Petition for Writ of Certiorari — In re Counce

(\) Supreme Court, U.S.

FILED

No. 09-__ 10-99 JUN 3U 2010

Of Counsel

MICHAEL J. MYERS, Pro Bono

THE UNIVERSITY OF SOUTH

DAKOTA SCHOOL OF LAW

414 East Clark Street

Vermillion, SD 57069

(605) 677-6343

IN Tue OFFICE OF THE CLERK

Supreme Court of the United States

SAUNDRA J. COUNCE, R.N.,

Petitioner,

Ns

SECRETARY OF THE UNITED STATES

DEPARTMENT OF VETERANS AFFAIRS,

Respondent.

On Petition for a Writ of Mandamus to the

United States Court of Appeals

for the Sixth Circuit

PETITION FOR A WRIT OF MANDAMUS

Counsel of Record

Bank of America Tower

101 E. Park Blvd.

Suite 600

Plano, Texas 75074

(214) 273-7290

jegrass@gmail.com

June 30, 2010

JEFFREY C. GRASS, Pro Bono

QUESTIONS PRESENTED

1. If it is the Jaw of this case as held by the Merit

Systems Protection Board (MSPB) at the successful

urging of Respondent-Appellee VA, that Petitioner-

Appellant had no MSPB appeal rights because, as

MSPB stated she was “subject to the VA’s Discipli-

nary Appeals Board [DAB] procedure” as the result of

her “serving under a permanent appointment” and

“therefore . . . DAB had ‘exclusive jurisdiction’ to

review appellant’s removal,” should principles of re-

spect for the integrity of administrative adjudication

demand that Respondent-Appellee VA be ordered to

provide Petitioner-Appellant DAB appea! rights

because it is the law of the case, particularly because

it was Respondent-Appellee that persuaded the MSPB

to dismiss her MSPB appeal because Petitioner-

Appellant had DAB hearing and due process rights?

2. Should the Federal District Court and/or the

Sixth Circuit Court of Appeals have applied judicial

estoppel and ordered VA to stop reversing its posi-

tions on Petitioner-Appellant’s permanent or proba-

tionary employment status (VA made two reversals,

its first was to deny Petitioner-Appellant her MSPB

rights, the second reversal was after MSPB dismissed

her claims and she appealed to VA and was in federal

court), after VA was successful in having MSPB refuse

to exercise its jurisdiction to provide Petitioner-Appel-

lant any relief because MSPB ruled that Petitioner-

Appellant had DAB rights so necessarily she was “VA

Permanent,” by ordering the parties bound by the

MSPB’s decision so that judicial estoppel and law of

the case establish in Petitioner-Appellant’s case that

she has the rights of a non-probationary VA employee

before the VA (and in federal court) so she can get the

DAB due process hearing she needs to have her

claims fairly adjudicated before the VA?

(1)

TABLE OF CONTENTS

QUESTIONS PRESENTED...............:.......esceeeee

TABLE OF AUTHORITIES. .................. ccc eeee eee

JURISDICTION ............... Tere ay See MS eM

AN ORDER BY WRIT OF MANDAMUS CAN

ein nps han) escvdasadsetaghacRiaXadiiane aiiataerenanineted

APPENDICES

Pe Fi ioe sniiesnncaanenaweennsssssarseegenravanonaareats

Agency briefs to the MSPB

1. 01-02-04 Agency Motion to Dismiss............

2. 05-03-04 Agency Petition for Review .........

Gt i kid Sanicannausudibarck

09-19-03 Agency Letter to Petitioner..............

Separation During Probationary Period.........

FN ef < : * CRAPO REN De HORSES REE NE EC OED TOTO HD

MSPB’s OPINIONS

1. 03-02-04 Judge Clancy Initial Decision .....

2. 12-23-04 Full Board MSPB - Final Order..

3. 05-16-05 Federal Circuit - Final Order......

SPE BF sas tcsctvaviechs ea a eres

Disciplinary Appeals Board [DAB]

Dismissal Letter 05-03-04............................

(111)

lv

TABLE OF CONTENTS—Continued

aioli cia aeenneatles 25a

Three of SF 50-B’s

Office of Personnel Management [OPM]

Standard Form 50-B

[SF 50-B] Notification of Personnel Action Forms

1. 06-17-01 OPM of SF 50-B............................ 20a

2. G4-21-O2 GME OF BE BOB oncvcccesccccvesscnsevsees: 26a

3. 06-17-03 OPM of SF 50-B........................006. 27a

Fee IE bishek ingests vriphvnaorenceieasemncassiacieis oats 28a

VA FORM 10-2623 PROFICIENCY REPORT

1. 06-15-02 FORM 10-2623 - GOOD .............. 28a

2. 06-15-03 FORM 10-2623 - GOOD .............. 30a

3. 08-17-03 FORM 10-2623-SUBSTITUTED. 32a

4. 08-21-03 FORM 10-2623-SUBSTITUTED. 34a

rT ro iS 8 ee ee 36a

08-01-03 Notification of Nurse Professional

Standards Board [NPSB] hearing ............... 36a

APPENDIX H............. Bs ie OA POOR 39a

05-07-01 —- UNPUBLISHED,

Masood N. Khan v. Togo D. West, ¢Jr.,

Secretary DVA, United States Court of

Appeals for the Fourth Circuit No. 00-2450... 39a

V

TABLE OF CONTENTS—Continued

Page

DT ees ha dacsccusl ccaiscts cautaeubivestsseexebentis 45a

The Sixth Circuit Court of Appeals

1. 11-12-09 ORDER Affirming the District

BI Ceri susndocbavelcudccatuatsesediveisnicsss \actsacessteockotes 45a

2. 04-01-10 ORDER Motion to Clarify/

Petition for Re-Hearing Denied....................... 48a

vl

TABLE OF AUTHORITIES

CASES Page

In re Ford Motor Co., 110 F.3d 954 (3d Cir.

SEG ra 9 EIR An ve ee 2

Kerr v. United States District Court, 426

as Usunecineecaane 1-2

Khan v. West, 8 F. App’x. 243, 2001 WL

475941 (4th Cir. May 7, 2001) (No. 00-

RRS ae ee ee 20

New Hampshire v. Maine, 532 U.S. 742,

ee res Re CE Bedicensscscevasasaesincancs Za, 20; 26

Sporck v, Peil, 759 F.2d 312 (3d Cir. 1985). 1

University of Tennessee v. Elliott, 478 U.S.

188, 106 S. Ct. $220 (1986)...................008 22, 27

Valentine-Johnson v. Roche, 386 F.3d 800

a os cas ducanannbabcaneuasnce 24, 26

STATUTES

Ee WII BP vn ccscunsensanecanenecsdtncenssénesstis 4

se cece ps dshinsencdencacas tnanenieiands 7

Fe ee © FA Doncnssesccncesccrcressccseesensaens 3

Re PI scvicasssescsinsssonensxsesesevees 4

te OF PEIN? vacsoncvecsesssxsisenscevsnnssosans 15

Be ds © FAME Io csecccsssnsavesessnssessnsess 3

Oe css sncsesvoceiaciasacschedonssesevend 12,15

Be as © PUTO De svssncsscncesssesassensevenesoncss 12,15

Be NE Oh BRUM A ascasnscencssscccncessacevesenseses 15

MISCELLANEOUS

UI OE RIE BPO 6, vckepcesuseasacsesnansevesassnsesssene 5

Vill

TABLE OF AUTHORITIES—Continued

Page

BS Ce, © ahs FOP) sresesccsartzenrerescasase 4

ee IE vivcnan ccsdsnsanincasboveracesstervennne 5

a ie EE csc cue cssnananccsnasneueseesesnvene 5

ee EE sientisdssmrmnieisneninienn 4

Davis on Administrative Law and Restate-

ment of Judgments (1982)...................000 22

Vill

TIMELINE

Petitioner hired under 38 U.S.C. 7405 (a) (1) (A)

and began work June 17, 2001. (Appendix A and

E, p. 5a and 25a.)

