Gary Thurman v. United States Postal Service

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2022 MSPB 21

Docket No. AT-0752-17-0162-I-1

Gary L. Thurman,

Appellant,

v.

United States Postal Service,

Agency.

July 12, 2022

Harvey G. Orr, Riverdale, Georgia, for the appellant.

Candace D. Embry, Landover, Maryland, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

OPINION AND ORDER

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

affirmed his removal based on a single charge of improper condu ct. For the

reasons discussed below, we DENY the petition for review and AFFIRM the

initial decision. We also take this opportunity to revisit the Board’s decision in

Wynn v. U.S. Postal Service, 115 M.S.P.R. 146 (2010), and similar cases, to

clarify the factors the Board will consider in determining whether a previously

raised affirmative defense has been effectively waived or abandoned by the

appellant.

2

BACKGROUND

¶2 The agency removed the appellant from his position as a PS -4 Laborer

Custodial based on a single charge of “improper conduct” following an

investigation conducted by the U.S. Postal Inspection Service into two workplace

incidents. Initial Appeal File (IAF), Tab 4 at 15-20, 27-30, 49-73. According to

the agency’s charge, the appellant violated the agency’s Employee and Labor

Relations Manual’s prohibition against violent and/or threatening behavior when

he told a coworker that if his vehicle was towed from the agency parking lot

again, he “would come into work and end up shooting someone out of revenge

and anger.” Id. at 27. The agency also alleged that the appellant told the same

coworker that he was having law enforcement follow her because of a verbal

dispute the two had a year earlier and that the “only reason [he] didn’t have

anything ‘bad’ happen to her was because she has children.” Id. According to

the agency, the following day the appellant told the same coworker that he was

having law enforcement follow and harass a supervisor’s son in retaliation for his

vehicle being towed from the agency parking lot and that he would make sure t hat

the supervisor’s son was “booked” for “Driving Under the Influence . . . and other

traffic violations.” Id.

¶3 The appellant filed a Board appeal in which he asserted, among other

things, that the evidence did not show that he engaged in the alleged misconduct.

IAF, Tab 1 at 2. He also indicated on his appeal form that he was raising the

affirmative defense of retaliation for prior protected activity, including his filing

of a Board appeal challenging his placement on an emergency suspension for

essentially the same conduct that formed the basis of the removal action . 1 IAF,

1

The administrative judge dismissed the appellant ’s previous appeal as settled. That

decision became the final decision of the Board when neither party filed a petition for

review. Thurman v. U.S. Postal Service, MSPB Docket No. AT-0752-16-0601-I-1,

Initial Decision (Sept. 6, 2016).

3

Tab 1 at 2, Tab 4 at 104; Thurman v. U.S. Postal Service, MSPB Docket No.

AT-0752-16-0601-I-1, Initial Decision (Sept. 6, 2016).

¶4 After holding the appellant’s requested hearing, the administrative judge

found that the agency proved the improper conduct charge by preponderant

evidence. IAF, Tab 14, Initial Decision (ID) at 3-7. The administrative judge

also found that the agency established a nexus between the misconduct and the

efficiency of the service, and that the penalty of removal was reasonable. ID

at 7-8. He affirmed the removal action. ID at 9.

¶5 The appellant has filed a petition for review in which he argues, among

other things, that he did not engage in the alleged misconduct, that the

administrative judge erred in his credibility determinations, and that the employee

to whom he allegedly made the statements possessed poor character, had

attendance deficiencies, had made inconsistent statements about the alleged

incidents, had been untruthful in the past, and committed perjury in her hearing

testimony. Petition for Review (PFR) File, Tab 1 at 1-6. He also argues that the

agency violated title VII of the Civil Rights Act of 1964 when it towed his

vehicle but did not tow the vehicles of other employees and that the agency used

his filing of grievances and discrimination complaints to show that he made

threats, but that his past filings show that he resolved his problems through means

other than threats. 2 Id. at 7-8. The agency has filed a response to the petition for

review. PFR File, Tab 3.

2

The appellant also argues on review that it is unclear if his parking in an unauthorized

parking spot was a specification of misconduct. PFR File, Tab 1 at 7. To the extent he

is arguing that his parking violations were inappropriately considered as a separate

specification of the improper conduct charge, this argument is without merit. While the

proposal letter does note that the appellant’s vehicle was towed for improper parking,

this information was included in the agency’s narrative charge to provide context about

the events that preceded the appellant’s statements that formed the basis of the

improper conduct charge. IAF, Tab 4 at 27.

