Petition for Writ of Certiorari — Thomas F. Sweeney, Petitioner v. Merit Systems Protection Board

Supreme Court briefNov 11, 2019

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App. la

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

No. 18-1458

THOMAS F. SWEENEY,

Petitioner - Appellant,

MERIT SYSTEMS PROTECTION BOARD,

Respondent - Appellee.

Appeal from the United States District Court for the

Eastern District of Virginia, at Alexandria. Claude

M. Hilton, Senior District Judge. (l-17-cv00926CMH-IDD)

Argued: May 9, 2019

Decided: June 14, 2019

Before GREGORY, Chief Judge, and WYNN and

THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

App. 2a

ARGUED: William Paul Bray, OTEY SMITH &

QUARLES, Williamsburg, Virginia, for Appellant.

Dennis Carl Barghaan, Jr., OFFICE OF THE

UNITED STATES ATTORNEY, Alexandria, Virginia,

for Appellee. ON BRIEF: Matthew W. Smith, OTEY

SMITH & QUARLES, Williamsburg, Virginia, for

Appellant. G. Zachary Terwilliger, United States

Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in

this circuit.

PER CURIAM:

Thomas F. Sweeney (“Appellant”) filed a “mixed

case” appeal with the Merit Systems Protection Board

(“Appellee” or “MSPB”), i.e., a discrimination claim

coupled with a challenge to a personnel action

decision. Specifically, Appellant alleged that the

(“FAA”)

Federal

Aviation

Administration

discriminated against him on the basis of gender and

improperly forced him to accept a reassignment that

resulted in a reduction in grade and pay.

The MSPB, however, concluded that it lacked

jurisdiction to entertain Appellant’s claims because

Appellant voluntarily accepted the reassignment.

Appellant then filed a complaint in the district court

seeking review only of the MSPB’s decision that it

lacked jurisdiction. The district court granted the

App. 3a

MSPB’s motion to dismiss the complaint. In this

appeal, Appellant argues that the district court erred

by^ (l) failing to convert MSPB’s motion to dismiss to

a motion for summary judgment; and (2) failing to

recognize that genuine issues of material fact remain

on the jurisdictional issue. As explained below, we

reject these arguments and affirm.

Factual Background

On August 5, 2009, Appellant began working

for the FAA as a developmental air traffic control

specialist (“ATCS”). A developmental ATCS must

successfully complete extensive training before

becoming a certified professional controller (“CPC”).

Pursuant to FAA policy, in order to remain employed

with the FAA as an air traffic controller, an individual

must satisfactorily complete the FAA’s training

program, become a CPC, and obtain “facility or area

certification” at the facility to which the individual is

assigned. J.A. 130.1 But, if a developmental ATCS

demonstrates an “[i] natality to successfully complete

an air traffic control training program,” FAA officials

may ask a training review board to make a

recommendation to the facility’s air traffic manager

whether to terminate that controller’s training

1 Citations to the “J.A.” refer to the Joint Appendix filed by the

parties in this appeal.

App. 4a

program. Id. at 129-30.

After completing an initial training period, in

December 2009 Appellant reported to the Washington

Air Route Traffic Control Center in Leesburg, Virginia

(the “Washington Center”). In December 2012, during

Appellant’s time at the Washington Center, FAA

officials identified deficiencies in his work

performance and placed him in an additional remedial

training program. They then suspended his training

on February 22, 2013. On April 11, 2013, a training

review board concluded that he was not likely to

obtain facility or area certification at the Washington

Center. The training review board recommended that

Appellant’s training be discontinued.

As a result, the Air Traffic Manager, Steven

Stooksberry, sent Appellant a memorandum titled

“Discontinuation of Training” dated April 15, 2013.

J.A. 67. Stooksberry wrote, “This memorandum is

notification that your training is being terminated due

to unsatisfactory performance ...” Id. The

memorandum informed Appellant of the training

review board’s recommendation, and Stooksberry’s

determination that Appellant “ha[d] been offered

every opportunity to succeed in the ATCS Training

Program and that [Appellant had] not demonstrated

that [he] possessed] the knowledge, skills, and

abilities required to safely perform the duties of a

CPC” at the Washington Center. Id. “Therefore,”

Stooksberry wrote, “it is my decision that your

training be discontinued.” Id. The memorandum also

App. 5a

provided Appellant with an opportunity to respond

within seven days, and noted that in the event

Appellant failed to respond, “the appropriate action

(position change or separation) shall be initiated.” Id.

On April 23, 2013, Appellant responded to

Stooksberry’s memo. Appellant’s response did not

challenge the discontinuation of Appellant’s training

at the Washington Center. Instead, Appellant

requested that the FAA “recommend [him] for

continued employment and placement at a lower level

FAA Air Traffic Control Facility.” J.A. 148. He added,

“I believe I can be a CPC at a different facility.” Id. On

May 13, 2013, Stooksberry sent Appellant a memo

stating, “[I]t is my final determination that your

training at [the Washington Center] be terminated.”

Id. at 104.

When an ATCS has been unsuccessful in

completing training at a particular facility, the FAA’s

National Employee Services Team recommends to

senior management whether to offer that ATCS

reassignment at a different facility. An ATCS who

accepts reassignment is provided with a “clean slate”

with respect to his training, and thus, he may reapply

for a position at a higher level facility in the future.

J.A. 131. But if the ATCS does not accept the

reassignment, the FAA may “initiate proper

separation activities,” id.', i.e., propose the individual’s

removal from federal service. However, the individual

has an opportunity to respond to the removal

determination before the FAA issues a final

App. 6a

employment decision.

Pursuant to this policy,

in another

memorandum dated November 29, 2013 (the

“Reassignment Memo”), the FAA offered to reassign

Appellant to a position as an air traffic control

specialist at Harrisburg International Airport, a

lower-level facility. The Reassignment Memo stated

that the reassignment would be at Appellant’s own

expense, and that if he “decline [d] . . . this offer, there

is no assurance that any other offer will be

forthcoming.” J.A. 64. Additionally, the Reassignment

Memo stated that if Appellant did “not accept this

reassignment” to Harrisburg, his “removal from [his]

ATCS position and from the Federal Service will be

proposed.” Id. at 65. Finally, the Reassignment Memo

stated^ “I fully understand this process and consider it

to be for my personal benefit and . . . the Agency has

not exercised any pressure on me.” Id. Appellant

accepted all of the terms of the Reassignment Memo

by signing it on December 3, 2013. Appellant then

transferred from the Washington Center to the

Harrisburg International Airport, where he remained

employed as an ATCS when this case was filed in

district court.

Procedural History

Appellant’s FAA Complaint

App. 7a

Appellant, proceeding pro se, filed a complaint

with the FAA alleging that the termination of his

training and his subsequent transfer were the result

of unlawful gender discrimination. See 29 C.F.R. §

1614.302(a)(1). The FAA was then obligated to

investigate Appellant’s allegations of employment

discrimination and issue a final agency decision

(“FAD”). See id. § 1614.302(d); see also id. §

1614.101-110.

On July 28, 2014, the FAA completed its

investigation

of Appellant’s

complaint

and

subsequently issued its FAD. The FAD concluded that

Appellant had established a prima facie case of gender

discrimination, but that he failed to produce sufficient

evidence of pretext; thus, the agency made an overall

finding of no discrimination.

MSPB Proceedings

Appellant, still pro se, filed a mixed case appeal

with the MSPB on October 15, 2014, which, in

addition to review of his discrimination allegations,

sought review of the FAA’s termination of his training

and subsequent transfer to Harrisburg.

On October 23, 2014, an MSPB Administrative

Judge (“AJ”) issued an order to show cause requiring

Appellant to address whether the MSPB could

exercise jurisdiction over his case. The AJ explained

that “[t]he [MSPB] does not have jurisdiction over all

actions that are alleged to be incorrect but only those

App. 8a

actions in which jurisdiction is provided by pertinent

statutes and regulations,” and “[i]t is the appellant’s

burden to establish that the [MSPB] has jurisdiction

over this appeal.” J.A. 31.

On November 2, 2014, Appellant responded to

the order and asserted that the Harrisburg

reassignment resulted in a reduction in grade and

pay, and he explained that the Reassignment Memo

“stated if I did not accept the offer of assignment

[to Harrisburg], my involuntary removal from my

ATCS position and Federal Service will be proposed.”

J.A. 44 (emphasis supplied). On December 4, 2014, the

AJ issued a supplemental order to show cause that

“afford [ed] him another opportunity to submit

evidence and argument to show cause why this appeal

should not be dismissed.” Id. At 52. This order advised

Appellant that although the MSPB typically

possessed jurisdiction over reassignments that were

accompanied by a reduction in grade and/or pay,

reassignment must have been “involuntary” for

jurisdiction to attach. Id. at 53. The order informed

Appellant that it was “incumbent on [him] to establish

that his acceptance of the agency’s offer rendered the

assignment . . . involuntary because it was the result

of duress, coercion, or misrepresentation by the

agency.” Id. at 54—55. In his response, filed December

14, 2014, Appellant noted that “[i]t is obvious that if I

did not accept my reassignment I would have been

removed from service.” Id. at 61.

On April 12, 2016, the AJ issued her decision,

App. 9a

concluding that the MSPB lacked jurisdiction to

consider Appellant’s case. Specifically, the AJ held

that the MSPB could not exercise jurisdiction over

Appellant’s reassignment to Harrisburg because there

was no evidence that in agreeing to the reassignment,

Appellant was deprived of the “freedom of choice.” J.A.

170. The AJ noted that Appellant “accepted the

reassignment,” and the FAA’s explanation that his

removal from employment would be proposed if he

declined the reassignment did not render that

assignment involuntary:

[T]he fact remains that [Appellant] had an

option in that he could have declined

[reassignment] and then challenged the

removal action. The fact that he accepted

the reassignment in lieu of removal does not

make his reassignment involuntary because

he had the option to face removal and

exercise his appeal rights to the E[qual]

EEmployment] Opportunity] Ctommission]

and/or the MSPB. While this is admittedly

an unpleasant choice to face, it is well

established that the fact that an employee is

faced with unpleasant alternatives does not

in and of itself render the situation

improperly coercive.

Id. at 171.

Appellant filed a petition for review of the AJ’s

decision with the full MSPB. On September 23, 2016,

the MSPB issued a final order that affirmed the AJ’s

App. 10a

decision, explaining that it lacked jurisdiction over

Appellant’s reassignment to Harrisburg because “[a]

choice between unpleasant alternatives does not

render a decision to accept the agency’s proposal

involuntary.” J.A. 211.2

District Court Proceedings

Appellant filed a petition for review of the

MSPB’s final order in the Federal Circuit. However,

as a result of the Supreme Court’s intervening

decision in Perry v. MSPB, 137 S. Ct. 1975 (2017)

(holding that if the MSPB dismisses a mixed case on

jurisdictional grounds, the district court, not the

Federal Circuit, is the proper forum for judicial

review), Appellant’s petition was transferred to the

United States District Court for the Eastern District

of Virginia.

The district court ordered Appellant to file a

formal complaint, and he did so on December 18, 2017.

Although Appellant premised the district court’s

jurisdiction in part on Title VII of the Civil Rights Act

of 1964, the complaint did not present a cause of action

2 Both the AJ and the MSPB rejected Appellant’s argument that

the May 13, 2013 termination of his training violated due

process, and that termination was an adverse action over which

the MSPB possessed jurisdiction. See J.A. 168, 211-13. Although

not specifically raised in this appeal, we agree with the AJ and

MSPB that, absent circumstances not present in this case, denial

of training is not within the MSPB’s jurisdiction. See 5 C.F.R. §

1201.3(a).

App. 11a

under Title VII or otherwise seek the district court’s

adjudication of his gender discrimination allegations.

The complaint only sought judicial review of the

MSPB’s conclusion that it lacked jurisdiction to

entertain his mixed case.

On February 5, 2018, the MSPB moved to

dismiss

the

complaint

and

attached

the

Administrative Record from the MSPB proceedings.

The MSPB also provided Appellant with notice that

its motion was dispositive and informed him of his

right to file a response to the motion. However,

Appellant did not file a response.

On March 13, 2018, the district court granted

the MSPB’s motion and dismissed the complaint. In

doing so, the district court concluded that the MSPB

lacked jurisdiction to consider any employment

decision that involved any “voluntary action by the

employee,” J.A. 290 (quoting 5 C.F.R. § 752.401(b)(9)),

and that the MSPB had correctly concluded that

Appellant’s reassignment to Harrisburg was such a

voluntary action.

On April 6, 2018, Appellant filed a motion for

reconsideration of the district court’s dismissal order.

Appellant asserted that he had not filed a response to

the MSPB’s motion to dismiss because the legal

argument that he would have articulated in such a

response was already set forth in his complaint;

accordingly, his response “would have been a ‘cut and

paste’ [which would] be irrelevant and a waste of this

Court’s time.” J.A. 294. Appellant challenged neither

App. 12a

the accuracy of the Administrative Record, nor the

district court’s use of the Administrative Record in

resolving the MSPB’s motion to dismiss. The district

court denied Appellant’s motion for reconsideration,

and this appeal followed.

