shaw bransford & roth case law update

Board Dismisses Case for Repeated Failure to Shorten a Petition for Review

The Merit Systems Protection Board appeal of a GS-13 Physical Security Specialist with the United States Navy was dismissed with prejudice after the MSPB found that the employee repeatedly failed to file a “perfected petition.”

The employee was removed from his position for allegedly inappropriate conduct and failure to follow policy, procedure, or supervisory instruction. After filing an EEO complaint and receiving a final agency decision concluding he was not subject to discrimination, the employee filed a Merit Systems Protection Board appeal. The MSPB administrative judge upheld the agency’s action, sustaining both charges and finding that the employee did not establish any of his affirmative defenses. The employee appealed via the Board’s e-Appeal Online system, uploading a document entitled “Petition for Review.” On October 31, 2016, the Board dismissed the employee’s appeal with prejudice.

The employee’s original petition for review included a 59-page table of contents, a 214-page table of authorities, and 20 pages of analysis and argument. And while the Office of the Clerk of the Board observed that its regulations allow for 30 pages (or 7,500 words) for a petition for review, it concluded that the employee’s table of contents and table of authorities both included legal argument and analysis, which is not typical in either a table of contents or table of authorities. The Clerk’s Office rejected the petition for that reason, deleted it from the e-Appeal repository, and returned it to the employee, notifying him that he could “perfect” the petition by July 1, 2016.

The employee submitted a revised petition for review on June 30, 2016, which had 229 pages, rather than the previous iteration’s 293. The Clerk’s Office again advised the employee that legal and factual merit-based arguments were present throughout those pages, and rejected the petition for review, deleted the appeal from the e-Appeal Online Repository, and returned it to the employee. At that time, the Clerk’s Office informed the employee that he could “perfect” the petition by submitting it in compliance with the Board’s regulations by July 14, 2016.

On July 11, 2016, the employee submitted a 231-page document that had similar flaws as the previous iteration: legal argument regarding the merits of the appeal throughout the 231-page document, regardless of the title adorning any given page of the submission. The Clerk’s Office afforded the employee a final opportunity to “perfect” the petition by July 28, 2016.

On July 25, 2016, the employee submitted a 241-page document that included sections entitled “Conflict of Interest in Brief Attachment,” “Table of Contents,” “California All-Purpose Acknowledgment,” “In Jurisdiction of the U.S. Merit Systems Protection Board,” “Table of Authorities,” and a section entitled “Petition for Review” that itself was 31 pages, rather than the limit of 30. On October 31, 2016, the Board dismissed the employee’s appeal with prejudice.

In its decision, the Board observed that the employee had “challenged” whether the Board could sanction him, and had “chastised the deciding official and the administrative judge for ‘acting out, outside the scope of [her] employment,’” in a section entitled “Conflict of Interest in Brief Attachment.” The Board also observed that the “Table of Authorities” section consisted of many pages of analysis and argument relating to the merits of the appeal.” The Board noted that the employee had not requested leave to file a petition greater than 30 pages.

The Board found that its regulations did not specifically provide what sanctions the Board could impose for a party’s failure to comply with the requirements for submission of a Petition for Review, and so it sought guidance from 5 C.F.R. § 1201.43(b), the regulation that states that an administrative judge may dismiss an appeal with prejudice should an employee fail to prosecute an appeal. In a footnote, the Board stated that although the regulation was written to apply to administrative judges, the Board itself was “empowered to issue orders.” The Board concluded that the Board’s interpretation of its own regulations is entitled to great deference, and that despite the severity of the sanction of dismissal, it was appropriate in this instance.

The Board found that the employee was noncompliant in a “substantial” way, exceeding the page limit for petitions for review four times by approximately 200 pages each time in defiance of the Board’s orders. The Board also noted that the employee had subjected female staff in the Clerk’s Office to “continual misogynistic invective” that showed bad faith.

The Board supplemented its reasoning for dismissal with prejudice (a “severe sanction” according to the Board”) by citing caselaw regarding the Federal Rules of Appellate Procedure’s prohibition against principal briefs exceeding 30 pages. For example, the Board cited United States v. Ferrand, 284 F. App’x 177, 179 (5th Cir. 2008), which held that a district court did not err in striking a reply brief that exceeded the page limit written by a pro se litigant when the litigant had been warned twice that his failures may result in dismissal.

For the above stated reasons, the Merit Systems Protection Board dismissed the employee’s appeal with prejudice.

Read the full case: Morris V. Department of the Navy 

 


This case law update was written by Conor D. Dirks, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

Tags: MSPB, Merit Systems Protection Board, Navy, case law update, conor d dirks, conor dirks

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