Opinion

Andrew Faris 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Status: Unpublished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%

finding that the Board cannot review the merits of an appeal if it lacks 7 jurisdiction (citations omitted)

How later courts described this case

finding that the Board cannot review the merits of an appeal if it lacks 7 jurisdiction (citations omitted)

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANDREW D. FARIS, DOCKET NUMBER

Appellant, CH-3443-22-0155-I-1

UNITED STATES POSTAL SERVICE, DATE: April 29, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Andrew D. Faris , Indianapolis, Indiana, pro se.

Maryl Rosen , Esquire, St. Louis, Missouri, 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 removal appeal on the basis of adjudicatory efficiency. 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 judge’s rulings

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. We VACATE the initial decision and DISMISS the appeal for lack of

jurisdiction.

The appellant was a Laborer Custodial for the United States Postal Service.

Initial Appeal File (IAF), Tab 10 at 28. Effective February 14, 2020, the agency

removed him for violating a last chance agreement (LCA). Id. at 16-17. That

same month, he appealed his removal to the Board. Faris v. United States Postal

Service, MSPB Docket No. CH-0752-20-0205-I-1, IAF (0205 IAF), Tab 1. The

administrative judge dismissed the appeal for lack of jurisdiction. 0205 IAF,

Initial Decision (0205 ID) at 1, 8. After the appellant filed a petition for review,

the Board issued a Final Order that affirmed the initial decision. Faris v. United

States Postal Service, MSPB Docket No. CH-0752-20-0205-I-1, Final Order

(April 26, 2024) (0205 Final Order).

In January 2022, the appellant filed the instant appeal, again challenging

the merits of the agency’s decision to remove him for violating the LCA, and

alleging that the agency discriminated against him based on unspecified purviews

in connection to the removal, the LCA was invalid, the LCA included a

non-disclosure agreement (NDA) in violation of 5 U.S.C. § 2302(b)(13), and the

agency inconsistently applied its policies regarding absence without leave

(AWOL) and unscheduled leave. IAF, Tab 1 at 3, 5, Tab 4 at 5. In an order to

show cause, the administrative judge noted that, the appellant alleged that he was

“the subject of an adverse action from the United States [P]ostal [S]ervice almost

every other week.” IAF, Tab 3 at 2 (quoting IAF, Tab 1 at 5). She ordered the

appellant to identify the agency actions that he was appealing. Id. at 2, 4-5. She

provided a list of matters appealable to the Board. Id. at 2-4. The appellant

responded, reiterating his claims concerning the removal, discrimination, the

NDA, and AWOL and unscheduled leave while adding allegations that the agency

breached the LCA, defamed him in its February 3, 2020 removal decision letter,

and denied his due process rights by not allowing him “an opportunity to reply to

the charge” of removal. IAF, Tab 8 at 4-6, Tab 9 at 4, 8-11, 13. The agency

responded to the order to show cause. IAF, Tab 10. The agency argued that the

administrative judge must dismiss the appeal for a variety of reasons, including

on the grounds of adjudicatory efficiency because the appellant previously filed

several other appeals with the Board asserting identical claims. Id. at 10-12.

In her initial decision, the administrative judge dismissed the instant appeal

for lack of jurisdiction. IAF, Tab 11, Initial Decision (ID). She reasoned that it

was appropriate to dismiss the appellant’s claims regarding the merits of his

removal, the validity of the LCA, and the agency’s alleged breach of the LCA on

grounds of adjudicatory efficiency, finding that he had raised the matter in a prior

appeal, Faris v. United States Postal Service, MSPB Docket

No. CH-0752-20-0205-I-1 (0205 Appeal), that was then awaiting Board action on

the appellant’s petition for review. 1 ID at 1, 4. Regarding the appellant’s AWOL

Besides the 0205 Appeal, the appellant has filed a number of other appeals prior to the

instant one, including at least two that challenge his removal. See Faris v. United

States Postal Service, MSPB Docket No. CH-0752-21-0099-I-1, Initial Decision (March

2, 2021) (dismissing the appeal as untimely filed without good cause); Faris v. United

States Postal Service, MSPB Docket No. CH-3443-20-0495-I-1, Initial Decision

(November 6, 2020) (dismissing the appeal for lack of jurisdiction and declining to

consider the appellant’s claims related his the LCA and his removal on the basis of

adjudicatory efficiency). The appellant has filed petitions for review in those appeals,

which are still pending with the Board. He subsequently filed at least one additional

appeal concerning his removal, Faris v. United States Postal Service, MSPB Docket No.