We possess jurisdiction pursuant to 28 U.S.C. §

1291, and we review the grant of a motion to dismiss

de novo. See ACA Fin. Guar. Corp. v. City of Buena

Vista, 917 F.3d 206, 211 (4th Cir. 2019).

II.

Failure to Convert to Summary Judgment Motion

Appellant first contends that the district court

erred by failing to convert MSPB’s motion to dismiss

into a motion for summary judgment. Specifically, he

claims the district court was required to do so under

Federal Rule of Civil Procedure 12(d) when it

reviewed material outside the pleadings, namely, the

MSPB Administrative Record.3

Even if the district court erred in this regard,

“[a] district court’s failure to comply with the

procedural safeguards of Rule 12(d) does not

constitute reversible error if it did not prejudice the

3 Rule 12(d) provides, “If, on a motion under Rule 12(b)(6) or

12(c), matters outside the pleadings are presented to and not

excluded by the court, the motion must be treated as one for

summary judgment under Rule 56. All parties must be given a

reasonable opportunity to present all the material that is

pertinent to the motion.” Fed. R. Civ. Proc. 12(d).

App. 13a

parties.” Russell v. Harman Inti Indus., Inc., 773 F.3d

253, 255 (D.C. Cir. 2014) (emphasis in original).

For his part, Appellant asserts four reasons

that the error was not harmless^

(l) “Rule 12(d) requires that [Appellant] be

given a reasonable opportunity to submit

‘all the material that is relevant to the

motion’ of which he was deprived”;

(2) “Rule 56(c) and (e) afford [Appellant]

important protections by requiring the

moving party to clearly identify the basis

for summary judgment and the materials

in the record supporting such a motion”;

(3) “Rule 56(d) protects [Appellant] from

summary judgment based on facts not

available to him at the time the motion is

considered”; and

(4) “[T]he district court’s own Local Rules

contain requirements for summary

judgment motions that enhance the

protections of Rule 56. [Appellant] was

afforded none of these protections in the

proceedings below.”

Appellant’s Br. 3 (citation omitted). None of these

arguments demonstrate that Appellant was

prejudiced by the district court treating the MSPB’s

motion as one to dismiss rather than one for summary

judgment.

App. 14a

As to his first argument, Appellant was not

deprived of a reasonable opportunity to submit “all the

material that is relevant to the motion” for two

reasons. Appellant’s Br. 3. First, Appellant would not

have been permitted to introduce additional material

in any event because the jurisdictional claim was

governed solely by the Administrative Record. See

Rana v. United States, 812 F.2d 887, 888-89 n.l (4th

Cir. 1987); Rockwell v. Dep’tofTransp., 789 F.2d 908,

913 (Fed. Cir. 1986) (per curiam). Second, to the

extent Appellant wished to argue that there were

genuine disputes of material fact precluding summary

judgment (or any other argument, for that matter), he

had an opportunity to do so - by filing a response to

the motion. He elected not to. And, of note, Appellant

does not assert that he was unaware of his right to file

a response. To the contrary, Appellant states that he

chose not to file a response because any argument that

he would have presented was already in his

complaint.

As for Appellant’s second and fourth

arguments, he asserts that the district court’s failure

to convert the motion prejudiced him because he was

deprived of various procedural benefits under Rule 56

and the district court’s own local rules. See Appellant’s

Br. 3, 8-10. But Appellant fails to demonstrate how

this prejudiced him. Significantly, Appellant does not

allege that the district court’s strict compliance with

all applicable rules would have changed Appellant’s

behavior in any way. And, even on appeal with the

App. 15a

benefit of counsel, Appellant fails to identify any

material dispute of fact that would have precluded

summary judgment. Instead, he attempts to rehash

the facts underlying his gender discrimination claim,

which he abandoned in the district court. Finally, a

district court’s alleged failure to comply with its own

local rules is not a basis for reversal by an appellate

court, particularly where Appellant has not identified

any basis for prejudice.

As to Appellant’s third argument, the MSPB

attached the Administrative Record to its motion;

therefore, the motion was not granted “based on facts

not available to [Appellant] at the time the motion

[was] considered.” Appellant’s Br. 3. Indeed,

Appellant does not identify what those facts might be

and did not challenge the use of the Administrative

Record in district court.

To be sure, Appellant was a pro se litigant, and

as a result, the district court must read the pleadings

liberally in his favor. See Kerr v. Marshall Univ. Bd.

of Governors, 824 F.3d 62, 72 (4th Cir. 2016). But the

court cannot prosecute Appellant’s claim for him.

Where Appellant (l) declined to file a response to the

motion to dismiss or challenge the district court’s

consideration of the Administrative Record; (2) does

not allege that strict compliance with the summary

judgment procedural requirements would have

changed his decision not to respond to the motion; and

(3) cannot, even with the benefit of appellate counsel,

point to particular disputed facts that would have

App. 16a

precluded summary judgment, we cannot conclude

Appellant was prejudiced by any error on the district

court’s part, regardless of his pro se status.

For these reasons, assuming the district court

should have converted the motion to dismiss to one for

summary judgment, any error was harmless.

Genuine Issues of Material Fact

We next address whether the MSPB was

correct in deciding as a matter of law that Appellant’s

reassignment was a product of Appellant’s voluntary

choice, thereby depriving it of jurisdiction. Appellant

contends this was improper because genuine issues of

material fact remain on this issue.

The MSPB’s Jurisdiction

The MSPB has jurisdiction to adjudicate

challenges to certain adverse employment actions

taken by a federal agency against its employees. See 5

U.S.C. § 7701(a); Garcia v. Dep’t of Homeland Sec.,

437 F.3d 1322, 1327 (Fed. Cir. 2006) (enbanc). As

elevant here, when a federal employee suffers an

employment action that he or she believes to be

unwarranted, and that the MSPB has jurisdiction to

review, the employee can challenge the action through

an “appeal” to the MSPB.

The MSPB possesses jurisdiction to consider

App. 17a

“any action which is appealable to the [MSPB] under

any law, rule or regulation.” 5 U.S.C. § 7701(a).

However, “[t]he jurisdiction of the MSPB is not

plenary, but is limited to those areas specifically

granted by statute or regulation. ... In other words,

jurisdiction for the [MSPB] to hear a particular type

of action must be granted by some law, rule or

regulation.” Garcia, 437 F.3d at 1327 (quoting Antolin

v. Dep’t of Justice, 895 F.2d 1395, 1396 (Fed. Cir.

1989) (internal quotation marks omitted)).

Pursuant to 5 U.S.C. § 7513(d), the MSPB has

jurisdiction to hear appeals over certain enumerated

adverse actions taken by an agency against an

employee. The enumerated adverse actions are^ (l) a

removal; (2) a suspension for more than 14 days; (3) a

reduction in grade; (4) a reduction in pay; and (5) a

furlough of 30 days or less. See 5 U.S.C. § 7512.

However, the MSPB does not have jurisdiction

to review voluntary actions by the employee. See 5

C.F.R. § 752.401(b)(9); Garcia, 437 F.3d at 1328

(“Nothing in 5 U.S.C. § 7512, which enumerates

specific adverse actions over which the [MSPB] has

jurisdiction, extends the [MSPB’s] jurisdiction to

facially voluntary acts.”). Accordingly, an employee

who voluntarily accepts a reduction in grade or pay

(which are otherwise reviewable adverse actions) has

no right to appeal to the MSPB. See id. There is an

exception to this general rule, however, “if the

employee proves, by a preponderance of the evidence,

that his or her action was involuntary and thus

App. 18a

tantamount to a forced enumerated adverse action.”

Id. at 1329 (alterations and internal quotation

marks omitted).

Voluntary Action

To establish that a seemingly voluntary action

was nonetheless involuntary, an employee must show

by a preponderance of the evidence that (l) the agency

“effectively imposed” the terms of the action! (2) the

employee “had no realistic alternative” but to take the

action! and (3) the action was “the result of improper

acts by the agency.” Garcia, 437 F.3d at 1329 (internal

quotation marks omitted). The test is an objective one

that is based on the totality of the circumstances, and

the “employee must establish that a reasonable

employee confronted with the same circumstances

would feel coerced into” taking the action. Id. (internal

quotation marks omitted).

We conclude the district court was correct in

deciding that Appellant cannot meet this standard.

Although Appellant had to choose between the

unattractive options of participating in termination

proceedings or being reassigned to Harrisburg, he was

still presented with a choice. Both the Federal Circuit

and the MSPB have repeatedly held that “the fact that

an employee is faced with an unpleasant situation or

that his choice is limited to two unattractive options

does not make the employee’s decision any less

voluntary.” Staats v. U.S. Postal Serv., 99 F.3d 1120,

App. 19a

1124 (Fed. Cir. 1996); see also Gaudette v. Dep’t of

Trans., 832 F.2d 1256, 1259 (Fed. Cir. 1987)

(concluding an air traffic controller’s reassignment

was voluntary in similar circumstances, explaining

the fact that “the employee would prefer to stay in the

position from which he or she faces possible removal

and dislikes taking a pay-cut does not make their

decision to accept the offer of a lower-grade position

legally involuntary”); Loggins v. U.S. PostalServ., 112

M.S.P.R. 471, 476 (2009) (“An employee’s acceptance

of a lower-graded position is generally considered to

be voluntary and not subject to the Board’s

jurisdiction.”); Reed v. U.S. Postal Serv., 99 M.S.P.R.

453, 460 (2005) (same), affd, 198 F. App’x 966 (Fed.

Cir. 2006). Similarly, the Federal Circuit has held that

a federal employee who, like here, accepts

reassignment to a lesser position in lieu of facing

proposed removal cannot demonstrate that the

reassignment is “involuntary” so as to vest the MSPB

with jurisdiction. See Daniel v. MSPB, 534 F. App’x

937, 941 (Fed. Cir. 2013). Accordingly, Appellant has

not shown that the FAA effectively imposed the

Harrisburg reassignment on him or that he had no

realistic alternative (as opposed to no attractive

alternative) other than to accept the reassignment.

Nor did the reassignment result from improper

acts by the FAA. Indeed, Appellant signed the

Reassignment Memo, which stated, “I fully

understand this process and consider it to be for my

personal benefit and . . . the Agency has not exercised

App. 20a

any pressure on me.” J.A. 65. The district court

correctly determined that Appellant’s reassignment

was voluntary as a matter of law, and thus, the MSPB

properly dismissed Appellant’s case for lack of

jurisdiction.

III.

For the foregoing reasons, we affirm the district

court.

AFFIRMED

App. 21a

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

THOMAS F. SWEENEY, )

)

Petitioner ,

)

MERIT SYSTEMS

)

PROTECTION BOARD, )

Civil Action No.

1:17 -cv-926

)

Respondent.

)

ORDER

THIS MATTER comes before the Court on

Petitioner's Motion for Reconsideration of the March

13th, 2018 Order granting Respondent ' s Motion to

Dismiss. The Court is of the opinion that the March

13 Order was correct for the reasons stated.

Accordingly , it is here by

ORDERED that Petitioner's Motion for

Reconsideration is DENIED.

Alexandria , Virginia

April 24 . 2018

/s/ CLAUDE M. HILTON

CLAUDE M. HILTON

UNITED STATES

DISTRICT JUDGE

App. 22a

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

THOMAS F.

SWEENEY,

)

Petitioner,

)

) Civil Action No .

) T17-CV-926

)

MERIT SYSTEMS

PROTECTION BOARD ,)

)

Respondent.

)

ORDER

THIS MATTER comes before the Court on

Defendant's Motion to Dismiss Plaintiff s Complaint.

Plaintiff Thomas Sweeney here seeks judicial review

of a final decision issued by the Merit Systems

Protection Board ("MSPB"). Plaintiff , an air traffic

controller employed by the Federal Aviation

Administration ("FAA"), filed this suit after the FAA

discontinued his developmental training due to

repeated difficulties he was experiencing and after he

App. 23a

accepted a reassignment offer to a lower-level facility

resulting in a pay grad e reduction .

Plaintiff initially filed a formal administrative

complaint of discrimination with the FAA, alleging

that the discontinuation of his training program and

his transfer were the result of unlawfu 1 gender

discrimination. The FAA issued a Final Agency

Decision finding that Plaintiff had not been the victim

of unlawful discrimination . Plaintiff then filed an

appeal with the MSPB seeking both generic review of

his reassignment a .d accompanying pay reduction as

well as review of his allegations of gender

discrimination under Title VII of the Civil Rights Act

of 1964. Plaintiff later sought leave of the MSPB to

amend his appeal to include an allegation that the

FAA had terminated his air traffic control training in

violation of his constitutional due process rights

because the FAA officials did not follow usual training

procedures in doing so.

