Brasel v. Merit System Protection Board

97 F. App'x 289
CourtCourt of Appeals for the Federal Circuit
DecidedMay 6, 2004
DocketNo. 03-3324
StatusPublished

This text of 97 F. App'x 289 (Brasel v. Merit System Protection Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brasel v. Merit System Protection Board, 97 F. App'x 289 (Fed. Cir. 2004).

Opinion

DECISION

PER CURIAM.

Petitioner Myron C. Brasel appeals from the decision of the Merit Systems Protection Board, Docket No. CH-1221-02-0320W-l, 94 M.S.P.R. 479, 2003 WL 21727786, dismissing his petition for review and declining to reopen previous Board proceedings. We affirm.

[290]*290BACKGROUND

Mr. Brasel was an Assistant Division Chief for the United States Marshals Service in Kansas City, Missouri. In 1994, he filed an Individual Right of Action (“IRA”) appeal with the Board, contending that he was constructively discharged when he was coerced into resigning from his position as of September 30, 1993. He contended that the constructive discharge violated the Whistleblower Protection Act (“WPA”), 5 U.S.C. § 2302(b)(8), because the agency’s action was in reprisal for certain protected disclosures he had made. That appeal was dismissed pursuant to a settlement agreement reached by the parties. The administrative judge noted that the parties did not request that the agreement be entered into the record for enforcement purposes.

In 1995 and 1996, Mr. Brasel filed two new matters with the Board. The first was a petition for enforcement of the 1994 settlement agreement, which Mr. Brasel contended the Marshals Service had violated. The second was a new appeal alleging that the Marshals Service had induced him to enter into the settlement agreement through fraud and misrepresentation. To resolve those matters, the parties reached another settlement agreement. Pursuant to that agreement, Mr. Brasel agreed to withdraw his pending petition for enforcement and his appeal, and he agreed to retire from the Marshals Service in August 1996. The parties agreed that the 1996 settlement agreement .would not be enforceable by the Board because of an outstanding jurisdictional issue. In the two initial decisions dismissing the 1995 and 1996 actions, the administrative judge specifically found that the settlement agreement was lawful and that both parties had freely entered into it.

Mr. Brasel retired from the Marshals Service as agreed in August 1996. He then worked for more than three years for a private company that did contract work for the Marshals Service. He states that his salary in that position was indirectly funded by the Marshals Service. He left that position in October 1999.

Beginning in February 2000, Mr. Brasel asserts that he filed new information and complaints with the Office of Special Counsel (“OSC”) based. on what he contends was new evidence that was not available to him at the time of the 1996 settlement agreement. After exhausting his remedies before the OSC, he filed an IRA appeal with the Board in February 2002. In his IRA appeal, Mr. Brasel made allegations of improper conduct by the Marshals Service, and he alleged that the Marshals Service had retaliated against him because of protected disclosures he had made. In addition, he claimed that the 1996 settlement agreement was the result of deceit and that he was coerced into retiring as a result of misrepresentations by the Marshals Service.

The administrative judge who was assigned to the case ruled that the Board lacked jurisdiction over Mr. Brasel’s appeal. The administrative judge noted that in order to establish Board jurisdiction over his IRA appeal, Mr. Brasel was required to show that he was subject to a “personnel action,” as defined by 5 U.S.C. § 2302(a)(2)(A). Because a voluntary retirement is not a “personnel action” and because an employee’s retirement is presumed to be voluntary, the administrative judge held that Mr. Brasel was required to show that his retirement was involuntary in order for his retirement to qualify as a “personnel action” within the meaning of the WPA. The administrative judge noted that the Board in -its 1996 decision had found that Mr. Brasel entered into the 1996 settlement agreement freely, and that he therefore could prove that his retire[291]*291ment was involuntary only by convincing the Board to set aside the 1996 decision.

The administrative judge further ruled that Mr. Brasel could not attack the validity of his settlement agreement through a new action, such as his IRA appeal, but instead could challenge the validity of the settlement agreement only by a petition for review of the previous Board decisions dismissing his 1995 and 1996 actions as settled. Because Mr. Brasel did not file such a petition from the 1996 initial decisions, and because those decisions were not otherwise overturned, the administrative judge concluded that Mr. Brasel’s retirement must be deemed voluntary as a matter of law.

Mr. Brasel filed a petition requesting that the full Board review the administrative judge’s jurisdictional ruling and that the Board reopen the initial decisions that had dismissed his 1995 and 1996 actions pursuant to the 1996 settlement agreement. The Board dismissed the petition for review as untimely and denied the request to reopen. The Board first upheld the administrative judge’s ruling that Mr. Brasel could not establish that his retirement was involuntary without first showing that the settlement agreement was invalid, which he could do only in a petition for review of the 1996 initial decisions that had dismissed his earlier action as settled. Accordingly, the Board treated his petition as a petition for review of the 1996 initial decisions.

Treating the petition in that fashion, the Board held that the petition was not filed within the 35-day period for seeking Board review of 1996 initial decisions and that he had not shown good cause for the delay in seeking review of those decisions. With respect to Mr. Brasel’s claim that he was unable to file a timely petition to review the 1996 initial decisions because he was trying to escape a hostile work environment, the Board observed that Mr. Brasel had not explained why he could not have filed his petition after he was separated from federal service and was away from the allegedly hostile work environment. With respect to Mr. Brasel’s request to reopen the earlier appeals to challenge the validity of the settlement agreement, the Board explained that it does not reopen an appeal to cure the untimely filing of a petition for review except in unusual circumstances. Finding no reason to depart from its general rule, the Board denied the request to reopen.

DISCUSSION

This case presents two issues: first, whether the Board was correct in ruling that it could not hear Mr. Brasel’s IRA appeal without rehearing the initial decisions that were entered in conjunction with the 1996 settlement; and second, whether the Board should have reconsidered the issue of the voluntariness of the settlement agreement.

As the administrative judge correctly noted, in order for the Board to have jurisdiction over an IRA appeal, the appellant must show that he was subjected to a “personnel action” within the meaning of 5 U.S.C. § 2302(a)(2)(A). It is well settled that an employee’s retirement is presumed to be voluntary. Staats v. U.S. Postal Serv., 99 F.8d 1120, 1123-24 (Fed.Cir.1996). Therefore, the burden was on Mr. Brasel to prove that his retirement was involuntary. Because Mr.

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Bluebook (online)
97 F. App'x 289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brasel-v-merit-system-protection-board-cafc-2004.