The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROSCOE HOWARD PRICE, III, DOCKET NUMBER
Appellant, DC-1221-22-0443-W-1
v.
DEPARTMENT OF EDUCATION, DATE: May 1, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Roscoe Howard Price, III , Prince Frederick, Maryland, pro se.
Jill Siegelbaum and Kristina Lozupone , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in his individual right of action (IRA)
appeal. For the reasons discussed below, we GRANT the appellant’s petition for
review, VACATE the initial decision, and REMAND the case to the regional
office for further adjudication in accordance with this Remand Order.
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
BACKGROUND
The appellant, a GS-15 Contract Specialist, filed this IRA appeal pro se,
wherein he alleged that the agency subjected him to various personnel actions in
retaliation for his protected whistleblowing. Initial Appeal File (IAF), Tab 1.
Pursuant to the administrative judge’s acknowledgment order, the parties timely
initiated discovery. IAF, Tab 5 at 2-3, Tab 20 at 2. The appellant timely served
the agency with requests for production of documents. IAF, Tab 30 at 8-10.
Specifically, the appellant sought email communications and many of his requests
contained a date range, keywords, and requested custodians. Id. The agency
responded with objections and nothing else. Id. at 12-16.
On July 22, 2022, the appellant filed three motions requesting that the
administrative judge compel the agency to respond to his discovery requests.
IAF, Tabs 26-28. The administrative judge summarily denied the motions
because the appellant did not include a statement regarding his efforts to meet and
confer with the agency to narrow the areas of disagreement pursuant to 5 C.F.R.
§ 1201.73(c). IAF, Tab 29 at 1. The appellant subsequently filed another motion
to compel, wherein he asserted that he had attempted to resolve the dispute with
the agency prior to filing his motion. IAF, Tab 30 at 5. The agency filed a
response and, in relevant part, asserted that it was “willing to engage in
discussions to resolve the dispute, possibly even agree to narrowing some of [the
appellant’s] requests.” IAF, Tab 32 at 5-6. Attached to the agency’s filing were
several emails between the parties discussing the relevant requests. Id. at 25-40.
On July 27, 2022, the same day the agency filed its response to the
appellant’s motion to compel, counsel for the appellant entered an appearance.
IAF, Tab 33. The following day, on July 28, 2022, the administrative judge
issued an order denying without prejudice the appellant’s motion to compel.
IAF, Tab 34. He noted the agency’s assertion that it remained willing to discuss
the discovery requests and stated that, “[b]ased on the appearance of counsel, I
conclude that the more appropriate approach is to deny the present motion to
3
compel without prejudice so that counsel for both parties can meet and confer and
evaluate whether they can resolve any of the discovery disputes.” Id. at 1.
The order did not contain a deadline for the parties to meet and confer; however,
a prior order stated that all discovery-related motions must be filed by August 19,
2022, the same day that discovery was scheduled to close. IAF, Tab 20 at 2.
On August 17, 2022, counsel for the appellant emailed agency counsel to
meet and confer about the relevant discovery requests. 2 IAF, Tab 36 at 16-19.
The agency responded that it had not provided any documents that were
responsive to the relevant discovery requests because it objected, for many
reasons, to each request and, because discovery was set to close on August 19, it
would not complete a search for documents even if the appellant agreed to narrow
the requests. Id. at 15-16. The agency also objected to the appellant’s request to
extend the discovery deadline. Id. at 13.
On August 19, 2022, counsel for the appellant filed another motion to
compel regarding the requests for production of documents. Id. at 4-10. The
agency filed a response in opposition. IAF, Tab 37. The administrative judge
denied the appellant’s motion to compel, finding that the appellant had failed to
meet and confer with the agency in good faith. IAF, Tab 38 at 1-2. He found that
the appellant’s counsel should have acted sooner to contact the agency about the
outstanding discovery dispute following the July 28 order given the August 19
discovery deadline. Id. at 2.
The appellant did not request a hearing and the appeal was decided on the
written record. IAF, Tab 56, Initial Decision (ID). In the initial decision, the
administrative judge found that the appellant proved some, but not all, of his
alleged protected disclosures and that he engaged in protected activity.
ID at 10-11, 17-19, 21-24. He found that the appellant proved contributing factor
for some personnel actions, but that the agency proved, by clear and convincing
2
Prior to August 17, 2022, counsel for both parties discussed other matters, including
the appellant’s responses to the agency’s discovery requests. IAF, Tab 37 at 25-30.
4
evidence, that it would have taken the same actions in the absence of any
protected whistleblowing. ID at 11-31. Accordingly, he denied corrective action.
ID at 31. The appellant has filed a petition for review, the agency has filed
a response, and the appellant has filed a reply. Petition for Review File,
Tabs 1, 4, 6.
DISCUSSION OF ARGUMENTS ON REVIEW
Although an administrative judge has wide discretion to control the
processing of appeals, such discretion is not unfettered. See Sanders v. Social
Security Administration, 114 M.S.P.R. 487, ¶ 10 (2010). The Board will not find
reversible error in an administrative judge’s discovery rulings absent an abuse of
discretion that prejudiced the appellant’s substantive rights. See White v.