The MSPB Administrative Judge (" AJ")

ultimately decided that the MSPB lacked jurisdiction

to entertain Plaintiff ' s appeal. The AJ held that the

MSPB could not exercise jurisdiction over a voluntary

employee decision such as Plaintiffs reassignment.

The AJ found that Plaintiff had voluntarily agreed to

the reassignment, and there was no evidence that he

was deprived of freedom of choice.

Plaintiff then filed a petition for review by the full

MSPB , which resulted in a final order that affirmed

the initial decision by the AJ. The MSPB held that

App. 24a

Plaintiffs reassignment was not rendered involuntary

simply because he was not provided the option to

remain at his former duty station. The MSPB also

addressed Plaintiffs belated due process claim,

holding that it lacked jurisdiction to consider

allegations related to the agency 's decision to

terminate his training, and further that his due

process claims were without merit because he was not

deprived of a constitutionally -viable property

interest and was afforded an opportunity to tender a

written

response

to the FAA' s proposal to

discontinue his training.

Plaintiff filed a petition for review with the Court

of Appeals for the Federal Circuit, but due to the

intervening decision by the U.S. Supreme Court in

Perry v. Merit Systems Protection Board. 137 S. Ct.

1975 (2017), which changed the appropriate

jurisdiction for this type of appeal, the case was

transferred to this Court on August 16, 2017 .

Defendant filed this Motion to Dismiss along with a

Roseboro notice on February 5, 2018 , and Plaintiff

failed to timely file any opposition.

The single issue for this Court to review is

whether the MSPB correctly held that its statutory

and regulatory charter precluded it from exercising

jurisdiction over plaintiffs allegations . "The

jurisdiction of the MSP B is not plenary." Maddox v.

Merit Svs. Prat . Bd., 759 F.2d 9, 10 (Fed. Cir. 1985).

Although the MSPB generally possesses jurisdiction

to adjudicate adverse employment actions such as

App. 25a

"[r]emovals [and) reductions in grade or pay," 5 C.F.R.

§ 1201.3(a)(1), there are a number of exceptions to this

grant of jurisdiction, including any "voluntary action

by an employee," id. § 752.401 (b)(9). Thus even

where an employee experiences what would otherwise

be a reviewable adverse employment action , the

MSPB lacks jurisdiction to consider it if it was the

result of a voluntary action by the employee. See, e.g.,

Staats v. O.S. Posta 1 Serv., 99 F.3d 1120, 1123-24

(Fed. Cir. 1996).

As noted by the MSPB , Plaintiff voluntarily

accepted the FAA' s proposed reassignment and its

accompanying pay grade reduction , and therefore the

reassignment was not an adverse employment action.

Despite Plaintiffs assertion that he was deprived of

free choice because his only other alternative was to

fight his potential removal from federal employment,

Federal Circuit precedent has established that this

alone does not render an employment action

involuntary. See Staats. 99 F.3d at 1124 ("[T]he fact

that an employee is faced with an unpleasant

situation or that his choice is limited to two

unattractive options does not make the employee's

decision any less voluntary ."); see also Gaudette v.

Den1 t of Transn., 832 F.2d 1256 (Fed. Cir. 1987)

(rejecting Plaintiffs exact argument in similar case).

The MSPB also correctly held that it did not

possess jurisdiction to review Plaintiffs due process

challenge to the FAA's discontinuance of his training

program. As the MSPB recognized, its statutory and

App. 26a

regulatory authority does not include "jurisdiction

over an agency ' s decision to terminate an employee's

training . [or] the agency's rules and procedures for

required training and the process and the

implementation of those procedures." For the

foregoing reasons, it is hereby

ORDERED that the Defendant' s Motion to

Dismiss is GRANTED, and this case is DISMISSED.

Is/ Claude M. Hilton

CLAUDE M. HILTON

UNITED STATES

DISTRICT JUDGE

Alexandria, Virginia

March 13, 2018

App. 27a

NOTE: This order is nonprecedential.

United States Court of Appeals

for the Federal Circuit

THOMAS F. SWEENEY,

Petitioner

MERIT SYSTEMS PROTECTION BOARD,

Respondent

2017-1255

Petition for review of the Merit Systems

Protection Board in No. DC-0752-15-0060-1-1.

Before LOURIE, MOORE, and O’MALLEY,

Circuit Judges.

PER CURIAM.

ORDER

Thomas F. Sweeney (“Sweeney”) petitions for

review of the final order of the Merit Systems

Protection Board (“the Board”) dismissing his appeal

for lack of jurisdiction. See Sweeney v. Dep’t. of

Transp., No. DC-0752-15-0060-1- 1, 2016 WL 5366354

(M.S.P.B. Sept. 23, 2016) (“Final Ordef’)', see also

Resp’t’s App. (“R.A.”) 1—10. Because we lack

jurisdiction over Sweeney’s appeal, we transfer it to

App. 28a

the United States District Court for the Eastern

District of Virginia.

BACKGROUND

Sweeney was employed as a Developmental Air

Traffic Control Specialist (“ATCS”) with the Federal

Aviation Administration (“the Agency”) at the

Washington Air Route Traffic Control Center

(“ARTCC”). Final Order, 2016 WL 5366354, f 2. In

December 2012, Sweeney was placed in a training

program after the Agency identified deficiencies in his

work performance. Id. The Agency then suspended his

training on February 22, 2013. Id. The Agency’s

training review board (“TRB”) met on April 11, 2013

and determined that Sweeney’s performance had not

improved and that he was unable to obtain the

certification necessary to perform his specific position.

Id. Thus, the TRB recommended that Sweeney be

reassigned to a lower-level facility. Id.

On April 15, 2013, the Agency notified Sweeney

that his training would be discontinued because of his

unsatisfactory performance in the training program,

and that he was entitled to provide written comments

relating to the proposed action. Id. If 3. Sweeney filed

a response and on May 13, 2013, the Agency made a

final determination terminating Sweeney’s training at

ARTCC. Id. Sweeney subsequently filed a request for

reconsideration, which was denied by the Agency. Id.

Consistent with the TRB recommendation, the Agency

offered Sweeney a list of facilities that he could be

App. 29a

reassigned to, including one in Harrisburg,

Pennsylvania. Id. In a memorandum dated November

29, 2013, Sweeney was offered the assignment to the

Harrisburg facility effective December 1, 2013. Id.

Sweeney was informed that if he declined the Agency’s

offer to be reassigned to a lower-level facility, his

removal from his current ATCS position and from the

Federal service would be proposed. Id. Sweeney

accepted the reassignment and was reassigned to the

Harrisburg facility. Id.

Sweeney then filed a discrimination complaint

with the Agency, arguing, inter alia, that he was

unlawfully discriminated against when the Agency

terminated his training, subsequently transferred

him to a lower-level facility, and reassigned him to a

downgraded position. Id. The Agency determined that

no discrimination had occurred. Id.

Sweeney then appealed to the MSPB, alleging

a re- duction in grade and pay, as well as a denial of a

within- grade increase (“WIGI”). Id. f 5. Sweeney also

claimed that (l) the Agency’s training program was

deficient; (2) the Agency’s actions resulted from

discrimination! and (3) the Agency’s decision to

discontinue his training was essentially a constructive

removal. Id.

The MSPB administrative judge (“AJ”) issued

two separate Show Cause Orders, instructing

Sweeney to submit evidence and argument

establishing that his claims fell within the Board’s

jurisdiction. Id. Tf 6. The AJ issued an initial decision

App. 30a

dismissing the appeal for lack of jurisdiction,

concluding that Sweeney did not make any

nonfrivolous allegations of facts that, if proven, would

establish the Board’s jurisdiction over his appeal. Id.

Sweeney filed a petition for review by the full

Board, and the full Board affirmed. First, the Board

determined that the termination of Sweeney’s

training was not a performance-based action under 5

U.S.C. § 4303, over which the Board had jurisdiction.

Id. If 7. The Board also rejected Sweeney’s argument

that his reassignment resulted in a reduction in grade

and pay. Specifically, the Board determined that there

was no evidence that Sweeney’s grade and pay were

reduced, and that even if there were such evidence,

Sweeney had voluntarily accepted his reassignment in

lieu of removal. Id. If 8. The Board reasoned that “[a]

choice between unpleasant alternatives does not

render a decision to accept the agency’s proposal

involuntary.” Id. If 9 (citing Soler-Minardo v. Dep’t of

Del, 92 M.S.P.R. 100, 1f 9 (2002); see also Garcia v.

Dep’t ofHomeland Sec., 437 F.3d 1322, 1328 (Fed. Cir.

2006) (en banc); Gaudette v. Dep’t of Transp., 832 F.2d

1256, 1258 (Fed. Cir. 1987). Therefore, the Board

reasoned, Sweeney did not nonfrivolously allege an

appealable grade and pay reduction. Id.

The Board also rejected Sweeney’s argument,

which was presented to but not addressed by the AJ,

that the Agency had violated his due process rights.

Sweeney argued that his rights were violated because,

inter alia, TRB’s recommendation that his training be

App. 31a

terminated was a de facto decision notice to which he

did not have an 'opportunity to respond because,

Sweeney alleged, the decision to terminate his

training had already been made. Id. f 12. The Board

determined that because the decision to terminate

Sweeney’s training was not an appealable adverse

action, it did not have jurisdiction over Sweeney’s

allegations. Id.}[ 14.

The Board also determined that even if it had

juris- diction, there was no merit to Sweeney’s due

process argument. The Board noted that the TRB did

not propose or recommend discipline at all. Id. If 14.

Instead, the Air Traffic Manager, not the TRB, made

the final decision to terminate Sweeney’s training, and

the Air Traffic Manager specifically noted that he

considered Sweeney’s reply in reaching his decision.

Id.

Thus, the Board affirmed the AJ’s decision

dismissing the appeal for lack of jurisdiction.

Sweeney timely appealed from the Board’s final

order, attempting to invoke our jurisdiction pursuant

to 28 U.S.C. § 1295(a)(9).

DISCUSSION

Before we can reach the merits of Sweeney’s

appeal, we must first ensure that we have

jurisdiction. Halo Elecs., Inc. v. Pulse Elecs., Inc., 857

F.3d 1347, 1350 n.l (Fed. Cir. 2017).

Because Sweeney raises claims relating to both

dis- crimination and an adverse employment action,

this is a “mixed case.” See Perry v. Merit Sys. Prot.

App. 32a

Bd, 137 S. Ct. 1975, 1979 (2017). If the Board

dismisses a mixed case on the merits or on procedural

grounds, then that decision may only be reviewed in a

district court, not this court. Id. Before Perry, we had

held that we had jurisdiction to review appeals only

from the Board’s dismissal of a mixed case for lack of

jurisdiction. See Conforto v. Merit Sys. Prot. Bd., 713

F.3d 1111, 1117-19 (Fed. Cir. 2013). Perry, however,

superseded Conforto by holding that mixed cases

dismissed on jurisdictional grounds must also be

reviewed in district court. 137 S. Ct. at 1979.

Briefing was completed in this appeal before

Perry was decided, and so, at that time, Conforto

justified our jurisdiction. After Perry, we issued an

order asking the parties to address whether Perry

required transfer and, if so, to which district court this

appeal should be transferred.

The government responded that if Sweeney did

not waive his discrimination claims, Perry required

that this appeal be transferred to a district court. The

government suggested that the appeal be transferred

to the United States District Court for the District of

Maryland, where Sweeney currently resides.

Sweeney did not waive his discrimination

claims. In- stead, he moved to bifurcate his claims. He

asks that the discrimination claims be transferred to

the United States District Court for the Eastern

District of Virginia because the acts giving rise to his

claims occurred in Loudoun County, Virginia, and that

his other claims remain before this court. The

App. 33a

government responded that bifurcation is not

permitted in mixed cases, citing Williams v.

Department of the Army, 715 F.2d 1485, 1490—91

(Fed. Cir. 1983) (en banc).

We agree with the government that Williams

specifically precludes bifurcation of a mixed case. In

that case, we held that the language of the statute and

related statutes, the legislative history, the relevant

policy considerations, and the interests of the litigants

indicated that bifurcation of claims in a mixed case

was not proper. Id. Thus, Sweeney’s motion to

bifurcate his claims is denied.

As Sweeney has not waived his discrimination

claims, we also agree with the government that this

appeal must be transferred to a district court. We may

transfer the appeal to any court in which the “appeal

could have been brought at the time it was filed or

noticed.” 28 U.S.C. § 1631. Under the relevant venue

provisions, Sweeney’s action could have been brought

in, inter alia, “a judicial district in which a substantial

part of the events or omissions giving rise to the claim

occurred.” Id. § 1391(b)(2). As the events giving rise to

Sweeney’s claims occurred in Loudoun County,

Virginia, which is within the Eastern District of

Virginia, we determine that this appeal should be

transferred to that district.

