The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JESUS J. GONZALEZ, JR., DOCKET NUMBER
Appellant, DA-0752-11-0078-C-1
v.
DEPARTMENT OF HOMELAND DATE: August 8, 2022
SECURITY,
Agency.
THIS ORDER IS NONPRECEDENTIAL *
Juan M. Gonzalez, Esquire, San Antonio, Texas, for the appellant.
Kathleen Shipley, Megan Nicole Copley, and Felix R. Martinez Velez,
Laredo, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his petition for enforcement, finding that he failed to prove
by preponderant evidence that the agency materially breached any of the terms of
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 settlement agreement. For the reasons discussed below, we GRANT the
appellant’s petition for review and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The agency removed the appellant from his position as a GS-11 Border
Patrol Agent and he filed an appeal with the Board. Gonzalez v. Department of
Homeland Security, MSPB Docket No. DA-0752-11-0078-I-1, Initial Appeal File
(IAF), Tab 1. During the pendency of that appeal, the parties entered into a
settlement agreement resolving the appeal. IAF, Tab 17. The settlement
provided, in pertinent part, that the appellant would withdraw his appeal, submit a
written resignation “for personal reasons,” and would not apply for a position
with the agency for 5 years. IAF, Tab 17 at 3-4. In exchange, the agency agreed
to do the following: (1) cancel the removal action; (2) replace the existing
Standard Form (SF) 50 in the appellant’s Official Personnel File (OPF) indicating
that he had been removed with an SF-50 indicating that he resigned “for personal
reasons”; (3) remove all documentation regarding the removal action from the
appellant’s OPF; and (4) refer all inquiries and requests for references regarding
the appellant’s work performance, reason for resignation, or other employment
matters to the agency’s Indianapolis Hiring Center and limit information provided
in response to such requests to the information reflected in the OPF. Id. at 4.
The administrative judge issued an initial decision dismissing the appeal as
settled and accepting the settlement agreement into the Board ’s record for
enforcement purposes. IAF, Tab 18, Initial Decision.
¶3 The appellant filed a petition for enforcement on January 7, 2017, alleging
that the agency breached a term of the settlement agreement when it found him
unsuitable for employment as a contractor with a private company doing contract
work with the agency. MSPB Docket No. DA-0752-11-0078-C-1, Compliance
File (CF), Tab 1. The agency filed a response to the compliance petition
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asserting that it had not breached the agreement because the appellant had
specifically authorized the release of information for the purposes of a
background investigation by executing a signed waiver or alternatively, that the
appellant himself had voluntarily disclosed the offending information leading to
the unsuitability finding on his SF-85P background investigation questionnaire.
CF, Tab 5 at 4-5. The agency also alleged that the appellant breached the waiting
period provision of the agreement by applying for a position with the agency
before 5 years had elapsed. Id. at 4.
¶4 In a compliance initial decision based on the written record, the
administrative judge determined that the appellant had failed to submit evidence
sufficient to demonstrate that the agency had breached a term of the settlement
agreement. CF, Tab 8, Compliance Initial Decision (CID) at 6 -7. Alternatively,
the administrative judge determined that, even if the agency had provided the
disputed information to the background investigators, the appellant had
knowingly and intentionally waived the agency’s obligation to restrict the release
of the information by executing an authorization form. CID at 7-9.
Consequently, the administrative judge denied the petition for enforcement.
CID at 9.
¶5 On review, the appellant contends that he was improperly denied the
opportunity to conduct discovery and that the administrative judge erred in
concluding that the signed authorization allowed the agency to release the
contested information. Compliance Petition for Review (CPFR) File, Tab 1
at 3-4. The agency has filed a response in opposition to the petition for review.
CPFR File, Tab 3.
The administrative judge abused his discretion by issuing the compliance initial
decision without allowing the appellant to conduct discovery.
¶6 In a January 17, 2017 acknowledgement order, the administrative judge
noted that though discovery “may not be necessary in a compliance appeal,” if a
party believed it was necessary, “any initial request for discovery must be filed
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within 15 days of the filing of the response to the petition for enforcement. ”
CF, Tab 3 at 2-3. Consistent with the Board’s regulations, the order specified
that the record would close 15 calendar days from the date of service of the
agency’s reply “unless a party inform[ed] [the administrative judge] that
discovery will take place.” Id. at 3; see 5 C.F.R. § 1201.183(a)(9).
¶7 The agency filed its response to the petition for enforcement on
February 1, 2017. CF, Tab 5. The appellant, replying to the agency’s response
on February 11, 2017, indicated that he “intend[ed] to propound discovery upon
the Agency,” and requested “the ability to issue discovery to the agency.” CF,
Tab 6 at 11. On February 24, 2017, the administrative judge issued the
compliance initial decision denying the appellant’s petition for enforcement,
despite the fact the appellant had informed the administrative judge that he
intended to conduct discovery. CID.
¶8 In response to an order issued by the Acting Clerk of the Board, the
appellant provided a list of interrogatories propounded on the agency on
February 15, 2017, and a request for the production of documents submitted to
the agency on February 16, 2017. CPFR File, Tab 7 at 7-19. The appellant’s
attorney asserts that no response was received to either request. Id. at 5. The
agency has not provided a response to the order.
¶9 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). However, as the party bearing the burden of proof on the claim, the
appellant is entitled to obtain evidence to support his claim. See, e.g., Lynch v.
Department of Defense, 114 M.S.P.R. 219, ¶ 11 (2010). The appellant has
provided sufficient evidence demonstrating that he notified the administrative
judge of his intention to undertake discovery, that he served his discovery
requests within the requisite 15 days following the agency’s response to the
petition for enforcement, and that, when the administrative judge issued his
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compliance initial decision, the agency had not yet replied to the appellant’s
requests. The unanswered discovery requests produced by the appellant seek
evidence that could be relevant and admissible concerning his allegation that the
agency materially breached a term of the settlement agreement. CPFR File, Tab 7
at 7-19. By issuing the initial decision before discovery was completed, the
administrative judge deprived the appellant of the opportunity to gather and
submit potentially relevant evidence obtained during the ongoing discovery
process. Bernard v. Department of Agriculture, 788 F.3d 1365, 1368-70 (Fed.
Cir. 2015); 5 C.F.R. § 1201.183(a)(9). As such, the administrative judge abused
his discretion and we remand this appeal for further adjudication. See Bernard,
788 F.3d at 1368-70.
¶10 On remand, the administrative judge shall grant the parties additional time
to conduct discovery regarding the matters addressed in the outstanding discovery
requests. Additionally, the administrative judge shall set a new close-of-record
date and allow the parties to submit potentially relevant evidence obtained
through the discovery process. After discovery is completed, the administrative
judge shall issue a new compliance initial decision consistent with this Remand
Order.
ORDER
¶11 For the reasons discussed above, we remand this case to the regional office
for further adjudication consistent with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.