U.S. Merit Systems Protection Board 
Case Report for October 21, 2011  

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Note:  These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.

BOARD DECISIONS

Appellant:  Darrell T. Crawford
Agency:  Department of the Army
Decision Number:  2011 MSPB 91
Docket Numbers:  NY-4324-09-0336-X-1
Issuance Date:  September 30, 2011
Appeal Type:  Adverse Action by Agency
Case Type:  Compliance Referral

Compliance

    This petition for enforcement was before the Board based on the administrative judge's Recommendation finding the agency in noncompliance with a final Board order.  The issue in this USERRA appeal was whether the position to which the agency restored the appellant was of like status to the position he held before his uniformed service (his previous position had been abolished).

Holdings:  The Board found that the agency was in compliance and dismissed the appeal as moot:

1.  The crux of the case is whether the appellant's new IT Specialist position is of like status to the IT Specialist position he occupied before he left for the uniformed service.

2.  When an agency places a person in a position of like status, it must be a position "the duties of which the person is qualified to perform."  The statute contemplates that a person may not be initially qualified to perform the new position, in which case the agency must make "reasonable efforts" to qualify the person.  The Board  found that, to the extent that the appellant might not already be fully qualified, he can become fully qualified with minimal additional training.  

3.  The appellant's new IT Specialist position is of like status to the IT Specialist position he occupied prior to his military absence.
a.  In comparing two positions, the Board  looks beyond the title and grade of the positions involved, and compares the scope of actual duties and responsibilities of the new position with those of the former position.

b.  The appellant' s new position is similar or identical to his prior position in regard to pay, tenure, seniority, working conditions, and rank or responsibility. Weighing these factors against the sole factor under dispute -- job duties -- the Board concluded that the duties are sufficiently similar under the circumstances, and that the agency fulfilled its obligation to place the appellant in a position of like status to his prior position.  


   
COURT DECISIONS

Petitioner:  Kimberly A. Ford-Clifton
Respondent:  Department of Veterans Affairs
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2011-3103
Issuance Date:  October 19, 2011

Timeliness - PFR
Res Judicata - Law of the Case

     In January 2009, the agency removed the Ford-Clifton from her position as a Program Support Assistant.  On appeal to the Board, the parties entered into a written settlement agreement, under which Ford-Clifton withdrew her appeal and agreed to forgo all claims against the agency from that date forward.  The administrative judge dismissed the appeal pursuant to the settlement agreement on March 26, 2009.  This initial decision became the Board's final decision on April 30, 2009, as no petition for review had been filed.  In November 2009, Ford-Clifton filed a new appeal.  Although the appeal was docketed as a petition to enforce the settlement agreement, Ford-Clifton did not allege that the agency had violated the agreement; she instead argued the merits of the agency's removal action.  The administrative judge dismissed the appeal on 3 grounds:  (1) If the new appeal was intended to enforce the settlement agreement, dismissal without prejudice was appropriate because Ford-Clifton did not claim that the agency was in noncompliance; (2) if the new appeal was intended to relitigate the merits of the removal action, dismissal was appropriate under the doctrine of res judicata; and (3) if the appeal was claiming that the settlement agreement was illegal or improperly entered, those allegations should have been filed at the Board's headquarters as a petition for review of the original initial decision.  

     Ford-Clifton filed a request for review with the Board.  The Board, unable to determine whether to treat Ford-Clifton's pleading as a petition for review of the first initial decision, or as a petition for review of the second initial decision, decided the matter on both grounds.  As to the first, the Board ruled that Ford-Clifton failed to show good cause for her delay in challenging the original initial decision.  As to the second, the Board determined that the administrative judge improperly dismissed the appeal on res judicata (claim preclusion) grounds, ruling that the proper basis for dismissal was the law of the case doctrine.  The Board reasoned that res judicata was not appropriate because it precludes the litigation of matters that have been decided on the merits, and dismissal per a settlement agreement is not a decision on the merits.  

Holdings:  The court affirmed the Board's dismissal of Ford-Clifton's pleading as untimely filed insofar as it was challenging the dismissal of the original appeal pursuant to a settlement agreement, and the dismissal of the second appeal insofar as it was challenging the second initial decision:

1.  The Board correctly found that Ford-Clifton failed to establish good cause for her untimely petition for review, insofar as she was challenging the dismissal of the original appeal.

2.  Res judicata was the correct basis for dismissing the second appeal, not the law of the case doctrine.
a.  Under  res judicata,  a final judgment on the merits bars a second  action  involving the same parties and the same claim.  

b.  A dismissal of an action pursuant to a settlement agreement constitutes a final judgment on the merits in a res judicata analysis.

c.  The court stated that it looked with disfavor on the use of the law of the case doctrine by administrative agencies when a final order dismissing a case was earlier made on the basis of a settlement agreement.  

d.  The administrative judge's dismissal, in addition to res judicata, could be characterized in terms of waiver, as the settlement agreement waived all additional claims, grievances, and proceedings arising from Ford-Clifton's removal.



Nonprecedential Court Decisions:  

Natty v. U.S. Postal Service, No. 2011-3138 (Oct. 11, 2011) (MSPB Docket No. SF-0752-10-0847-I-1) (affirming the Board's decision, which sustained the appellant's removal based on a charge of unacceptable conduct)

Burroughs v. Department of the Army, No. 2011-3118 (Oct. 11, 2011) (MSPB Docket No. AT-3330-10-0523-I-1) (affirming the Board's decision, 115 M.S.P.R. 656 (2011), which dismissed the appeal for lack of jurisdiction)

McGee v. Department of the Air Force, No. 2009-3263 (Oct. 12, 2011) (MSPB Docket No. CH-0752-08-0403-I-1) (affirming per Rule 36 the Board's decision, which affirmed the agency's removal action)

Hahn v. Environmental Protection Agency, No. 2011-3133 (Oct. 13, 2011) (MSPB Docket No. CH-0752-08-0671-C-1) (affirming the Board's decision, which denied the appellant's petition for enforcement)

Nasuti v. Merit Systems Protection Board, No. 2011-3048 (Oct. 14, 2011) (MSPB Docket No. DC-1221-09-0356-M-1) (affirming the Board's decision, which dismissed this IRA appeal for lack of jurisdiction)

Burroughs v. Department of the Army, No. 2011-3141 (Oct. 18, 2011) (MSPB Docket No. AT-3330-10-0892-I-1) (affirming the Board's decision, which denied some claims and dismissed others for lack of jurisdiction)



FEDERAL REGISTER NOTICE

     The Board issued an Interim Rule, 76 Fed. Reg. 63537 (Oct. 13, 2011), announcing a pilot program under which the Washington Regional Office and Denver Field Office will require all pleadings filed by agencies and attorneys who represent appellants in MSPB proceedings to be electronically filed (e-filed).  This requirement will apply to all pleadings except those containing classified information or Sensitive Security Information in all adjudicatory proceedings before the Board.  Any agency or appellant's attorney who believes e-filing would create an undue burden may request an exemption from the administrative judge; however, requests will generally be considered only for pleadings that include scanned material, not documents prepared and saved in a word processing program, and will be granted only when supported by a specific and detailed explanation, such as when the submission of a voluminous amount of scanned documents would create a hardship for a party.


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