Opinion

Stanley Scheiner v. Federal Communications Commission

Court: Merit Systems Protection Board
Filed: Mar 30, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.0%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

STANLEY SCHEINER, DOCKET NUMBERS

Appellant, DC-0752-14-0744-I-3

DC-1221-17-0037-W-1 1

FEDERAL COMMUNICATIONS

COMMISSION, DATE: March 30, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 2

Douglas Hartnett, Esquire, Washington, D.C., for the appellant.

Christopher Morgan and Lily Sara Farel, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member 3

We have joined these two appeals on review based on our determination that joinder

will expedite processing of the cases and will not adversely affect the interests of the

parties. 5 C.F.R. § 1201.36(b).

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Member Leavitt’s name is included in decisions on which the three -member Board

completed the voting process prior to his March 1, 2023 departure.

FINAL ORDER

¶1 The appellant has filed petitions for review of the initial decisions, which

dismissed as settled the appeal of his removal and his individual right of action

(IRA) appeal. Generally, we grant petitions such as this one only in the following

circumstances: the initial decisions contain erroneous findings of material fact;

the initial decisions are 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 s or the initial

decisions were not consistent with required procedures or involved an abuse of

discretion, and the resulting error affected the outcome of the cases; or new and

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

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

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

considering the filings in these appeals, we conclude that the petitioner has not

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

Therefore, we DENY the petitions for review and AFFIRM the initial decisions,

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

BACKGROUND

¶2 Effective March 31, 2014, the agency removed the appellant, an Attorney

Advisor, based on: (1) excessive absences; and (2) absence without leave and

failure to request leave following proper procedures. Scheiner v. Federal

Communications Commission, MSPB Docket No. DC-0752-14-0744-I-1, Initial

Appeal File (IAF), Tab 1 at 19-26. On appeal to the Board, he argued that the

charges were unsubstantiated and that the penalty was too severe, and he alleged

that the agency’s action was due to disability discrimination based on failure to

accommodate and retaliation for engaging in equal employment opportunity

activity, making protected disclosures, and exercising his rights under the Family

and Medical Leave Act. Id. at 6-7. He requested a hearing. Id. at 2. The

administrative judge dismissed the appeal without prejudice for a period of 60

days, in part because the appellant indicated that he had a complaint pending

before the Office of Special Counsel (OSC) regarding his claim of whistleblower

retaliation. IAF, Tab 6, Initial Decision at 1-3. The administrative judge

dismissed the refiled appeal without prejudice after determining that the parties

were actively engaged in extensive discovery and that it did not appear that they

would be ready for the scheduled hearing. Scheiner v. Federal Communications

Commission, MSPB Docket No. DC-0752-14-0744-I-2, Tab 70, Initial Decision

at 1-3. After the appeal was again refiled, discovery continued. Scheiner v.

Federal Communications Commission, MSPB Docket No. DC-0752-14-0744-I-3,

Appeal File (I-3 AF), Tabs 3-14, 16-22, 24-31, 40-43, 45-53.

¶3 During a prehearing conference, the administrative judge informed the

parties that the appellant had failed to file an IRA appeal and that his

whistleblowing claim would be limited to the removal action. Subsequently, the

appellant filed a “Motion to Consolidate this Complaint with Appellant’s IRA

Complaint 4 filed on October 16, 2016.” I-3 AF, Tab 54. He indicated that,

beginning in 2011 and continuing to date, he made disclosures to agency

management, the Office of Inspector General, Human Resources officials, and

OSC concerning alleged fraud in a specific program that was under investigation.

Id. at 16, 35-41. He stated that he already had filed complaints with OSC but that

they had been dismissed. Id. at 17. The appellant claimed that, again, beginning

in 2011, the agency began to retaliate against him based on his disclosures and

that the retaliation continued up until his removal in 2014. Id. at 18-30. He

stated that he only received OSC’s closure letters dated July 22, 2015, August 24,

2015, and May 17, 2016, id. at 47-50, on October 15, 2016, id. at 30-31, and he

argued that, under the circumstances, the deadline for filing his IRA appeal

As did the administrative judge, we understand the appellant’s motion to be a request

that the administrative judge join his removal appeal with the IRA appeal he was filing

that day.

should be equitably tolled. Id. at 42-43. The appellant submitted an affidavit in

support of his position, id. at 44-45, and he also filed a supplemental pleading

regarding his motion to join his appeals, I-3 AF, Tab 55. In her prehearing

conference summary, the administrative judge denied the ap pellant’s motion, not

crediting his claims in support of his request for waiver of the filing deadline . I-3

AF, Tab 57 at 13-14.

