Varnado v. MSPB , 603 F. App'x 963 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SHIRLEY A. VARNADO,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2014-3107
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-13-0039-I-1.
______________________
Decided: March 6, 2015
______________________
SHIRLEY A. VARNADO, Davie, FL, pro se.
KATRINA LEDERER, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC for
respondent. Also represented by BRYAN G. POLISUK.
______________________
2 VARNADO v. MSPB
Before PROST, Chief Judge, TARANTO, Circuit Judge,
and FOGEL, District Judge. *
PER CURIAM.
The Merit Systems Protection Board dismissed all of
Shirley Varnado’s claims as either filed too late or outside
the Board’s jurisdiction. We affirm the Board’s decision,
with one exception. As to Ms. Varnado’s claim regarding
the denial of a within-grade increase in pay, we vacate the
Board’s decision and remand to the Board for further
consideration of whether Ms. Varnado was properly
informed of how to establish jurisdiction over that claim
and for any further appropriate proceedings.
BACKGROUND
Ms. Varnado joined the Drug Enforcement Agency
(DEA) in 1987. She was removed from her job on Sep-
tember 20, 2007, for unacceptable performance. Thereaf-
ter, she alleges, the DEA’s unfavorable employment
references prevented her from obtaining and keeping
another job. In particular, Ms. Varnado states that she
was offered a job and began work at the Florida Depart-
ment of Children and Family Services, only to lose that
job weeks later when the DEA communicated its negative
reference. On October 10, 2012, after the Florida agency
provided her a copy of the DEA’s reference, Ms. Varnado
filed an appeal with the Board.
In the form she submitted to the Board, Ms. Varnado
indicated that she was appealing several DEA actions,
including her removal, the agency’s failure to reinstate
her, the denial of a within-grade pay increase (which
occurred in early 2007), a negative suitability determina-
* Honorable Jeremy Fogel, District Judge, United
States District Court for the Northern District of Califor-
nia, sitting by designation.
VARNADO v. MSPB 3
tion, and the giving of a negative employment reference to
the Florida agency more than two years after the removal,
in alleged violation of a DEA regulation. Ms. Varnado
alleged misconduct on the part of those who placed her on
a performance-improvement plan, denied her a salary
increase, and removed her from service; that the bases for
those actions were false and contrived; and that DEA
should not have provided “false, fraudulent, forged, and
misleading” documents to potential employers. R.A. 25.
Recognizing that it had been more than five years
since Ms. Varnado was removed from service in 2007, the
administrative judge informed Ms. Varnado that her
“appeal appeared to be untimely” and “directed [her] to
file evidence and argument to establish either that her
appeal was timely filed or that there was good cause for
the late filing.” R.A. 2. Ms. Varnado responded that her
appeal was timely because, in May 2007, she had filed a
complaint of discrimination with the DEA, the agency had
never issued a final decision on that complaint, and a
Board regulation therefore allowed her to file an appeal
with the Board at any time. See 5 C.F.R. § 1201.154(b)(2).
The administrative judge determined that, although Ms.
Varnado had filed a discrimination complaint on May 14,
2007, before she was removed, she was collaterally es-
topped from asserting that the complaint related to her
removal because a district court had determined other-
wise in a lawsuit she brought involving that complaint.
R.A. 3 & n.3; Varnado v. Mukasey, No. 08-61331-CIV,
2010 WL 2196263, at *2 (S.D. Fla. June 1, 2010). The
administrative judge therefore determined that Ms.
Varnado’s appeal was “4 years, 11 months, and 19 days
late” and then found that Ms. Varnado had not shown
good cause for filing so late. R.A. 4. The administrative
judge dismissed Ms. Varnado’s appeal without addressing
other claims.
On Ms. Varnado’s petition for review, the Board af-
firmed the administrative judge’s decision regarding her
4 VARNADO v. MSPB
removal, and it found no Board jurisdiction over Ms.
