Opinion

Anthony Lee v. Department of the Army

Court: Merit Systems Protection Board
Filed: Feb 12, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.2%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANTHONY TERRELL LEE, DOCKET NUMBER

Appellant, AT-1221-18-0208-W-1

DEPARTMENT OF THE ARMY, DATE: February 12, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Anthony Terrell Lee , Saint Marys, Georgia, pro se.

Elizabeth Moseley , Millington, Tennessee, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

dismissed his individual right of action (IRA) appeal as untimely filed.

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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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).

For the reasons described in the initial decision, we agree with the

administrative judge’s finding that the appellant failed to prove that he timely

filed his IRA appeal after receiving a close-out letter from the Office of Special

Counsel dated September 11, 2013. Initial Appeal File (IAF), Tab 16, Initial

Decision (ID) at 3-5; see 5 U.S.C. § 1214(a)(3)(A)(ii) 2 ; MacDonald v.

Department of Justice, 105 M.S.P.R. 83, ¶ 11 (2007); 5 C.F.R. §§ 1201.57(c)(2),

1209.5(a)(1). We further agree with the administrative judge’s finding that the

appellant failed to allege circumstances that would justify applying the doctrine

of equitable tolling to the filing deadline. ID at 4-5; see Heimberger v.

Department of Commerce, 121 M.S.P.R. 10, ¶ 10 (2014) (observing that equitable

tolling is a rare remedy that is to be applied in unusual circumstances and

generally requires a showing that the litigant has been pursuing his rights

diligently and some extraordinary circumstances stood in his way); 5 C.F.R.

§ 1209.5(b).

In his petition for review, the appellant reasserts his claim that he timely

filed a Board appeal in October 2013. Petition for Review (PFR) File, Tab 1

The National Defense Authorization Act for Fiscal Year 2018 (NDAA), Pub. L.

No. 115-91, 131 Stat. 1283, was signed into law on December 12, 2017. Section 1097

of the NDAA amended various provisions of Title 5 of the U.S. Code. Our decision to

dismiss this appeal would be the same under both pre- and post-NDAA law.

at 11; IAF, Tab 7 at 4-5. He further claims that the Board stopped responding to

or acknowledging his submissions after a prehearing conference was held on

January 26, 2010, in his prior removal appeal. PFR File, Tab 1 at 11; Lee v.

Department of the Army, MSPB Docket No. AT-0752-10-0186-I-1, Initial Appeal

File (0186 IAF), Tab 15 (summarizing the telephonic conference). We discern no

reason to disturb the administrative judge’s timeliness findings based on the

appellant’s arguments on review.

For the first time on review, the appellant asserts that the administrative

judge assigned to his prior removal appeal made an oral ruling during the

January 26, 2010 prehearing conference, and that he is seeking to memorialize

that oral ruling through the instant appeal. PFR File, Tab 1 at 4, 7-8, 11-13,

23-24; 0186 IAF, Tab 15. To the extent the appellant’s petition for review may

be construed as a request to reopen his prior removal appeal on the Board’s own

motion under 5 C.F.R. § 1201.118, we deny his request. See Jennings v. Social

Security Administration, 123 M.S.P.R. 577, ¶¶ 2-3, 14-23 (2016) (denying the

appellant’s request to reopen his prior removal appeal); 5 C.F.R. § 1201.118

(providing that the Board will exercise its discretion to reopen an appeal only in

unusual or extraordinary circumstances and generally within a short period of

time after the decision becomes final). The appellant has failed to allege unusual

or extraordinary circumstances that would justify reopening his removal appeal

over 8 years after the decision in that appeal became final. Lee v. Department of

the Army, MSPB Docket No. AT-0752-10-0186-I-1, Final Order at 1-2 (Oct. 26,

2010); see Jennings, 123 M.S.P.R. 577, ¶ 17. Moreover, the appellant has

identified no clear and material legal error by the prior administrative judge

warranting reopening of the Board’s final decision in his removal appeal. See

Jennings, 123 M.S.P.R. 577, ¶ 19. In addition, despite the appellant’s assertion

that the administrative judge erred in applying res judicata, we discern no reason

to disturb her finding that res judicata precludes the Board from addressing the

agency’s removal action a second time. PFR File, Tab 1 at 10; ID at 5; see, e.g.,

Page v. Department of the Navy, 101 M.S.P.R. 513, ¶ 2 n.1 (2006) (finding that,

in an IRA appeal, the appellant’s claims concerning his removal were barred by

res judicata when he already had litigated such claims in a separate removal

appeal).

Although the appellant reasserts his claim that he was denied due process

when he was escorted out of the building after receiving notice of his proposed

removal, the Board has held that a notice of proposed removal is not an otherwise

appealable action that may be appealed directly to the Board. PFR File, Tab 1

at 14-15; IAF, Tab 1 at 5, Tab 4 at 15-17; see Weber v. Department of the Army,

45 M.S.P.R. 406, 409 (1990). Accordingly, we find that the appellant’s claim

regarding his alleged “early” termination provides no reason to disturb the initial

decision.

The appellant makes the following additional arguments on review: the

initial decision conflicts with the Merit Systems Protection Board’s report titled

“What is Due Process in Federal Civil Service Employment?”; the administrative

judge’s dismissal of his appeal denied him his constitutional right to due process;

and the administrative judge erroneously stated that he was terminated in

December 2009 rather than in November 2009. PFR File, Tab 1 at 4, 9; ID at 1.

The appellant’s additional arguments on review fail to provide a reason to disturb

the initial decision because they are immaterial to the dispositive timeliness issue.

Moreover, we find that the appellant’s submission of documentation related to the

Board’s due process report, his prior Board appeals, and his discrimination

complaint provide no basis to disturb the initial decision. PFR File, Tab 1 at 5,

16-23; see Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980)

(holding that the Board generally will not grant a petition for review based on

new evidence absent a showing that it is of sufficient weight to warrant an

outcome different from that of the initial decision).

Finally, we deny the appellant’s motions for sanctions and requests to

strike the agency’s responses to his petition for review and to his motion for

sanctions. PFR File, Tab 4 at 4-8, 11-14, Tab 6 at 4, 6-8. The appellant has

failed to show that sanctions are necessary to serve the ends of justice. See Smets

v. Department of the Navy, 117 M.S.P.R. 164, ¶ 11 (2011), aff’d, 498 F. App’x 1

(Fed. Cir. 2012); 5 C.F.R. § 1201.43. Further, we discern no basis on which to

strike the agency’s pleadings on review, which are provided for by the Board’s

regulations. PFR File, Tabs 3, 5; see 5 C.F.R. § 1201.114(a)(3). Moreover, we

deny the appellant’s request to order the agency representative to identify whether

she is the same agency representative who testified during a deposition for a prior

Board appeal. PFR File, Tab 4 at 13-14.

Accordingly, we affirm the dismissal of this IRA appeal as untimely filed.

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 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.

(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. 420 (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.