Oja v. Department of Army

• Decision Date: 28 April 2005
• Docket Number: No. 04-3030.,04-3030.
• Citation: 405 F.3d 1349
• Parties: Robert K. OJA, Petitioner, v. DEPARTMENT OF THE ARMY, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

405 F.3d 1349

Robert K. OJA, Petitioner, v. DEPARTMENT OF THE ARMY, Respondent.

No. 04-3030.

United States Court of Appeals, Federal Circuit.

April 28, 2005.

Marianne Dugan, Facaros & Dugan, of Eugene, Oregon, argued for petitioner.

Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. On the brief were Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; James M. Kinsella, Deputy Director; and, Brent M. McBurney, Attorney. Of counsel was John H. Williamson.

Before NEWMAN, CLEVENGER, and GAJARSA, Circuit Judges.

Opinion for the court filed by Circuit Judge CLEVENGER.

Dissenting opinion filed by Circuit Judge NEWMAN.

CLEVENGER, Circuit Judge.

Robert K. Oja appeals the November 22, 2002, order of the Merit Systems Protection Board ("Board" or "MSPB"), which adopted the initial decision of the administrative judge ("AJ") that denied Mr. Oja's petition for enforcement of a settlement agreement between him and the United States Army Corps of Engineers ("agency"). See Oja v. Dep't of the Army, No. SE0752990003-C-1, 2002 WL 31740526 (M.S.P.B. Nov.22, 2002) ("Final MSPB Decision"). Because Mr. Oja did not file a petition for review with this court within 60 days of the date he first received notice of the final order of the Board, see 5 U.S.C. § 7703(b)(1) (2000), we dismiss Mr. Oja's appeal for lack of jurisdiction.

I

On August 25, 1998, Mr. Oja was removed from his position as Chief of the Regulatory Branch of the Construction and Operations division for the Anchorage District of the United States Army Corps of Engineers. In a Standard Form 50-B Notification of Personnel Action, the agency cited as reasons for the removal "excessive absences and failure to follow leave procedures." In October, Mr. Oja filed an appeal with the Merit Systems Protection Board, alleging an adverse employment action under the Civil Service Reform Act of 1978 ("CSRA"), Pub.L. No. 95-454, 92 Stat. 1111, and discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e (2000) and Section 501 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 791 (2000). Mr. Oja's appeal was a so-called "mixed-case" appeal — "an appeal to the Board from an adverse personnel action, coupled with an allegation that the action was based on prohibited discrimination." Austin v. Merit Sys. Prot. Bd., 136 F.3d 782, 783 (Fed.Cir.1998).

In March 1999, the parties entered into an agreement in settlement of the appeal. The settlement agreement stated in relevant part:

2. The U.S. Army Corps of Engineers, Alaska District ... agrees to:

a. Convert the basis for removal of the Appellant from one of excessive absence and failure to follow leave procedures to "continued absence due to illness" with an effective date of September 5, 1998....

c. Purge the Appellant's Official Personnel File (OPF) and Management Employees' Relations file (MER) regarding any reference to Appellant's removal based on grounds other than "continued absence due to illness." ...

f. Allow Appellant two years from the effective date of his removal, to exercise relocation entitlement pursuant to a transportation agreement he signed in 1985.

(J.A. at 53-55.) On April 5, an AJ approved the agreement and dismissed Mr. Oja's mixed-case appeal. See Oja v. Dep't of the Army, No. SE0752990003-I-2 (MSPB Apr. 5, 1999) (approving the settlement agreement).

Subsequently, the agency took several actions thought by Mr. Oja to be breaches of the settlement agreement. First, on June 2, 1999, Mr. Oja submitted a request for authorization of travel from Alaska to Oregon and reimbursement for real estate expenses. The agency approved the request on June 9. Mr. Oja sold his home in Alaska and purchased a home in Oregon. On April 11, 2000, he submitted an "Application for Reimbursement of Expenses Incurred by DoD Civilian Employee Upon Sale or Purchase (Or Both) of Residence Upon Change of Duty Station," wherein he sought reimbursement for approximately $13,600 in real estate transaction expenses associated with his move to Oregon. In a June 23, 2000, letter, the agency denied Mr. Oja reimbursement for real estate expenses because the agency's Joint Travel Regulations did not allow for the reimbursement of real estate expenses associated with a return to the continental United States for purposes of separation. The agency noted in the letter that the prohibition against such real estate expenses was discussed with Mr. Oja's attorneys prior to the March 1999 settlement. The agency later characterized its June 9, 1999, approval of real estate expenses as an error.

