Opinion

Richard Abresch v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Apr 15, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.8%

stating that a 6-year delay was inexcusable in concluding that the claim was barred by laches

How later courts described this case

stating that a 6-year delay was inexcusable in concluding that the claim was barred by laches

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RICHARD JAMES ABRESCH, DOCKET NUMBER

Appellant, DC-1221-21-0639-W-1

DEPARTMENT OF THE NAVY, DATE: April 15, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Richard James Abresch , FPO, APO/FPO Europe, pro se.

Michael Steven Causey , Washington, D.C., for the agency.

Tracy W. Lin , Arlington, Virginia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

dismissed his individual right of action (IRA) appeal for lack of jurisdiction.

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

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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. Except as expressly MODIFIED to

clarify the IRA exhaustion requirement and to explicitly find that the appellant

exhausted his claims with the Office of Special Counsel (OSC), we AFFIRM the

initial decision.

BACKGROUND

At all times relevant to this appeal, the appellant was an employee of the

agency’s Commander Navy Regional Maintenance Center in Norfolk, Virginia.

Initial Appeal File (IAF), Tab 1 at 5, Tab 10 at 18-19. On September 14, 2021,

he filed the instant IRA appeal alleging that he had been subjected to several

personnel actions in retaliation for his protected whistleblowing disclosures and

requesting a hearing on his appeal. IAF, Tab 1 at 1-5. With his initial appeal, the

appellant provided a copy of a close-out letter from OSC dated July 21, 2021. Id.

at 8. The administrative judge issued a jurisdictional order in which he apprised

the appellant of the applicable law and burden of proof requirements for an IRA

appeal and ordered him to submit evidence and argument establishing Board

jurisdiction. IAF, Tab 3 at 1-9. He also issued a supplemental order instructing

the agency to file a response addressing its defense that the doctrine of laches

bars the appellant’s claims. IAF, Tab 15 at 1-3.

After the parties submitted their jurisdictional pleadings, IAF, Tabs 8-10,

18-19, the administrative judge issued an initial decision dismissing the appeal

for lack of jurisdiction, IAF, Tab 20, Initial Decision (ID) at 1, 2. Specifically,

the administrative judge acknowledged the appellant’s allegations that he made

disclosures between 2011-2012 and the agency subjected him to a reassignment in

2013 and nonselections between 2019-2021. ID at 5-8. However, he observed

the appellant did not file his OSC complaint until 8 years after the alleged first

personnel action. ID at 6. Noting the significant length of the delay and

crediting the agency’s argument that it was prejudiced by the appellant’s delay in

seeking corrective action, the administrative judge concluded that the appellant’s

purported retaliatory reassignment in 2013 was barred by the equitable doctrine

of laches. ID at 7. The administrative judge also found that the appellant failed

to make a nonfrivolous allegation that his protected disclosures were a

contributing factor in the agency’s decision to take personnel actions against him.

ID at 8-11.

The appellant has filed a petition for review of the initial decision. Petition

for Review (PFR) File, Tab 1. The agency has filed a response in opposition to

the petition for review. PFR File, Tab 5. The appellant has filed a reply.

PFR File, Tab 8.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant argues on review that the administrative judge erred in

concluding that his 2013 reassignment was barred by the doctrine of laches.

PFR File, Tab 1 at 5, 10-13; ID at 7. He also argues that he nonfrivolously

alleged that his protected disclosures were a contributing factor in the

personnel actions imposed by the agency in 2018, 2020, and 2021. PFR File,

Tab 1 at 14-19. For the following reasons, we agree with the administrative

judge.

The administrative judge correctly determined that the appellant’s 2013

reassignment is barred by the equitable doctrine of laches.

The equitable defense of laches bars an action when an unreasonable delay

in bringing the action has prejudiced the party against whom the action is taken.

Johnson v. U.S. Postal Service, 121 M.S.P.R. 101, ¶ 6 (2014). The Board has

acknowledged that laches may apply as a defense in an IRA appeal and may be

applied before reaching the merits of the appeal. Brown v. Department of the Air

Force, 88 M.S.P.R. 22, ¶¶ 3, 7-10 (2001). The party asserting laches must prove

both unreasonable delay and prejudice. Johnson, 121 M.S.P.R. 101, ¶ 6. Under

laches, the mere fact that time has elapsed from the date a cause of action first

accrued is not sufficient to bar suit; rather, the delay must be unreasonable and

unexcused. Cornetta v. United States, 851 F.2d 1372, 1377-78 (Fed. Cir. 1988).

