Opinion

Gabriel Kotsis v. Department of Transportation

Court: Merit Systems Protection Board
Filed: Apr 24, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.9%

stating that an appellant has a personal duty to monitor the progress of his appeal at all times and not leave it entirely to his attorney

How later courts described this case

stating that an appellant has a personal duty to monitor the progress of his appeal at all times and not leave it entirely to his attorney

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

GABRIEL KOTSIS, DOCKET NUMBER

Appellant, AT-0432-16-0006-B-1

DEPARTMENT OF DATE: April 24, 2024

TRANSPORTATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Gabriel Kotsis , Atlanta, Georgia, pro se.

Dolores Francis , Washington, D.C., 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

affirmed his performance-based removal. On petition for review, among other

things, the appellant attributes his failure to respond to the administrative judge’s

orders below to his representative’s failure to timely inform him of the

termination of his representation. Generally, we grant petitions such as this one

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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).

DISCUSSION OF ARGUMENTS ON REVIEW

In the remand proceedings below, the administrative judge ordered the

parties to advise him whether additional discovery or reconvening of the hearing

would be required pursuant to the Board’s August 9, 2022 Remand Order. Kotsis

v. Department of Transportation, MSPB Docket No. AT-0432-16-0006-B-1,

Remand File (RF), Tab 5 at 1. Because neither party responded, the

administrative judge issued a close of record order setting a date by which

additional evidence and argument must be received. RF, Tab 6 at 1. Neither

party responded to this order either. The administrative judge then issued a

remand initial decision, affirming the appellant’s removal and finding his

affirmative defenses without merit.

In his pro se petition for review, the appellant appears to attribute his

failure to respond to the administrative judge’s orders to his representative’s

failure to timely inform him of the termination of his representation. Kotsis v.

Department of Transportation, MSPB Docket No. AT-0432-16-0006-B-1,

Remand Petition for Review (RPFR) File, Tab 1 at 4. Although an appellant is

bound by the errors of his chosen representative, the Board has held that, when an

appellant’s diligent efforts to prosecute his appeal were thwarted by his

representative’s negligence or malfeasance, the appellant and his representative

were not acting as one, and the representative’s negligence or malfeasance should

not be attributed to the appellant. Caracciolo v. Office of Personnel

Management, 86 M.S.P.R. 601, ¶ 5 (2000). Here, it is not clear from the petition

for review or the circumstances that the appellant’s prior representative

committed negligence or malfeasance such that relief would be appropriate. After

the appellant’s representative filed the petition for review in the initial appeal, the

appellant filed his reply to the agency’s response as well as the motion to excuse

the untimely filing of his reply, both pro se. Kotsis v. Department of

Transportation, MSPB Docket No. AT-0432-16-0006-I-1, Petition for Review

File, Tabs 4, 6. These pleadings indicate that the appellant should have been

aware when he filed them in 2016 that his prior representative had ceased

representing him. This was many years before the Board’s August 2022 Remand

Order and subsequent proceedings. Further, the circumstances indicate that the

appellant was less than diligent in prosecuting his appeal during the remand

proceedings.

In his petition for review, the appellant states that he was informed when

he visited his representative’s firm’s offices in person on October 11, 2022, after

the issuance of the remand initial decision, that his representative no longer

worked for the firm and the firm no longer represented him in his appeal.

RPFR File, Tab 1 at 4. Because the appellant was a registered e-filer, it can be

presumed that he received both the administrative judge’s September 6,

2022 Order inviting the parties to request discovery or a hearing and the

September 14, 2022 Close of Record Order stating that neither party had done so.

RF, Tabs 5-6; see 5 C.F.R. § 1201.14(m)(2) (documents served electronically on

registered e-filers are deemed received on the date of electronic submission). Yet

the appellant’s statements indicate that he chose to wait until after the

October 6, 2022 Remand Initial Decision to first contact his representative about

the remand proceedings. RPFR File, Tab 1 at 1. It thus appears that the

appellant’s failures to respond to the administrative judge’s orders in the remand

proceedings were attributable foremost to his failure to diligently prosecute his

appeal. See Rowe v. Merit Systems Protection Board, 802 F.2d 434, 438 (Fed.

Cir. 1986) (stating that an appellant has a personal duty to monitor the progress of

his appeal at all times and not leave it entirely to his attorney). Under these

circumstances, we find that the appellant is not entitled to any relief regarding

this issue. 2

The appellant raises several new arguments on review, namely what appears to

constitute an age discrimination affirmative defense and claims related to his

performance appraisals and his supervisor’s feedback. RPFR File, Tab 1 at 5-6. The

appellant failed to raise these claims below or show that they are based on new and

material evidence not previously available despite due diligence, and we thus decline to

consider them. Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016). In any

event, the evidence is insufficient to support an age discrimination affirmative defense

or the appellant’s claim regarding his 2017 performance appraisal, and the appellant’s

claim that the deciding official did not give him performance feedback has no bearing

on whether the agency proved the elements of a performance -based removal under

5 U.S.C. chapter 43. The appellant also appears to raise on review a national origin

discrimination affirmative defense, which he raised in his initial appeal but at no point

thereafter until the petition for review of the remand initial decision. RPFR File, Tab 1

at 5; Kotsis v. Department of Transportation, MSPB Docket No. AT-0432-16-0006-I-1,

Initial Appeal File (IAF), Tab 1 at 16. Pursuant to Thurman v. U.S. Postal Service,

2022 MSPB 21, ¶¶ 17-18, we find that the appellant has abandoned this affirmative

defense. In his “statement of the issues” in his prehearing submission in the initial

appeal, the appellant asserted affirmative defenses of equal employment opportunity

reprisal and disability discrimination, but none else. IAF, Tab 26 at 4. He did not

mention a national origin discrimination affirmative defense again after initially raising

it in his appeal, did not object to the summary of the prehearing conference omitting the

defense despite specifically being afforded the chance to object, was represented during

the course of the appeal at least until his reply in the initial appeal’s petition for review

proceedings, and there is no indication that his presumptive abandonment of the defense

was the product of confusion or information provided by the agency or the Board. IAF,

28 at 1, 5-10; Hearing Recording (opening remarks of the administrative judge). Thus,

we discern no reason to address this argument further. Thurman, 2022 MSPB 21, ¶ 17.

In addition, the record evidence does not support such an affirmative defense.

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.

(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. 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