Accordingly,

IT IS ORDERED THAT:

(l) Sweeney’s Motion for Bifurcation is denied.

App. 34a

(2) This appeal be transferred to the United

States District Court for the Eastern

District of Virginia.

For the Court

August 16. 2017

Date

Is/ Peter R. Marksteiner

Peter R. Marksteiner

Clerk of Court

App. 35a

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

THOMAS F.

SWEENEY,

Appellant,

DOCKET NUMBER

DC-0752-15-0060-1-1

DATE: September 23, 2016

DEPARTMENT OF

TRANSPORTATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL4

Thomas F. Sweeney, Frederick, Maryland, pro se.

Michael Doherty. Esquire, Washington, D.C., for the

agency

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

4A 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).

App. 36a

FINAL ORDER

The appellant has filed a petition for review of

the initial decision, which dismissed his appeal for

lack of jurisdiction. Generally, we grant petitions such

as this one only when: 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. Except as expressly

MODIFIED by this Final Order to address the

appellant’s due process allegations, we AFFIRM the

initial decision.

BACKGROUND

If 2 The

appellant was

employed as

Developmental Air Traffic Control Specialist (ATCS)

App. 37a

at the agency’s Washington Air Route Traffic Control

Center (ARTCC). The agency’s training review board

(TRB) met on December 6‘7, 2012, to evaluate the

training of several employees, including the appellant.

Initial Appeal File (IAF), Tab 18, Exhibit (Ex.) 0.

Although training deficiencies were identified for the

appellant, the TRB decided to continue his training

but with specific training recommendations to address

his performance issues. Id. The appellant’s training

was subsequently suspended on February 22, 2013,

resulting in another TRB meeting on April 11, 2013.

Id., Ex. P. The TRB determined that the appellant’s

deficiencies had not been resolved by the additional

training and that he could not achieve the necessary

certification, and thus, it recommended that his

training be discontinued. However, the TRB further

recommended that the appellant “be given strong

consideration for reassignment to a lower level facility,

as per agency directives.” Id.

•If 3

The agency notified the appellant in a

memorandum dated April 15, 2013, that his training

was being terminated due to unsatisfactory

performance in Radar Controller Training, Stage IV.

IAF, Tab 16, Ex. D. The memorandum advised the

appellant that, in accordance with the Employment

Policy for Air Traffic Control Specialist in Training—

EMP-1.14—he could discuss the matter with the

Support Manager for Training and, within 7 calendar

days from receipt of notification, he could provide

written comments regarding the proposed action. Id.',

App. 38a

IAF, Tab 15, Ex. G. The appellant filed a response, and

the agency issued a final determination on May 13,

2013, terminating his training at ARTCC. The

appellant submitted a request for reconsideration,

which the

agency denied, noting that all TRB

members had concurred with the decision to suspend

his training. IAF, Tab 15, Exs. K, M. The agency

subsequently offered the appellant reassignments to

Atlantic City, New Jersey; Allenton, Pennsylvania;

and Falmouth, Massachusetts. IAF, Tab 2 at 28. The

appellant’s regional National Air Traffic Controllers

Association was able to get a facility at Harrisburg,

Pennsylvania, added to the appellant’s list of options

and he accepted the offer to that location because it

was closer to his home. IAF, Tab 16, Ex. B. In a

memorandum dated November 29, 2013, the

appellant was offered an assignment to the

Harrisburg facility effective December 1, 2013. Id., Ex.

A. The appellant was advised that, if he declined the

agency’s offer of reassignment, his removal from the

ATCS position and from the Federal service would be

proposed. Id. The appellant accepted the assignment,

and he was reassigned to the Harrisburg facility. Id.

The appellant filed a discrimination complaint

with the agency, alleging that he was discriminated

against based on his sex because his training was not

conducted in accordance with Federal Aviation

Administration (FAA) orders and procedures and

because the agency terminated his training,

transferred him to a lower-level facility, and

App. 39a

reassigned him to a downgraded position. IAF, Tab 2

at 3. The agency issued a final agency decision in

which it determined that no discrimination had

resulted. Id. at 36.

The appellant filed this appeal, alleging a

reduction in grade and pay and a denial of a withingrade increase (WIGI). IAF, Tab 1. The appellant also

alleged multiple deficiencies in the agency’s training

program and asserted that the agency’s actions were

the result of discrimination. In addition, he alleged

that the agency’s decision to discontinue his training

was tantamount to a constructive removal. IAF, Tab 7

at 5.

16 The administrative judge issued an order to

show cause, notifying the parties of the elements and

burdens of proof for establishing Board jurisdiction.

IAF, Tab 4. Because the appellant’s response raised a

constructive removal claim, the administrative judge

issued a supplemental order to show cause to address

this claim. IAF, Tab 13. After providing the parties

with the opportunity to respond to the orders and

without holding a hearing, the administrative judge

issued an initial decision dismissing the appeal for

lack of jurisdiction. IAF, Tab 21, Initial Decision (ID)

at 1, 11. Specifically, the administrative judge found

that the appellant failed to nonfrivolously allege that

he had suffered an appealable reduction in grade or

pay or that he was denied a WIGI. ID at 6-10. The

administrative judge also found that, absent an

otherwise appealable action, the Board lacked

App. 40a

jurisdiction over the appellant’s claim of sex

discrimination. ID at 10. The appellant then filed a

petition for review of the initial decision. Petition for

Review (PFR) File, Tabs 1-2. The agency filed a

response to the petition for review. PFR File, Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

If 7 On review, the appellant argues that the

Board has jurisdiction over claims filed by FAA

employees, including performance-based actions

taken under chapter 43.5 PFR File, Tab 1 at 4-5, 7.

Specifically, the appellant appears to be arguing that

the termination of his training was such a

performance-based action. However, contrary to the

appellant’s assertions, the agency did not take a

performance-based action under 5 U.S.C. § 4303 when

it terminated his training. Thus, those procedures are

not applicable here.

1f8 The appellant also asserts that he provided

evidence and argument below showing that his

reassignment, from the ATCS-2152-LG position at the

ARTCC

to the ATCS-2152-GG position in

Harrisburg, was a reduction in grade and that the

administrative judge erred in finding otherwise. PFR

File, Tab 1 at 8-10. The appellant argues that, because

he was reduced in grade and pay, the administrative

6 The appellant on review does not challenge the administrative

judge’s finding that he was not denied a WIGI, and we therefore

need not disturb this finding.

App. 41a

judge erred by dismissing this appeal for lack of Board

jurisdiction. Id. However, as the administrative judge

correctly found, there is

no evidence that the

appellant was reduced in grade and pay. Moreover, the

administrative judge correctly found that, even if the

appellant was subjected to a reduction in grade and

pay, the record reflects that the appellant voluntarily

accepted the reassignment in lieu of removal after he

failed to complete the agency’s training requirements.

IAF, Tab 16.

To the extent the appellant reiterates his claim

that his reassignment was involuntary because

agency policy did not provide him any option of

remaining in his current duty station after his

training was terminated, PFR File, Tab 1 at 8-11, we

disagree. A choice between unpleasant alternatives

does not render a decision to accept the agency’s

proposal involuntary. Soler-Minardo v. Department of

Defense, 92 M.S.P.R. 100, f 9 (2002) (finding that the

fact that the appellant was faced with either a

demotion or a possible removal did not render his

acceptance of the agency’s proposal involuntary).

Here, the appellant does not submit any evidence or

argument suggesting that his acceptance of the

reassignment to the ATCS-2152-GG position was

based on misinformation. Cf. Wright v. Department of

Transportation, 99 M.S.P.R. 112, If 10 (2005)

(observing that the appellant’s assertion that he

accepted a position based on agency misinformation

regarding the nature of the reassignment and its

App. 42a

effect on his base pay constituted a nonfrivolous

allegation that the appellant’s reduction in pay was

involuntary). Thus, as the administrative judge

correctly found, the appellant failed to nonfrivolously

allege that he suffered an appealable reduction in

grade and pay.

The appellant also asserts that the agency

Uio

engaged in ex parte communications6 in connection

with the decision to terminate his training, and thus

violated his right to due process. The appellant asserts

that he raised this claim below and that the

administrative judge failed to address it in the initial

decision. PFR File, Tab 1.

Pursuant to 5 U.S.C. § 7701(c)(2), an

nil

agency’s adverse action “may not be sustained ... if

the employee or applicant for employment shows

harmful error in the application of the agency’s

procedures in arriving at such decisionU” Reversal of

an agency’s action is therefore required where an

appellant establishes that the agency committed a

procedural error that likely had a harmful effect on

the outcome of the case before the agency. Goeke v.

Department of Justice, 122 M.S.P.R. 69, n 7 (2015).

Here, the record reflects that the appellant attempted

to file a new Board appeal concerning this same action

6 An ex parte communication is a communication between one

party and the decision-maker where the other party is not

present and not given the opportunity to present his or her side

of the argument. Stone v. Federal Deposit Insurance

Corporation, 179 F.3d 1368, 1372-73 (Fed. Cir. 1999).

App. 43a

by submitting a pleading in which he raised due

process arguments. IAF, Tab 19. Rather than

docketing this pleading as a new appeal, the

administrative judge noted that the appellant was

alleging that the agency’s actions in this case resulted

in due process violations, and she entered the pleading

into the record in the instant appeal. IAF, Tab 20.

However, while the administrative judge submitted

the pleading into the record, she neglected to address

the appellant’s due process arguments in the initial

decision. Nonetheless, because we now address the

appellant’s due process arguments, the administrative

judge’s failure to do so was not prejudicial to the

appellant’s substantive rights, and it provides no basis

for reversal of the initial decision. Panter v.

Department of the Air Force, 22 M.S.P.R. 281, 282

(1984)..

1112

The appellant asserted below and on

review that the agency’s proposal notice informing

him that the TRB had recommended termination of

his training is a de facto decision notice, rather than a

proposal notice, “because it was obvious” from the

notice that the decision already had been made to

terminate his training. PFR File, Tab % IAF, Tab 7 at

15. Specifically, the appellant argues that the agency

failed to provide him the opportunity to respond to the

proposed adverse action prior to receiving the de facto

decision notice and prior to his being placed in a duty

assignment with the Plans & Programs Office. PFR

File, Tab 1 at 5-6. Thus, the appellant contends that

App. 44a

this resulted in the agency violating both agency

procedures and his due process right to a 30-day

advance written notice of the agency’s action against

him. Id.

It appears that the appellant’s argument is

113

based on his belief that the agency’s decision to

terminate his training constitutes an appealable

adverse action. However, the Board’s jurisdiction is

limited to those matters over which it has been given

jurisdiction by law, rule, or regulation. Maddox v.

Merit Systems Protection Board, 759 F.2d 9, 10 (Fed.

Cir. 1985). In this case, the Board does not have

jurisdiction over an agency’s decision to terminate an

employee’s training. Nor does it have jurisdiction over

the agency’s rules and procedures for required

training and the process and the implementation of

those procedures. Thus, any error by the

administrative judge in failing to address this

argument is harmless, as it provides no basis for

reversal of the initial decision.

114

In any event, even if we were to find that

the Board has jurisdiction over this appeal, we would

find no merit to the appellant’s claim that the agency

violated his right to due process of law. Due process is

a fundamental principle of law that ensures that legal

proceedings will be fair and that citizens will be given

notice of the proceedings and an opportunity to be

heard before the Government deprives them of life,

liberty, or property. The U.S. Constitution guarantees

due process and applies to the property interest of

App. 45a

public employment in which the Government has

demonstrated that there is cause to remove or

suspend an employee. See Gilbert v. Homar, 520 U.S.

924, 935-36 (1997) (suspension); Cleveland Board of

Education v. Loudermill, 470 U.S. 532, 541 (1985)

(removal). The appellant seems to argue that, under

the U.S. Court of Appeals for the Federal Circuit’s

decisions in Ward v. U.S. Postal Service, 634 F.3d

1274, 1279-80 (Fed. Cir. 2011), and Stone v. Federal

Deposit Insurance Corporation, 179 F.3d 1368, 137677 (Fed. Cir. 1999), his right to due process was

violated by ex parte communications between the TRB

and the instructors and supervisors who were

interviewed by the TRB. PFR File, Tab 1 at 5-6.

Ward and Stone stand for the proposition that a

deciding official violates an employee’s due process

rights when he relies upon new and material ex parte

information as a basis for his decision on the merits of

a proposed charge or the penalty to be imposed. See

Mathis v. Department of State, 122 M.S.P.R. 507, If 6

(2015). In this case, the appellant received a copy of

the TRB report, along with the April 15, 2013

memorandum from the Air Traffic Manager notifying

him of his training status being terminated due to

unsatisfactory performance. The memorandum

advised the appellant that he could submit a reply

within 7 days. IAF, Tab 16, Ex. D. The appellant

supplied a written response on April 23, 2013. IAF,

Tab 15, Ex. H. In his May 13, 2013 memorandum

finalizing the decision to terminate the appellant’s

App. 46a

training, the Air Traffic Manager specifically

mentioned that he considered the appellant’s written

reply. Id., Ex. I. In addition, the TRB merely convened

to consider and ultimately recommend terminating

the appellant’s training. IAF, Tab 18, Subtabs 0, P.