¶4 That same day, the administrative judge docketed the appellant’s IRA

appeal. Scheiner v. Federal Communications Commission, MSPB Docket

No. DC-1221-17-0037-W-1, Initial Appeal File (W-1 IAF), Tab 1. The

administrative judge set forth the time limits for filing an IRA appeal with t he

Board under 5 U.S.C § 1214(a)(3) and 5 C.F.R. § 1209.5(a)(1) and (2) which

provide, in pertinent part, that an IRA appeal must be filed no later than 65 days

after the date of issuance of OSC’s written notification that it has terminated its

investigation of the appellant’s allegations or, if the appellant shows that OSC’s

notification was received more than 5 days after the date of issuance, within

60 days after the date the appellant received OSC’s notification. W-1 IAF, Tab 4

at 1-2. The administrative judge advised the appellant that, based on the May 17,

2016 closure letter from OSC, his October 16, 2016 IRA appeal appeared to have

been filed 87 days late. Id. at 2. The administrative judge further explained that

a “good cause” standard did not apply to such a timeliness determination but that

the appellant could attempt to establish that the principle of equitable tolling

should be applied to waive the filing deadline and under what circumstances

Federal courts typically extend such relief. Id. at 2-3. The administrative judge

afforded the appellant 10 days in which to respond to her order, id. at 3, which he

did in several “preliminary” submissions, W-1 IAF, Tabs 6-8, and the agency also

filed a response, W-1 IAF, Tab 10.

¶5 Meanwhile, the appellant filed a motion to reschedule the hearing on his

removal appeal, set to begin in 6 days, pending the administrative judge’s ruling

on the timeliness of the IRA appeal, I-3 AF, Tab 64, and he also moved that the

administrative judge reconsider her denial of his motion to join the two appeals,

1-3 AF, Tab 65. The administrative judge denied both motions, stating that the

appellant would have a full opportunity to brief the issue of the timeliness of his

IRA appeal, after which, upon review, she would either dismiss the appeal as

untimely or schedule a hearing on the IRA appeal at a future date. W-1 IAF,

Tab 11. Thereafter, the appellant sought an extension of time in which to file

additional evidence on the timeliness issue, W-1 IAF, Tab 12, which the

administrative judge granted, W-1 IAF, Tab 13.

¶6 On the day of the administrative judge’s order and prior to the scheduled

hearing, however, the parties submitted a settlement agreement resolving both

appeals. W-1 IAF, Tab 14; I-3 AF, Tab 67. The agreement provided in pertinent

part that the agency would pay the appellant’s attorney $150,000, rescind and

expunge any and all documentation referencing the removal action from the

appellant’s Official Personnel File, and process his resignation “for medical

reasons,” effective March 31, 2014, the date of his removal. The appellant agreed

to waive his right to pursue and irrevocably release the agency from all claims

arising out of his employment with the agency which he brought or could have

brought in any forum. W-1 IAF, Tab 14; I-3 AF, Tab 67. On the basis of the

agreement, the administrative judge dismissed the appeals as settled. W -1 IAF,

Tab 15, Initial Decision; I-3 AF, Tab 68, Initial Decision.

¶7 The appellant has filed identical petitions for review in both appeals,

Scheiner v. Federal Communications Commission, MSPB Docket No. DC-1221-

17-0037-W-1, Petition for Review (W-1 PFR) File, Tab 1; Scheiner v. Federal

Communications Commission, MSPB Docket No. DC-0752-14-0744-I-3, Petition

for Review (I-3 PFR) File, Tab 1, the agency has filed identical responses, W-1

PFR File, Tab 5; I-3 PFR File, Tab 5, and the appellant has filed identical

replies, 5 W-1 PFR File, Tab 6; I-3 PFR File, Tab 6.

In our discussion on review, we will cite only to “PFR File” f or the sake of clarity.

ANALYSIS

¶8 A party may challenge the validity of a settlement agreement if he believes

that it is unlawful, involuntary, or the result of fraud or mutual mistake. E.g.,

Sargent v. Department of Health & Human Services, 229 F.3d 1088, 1091 (Fed.

Cir. 2000); Wade v. Department of Veterans Affairs, 61 M.S.P.R. 580, 583

(1994). To establish that a settlement was fraudulent as a result of coercion or

duress, a party must prove that he involuntarily accepted the other party’s terms,

that circumstances permitted no other alternative, and that such circumstances

were the result of the other party’s coercive acts. Potter v. Department of

Veterans Affairs, 111 M.S.P.R. 374, ¶ 6 (2009). A party challenging the validity

of a settlement agreement bears a “heavy burden.” Asberry v. U.S. Postal

Service, 692 F.2d 1378, 1380 (Fed. Cir. 1982). An appellant’s mere

post-settlement remorse or change of heart cannot serve as a basis for setting

aside a valid settlement agreement. Potter, 111 M.S.P.R. 374, ¶ 6; Thompson v.

Department of Veterans Affairs, 52 M.S.P.R. 233, 237 (1992).

¶9 The appellant does not allege, nor do we discern any basis upon which to

find, that the settlement agreement here was unlawful. Neither does the appellant

suggest, nor the record show, that he entered into the agreement involuntarily.