Probationary period for Respondent’s registered

nurses hired under Chapter 74 of Title 38 is 2

years (§ 7403 (b) (1) of Title 38) if performance is

“satisfactory”. (§ 7403 (b) (2).)

April 21, 2002, Petitioner was re-appointed under

38 U.S.C. 7401 (1), Respondent having “lost” her

entry paperwork and then delayed processing it

until April 2002. (Appendix A and E, p. 6a and

26a.)

June 17, 2002, received excellent end-of-first year

Proficiency Report. (Appendix F, p. 28a-29a.)

About May 20th, 2003 Petitioner’s nurse- supervisor

prepared and gave her an excellent end-of-second-

year Proficiency Report for Petitioner to review,

sign, and return to supervisor. (Appendix F, p. 30a-

31a.)

May 30, 2003, Petitioner signed her timely “good”

2nd anniversary Proficiency Report (Attachment

F, p. 30a-31a), and returned the supervisor’s copy,

which “disappeared” and was later substituted

for a “bad” Proficiency Report on August 17, 2003.

(Appendix F, p. 32a-33a.)

June 15, 2003, Petitioner was designated “perma-

nent” with “tenure” pursuant to 38 U.S.C. § 7403 by

an official VA Notification of Personnel Action

Standard FORM 50-B, issued to Petitioner at the

completion of her probationary period of two-

years. (Appendix E, p. 27a.)

10.

11.

12.

13.

ix

August 1, 2003, Petitioner sump.coned to appear

before Nurse Professional Standards Board, a

summary review body that has jurisdiction only

over nurses who have not completed the VA’s

two-year probation. (Appendix G, p. 36a-38a.)

When separating Petitioner, after she attained

her § 7403 permanent appointment, Respondent

asserted that her § 7404 (1) appointment status

effective April 21, 2002, re-started her probatio-

nary period, extending it until April 20, 2004.

(Appendix A, p. 2a, 9a.)

August 21, 2003, Petitioner was tried and found

guilty of unprofessional conduct by a summary

hearing procedure used only for “probationaries,”

despite Petitioner arguing that her due process

and fair hearing rights as a permanent VA nurse

were denied to her. (Appendix B, p. lla-13a.)

September 19, 2003, “Separation During Pro-

bationary Period” letter, VA declaring unequivo-

cally that Petitioner was probationary and had

only the rights she had received from the sum-

mary review before the Nurse Professional Stan-

dards Board. (Appendix B, p. 11a-13a.)

During Petitioner's Appeal at Merit Systems Pro-

tection Board (MSPB), Respondent VA successfully

argued that Petitioner was a permanent VA nurse

who was entitled to VA’s Disciplinary Appeals

Board (DAB) procedures; they were her exclusive

remedy; and consequently MSPD could not take

jurisdiction. (Appendix A, p. 2a-3a, 9a, 17a-18a.)

When Petitioner applied to VA for her DAB due

process and hearing rights, Respondent denied

her any DAB fair hearing rights, for the reason

she was “probationary,” (Appendix D, p. 23a-

14.

x

24a), the opposite of the necessary assumption

Respondent used in successfully arguing for the

MSPB to dismiss Petitioner’s appeal for lack of

jurisdiction. (Appendix C, p. la-10a, 17a-18.)

Petitioner litigated pro se in the District Court

and in the Sixth Circuit Court of Appeals, but

was unsuccessful in getting either court to

acknowledge the issue of judicial estoppel against

Respondent VA, or that the MSPB’s ruling that

she was a permanent VA nurse, is the law of the

case.

4

IN THE

SUPREME COURT OF THE UNITED STATES

Saundra J. Counce, R.N., )

Petitioner, ;

v.

Secretary of the United States ' ORDER

Department of Veterans Affairs, )

Respondent.

By reason of Defendant-Appellee Veterans Admin-

istration’s successful arguments to the United States

Merit Systems Protection Board, Petitioner’s claims

were foreclosed from adjudication before that admin-

istrative body. Additionally, Defendant-Appellee’s

arguments and positions were the cause of the hold-

ing by the Merit Systems Protection Board, creating

the law of this case, that Petitioner is entitled to the

hearing and associated due process rights afforded by

the Disciplinary Appeals Board procedures provided

to Title 38 Veterans Administration employees who

completed their probationary periods of employment

and were permanent employees of the Veterans

Administration.

For the above reasons the Sixth Circuit Court

of Appeals is ORDERED to remand this case to

Defendant-Appellee Veterans Administration who

shall be Ordered to provide to Petitioner the rights

that Defendant-Appellee provided to its registered

nurses who were permanent employees as of Septem-

ber 2003, by reason of completing the probationary

period of employment required by Section 7403(a)(2)(e)

and Section 7403(b)(1) of Title 38 United States Code.

ENTERED BY ORDER OF THE SUPREME

COURT OF THE UNITED STATES.

Signed: Date

IN THE

Supreme Court of the Anited States

No. 09-

SAUNDRA J. COUNCE, R.N.,

Petitioner,

Ve

SECRETARY OF THE UNITED STATES

DEPARTMENT OF VETERANS AFFAIRS,

Respondent.

On Petition for a Writ of Mandamus to the

United States Court of Appeals

for the Sixth Circuit

PETITION FOR A WRIT OF MANDAMUS

JURISDICTION

A mandamus is an order to a public agency or

governmental body to perform an act required by law

when it has neglected or refused to do so.

The writ of mandamus will issue only in extraordi-

nary circumstances. See Sporck v. Peil, 759 F.2d 312,

314 (3d Cir. 1985). As a precondition to the issuance

of the writ, the petitioner must establish that there is

no alternative remedy or other adequate means to

obtain the desired relief, and the petitioner must

demonstrate a clear and indisputable right to the

relief sought. Kerr v. United States District Court,

2

426 U.S. 394, 403 (1976). A writ is not a substitute

for an appeal; only if a direct appeal is unavailable

will the court determine whether a writ of mandamus

will issue. See In Re Ford Motor Co., 110 F.3d 954,

957 (3d Cir. 1997). Petitioner-Appellant has ex-

hausted available administrative and judicial tri-

bunals to obtain the hearing before Respondent-

Appellee’s Disciplinary Appeals Board that she is

entitled to. Petition for Writ of Mandamus appears

to be the remedy that will best conserve judicial time

and resources, meeting the criteria of Supreme Court

Rule 20. (28 U.S.C. § 1651 (a)).

AN ORDER BY WRIT OF MANDAMUS

CAN ISSUE

On the unique facts of this case where Respondent-

Appellee (Respondent) U.S. Veterans Administration

(VA) successfully argued and established at the Merit

Systems Protection Board (MSPB) that Petitioner-

Appellant (Petitioner) has the right to a hearing

before VA’s Disciplinary Appeals Board (DAB), and

as the relief before this Court Petitioner is seeking

only her DAB hearing at the VA that Respondent VA

has continually denied to her contrary to principles of

judicial estoppel and law of the case, an Order per

Writ of Mandamus can properly issue from this Court

to require Respondent VA to provide to Petitioner her

VA administrative due process and hearing rights

that Respondent VA successful argued to MSPB the

Petitioner is entitled to as a matter of law.