The TRB did not propose or recommend discipline.

Indeed, there was no proposed action or discipline in

this case. Rather, the appellant accepted a

reassignment in lieu of a removal action. Thus, the

appellant was not deprived of any property interest.

Therefore, whether the agency committed harmful

error or violated the appellant’s due process rights by

implementing its training requirements and TRB

process is of no consequence in this appeal.

Based on the foregoing, we discern no basis

115

for disturbing the administrative judge’s finding that

the appellant failed to make a nonfrivolous allegation

of an involuntary reduction in grade or pay. See

Henderson v. Department of the

Treasury, 61

M.S.P.R.

61,

(1994).

Accordingly,

the

administrative judge properly dismissed the appeal

for lack of jurisdiction without holding a hearing. See

id. The initial decision, as supplemented by this Final

Order, constitutes the Board’s final decision in this

matter. 5 C.F.R.§ 1201.113.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final

App. 47a

decision by the U.S. Court of Appeals for the Federal

Circuit. You must submit your request to the court at

the following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no

later than 60 calendar days after the date of this order.

Seeb U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27, 2012).

If you choose to file, be very careful to file on time. The

court has held that normally it does not have the

authority to waive this statutory deadline and that

filings that do not comply with the deadline must be

dismissed. See Pinat v. Office of Personnel

Management 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your

right to appeal this decision to court, you should refer

to the Federal law that gives you this right. It is found

in title 5 of the U.S. Code, section 7703 (5 U.S.C. §

7703) (as rev. eff. Dec. 27, 2012). You may read this

law as well as other sections of the U.S. Code, at our

website,

http://www.mspb.gov/appeals/uscode.htm.

Additional information 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, and 11.

If you are interested in securing pro bono

App. 48a

representation for an appeal to the U.S. Court of

Appeals for the Federal Circuit, you may visit our

website

http://www.mspb.gov/probono

for

information regarding pro bono representation for

Merit Systems Protection Board appellants before the

Federal Circuit. The Merit Systems Protection Board

neither endorses the services provided by any

attorney nor warrants that any attorney will accept

representation in a given case.

FOR THE BOARD:

Washington, D.C.

(

/s/ Jennifer Everling

Jennifer Everling

Acting Clerk of the Board

App. 49a

UNITED STATES OF AMERICA MERIT SYSTEMS

PROTECTION BOARD

WASHINGTON REGIONAL OFFICE

THOMAS F.

SWEENEY,

Appellant,

DEPARTMENT OF

TRANSPORTATION,

Agency.

DOCKET NUMBER

DC-0752-15-0060-1-1

DATE: April 12, 2016

Thomas F. Sweeney, Frederick, Maryland, pro se.

Jennifer D. Ambrose, Esquire, Washington, D.C., for

the agency

BEFORE

Sherry A. Zamora

Administrative Judge

INITIAL DECISION

On October 15, 2014, the appellant, Thomas F.

Sweeney, filed an appeal with the Merit Systems

Protection Board (MSPB) challenging the agency’s

decision to terminate his training and alleging an

involuntary removal from his position. Because there

was no factual dispute bearing on the issue of

jurisdiction and because the appellant failed to make

a nonfrivolous allegation of jurisdiction, the hearing

App. 50a

the appellant requested was not held. See Manning v.

Merit Systems Protection Board, 742 F.2d 1424, 142728 (Fed. Cir. 1984). For the reasons below, the appeal

is dismissed for lack of jurisdiction,

jurisdiction

Undisputed Facts

The appellant was employed as a Developmental

Air Traffic Control Specialist (ATCS) at the

Washington Air Route Traffic Control Center

(Washington ARTCC or Washington Center), with the

Federal Aviation Administration (FAA), Department

of Transportation (agency). On December 67, 2012, a

training review board (TRB) met to evaluate the

training of several employees, including the appellant.

AF, Tab 18, Appellant’s Exhibit 0. Although the TRB

identified training deficiencies for the appellant, it

decided to continue the appellant’s training at

Washington Center and provided specific training

recommendations to address the appellant’s

performance issues. Id. The appellant’s training was

subsequently suspended on February 22, 2013. As a

result, another TRB met on April 11, 2013. Id. at

Appellant’s Exhibit P. The review board determined

that the appellant had continuing performance

deficiencies which had not been resolved by the

additional training provided. Id. at Appellant’s

Exhibit P. The TRB determined that the appellant

could not achieve the necessary certification and

recommended that his training be discontinued. Id.

The TRB participants further recommended, however,

App. 51a

that the appellant “be given strong consideration for

reassignment to a lower level facility, as per agency

directives.” Id.

By memorandum dated April 15, 2013, Steven

Stooksberry, Air Traffic Manager, informed the

appellant that his training was being terminated due

to his unsatisfactory performance in Radar Controller

Training, Stage IV. AF, Tab 16, Appellant’s Exhibit D.

The appellant was advised that, in accordance with

the Human Resources Policy Manual, Employment

Policy for Air Traffic Control Specialist in Training

(EMP 1.14), dated June 23, 2006, he could discuss the

matter with the Support Manager for Training and,

within seven calendar days following receipt of the

notification, he could provide written comments

regarding the proposed action. Id. See also AF, Tab

15, Appellant’s Exhibit G. He was informed that, if no

response was received within the response period, it

would be considered that there were no comments and

the appropriate action, either position change or

separation, would be initiated. Id. The appellant filed

a written response dated April 23, 2013. AF, Tab 18,

Appellant’s Exhibit Q. In his response, Mr.

Stooksberry acknowledged the appellant’s response

but found that there had been agreement between the

appellant’s “peer, management, staff and training

administrator TRB participants” regarding the

appellant’s failure to adequately complete the

required training and, thus, he found “no reason to

reconsider [his] decision to terminate [the appellant’s]

training and forward [his] case to the National

App. 52a

Employee Services Team.” Id. at Appellant’s Exhibit

By memorandum dated May 13, 2013,7 Mr.

Stooksberry issued a final determination that the

appellant’s “training at Washington ARTCC be

terminated and that the disposition of this matter be

processed in accordance with EMPl.l4a and Article

61 of the 2009 Collective Bargaining Agreement

between the National Air Traffic Controllers

Association

and

the

Federal

Aviation

Administration.” AF, Tab 15, Appellant’s Exhibit L.

On August 7, 2013, the appellant submitted a request

for reconsideration based on allegations that the

training provided by the agency was deficient. Id. at

Exhibit K. In his response, Mr. Stooksberry

addressed the findings of the two TRB’s. Id. at

Exhibit M. He noted that, while the first TRB noted

performance deficiencies, it recommended additional

training but, in the second TRB, all members

unanimously agreed that skill enhancement training

would not adequately address and correct the

appellant’s performance deficiencies and, thus, they

concurred with the decision to suspend his training.

Id. Accordingly, Mr. Stooksberry determined that

there was no reason to reconsider his decision to

terminate the appellant’s training and forward his

case to the National Employee Services Team. Id. at

Exhibit L.

7 The appellant indicated that he did not receive the

memorandum until May 30, 2013. AF, Tab 14

App. 53a

In the agency’s report of investigation in regard to

the appellant’s discrimination claim, the agency

indicated that the appellant stated that he was given

the following reassignment options ^ Atlantic City,

New Jersey; Allentown Pennsylvania; and Cape

TRACON in Falmouth, Massachusetts. AF, Tab 2,

Page 28.8 However, the appellant said that he asked

Mr. Stooksberry if there were other options, and Mr.

Stooksberry advised him to confer with the National

Air Traffic Controllers Association (NATCA). Id. The

appellant’s regional NATCA representative was able

to get a facility at Harrisburg, Pennsylvania added to

the appellant’s list of options and the appellant

accepted the offer to that location because it was

closer to his home. AF, Tab 16, Appellant’s Exhibit B.

Accordingly, by memorandum dated November 29,

2013, the appellant was offered an assignment to the

Harrisburg facility effective December 1, 2013. Id. at

Appellant’s Exhibit A. The appellant was required to

indicate whether or not he accepted the agency’s

offer. Id. at Appellant’s Exhibit B. He was advised

that, if he declined the offer of assignment, his

removal from the ATCS position and from the Federal

service would be proposed. Id. The appellant accepted

the assignment and he was reassigned to the

Harrisburg facility. Id.

The appellant filed a discrimination complaint

with the agency alleging that the agency’s action was

8A11 cited page numbers refer to the page numbers assigned by

the Board’s electronic case file.

App. 54a

discriminatory against based on his sex when, in

September 2013, he determined that his training was

not conducted in accordance with FAA orders and

procedures and, because his training at Washington

ATRCC was terminated, he was transferred to a

lower-level facility and reassigned to a downgraded

position effective December 1, 2013. AF, Tab 2, Page

3. In its final agency decision, the agency determined

that no discrimination had resulted. Id. at Page 36.

On October 15, 2014, the appellant filed the

instant appeal with the MSPB alleging a reduction in

grade and pay and a denial of a withingrade increase

(WIGI). AF, Tab 1. The appellant alleged multiple

deficiencies in the agency’s training program and

asserted that the agency’s actions were the result of

discrimination. Id. Because it appeared that this

appeal may not be within the jurisdiction of the

MSPB, an Order to Show Cause was issued on

October 23, 2014. AF, Tab 4. In his response, filed

November 2, 2014, the appellant alleged that the

agency’s decision to discontinue his training was

tantamount to a constructive removal. AF, Tab 7,

Page 5. A Supplemental Order to Show Cause was

issued on December 13, 2014, to address the

appellant’s constructive removal claim. AF, Tab 13.

The appellant filed multiple submissions which

have been fully considered. AF, Tabs 1-2, 6-7, 14-16,

and 18-19. The agency filed a response and motion to

dismiss the appeal for lack of jurisdiction. AF, Tab 17.

All evidence and argument from both parties has been

fully considered.

App. 55a

Legal Standard and Burden of Proof

As noted above, the appellant has alleged an

involuntary reassignment to a downgraded position,

the denial of a WIGI, and an involuntary removal. The

jurisdiction of the MSPB is not plenary, but is limited

to those areas specifically granted by some law, rule,

or regulation. See 5 U.S.C. § 7701(a); Johnston v.

Merit Systems Protection Board, 518 F.3d 905, 909

(Fed. Cir. 2008). Thus, the Board does not have

jurisdiction over all actions that are alleged to be

incorrect. See, e.g., Weyman v. Department of Justice,

58 M.S.P.R. 509, 512 (1993). The appellant bears the

burden of establishing by preponderant evidence that

the Board has jurisdiction over his appeal. See 5

C.F.R. § 1201.56(a)(2). Preponderance of the evidence

is defined by regulation as the degree of relevant

evidence that a reasonable person, considering the

record as a whole, would accept as sufficient to find

that a contested fact is more likely to be true than

untrue. See 5 C.F.R. § 1201.56(c)(2).

The appellant has requested a hearing. AF, Tab 1.

To be entitled to a jurisdictional hearing, the

appellant must make a nonfrivolous allegation of

jurisdiction. Non-frivolous allegations of Board

jurisdiction are allegations of fact, which if proven,

could establish a prima facie case that the Board has

jurisdiction over the matter at issue. Ferdon v. U.S.

Postal Service, 60 M.S.P.R. 325, 329 (1994). To meet

the non-frivolous standard, an appellant need only

plead allegations of fact which, if proven, could show

jurisdiction, though mere pro forma allegations are

App. 56a

insufficient to satisfy the non-frivolous standard. Id.

The pertinent determination is whether the appellant

alleged facts which, if proven, would constitute a

prima facie case of jurisdiction. However, for the

reasons discussed below, I find that the appellant did

not meet the requisite burden and, thus, he was not

afforded the hearing he requested.

The appellant failed to establish the MSPB’s

jurisdiction over the alleged denial of a WIGI.

In his appeal form, the appellant checked a box on

the form indicating that he was appealing the denial

of a WIGI. AF, Tab 1. He provided no further

evidence or documentation regarding this allegation.

In response to my show cause order, the appellant

indicated only that, as a result of the agency’s

discrimination, he was denied a WIGI. AF, Tab 7,

Page 6.

The MSPB generally has jurisdiction over a denial

of a WIGI after a negative determination of

acceptable performance is sustained by the agency

after reconsideration. 5 C.F.R. § 531.401(d). An

agency’s denial on reconsideration is a statutory

requirement which must be met before an appeal

denying a WIGI is properly within the MSPB’s

jurisdiction. See Priselac v. Department of the Navy,

77 M.S.P.R. 332 (1998) (MSPB can exercise

jurisdiction over an appeal from the withholding of a

WIGI only if the agency has affirmed its initial

determination

upon

reconsideration

has

unreasonably refused to act on a request for

reconsideration). An appeal to the MSPB must then

App. 57a

be filed within the required time period following

issuance of the agency’s reconsideration decision.