Paragraph 10 of the settlement agreement specifically provided that the parties

agreed that the agreement constituted a voluntary act, free from undue influence,

fraud, misrepresentation, or coercion. W-1 IAF, Tab 14; I-3 AF, Tab 67.

Moreover, the appellant was represented by counsel during negotiations, and his

attorney signed the agreement as did he. Cf. Swidecki v. U.S. Postal Service,

101 M.S.P.R. 110, ¶ 18 (2006) (finding that representation by counsel is

significant in determining the validity of an appeal -rights waiver).

¶10 The appellant has not shown that the agency acted fraudulently regarding

the settlement agreement. Any purported error by OSC in sending the closure

letter to a prior representative of the appellant ’s cannot be attributed to the

agency. With his petition for review, the appellant has submitted a December 5,

2016 letter from OSC suggesting such an error. PFR File, Tab 1 at 10. Although

the letter is dated after the close of the record on review, to constitute new and

material evidence, the information contained in the document, not just the

document itself, must have been unavailable despite due diligence when the

record closed. Grassell v. Department of Transportation, 40 M.S.P.R. 554, 564

(1989). The appellant has failed to show that he could no t have timely secured

this information by contacting OSC earlier regarding the status of his complaint.

¶11 In addition, the appellant has not shown that the parties operated under

mutual mistake sufficient to justify striking the agreement as invalid. Although

they may have shared the perception that the appellant’s IRA appeal was

untimely, the administrative judge had not explicitly ruled on that issue prior to

the date the parties settled the appeals. On the contrary, she had directed the

parties to address the issue of equitable tolling and had granted the appellant’s

request for additional time in which to submit his evidence and argument on that

issue, but the parties reached a settlement only several days after the

administrative judge granted the appellant’s request for an extension. W-1 IAF,

Tabs 11-14.

¶12 Finally, the appellant has not shown that he had no other option but to

accept the terms of the agreement. As we have found, he could have timely

pursued the matter with OSC to learn the status of his complaint and included that

information in his response to the administrative judge’s order on the issue of the

applicability of equitable tolling. He also could have proceeded to hearing in his

removal appeal and presented evidence on his claim of retaliation for

whistleblowing. Even after he had signed the agreement, the appellant could have

acted on its right-to-revoke provision, I-3 AF, Tab 67 at 6; W-1 IAF, Tab 14 at 6;

yet he did not exercise that option.

¶13 In sum, we find that the appellant has failed to meet his burden of showing

that the settlement agreement was unlawful, involuntary, or the result of fraud or

mutual mistake. Asberry, 692 F.2d at 1380.

¶14 On review, the appellant argues that the time limit for the filing of his IRA

appeal should be equitably tolled based on the December 5, 2016 letter from OSC

that he submitted with his petition for review and that we have declined to

consider, having found that it is not new evidence. In any event, the issue of the

timeliness of the appellant’s IRA appeal is no longer before the Board because of

the parties’ settlement agreement, which we have found to be valid.

¶15 The appellant also challenges on review the administrative judge’s earlier

denial of his request to join his two appeals, arguing that the administrative judge

was misled into thinking that he had agreed that the representative to whom the

May 16, 2016 closure letter was sent was actually his rep resentative at the time,

when that was not the case. PFR File, Tab 1 at 8-9. Administrative judges have

wide discretion to control the proceedings over which they preside , including

ruling on motions. 5 C.F.R. § 1201.41(b)(8). The appellant’s motion for joinder

was filed a week before the removal hearing was set to begin, after the parties had

participated in extensive discovery regarding that appeal over several years. The

administrative judge’s denial of the motion based on the record before her was

well within her discretion. As noted, she advised the parties that she would

consider the timeliness of the appellant’s IRA appeal after considering their

additional evidence and argument and that, if she found the appeal timely, she

would schedule a hearing at a future date. W-1 IAF, Tabs 11, 13. The appellant

agreed to settle both appeals the following day. W-1 IAF, Tab 14. Although he

suggests that proceeding to hearing following the administrative judge’s ruling

would have been, for him, a “fruitless exercise,” PFR File, Tab 1 at 5, his

suggestion assumes that the administrative judge would have found his IRA

appeal untimely. As we have found, however, she had not yet made a finding as

to timeliness, and it was the appellant’s decision to settle his appeals that

prevented her from making a definitive ruling on that issue. Th e appellant has

not shown that the administrative judge’s ruling was an abuse of discretion or that

it otherwise prejudiced his substantive rights. Cf. Fulton v. Department of the

Army, 95 M.S.P.R. 79, ¶ 11 (2003) (finding that the Board will not disturb an

administrative judge’s denial of a party’s proposed witnesses unless such denial

constitutes an abuse of discretion).

NOTICE OF APPEAL RIGHTS 6

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).

Since the issuance of the initial decisions in these matters, 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.

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. 7 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