abuse of discretion. Wagner v. Environmental Protection Agency, 54 M.S.P.R.

447, 452 (1992), aff’d, 996 F.2d 1236 (Fed. Cir. 1993) (Table).

¶7 The agency filed a motion to stay discovery and to dismiss the appeal for

lack of jurisdiction. IAF, Tab 9. The appellant opposed the agency’s motion,

and attached a copy of his first discovery request to his submission. Id. The

administrative judge denied the agency’s motion to stay discovery and, consistent

with the appellant’s discovery request, ordered the agency to provide the

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The appellant also argues that the administrative judge erred by suspending the appeal

for a short period of time without first informing the appellant. Id. Even if we were to

assume that the administrative judge’s action constituted a procedural error, it would be

of no legal consequence unless it is shown to have adversely affected a party’s

substantive rights. Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981).

No such showing was made here.

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following for the period from December 1, 2013, through May 23, 2014 (the

period during which the agency charged that the appellant had unscheduled

absences in violation of the LCA): copies of all pre-disciplinary interviews given

to employees at the appellant’s facility for attendance-related reasons; a copy of

the overtime desired list (ODL) for Mail Handlers on the appellant’s shift at his

facility; copies of forms for all Mail Handlers at the appellant’s facility who were

excused from working overtime; a list of Mail Handlers at the appellant’s facility

who were on the ODL; and a copy of the Postal Service Form 3971 for the date

that the agency charged the appellant with unauthorized absence from overtime.

IAF, Tab 10.

¶8 When the agency failed to timely respond to the administrative judge’s

order, the appellant filed a motion for sanctions. IAF, Tab 12. In response, the

agency filed a motion for enlargement of time to respond to the discovery request,

asserting that it filed the motion after the appellant refused to consent for more

time to respond to the administrative judge’s order regarding discovery. IAF, Tab

13. The administrative judge did not rule on the agency’s motion, and the agency

filed an additional motion to dismiss for lack of jurisdiction, attaching its

response to the administrative judge’s order regarding discovery. IAF, Tab 15.

The appellant opposed the motion to dismiss; however, in his opposition, he

admitted that the agency had responded to his discovery request. IAF, Tab 16.

Given this sequence of events, we find that the administrative judge did not abuse

her discretion regarding the appellant’s first discovery request. See Wagner,

54 M.S.P.R. at 452.

¶9 The appellant then filed a second discovery request. IAF, Tab 17 at 12. He

requested copies of all LCAs entered into between the agency and any employees

also serving on the appellant’s tour at his facility. Id. He also requested the

clock rings for the employees abiding by these LCAs, and copies of any

subsequent disciplinary actions issued to these same employees. Id. He filed a

motion to compel, alleging that the agency had failed to respond to his second

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discovery request. Id. at 4. In the initial decision, the administrative judge

denied the appellant’s motion to compel for his failure to comply with all

appropriate regulations and as not reasonably calculated to lead to the discovery

of admissible evidence. ID at 8 n.2.

¶10 We find that the administrative judge acted within her discretion in denying

the appellant’s motion to compel a response to his second round of discovery.

The appellant provided no statement that he had discussed or attempted to discuss

the anticipated motion to compel with the agency’s representative and made a

good faith effort to resolve the discovery dispute and to narrow the areas of

disagreement, as required by 5 C.F.R. § 1201.73(c)(1)(iii). Thus, we find that he

failed to comply with all relevant regulations. Further, we find that the

appellant’s second discovery requests were not reasonably calculated to discover

evidence relevant to the central issue in this appeal; namely whether he complied

with the LCA as he asserts. See 5 C.F.R. § 1201.72(b); see, e.g., DIRECTV, Inc.

v. Puccinelli, 224 F.R.D. 677, 686 (D. Kan. 2004) (recognizing that some courts

have held a party must make a heightened showing of relevance in order to

discover information related to settlement agreements).

¶11 Additionally, under the circumstances of this case, we find that the

administrative judge properly dismissed the appeal for lack of jurisdiction. The

Board has upheld LCAs executed by the parties where they are freely made, fair,

the subject of mutual consideration, and are the result of the appellant’s knowing

and intentional waiver of his right to appeal the agency’s action to the Board. 3

See Gonzales v. Department of the Air Force, 38 M.S.P.R. 162, 165 (1988). The

Board lacks jurisdiction over an action taken pursuant to an LCA in which the

appellant waives his Board appeal rights. See Willis v. Department of

Defense, 105 M.S.P.R. 466, ¶ 17 (2007). To establish that the waiver of appeal

rights in an LCA is unenforceable, the appellant must show that: (1) he complied

3

The appellant does not dispute that these conditions are met here.

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with the LCA; (2) the agency materially breached the LCA or acted in bad faith;

(3) he did not voluntarily enter into the LCA; or (4) the LCA resulted from fraud

or mutual mistake. Willis, 105 M.S.P.R. 466, ¶ 17. We agree with the

administrative judge that the appellant has failed to make a nonfrivolous

allegation to support his assertions that he complied with the LCA and that the

agency breached the LCA. She therefore appropriately dismissed the appeal for

lack of jurisdiction without a jurisdictional hearing. See Hamiter v. U.S. Postal

Service, 96 M.S.P.R. 511, ¶ 12 (2004).

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. 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.

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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

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.