Government Printing Office, 108 M.S.P.R. 355, ¶ 9 (2008). As set forth herein,
we find that the administrative judge abused his discretion in denying the
appellant’s motion to compel the agency to respond to his discovery requests.
The administrative judge denied the appellant’s motion to compel based on
his finding that the appellant failed to meet and confer with the agency to resolve
the dispute in good faith. IAF, Tab 38 at 1-2. We disagree. The Board’s
regulations require that, before filing a motion to compel, the moving party must
“discuss the anticipated motion with the opposing party or nonparty, and all those
involved shall make a good faith effort to resolve the discovery dispute and
narrow the areas of disagreement.” 5 C.F.R. § 1201.73(c)(1). By the time the
appellant filed his final motion to compel on August 19, 2022, the parties had
exchanged more than a dozen emails about the relevant requests, between July 22
and August 19, 2022. IAF, Tab 32 at 25-56, Tab 36 at 12-19. The appellant
rescinded some requests that the agency objected to, explained why he believed
the remaining requests were relevant, and suggested ways in which the
information could be obtained. IAF, Tab 32 at 25-56. By the time appellant’s
counsel contacted the agency on August 17, 2022, the agency was well-aware of
5
its discovery obligations and, to that point, had not provided any responsive
materials. The July 28, 2022 order did not contain a deadline for the parties to
meet and confer; however, the appellant complied with the August 19, 2022
deadline for discovery-related motions. IAF, Tab 20 at 2. Accordingly, we find
that the appellant met his obligation to meet and confer pursuant to the relevant
orders and regulations.
We find that the appellant was prejudiced by the administrative judge’s
denial of his motion to compel because he was unable to obtain discovery
relevant to his burdens of proof. In the initial decision, the administrative judge
found that the appellant failed to prove that he made several protected disclosures
and, for the disclosures, activity, and personnel actions that were proven, that the
agency proved by clear and convincing evidence that it would have taken the
same actions absent the appellant’s protected whistleblowing. ID at 11-31. The
information sought by the appellant related to the alleged disclosures and
personnel actions is discoverable. See Ryan v. Department of the Air Force,
113 M.S.P.R. 27, ¶ 16 (2009) (finding an administrative judge abused his
discretion in denying a motion to compel that sought information relating to the
appellant’s burden of proof in an IRA appeal). The administrative judge’s
finding that the appellant failed to establish certain elements of his claim, while
simultaneously denying his ability to obtain relevant, discoverable information,
warrants remand. See Gregory v. Federal Communications Commission,
79 M.S.P.R. 563, ¶ 15 (1998) (“[I]t is patently unfair for the administrative judge
to exclude witnesses whom the appellant indicated could support her claims . . .
and then find that she failed to [meet her burden].”).
On remand, the administrative judge shall give both parties an opportunity
to address the relevance of the appellant’s discovery requests that were the
subject of his motion to compel. In their responses, the parties should focus on
the extent to which each of the appellant’s requests is reasonably calculated to
lead to the discovery of admissible evidence in light of the factual matters in
6
dispute in this appeal. To the extent the agency believes that a request is
overbroad, it should comply with the request to the maximum extent possible and
explain why it should not be required to respond more fully. See Ryan,
113 M.S.P.R. 27, ¶¶ 17, 19. The administrative judge shall then determine
whether the agency has properly responded to each of the appellant’s discovery
requests.
There appears to be a dispute regarding the appellant’s August 18, 2022
amended discovery request, IAF, Tab 36 at 15, 20, which the agency asserts is not
an amended request but, rather, a new request that is untimely,
IAF, Tab 37 at 10-11. The administrative judge shall determine whether the
agency must respond to the August 18, 2022 request.
After completion of discovery on remand, the administrative judge shall
afford the appellant an opportunity to submit newly discovered evidence into the
record and shall set a schedule for supplemental briefing. The administrative
judge shall issue a new initial decision that incorporates any new evidence
submitted on remand. 3
3
In the initial decision, the administrative judge found that, even if the appellant proved
that he was subjected to certain personnel actions, he would find that they were barred
by the doctrine of laches. ID at 13 n.7 & 14 n.9. The current record does not support a
finding of laches because the agency has not proved, with admissible evidence, that it
was prejudiced by the appellant’s delay in filing this appeal. See Brown v. Department
of the Air Force, 88 M.S.P.R. 22, ¶ 5 (2001) (holding that laches bars a claim when an
unreasonable delay in bringing the claim has prejudiced the party against whom the
action is taken). During closing arguments, counsel for the agency made speculative
and generalized assertions about prejudice; however, it is well -established that
statements by a party’s representative are not evidence. See Hendricks v. Department of
the Navy, 69 M.S.P.R. 163, 168 (1995). On remand, after affording the parties an
opportunity to address this issue and after considering any additional evidence in the
record, the administrative judge shall determine whether the agency has proved that
laches should bar consideration of the 2010 nonselection for the Deputy Director
position and the 2011 removal of supervisory functions.
7
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.