Opinion

Jess Davies v. Department of the Army

Court: Merit Systems Protection Board
Filed: Aug 1, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JESS DAVIES, DOCKET NUMBER

Appellant, DE-1221-16-0176-C-1

DEPARTMENT OF THE ARMY, DATE: August 1, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jess Davies, Helena, Montana, pro se.

Thomas J. Ingram, IV, Esquire, Omaha, Nebraska, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the compliance initial

decision, which dismissed his petition for enforcement as withdrawn . For the

reasons set forth below, the appellant’s petition for review is DISMISSED as

untimely filed without good cause shown. 5 C.F.R. § 1201.114(e), (g).

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BACKGROUND

¶2 During the time period most relevant to this appeal, the appellant was

employed by the U.S. Army Corps of Engineers as a Natural R esources

Specialist. Davies v. Department of the Army, MSPB Docket No. DE-1221-16-

0176-W-1, Initial Appeal File (IAF), Tab 9 at 26. On January 27, 2016, he filed

an individual right of action (IRA) appeal asserting that the agency retaliated

against him for disclosures he made, IAF, Tab 1 at 3, 15, and on March 21, 2016,

the parties entered into a settlement agreement, wherein the y agreed, in part, that

the appellant would withdraw the IRA appeal, IAF, Tab 32 at 4. After entering

the settlement agreement into the record for enforcement purposes, the

administrative judge dismissed the appeal as settled. IAF, Tab 33, Initial

Decision (ID). The March 24, 2016 initial decision dismissing the IRA appeal as

settled became final on April 28, 2016, when neither party filed a petition for

review. ID at 3.

¶3 Approximately 2 months after the issuance of the IRA initial decision, on

May 23, 2016, the appellant filed a pleading which the administrative judge

docketed as a petition for enforcement. Davies v. Department of the Army, MSPB

Docket No. DE-1221-16-0176-C-1, Compliance File (C-1 CF), Tabs 1, 2. 2 In the

petition for enforcement, the appellant asserted that the agency violated the

settlement agreement when it failed to provide “leave time” or a “lump su m”

payment—terms upon which the appellant states the parties had previously

agreed. C-1 CF, Tab 1 at 4. In response, the agency indicated that, although the

appellant’s leave restoration was not processed immediately upon execution of

the agreement, it had since been processed “with the highest priority” and that the

appellant’s lump sum payment had been disbursed on May 18, 2016. C-1 CF, Tab

3 at 5. The appellant appears to have been satisfied with the agency’s compliance

The appellant identified his submission as a motion for compensatory damages, but in

it he sought enforcement of the settlement agreement rather than compensatory

damages. C-1 CF, Tab 1.

with the terms of the settlement agreement challenged in his petition for

enforcement, and he agreed to withdraw the petition. C-1 CF, Tab 5. As such, on

June 13, 2016, the administrative judge dismissed the petition for enforcement as

withdrawn. C-1 CF, Tab 6, Compliance Initial Decision (CID). In the

compliance initial decision dismissing the petition for enforcement, the

administrative judge informed the appellant that the decision would become final

on July 18, 2016, unless a petition for review was filed by that date. CID at 2.

¶4 The appellant did not file a petition for review of the compliance initial

decision before July 18, 2016; however, 3 months later, on October 21, 2016, the

appellant filed the instant petition for review of the compliance initial decision.

Petition for Review (PFR) File, Tab 1. In his petition for review, the appellant

was informed by the e-Appeal Online system that his petition appeared to be

untimely filed, and he was provided with notice of how to establish good cause

for an untimely filing. Id. at 3. Additionally, the Clerk of the Board also

informed the appellant in a subsequent acknowledgment letter that his petition for

review appeared to be untimely filed and provided him with a form for filing a

motion to accept his filing as timely or to waive the time limit. PFR File, Tab 2

at 1-2, 7-8. In response to the e-Appeal Online-generated timeliness language in

his petition for review, the appellant asserts that he had become aware on the

same day that he filed the petition for review that management at his new

employing agency, the Environmental Protection Agency (EPA), had been

contacted by a manager from the U.S. Army Corps of Engineers with a

“complaint” about him. PFR File, Tab 1 at 5. He asserts on review that this

contact “may violate the [parties’ settlement] agreement.” Id. The agency

responded to the appellant’s petition for review, arguing that the appellant

“completely failed to address the issue of why the Board should find good cause”

for his untimely filing. PFR File, Tab 3 at 4.

