Gandia v. USPS , 556 F. App'x 945 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERTO A. GANDIA,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
______________________
2013-3162
______________________
Petition for review of the Merit Systems Protection
Board in No. SF0752120185-I-1.
______________________
Decided: February 7, 2014
______________________
ROBERTO A. GANDIA, of Marina, California, pro se.
BENJAMIN MARK MOSS, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were STUART F. DELERY, Assistant Attor-
ney General, BRYANT G. SNEE, Acting Director, and
CLAUDIA BURKE, Assistant Director. Of counsel on the
brief was MICHELLE A. WINDMUELLER, Attorney, United
States Postal Service, of Washington, DC.
______________________
2 GANDIA v. USPS
Before PROST, REYNA, and CHEN, Circuit Judges.
PER CURIAM.
Roberto A. Gandia appeals from an order of the Merit
Systems Protection Board (“Board”) denying his petition
for review of the administrative judge’s affirming Mr.
Gandia’s removal by the United States Postal Service
(“USPS”). Because the administrative judge’s decision
was supported by substantial evidence and the Board’s
review was in accordance with the law, we affirm.
BACKGROUND
After serving in the Air Force, Mr. Gandia joined the
USPS on October 5, 1994. Prior to his removal, Mr.
Gandia worked as a full-time city letter carrier in Seaside,
California. On January 24, 2011, Mr. Gandia admitted to
USPS investigators that he had removed between twenty
and fifty gift cards from standard class undeliverable
mail, having activated some of them for his own personal
use and given cards away to others. Mr. Gandia pled
guilty to one count of an officer or employee of the United
States converting the property of another under 18 U.S.C.
§ 654. Subsequently, the USPS sent Mr. Gandia notice
that he would be removed from employment effective
April 11, 2011. That notice, however, was procedurally
defective.
On May 9, 2011, Mr. Gandia filed an appeal of his
removal, arguing that the notice failed to inform him of
his procedural rights as a veterans’ preference eligible
employee. On June 21, 2011, the Board dismissed the
appeal without prejudice, pending the outcome of the
grievance arbitration process between the USPS and Mr.
Gandia’s union. A settlement in that proceeding resulted
in the cancellation of Mr. Gandia’s removal, and the
USPS agreed to provide status quo ante relief, including
back pay. Accordingly, after the arbitration process
GANDIA v. USPS 3
concluded, Mr. Gandia refiled his appeal, and on October
25, 2011, the administrative judge entered an order
reversing the initial removal. Mr. Gandia remained off
duty and without pay.
On September 27, 2011, the USPS issued another,
now effective, notice of proposed removal, detailing Mr.
Gandia’s conversion of gift cards and consequent violation
of provisions of the Employee and Labor Relations Manu-
al. Mr. Gandia initiated a grievance with his union
regarding the notice of proposed removal on October 7,
2011. On December 5, 2011, the USPS issued a decision
letter indicating that it would be removing Mr. Gandia
effective December 8, 2011. The letter noted that Mr.
Gandia had not provided a written or oral response to the
initial notice of proposed removal.
In addition to filing a grievance with his union, Mr.
Gandia filed two concurrent appeals. First, Mr. Gandia
filed an appeal of his removal with the Board on Decem-
ber 22, 2011. A hearing was held on June 26, 2012.
Subsequent to the hearing, on July 12, 2012, the adminis-
trative judge issued an initial decision affirming the
USPS’s December 5, 2011 removal of Mr. Gandia, finding
that Mr. Gandia had engaged in unacceptable conduct,
there was no harmful procedural error in his removal, and
the penalty was appropriate even in light of his previous
work record and lack of any other disciplinary action. On
August 20, 2012, Mr. Gandia filed a petition for review of
the administrative judge’s decision by the full Board.
Second, on January 4, 2012, Mr. Gandia separately
filed a petition for enforcement with the Board, arguing
that the USPS had failed to meet its obligations under the
settlement of Mr. Gandia’s previous appeal to restore him
to status quo ante. On January 20, 2012, the USPS
provided Mr. Gandia with back pay of at least $20,357.49,
covering the period of April 11, 2011 through December 8,
2011. Following the administrative judge’s initial deci-
4 GANDIA v. USPS
sion rejecting Mr. Gandia’s petition for enforcement, Mr.
Gandia appealed to the full Board, citing the USPS’s
failure to provide back pay prior to his initial removal on
April 11, 2011, in addition to arguing that the USPS
improperly failed to restore him to his previous position.
The Board issued a final order affirming the administra-
tive judge’s decision on September 18, 2012, which was
not appealed.
On June 14, 2013, the Board issued a final order
denying Mr. Gandia’s December 22, 2011 petition for
review of his removal. The Board determined that Mr.
Gandia was estopped from pursuing his argument that
the USPS should have restored him to his position prior
to issuing a new notice of removal, due to the intervening
final order on Mr. Gandia’s petition for enforcement. The
Board further determined that Mr. Gandia failed to raise
any basis for reversing the administrative judge’s consid-
eration of the Douglas factors, as well as that the errors
identified by Mr. Gandia on the face of the notice were
harmless. The Board noted that Mr. Gandia failed to
raise claims of unlawful discrimination or violation of
veterans’ preference rights before the administrative
judge, and thus the Board did not consider his arguments
on those issues. The Board also did not consider Mr.
