Opinion

James Chesney v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Apr 29, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JAMES W. CHESNEY, DOCKET NUMBER

Appellant, PH-0752-19-0210-I-1

UNITED STATES POSTAL SERVICE, DATE: April 29, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Joseph J. Chester , Esquire, Pittsburgh, Pennsylvania, for the appellant.

Donna G. Marshall , Esquire, Philadelphia, Pennsylvania, 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 chapter 75 demotion appeal as moot. For the reasons discussed

below, we GRANT the appellant’s petition for review, VACATE the initial

decision, and DISMISS the appeal as moot on petition for review.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BACKGROUND

Effective March 30, 2019, the agency reduced the appellant in pay and

grade from EAS-21 Postmaster to EAS-17 Operations Programs Specialist.

Initial Appeal File (IAF), Tab 1 at 9-27, Tab 6 at 8. 2 The appellant filed a Board

appeal and requested a hearing. IAF, Tab 1 at 3. Although the appellant initially

indicated that he was “incorporat[ing] discrimination allegations [from] pending

[equal employment opportunity] claims,” id. at 5, he subsequently withdrew his

discrimination-based claims, IAF, Tab 26 at 39, Tab 38 at 4.

On November 3, 2020, prior to a hearing on the matter, the agency

informed the appellant via letter that it had rescinded his demotion and that it

would provide him with “the difference in pay from March 31, 2019 through

present.” IAF, Tab 74 at 6. The agency also filed a motion to dismiss the appeal

as moot, arguing that it had restored the appellant to the status quo ante. Id.

at 4-5. The appellant thereafter argued that the appeal was not moot and that he

was entitled to a hearing on the issue of mootness. IAF, Tab 78 at 4-7, Tab 83

at 4-15.

Without holding the appellant’s requested hearing, the administrative judge

issued an initial decision dismissing the appeal as moot. IAF, Tab 84, Initial

Decision (ID) at 2, 4. She explained that the appellant had withdrawn his

discrimination claims and, therefore, was ineligible for either compensatory or

consequential damages. ID at 3. She concluded that the appellant had therefore

received all of the relief to which he would have been entitled if the matter had

been adjudicated and he had prevailed. Id.

The appellant has filed a petition for review, the agency has filed a

response, and the appellant has filed a reply. Petition for Review (PFR) File,

Tabs 1, 3-4. In his petition and reply, the appellant argues that the administrative

The agency initially proposed to reduce the appellant to the position of EAS-16

Business Service Network Representative; however, the agency explained in its decision

letter that this had been an administrative error and that no such position was available.

IAF, Tab 1 at 9, 24.

judge erred in dismissing the appeal as moot insofar as he was entitled to, but did

not receive, the following: (1) compensatory damages; (2) consequential

damages; (3) attorney fees; (4) restoration of his support staff; (5) restoration of

sick and annual leave that he used to work on his Board appeal; and

(6) “restoration of sick and vacation days he used rather than administrative leave

as [an] exempt employee.” PFR File, Tab 1 at 4-18, Tab 4 at 4-7.

Approximately 2 months after the appellant filed his reply, the agency

moved for leave to file a supplemental response in opposition to the appellant’s

petition for review. PFR File, Tab 7 at 4-5. The Office of the Clerk of the Board

issued an order that granted the agency’s motion. PFR File, Tab 9 at 1-2. The

agency then filed a supplemental response in which it averred that it had credited

the appellant with sick and annual leave that he would not have been required to

use had he not been temporarily demoted. PFR File, Tab 10 at 4-6. The appellant

has not replied to the agency’s supplemental response.

ANALYSIS

The Board may dismiss an appeal as moot if the appealable action is

cancelled or rescinded by the agency. Harris v. Department of the Air Force ,

96 M.S.P.R. 193, ¶ 5 (2004). For an appeal to be deemed moot, the agency’s

rescission of the appealed action must be complete, and the employee must be

returned to the status quo ante. Id. Status quo ante relief generally requires that

the appellant be placed back in his former position or in one substantially

equivalent in scope and status to his former position, with back pay. Id., ¶ 6; see

Murphy v. Department of Justice, 107 M.S.P.R. 154, ¶ 6 (2007) (explaining that

for an appeal to be rendered moot, an appellant must receive all of the relief that

he could have received if the matter had been adjudicated and he had prevailed).