¶5 On April 10, 2017, the appellant filed a request to withdraw his petition for

review, stating that he understood that the Board would dismiss the petition with

prejudice to refiling. PFR File, Tab 5 at 4. Less than an hour later, however, the

appellant filed another request for enforcement of the settlement agreement. PFR

File, Tab 6. In the request for enforcement, the appellant indicates that, on

March 20, 2017, the EPA took an “action” against him, citing in part, the U.S.

Army Corps of Engineers’ alleged complaint against him in October of 2016. 3 Id.

at 3. He again asserts that the agency’s alleged complaint against him to the EPA

violated the settlement agreement. Id.

¶6 While those pleadings were pending before the Board, on March 14, 2018,

the appellant filed another petition for enforcement with the Denver Field Office.

Davies v. Department of the Army, MSPB Docket No. DE-1221-16-0176-C-2,

Compliance File (C-2 CF), Tab 1. 4 In that petition for enforcement, the appellant

requested that “this case be reopened” because the agency “violated the

settlement agreement.” Id. at 3. He asserted that he was terminated by the EPA

after an employee of the U.S. Army Corps of Engineers made a complaint against

him. Id. In a second compliance initial decision, the administrative judge

dismissed the petition for enforcement “on the grounds of adjudicatory

Between April 10, 2017, and September 8, 2017, the appellant filed multiple appeals

with the Board against the EPA regarding a March 20, 2017 probationary termination

from that agency. Those appeals include two IRA appeals, two Veterans Employment

Opportunity Act of 1998 appeals, and two Uniformed Services Employment and

Reemployment Rights Act of 1994 appeals. See Davies v. Environmental Protection

Agency, MSPB Docket Nos. CH-1221-17-0301-W-1; CH-4324-17-0302-I-1; CH-3330-

17-0516-I-1; CH-1221-17-0568-W-1; and CH-4324-18-0053-I-1. Those appeals were

dismissed based on varying reasons, including dismissals based on lack of jurisdiction,

untimeliness, and the doctrine of collateral estoppel. No petitions for review of the

initial decisions in those matters were filed, and all of the initial decisions are now the

final decisions of the Board.

It appears that the appellant initially filed this petition for enforcement action under

MSPB Docket No. DE-1221-16-0176-C-1 on February 16, 2018, but he entitled that

filing “Pleading to Re-Open Case.” C-2 CF, Tab 6, Compliance Initial Decision at 3.

The Clerk of the Board forwarded the February 16, 2018 pleading to the Denver Field

Office, and the administrative judge interpreted the action as a request to docket it as a

petition for enforcement. Id. Thus, on March 15, 2018, the second petition for

enforcement was acknowledged as MSPB Docket No. DE-1221-16-0176-C-2. Id.; C-2

CF, Tab 2.

efficiency.” C-2 CF, Tab 6, Compliance Initial Decision at 1. Specifically, he

discussed the appellant’s pending petition for review in the instant matter and

found it “clear that the appellant’s C-2 petition for enforcement [] is raising the

same issues as the appellant’s earlier-filed petition for review [] that is currently

pending before the Board.” Id. at 3-4. Thus, he concluded that “adjudicatory

efficiency warrants [the] dismissal of this C-2.” Id. at 4. The second compliance

initial decision dismissing the appellant’s second petition for enforcement became

final on May 14, 2018, when neither party filed a petition for review of that

decision. Id. at 5.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant’s petition for review of the first compliance initial decision is

untimely filed without good cause shown.

¶7 The Board’s regulations provide that a petition for review must be filed

within 35 days after the date of the issuance of the initial decision, or, if the

petitioner shows that the initial decision was received more than 5 days after the

date of issuance, within 30 days after the date the petitioner rec eived the initial

decision. See 5 C.F.R. § 1201.114(e); see also Dean v. U.S. Postal Service,

101 M.S.P.R. 356, ¶ 7 (2006). Here, the initial decision was issued on June 13,

2016. CID at 1. Thus, as the administrative judge correctly informed the

appellant, he was required to file any petition for review no later t han July 18,

2016. CID at 2. The appellant’s petition for review of the compliance initial

decision was filed on October 21, 2016. PFR File, Tab 1. Thus, it is untimely

filed by 95 days.