SUMMARY FACTS AND PROCEEDINGS

Petitioner Saundra J. Counce, a registered nurse

with no prior U.S. Government service (Petitioner),

was hired by VA on June 17, 2001. The next day she

3

took the oath of office and began work as a “full-time

temporary” under § 7405(a)(1A) of Chapter 74 of

38 U.S.C. (Appendix A and FE, p. 5a and 25a.) Chapter

74 of Title 38 grants VA special authority to hire and

pay nurses and other medical professionals without

regard to the Civil Service laws in Title 5." The

probationary period for VA nurses, physicians and

similar medical professionals is two years (38 U.S.C.

§ 7403(b)(1)*. Probation starts on the employee’s

“anniversary date,”* more technically called “Service

'§ 7405. Temporary full-time appointments, part-time appoint-

ments, and without-compensation appointments.

(a) The Secretary, upon the recommendation of the

Under Secretary for Health, may employ, without

regard to civil service or classification laws, rules, or

regulations, personnel as follows:

(1) On a temporary full-time basis, part-time basis, or

without compensation basis, persons in the follow-

ing positions:

(A) Positions listed in section 7401 (1) of this title.

(including registered nurses) (Emphasis added.)

? “Appointments described in subsection (a) [e.g., physicians,

nurses, physician assistants hired under Chapter 74] shall be

for a probationary period of two years.” Further, VA Handbook

5005, April 15, 2002, provides, in Part I], Chapter 3, b. Length of

Probationary Period: “The probationary period for employees

appointed on or after December 20, 1979, is 2 years. In addi-

tion, para. c. Last Day of Probationary Period, provides, in

subpara. (2), that “For employees paid on an hourly basis

(nurses, nurse anesthetists ... . the probationary period is

completed at the end of the last scheduled duty before the

employee’s anniversary date .. . (Emphasis added).

’VA HANDBOOK 5005/7 APRIL 15, 2002 PART I] CHAP-

TER 3

SECTION F. APPOINTMENTS UNDER 38 U.S.C. 7401.

4

Computation Date” (SCD) or anniversary date. A VA

employee’s SCD appears in Block 31 of STANDARD

FORM 50-B, NOTIFICATION OF PERSONNEL

ACTION. (See Appendix E, p. 27a, block 31.) A VA

employee’s probationary period keeps running in her

favor, so long as her performance at VA is not written

up as “unsatisfactory.” (See § 7403(b)(2).)

On April 21, 2002, after 10 months of satisfactory

work, Petitioner was converted from “temporary

full-time” to “permanent” VA nurse status under

§ 7401(1) of Chapter 74, 38 U.S.C. The Standard

Form 50-B recited in “Remarks” that her conversion

appointment was “Subject to completion of 2 year

probationary period commencing 04-21-2002.” (Ap-

pendix A and E, p. 6a and 26a.) Petitioner, who at

that time knew very little about VA’s personnel

system, assumed VA had authority to extend her

probationary period for an extra 10 months and

therefore expected to be probationary through April

20, 2004.4 Petitioner was surprised when she re-

3. PROBATIONARY PERIOD FOR 38 U.S.C. 7401(1)

APPOINTEES

b. Length of Probationary Period.

c. Last Day of Probationary Period.

(2) For employees paid on an hourly basis (nurses,

nurse anesthetists, PAs (physician assistants), and

EFDAs (expanded-function dental auxiliaries\)), the

probationary period is completed at the end of the

last scheduled duty before the emplovee’s anniver-

sary date. (Emphasis added).

* VA and Office of Personnel Management regulations appear

to be to the contrary. (See VA Handbook 5005/7 (fn. 3); 5 CFR

315.704 (a) (1) and (2) (temporary employment counts toward a

probationary period); 5 CFR 315.802 (a) (“The probationary

period required by § 315.801 is 1 year and may not be

extended.”).

5

ceived her Proficiency Report in mid-June 2002 (VA

FORM 10-2623).° VA had entered her SCD as “6-17-

01.” (Appendix F, p. 28a.) From that entry it

appeared her probationary period was half over. She

could expect to be “permanent”—tenured—by June

2003, not April 2004, as the April 21, 2002 conversion

Form 50-B recited. (Appendix A and E, p. 6a and

26a, section 45. REMARKS, lines 2-3).

5 CFR § 316.704 Conversion to career employment from inde-

finite or temporary employment.

(a) General. Employees serving after February 7, 1968, in

competitive positions under indefinite appointments or tempo-

rary appointments pending establishment of a register or as

status quo employees acquire competitive status and are entitld

to have their employment converted to career employment when

such employees:

(2) Have rendered satisfactory service for the 12 months

immediately preceding the conversion; and .. . . (Emphasis

added) (a) The first year of service of an employee who is given a

career or career-conditional appointment under this part is a

probationary period . . . (Emphasis added).

5 CFR § 315.802 Length of probationary period; crediting

service.

(a) The probationary period required by §315.801 is J year

and may not be extended. (Emphasis added.)

° Petitioner was rated “Satisfactory” in her June 2002 Profi-

ciency Report. Her supervisor, Linda Wyatt, RN, commented

favorably on her professional performance:

“Mrs. Counce is self-directed in organizing and providing

skilled nursing assessments and care to patients with

multivariate nursing diagnoses and psychological needs. . .”

“Mrs. Counce has been a role model and is one of the

preceptors for nurses who are new to 2 North. She is

supportive of her colleagues, and encouraging of new staff.

I have received several compliments regarding her tact and

patience tn precepting new nurses. . .” (Appendix F, p. 28a.)

6

The end of May 2003, Petitioner’s immediate

supervisor, Linda Wyatt, RN., gave Petitioner her

second annual Proficiency Report, plus a copy for her

files. Wyatt asked Petitioner to review, sign, and

return the Proficiency Report, keeping the copy for

her personal records. Again, VA’s SCD entry on that

employee rating document, VA FORM 10-2623, was

“6-17-01."° (Appendix F, p. 30a-3la.) On May 30,

2002, Petitioner signed one copy of her Proficiency

Report and placed it in her supervisor’s office when

Wyatt was away from her desk. (Counce Affidavit:

DE#21 Part 2 Appendix C.) Petitioner kept the un-

signed duplicate. (See Appendix F, p. 30a-31a.)

° Petitioner’s supervisor rated her “Satisfactory” at the end of

her second year, and once again made favorable comments:

Practice: “Mrs. Counce is an experienced nurse who contin-

ues to bring a high level of care and compassion with her to

2 North. She is respected by new nursing staff, veteran

nursing staff, her patients and their families. .. . I have

personally received favorable comments about Mrs. Counce

from staff and from patients and their families. . . .”

Performance: “Mrs. Counce actively self-appraises her own

nursing skills, and is willing to attend educational offer-

ings on her free time...”

Collegiality: “Mrs. Counce also appraises and monitors the

nursing skills and quality of care provided by other nurses

on 2 North, and shares her observations with the Nurse

Manager. She has been very supportive of the new nursing

orientees on 2 North. Mrs. Counce also serves as a role

model and resource to the nursing joint 2 North staff.”