Gandia’s due process claims, first raised on appeal, in-
cluding his allegation that he was denied the opportunity
to respond to the USPS’s first notice of proposed removal.
One Board member filed a concurrence indicating that
Mr. Gandia’s due process claim should have been consid-
ered by the Board. But, even in the concurrence’s view,
the result would be unchanged because while Mr. Gandia
did not provide a direct response to the notice of proposed
removal, he did file a grievance subsequent to the notice
which indicated that he was in fact given adequate oppor-
tunity to respond.
Mr. Gandia timely appeals the Board’s final order.
We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
GANDIA v. USPS 5
DISCUSSION
Our review of Board decisions is limited by statute.
Pursuant to 5 U.S.C. § 7703(c), we may only reverse a
Board decision if we find the decision to be (1) arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) obtained without procedures
required by law; or (3) unsupported by substantial evi-
dence. Ward v. U.S. Postal Serv., 634 F.3d 1274, 1278
(Fed. Cir. 2011).
We must reverse a decision of the Board if it “is not in
accordance with the requirements of the Due Process
Clause of the Fifth Amendment or any other constitution-
al provision.” Id. As the Board’s concurrence points out,
even though Mr. Gandia may not have raised due process
claims in proceedings below, we may consider them.
Sullivan v. Dep’t of the Navy, 720 F.2d 1266, 1274 n.2
(Fed. Cir. 1983).
Mr. Gandia’s due process claims nonetheless fail on
the merits. First, Mr. Gandia alleges that the USPS had
to first restore him to full employment prior to submitting
its second notice of proposed removal. The USPS did not
need to do so, however, because following the due process
violation arising from the first notice of removal, Mr.
Gandia was only “entitled to a new constitutionally cor-
rect removal procedure.” Stone v. FDIC, 179 F.3d 1368,
1377 (Fed. Cir. 1999). Unlike the first notice, the USPS’s
second notice of proposed removal contained no procedur-
al defects. Second, Mr. Gandia’s claim that he was not
given the opportunity to reply to the notice also fails as
the notice did advise him of the opportunity to reply, and
indeed Mr. Gandia proceeded to file a grievance even
though he did not respond directly.
Mr. Gandia also fails to show that the USPS’s applica-
tion of the Douglas factors in deciding to remove him was
unsupported by substantial evidence. See Douglas v.
Veterans Admin., 5 M.S.P.R. 280, 305-06 (Apr. 10, 1981)
6 GANDIA v. USPS
(including factors such as the nature and seriousness of
the offense, relation to employee’s position, past work
record, and consistency of penalty imposed by the agency).
At Mr. Gandia’s proceeding before the administrative
judge, evidence was presented including witness testimo-
ny that indicated that USPS officials had considered Mr.
Gandia’s work record, the nature of his conduct, his
payment of restitution, and his explanation for why he
thought he could remove gift cards from undeliverable
mail. Considering all these factors, the USPS determined
that the penalty of removal was appropriate, which was
consistent with the Employment and Labor Relations
Manual. The Board considered all of this evidence in
affirming Mr. Gandia’s removal.
Mr. Gandia’s informal briefing does cite to a case in
which the Board reversed the USPS’s decision to remove a
letter carrier who was found to have improperly stored a
large amount of mail in his locker. Robinson v. U.S.
Postal Serv., 28 M.S.P.R. 681 (Aug. 23, 1985). However,
in that case, the Board found that there was no evidence
that the employee had appropriated any of the mail for
his own use and that he suffered from severe arthritis
pain that made it difficult for him to carry mail. Id. at
688. Mr. Gandia’s offense was more severe, in particular
given the USPS’s requirements for the integrity of its
letter carriers. In sum, Mr. Gandia fails to show that the
Board’s determination that the USPS had properly decid-
ed to remove him was not in accordance with the law nor
unsupported by substantial evidence.
Mr. Gandia also does not provide any basis for his ad-
ditional civil rights and veterans’ preference rights
claims. These claims were not properly put before the
Board as they were not raised with the administrative
judge, and there is no record on briefing on these issues.
The Board did not abuse its discretion in declining to
consider them. See Carson v. Dep’t of Energy, 398 F.3d
1369, 1376 (Fed. Cir. 2005).
GANDIA v. USPS 7
Finally, with respect to Mr. Gandia’s claim on appeal
that he was improperly denied back pay prior to April 11,
2011, we note that Mr. Gandia raised this issue as part of
his petition to enforce the Board’s order pursuant to
settlement of his appeal of the first, defective notice of
removal. The Board issued a final decision on Mr. Gan-
dia’s appeal of his petition for enforcement, including the
issue of his back pay, on September 18, 2012. Mr. Gan-
dia’s appeal of that decision is now untimely and will not
be considered, as we do not have the authority to waive a
statutory deadline. See Pinat v. Office of Pers. Mgmt., 931
F.2d 1544, 1546 (Fed. Cir. 1991).
CONCLUSION
For the foregoing reasons, we affirm the Board’s deni-
al of Mr. Gandia’s petition for review of his removal.
AFFIRMED
COSTS
Each party shall bear its own costs.