Second, on August 14, 1999, a Washington Post reporter posed ten questions via electronic mail regarding the agency's activities in Alaska, including one inquiring as to whether Mr. Oja quit on his own accord or was fired. The agency responded in another electronic mail that "Mr. Oja stopped coming to work on October 23, 1997, and failed to provide information about the likelihood of returning to work. Effective September 5, 1998, Mr. Oja was removed from his position for excessive absence due to illness." (J.A. at 93.) On September 7, 2000, the agency posted its statement about Mr. Oja's removal on the Internet.

Believing that with these actions the agency breached paragraphs 2(a), (c) and (f) of the settlement agreement, Mr. Oja filed a petition on September 8, 2001, with the MSPB to enforce the agreement. On January 15, 2002, the AJ determined that neither the agency's response to the Washington Post reporter's inquiry about the status of Mr. Oja's departure nor the agency's subsequent Internet posting rose to the level of bad faith or negated any of the other actions taken by the agency to comply with the specific provisions of the settlement agreement. Oja v. Dep't of the Army, No. SE0752990003-C-1, at 12 (M.S.P.B. Jan.15, 2002) (finding no breach of the settlement agreement). The AJ further determined that the settlement agreement specifically guaranteed Mr. Oja the right "to exercise relocation entitlement pursuant to a transportation agreement he signed in 1985," and that the 1985 agreement did not provide for the recovery of the expenses sought. Id. at 14.

After finding no breach, the AJ advised Mr. Oja of his right to a review of the AJ's decision by the full Board and ultimately by the Court of Appeals for the Federal Circuit. Id. at 18-19. The AJ specifically noted that any petition for review by the Federal Circuit "must be received by the court no later than 60 calendar days after the date this initial decision becomes final." Id. at 19. Mr. Oja subsequently filed a petition for review by the full Board. On November 22, 2002, the Board denied the petition. See Final MSPB Decision. The Board reminded Mr. Oja that

[y]ou have the right to request the United States Court of Appeals for the Federal Circuit to review this final decision.... The court must receive your request for review no later than 60 calendar days after your receipt of this order.... 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.

Id. at 2.

Mr. Oja received the final decision of the Board on December 9, 2002. On January 23, 2003, Mr. Oja did not request a review by this court but instead filed a petition for review with the Equal Employment Opportunity Commission ("EEOC"). In the petition, Mr. Oja claimed that a "partial sentence" in the materials enclosed with the Board's final order provided that he could "proceed in a district court or the [EEOC]." Mr. Oja also stated in the petition that he contacted the MSPB "at their commercial telephone number in Washington, D.C." and was told that he could seek review by the EEOC of the Board's final order. The EEOC ultimately declined to consider the petition, stating that it lacked jurisdiction because "the MSPB did not address any allegations of discrimination, but rather concluded that the settlement agreement had not been breached." Oja v. Dep't of the Army, No. 03A30030 (EEOC Mar. 6, 2003).

On April 4, 2003, Mr. Oja filed a complaint in the United States District Court for the District of Oregon, asserting claims for breach of the settlement agreement under the CSRA and unlawful discrimination under Title VII and the Rehabilitation Act.¹ The agency subsequently filed a motion to dismiss. A Magistrate Judge issued findings and a recommendation wherein he concluded that because Mr. Oja did not assert a claim for discrimination in the September 8, 2001, petition for enforcement to the MSPB and instead only complained of the alleged breaches of the settlement agreement, Mr. Oja's petition was not a mixed-case complaint and thus should have been brought before the Federal Circuit. See Oja v. U.S. Army Corps of Eng'rs, No. 03-6074-TC, at 7-8 (D.Or. Sept. 8, 2003) (recommending a transfer to the Federal Circuit). The Magistrate Judge also concluded that Mr. Oja did not exhaust his administrative remedies with respect to the discrimination claim brought before the district court because he did not properly assert the claim before the agency's equal employment opportunity office, the EEOC or the MSPB. Id. at 8-9. Recognizing "some question as to whether [Mr. Oja] could have brought the action before the Federal Circuit at the time it was filed in [the district court]," the Magistrate Judge nonetheless recommended transferring the case to the Federal Circuit, pursuant to 28 U.S.C. § 1631, and noted that "there may be grounds for equitable tolling." Id. at 9.

The district court adopted the Magistrate Judge's findings and recommendation in its entirety and transferred Mr. Oja's claim for breach of the settlement agreement to this court. See Oja v. U.S. Army Corps...