Collaboration: “A recent new nurse orienting to 2 North had

a very difficult time in acquiring the nursing skills and self-

confidence to feel secure on 2 North. Mrs. Counce heard of

the problems, and asked that the new nurse be placed on

her weekend rotation so that she could assist this new staff

member in orienting to 2 North, at a more comfortable pace,

so that we have retained this valued new nurse.”

7

Petitioner never again saw the end-of-second year

Proficiency Report she signed and placed in her

supervisor’s office on May 30, 2003.’ Despite Peti-

tioner’s repeated requests and motions, Respondent-

Appellee VA did not produce in discovery the “lost”

2002-2003 Proficiency Report Petitioner signed and

turned in on May 30, 2003.

VA’s next personnel action was on June 13, 2003.

Petitioner was given a permanent appointment under

§ 7403 of Chapter 74 of 38 U.S.C. (Appendix E,

p. 27a.) Effective June 15, 2003, Petitioner was

classified as “permanent” per Block 24 of FORM 50-

B, “Tenure.” For the second time, the Block 31, SCD

entry was “06-17-01.° This Standard Form 50-B had

no qualifying remarks like the Form 50-B Petitioner

received on April 21, 2002. That NOTIFICATION

OF PERSONNEL ACTION stated that Petitioner

’ Affidavits in the record by both the union president and

union steward, B.R. Hardison and Nelda Rouse, RN, affirm that

on May 30, 2003, they saw and discussed the Proficiency Report

that Petitioner’s supervisor gave her about 10 days before,

rating her second performance year (retained, unsigned copy

at Appendix F, p. 30a-3la). When President Hardison saw that

evaluation he exclaimed: “Sign that sucker, and get it in!”

(Hardison Affidavit, p. 1, ¥ 2 (DE21Part4Page30Para2Line4),

Rouse Affidavit, J 13-15 (DE21Part5Page5-8.)

® Section 7403 (a) (1) provides:

Appointments under this chapter of health-care profes-

sionals to whom this section applies may be made only

after qualifications have been satisfactorily established in

accordance with regulations prescribed by the Secretary,

without regard to civil-service requirements.

Subsection (a) (2) states:

This section applies to the following persons appointed

under this chapter:

... (E) Nurses.

8

was to stay on probation for two years starting April

21, 2002. (Agency’s Appendix B to MSPB submission

to Judge Clancy, also at Appendix FE, p. 27a.)

August 1, 2003, Petitioner was given notice that

her professional performance would be reviewed by a

Nurse Professional Standards Board (NPSB) to be

convened August 21, 2003. (Appendix G, p. 36a-38a.)

The purpose of the NPSB was:

1 “...to conduct a summary review of your per-

formance and conduct during your probationary

period and make a recommendation concerning

your retention in or separation from the

Veteran’s Health Administration. This review is

being held pursuant to 38 U.S.C. (United States

Code) section 7403 (b),? and will be based upon

available records and information furnished by

you and others who may be called by the NPSB.”

2. “The NPSB is to review the following alleged

deficiencies in your performance and conduct:”

“Falsification of medical records related to medi-

cation administration, insubordination (failure to

report to duty, not training, as directed by the

Nurse Manager), and failure to follow acceptable

* Section 7403 (b) provides:

(1) Appointments described in subsection (a) shall be for a

probationary period of two years. (Emphasis added.)

(2) The record of each person serving under such an

appointment in the Medical, Dental, and Nursing Services

shall be reviewed from time to time by a board, appointed

in accordance with regulations of the Secretary. If such

a board finds that such person is not fully qualified and

satisfactory, such person shall be separated from the

service.

9

nursing standards of care and practice related to

patient care.” (Appendix G) (Emphasis added.)

VA’s August Ist notice warned Petitioner that

(because VA asserted she was still “probationary,” see

para. 1, next above) she did not have the right to full

assistance of a representative or legal counsel during

the hearing, or the right to examine third parties’

evidence presented at the NPSB. Despite her inabil-

ity to cross-examine witness testimony or to question

evidence that could include damaging hearsay, such

unexamined materials could be used by the NPSB to

pass judgment on her performance as a nurse. The

August lst letter cautioned Petitioner about the

summary nature of NPSB proceedings:

“This is not an adversarial proceeding, so your

representative’s role will be limited to assisting

you in exercising your right to respond orally

and/or in writing to the reasons for the review.”*°

August 17, 2003, Petitioner was handed a different

2002-2003 second year Proficiency Report (VA FORM

10-2623), than the “Satisfactory” Proficiency Report

she was given, had signed, and placed in her super-

visor’s office the prior May 30th. This substituted

Proficiency Report was prepared by her same super-

visor, Linda Wyatt, RN; but this time Wyatt rated

Petitioner “Low Satisfactory” for the same year,

“From 6-17-02 To 6-17-03”. (Appendix F, p. 32a-33a.)

‘© During the NPSB’s review Petitioner’s representative was

not allowed to speak or ask questions even when Petitioner was

testifying or being questioned; Petitioner was excluded from

the hearing except when she was testifying; and no transcript

was made of the proceedings. The record consists of copies of

occasional handwritten notes and individual observations made

by those who sat as the NPSB.

10

Petitioner was surprised. Counting the 2002-2003

Proficiency Report Nurse-Supervisor Wyatt gave her

on May 20th that Petitioner reviewed, signed and

turned in, Wyatt had rated Petitioner’s professional

performance “Satisfactory” for two years running.

(Appendix F, p. 28a-3la.)"* Petitioner did not sign

the August 17, 2003 substituted Proficiency Report.

(Appendix F, p. 29a-31a.)

Despite VA having noticed Petitioner to appear

before an NPSB, a summary review board” with

In addition to substituting “Low Satisfactory” for “Satisfac-

tory,” Supervisor Wyatt’s comments were 180 degrees (Valentine-

Johnson, 386 F.3d at 810) from her comments on Petitioner’s

annual Proficiency Reports that Wyatt gave her for the prior

two years. (Appendix F, p. 32a-35a.)

Under “Practice,” e.g., Wyatt stated:

“Mrs. Counce has difficulty in managing and delivering

care in an efficient and timely manner.”

For “Performance,” Wyatt observed:

“Mrs. Counce has a chronic problem with organization and

prioritization of care, and usually stays over after the shift

is over to complete her documentation.”

Under “Collegiality,” Nurse-Supervisor Wyatt wrote:

“Mrs. Counce is very willing to critique the nursing care of

her fellow nurses, but does not scrutinize her own nursing

practice as carefully.”

Wyatt commented on Petitioner’s “Collaboration:”

“Mrs. Counce consults the team physicians when necessary,

but has not developed sound interpersonal skills to deal

with other health care providers. .. .” (Emphasis added).

” VA HANDBOOK 5005/17 APRIL 15, 2002 PART II

CHAPTER 3 SECTION C. PROFESSIONAL STANDARDS

BOARDS

1]

jurisdiction limited to nurses who have not completed

their probationary service,’ VA’s SCD entry in Block

11 of that “new” Proficiency Report—her anniversary

date was for the fourth time—6-17-01.” (see fn. 14)

(Appendix F, p. 32a-33a.) On its face, that entry

certified that by August 17, 2003, Petitioner had

completed 26 months of creditable service and

1. ESTABLISHMENT a. Professional Standards Boards for

occupations listed in 38 U.S.C. 7401(1) act for, are responsible

to, and are agencies of the Under Secretary for Health in

matters concerning appointments, advancements, and probatio-

nary reviews of physicians, dentists, podiatrists, optometrists,

chiropractors, nurses [RNs], ... . Boards will determine eligibil-

ity and recommend the appropriate grade for appointments

under authority of 38 U.S.C. 7401(1) and 7405(a)(1) ((A)); recom-

mend candidates for advancements; [ ] and conduct probationary

reviews.

