Dorrall v. Department of Army, 01-3309.

• Decision Date: 06 September 2002
• Docket Number: No. 01-3309.,01-3309.
• Citation: 301 F.3d 1375
• Parties: James H. DORRALL, Petitioner, v. DEPARTMENT OF THE ARMY, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

301 F.3d 1375

James H. DORRALL, Petitioner, v. DEPARTMENT OF THE ARMY, Respondent.

No. 01-3309.

United States Court of Appeals, Federal Circuit.

September 6, 2002.

COPYRIGHT MATERIAL OMITTED

Yolonda D. Lofton, Law Offices of Errol R. Thompson, of Silver Spring, MD, for petitioner.

John C. Einstman, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, for respondent. With him on the brief were Robert D. McCallum, Jr., Assistant Attorney General; David M. Cohen, Director; and Franklin E. White, Assistant Director.

Before NEWMAN, DYK, and PROST, Circuit Judges.

DYK, Circuit Judge.

James H. Dorrall petitions for review of a final decision of the Merit Systems Protection Board ("Board") dismissing his appeal for lack of jurisdiction. Dorrall v. Dep't of the Army, DC-0752-01-0308-I-1 (Apr. 10, 2001) (Initial Decision). We affirm.

BACKGROUND

On August 2, 2000,¹ Dorrall retired from his position as a GS-14 procurement analyst with the United States Army Materiel Command. Before his retirement, Dorrall's first line supervisor was Edwin Cornett, and his second line supervisor was Sandra Rittenhouse.

On May 3, Dorrall filed an Equal Employment Opportunity ("EEO") complaint against Rittenhouse, alleging that he had not been selected for a GS-15 position because he was discriminated against on the basis of his race, color, and sex. On June 26, Carole Page, Dorrall's contact at the EEO office, sent an e-mail message to Dorrall, informing him that an investigator would conduct an on-site investigation into his discrimination complaint on August 3, including a hearing at which testimony would be received. The stated purpose of the message was to determine if the addressees of the e-mail would be available on August 3. On June 28, Dorrall sent an e-mail message to Page, stating that August 3 was not a good date and that he would let her know within a week whether he would be available on August 3. Subsequently, on July 3, Dorrall sent another short e-mail message, indicating that he would not be available on August 3. On July 6, Page responded that the investigation was still scheduled for August 3 because "the agency is responsible for conducting the investigation in a timely fashion and no one has provided a compelling reason for not participating." E-mail from Carole Page, EEO Office, to James Dorrall (July 6, 2000). Although Dorrall had previously indicated his unavailability, on July 20, Page informed Dorrall that the investigation was still scheduled for August 3. Apparently, some time after the investigative hearing was scheduled for August 3, Dorrall requested leave for that date. This leave was approved on, or a few days before, July 27 by Cornett. Dorrall never provided an explanation for his leave request, although the parties admit that it is not the policy of the agency to require an explanation.

A formal mediation was scheduled for July 24 to attempt to settle Dorrall's EEO complaint. The parties signed a negotiated settlement agreement resolving the EEO complaint on July 31 and August 1. After signing the settlement agreement, Dorrall told Cornett that he would be working on August 3.

A memorandum dated July 31 and prepared by Cornett described a discussion of the same date with Dorrall (referred to as "Jim" below) regarding his need for personal leave:

On 31 July I called Mike Gallagher in to ask him to attend the open CAS conference with industry and Government on 2-3 Aug 00 as Jim had personal leave that he had to take on 3 Aug. I asked Mike, as he was the backup for Jim, to cover both days and Jim would go along on 2 Aug. I told him to get information from Jim on [the] meeting.

Jim came in shortly after I asked Mike to attend and stated that he could cover both days as he had reached a settlement. I said, Jim, I thought you had to take personal leave and it [sic] had it planned for some time. I said, Jim, you told me last week that you had to take personal leave and it had nothing to do with the hearing. I told him this looked really bad for both of us, as we made a big deal with legal and the DCS last week. He said its [sic] nothing, don't worry about it, you know personal reasons for leave can change and no one can prove anything. I said, OK, Jim, this doesn't sound good, you probably should take the day off. He said, they can't prove anything [and] personal circumstances can change.

Notes to Petitioner's file drafted by Edwin Cornett (July 31, 2000).

