Opinion

Larry Harmon v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Jul 15, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LARRY L. HARMON, DOCKET NUMBER

Appellant, CH-0752-17-0278-I-1

UNITED STATES POSTAL SERVICE, DATE: July 15, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Hartley David Alley, Esquire, San Antonio, Texas, for the appellant.

Mark Kluge, Hartford, Wisconsin, for the appellant.

Kathleen D. Crawford, Esquire, and Maryl R. Rosen, Esquire, Chicago,

Illinois, 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 initial decision, which

dismissed without prejudice his appeal of the agency’s removal action.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of material fact;

the initial decision is based on an erroneous interpretation of statute or regulation

or the erroneous application of the law to the facts of the case; the administrative

judge’s rulings during either the course of the appeal or the initial decision

were not consistent with required procedures or involved an abuse of discretion,

and the resulting error affected the outcome of the case; or new and material

evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review and AFFIRM the initial decision,

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

¶2 On November 1, 2017, the administrative judge issued an initial decision

dismissing the appeal without prejudice and establishing an automatic refiling

date of December 7, 2017. Initial Appeal File, Tab 55, Initial Decision (ID) at 3.

The appellant has filed a petition for review arguing that the refiling period was

too short and did not provide sufficient time for the parties to resolve their

discovery disputes. Petition for Review (PFR) File, Tab 1 at 4. He also stated

that new and material evidence regarding his medical condition arose after t he

initial decision was issued, but he has not submitted that alleged evidence here.

Id.

¶3 The agency has filed a response, arguing that the appellant’s petition only

addresses whether a new or longer dismissal period should be granted and does

not challenge the dismissal itself. PFR File, Tab 2 at 13. It also argues that the

appellant’s actions following the issuance of the initial decision indicate that the

appellant “does not intend to participate in the processing of his appeal” and that

his actions only seek to further delay the appeal process. Id. at 11-14.

The agency requests that the Board impose sanctions and dismiss the appeal

with prejudice, awarding costs and fees, and that it deny the appellant’s

November 29, 2017 motion for a protective order. 2 Id. at 14.

¶4 An administrative judge has wide discretion to control the proceedings

before him, and a dismissal without prejudice to refiling is a procedural option

left to his sound discretion. Desmond v. Department of Veterans Affairs,

90 M.S.P.R. 301, ¶ 4 (2001). We have reviewed the record and have not found

any evidence that the administrative judge abused his d iscretion in dismissing the

appeal without prejudice. Rather, he exercised his discretion in the interests of

efficiency to allow the parties to resolve their discovery disputes and conflicting

schedules. ID at 2-3. We find that this is a proper use of his discretion, and we

will not disturb the initial decision here.

¶5 Regarding the agency’s request that the Board deny the appellant’s

November 29, 2017 motion for a protective order, we note that the motion is not

currently in the record, and we abstain from ruling on it. Regarding the agency’s

request that the Board dismiss this appeal with prejudice, we decline to impose

that sanction here. See Lewis v. Department of the Air Force, 69 M.S.P.R. 40, 44

(1995) (stating that if an appeal has been dismissed without prejudice in an initial

decision and the appellant then files a petition for review of that decision, the

Board will not consider arguments raised on review concerning discovery

disputes, the imposition of sanctions, or other matters that should be considered

by the administrative judge once the appeal has been refiled). Accordingly, the

agency’s motion for a dismissal with prejudice is DENIED.

¶6 Because the Board treats an appellant’s timely petition for review of an

initial decision dismissing without prejudice as a timely refiled appeal , Desmond,

After the record closed on review, the appellant submitted a pleading indicating that

he had been separated from the agency and granted disability retirement. PFR File,

Tab 5. He also suggested that he was willing to withdraw or settle the appeal, id.;

however, the parties have not submitted any settlement agreement, and the appellant has

not withdrawn his appeal.

90 M.S.P.R. 301, ¶ 6, the appellant may present his assertions regarding

continuing discovery disputes, medical conditions, and any other claims to the

administrative judge, id.

¶7 Accordingly, we DENY the appellant’s petition for review of the initial

decision, and we FORWARD this case to the regional office for adjudication on

the merits. This is the final decision of the Merit Systems Protection Board

regarding the initial decision dismissing the appeal without prejudice to refiling.

5 C.F.R. § 1201.113.

NOTICE OF APPEAL RIGHTS 3

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.

Since the issuance of the initial decision in this matter, the Board may have up dated

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.

(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:

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. 4 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

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired 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 Appeals

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.