VA HANDBOOK 5021 APRIL 15, 2002 PART III CHAP-

TER 1.

PROBATIONARY PERIOD ACTIONS

TITLE 38 PROBATIONARY EMPLOYEES

1. SCOPE. This chapter contains the policy and procedures

needed for taking actions against title 38 employees serving on

a probationary period under 38 United States Code (U.S.C.)

7403(b) in the Department of Veterans Affairs (VA). This in-

cludes employees appointed under 38 U.S.C. 7401(1), i.e., nurses

(Emphasis added.)

VA’s HANDBOOK 5021 also makes it abundantly clear, when

delineating the hearing rights of medical professionals like

registered nurses who, like Petitioner, are appointed under

§ 7401 (1), that such 7401 (1) appointees do not have any rights

to VA’s due process and fair adjudicative procedures at the DAB

(including the right to be represented by counsel at all times)

(CHAPTER I, PART II, 1. SCOPE, unless and until, such -

§ 7401 (1) nurse appointees like Petitioner “. . . have

satisfactorily completed the probationary period required

by 38 U.S.C. 7403 (6). (at fn. 15: 1. SCOPE, a. (1)). (Emphasis

added.)

12

therefore she had been a permanent VA nurse for 2

months.

The day of her NPSB hearing, August 21, 2003,

Petitioner was handed another copy of VA’s substi-

tuted 2002-2003 Proficiency Report. Petitioner's

supervisors ordered her to review that Proficiency

Report and sign it, to record that she received it. She

refused to sign. Her supervisor, Linda Wyatt, RN,

noted in Block 19a, ‘Signature of Employee: “Ms.

Counce refused to sign proficiency. LW (Linda

Wyatt) 8-21-03.” (Appendix F p. 34a-35a.)

That substituted second annual Proficiency Report

evaluating Petitioner for her professional performance

June 2002 through June 2003, also had Petitioner’s

SCD entry as “6-17-01.” (Appendix F, p. 7.)

Petitioner was terminated by action of the NPSB,

despite her objections to denial of the due process she

was entitled to as a VA nurse who had completed her

two years of probationary service. As a permanent

VA nurse, for “charges based on conduct or perfor-

mance” (38 U.S.C. § 7461 (a)) such as Petitioner was

facing, she had the due process hearing rights pro-

vided before VA’s Disciplinary Appeals Board (DAB)

(§ 7461 (b) (1), including the right,

Counting the Standard FORM 50-B effective June 15, 2003

that appointed Petitioner a permanent VA nurse under § 7403

of Chapter 74, 38 U.S.C. (Appendix E, p. 27a), by August 21,

2003, VA had officially notified Petitioner in five documents

(Appendix F, p. 28a, 30a, 32a, 34a, Block 11: SERVICE

COMPUTATION DATE, and Appendix E, p. 27a, Block 24,

TENURE: 1—PERMANENT).

*° VA HANDBOOK 5021 APRIL 15, 2002 CHAPTER I.

PART IT. DISCIPLINARY PROCEDURES UNDER TITLE 38,

DISCIPLINARY AND MAJOR ADVERSE ACTIONS

13

... to be represented by an attorney or other

representative of the employee’s choice at all

stages of the case. (38 U.S.C. § 7462 (b) (2)).

(Emphasis added.)

Instead, VA ordered Petitioner tried by an NPSB

(Appendix G, p. 36a-38a) - August 1, 2003 Notice of

the NPSB hearing), a summary review board with

jurisdiction limited to probationary VA employees

who had not completed a two year probationary

period. (38 U.S.C. § 7403 (b) (1)).*®

1. SCOPE

a. This part governs disciplinary and major adverse actions

based on conduct or performance in the Department of Veterans

Affairs (VA).

(1) The provisions of this chapter apply to VA employees

holding a full-time, permanent appointment under 38 United

States Code (U.S.C.) 7401(1) who have satisfactorily completed

the probationary period required by 38 U.S.C. 7403(b). Included

are:....(Emphasis added.)

(e) Nurses...

3. POLICY ....

c. Employees are entitled to be represented by an attorney

or other representative of the employee’s choice at all stages of

the case.

d. Actions covered under this part are subject to the prohi-

bited personnel practices listed in 5 U.S.C. 2302, prohibiting:

(1) Discrimination because of race, color, religion, sex,

national origin, age, disabling condition, marital status, or par-

tisan political reasons; and

(2) Reprisal for the proper exercise of an employee's

legal or administrative rights.

'° VA HANDBOOK 5021 APRIL 15, 2002 CHAPTER I.

PART III. PROBATIONARY PERIOD ACTIONS

CHAPTER I. TITLE 38 PROBATIONARY EMPLOYEES

14

In spite of VA’s repeated official personnel actions

that by mid-June 2003 appeared to make Petitioner

1, SCOPE. This chapter contains the policy and procedures

needed for taking actions against title 38 employees serving on

(sic) a probationary period under 38 United States Code (U.S.C.)

7403 (b) in the Department of Veterans Affairs (VA). This in

cludes employees appointed under 38 U.S.C, 7401 (1), i.e., physi

cians, dentists, nurses... .

f. PROFESSIONAL STANDARDS BOARDS. Professional

Standards Boards will review the work records of each employee

serving a probationary period in accordance with the provisions

of this chapter... .

3. SUMMARY BOARD REVIEWS

d. Employee Rights. Employees subject to summary Board

review have the right to: . . .

(5) Be represented by an individual of the employee’s

choice .... A summary review is not an adversarial procedure.

The representative's role is limited to assisting the employee in

exercising the right to reply orally and/or in writing to the

reasons for the review. . .

f. Conduct of Board Review . .

(5) A verbatim recording of the review will not be made

unless the Chairperson deems it necessary.

(6) The Chief, Human Resources, or designee, will serve

as 4 technical adviser to the Board. . .

(7) To obtain essential facts, the Chairperson may call

persons before the Board to answer questions that may assist

the Board in its review. This includes persons who are believed

to possess pertinent information about the employee or the cir

cumstances which led to the review. .

(9) Only Board members are entitled to be present when

an individual is being interviewed, except that an employee's

representative may be present when the employee is being

interviewed, Employees or others who may be called upon to

furnish information will not be subject to cross-examination, and

the Chairperson of the Board will ensure that this does not occur

(Emphasis added)

15

“VA permanent” (see fn. 14), the September 19, 2008

termination letter is captioned: “Saundra Counce,

RN-Separation During Probationary Period.” Rea

sons alleged for her termination included Petitioner's

“failure to follow acceptable nursing standards of care

and practice related to patient care.” (Appendix B,

p. lla-138a.)

Petitioner's case proceeded to the Merit Systems

Protection Board. MSPB had jurisdiction to hear her

claims involving professional conduct and competence

if she was a probationary VA employee (38 U.S.C.

§ 7403 (f)(3), but not if she was a permanent VA

employee. (38 U.S.C. § 7461 (a), (bb), and (cy 1);

§ 7462 (a) (1) (A) (B). If permanent, 38 U.S.C.