Varnado’s claims that the agency violated its own policies,
committed prohibited personnel practices, and violated
the National Labor Relations Act when it provided nega-
tive references to potential employers. As to Ms. Varna-
do’s challenge to the February 2007 denial of a within-
grade wage increase, the Board found that Ms. Varnado
had presented no evidence that she had received an
agency decision reconsidering the denial, which ordinarily
is a jurisdictional prerequisite to challenging the action
before the Board. See Goines v. M.S.P.B., 258 F.3d 1289,
1292 (Fed. Cir. 2001). Finally, the Board determined that
the agency had not made a negative suitability determi-
nation.
In this court, Ms. Varnado argues that the Board mis-
applied the doctrine of collateral estoppel and that, re-
gardless, her claim was timely because she filed it within
30 days of being terminated from the Florida agency and
receiving a copy of DEA’s negative reference. Alternative-
ly, Ms. Varnado argues that she established good cause
for her late filing. Ms. Varnado also continues to press
her claim for the denial of a within-grade pay increase,
which she states “was never adjudicated,” Pet’r’s Br. at
47. We have jurisdiction under 28 U.S.C. § 1295(a)(9) and
now affirm the Board’s decision as to all but the claim
regarding the within-grade pay increase.
DISCUSSION
We must affirm the Board’s decision unless it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c); see also Terban v. Dep’t of Energy, 216
F.3d 1021, 1024 (Fed. Cir. 2000).
VARNADO v. MSPB 5
A. Removal
Ms. Varnado was removed from service effective Sep-
tember 20, 2007, and her 2012 appeal obviously did not
come within the normal thirty-day rule for appeal. 5
C.F.R. § 1201.22(b)(1). She argues for timeliness, howev-
er, based on 5 C.F.R. § 1201.154, which governs cases
“[w]here the appellant has been subject to an action
appealable to the Board” and chooses to “file a timely
formal complaint of discrimination with the agency.” In
such a case, the appellant must file with the Board within
30 days of receiving the agency’s final decision on the
discrimination issue. 5 C.F.R. § 1201.154(b)(1). “If the
agency has not resolved the matter or issued a final
decision on the formal complaint within 120 days, the
appellant may appeal the matter directly to the Board at
any time after the expiration of 120 calendar days.”
§ 1201.154(b)(2).
Ms. Varnado relies on the complaint of discrimination
she filed with the DEA on May 14, 2007, nearly four
months before the effective date of her removal. In 2010,
however, a district court dismissed Ms. Varnado’s dispar-
ate-treatment claims under Title VII of the Civil Rights
Act and the Age Discrimination in Employment Act.
Varnado, 2010 WL 2196263, at *2. In so doing, the court
determined that Ms. Varnado’s claims were barred be-
cause she failed to exhaust her administrative remedies,
reasoning that she had not spoken with an Equal Em-
ployment Opportunity Counselor until early April 2007,
which was beyond the permitted 45-day period after the
acts of alleged discrimination. Id. The court specifically
considered whether Ms. Varnado had amended her claim
to include her September 2007 removal and determined
that she had not. Id. Ms. Varnado’s ensuing appeal was
dismissed for failure to prosecute. Varnado v. U.S. Att’y
General, No. 11-10417-II (11th Cir. Oct. 18, 2011) (entry
of dismissal).
6 VARNADO v. MSPB
The Board properly determined that Ms. Varnado
could not benefit from § 1201.154(b)(2) because the dis-
trict-court judgment collaterally estopped her from assert-
ing that her May 2007 discrimination complaint related to
her removal. Collateral estoppel applies when: “(i) the
issue previously adjudicated is identical with that now
presented, (ii) that issue was ‘actually litigated’ in the
prior case, (iii) the previous determination of that issue
was necessary to the end-decision then made, and (iv) the
party precluded was fully represented in the prior action.”
Kroeger v. U.S. Postal Serv., 865 F.2d 235, 239 (Fed. Cir.
1988) (quoting earlier authority). The Board properly
found all four criteria satisfied as to the district court’s
determination that Ms. Varnado’s complaint did not cover
the September 2007 removal; that is what allowed the
district court to find the April 2007 contact too late. That
the court never reached the merits of her discrimination
claim is immaterial, and we have been shown nothing to
meet the demanding standard for questioning the fairness
of the district-court proceeding. Thus, the Board properly
concluded that Ms. Varnado could not benefit from 5
C.F.R. § 1201.154(b)(2), and the Board’s finding that Ms.
