Filed: Jul. 23, 2015
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LEONARD ENGLISH, JR., DOCKET NUMBERS Appellant, DE-0752-13-0353-C-1 1 DE-1221-12-0266-C-1 v. SMALL BUSINESS ADMINISTRATION, DATE: July 23, 2015 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 2 Leonard English, Jr., Aurora, Colorado, pro se. Larry G. Webb and Sherrie Abramowitz, Washington, D.C., for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed petitions for review of the compl
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LEONARD ENGLISH, JR., DOCKET NUMBERS Appellant, DE-0752-13-0353-C-1 1 DE-1221-12-0266-C-1 v. SMALL BUSINESS ADMINISTRATION, DATE: July 23, 2015 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 2 Leonard English, Jr., Aurora, Colorado, pro se. Larry G. Webb and Sherrie Abramowitz, Washington, D.C., for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed petitions for review of the compli..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEONARD ENGLISH, JR., DOCKET NUMBERS
Appellant, DE-0752-13-0353-C-1 1
DE-1221-12-0266-C-1
v.
SMALL BUSINESS
ADMINISTRATION, DATE: July 23, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 2
Leonard English, Jr., Aurora, Colorado, pro se.
Larry G. Webb and Sherrie Abramowitz, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed petitions for review of the compliance initial
decisions, which dismissed the petitions for enforcement as untimely filed.
Generally, we grant petitions such as this one only when: the initial decision
1
We JOIN these cases because they are interdependent and doing so will expedite their
processing without adversely affecting the parties’ interests. 5 C.F.R. § 1201.36(a)(2).
2
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
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 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. See
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, and based on the
following points and authorities, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petitions for review.
Therefore, we DENY the petitions for review and AFFIRM the compliance initial
decisions, which are now the Board’s final decisions. 5 C.F.R. § 1201.113(b).
¶2 On April 4, 2012, the appellant filed an individual right of action (IRA)
appeal alleging that the agency proposed his removal and placed him on
administrative leave in retaliation for his alleged whistleblowing activity.
English v. Small Business Administration, MSPB Docket No. DE-1221-12-0266-
W-1, Initial Appeal File (W-1 IAF), Tab 1. The administrative judge dismissed
the appeal without prejudice pending issuance of Day v. Department of Homeland
Security, 119 M.S.P.R. 589 (2013), which resolved whether certain provisions of
the Whistleblower Protection Enhancement Act, which became effective on
December 27, 2012, applied to cases, such as the appellant’s, that were pending
before the Board on its effective date. W-1 IAF, Tab 24. On June 28, 2013,
while the appellant’s IRA appeal was dismissed pending a decision in Day, the
appellant filed an appeal of the agency’s action suspending him. English v. Small
Business Administration, MSPB Docket No. DE-0752-13-0353-I-1, Initial Appeal
File (I-1 IAF), Tab 1. On July 9, 2013, while the suspension appeal was pending,
the administrative judge sua sponte refiled the IRA appeal. English v. Small
Business Administration, MSPB Docket No. DE-1221-12-0266-W-2, Initial
3
Appeal File (W-2 IAF), Tab 1. On December 21, 2013, the parties signed a
settlement agreement resolving all disputed issues in both the IRA and suspension
appeals, and they submitted it to the administrative judge for inclusion into the
records of the appeals. W-2 IAF, Tab 10; I-1 IAF, Tab 20. The administrative
judge issued initial decisions dismissing both appeals as settled and entered the
settlement into the appellate records for enforcement purposes. W-2 IAF, Tab 11,
Initial Decision; I-1 IAF, Tab 21, Initial Decision.
¶3 On December 8, 2014, the appellant filed petitions for enforcement in both
appeals alleging that the agency breached the agreement by failing to place his
Fiscal Year (FY) 2013 Annual Performance Review in his official personnel file
(OPF). English v. Small Business Administration, MSPB Docket No. DE-0752-
13-0353-C-1, Compliance Appeal File (CAF), Tab 1. 3 The administrative judge
issued show cause orders advising the parties that, because the settlement
agreement required that the agency place a FY 13 appraisal in the appellant’s
personnel record within 60 days, the appellant should have known by
February 21, 2014, whether the required document had been added to his OPF,
and thus it appeared that the appellant’s petitions for enforcement were untimely.
CAF, Tab 3. In his responses the appellant acknowledged that, on February 24,
2014, the agency’s counsel had sent an email to the appellant’s counsel noticing
compliance with the settlement agreement. CAF, Tab 4. The appellant also
stated that he had contacted the agency on May 1, 2014, and September 24, 2014,
about his concerns that his FY 2013 appraisal was not in his electronic OPF.
CAF, Tabs 4, 10. The administrative judge found that under these circumstances,
where the appellant had actual knowledge that his FY 2013 appraisal had not been
uploaded to his electronic OPF by May 1, 2014, he did not exercise due diligence
3
The two compliance appeal files contain different numbers of tabs. All of the
documents relevant to the disposition of this petition for review are in the petition for
enforcement file with the docket number of the suspension appeal. For ease of
reference, all the references to the compliance file in this Final Order are to the file in
MSPB Docket No. DE-0752-13-0353-C-1.