§ 7462—titled “Major adverse actions involving pro-

fessional conduct or competence,” pranted exclusive

jurisdiction to VA’s DAB:

(a)(1) Disciplinary Appeals Boards appointed

under section 7464 of this title shall have

exclusive Jurisdiction lo review any case-

(A) which arises out of (or which includes) a

question of professional conduct or competence

of a section 7401 (1) employee; and

(B) in which a major adverse action was taken.

(Emphasis added).

VA reversed position at the MSPB, successfully

arguing that MSI’B lacked jurisdiction because Peti-

tioner “was a permanent employee” (Appendix A,

p. 2a, J 3) and consequently she had the 88 U.S.C.

§ 7462 hearing rights of a permanent VA employee

(38 U.S.C. §§ 7461 through 7464) before the VA's

Disciplinary Appeals Board (DAB). Although VA

noted that in its view Petitioner had not yet satisfied

16

its probationary period requirements,‘’ Respondent-

Appellee VA expressly represented to the MSPB

that because it had appointed her under 38 U.S.C.

§ 7401 (1), “Appellant was a permanent employee. . . .”

(Appendix A, p. 2a) VA’s MEMORANDUM IN SUP-

PORT OF MOTION FOR DISMISSAL FOR LACK

OF JURISDICTION asserted:

She is therefore subject to the exclusive remedy

for major adverse actions, that is, an appeal to

the VA Undersecretary for Health for the empa-

nelment of a Disciplinary Appeals board. She

has not made such an appeal. MSPB is without

jurisdiction to hear this appeal of a major ad-

verse action by a 38 U.S.C. 7401 (1) employee.”*®

(Appendix A, p. 2a-3a, J 3.)

7 As indicated throughout, the only way the VA’s DAB can

have “exclusive jurisdiction” over Petitioner’s appeal, as Respon-

dent VA successfully argued to the MSPB, is if she was a

permanent VA nurse. Respondent could have presented the

June 15, 2003 FORM 50-B to establish more easily to MSPB

that Petitioner was a permanent employee so that DAB, not

MSP3, had jurisdiction over her appeal. But that would have

locked Respondent VA into the stance that Petitioner was

“permanent.” From Respondent’s arguments and flip flops as to

whether Petitioner was “fish or fowl,” it appears that when

Respondent argued to MSPB that Petitioner was permanent

and had DAB hearing rights, it intended to reverse that position

as soon as MSPB denied jurisdiction over Petitioner’s appeal, as

it did on May 3, 2004 and thereafter in federal court when Peti-

tioner attempted to “collect” on her loss at MSPB by requesting

her DAB hearing at VA.

® Petitioner points out that Respondent did not include in its

submissions to MSPB, nor make any mention of VA’s June 15,

2003 FORM 50-B that made Petitioner a VA permanent nurse

pursuant to §7403 (Appendix E p. 27a), although VA has not

denied it was issued. Unlike the April 21, 2002 appointment

citing §7401 (1), the June 15, 2003 appointment pursuant to

17

Further on, VA’s MEMORANDUM IN SUPPORT

OF MOTION FOR DISMISSAL represented to the

MSPB:

... [S/he is subject to Disciplinary Appeals Board

procedure. Since a discharge ts expressly defined

in 38 U.S.C. 7461 (c) (2) (E) as a major adverse

action, Appellant should have filed an appeal

with the Disciplinary Appeals Board. She did

not do so. Appellant had Title 38 remedies

.... (Appendix A, p. 2a-3a.) (Emphasis added).

MSPR’s administrative judge accepted Respondent-

Appellee’s representations that Petitioner had DAB

hearing rights at the VA; that the DAB had “exclu-

sive jurisdiction” over Petitioner’s claims:

.. . It] appears that appellant’s removal was a

major adverse action involving professional con-

duct as contemplated under 38 U.S.C. Ҥ 7462,

and such an action is not reviewable by the Board

.... Appellant alleged that she was not subject to

this exclusive internal review process because she

was not a permanent employee. ... The agency

claimed, however, that she was subject to

the Disciplinary Appeals Board (DAB) pro-

cedure. (Appeal File, Tab 6). Indeed, while

appellant may have been subject to completion of

a probationary period, she was serving under a

permanent appointment to a position listed at 38

U.S.C. $ 7401 (1). Id. It therefore appears that

§ 7403 was unconditional. (Appendix E, p. 27a, compare the

“Remarks” section with the April 21, 2002 FORM 50-B.) There

was no recitation on the June 15, 2003 FORM 50-B, as there

was on the April 21, 2002 FORM 50-B, that Petitioner was

required to serve any probationary time beyond the two years

from her SCD or anniversary date, June 17, 2001, as provided

by § 7403 (b) (1).

18

the DAB had “exclusive jurisdiction” to review

bad

appellant’s removal... .’

“In light of the foregoing, I find that appellant

has not been subjected to a matter appealable to

the Board, and that the Board lacks jurisdiction

over the appeal. . . . It is therefore appropriate

that the appeal be dismissed for lack of juris-

diction.” (Appendix A, p. 17a-18a.) (Emphasis

added.)

Yet when Petitioner appealed to VA for the DAB

hearing with full due process that VA represented to

the MSPB she was entitled to—a proper administra-

tive hearing Petitioner knew she needed to properly

present her claims against VA—VA changed position

for the second time and denied her request for a

DAB due process hearing. For DAB rights’ purposes,

Respondent-Appellee VA once again insisted Peti-

tioner remained “probationary.” According to VA,

Petitioner had no DAB hearing rights, opposite to the

position Respondent took at MSPB when it needed to

have her appeal dismissed.

That surprise was in VA’s response letter to

Petitioner-Appellant of May 3, 2004:

Disciplinary Appeals Boards appointed under 38

U.S.C. 7464 have exclusive jurisdiction to review

major adverse actions, which arise out of, or

include, a question of professional conduct or

competence of section 7401(1) employees who have

successfully completed their probation period.

Employees appointed under Section 7401(1) serve

a two (2) year probationary period. You were

appointed under 38 U.S.C. 7401(1) on April 21,

2002. Your two-year probation period commenced

on this date. [See Appendix E, p. 26a, the April

19

21, 2002 FORM-50-B/] Prior service in a tem-

porary appointment under Section 7405(A)(1)

does not count towards completion of the

probation period. Therefore, you had not

successfully completed your probation period

at the time of your discharge on October 3,

2003. Therefore, you are not entitled to

appeal your discharge to a VA Disciplinary

Appeals Board. (Appendix D)’* (Emphasis added.)

The following December 23, 2004, the full MSPB

affirmed the administrative judge’s dismissal (Appen-

dix C, p. 19a-21a), based on the VA’s Motion to the

MSPB. The Federal Circuit dismissed Petitioner’s

appeal. (Appendix C, p. 22a.)

In District Court and before the Sixth Circuit

Sourt of Appeals, VA switched back to its original

position as to Petitioner’s status. Respondent con-

tended that Petitioner's summary hearing at the

NPSB afforded her all the rights she was entitled to

at VA—there was no DAB jurisdiction over her

claims—for the reason she never satisfied the two

year probationary period VA required per the NOTI-

FICATION OF PERSONNEL ACTION FORM 50-B

dated April 21, 2002 (Appendix A and FE, p. 6a and

26a.)”°

'? Again VA ignored, as Respondent-Appellee has through-

out these proceedings, the NOTIFICATION OF PERSONNEL

ACTION, FORM 50-B (Appendix E, p. 27a), that VA officially

issued on June 15, 2003. That VA Notification of Personnel

Action made Petitioner a permanent VA nurse pursuant to 38

U.S.C. § 7403. The June 15, 2003 FORM 50-B was issued with-

out any qualification that she had to perform additional service

in order to become “permanent.” (see fn. 18).