Varnado’s appeal of her removal was filed over four years
late is supported by substantial evidence. 1
The Board also properly concluded that Ms. Varnado
had not shown good cause for her filing delay. Good cause
is broadly “committed to the Board’s discretion,” Mendoza
v. Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992)
(en banc), with the Board permitted to consider a range of
1 Although Ms. Varnado seems to suggest other-
wise, the dates on which she was removed from her Flori-
da-agency job and learned of an allegedly negative DEA
employment reference have no bearing on the starting of
the clock for appeal of her September 2007 removal from
federal employment.
VARNADO v. MSPB 7
factors, see Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578,
1582 (Fed. Cir. 1994). Here, the Board determined that
the agency’s removal letter had apprised Ms. Varnado of
her appeal rights and the relevant deadline and that Ms.
Varnado had “not presented evidence of the existence of
circumstances beyond her control that affected her ability
to comply with the time limits or,” given her long delay,
“shown due diligence in pursuing her appeal.” R.A. 15 (“A
filing delay of 4 years and 11 months is not minimal, even
when the appellant is pro se.”). These findings are sup-
ported by substantial evidence and are well within the
Board’s discretion, given the removal letter, R.A. 81
(letter of removal stating that Ms. Varnado “may appeal
this action to the . . . Board . . . . no later than 30 calendar
days after the effective date of [her] removal”), and the
fact that Ms. Varnado did not file with the Board until
more than two years after the district court’s dismissal,
and one year after the appellate dismissal, of her dispar-
ate-treatment claims. We therefore affirm the Board’s
dismissal of Ms. Varnado’s appeal of her 2007 removal
from service.
B. Within-Grade Pay Increase
Ms. Varnado continues to challenge the February
2007 denial of a within-grade pay increase. R.A. 15 n.4;
Pet’r’s Br. at 41. The hearing officer did not address this
claim. R.A. 1–5. The Board rejected the claim, conclud-
ing that it lacked proof of jurisdiction because Ms. Varna-
do “presented no evidence that she received a
reconsideration decision,” which is “a jurisdictional pre-
requisite for an appeal of a denial of” such a pay increase.
R.A. 15 n.4.
Under 5 U.S.C. § 5335(a), a federal employee who
does not already receive the highest salary available to an
employee of his or her grade is entitled, under certain
circumstances, to regular increases in pay. An employee
who is denied such an increase based on unacceptable
8 VARNADO v. MSPB
performance may seek reconsideration of the decision,
and if the decision remains unchanged, the employee may
thereafter appeal to the Board. § 5335(c). We have held
that the Board “has no jurisdiction over an appeal from
the withholding of a within-grade increase unless the
employee had sought reconsideration of that action by the
agency in accordance with the agency’s requirements.”
Goines, 258 F.3d at 1292.
But no evidence has been presented to us indicating
that Ms. Varnado was properly informed of how she could
show jurisdiction over her wage-increase claim. Based on
Burgess v. Merit Systems Protection Board, 758 F.2d 641
(Fed. Cir. 1985), the Board routinely remands for further
action by the administrative judge in situations where the
petitioner has not received information regarding how to
establish Board jurisdiction over his or her claim. Id. at
643–44; e.g., Ney v. Dep’t of Commerce, 115 M.S.P.R. 204,
209–10 (2010); Guzman v. Dep’t of Veterans Affairs, 114
M.S.P.R. 566, 572–73 (2010) (“[B]ecause the administra-
tive judge never informed the appellant of his burden and
elements of proof for establishing such a claim, we must
remand the appeal so that the appellant might receive
such notice.”). On the record before us, we find it appro-
priate to remand this matter to the Board, particularly in
light of Ms. Varnado’s pro se status. See Siman v. Dep’t of
Air Force, 80 M.S.P.R. 306, 310–11 (1998); Boughton v.
