The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KENNETH L. GRAY, DOCKET NUMBER
Appellant, DE-0752-14-0450-I-1
v.
DEPARTMENT OF THE INTERIOR, DATE: September 22, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kenneth L. Gray, Sandy, Utah, pro se.
Grant L. Vaughn, Esquire, Salt Lake City, Utah, 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 involuntary resignation appeal for lack of jurisdiction. For the
reasons set forth below, we GRANT the appellant’s petition for review, VACATE
the initial decision, and instead find that the appeal is barred by the doctrine of
laches.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 On March 3, 1974, the agency appointed the appellant to a temporary
position as a Sociologist, GS-0184-07, with a not-to-exceed date of July 3, 1974.
Initial Appeal File (IAF), Tab 12 at 112. Effective July 7, 1974, the agency
placed the appellant in a career-conditional appointment in the competitive
service as a Sociologist, GS-0184-09. 2 Id. at 100. The appointment Standard
Form 50 (SF-50), dated July 5, 1974, indicated that the appellant was subject to a
1-year probationary period commencing March 7, 1974. Id. On January 22,
1975, the agency issued a corrected SF-50 indicating that the appellant’s
probationary period began on July 7, 1974, instead of March 7, 1974. Id. at 94.
Effective May 30, 1975, the appellant resigned. Id. at 73-74, 76. The SF-50
documenting the resignation indicated that he resigned during his probationary
period due to “policy disagreements.” Id. at 76.
¶3 On July 10, 2014, the Denver Field Office received the appellant’s
involuntary resignation appeal and request for a hearing. IAF, Tab 1. On appeal,
the appellant alleged that, in 1975, his supervisor forced him to resign or to face
termination. IAF, Tab 1 at 7. He further alleged that his supervisor falsified an
SF-50 to reflect that he had not completed his probationary period and falsely
informed him that he had no appeal rights. Id. at 7-9. He also appeared to argue
that the agency violated the appeal rights notice requirements of 5 C.F.R.
§ 1201.21 to prevent him from filing a timely appeal. 3 Id. at 3. The
administrative judge advised the appellant of his burden of proof to establish
2
The Standard Form 50 documenting the appellant’s career-conditional appointment
lists the occupational series as GS-01840. IAF, Tab 12 at 100. Because the
occupational series for a sociologist is 0184, the extra 0 at the end of the digits is
presumably a typographical error.
3
When the appellant resigned, 5 C.F.R. § 1201.21 was not yet in effect. Rather,
5 C.F.R. § 752.202(f) (1975) provided that, where an employee was subject to a covered
adverse action, the decision notice must inform the employee, inter alia, of his right to
appeal to the appropriate office of the Civil Service Commission, of the time limit for
appealing, and where he may obtain information on how to pursue an appeal.
3
Board jurisdiction over an alleged involuntary resignation, issued orders on
timeliness and the doctrine of laches, and afforded the parties an opportunity to
respond. IAF, Tabs 2-3, 14. Without holding the requested hearing, the
administrative judge dismissed the appeal for lack of jurisdiction, finding that,
under the regulations of the U.S. Civil Service Commission 4 pertaining to the
termination of employees in 1975, the appellant was not a “covered employee”
with appeal rights because: (1) on the date of his resignation, he was still serving
a 1-year probationary period under 5 C.F.R. § 315.801 (1975); and (2) he had not
completed 1 year of “current continuous employment” under 5 C.F.R.
§ 752.201(a)(1)(i) (1975) as there was a 3-day break in service prior to his July 7,
1974 career-conditional competitive service appointment. IAF, Tab 17, Initial
Decision (ID).
¶4 The appellant has filed a timely petition for review, wherein he argues that
the administrative judge erred by finding that he was not a “covered employee” in
1975. Petition for Review (PFR) File, Tab 1 at 1-9. The agency has filed a
response in opposition to the appellant’s petition for review, 5 and the appellant
has filed a reply to the agency’s opposition. PFR File, Tabs 3, 5.
The appellant was a “covered employee” with appeal rights to the Civil Service
Commission when he resigned in May 1975 because he completed his
probationary period as of March 6, 1975.