*° Petitioner has searched the VA’s personnel manuals and so

far has not been able to find any official VA regulation that

allowed VA officials to extend Petitioner’s statutory two-year

20

In a summary opinion issued November 22, 2009,

the Sixth Circuit affirmed the District Court’s grant

of summary judgment. The opinion did not mention

Petitioner’s arguments or the MSPB holdings called

to the Court’s attention, concerning the preclusive

effects of the MSPB’s holdings that Petitioner had

DAB hearing rights. Nor did the Sixth Circuit

discuss Respondent’s contradictory positions that

should have estopped it from taking opposing legal

positions for pure convenience. (Appendix I, p. 45a-

47a.)

Petitioner filed a Motion to Clarify the first opinion

by the Sixth Circuit, treated by that Court also as a

petition for rehearing. (Appendix I, p. 48a-49a.)

probationary period (§ 7403 (b) (1)) beyond June 16, 2003.

Unless the probationary employee’s work performance is sub-

standard and those lapses are documented, employees such as

Petitioner who are hired as “full-time temporary” (§ 7405 (a) (1) (A))

employees, receive probationary-time credit for such service.

(Khan v. West, No 00-2450, 4th Cir. 2001,Unpublished, Per

Curiam, Wilkinson, C.J., Motz, J., and Duffy, J., District Ct.

Judge, [VA ordered to credit physician for his temporary full-

time (§ 7405 ) service upon his conversion to VA permanent

under § 7401 because § 7403 fixes probationary period at 2

years for all employees appointed under Chapter 74 of Title 38,

which includes § 7405, 7401, and 7403 appointments (at p. 3-4,

Appendix H, p. 39a-44a). Petitioner received a “Satisfactory”

Proficiency Report for the period June 2001 through June 2002,

including a number of favorable comments by her supervisor,

Linda Wyatt, RN (Appendix F, p. 28a-31a) for the period —which

included June 2001 through April 21, 2002—the time Petitioner

worked as a full-time temporary under her § 7405 (a) (1) (A)

appointment. That Proficiency Report contained all positives

and no negatives. (Appendix F, p. 28a-29a, see fn. 5). For

purposes of this Petition For Writ of Mandamus urging appli-

cation of law of the case, it does not matter if the MSPB was

right or wrong. Its holdings are the Jaw of this case: Petitioner-

Appellant does have DAB rights at the VA.

[2]

iu

After Petitioner-Appellant filed her Motion to Clarify

the Sixth Circuit’s first opinion because that Court

had not responded to her contentions, including that

VA’s NPSB had no jurisdiction to hear and determine

the charges against her because by then she was “VA

permanent” as held by the MSPB (see fn. 17), the 6th

Circuit expressly affirmed the lower court’s ruling

that Petitioner-Appellant remained a probationary.

(Appendix I, p. 45a-47a.) Despite Petitioner arguing

to the Court of Appeals and presenting copy of the

MSPB’s holding that Petitioner was necessarily a

“VA Permanent” because the VA’s DAB had “exclu-

sive jurisdiction” over her claims (see Pro se Plaintiff-

Appellant’s Dual Motion to Extend Time and Motion

to Clarify, Dec. 23, 2009, p. 5, 15-17), the Court of

Appeals did not mention the MSPB’s holdings or

Respondent-Appellee’s opposite arguments made for

pure convenience. The Court did respond to Peti-

tioner’s argument that VA’s NPSB lacked jurisdic-

tion:

In her motion, Counce [Petitioner] argues that

the Nurse Professional Standards Board, which

found that Counce falsified medical records and

failed to follow acceptable nursing standards of

care, lacked jurisdiction to review her employ-

ment performance. The record clearly indicates

that Counce was still under a two-year probatio-

nary period, measured from her starting date as a

permanent employee, when she was brought

before the Nurse Professional Standards Board.

Thus, she was subject to its jurisdiction. See 38

U.S.C. § 7403 (b) (1) and (2). (Appendix I, p. 2-

3)*' (Appendix I, p. 49a.)

*1 Petitioner is not seeking relief because the 6th Circuit was

wrong on the law as to whether Petitioner-Appellant was

22

ARGUMENT

As a matter of law, since the point MSPB ruled

Petitioner had DAB hearing rights because serving

under a permanent appointment, it has been “the law

of the case,” that she has full due process hearing

rights at the VA’s DAB. As held in University of

Tennessee v. Elliott, 478 U.S. 788, 798-799 and fn. 6

106 S.Ct. 3220, 3226 (1986), judgments rendered by

administrative tribunals are binding on the parties in

later stages of the same matter, where the tribunals

have jurisdiction and the parties are accorded fair

procedures (citing Davis, Administrative Law and

Restatement of Judgments, § 83 (1982). More re-

cently, in State of New Hampshire v. State of Maine,

532 U.S. 742, 747, 121 S.Ct. 1808 (2001). This Court

unanimously ruled, in the context of a State-to-State

settlement agreement one party was seeking to

enforce, that:

[W]here a party assumes a certain position in a

legal proceeding, and succeeds in maintaining

that position, he may not thereafter, simply

because his interests have changed, assume a

contrary position, especially if it be to the preju-

dice of the party who has acquiesced in the posi-

tion formerly taken by him (citations omitted).

probationary or permanent. The issue is not whether the 6th

Circuit was wrong or right on that point of law. The question is

if on the facts of this case, where Respondent-Appellee took

opposite positions as to Petitioner’s due process hearing rights

including right to assistance of counsel at a hearing on the

charges against her, the doctrines of law of the case and judicial

estoppel require Respondent-Appellee VA to provide to Peti-

tioner-Appellant the Disciplinary Appeals Board hearing rights

that Respondent-Appellee successfully argued to the MSPB that

she had at the VA.

23

This rule, known as judicial estoppel, ‘generally

prevents a party from prevailing in one phase of

a case on an argument and then relying on a

contradictory argument to prevail in another

phase. (citing, along with cases, 18 Moore’s

Federal Practice 134. 30, p. 134-62 (3rd Ed. 2000)

(“The doctrine of judicial estoppel prevents a

party from asserting a claim in a legal proceed-

ing that is inconsistent with a claim taken by

that party in a previous proceeding”), citing 18 C.

Wright , Miller and Cooper, Federal Practice and

Procedure 4477, p. 782 (1981) (“absent any good

explanation, a party should not be allowed to

gain an advantage by litigation on one theory,

and then seek an inconsistent advantage by

pursuing an incompatible theory.”)).

In New Hampshire v. Maine, This Court stated the

general conditions for application of judicial estoppel,

including the perception that *. . . [w]ithin the first

[here the VA] or the second court [MSPB] was misled.”

(532 U.S. at 747.) This Court further observed that

because judicial estoppel is an equitable doctrine,

.. . [W]e do not establish inflexible prerequisites

or an exhaustive formula for determining the

applicability of judicial estoppel. Additional con-

siderations may inform the doctrine’s application

in specific factual contexts. (532 U.S. at 747.

In this case, the Circuit Court of Appeals did not

speak to Petitioner’s contentions that VA should have

been estopped to assert she was probationary after

having the MSPB dismiss her appeal based on VA’s

position that she had all the due process hearing

rights of a permanent, non-probationary VA nurse.