¶8 The Board may waive its timeliness regulations based upon a deter mination

that good cause has been shown for doing so. See 5 C.F.R. §§ 1201.12,

1201.114(g). To determine whether an appellant has shown good cause, the

Board will consider the length of the delay, the reasonableness of his excuse and

his showing of due diligence, whether he is proceeding pro se, and whether he has

presented evidence of the existence of circumstances beyond his control that

affected his ability to comply with the time limits or of unavoidable casualty or

misfortune which similarly shows a causal relationship to his inability to timely

file his petition. Moorman v. Department of the Army, 68 M.S.P.R. 60, 62-63

(1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).

¶9 Here, although the appellant appears to have been proceeding pro se at the

time he filed the petition for review, 5 the Board has considered a 3-month delay

to be a lengthy one. See Jackson v. Office of Personnel Management,

55 M.S.P.R. 105, 108 (1992), aff’d, 991 F.2d 809 (Fed. Cir. 1993) (Table).

Further, the appellant made no attempt to explain his delay in filing the petition

for review of the compliance initial decision or to demonstrate good cause for his

untimely filing; rather, he raised a new allegation of noncompliance, separate and

apart from the allegation of noncompliance that he made before the administrative

judge. PFR File, Tab 1 at 3-4. Although he appears to claim that his petition for

review is untimely because the events that lead to the alleged breach of the

settlement agreement did not occur until after the filing deadline had passed, the

Board has held that an appellant’s assertions regarding an agency’s alleged

breach of a settlement agreement do not provide good cause for a n appellant’s

untimely filing. See Dean, 101 M.S.P.R. 356, ¶ 10. Based on the forgoing, we

find that the appellant has failed to establish good cause, and we dismiss his

petition for review on that basis. See, e.g., Via v. Office of Personnel

Management, 114 M.S.P.R. 632, ¶ 7 (2010) (dismissing a petition for review as

untimely filed with no good cause shown for the delay in filing).

The appellant’s new claim of noncompliance is forwarded to the Denver Field

Office for adjudication.

¶10 Nonetheless, because the appellant’s petition for review of the compliance

initial decision raises a new allegation of noncompliance different than the one he

raised below, we construe the appellant’s claims as, effectively, a new request for

It is unclear from the record whether the appellant has since designated a

representative to assist him in this matter. PFR File, Tabs 7, 9.

enforcement. PFR File, Tabs 1, 6, 8. When issues are raised concerning the

interpretation of a settlement agreement that is enforceable by the Board and

whether a party has breached the agreement, such claims are properly addressed

in the first instance by the administrative judge via a petition for enforcement .

See Secrist v. U.S. Postal Service, 115 M.S.P.R. 199, ¶ 8 (2010); 5 C.F.R.

§ 1201.182(a). Accordingly, we forward these new allegations of noncompliance

to the Denver Field Office for docketing as a third compliance case. 6 Because the

Board has held that a petition for enforcement alleging a breach of a settlement

argument must be filed within a reasonable time after the pe titioner becomes

aware of the breach, see Eagleheart v. U.S. Postal Service, 113 M.S.P.R. 89, ¶ 12

(2009), and the appellant claims that he informed the Board of the alleged breach

on the day he learned of the circumstances surrounding the alleged breach, PFR

File, Tab 1 at 3, the administrative judge should treat the newly docketed petition

for enforcement as a timely filing, with an effective filing date of October 21,

2016, id.

¶11 Accordingly, we dismiss the appellant’s petition for review of the

compliance initial decision as untimely filed without good cause shown, and we

forward the appellant’s new claim of noncompliance to the Denver Field Office

for docketing and adjudication consistent with this Order. This is the final

decision of the Merit Systems Protection Board regarding the timeliness of the

petition for review. The initial decision remains the final decision of the Board

regarding the appellant’s first petition for enforcement.

Although the appellant’s claims in his second compliance case in Davies

v. Department of the Army, MSPB Docket No. DE-1221-16-0176-C-2, appear to make

the same or substantially similar assertions regarding noncompliance as the ones made

here, we decline to reopen that matter and, instead, direct the docketing of a new

enforcement matter to consider the appellant’s claims for the sake of greater processing

clarity.

NOTICE OF APPEAL RIGHTS 7

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

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:

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.

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

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

(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. 8 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