4

ANALYSIS

The appellant has not shown error in the administrative judge ’s credibility

determinations and well-reasoned findings of fact and conclusions of law.

¶6 In sustaining the charged misconduct, the administrative judge thoroughly

addressed the record evidence, including the hearing testimony concerning the

contested conversations, and provided a detailed explanation for why he found the

agency witness’s version of events more credible. 3 ID at 5-7. The administrative

judge based his findings in part on the witnesses’ demeanor. ID at 6. The Board

must defer to an administrative judge’s credibility determinations when they are

based, explicitly or implicitly, on observing the demeanor of witnesses testifying

at a hearing, and may overturn such determinations only when it has “sufficiently

sound” reasons for doing so. Haebe v. Department of Justice, 288 F.3d 1288,

1301 (Fed. Cir. 2002); see Purifoy v. Department of Veterans Affairs, 838 F.3d

1367, 1373 (Fed. Cir. 2016); Sabio v. Department of Veterans Affairs,

124 M.S.P.R. 161, ¶ 38 (2017). The appellant’s arguments on review regarding

the credibility of the agency’s witness are insufficient to cause us to disturb the

administrative judge’s well-reasoned findings. Clay v. Department of the Army,

123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason to disturb the administrative

judge’s findings when she considered the evidence as a whole, drew appropriate

inferences, and made reasoned conclusions on the issue of credibility); Broughton

v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).

3

In making his credibility determinations, the administrative judge relied on the factors

set forth in Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). ID at 5-7.

In Hillen, the Board found that, in assessing a witness ’s credibility, an administrative

judge should consider the following factors: (1) the witness’s opportunity and capacity

to observe the event or act in question; (2) the witness’s character; (3) any prior

inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the

contradiction of the witness’s version of events by other evidence or its consistenc y

with other evidence; (6) the inherent improbability of the witness’s version of events;

and (7) the witness’s demeanor. 35 M.S.P.R. at 458.

5

¶7 The appellant argues for the first time on review that the agency engaged in

“intentional discrimination in violation of title VII of the Civil Rights Act of

1964” by towing his vehicles, but not those of a number of other agency

employees. PFR File, Tab 1 at 7-8. The Board generally will not consider an

argument raised for the first time in a petition for review absent a showing that it

is based on new and material evidence not previously available d espite the party’s

due diligence. Clay, 123 M.S.P.R. 245, ¶ 6; Banks v. Department of the Air

Force, 4 M.S.P.R. 268, 271 (1980). Here, the appellant has not explained why

this argument could not have been raised before the administrative judge, and

thus we need not consider it. In any event, the claim is unduly vague; the

appellant does not identify which type of discrimination this action represented,

and he provides no explanation for how this alleged discrimination related to his

removal for improper conduct. Thus, the argument provides no basis to grant the

appellant’s petition for review. See 5 C.F.R. § 1201.115(d).

¶8 Regarding the appellant’s argument that the agency used his history of

filing grievances and discrimination complaints to show that he “must have made

the threats as alleged,” the appellant similarly did not make this argument before

the administrative judge, and therefore we need not consider it either. PFR File,

Tab 1 at 8; see Clay, 123 M.S.P.R. 245, ¶ 6; Banks, 4 M.S.P.R. at 271.

Additionally, the appellant mischaracterizes the agency’s reason for raising his

history of filing grievances and equal employment opportunity (EEO) complaints.

On cross-examination during the hearing, the agency asked the appellant about a

series of EEO complaints he unsuccessfully filed against the agency and asked

whether his failure to succeed in those complaints motivated him to make the

alleged threatening statements. IAF, Tab 13, Hearing Compact Disc (HCD)

(testimony of the appellant). Such an inquiry into the appellant’s potential

motive is not impermissible, and accordingly, this argument also does not provide

any basis for granting the petition for review. See 5 C.F.R. § 1201.115(d).

6

We overrule the holding in Wynn that the Board must always remand a case for

consideration of an affirmative defense if an administrative judge has failed to

comply with its requirements and now make clear that the Board will consider a

number of relevant factors in determining whether an appellant’s apparent waiver

or abandonment of a previously raised affirmative defense was effective.