CH-3443-22-0253-I-1 (0253 Appeal). The parties have not sought review of the

administrative judge’s June 2022 initial decision dismissing that appeal, and that

decision is now final. 0253 Appeal, Initial Decision (June 7, 2022) (finding that the

Board lacks jurisdiction over the appellant’s challenge to the agency’s determination

and unscheduled leave claim, she found that was connected to his removal, which,

as just stated, she refused to adjudicate. Id. She also determined that the Board

had no jurisdiction over the appellant’s defamation allegation and due process

claims. ID at 4-5. As to his discrimination claims, the administrative judge noted

that the appellant had not raised a claim of discrimination based on uniformed

service. ID at 5 n.2. In addition, she observed that the appellant had not alleged

a violation of his veterans’ preference rights. Id.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. In his petition for review, he reiterates his claims concerning the

merits of his removal, reasserts that the LCA is invalid and that the agency

violated his right to due process, and provides examples of “discrimination or

harassment.” 2 Id. at 4-5. He also argues that, to the extent he untimely filed his

appeal, it was for good cause. Id. at 5-6. The agency has filed a response.

PFR File, Tab 3.

When an appellant files an appeal that is identical to claims raised in an

earlier appeal after the initial decision in an earlier appeal was issued, but before

that he was AWOL, and declining to consider the appellant’s removal-related claims on

the basis of adjudicatory efficiency); see 5 C.F.R. § 1201.113(a) (stating that an initial

decision generally becomes final after 35 days if neither party files a timely petition for

review).

On review, the appellant submits the following new documentation: a December 11,

2019 message cancelling a doctor’s appointment for the next day; and emails dated

December 17, 2019, and January 3, 2020, between the appellant, agency, and union

personnel. PFR File, Tab 1 at 8-10. The rest of the documentation submitted with the

petition for review is in the record below. IAF, Tab 8 at 10, Tab 9 at 4-16; PFR File,

Tab 1 at 7, 11-19. The Board may consider new and material evidence or legal

argument on review if, despite the party’s due diligence, it was not available when the

record closed. Spivey v. Department of Justice, 2022 MSPB 24, ¶ 15; 5 C.F.R.

§ 1201.115(d). The documents submitted by the appellant with his petition for review

predate his appeal. He has not explained why he was unable to obtain them previously.

In any event, the documents are not relevant to the dispositive collateral estoppel issue,

and therefore provide no basis for granting review. Russo v. Veterans Administration,

3 M.S.P.R. 345, 349 (1980) (explaining that the Board 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).

the full Board has acted on the appellant’s petition for review, it is appropriate to

dismiss the subsequent appeal on the grounds of adjudicatory efficiency.

See McNeil v. Department of Defense, 100 M.S.P.R. 146, ¶ 11 (2005). At the

time the administrative judge issued her initial decision, the appellant’s petition

for review in his 0205 Appeal was still pending at the Board. However, the

Board now has issued its decision on the petition for review in that case,

affirming the initial decision dismissing his appeal for lack of Board jurisdiction,

so the administrative judge’s basis for dismissing the appeal is no longer valid.

See id.; 0205 Final Order. Under these circumstances, it remains appropriate to

dismiss the instant appeal, though on jurisdictional grounds relying on the

doctrine of collateral estoppel, rather than on the basis of adjudicatory efficiency.

McNeil, 100 M.S.P.R. 146, ¶ 11.

The purpose of collateral estoppel is to “relieve the parties of the cost and

vexation of multiple lawsuits, conserve judicial resources, and, by preventing

inconsistent decisions, encourage reliance on adjudication.” Peartree v. U.S.