The appellant provided no evidence or argument

that a WIGI was denied or that reconsideration of any

denial of a WIGI was requested and issued. His bare

allegation that the agency’s discrimination against

him resulted in a WIGI is insufficient to constitute a

nonfrivolous allegation of jurisdiction. Thus, I find

that the appellant failed to establish the MSPB’s

jurisdiction over this allegation by preponderant

evidence.

The appellant failed to establish by preponderant

evidence that he suffered an appealable

reassignment or a constructive removal.

In response to my show cause orders, the appellant

asserted that the termination of his training was a

“constructive removal.” AF, Tab 7, Pages 67. However,

a removal involves a separation from the Federal

service and the termination of a training program and

resulting reassignment does not constitute such a

separation. The agency has asserted without dispute

that the appellant has not been separated from service

and the appellant notes throughout his submissions

that he accepted a reassignment to another facility.

Thus, there is no evidence that a constructive removal

has occurred.

The appellant further asserted that the

“termination of training on [May 30, 2013] was the

actual

adverse

action.”

However,

absent

circumstances not present here, a denial of training

App. 58a

is not within the Board’s jurisdiction. 5 C.F.R. §

1201.3.

The appellant further asserts that he was

involuntarily reassigned to a lower graded and/or

lower paying position. An employee’s reassignment to

another position within an agency is not generally

appealable to the MSPB as an adverse action. See

Tankesley v. Tennessee Valley Authority, 54 M.S.P.R.

147, 150 (1992); Tines v. Department of the Air Force,

56 M.S.P.R. 90, 93 (1992). An exception exists for

actions which result in a reduction of grade or pay.

5 C.F.R. §§ 752.401(a)(3) and (4). However, as the

appellant was advised in my show cause order, there

is nothing in any documentation submitted with the

appellant’s appeal demonstrating that the appellant

was reassigned to a position at a reduced grade and/or

pay. AF, Tabs 1, 4. If the appellant’s reassignment did

result in a reduction in grade or pay, the appellant

was ordered to submit evidence to support his

allegation. AF, Tab 4. He failed to do so. Thus, in none

of his submissions to the MSPB did the appellant

establish an actual reduction in grade or pay. AF,

Tabs 1-2, 6-7, 1416, 18-19.

Moreover, to constitute an appealable action, a

reduction in grade or pay must be involuntary. 5

C.F.R. § 752.401(b)(9); Garcia v. Department of

Homeland Security,

437

F.3d

1322,

1328

(Fed.Cir.2006) (en banc); Huyler v. Department of the

Army, 101 M.S.P.R. 570, If 7 (2006). A reduction in

grade would be considered involuntary if the

appellant proves that it was obtained by agency

App. 59a

coercion, misinformation, or deception. Huyler, 101

M.S.P.R. 570, If 5. See also Scharf v. Department of

the Air Force, 710 F.2d 1572,1574-75 (Fed. Cir. 1983).

To establish a claim of duress or coercion, the

appellant must show that: (l) one side involuntarily

accepted the terms of another! (2) circumstances

permitted no alternative! and (3) those circumstances

were the result of coercive acts of the opposite party.

Soler Minardo v. Department ofDefense, 92 M.S.P.R.

100, 1f6, review dismissed, 53 Fed. Appx. 545

(Fed.Cir.2002).

In order to establish involuntariness on the basis

of coercion, an employee must show that the agency

effectively imposed the terms of his demotion, that the

employee had no realistic alternative, and that the

employee’s decision was the result of improper acts by

the agency.9 The common element in all cases finding

an involuntary action is that factors have operated on

the employee’s decisionmaking processes that

deprived him of freedom of choice. See Heining v.

General Services Administration, 68 M.S.P.R. 513,

519 (1995). The determination of whether the

employee was effectively deprived of free choice is

based on the totality of the circumstances. Id. at 51920. When considering whether an action was

9 Again, there is no showing that any demotion occurred as the

appellant failed to present evidence or argument showing any

reduction in grade or pay. Nonetheless, assuming, arguendo, that

there was any such reduction, the appellant’s reassignment was,

as discussed herein, voluntary.

App. 60a

“involuntary,” it is well established that the fact that

an employee is faced with an inherently unpleasant

situation or that his choices are limited to unpleasant

alternatives does not make his decision involuntary.

See Lawson v.U.S. Postal Service, 68 M.S.P.R. 345,

350 (1995).

If the action is not initiated by an employee, then

the action is not presumed to be voluntary. Solev

Minardo, 92 M.S.P.R. 100, ^5. However, the MSPB

and its reviewing court, the Court of Appeals for the

Federal Circuit, have not interpreted the phrase

“initiated by” to require the change be suggested, in

the first instance, by the employee. Rather, this

phrase also encompasses actions voluntarily agreed

to by the employee based upon the agency's proposal.

See Gaudette v. Department of Transportation, 832

F,2d 1256, 1258 (Fed. Cir. 1987); Goodwin v.

Department of Transportation , 106 M.S.P.R. 520, 12

(2007).

Upon review of the evidence and argument, I must

find that the appellant has failed to make a

nonfrivolous allegation of jurisdiction. First, as noted

herein, there is no evidence or argument that the

appellant’s reassignment involved a reduction in

grade or pay. Further, while the appellant disagrees

with the agency’s decision to terminate his training,

he has provided very little argument and no

supporting evidence to suggest that agency officials

caused his training failure or knew that the threat to

remove him on this basis was unsupportable. To the

contrary, the record indicates that the decision to

App. 61a

terminate the appellant’s training was unanimous

among multiple agency officers, including two

training review boards, and was reached only after

months of well- documented retraining efforts failed.

The appellant has provided no basis for concluding

that agency officials intentionally caused him to fail

the training.

Further, the appellant accepted the reassignment

to a different position when he failed to complete the

agency’s training requirements. AF, Tab 16,

Appellant’s Exhibit B. The appellant asserted that,

because the agency had advised him that, if he

declined the reassignment offer, he may be removed 5

his reassignment was involuntary. Id. See also AF,

Tab 16, Exhibits A-B. He further asserted that the

agency’s actions were the result of sex discrimination

based on allegations that multiple female employees

were given additional training and treated differently

than he was which led to his removal, reduction in pay

and grade, and denial of his WIGI. AF, Tab 7, Page 4.

In its notice of reassignment, the agency indicated

that, if he declined it, his removal from his ATCS

position and from the Federal service would be

proposed. AF, Tab 2, Page 2. However, the fact

remains that the appellant had an option in that he

could have declined it and then challenged the

removal action.

The fact that he accepted the

reassignment in lieu of removal does not make his

reassignment involuntary because he had the option

to face removal and exercise his appeal rights to the

EEOC and/or the MSPB. While this is admittedly an

App. 62a

unpleasant choice to face, it is well established that

the fact that an employee is faced with unpleasant

alternatives does not in and of itself render the

situation improperly coercive. See Lawson, 68

M.S.P.R. at 350. Thus, under the totality of the

circumstances established by the written record for

this appeal, I find that the appellant has failed to nonfrivolously allege that he suffered an appealable

reduction in grade or pay.

Although the appellant has alleged sex

discrimination, it is well established that, absent an

otherwise appealable action, the

MSPB lacks

independent jurisdiction to decide these affirmative

defenses. Wren v. Department ofthe Army, 2 M.S.P.R.

1, 2 (1980), affd, 681 F.2d 867, 87173 (D.C. Cir. 1982).

Moreover, as noted above, because the appellant has

failed to present a nonfrivolous allegation of

jurisdiction, he is not entitled to the hearing he

requested.

For all of the reasons discussed above, I find that

the appellant has failed to present a nonfrivolous

allegation of jurisdiction and, accordingly, this

appeal must be dismissed for lack of jurisdiction.

Decision

The appeal is DISMISSED.

FOR THE BOARD:

/S/

Sherry A. Zamora

Administrative Judge

NOTICE TO APPELLANT

App. 63a

This initial decision will become final on May 17.

2016 unless a petition for review is filed by that date.

This is an important date because it is usually the last

day on which you can file a petition for review with the

Board. However, if you prove that you received this

initial decision more than 5 days after the date of

issuance, you may file a petition for review within 30

days after the date you actually receive the initial

decision. If you are represented, the 30-day period

begins to run upon either your receipt of the initial

decision or its receipt by your representative,

whichever comes first. You must establish the date on

which you or your representative received it. The date

on which the initial decision becomes final also

controls when you can file a petition for review with

the Court of Appeals. The paragraphs that follow tell

you how and when to file with the Board or the federal

court. These instructions are important because if

you wish to file a petition, you must file it within the

proper time period.

BOARD REVIEW

You may request Board review of this initial

decision by filing a petition for review.

If the other party has already filed a timely

petition for review, you may file a cross petition for

review. Your petition or cross petition for review

must state your objections to the initial decision,

supported by references to applicable laws,

regulations, and the record. You must file it with:

App. 64a

The Clerk of the Board

Merit Systems Protection Board

1615 M Street, NW.

Washington, DC 20419

A petition or cross petition for review may be filed

by mail, facsimile (fax), personal or commercial

delivery, or electronic filing.A petition submitted by

electronic filing must comply with the requirements of

5 C.F.R. § 1201.14, and may only be accomplished at

Board's

eAppeal

website

the

(httpsV/eappeal. mspb.gov).

Criteria for Granting a

Petition or Cross Petition for Review

Pursuant to 5 C.F.R. § 1201.115, the Board

normally will consider only issues raised in a timely

filed petition or cross petition for review. Situations in

which the Board may grant a petition or cross petition

for review include, but are not limited to, a showing

that:

(a) The initial decision contains erroneous findings

of material fact, (l) Any alleged factual error must be

material, meaning of sufficient weight to warrant an

outcome different from that of the initial decision. (2)

A petitioner who alleges that the judge made

erroneous findings of material fact must explain why

the challenged factual determination is incorrect and

identify specific evidence in the record that

demonstrates the error. In reviewing a claim of an

erroneous finding of fact, the Board will give deference

judge’s

credibility

administrative

determinations when they are based, explicitly or

App. 65a

implicitly, on the observation of the demeanor of

witnesses testifying at a hearing.

(b) 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 petitioner must explain how the error

affected the outcome of the case.

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.

(d) New and material evidence or legal argument

is available that,

despite the petitioner’s due

diligence, was not available when the record closed. To

constitute new evidence, the information contained in

the documents, not just the documents themselves,

must have been unavailable despite due diligence

when the record closed.

As stated in 5 C.F.R. § 1201.114(h), a petition for

review, a cross petition for review, or a response to a

petition for review, whether computer generated,

typed, or handwritten, is limited to 30 pages or 7500

words, whichever is less. A reply to a response to a

petition for review is limited to 15 pages or 3750

words, whichever is less. Computer generated and

typed pleadings must use no less than 12 point

typeface and 1-inch margins and must be double

spaced and only use one side of a page. The length

limitation is exclusive of any table of contents, table of

App. 66a

authorities, attachments, and certificate of service. A

request for leave to file a pleading that exceeds the

limitations prescribed in this paragraph must be

received by the Clerk of the Board at least 3 days

before the filing deadline. Such requests must give the

reasons for a waiver as well as the desired length of

the pleading and are granted only in exceptional

circumstances. The page and word limits set forth

above are maximum limits. Parties are, not expected

or required to submit pleadings of the maximum

length. Typically, a well-written petition for review is

between 5 and 10 pages long.

If you file a petition or cross petition for review, the

Board will obtain the record in your case from the

administrative judge and you should not submit

anything to the Board that is already part of the

record. A petition for review must be filed with the

Clerk of the Board no later than the date this initial

decision becomes final, or if this initial decision is

received by you or your representative more than 5

days after the date of issuance, 30 days after the date

you or your representative actually received the initial

decision, whichever was first. If you claim that you

and your representative both received this decision

more than 5 days after its issuance, you have the

burden to prove to the Board the earlier date of

receipt. You must also show that any delay in

receiving the initial decision was not due to the

deliberate evasion of receipt. You may meet your

burden by filing evidence and argument, sworn or

under penalty of perjury ( see 5 C.F.R. Part 1201,

App. 67a

Appendix 4) to support your claim. The date of filing

by mail is determined by the postmark date. The

date of filing by fax or by electronic filing is the date

of submission. The date of filing by personal delivery

is the date on which the Board receives the document.

The date of filing by commercial delivery is the date

the document was delivered to the commercial

delivery service. Your petition may be rejected and

returned to you if you fail to provide a statement of

how you served your petition on the other party. See 5

C.F.R.§ 1201.4(j). If the petition is filed electronically,

the online process itself will serve the petition on other

e-filers. See 5 C.F.R. § 1201.14(j)(l).

A cross petition for review must be filed within 25

days after the date of service of the petition for review.