¶9 We now turn to a matter that was not addressed in the appellant ’s petition

for review but that nonetheless requires our attention. As noted above, the

appellant indicated on his appeal form that he was raising the affirmative defense

of retaliation for prior protected activity, including filing a Board appeal. 4 IAF,

Tab 1 at 2. In an order summarizing the prehearing conference that took place on

February 15, 2017, the administrative judge identified the issues presented on

appeal and noted that, during the conference, the appellant’s representative

indicated that the appellant was “raising no affirmative defenses.” IAF, Tab 9

at 2. The order also noted that the issues included in it were “to the exclusion of

all others” (emphasis in original) and allowed either party to object to the

summary, which neither party did. Id. at 1-2. The appellant did not discuss the

prior Board appeal or his claim of retaliation for filing that appeal in any

subsequent filing or during the hearing, and the administrative judge ’s initial

decision made no reference to the appellant’s prior Board appeal or to any

potential affirmative defense. HCD; ID. Additionally, neither the appellant’s

petition for review, nor the agency’s response, mentioned the prior Board appeal

or a claim of retaliation for filing a prior appeal or the administrative judge’s

handling of the appellant’s retaliation claim. PFR File, Tabs 1, 3.

¶10 In Wynn, 115 M.S.P.R. 146, ¶ 10, the Board held that when an appellant

raises an affirmative defense, the administrative judge must address the

affirmative defense in a close of record order or prehearing conference summary.

4

Although the appellant stated that his claim of retaliation included retaliation for

filing a previous Board appeal, thus suggesting that retaliation for the prior Board

appeal was not the only claim of retaliation he was raising, he did not identify another

retaliatory act or another prior protected activity. IAF, Tab 1 at 2.

7

Additionally, the Board held that if an appellant expressed an intention to

withdraw or abandon an affirmative defense, the administrative judge must, at a

minimum, identify the affirmative defense, explain that the Board will no longer

consider the affirmative defense in deciding the appeal, and provide the appellant

with an opportunity to object to the withdrawal of the affirmative defense. Id. If

an administrative judge failed to take the above steps in confirming an appellant’s

withdrawal or abandonment of a previously raised affirmative defense, and

neither the administrative judge’s orders nor the agency’s submissions provided

the appellant with notice of the proper burdens and elements of proof for that

affirmative defense, the Board determined that remand would be necessary. Id.,

¶¶ 12-13.

¶11 Although not specifically stated in Wynn, a careful reading of that decision

reveals that the appellant did not raise his affirmative defense s or the

administrative judge’s handling of them in his petition for review. Id., ¶¶ 3, 5.

Nevertheless, the Board in Wynn remanded the appeal with instructions for the

administrative judge to address the appellant’s affirmative defenses. Id., ¶ 14.

The Board followed the approach set forth in Wynn in Hall v. Department of

Transportation, 119 M.S.P.R. 180 (2013), where again, even though there is no

indication that the appellant raised several of his affirmative defenses or the

administrative judge’s handling of them on petition for review, the Board

remanded the appeal for adjudication of all of the appellant’s affirmative

defenses, even the ones he did not raise on review. Id., ¶¶ 2-3, 6-7, 9.

¶12 Although the Board followed the approach set forth in Wynn in Hall, the

Board has not been entirely consistent in its application of Wynn, and in a number

of nonprecedential decisions issued after Wynn, the Board identified an

administrative judge’s failure to provide the notice required by Wynn, but

nonetheless declined to remand the case for continued consideration of the

8

affirmative defense claim. 5 For example, in Brown v. Department of Defense,

MSPB Docket No. SF-0752-15-0761-I-1, Final Order, ¶¶ 15-18 (Dec. 29, 2016),

aff’d, 705 F. App’x 966 (Fed. Cir. 2017), the Board noted that the administrative

judge failed to address the appellant’s due process affirmative defense and, citing

Wynn, identified that failure as error. Id., ¶ 15. Nonetheless, the Board

determined that remand was not necessary because the matter could be resolved

on the undisputed record. Id., ¶¶ 15-18. Similarly, in Richard v. U.S. Postal

Service, MSPB Docket No. DE-0752-12-0398-I-1, Final Order at 4-8 (July 14,

2014), the Board noted that the administrative judge failed to specifically inform

the appellant that his affirmative defense of reprisal for the use of Family and

Medical Leave Act protected leave would be considered waived unless he raised

an objection to its exclusion from the prehearing conference summary. Id. at 6.