¶5 On review, the appellant argues that the administrative judge erred by
finding that he was not a “covered employee” in 1975 because he had completed
4
The Civil Service Commission was, in the context of employee appeals from a
termination, the predecessor agency to the Board. See Daisy v. U.S. Postal Service,
68 M.S.P.R. 15, 17 (1995).
5
Although the agency styled its submission as a “cross petition for review,” we treat it
as a response to the appellant’s petition for review because the agency does not
challenge the initial decision. See PFR File, Tab 3. The agency asserts that it “has no
interest in challenging [the administrative judge’s] findings and ruling,” but that “there
are other sound bases to dismiss the appeal”; specifically, the doctrine of laches, the
presumption that the appellant’s resignation was voluntary, and/or the “doctrine of
absurdity.” Id.
4
his probationary period by the time of his resignation, and he did not have a break
in service between his temporary and career-conditional appointments. PFR File,
Tab 1 at 1-9. The agency does not address this argument in its response to the
appellant’s petition for review. See PFR File, Tab 3.
¶6 Under the regulations in place when the appellant resigned, prior service
under a temporary limited appointment could count toward completion of an
individual’s probationary period if it was: (1) rendered immediately prior to the
career or career-conditional appointment or conversion; (2) in the same line of
work; (3) in the same agency; and (4) with no more than one break in service of
less than 30 days. 6 See Long v. Department of the Navy, 32 M.S.P.R. 438, 441
(1987) (relying on Federal Personnel Manual, chapter 315, Appendix A-3(c)
(Apr. 27, 1982)); Angell v. Department of the Navy, 4 M.S.P.R. 266, 267-68
(1980). Here, the appellant was appointed to a temporary position as a
Sociologist from March 3, 1974, to July 3, 1974. IAF, Tab 12 at 112. Effective
July 7, 1974, the agency placed the appellant in a career-conditional appointment
in the competitive service as a Sociologist. Id. at 100. Thus, the appellant’s
service in the temporary appointment should have been counted towards the
completion of his probationary period because it was rendered immediately
preceding the career-conditional appointment, in the same line of work, with the
same agency, and only 3 days elapsed between the end of the temporary
appointment and the beginning of the career-conditional appointment. As such,
we find that the appellant completed his probationary period on or about March
6, 1975, and that, when he resigned, effective May 30, 1975, he was an
“employee” under 5 C.F.R. § 752.202(a)(1)(i) (1975) with adverse action appeal
rights to the Civil Service Commission.
6
The appellant provided a printout of chapter S-2 of the July 29, 1960 Federal
Personnel Manual (FPM), which sets forth the same criteria for determining when prior
service may be counted towards completion of an employee’s probationary period. See
PFR File, Tab 1 at 17-19.
5
¶7 Although the administrative judge incorrectly found that the appellant was
not a “covered employee” at the time of his alleged involuntary resignation, we
find that the appeal is barred by the doctrine of laches for the reasons set forth
below.
The appellant’s appeal is barred by the doctrine of laches.
¶8 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). The party asserting laches must
prove both unreasonable delay and prejudice. Id. Under laches, the mere fact
that time has elapsed from the date a cause of action first accrued is not sufficient
to bar suit; rather, the delay must be unreasonable and unexcused. Cornetta v.
United States, 851 F.2d 1372, 1377-78 (Fed. Cir. 1988). As to prejudice, there
are two types that may stem from delay in filing suit. First, “evidentiary” or
“defense” prejudice may arise by reason of a defendant’s inability to present a
full and fair defense on the merits due to the loss of records, the death of a
witness, or the unreliability of memories of long past events, thereby undermining
the Board’s ability to judge the facts. See A.C. Aukerman Co. v. R.L. Chaides
Construction Co., 960 F.2d 1020, 1033 (Fed. Cir. 1992). The second type,
economic prejudice, centers on consequences, primarily monetary, to the
government should the claimant prevail. Cornetta, 851 F.2d at 1378.
¶9 In this case, the agency argues that the appellant’s 40-year delay is
unreasonable on its face and that he had access to his employment records when
he separated in 1975 or, at the latest, in August 1979, when he received a
transcript/statement of his Federal employment from the National Personnel
Records Center (NPRC). PFR File, Tab 3 at 5; see IAF, Tab 12 at 62-66. Thus,
the agency concludes, the appellant could have discovered the alleged error he is
now appealing decades later. PFR File, Tab 3 at 5. Further, the agency argues
that it has been “seriously prejudiced” by the appellant’s delay, due to the
unavailability of witnesses and the loss of potentially relevant documents after
6
four decades. Id. at 5-6. The appellant counters that laches does not bar this
appeal because the agency is responsible for the delay and there is no prejudice to
the agency because the available documents—namely, the appointment and
resignation SF-50s—are sufficient to prove that the appellant was denied his
constitutional right to due process. PFR File, Tab 5 at 9-12, 16, 18. The
appellant also refutes the agency’s contention that, as of 1979, he had all of the
documentation necessary to make the arguments he now makes because the
employment transcript shows only the appellant’s dates of employment and does
not contain any details about his probationary status. Id. at 7.