Two types of prejudice may stem from a delay in filing suit. Id. at 1378. The

first type, defense prejudice, concerns the Government’s ability to mount a

defense due to the loss of records, destruction of evidence, fading memories, or

unavailability of witnesses. Id. The second type, economic prejudice, centers on

consequences, primarily monetary, to the Government should the appellant

prevail. Id.

The appellant argues on review, amongst other things, that the

administrative judge failed to consider the facts to determine the reasonableness

of his delay because the agency caused the delay when it “denied [him] the

knowledge of facts necessary to submit a nonfrivolous appeal in 2013.”

PFR File, Tab 1 at 11. In the initial decision, the administrative judge found the

appellant’s delay in challenging his 2013 reassignment unreasonable, reasoning

that the appellant failed to “file a complaint with OSC until after [he] had

informed [the appellant that] the Board likely lacked jurisdiction over his first

Board appeal challenging the non-selections because, inter alia, he had not filed

such a complaint.” ID at 6 (emphasis in original). We agree.

Here, as set forth above, the appellant’s reassignment occurred 8 years

before the appellant filed his request for corrective action with OSC in July 2021.

IAF, Tab 1 at 4, 8, Tab 10 at 18. The Board and the U.S. Court of Appeals for the

Federal Circuit have regularly found shorter delays to be unreasonable and

applied laches to bar such claims. See Pepper v. United States, 794 F.2d 1571,

1573-74 (1986) (stating that a 6-year delay was inexcusable in concluding that the

claim was barred by laches); Brown, 88 M.S.P.R. 22, ¶¶ 3, 8-10 (2001) (finding a

6-year delay to be unreasonable and applying the doctrine of laches to bar an IRA

appeal).

We find unavailing the appellant’s claims that laches should not apply

because the agency’s failure to provide him with the necessary information

reasonably delayed him in challenging his reassignment. PFR File, Tab 1 at 11.

Specifically, the appellant claimed that the agency failed to inform him of any

issues or its attempt to remove him until July 2021 and he learned of the reason

for his reassignment in February 2022. Id. However, he averred below that

he perceived whistleblower animus after his 2013 reassignment but failed to

“submit a complaint on the initial incident, thinking the animus would pass.”

IAF, Tab 10 at 9. Thus, he could have raised the issue when he first suspected

but failed to do so. Therefore, as the administrative judge correctly concluded,

his 8-year delay is unreasonable because he “took no steps to pursue his rights in

2013 or anytime immediately thereafter.” ID at 6; see Johnson, 121 M.S.P.R.

101, ¶ 7 (finding an appellant’s delay unreasonable when he failed to diligently

investigate and pursue his rights in a timely manner).

The appellant also challenges the administrative judge’s conclusion that his

unreasonable delay in seeking corrective action prejudiced the agency. PFR File,

Tab 1 at 12-13; ID at 5-7. Specifically, he appears to argue that the

administrative judge erred in finding prejudice based solely on the “[deciding

official’s] claim[] [that] he has limited memory of his decision to reassign the

appellant and of allegations lodged against the appellant” and not considering that

the agency may have documents to supplement the deciding official’s limited

recollection. PFR File, Tab 1 at 12-13. We discern no basis to reverse this

finding. The administrative judge credited the agency’s argument that it was

prejudiced by the appellant’s unreasonable delay when the appellant’s disclosure

and reassignment occurred 8-10 years prior and the deciding official submitted a

sworn declaration indicating that he is unable to recall many of the details and

circumstances of the appellant’s protected disclosures and his 2013 reassignment.

ID at 5-7; IAF, Tab 18 at 7-10. The record is also devoid of evidence that the

agency possesses documents to refresh the deciding official’s memory. 2

Notwithstanding, we agree with the administrative judge that the appellant’s

delay in seeking corrective action would negatively impact the agency’s ability to

defend against his claim. As the administrative judge noted, the agency would

have to prove by clear and convincing evidence that it would have taken the same

action in the absence of the appellant’s protected disclosures and given the

deciding official’s limited recollection of the details surrounding the appellant’s

disclosures and reassignment, the agency would be disadvantaged to meet such a

high standard. ID at 7.