Dep’t of Agr., 94 M.S.P.R. 347, 350 (2003).
We draw no conclusions about whether Ms. Varnado
was actually notified about how to establish jurisdiction,
about the issue of whether a reconsideration request was
made, denied, or ignored, or about whether Ms. Varnado
timely presented the wage-increase claim. We note that
Ms. Varnado states that she sought reconsideration and
at least implies that it was denied. Pet’r’s Br. at 18. She
also has submitted certain allegedly relevant documents.
E.g., Pet’r’s App. at Ex. 1 and Ex. 28. Moreover, even if
she did not receive a reconsideration decision, the Board
VARNADO v. MSPB 9
has elsewhere indicated that jurisdiction may rest on an
unreasonable refusal to act on a request for reconsidera-
tion. Jack v. Dep’t of Commerce, 77 M.S.P.R. 332, 335
(2005). The government has not addressed Ms. Varnado’s
wage-increase claim in its brief in this court. Therefore,
we think it appropriate to remand this claim to the Board.
C. Remaining Claims
Ms. Varnado challenges the agency’s provision of neg-
ative references to other employers. Pet’r’s Br. at 4–6, 13,
21– 24, 38–40. She does so on various grounds, such as
alleged violation of agency policies. But the Board proper-
ly rejected Ms. Varnado’s claims as beyond the Board’s
jurisdiction because the negative references themselves
are not appealable, and there is no basis for treating the
references as contributing to an appealable (and ap-
pealed) adverse action that is within the Board’s jurisdic-
tion, such as removal. R.A. 16 (citing Shifflett v. Dep't of
Navy, 83 M.S.P.R. 472, 474–75 (1999); Davis v. Dep’t of
Defense, 105 M.S.P.R. 604, 611 (2007)); see Saunders v.
Merit Sys. Prot. Bd., 757 F.2d 1288, 1290 (Fed. Cir. 1985)
(“Section 2302(b) [defining prohibited personnel actions]
is not an independent source of appellate jurisdiction and
does not itself authorize an appeal.”). 2
This conclusion applies to Ms. Varnado’s various for-
mulations: defamation, Pet’r’s Br. at 38–40; tortious
2 In certain circumstances, such as “when the ap-
pellant claims retaliation for whistleblowing in violation
of 5 U.S.C. § 2302(b)(8),” Davis, 105 M.S.P.R. at 611, the
appellant may “seek corrective action from the Merit
Systems Protection Board,” 5 U.S.C. § 1221(a). Although,
in her brief to us, Ms. Varnado states that the negative
references were made in retaliation for whistleblowing,
see Pet’r’s Br. at 5, we see no evidence of such claims in
her initial filing to the Board. See R.A. 21–30.
10 VARNADO v. MSPB
interference with her Florida-agency employment con-
tract, id. at 49; violation of the Privacy Act (citing 5
U.S.C. § 552), Pet’r’s Br. at 41. The Board lacks jurisdic-
tion over any such claims. See 5 C.F.R. § 1201.3 (outlin-
ing the Board’s appellate jurisdiction); see also Cook v.
Merit Sys. Prot. Bd., 70 F.3d 1289, at *1 (Fed. Cir. 1995)
(unpublished table decision) (“The Board does not have
jurisdiction over actions involving state agencies or tort
claims.”). The same is true of Ms. Varnado’s apparent
challenge to the absence of the DEA Director’s signature
on her Standard Form 50. R.A. 16.
The Board dismissed Ms. Varnado’s claim that the
agency violated the National Labor Relations Act, deter-
mined that no negative suitability determination oc-
curred, and did not independently address Ms. Varnado’s
apparent appeal of a failure to reinstate her to employ-
ment (if this is different from her appeal of her removal).
Ms. Varnado addresses none of these issues on appeal.
CONCLUSION
For the foregoing reasons, we vacate the Board’s deci-
sion dismissing Ms. Varnado’s appeal of the denial of a
within-grade pay increase and remand on that issue. We
affirm the Board’s dismissal in all other respects.
No costs.
AFFIRMED IN PART, VACATED AND REMANDED
IN PART