Based on the administrative judge’s failure to inform Mr. Richard of his ability to

object to the summary and of the consequence of failing to object, the Board

found that his affirmative defense was not waived. Id. Nonetheless, the Board

found that the record on the affirmative defense at issue in that case was

sufficiently well developed to decide the question without a remand. Id. at 6-8.

¶13 There are also a significant number of nonprecedential decisions in which

the appellant raised an affirmative defense in the proceedings before the

administrative judge, the administrative judge failed to follow the instructions of

Wynn, the appellant either did not raise the affirmative defense or the

administrative judge’s failure to follow Wynn on review, and the Board did not

address the matter in the final decision. For example, in Day v. Department of

Homeland Security, the appellant originally asserted that he was filing claims

under both the Uniformed Services Employment and Reemployment Rights Act

5

We are not citing the following nonprecedential decisions as precedent in support of

our decision but rather to show that the Board has not been consistent in this area. See

5 C.F.R. § 1201.117(c)(2).

9

(USERRA) and the Veterans Employment Opportunities Act of 1998. Day v.

Department of Homeland Security, MSPB Docket No. PH-3330-13-0004-I-1,

Initial Appeal File (Day IAF), Tab 1 at 4-9. The administrative judge did not

address the USERRA claim in the Acknowledgment Order or the Close of Record

Order and did not issue a separate jurisdictional order narrowing the scope of

issues to be considered. See Day IAF, Tab 2 at 2; Tab 7. In the initial decision,

the administrative judge did not identify or refer to the USERRA claim. Day v.

Department of Homeland Security, MSPB Docket No. PH-3330-13-0004-I-1,

Initial Decision (Nov. 30, 2012). Although obedience to the holding in Wynn

would have required remand for consideration of the appellant’s USERRA claim

even though the appellant did not raise the claim in his petition for review, Day v.

Department of Homeland Security, MSPB Docket No. PH-3330-13-0004-I-1,

Petition for Review File, Tab 1, the Board nonetheless issued a Final Order

affirming the initial decision without any mention of the USERRA clai m or of

Wynn’s remand requirement. Day v. Department of Homeland Security, MSPB

Docket No. PH-3330-13-0004-I-1, Final Order (Dec. 23, 2013).

¶14 Similarly, in Freeland v. Department of Defense, on the initial appeal form

contesting his removal, the appellant checked the box identifying the affirmative

defense of discrimination. Freeland v. Department of Defense, MSPB Docket

No. PH-0752-12-0072-I-1, Initial Appeal File (Freeland IAF), Tab 1 at 5. As in

Day, the administrative judge did not provide the appellant with notice regarding

his burden of proving the affirmative defense, did not address the affirmative

defense in any close of record order or prehearing conference summary and order,

and did not address it in his initial decision. See Freeland IAF, Tabs 2, 8, 13;

Freeland v. Department of Defense, MSPB Docket No. PH-0752-12-0072-I-1,

Initial Decision (Mar. 15, 2012). Additionally, the appellant did not raise the

matter in his petition for review. Freeland v. Department of Defense, MSPB

Docket No. PH-0752-12-0072-I-1, Petition for Review File, Tab 1. In the

Board’s Final Order, it did not state that the discrimination affirmative defense

10

was waived and made no mention of the affirmative defense, or of Wynn.

Freeland v. Department of Defense, MSPB Docket No. PH-0752-12-0072-I-1,

Final Order (Jan. 22, 2013).

¶15 By obligating the Board on review to address apparently waived affirmative

defenses sua sponte, Wynn also represented a significant departure from the cases

that preceded it and upon which it purported to rely. In Erkins v. U.S. Postal

Service, 108 M.S.P.R. 367, ¶¶ 5, 9 (2008), a case Wynn identified as “similar,”

the Board remanded for adjudication of the appellant’s affirmative defenses when

the appellant specifically raised the administrative judge’s failure to address his

retaliation affirmative defense in his petition for review. Similarly, in Carlisle v.