¶10 Contrary to the appellant’s assertion, the SF-50 showing that he still was
serving in his probationary period at the time of his resignation does not establish
a due process violation. First, an SF-50 is merely a record of a personnel action
usually generated after the action has been taken. See Scott v. Department of the
Air Force, 113 M.S.P.R. 434, ¶ 8 (2010). The fact that it contains a mistake does
not tend to show, much less establish, that the agency violated the appellant’s due
process rights. See id. Moreover, even if the resignation SF-50 had correctly
reflected that he had completed his probationary period, and the agency otherwise
treated him as a “covered employee,” he would not have been entitled to the
regulatory notice procedures or to appeal his resignation to the Civil Service
Commission because a resignation is not a covered adverse action. See 5 C.F.R.
§§ 752.201(b), 752.202-752.203 (1975). Rather, an employee-initiated action,
such as a resignation, is presumed to be voluntary, and thus not a covered adverse
action, unless the employee presents sufficient evidence to establish that the
action was obtained through duress or coercion or to show that a reasonable
person would have been misled by the agency. Searcy v. Department of
Commerce, 114 M.S.P.R. 281, ¶ 12 (2010). Accordingly, to show that the
appellant’s due process rights to notice and an appeal were violated, he must first
show that the agency’s actions vitiated the voluntariness of his choice. See id. A
ministerial error on an SF-50 does not meet this burden.
7
¶11 Rather, the touchstone of the voluntariness analysis is whether, considering
the totality of the circumstances, factors operated on the employee’s
decision-making process that deprived him of freedom of choice. Id. The
appellant has alleged that his resignation was involuntary because, in 1975, his
supervisor told him that he was hiring a replacement and that the appellant could
“resign immediately or be fired for no cause with no appeal rights.” IAF, Tab 4
at 1-2. Although he purportedly told his supervisor that he did not want to resign
or be fired, the appellant alleged that his supervisor “forced” him to resign. Id. at
2. He further alleged that his resignation was involuntary because the agency
“imposed the terms of the resignation,” he had “no realistic alternative but to
resign,” and “[t]he Agency’s falsification of [his] probationary status had the
intended effect to force [him] to quit.” Id. at 4. The agency, however, responds
that it cannot defend itself against these allegations because there is “no one”
presently at the agency who has “any knowledge” of the appellant’s former
employment, and, even if the agency could find a former supervisor or personnel
specialist who was present at the agency during the appellant’s employment, there
is no reasonable assurance that the individual would be able to remember any of
the relevant details from 40 years ago. PFR File, Tab 3 at 6. Further, the agency
asserts that, due to the 40-year delay, it is unable to determine whether there were
any relevant records that may have since been destroyed, such as notes written by
the former supervisor or personnel specialists. Id.
¶12 We find that the 40-year delay is unreasonable and has materially
prejudiced the agency. Given the significant passage of time and the
unavailability of witnesses and relevant documents, the agency is unable to
defend itself against the appellant’s allegations that his former supervisor’s
actions rendered his resignation involuntary. See Johnson v. U.S. Postal
Service, 121 M.S.P.R. 101, ¶ 9 (2014) (citing Brown v. Department of the Air
Force, 88 M.S.P.R. 22, ¶¶ 8-9 (2001) (the loss of documents, retirement of
witnesses, and faded recollections established that the agency suffered prejudice
8
due to the appellant’s 6-year delay)). We agree with the appellant that the
transcript of Federal employment does not contain the same information as the
SF-50s about his probationary status, but we find that it does show that he had the
ability to request his personnel records from the NPRC and could have requested
his complete personnel file at any time over the past 40 years, as he did in 2014.
Although the incorrect information on the SF-50 (and, if true, any misinformation
given by the former supervisor) rendered the appellant’s ability to exercise his
appeal rights more difficult, his 40-year delay is unreasonable and inexcusable,
especially in light of the overwhelming prejudice to the agency, which has no way
to defend itself against the appellant’s allegations. Thus, we find that this appeal
is 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. 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.
9
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 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.