4
in waiting more than 7 months to file his petitions for enforcement, i.e., until
December 8, 2014. CAF, Tab 13, Compliance Initial Decision (0353 CID) at 5;
English v. Small Business Administration, MSPB Docket No. DE-1221-12-0266-
C-1, Compliance Appeal File, Tab 9, Compliance Initial Decision (0266 CID)
at 4-5. She dismissed the petitions for enforcement as untimely filed. 0353 CID
at 5; 0266 CID at 5.
¶4 The appellant has filed identical petitions for review of the compliance
initial decisions. Petition for Review File, Tab 1. 4 In his petition, the appellant
appears to be contending the administrative judge should have considered his
many allegations of what he perceived as agency wrongdoing unrelated to the
settlement agreement in determining whether he timely filed his petition for
enforcement.
¶5 Any petition for enforcement that is filed more than 30 days after the date
of service of the agency’s notice that it has complied must contain a statement
and evidence showing good cause for the delay and a request for an extension of
time for filing the petition. 5 C.F.R. § 1201.182(a). Because an agency is not
required to serve a notice of compliance with a settlement agreement, a petition
for enforcement of a settlement agreement must be filed within a reasonable time
of the date of the alleged breach of the agreement, taking into consideration the
date of the petitioning party’s knowledge of the alleged breach, and the
reasonableness of the time period depends on the particular circumstances of the
case. See Dean v. U.S. Postal Service, 101 M.S.P.R. 356, ¶ 12 (2006).
¶6 In Phillips v. Department of Homeland Security, 118 M.S.P.R. 515, (2012),
the appellant filed a petition for enforcement 4 months after she became aware
that the agency apparently had breached the settlement agreement. The Board
found 4 months was a reasonable delay under the circumstances of that case
4
For ease of reference, all references to the petition for review file in this Final Order
are to the file in English v. Small Business Administration, MSPB Docket No. DE-0752-
13-0353-C-1.
5
because the appellant had contacted the agency to obtain a copy of her OPF
promptly after learning of the apparent breach. The Board concluded that she
acted diligently to determine whether the agency had complied with its
expungement obligations, and in filing her petition for enforcement within 6 days
after receiving her OPF from the agency. Phillips, 118 M.S.P.R. 515, ¶ 11.
Under the circumstances—including the agency’s lengthy delay in providing the
OPF, which appears to have influenced Appellant Phillips’ failure to immediately
file her petition—the Board found that the petition for enforcement was filed
within a reasonable amount of time. Id.
¶7 The appellant’s situation differs from that in Phillips. He had access to his
OPF electronically without any need to make any request to his agency. None of
the agency’s alleged wrongdoing affected his ability to know for certain of the
agency’s alleged breach of the settlement agreement. Thus, the agency’s actions
identified by the appellant do not provide a circumstance that appears to have
influenced his 7-month delay in filing his petition for review.
¶8 In Bostick v. Department of Health & Human Services, 63 M.S.P.R. 399
(1994), the appellant also filed his petition for enforcement 4 months after he
apparently learned that the agency breached a settlement agreement by
withholding the authority he allegedly needed to perform the duties of his
position. Bostick, 63 M.S.P.R. at 401. However, he filed a grievance concerning
the matter, and he filed his petition for enforcement only 10 days after he
received the agency’s decision on that grievance. Id. The Board noted that
generally the pursuit of other avenues of redress, including the grievance process,
does not constitute good cause for waiving the Board’s filing deadline. See, e.g.,
Bachelor v. Department of the Army, 56 M.S.P.R. 108, 110 (1992). However,
because the appellant received only the more general information about petitions
for enforcement that is provided in cases involving settlement agreements, and
not the more specific information provided in other cases, the Board found that he
6
acted within a reasonable time of the date of the alleged breach. Bostick,
63 M.S.P.R. at 410.
¶9 The appellant’s situation also differs from that in Bostick. Although the
appellant states that he filed an equal employment opportunity complaint, a
complaint with the Office of Special Counsel, and a complaint with the Inspector
General, he does not allege that any of these complaints involved the agency’s
alleged failure to place his FY 2013 appraisal in his OPF. Thus, they provide no
basis to find that the appellant acted within a reasonable time to file his petitions
for enforcement. Further, although the appellant received only the more general
information about petitions for enforcement that is provided in cases involving
settlement agreements, by his own admission, he was familiar with Board
proceedings, having filed other Board complaints, a circumstance supporting a
finding that the appellant failed to act with due diligence in filing his petitions for
enforcement. Cf. Chudson v. Environmental Protection Agency, 71 M.S.P.R. 115,
118 (1996) (1-year delay was unreasonable where appellant was an experienced
Board litigant and was represented by counsel), aff’d, 132 F.3d 54 (Fed. Cir.
1997) (Table).
¶10 In sum, we find that the administrative judge properly dismissed the
appellant’s petitions for enforcement in these appeals as untimely filed.
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
7
The court must receive your request for review no later than 60 calendar
days after the date of this order. 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 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 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, 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 representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
8
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