Department of Defense, 93 M.S.P.R. 280, ¶¶ 11-12 (2003), relied on in the Erkins

decision, the Board remanded the case to the administrative judge for

consideration of the appellant’s disability discrimination affirmative defense

claim, concluding that, although the administrative judge adjudicated the claim,

he improperly failed to consider evidence related thereto and failed to apprise the

appellant of the applicable burdens for proving it. But, as in Erkins, the Board

highlighted the fact that the appellant had specifically raised the affirmative

defense claim below and preserved the issue by raising it again in his petition for

review. Id., ¶ 11.

¶16 The inconsistent manner in which the Board has treated the requirements set

forth in Wynn and the departure that Wynn represents from prior precedent leads

us carefully to consider the wisdom of the inflexible approach articulated in that

decision. Moreover, a rule that almost mechanically requires a remand in most

situations in which an appellant raises an affirmative defense in his initial appeal

and then makes little or no effort to pursue it further could easily result in a

remand to address an affirmative defense that the appellant decided he did not

want to pursue or wanted to pursue in another forum. Such meaningless process

is not an efficient use of the Board’s limited adjudicatory resources, costs the

parties needless time and expense, and delays closure of the Board appeal. For

11

example, in Iskander v. Department of the Navy, MSPB Docket No. DC-0752-11-

0090-I-1, Final Order at 5-7 (Dec. 20, 2011), the Board concluded that the

administrative judge failed to address the appellant’s discrimination affirmative

defense and, citing Wynn, issued an order remanding the case with instructions

for the administrative judge to consider the affirmative defense, which was the

only matter at issue on remand. On remand, the appellant wi thdrew her

discrimination affirmative defense, stating that she intended to litigate her

discrimination claim through the Equal Employment Opportunity Commission

process, and the administrative judge issued a second initial decision that did

little more than note the appellant’s withdrawal and adopt the findings of the first

initial decision. Iskander v. Department of the Navy, MSPB Docket No.

DC-0752-11-0090-B-1, Initial Decision at 2-3 (Jan. 18, 2012). Thus, the Board

remand served no apparent purpose.

¶17 After careful consideration, we find that, to the extent Wynn held that, when

an administrative judge has failed to comply with its requirements, the Board

always must raise an affirmative defense waiver or abandonment issue sua sponte

and remand the case for consideration of the affirmative defense , it is overruled. 6

Instead, in determining whether an administrative judge erred in not addressing

an appellant’s affirmative defenses such that remand is necessary, the Board will

examine a number of factors that are instructive as to the ultimate question of

whether an appellant demonstrated his intent to continue pursuing his affirmative

defense, and whether he conveyed that intent after filing the initial appeal. 7

6

Cases that followed the approach set forth in Wynn, such as Hall, 119 M.S.P.R. 180,

are also overruled.

7

Nothing in our decision alters the requirement set forth in Wynn, 115 M.S.P.R. 146,

¶ 10, that administrative judges must, at a minimum, identify all affirmative defenses

raised in an appeal in any close of record order or prehearing conference summary and

order, explain that the Board will no longer consider an affirmative defense if an

appellant expresses the intention to withdraw it, and give the appellant an opportunity

to object to withdrawal of the affirmative defense.

12

¶18 The factors articulated below are not exhaustive, and none of the individual

factors identified will be dispositive in determining whether a particular appellant

will be deemed to have waived or abandoned a previously identified affirmative

defense. Instead, the applicability and weight of each factor should be

determined on a case-by-case basis. Among the relevant factors are:

(1) the thoroughness and clarity with which the appellant raised an affirmative

defense; (2) the degree to which the appellant continued to pursue the affirmative

defense in the proceedings below after initially raising it; (3) whether the

appellant objected to a summary of the issues to be decided that failed to include

the potential affirmative defense when specifically afforded an opportunity to

object and the consequences of the failure were made clear; (4) whether the

appellant raised the affirmative defense or the administrative judge’s processing

of the affirmative defense claim in the petition for review; (5) whether the

appellant was represented during the course of the appeal before the

administrative judge and on petition for review, and if not, the level of knowledge

of Board proceedings possessed by the appellant; and (6) the likelihood that the

presumptive abandonment of the affirmative defense was the product of

confusion, or misleading or incorrect information provided by the agency or the

Board. We now apply the factors set forth above to the facts of the instant case .