NOTICE TO AGENCY/INTERVENOR

The agency or intervenor may file a petition for

review of this initial decision in accordance with the

Board's regulations.

notice to the appellant regarding

your further review rights

You have the right to request review of this final

decision by the United States Court of Appeals for the

Federal Circuit. You must submit your request to the

court at the following address^

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

App. 68a

The court must receive your request for review no

later than 60 calendar days after the date this initial

decision becomes final. See 5 U.S.C. § 7703(b)(1)(A)

(as rev. eff. Dec. 27, 2012). If you choose to file, be very

careful to file on time. The court has held that

normally it does not have the authority to waive this

statutory deadline and that filings that do not comply

with the deadline must be dismissed. See Pinat v.

Office ofPersonnel Management, 931 F.2d 1544 (Fed.

Cir. 1991).

If you need further information about your right to

appeal this decision to court, you should refer to the

federal law that gives you this right. It is found in

Title 5 of the United States Code, section 7703 (5

U.S.C. § 7703) (as rev. eff. Dec. 27, 2012). You may

read this law as well as other sections of the United

States

Code,

our

website,

httpV/www.mspb.gov/appeals/uscode/htm. Additional

information 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, and 11.

If you are interested in securing pro bono

representation for your court appeal, that is,

representation at no cost to you, the Federal Circuit

Bar Association may be able to assist you in finding

an attorney. To find out more, please click on this link

or paste it into the address bar on your browser:

http s 7/fedcirbar. or g/Pro - BonoS cholar ship s/Government- Employees -Pro -

App. 69a

Bono/Overview - FAQ

The Merit Systems Protection Board neither

endorses the services provided by any attorney nor

warrants that any attorney will accept representation

in a given case.

App. 70a

FILED: August 13, 2019

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-1458

(i:i7-cv-00926-CMH-IDD)

THOMAS F. SWEENEY

Petitioner - Appellant

MERIT SYSTEMS PROTECTION BOARD

Respondent - Appellee

ORDER

The court denies the petition for rehearing.

Entered at the direction of the panel! Chief

Judge Gregory, Judge Wynn, and Judge Thacker.

For the Court

/s/ Patricia S. Connor. Clerk

App. 71a

No. 18-1458

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THOMAS F. SWEENEY,

Appellant,

MERIT SYSTEMS PROTECTION BOARD

Appellee.

Appeal From The United States District Court For

The Eastern District Of Virginia

Alexandria Division

PETITION FOR REHEARING

Thomas F. Sweeney, pro se

7083B Jasper Dr

Middletown, MD 21769

Phone: (804) 457-8868

Fax: (703) 936-4036

App. 72a

Table of Contents

Table of Authorities

STATEMENT REQUIRED BY LOCAL RULE

40(b)..................................................................

BACKGROUND....................................................

ARGUMENT.................. .......................................

A. Panel's opinion overlooked a material factual

that Termination of Training requires the

employee's removal from the position

B. Panel relied on Appellee's incorrect description

of 'clean slate'

C. Panel's opinion overlooked a material fact that

Appellant was immediately subjected to the

procedural actions of the proposal termination

of training before having the ability to

respond

D. Panel's opinion is in conflict with multiple

Supreme Court decisions that require a

government employee has an opportunity to

respond before an adverse action is taken..... 15

E. Panel's opinion is in conflict with the Supreme

Court's decisions that require liberal discretion

when

dealing

with

prose

litigants

F. Panel's opinion is in conflict with the Supreme

Court's and the Federal Circuit's opinions of

App. 73a

jurisdiction of MSPB mixed case claims without

discrimination

cause

action

G. Panel's opinion lacked consideration of the

FAA's Termination of Training due process as it

is subjected on an average of 608 Federal

Employees every year and is a matter of

exceptional

importance

CONCLUSION

CERTIFICATE OF COMPLIANCE REQUIRED BY

RULE 32(g)...............................

CERTIFICATE OF SERVICE

App. 74a

Table of Authorities

Cases

Page(s)

Cleveland Bd. ofEduc. v. Loudermill, 470 U.S. 532,

U.S. (1985)

5, 15

Gaudette v. Department of Transportation, 832 F.2d

1256, Fed. Cir. (1987)

2, 4, 12

Kloeckner v. Solis, 568 U. S. 41, 46, U.S. (2012)

Perry v. Merit Sys. Prot. Bd., No. 16-399,

U.S. (2017)......................................

Sweeney v. Merit Sys. Prot. Bd., 2019 U.S. App.

LEXIS 17930, 4th Cir. (2019).............................

4, 17

Stone v Federal Deposit Insurance, 179 F.3d 1368,

Fed. Cir. (1999)......................................................... 15

Ward v. United States Postal Service, 634 F.3d 1274,

Fed. Cir. (2011)

Rules

Federal Rule of Civil Procedure 12 (b) (6) .

Federal Rule of Civil Procedure 56...........

Federal Rule of Appellate Procedure 32(g)

Federal Rule of Appellate Procedure 40(b)

App. 75a

Constitutional Provisions

5th Amendment

(passim)

14th Amendment

(passim)

App. 76a

STATEMENT OF PURPOSE

REQUIRED BY RULE 40(b)

Rehearing is warranted as there are multiple

factual matters not addressed, a Jurisdictional

question, a question of exceptional importance, and an

opinion that is in direct conflict with the Supreme

Court, and other Court of Appeals that were not

addressed in this panel's unpublished opinion.

After Appellant's Counsel failed to properly

address direct questions by this panel during oral

arguments, Appellant removed his Counsel and filed

a Motion for Leave of Court to File Post Argument

Brief to address the questions of this Court and other

issues/reasoning Appellant found important. This

Court considered the Motion's supporting reasoning

for the brief- as the brief itself and granted the Motion.

This panel's unpublished opinion did not address or

reference any of the Motion for Leave of Court to File

Post Argument Brief content in any manner. The

majority of the Motion for Leave of Court to File Post

Argument Brief points are repeated in this petition.

This panel failed to address that a

determination of Training Termination of an Air

Traffic Control Specialist - In Training (ATCSTT, also

called a developmental ATCS) is a major adverse

action as this decision requires that the employee be

removed from their current position. This was not the

case in Gaudette as the FAA's procedures have

changed and now contained in Human Resources

Policy Manual 1.14a ("HRPM") (JA 124) along with

App. 77a

the issue in Gaudette not being a training failure, but

the lack of Notice to Appeal made their

reassignment an involuntary transfer. This panel

even acknowledges the FAA's current policy that to

remain employed as an Air Traffic Control Specialist

(ATCS), that the ATCS must satisfactorily complete

the training program in order to remain employed.

Unpublished Opinion (I) (A), Sweeney v. Merit

Sys. Prat. Bd., 2019 U.S. App. LEXIS 17930, Fourth

Circuit (2019) f 14. There is a direct nexus between a

decision of Training Termination at a facility and

being removed from the position, as the procedures

are directly listed in the HRPM 1.14a (JA 124). The

requirement that an ATCS must satisfactorily

completing training only reinforces that the decision

to Terminate the Training of an ATCS is a required

step that ends with the ATCSTT being removed from

federal service, or reassignment to a lower grade/pay

facility.

This panel also failed to address if the

Appellant's Due Process rights were violated by the

FAA when Appellant was subjected to the procedural

actions of a final decision of Training Termination on

April 16th 2013 when Appellant was only given a

Proposal of Training Termination on April 16th, 2013

(JA 067), thus making Appellant believe the decision

was already made before being able to provide any

written comments or concerns. The procedural actions

of a final decision of Training Termination includes

being removed from the control room floor, assigned

App. 78a

administrative duties, assigned administrative days

off I work hours, assigned to an administrative

supervisor, and required to take a 30 minute unpaid

lunch. With the fact that the word 'proposal' only

appeared once (in the bottom of the third paragraph)

of the purported Proposal of Training of Termination

received April 16th, 2013 (Subject: Discontinuation of

Training) at JA 067, along with the Training

Termination procedural actions already enacted, any

reasonable person would believe the decision was

already made to Terminate their Training and instead

of arguing with the deciding official who also decides

if that person is even offered a lower grade/pay ATCSIT position, one would reasonably only ask for

assistance in keeping their employment, and being

near their family- as the Appellant did.

Panel also overlooked if Appellant has the right

to re-challenge a final decision regarding Termination

of Training if Appellant did not select from the lower

grade/pay reassignment list. The Termination of

Training is directly related to, and apart of a removal

process, and should have MSPB appeal rights and due

process to a decision to Terminate Training.

On average 608 FAA Employees not complete

the training program per year. Although of the 608

employees some might be transfer or other reasons for

not completing training, but the vast majority will be

the result of Training Termination.

If Gaudette, which is the current controlling

case law, has changed due to a change in the FAA's

App. 79a

management procedures, the possibility of 608

government employees per year are being stripped of

their MSPB review rights by the usage of bad or

misunderstood case law that is in itself_ exceptional

importance- and must be addressed.

The Supreme Court ruled in Perry quoting

Kloeckner, that 'mixed-case' must be filed in district

court, as opposed to the Federal Circuit. But the 'key'

to district court review is a claim that an agency

appealable

the

MSPB

violates

antidiscrimination statute listed in §7702(a)(1). As

noted in this panel's opinion that Appellant did not

present a cause of action under Title VII. If this is the

case, Appellant did not meet the 'key' in Perry

(quoting Kloeckner) thus the district court did not

have jurisdiction, requiring transfer back to the

Federal Circuit.

In the instance where a complainant while

prose, comes to the district court as a mixed case

(where discrimination was claimed previously) and

fails to specifically assert a Title VII claim in their

complaint in district court, should the court

specifically issue a Show Cause Order of mixed case

proceedings requiring the appellant to amend the

complaint or waive their discrimination claims,

instead of holding them to such strict standards as

lawyers. If waiving their discrimination claims the

complaintant will be tranferred to the Federal Circuit

as required by law.

It has been upheld for almost half a century

App. 80a

that a civil servant holds a property right to their job

by the Supreme Court and must have due process

prior to it being taken away. "We conclude that all the

process that is due is provided by a pretermination

opportunity to respond....". Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 1030-79 (Supreme Court

1985). With this panel's oversight that the Appellant

was subjected to the procedural elements of Training

Termination prior to even responding, his right of due

process was violated as he believed the decision was

already made, but the only reason for response is if

the air traffic manager should assign him [to a lower

grade/pay facility] or separate from federal service.

Since the panel overlooked factual evidence that a

genuine issue of material fact was present in the

district court, the FRCP Rule 12 (b) (6) motion to

dismiss must be converted to a FRCP Rule 56 motion

for summary judgement.

BACKGROUND

On August 5, 2009, Appellant began working

for the FAA as an air traffic control specialist - in

training ("ATCSTT", also called developmental

ATCS). An ATCSTT must successfully complete

extensive training before becoming a certified

professional controller ("CPC"). Pursuant to FAA

■ policy, in order to remain employed with the FAA as

an ATCS, an individual must satisfactorily complete

the FAA's training program, become a CPC by

obtaining a facility or area certification at the facility

App. 81a

the employee is assigned. If an ATCS-IT shows

difficulty in attaining certification, FAA Management

may Suspend an ATCS-IT training pending a Training

Review Board ("TRB"). ATRB's sole job is to interview

the On The Job Instructors that train the ATCS-IT,

the ATCS-IT supervisor, the ATCS-IT, and others who

had significant contact to determine if training

procedures were followed. The TRB makes a

recommendation to the Air Traffic Manager who has

the final decision to re-enter the ATCS-IT in the

training program or to terminate the ATCS-IT

training at that facility. If the facilities Air Traffic

Manager decides to terminate the ATCS-IT training

at the facility, the ATCS-IT will be assigned

administrative duties/days off/hours/ manager, and

not allowed to control air traffic on positions they were

certified on. The ATCS-IT training paperwork, with

recommendation letters from the trainers, is

submitted to the National Employee Services Team

("NEST"), who makes a determination if the employee

will be transferred to a lower level facility, or

separated from federal service.

After completing an initial training period, in

December 2009 Appellant reported to the Washington

Air Route Traffic Control Center in Leesburg, Virginia

("Washington Center"). In August 2012 Appellant had

numerous disagreements with an assigned On the job

instructor ("OJTI") who was a previous NATCA

representative. The OJTI used his persuasion as an

OJTI for the Appellant and with FAA management to

App. 82 a

create false documentation of training. FAA

management, when confronted with the allegations of

false documentation, refused to remove the om in

question. FAA Training Procedures require FAA

Management to correct circumstances that prevent

proper training, FAA Management refused. In

November 2012 Appellant has his training suspended

by FAA management. A TRB was conducted. The

Washington Center air traffic manager (length of

time as air traffic manager was less than 1 year)

reinstated Appellant into training with abnormally

restricted additional training hours and the same

supervisor. It is standard practice that the supervisor

is changed for the OJTI. The supervisor for the

Appellant in the period in question was apart of the

"Emerging Leaders" program where they are awarded

with fast promotions as long as the supervisor gets

positive remarks from their superiors.