Here, the appellant argues that the administrative judge erred in dismissing

the matter as moot because he was entitled to, but did not receive, compensatory

damages. PFR File, Tab 1 at 5-6, 15-16, Tab 4 at 5-6. He argues that he was

entitled to such damages “as a result of estoppel and laches” and because the

agency exhibited “bad-faith conduct” during the pendency of his appeal before

the administrative judge. PFR File, Tab 1 at 6, 15-16. However, we find no basis

to disturb the administrative judge’s reasoned conclusion that, because the

appellant withdrew his discrimination claims, he was ineligible for compensatory

damages. ID at 3; IAF, Tab 26 at 39, Tab 38 at 4; see Currier v. U.S. Postal

Service, 72 M.S.P.R. 191, 196-98 (1996) (explaining that compensatory damages

are available only when an appellant raises a claim of prohibited discrimination in

connection with an otherwise appealable action); see also 5 C.F.R. § 1201.201(d)

(stating that the Board may authorize an award of compensatory damages to a

prevailing party who is found to have been intentionally discriminated against

based on race, color, religion, sex, national origin, or disability).

The appellant contends that he was entitled to, but did not receive,

consequential damages, to include compensation for travel and commuting

expenses that he incurred because his demotion temporarily changed his duty

station. PFR File, Tab 1 at 10-11; IAF, Tab 79 at 23-37. Again, however, we

find no basis to disturb the administrative judge’s conclusion that the appellant

was ineligible for such damages. ID at 3; see 5 C.F.R. § 1201.201(c) (explaining

that the Board may award consequential damages only when it orders corrective

action in a whistleblower appeal under 5 U.S.C. § 1221 or when it orders

corrective action in a Special Counsel complaint under 5 U.S.C. § 1214). Thus, a

different outcome is not warranted.

The appellant asserts that the administrative judge erred in dismissing his

appeal as moot because he had claimed entitlement to $48,081.00 in attorney fees

and associated costs. PFR File, Tab 1 at 12-13. Outstanding attorney fee issues,

however, do not prevent the dismissal of an appeal as moot. Currier, 72 M.S.P.R.

at 198. Indeed, the Board considers attorney fee issues in an addendum

proceeding after an appellant files a separate petition on that issue. See 5 C.F.R.

§§ 1201.201-1201.205. Thus, the appellant’s assertion regarding attorney fees

does not provide a basis to disturb the initial decision.

The appellant also argues that the appeal was not moot because he was

entitled to, but did not receive, restoration of either (1) the same “quantum” of

support staff that he enjoyed prior to his demotion or (2) leave that he used to

“prepare and defend” his Board appeal. PFR File, Tab 1 at 5, 11-12. We

disagree. Indeed, the appellant does not cite, and we are unable to locate, any

legal authority, such as a provision in the Postal Service’s Employee and Labor

Relations Manual (ELM), 3 to support his apparent assertion that, had the matter

been adjudicated and he had prevailed, the agency would have been required to

either restore staffing levels or compensate him for leave that he used to work on

his Board appeal. See Murphy, 107 M.S.P.R. 154, ¶ 6.

Last, the appellant argues that he was entitled to “restoration of sick and

vacation days he used rather than administrative leave as [an] exempt employee.”

PFR File, Tab 1 at 5. Essentially, the appellant is arguing that he was required to

use more of his sick and annual leave during the period of his demotion because

the temporary downgrade in position rendered him ineligible for “personal

absence time.” We agree with the appellant that this is additional relief to which

he would have been entitled if the appeal had been fully adjudicated and he had

prevailed. See Galatis v. U.S. Postal Service, 110 M.S.P.R. 399, ¶ 7 (finding that

the appellant was entitled to the restoration of certain leave that he used while

temporarily demoted because he would not have been required to use the leave

had he remained in his supervisory position), modified on reconsideration,

111 M.S.P.R. 484 (2009); see also ELM § 519.72 (stating that Fair Labor

Standards Act exempt Postal Service employees may request time off to attend to

personal matters during the workday, which may be considered “personal absence

time” and not charged as annual leave, sick leave, or leave without pay). The

record shows that the agency had not yet restored this leave to the appellant at the

https://about.usps.com/manuals/elm/elm.htm (last visited Apr. 29, 2024).

time the initial decision was issued. PFR File, Tab 10 at 4-5, 32; ID. Therefore,

the appeal was not moot when the administrative judge dismissed it.

Nevertheless, we find that the appeal became moot during the pendency of

the petition for review. The agency has filed evidence showing that, on or about

May 27, 2021, it restored all leave to which the appellant may have been entitled

pursuant to ELM § 519.72, i.e., leave that may properly have been categorized as

“personal absence time” had the appellant remained in his EAS-21 Postmaster

position. PFR File, Tab 10 at 6, 32. The appellant does not dispute this matter.

Accordingly, we find that no factual dispute remains regarding leave owed to the

appellant by virtue of his temporary ineligibility for personal absence time, and

therefore, the appeal is now moot. See Murray v. Department of Defense,

92 M.S.P.R. 361, ¶ 16 (2002) (explaining that mootness can arise at any stage of

litigation and that the Board must dismiss an appeal as moot when it cannot grant

any effectual relief in favor of the appellant).

ORDER

This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.

§ 1201.113).

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at Title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 4

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. 5 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