We are also mindful of Board and U.S. Court of Appeals for the Federal Circuit

precedent noting that an appellant must be provided with notice of his burden in

establishing Board jurisdiction over his claim, and nothing in our decision here alters

that obligation. See Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44

(Fed. Cir. 1985); Niemi v. Department of the Interior, 114 M.S.P.R. 143, ¶ 8 (2010).

Consistent with Burgess and its progeny, if the Board determines that an administrative

judge’s abandonment or waiver determination was erroneous, and neither the initial

decision nor the agency’s filings placed the appellant on notice of his burdens, a

remand still will be necessary to provide the appellant with adequate notice of his

burdens. See Parker v. Department of Housing & Urban Development, 106 M.S.P.R.

329, ¶ 8 (2007) (stating that an administrative judge’s failure to provide proper Burgess

notice can be cured if the agency’s pleadings or the initial decision contain the required

notice).

13

(1) The thoroughness and clarity with which the appellant raised his

affirmative defense

¶19 On his appeal form, the appellant raised “an affirmative defense of

retaliation for [] prior protected activity,” including, “filing of a Board appeal

concerning his emergency placement suspension.” IAF, Tab 1 at 2. This is the

only information the appellant provided related to his purported affirmative

defense of retaliation for filing a prior Board appeal. Id. The appellant described

the nature of his prior Board appeal as a challenge to his “emergency placement

on suspension,” but he did not provide any additional information about the prior

appeal or offer any explanation of how the agency’s later removal decision was

taken in retaliation for his filing of that appeal. The only additional information

in the record concerning the prior appeal was provided by the agency in its

response to the instant appeal, in which it confirmed that the prior appeal was

filed and was later resolved by settlement agreement. IAF, Tab 4 at 8-9. The

appellant did not challenge this characterization in any subsequent filing or at the

hearing, or offer to expand upon it. Such sparse information regarding the

potential affirmative defense amounts to little more than a pro forma allegation of

wrongdoing. E.g., Pinegar v. Federal Election Commission, 105 M.S.P.R. 677,

¶¶ 31-32 (2007) (finding insufficient a bare allegation of gender discrimination

unsupported by any factual assertions); Taylor v. U.S. Postal Service,

75 M.S.P.R. 322, 328 (1997) (determining that the appellant’s pro forma sex and

race discrimination claims on petition for review were inadequate to show that the

administrative judge erred in finding those claims unproven); cf. Clark v. U.S.

Postal Service, 123 M.S.P.R. 466, ¶ 7 (2016) (setting forth examples of cases in

which the Board distinguished between nonfrivolous and pro forma allegations

and finding that mere conclusory pleadings are insufficient ), aff’d per curiam,

679 F. App’x 1006 (Fed. Cir. 2017). The fact that the appellant failed to provide

a thorough and clear explanation of his affirmative defense also supports a

finding that he abandoned his claim.

14

(2) The degree to which the appellant continued to pursue his affirmative

defense in the proceedings below after initially raising it

¶20 As previously discussed, on his appeal form the appellant stated that he was

raising “an affirmative defense of retaliation for [] prior protected activity, ”

including “filing of a Board appeal concerning [the appellant ’s] emergency

placement suspension.” IAF, Tab 1 at 2. Following his initial filing, the

appellant did not reference this purported affirmative defense at any point

thereafter. The appellant’s silence on this point spanned his additional filings

below, IAF, Tabs 7, 9, and the entirety of the hearing, HCD. The failure to

mention the affirmative defense after the initial appeal suggests that the appellant

no longer wished to pursue the claim. This factor supports a finding that the

appellant abandoned his affirmative defense.

(3) Whether the appellant objected to a summary of the issues to be

decided that failed to include the potential affirmative defense when he was

specifically afforded an opportunity to object and the consequences of his

failure were made clear

¶21 As discussed above, following a February 15, 2017 prehearing conference,

the administrative judge issued an order that identified witnesses, approved

exhibits, and summarized all of the issues to be decided in the appellant ’s case.

IAF, Tab 9. The summary stated that, during the conference, the appellant’s

representative “indicated that he was raising no affirmative defenses. ” Id. at 2.