On August 1, Cornett mentioned to Linda Mills, legal counsel for the department, that he thought Dorrall had avoided the hearing on purpose and lied to Cornett and Rittenhouse about his need for leave in order to pressure them into settling his complaint. Mills recommended discipline ranging from a reprimand to a ten-day suspension for deliberately deceiving a supervisor to avoid the hearing. Consequently, Cornett and Rittenhouse decided to meet with Dorrall.

On August 2, Rittenhouse and Cornett met with Dorrall. During this meeting, Dorrall's supervisors questioned him on the reason that he canceled his request for leave. Rittenhouse accused Dorrall of taking leave to avoid the hearing and impede the investigation, and also informed Dorrall that she was considering taking disciplinary action ranging from a letter of reprimand to a ten-day suspension. Rittenhouse also questioned Dorrall in a raised tone of voice about ordering the most expensive item on the menu for his birthday luncheon, requesting reimbursement on a one dollar error in a travel voucher, and filing a workers' compensation claim including whether there were any witnesses to his accident.

After the meeting, Dorrall initiated his retirement, which was effective August 2. When Dorrall approached Cornett to obtain Cornett's signature on his final retirement papers, Dorrall was asked about his reason for retiring. Dorrall responded by stating his disbelief that he would be subject to a ten-day suspension and stating that there was no proof he attempted to avoid the hearing. Cornett told Dorrall that Rittenhouse and he had not decided whether Dorrall would be punished, and in any event, he would not be punished for the full ten days. Regardless, Cornett thought that Dorrall was doing a good job, that he should rethink his retirement decision, and that this was not a good reason to retire.

On August 8, Rittenhouse wrote Dorrall a letter, stating that she did not intend to coerce Dorrall to retire. In the letter, Rittenhouse stated that "[she had] not initiated any disciplinary action," and if "[she] had elected to propose a disciplinary suspension action, [he] would have been given an opportunity to reply and to take advantage of all other due process rights which are made available to all employees by law and regulation."² Moreover, she invited him to reconsider his retirement decision. Dorrall did not respond to Rittenhouse's letter.

On September 19, 2000, Dorrall filed another EEO complaint against his supervisors, alleging that he was forced to retire as a result of discrimination on the basis of race, national origin, gender, and in reprisal for his earlier EEO complaint. On January 23, 2001, the agency issued a final decision finding that his decision to retire was not the result of discrimination.

On February 23, 2001, Dorrall appealed the agency decision to the Board. On March 1, 2001, the Board issued an acknowledgment order, requiring Dorrall "to file evidence and argument to prove that this action is within the Board's jurisdiction." Dorrall v. Dep't of the Army, DC-0752-01-0308-I-1, at 2 (Mar. 1, 2001) (Acknowledgment Order). The Board was concerned that it lacked jurisdiction because "resignation and retirement actions are presumed to be voluntary and, consequently, are not appealable to the Board." Id. Dorrall's submission concerning the Board's jurisdiction was due "within 15 days of the date of this Order," that is by March 16, 2001. Id. However, Dorrall had previously informed the Board through his legal counsel that he intended to file a statement in support of his appeal by March 26, 2001, ten days later.³ Dorrall failed to meet the Board's deadline, filing his statement in support of his appeal on March 21, 2001. The Board subsequently dismissed the appeal, stating that Dorrall "has failed to make a nonfrivolous allegation of involuntariness sufficient to warrant a hearing," and that Dorrall "has not met his burden of proving that his retirement was involuntary." Initial Decision at 5.

Dorrall timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

DISCUSSION

I

We must affirm the final decision of the Board unless we conclude that it is "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence." 5 U.S.C. § 7703(c) (2000). The Board's jurisdiction is statutorily limited and includes adverse personnel actions. Middleton v. Dep't of Defense, 185 F.3d 1374, 1379 (Fed.Cir.1999).

II

Dorrall first urges that the Board erred by not considering his Statement in Support of Appeal, and that this error led to the dismissal of his appeal for lack of jurisdiction. Dorrall further urges that he had good cause for his untimely filing because he exercised due diligence or ordinary prudence under the circumstances. We disagree.

Here the Board clearly set a fifteen-day time limit from the date of the March 1 acknowledgment order for filing a statement in support of his appeal. Acknowledgment Order at 2. Dorrall failed to meet the deadline set by the Board...