Valentine-Johnson v. USAF, 386 F.3d 800, 809-813

(2004) is a persuasive case of an Air Force civilian

24

employee the Air Force disadvantaged by switching

positions as to her MSPB and related rights in

federal court.”

Petitioner was born in 1949, to a mother who is

100% Mexican. She has mild but easily compensable

reading dyslexia. When hired at VA, she had over 30

years of experience as a superior-rated nurse. She

also had been married for over 30 (now 40) years and

was principal caregiver to a Vietnam veteran, Donald

A. Counce, who by then was severely disabled from

Agent Orange exposure, brain trauma from mine

explosions, and post-traumatic stress disorder (PTSD).

Because of her experience and personally-acquired

sensitivity to the special needs of the Veteran

patients, she was expressly tasked by her supervisor

to attempt to stop the bullying and related nurse-on-

nurse violence that dulled nurses’ empathy and

caused them to neglect the Veterans they were

charged to care for. (See Appendix F, p. 30a-35a.)

Petitioner has litigated Pro Se at all stages until

the instant Petition, when Counsel of Record and Of

Counsel are representing her Pro Bono. By the time

Petitioner was terminated, her spouse was not able to

work regularly and she was the sole support of her

family of six that still included a child in school.

Petitioner had no money or other resources to hire an

22 The similarities between Petitioner's case and Valentine-

Johnson are unusually close, especially the unethical reversal of

position that specially disadvantaged both pro se Petitioner, and

pro se Plaintiff-Appellant Valentine-Johnson. The court held:

In the interest of preventing the Air Force conduct from

abusing the judicial process through cynical gamesman-

ship, achieving success on one position, then arguing the

opposite to suit an exigency of the moment ... we conclude

that judicial estoppel is applicable. (386 F.3d at 812.)

25

attorney; and no lawyer would take her case on

contingency. As a nurse, who at that time was not at

all familiar with legal process—and understandably

baffled by VA’s arcane personnel system and various

official’s contradictory interpretations of VA’s person-

nel regulations—she was not able to successfully

challenge VA’s position that it had kept her as a

“probationary” beyond the two year period estab-

lished by 38 U.S.C. § 7403 (b)(1).*°

Additionally, Respondent-Appellee VA should be

estopped to deny her application for a DAB appeal,

after VA conclusively asserted when she was targeted

while still working at the VA, that she had no DAB

rights; her exclusive remedy was through NPSB’s

summary procedures that had allowed her to be

terminated based mostly on unchallenged, unexa-

mined hearsay. (See Appendix G, p. 36a-38a and

Appendix B, p. 1la-13a.) Further, VA’s May 3, 2004

letter to Petitioner expressly rejected her application

for a DAB appeal hearing (Appendix D, p. 23a-24a,

the May 04 rejection letter) after the MSPB dis-

missed her claims because MSPB held she did have

DAB rights. (Appendix C, p. 19a-21a.)

VA’s successful arguments to MSPB, for example,

were in conflict with the clear and simple words in

VA Handbook 5021. Para. 1 states that for nurses

and other medical staff appointed under the statutes

within chapter 74 of Title 38 (e.g., 7405 (A) (1), 7401

(1) and 7403, the three statutes under which Peti-

tioner was appointed, converted and re-appointed or

*8 The court’s opinion in Valentine-Johnson, expressly weigh-

ed the factor that “she was” at critical times, proceeding pro se,

and making her best effort to have all of her claims heard. (386

F.3d at 813.)

26

re-converted), nurses and other medical staff do not

obtain DAB procedure rights until they have com-

pleted their two years of probation. (See fn. 13.)

Because it was VA’s official position, written on the

April 21, 2002 NOTIFICATION OF PERSONNEL

ACTION, FORM 50-B that Petitioner remained

probationary until April 21, 2004 (Appendix A, p. 6a,

Appendix E, p. 26a) in no way could VA have argued

to the MSPB in good faith that Petitioner was

“permanent” by Summer 2003 and consequently had

any DAB due process and hearing rights.

VA was successful in its badfaith arguments,

however, and the MSPB dismissed Petitioner’s claims

in that forum. Dismissal at the MSPB severely

disadvantaged Petitioner, because MSPB was appro-

priate for litigating technical issues of federal person-

nel classification and law. VA successfully persuaded

Administrative Judge Clancy (Appendix C, p. 15a-

18a), and the full board of the MSPB (Appendix C, p.

19a-21la) (appeal dismissed by the Federal Circuit

(Appendix C, p. 22a) to accept VA’s representations,

despite that Petitioner was, once again, denied the

right to have her claims litigated properly. VA

persuasively argued Petitioner had DAB rights (due

process entitlements Petitioner had only if she had

satisfied her 2 year probation period, which VA was

adamant she had not, and could not have, until April

21, 2004); that as a matter of law DAB had “exclusive

jurisdiction” over Petitioner’s claims; consequently

MSPB was required by law to dismiss all of Peti-

tioner’s claims. Employees are entitled to have a

forum for their claims unless the applicable statutes

clearly forbid MSPB, e.g., from litigating the claims

at issue. (See Valentine-Johnson, supra, at 812.)

27

Petitioner cited to the MSPB’s holding in her litiga-

tion in federal court, and specifically petitioned the

6th Circuit to acknowledge the legal effect of the

MSPB’s ruling as definitive of her VA employee

status as “permanent” with routine entitlements in-

cluding DAB hearing rights. (See Pro se Plaintiff-

Appellant’s Dual Motion to Extend Time and Motion

to Clarify, Dec. 23, 2009, p. 5, 15-17.)

The effects of the MSPB’s ruling are, (1) Petitioner-

Appellant was “permanent” because only a perma-

nent VA employee could have the DAB procedure

rights that VA successfully argued to the MSPB—

and the MSPB ruled—she could avail herself of at the

VA, (2) the MSPB’s ruling that determined Petitioner

is a “VA permanent” is the law of the case including

on a remand to the VA to properly litigate her claims

(University of Tennessee v. Elliott, supra, 478 U.S.

788, 798 fn. 6, 799, 106 S. Ct. 3220, 3226, 92 L. Ed.

2d 635 (1986); New Hampshire v. Maine, supra,), and

(3) the MSPB’s ruling, beyond being the law of the

case, is forever fixed upon Respondent-Appellee VA

because the MSPB ruling resulted from Respondent-

Appellee VA’s successful arguments.

CONCLUSION

Judicial estoppel demands that VA be made to live

with the legal effects of its badfaith but successful

arguments to the MSPB. Because of VA’s switching

positions and badfaith arguments that deprived

Petitioner of effective hearing rights, Courts should

impose judicial estoppel on Respondent in the most

severe manner possible. VA must be ordered to view

and treat Petitioner as a former employee who was

“permanent” when terminated by a hearing board

that had no subject matter jurisdiction over her.

28

Respondent-Appellee VA should be ordered to treat

Petitioner as “VA Permanent” for all purposes in-

cluding acknowledging and providing to her full

Disciplinary Appeals Board due process and hearing

rights.

Respectfully submitted,

Of Counsel JEFFREY C. GRASS, Pro Bono

Counsel of Record

Bank of America Tower

101 KE. Park Blvd.

Suite 600

Plano, Texas 75074

(214) 273-7290

jevrass@pmail.com

MICHAEL J. MYERS, Pro Bono

THE UNIVERSITY OF SOUTH

DAKOTA SCHOOL OF LAW

414 East Clark Street

Vermillion, SD 57069

(605) 677-6343

June 30, 2010