The order allowed the parties to object to the content of the summary within

7 days and stated that a failure to object to an issue would preclude later

challenge of that issue, including on petition for review. Id. at 1. Neither party

objected to the content of the order, nor have they challenged i ts accuracy since

its issuance. Thus, despite being afforded the opportunity to do so, the appellant

did not object to the administrative judge’s prehearing conference summary

stating that he was not raising an affirmative defense and that his failure to object

to the content of the summary would preclude raising the issue at a later date .

15

Accordingly, this factor supports a finding that the appellant abandoned his

affirmative defense.

(4) Whether the appellant raised either his affirmative defense or the

administrative judge’s processing of the affirmative defense claim in his

petition for review

¶22 The Board’s regulations provide that “[t]he Board normally will consider

only issues raised in a timely filed petition for review or cross petition for

review.” 5 C.F.R. § 1201.115. This adjudicatory approach is consistent with the

concept that the Board’s administrative judges are in the best position to, among

other things, develop the record and simplify the issues and that the Board’s role

is to address contentions of error. See 5 C.F.R. §§ 1201.41(b), 1201.115. The

Board has consistently followed an approach of declining to address matters that

were not raised on petition for review on matters other than affirmative defenses.

In Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 6 n.4 (2016), for

example, the Board found that, because the appellant did not contest the

administrative judge’s finding that one of his disclosures was not protected and

because neither party challenged the administrative judge ’s findings regarding

which contested actions constituted personnel actions covered by the

whistleblower protection statutes, the Board would not consider the issues.

Likewise, in Ferrin-Rodgers v. U.S. Postal Service, 115 M.S.P.R. 140, ¶ 4 n.3

(2010), the Board declined to address the administrative judge ’s findings of a lack

of jurisdiction over several of the appellant’s claims because the petition for

review did not challenge the findings. Finally, in Cross v. Department of the

Army, 89 M.S.P.R. 62, ¶ 7 n.8 (2001), the Board did not address whether the

administrative judge properly found that the agency failed to prove a specification

16

because the agency did not allege error regarding the specification on review.

Board precedent since its creation is replete with similar examples. 8

¶23 Seemingly, only in the realm of affirmative defenses has the Board strayed

from the general practice of only addressing allegations of error raised on petition

for review, and, while the affirmative defenses addressed in Wynn are important,

we can discern no principled basis for the decision to treat these types of claims

differently than other types of claims within the Board’s jurisdiction. In the

instant case, then, the appellant’s failure to address his affirmative defense of

retaliation for filing a prior Board appeal or the administrative judge’s handling

of the affirmative defense claim in his petition for review supports a finding that

the appellant intended to abandon the claim.

8

Similarly, several U.S. Courts of Appeals generally deem issues not raised on appeal

to be abandoned. See, e.g., Butts v. Martin, 877 F.3d 571, 584 n.6 (5th Cir. 2017)

(noting the general rule that issues and arguments not briefed on appeal are abandoned);

Waldman v. Conway, 871 F.3d 1283, 1289 (11th Cir. 2017) (“Issues not briefed on

appeal . . . are deemed abandoned.”); New Jersey v. Merrill Lynch & Co., 640 F.3d 545,

547 n.3 (3d Cir. 2011) (holding that a failure to set forth an issue on appeal and present

arguments in support of that issue in an opening brief generally amounts to

abandonment and waiver of that issue); Advanced Magnetic Closures, Inc. v. Rome

Fastener Corp., 607 F.3d 817, 833 (Fed. Cir. 2010) (“This court has consistently held

that a party waives an argument not raised in its opening brief.”); Smith v. Marsh, 194

F.3d 1045, 1052 (9th Cir. 1999) (finding that arguments not raised by a party in its

opening brief on appeal are deemed waived); United States v. Quiroz, 22 F.3d 489, 490

(2d Cir. 1994) (noting the well-established principle that an argument not raised on

appeal is deemed abandoned); Boyd v. Ford Motor Co., 948 F.2d 283, 284 (6th Cir.

1991) (finding that issues raised in the district court but not raised on appeal are

considered abandoned on appeal and not reviewable). The Equal Employment

Opportunity Commission likewise held that an appellant abandoned certain

discrimination claims when she made “no mention of either of these bases in her

statements in support of [her] appeal” of a final agency decision. Hipp v. Department

of the Air Force, EEOC Document No. 01862916, 1987 WL 769084 (Jan. 13, 1987).