Postal Service, 66 M.S.P.R. 332, 336-37 (1995) (quoting Allen v. McCurry,

449 U.S. 90, 94 (1980)). Collateral estoppel may be grounds for dismissing an

appeal for lack of jurisdiction if a jurisdictional determination in a prior decision

is afforded collateral estoppel effect and the appellant provides no other valid

basis of Board jurisdiction. Noble v. U.S. Postal Service, 93 M.S.P.R. 693, ¶ 11

(2003). It is appropriate when: (1) the issue is identical to that involved in the

prior action; (2) the issue was actually litigated in the prior action; (3) the

determination on the issue in the prior action was necessary to the resulting

judgment; and (4) the party against whom the issue preclusion is sought had a full

and fair opportunity to litigate the issue in the prior action. McNeil, 100 M.S.P.R.

146, ¶ 15 (2005).

The Board’s jurisdiction over the appellant’s removal was actually litigated

before the Board in the appellant’s 0205 Appeal. The “actually litigated” element

is satisfied when the issue was properly raised by the pleadings, was submitted

for determination, and was determined. Kavaliauskas v. Department of the

Treasury, 120 M.S.P.R. 509, ¶ 6 (2014). In the initial decision in that case, the

administrative judge found, after providing the parties with an opportunity to

address the jurisdictional issue, that the appellant failed to allege that he complied

with the LCA; did not knowingly and voluntarily enter into the LCA; the agency

materially breached the LCA or acted in bad faith; and that the LCA resulted from

fraud or mistake. 0205 ID at 4-8. These findings were necessary to the

administrative judge’s determination in the initial decision that the Board lacks

jurisdiction over the appellant’s removal. Faris v. United States Postal Service,

0205 ID at 4-5, 8 (citing Willis v. Department of Defense, 105 M.S.P.R. 466, ¶ 17

(2007) (stating that the Board lacks jurisdiction over an action taken pursuant to

an LCA in which an appellant waives his right to appeal to the Board unless an

appellant establishes one of these bases for not enforcing the LCA). After the

appellant petitioned for review, the Board affirmed that decision. 0205 Final

Order. Finally, the appellant has fully represented himself in every one of his

appeals. Fischer v. Department of Defense, 64 M.S.P.R. 509, 515 (1994)

(determining that a party’s pro se status does not preclude the application of

collateral estoppel). Thus, the doctrine of collateral estoppel is appropriate here.

Because the doctrine of collateral estoppel prevents the appellant from relitigating

the issue of the Board’s jurisdiction over his removal, the Board does not have

jurisdiction over the instant appeal.

On review, in addition to challenging the enforceability of the LCA on

various bases, the appellant disputes the merits of his removal, argues that the

agency denied him procedural due process, and expands on his discrimination

claims. PFR File, Tab 1 at 4-5, 8-10, 12-16. He still does not specify the nature

of the agency’s alleged discrimination. Id. at 5. In the absence of jurisdiction,

we lack the authority to review the merits of the appellant’s removal.

See Schmittling v. Department of the Army, 219 F.3d 1332, 1337 (Fed. Cir. 2000)

(finding that the Board cannot review the merits of an appeal if it lacks

jurisdiction (citations omitted)). His remaining claims do not provide an

independent source of Board jurisdiction absent an otherwise appealable action.

See Penna v. U.S. Postal Service, 118 M.S.P.R. 355, ¶ 13 (2012) (finding that

absent an otherwise appealable action, the Board lacks jurisdiction over a claims

of harmful error and discrimination, and that the agency engaged in other

prohibited personnel practices); Smith v. Department of Defense, 106 M.S.P.R.

228, ¶ 13 (2007) (recognizing that the Board has no jurisdiction to review

constitutional claims that are not coupled with an independently appealable

action). Finally, although the appellant does not reassert his defamation claim on

review, we agree with the administrative judge that the Board lacks jurisdiction

over this claim. ID at 4-5; Paul v. Department of Agriculture, 66 M.S.P.R. 643,

650 (1995). Accordingly, we dismiss the instant appeal for lack of jurisdiction. 3

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.

Because we find that the Board lacks jurisdiction over the appeal, we need not address

the appellant’s arguments concerning timeliness. PFR File, Tab 1 at 5-6.

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.

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:

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).

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.

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