The appellant also asserts on review that the agency’s argument that it

would be prejudiced due to the limited memory of the deciding official is

insufficient because other witnesses are available. PFR File, Tab 1 at 12-13. To

support his assertion, the appellant cites Nuss v. Office of Personnel Management,

974 F.2d 1316, 1318 (Fed. Cir. 1992), to seemingly argue that even if the agency

established that the deciding official’s lack of memory prejudiced its ability to

defend against the appellant’s claim, the agency is not actually prejudiced

because “there would be a number of witnesses available to assist the [deciding

official] to recall details” and he proved that other witnesses are available.

The agency counsel asserted below that documents related to the appellant’s claim

created before 2019 were not retained. IAF, Tab 9 at 5 n.2. However, the statements of

a party’s representative in a pleading do not constitute evidence. Hendricks v.

Department of the Navy, 69 M.S.P.R. 163, 168 (1995).

PFR File, Tab 1 at 12-13. The appellant’s reliance on Nuss is misplaced.

In Nuss, the court found that the unavailability of a personnel officer familiar

with the appellant’s position description did not prejudice the agency because

other witnesses testified or submitted affidavits attesting to his actual duties when

it was his actual duties, rather than his position description, that was relevant to

his claim. 974 F.2d at 13, 18-19. In this case, the deciding official is a witness

with knowledge of the facts relevant to the appellant’s claim and the agency’s

defense. However, the appellant’s proffered witnesses, like the personnel officer

in Nuss, both lack the knowledge relevant to the appellant’s claim that the

deciding official considered his protected disclosures in his 2013 reassignment.

IAF, Tab 10 at 15-17.

Therefore, we agree with the administrative judge that the agency has

produced sufficient evidence to demonstrate that it would be unreasonably

prejudiced by the appellant’s significant unexplained delay in seeking corrective

action related to his 2013 reassignment. Accordingly, we find the appellant’s

2013 reassignment barred by the doctrine of laches.

The administrative judge correctly concluded that the Board lacks jurisdiction

over his nonselection and return rights claims.

The Board has jurisdiction over an IRA appeal if the appellant exhausts his

administrative remedies before OSC and makes nonfrivolous allegations that

he made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or engaged

in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or

(D), and the disclosure or protected activity was a contributing factor in the

agency’s decision to take or fail to take a personnel action. Chambers v.

Department of Homeland Security, 2022 MSPB 8, ¶ 14; see Hessami v. Merit

Systems Protection Board, 979 F.3d 1362, 1367 (Fed. Cir. 2020). The Board’s

regulations define a nonfrivolous allegation as an assertion that, if proven, could

establish the matter at issue. 5 C.F.R. § 1201.4(s). The U.S. Court of Appeals

for the Federal Circuit has found that, in the context of an IRA appeal, a

nonfrivolous allegation is an allegation of “sufficient factual matter, accepted as

true, to state a claim that is plausible on its face.” Hessami v. Merit Systems

Protection Board, 979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020). Once an appellant

establishes jurisdiction over his IRA appeal, he is entitled to a hearing on the

merits of his claim, which he must prove by preponderant evidence. Rebstock

Consolidation v. Department of Homeland Security, 122 M.S.P.R. 661, ¶ 9

(2015).

The appellant exhausted his administrative remedies before OSC.

The Board may only consider those disclosures and personnel actions that

an appellant raised before OSC. 5 U.S.C. § 1214(a)(3); Baldwin v. Department of

Veterans Affairs, 113 M.S.P.R. 469, ¶ 8 (2010). The administrative judge appears

to have found implicitly that the appellant exhausted his administrative remedies

before OSC. ID at 2. Because the administrative judge did not make specific

findings as to which disclosures and personnel actions the appellant exhausted,

we do so here.

The substantive requirements of exhaustion are met when an appellant has

provided OSC with sufficient basis to pursue an investigation. Chambers,

2022 MSPB 8, ¶ 10. Generally, exhaustion can be demonstrated through the

appellant’s initial OSC complaint, evidence the original complaint was amended

(including but not limited to OSC’s determination letter and other letters from

OSC referencing any amended allegations), and the appellant’s written responses

to OSC referencing the amended allegations. Mason v. Department of Homeland

Security, 116 M.S.P.R. 135, ¶ 8 (2011). Alternatively, exhaustion may be proved

through other sufficiently reliable evidence, such as an affidavit or declaration

attesting that the appellant raised with OSC the substance of the facts in his

appeal. Chambers, 2022 MSPB 8, ¶ 11.