17

(5) Whether the appellant was represented during the course of his appeal

before the administrative judge and on petition for review and , if he was

not, the level of knowledge of Board proceedings possessed by the

appellant

¶24 In some circumstances, the Board will take an appellant’s pro se status into

consideration and be more lenient in the application of Board rules and

procedures. See, e.g., Ramos v. Office of Personnel Management, 82 M.S.P.R.

65, ¶ 7 (1999) (taking into consideration an appellant’s pro se status, among other

factors, in determining that he did not intend to withdraw his appeal); Moorman

v. Department of the Army, 68 M.S.P.R. 60, 62-63 (1995) (noting that the Board

will consider, among other things, the appellant’s pro se status in determining

whether good cause exists to waive the time limit for filing a petition for review),

aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table). Here, the appellant was represented

by a union representative at all stages of the proceeding, from the time the initial

appeal was filed through the hearing and on petition for review before the Board.

IAF, Tab 1 at 5-6; HCD; PFR File, Tab 1 at 9. Thus, the practice of leniency

toward pro se litigants in certain instances is not applicable here. Accordingly,

this factor supports a finding that the appellant intended to abandon his

affirmative defense.

(6) The likelihood that the presumptive abandonment of the affirmative

defense was the product of confusion, or misleading or incorrect

information provided by the agency or the Board

¶25 The Board has held that it will not give effect to the withdrawal of an

appeal that was based on misleading or incorrect information provided by the

agency or the Board. Rose v. U.S. Postal Service, 106 M.S.P.R. 611, ¶ 7 (2007);

see Potter v. Department of Veterans Affairs, 116 M.S.P.R. 256, ¶¶ 10, 15 (2011).

Similarly, the Board has, on occasion, granted leniency to appellants in

circumstances in which they obviously were confused or mistaken about the

Board’s instructions. See Luna v. Department of the Air Force, 86 M.S.P.R. 578,

¶ 9 (2000) (finding good cause for the appellant’s untimely petition for appeal

18

based, in part, on his pro se status and his obvious confusion), aff’d, 15 F. App’x

876 (Fed. Cir. 2001); Caldwell v. Department of the Treasury, 85 M.S.P.R. 674,

¶¶ 8-9 (2000) (same).

¶26 If there is reason to believe that an appellant’s withdrawal or apparent

abandonment of a previously raised affirmative defense was the result of

confusion, or misleading or incorrect information provided to the appellant or his

representative by the agency or the Board, that would weigh in favor of a finding

that the appellant did not intend to withdraw or abandon his claim. This may be

especially true if the appellant is proceeding pro se, and if there is evidence in the

record clearly demonstrating that he either does not understand the nature of the

affirmative defense or does not understand the consequences of its withdrawal.

¶27 In the instant case, there is no evidence that the app ellant’s representative

was confused or was misled by the agency or the administrative judge concerning

the affirmative defense of retaliation for the appellant’s prior Board appeal. As

previously noted, the appellant’s only reference to the claim was in his initial

appeal. Moreover, the only additional information provided by the agency

concerning the affirmative defense was factual in nature, and the agency did not

provide inaccurate or misleading information about the appellant ’s burden in

proving the affirmative defense. IAF, Tab 4 at 8-9. For the above reasons, this

factor, which considers whether the waiver or abandonment was the product of

confusion, mistake, or misleading information provided by the agency or

administrative judge, also favors a finding that the appellant intended to abandon

his affirmative defense in this case.

¶28 In sum, applying the nonexhaustive list of factors set forth in this decision

for determining whether an appellant abandoned his affirmative defense, we find

that the appellant in this case abandoned his affirmative defense and that there is

no basis for the Board to address the affirmative defense waiver issue on review.

Accordingly, we conclude that there is no basis to remand the appeal for

additional proceedings regarding the appellant’s affirmative defense.

19

ORDER

¶29 This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.

§ 1201.113).

NOTICE OF APPEAL RIGHTS 9

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

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

9

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.

20

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. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

21

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

22

(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. 10 The court of appeals must receive your 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

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.

10

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expir ed 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 App eals

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.

23

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.

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD:

/s/

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.