FAA Management later suspended Appellant's

in February 2013. The TRB recommended

termination of training but highly suggested being

retained at a lower level facility. It is an unwritten

rule in the FAA that a person does not get additional

training after the 2nd training review board on the

same radar position. The air traffic manager (new air

traffic manager, length of time in position was about

1-2 months) implemented the TRB recommendation

via memo dated April 15 th, 2013 Subject

"Discontinuation of Training", received on April 16th,

2013.

Immediately

after

receiving

the

App. 83a

"Discontinuation of Training" memo on April 16th,

2013, Appellant was no longer allowed to perform

duties as an Air Traffic Control Specialist controlling

traffic, but assigned to the administrative schedule,

assigned to an administrative supervisor, and

assigned administrative duties pending placement

determination.

Since Appellant was subjected to the

procedures that occur when it is determined that an

ATCSTT training is terminated, Appellant only asked

for the air traffic managers assistance in being

retained with the FAA and remaining in the area near

his wife (who works at Washington Center). On April

23rd, 2013 the FAA's Employment procedures were

modified to require any ATCS-IT whose training was

terminated to the final decision of separation from

federal service or reassignment to a lower grade/pay

facility to be done at the national level by the NEST.

Appellant was offered reassignment 4 lower grade/pay

facilities or be separated from federal service. Since

the decision of Termination of Training was final the

Appellant would have been terminated (or separated)

from Federal Service per HRPM policy if he had not

selected one of the facilities offered to him for

reassignment. Effective December 1st, 2013 (JA 064)

Appellant was reassigned to Harrisburg Tower in

Middletown, MD. Appellant became a CPC at

Harrisburg Tower in 2015, and subsequently resigned

due to development delays of his child complicated by

this 3 hour round trip for his job. Appellant is

App. 84a

currently employed by a private contractor as an Air

Traffic Control Specialist at Frederick Tower in

Frederick Maryland.

ARGUMENT

A. Panel's opinion overlooked a material fact

that Termination of Training requires the employee's

removal from their current position.

The FAA's Technical Training program for Air

Traffic Controllers and the FAA's Personnel

Management System ("PMS") is unique in the

government civil service. The Congress even

exempted the FAA PMS from the MSPB in beginning

April 1, 1996- yet Congress reimplemented employees

of the FAA ability to appeal to the MSPB on April 5th,

2000 retroactive to March 31, 1996 in P.L. 106-181 §

307. Currently the FAA is exempted from most of

U.S.C. Title 5 Personnel Management System except

for a few Chapters. Notably 49 U.S.C. § 40122 (g) (2)

(H) reimplements 5 U.S.C. §§ 7701-7703 as it applies

to the MSPB, allowing the ability for FAA employees

to file an MSPB appeal.

This panel contradicted itself in its opinion

regarding the potential outcome(s) after a decision of

Termination of Training. "But if the ATCS does not

accept the reassignment, the FAA may 'initiate proper

separation activities,' id.,' i.e, propose the individual's

removal from federal service". Unpublished Opinion

at (I) (A) T|5. Yet in Unpublished Opinion at (I) (A) t 1

states "Pursuant to FAA policy, in order to remain

App. 85a

employed with the FAA as an air traffic controller, an

individual must satisfactorily complete the FAA's

training program, become a CPC, and obtain 'facility

or area certifications' at the facility to which the

individual is assigned. J.A. 130." This acknowledges

that the Panel understands after a decision of

Termination of Training, if the employee does not

accept the purported 'voluntary' reassignment, the

employee will be terminated from their position.

The FAA- not once- has shown that an employee

has remained in their exact position after a decision

to Terminate Training of an employee.

Once the FAA issues a final decision to

Terminate Training of an employee, that decision

follows the employee. If the employee does not choose

to accept the 'voluntary' reassignment, the final

decision of Termination of Training is held against the

employee during the Removal from Federal Service.

Is the employee able to 'rechallenge' the Termination

of Training, even though the employee was already

given his opportunity to respond?

Termination of Training is an action that is

directly based on the unacceptable performance of the

employee. The MSPB's Appellate jurisdiction for

actions based on unacceptable performance is directly

addressed in 5 U.S.C. § 7701 (c) (l) (A) "in the case of

an action based on unacceptable performance

described in section 4303... " which invokes

procedures in 5 U.S.C. § 4303.

If the employee takes no action after a decision

App. 86a

of Termination of Training, the employee will be

removed. So is Termination of Training the beginning

of Separation from Federal Service disguised to

portray an involuntary reassignment causing a

reduction of grade/pay as a seemingly voluntary

action? Appellant believes it.

This panel further misinterpreted Gaudette as

the issue in Gaudette was not if Termination of

Training was an adverse action, but if not giving them

Notification of Appeal Rights created an misinformed

decision. Gaudette filed a greivance for her

Termination of Training. A person can only do one of

two actions, either file a grievance, or file a MSPB

appeal, one can not do both. In Gaudette, the reason

the Federal Ciruit did not address it, as they did not

have jurisidiction due to Gaudette filing the

grievance. Furthermore the procedures the FAA uses

have been extensively modified and must be

readdressed due to this.

B. Panel relied on

description of 'dean slate'

Appellee's

incorrect

Appellee stated in Appellee's Brief that after

accepting a reassignment after Termination of

Training they are provided with a 'clean slate'.

Appellee is misleading this Court with that statement

is it is factually incorrect as discussed below.

A decision of Termination of Training follows

the employee as if they are having their Training

Terminated at the lower grade/pay facility, per the

App. 87a

HRPM 1.14a (JA 124) they are not allowed to be

offered a 'voluntary reassignment' if they have their

Training Terminated and the next facility. Only if the

employee attains CPC status at the lower grade/pay

facility, is when they attain a 'clean slate'. The 'clean

slate' means if the employee, after becoming CPC at

the lower grade/pay facility, transfer to a different

facility then has their Training Terminated the

employee can be again offered reassignment to a lower

grade/pay facility.

Appellee attempted to disguise the 'clean slate'

as it specifically describes how a decision of

Termination of Training is an adverse action that is

held against the employee until they attain CPC.

This panel improperly believes a person can rechallenge a Termination of Training determination if

the employee does not select from the reassignment

choices the FAA provides. Once due process is given

for a decision of Termination of Training, and a

decision made, does the employee get to re-challenge

it, or is Termination of Training apart of the Removal

Process.

C. Panel's opinion overlooked a material fact

that Appellant was immediately subjected to the

procedural actions of the proposal termination of

training before having the ability to respond.

FAA's procedures require an employee whose

training was terminated to be assigned to non-control

duties only. When on non-control duties, also called

App. 88a

administrative duty, the employee is required to work

an administrative schedule, and report to an

administrative supervisor. The procedure was not

contained in the Joint Appendix, but attached with

the Appellants Motion for Leave of Court to File Post

Argument Brief, Exhibit A.

Immediately after receiving the purported

proposal of Termination of Training memorandum on

April 16, 2013 (JA067), the Appellant was assigned to

non-control duties, assigned an administrative

schedule, and assigned an administrative supervisor.

Appellant, and any reasonable person would believe

the decision of Termination of Training was already

made, and the air traffic manager wanted the

Appellants comments on if he should be retained at a

lower grade/pay facility or be separated from Federal

Service. Subjecting Appellant to the procedural

actions of a final decison of Termination of Training

with still in the 'propsal' stage is highly prejudicial

and created misinformation that the Appellant relied

on when responding on April 24 th, 2013

Had Appellant been given a reasonable

opportunity to respond before believing his Training

was Terminated, Appellant's response would have

been brought up numerous issues, as Appellants

request did in his request for reconsideration on

August 7th, 2013 (JA105-13). The air traffic manager

after receiving the August 7th, 2013 verbally stated

request since Training Termination decision was

already made, there was nothing he could do. In

App. 89a

October of 2013 after Appellant requested a response

in writing to the August 7th request, the air traffic

manager responded on October 30, 2013 while a

substantive part of the response appeared to be an

attached addendum not on FAA letterhead. JA115-17

D. Panel's opinion is in conflict with multiple

Supreme Court decisions that requires the

government give an employee an opportunity to

respond before an adverse action is taken.

The Supreme Court and the Court of Appeals

for the Federal Circuit has specifically held that a

government employee shall have a pretermination

opportunity to respond. "We conclude that all the

process that is due is provided by a pretermination

opportunity to respond... " "Because respondents

allege in their complaints that they had no chance to

respond, the District Court erred in dismissing for

failure to state a claim." Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 1079, U.S. Supreme Court

(1985). Also quoted in Stone v. Federal Deposit

Insurance, 179 F.3d 1368, Federal Circuit (1999) and

Ward v. United States Postal Service, 634 F.3d 1274,

Federal Circuit (2011. At no time did the district court,

or this panel address the allegation that Appellant

had no chance to respond -before being subjected to the

procedural actions of Training Termination. The

Appellant believed the response was for the air traffic

manager's decision of separation or position chance,

not Termination of Training, since Appellant was

App. 90a

already subjected to the procedural actions.

The FAA's so called proposal letter, dated April

15, 2013 (received April 16), subject: "Discontinuation

of Training" was unconstitutionally vague as it is not

dear that it was a proposal. The word 'proposal' is

found only once in the whole document in the third

paragraph. Given the totality of the vagueness, and

being subjected to the procedural actions of training

termination, a reasonable person would assume their

training was terminated and they only wanted a

response if the air traffic manager would "reassign or

separate" the employee. JA 067.

E. Panel's opinion is in conflict with the

Supreme Court's decisions that require liberal

discretion when dealing with pro se litigants.

Being pro se, the court need not argue for the

pro se litigant or re- write their complaint, but be

liberally construed. It should not be unreasonable for

a court to directly address a technical nicety of an

otherwise meritorious claim. This would be easily

accomplished by an Order to Show Cause by the

district.

The Court of Appeals for the Federal Circuit

even noted that since Appellant did not waive his

discrimination claim that it should be heard in the

district. A discrimination claim was contained in the

MSPB.

F. Panel's opinion is in conflict with the

Supreme Court's and the Federal Circuit's opinions of

jurisdiction of MSPB mixed case claims without a

App. 91a

discrimination cause of action.

"The key to district court review is the employee's

'clai[m] that an agency action appealable to the MSPB

violates an antidiscrimination statute listed in

§ 7702(a)(1). ! !1 Perry v. Merit Systems Protection Bd.,

582 U.S.

_ (2017) at 9.

"In the CSRA, Congress created the

Merit Systems Protection Board (MSPB

or Board) to review certain serious

personnel actions against federal

employees. If an employee asserts rights

under the CSRA only, MSPB decisions,

all agree, are subject to judicial review

exclusively in the Federal Circuit.

§7703(b)(l).”

Perry v. Merit Systems Protection Bd., 582 U.S.

___(2017) at 17.

G. Panel's opinion lacked consideration of the

FAA's Termination of Training due process as it is

subjected on an average of 608 Federal Employees

every year and is a matter of exceptional importance.

As of July 2019 the FAA's Priority Placement

Tool (PPT) which gets data from the FAA's Staffing

Workbook (SWB) states the FAA currently has 3,708

ATCSTT, average training success is 80.6%, and an

average training time of 1.48 years across all FAA Air

Traffic Facilities. This means an average of 900 FAA

App. 92a

Employees will not be successful in training every

1.48 years, or on average 608 employees per year.

As stated above, an employee will be removed

from their position after a decision to Terminate

Training. The FAA has no evidence to the contrary.

Only after this decision is when the FAA offers

employee's whose training was terminated a lower

level facility. The panel must consider how voluntary

the action is in totality given it occurs after

Termination of Training. Appellant believes if this

were to be a completely voluntary action, in lieu of

Termination of Training, the voluntary transfer must

occur before a final decision of Termination of

Training.

Appellant also believes a standardized

procedure created by the FAA to turn an involuntary

action based on unacceptable performance into a

voluntary one after the final decision of Termination

of Training- which is based on unacceptable

performance in training- should also be evaluated for

its constitutionality of due process.

App. 93a

CONCLUSION

The panel should grant a rehearing of this

appeal and consider the arguments raised in this

Petition for Rehearing along with arguments raise in

Appellants Motion for Leave of Court to File Post Oral

Argument Brief.

Respectfully submitted,

/s/Thomas Sweeney

Thomas F. Sweeney

Appellant, pro se

DATED: July 26th, 2019

7083B Jasper Dr

Middletown,

21769

804-457-8868

Thomas@reddn.com

App. 94a

CERTIFICATE OF COMPLIANCE

REQUIRED BY RULE 32(g)

Excluding Cover Page, Table of Contents, Table of

Authorities, Rule 32(g) Certificate of Compliance, and

Certificate of Service, this Petition for Rehearing

contains 3,835 words.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.