Here, the appellant submitted a closure letter from OSC dated

July 21, 2021, which provided that “[he] disclosed financial fraud by the

Comptroller and mismanagement of the manpower and staffing of [his]

organization.” IAF, Tab 1 at 8. The letter also refers to the appellant’s

allegations that the agency took multiple actions against him, including

reassigning him, impeding his return rights, and not selecting him for multiple

positions, in retaliation for his disclosures. Id. at 8. In addition, the appellant

submitted a letter dated July 19, 2021, which he purports to be a response to OSC.

IAF, Tab 10 at 12. Therefore, we explicitly find that the appellant’s response to

OSC and OSC’s closure letter are sufficient to establish exhaustion.

The administrative judge correctly concluded that the appellant

failed to nonfrivolously allege that his protected disclosures were a

contributing factor in the agency’s decision to take personnel actions

against him in 2018, 2019, and 2021.

On review, the appellant seemingly argues that his protected disclosures

were a contributing factor in the agency’s decisions to take personnel actions

against him because the agency officials involved in the personnel actions were

influenced to retaliate against him. PFR File, Tab 1 at 13-20. We are not

persuaded.

To satisfy the contributing factor criterion at the jurisdictional stage,

an appellant need only raise a nonfrivolous allegation that the fact of, or content

of, the protected disclosure or activity was one factor that tended to affect the

personnel action in any way. Chambers, 2022 MSPB 8, ¶ 14. One way to

establish this criterion is the knowledge/timing test, under which an employee

may nonfrivolously allege that the disclosure or activity was a contributing factor

in a personnel action through circumstantial evidence, such as evidence that the

official taking the personnel action knew of the disclosure or activity and that the

personnel action occurred within a period of time such that a reasonable person

could conclude that the disclosure or activity was a contributing factor in the

personnel action. Id., ¶ 15; see 5 U.S.C. § 1221(e)(1). If an appellant fails to

satisfy the knowledge/timing test, the Board must consider other evidence, such

as that pertaining to the strength or weakness of the agency’s reasons for taking

the personnel action, whether the whistleblowing was personally directed at the

proposing or deciding official, and whether those individuals had a desire or

motive to retaliate against the appellant.

The appellant’s alleged disclosures occurred in 2011-2012, which is at least

6 years before the agency allegedly impeded his return rights in 2018 and 7 years

before it failed to select him for positions in 2019 and 2021, respectively.

IAF, Tab 8 at 4-6. Therefore, we agree with the administrative judge that such a

gap in time is too remote to satisfy the knowledge/timing test. ID at 9-10; see

Salinas v. Department of the Army, 94 M.S.P.R. 54, ¶ 10 (2003) (finding that a

disclosure made 2 1/2 to 3 years before the relevant personnel actions was too

remote for a reasonable person to conclude the disclosure was a contributing

factor to the actions).

Regarding the denial of his return rights, the record reflects that the

appellant’s disclosures were not personally directed at the agency officials that

he indicated were responsible for denying his rights. IAF, Tab 8 at 4, 9.

The record is also devoid of evidence tending to show that the agency officials

involved in effecting his return rights had a strong motivate to retaliate against

him. Thus, we agree with the administrative judge that the appellant failed to

nonfrivolously allege that his disclosures in 2011-2012 contributed to the

agency’s decisions concerning his return rights in 2018.

The appellant’s disclosures also were not personally directed at the agency

officials that he indicated were involved in the agency’s nonselection decisions.

Id. at 5-6, 9-10. However, he indicated, below and on review, that two of the

agency officials involved in his nonselections had direct knowledge of his alleged

whistleblowing activity. PFR File, Tab 1 at 7; IAF, Tab 8 at 4-5. Nonetheless,

other than his own conclusory assertions, the appellant identifies no specific

evidence or argument that, if true, could show that the agency officials that were

aware of his disclosures had any motive to retaliate against him. Id. Therefore,

we find that the appellant failed to raise nonfrivolous allegations that he made

protected disclosures that were contributing factors in the denial of his return

rights or the agency’s nonselection decisions.

Accordingly, we dismiss the appeal for lack of jurisdiction.

NOTICE OF APPEAL RIGHTS 3

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 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.

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