Yeressian v. Department of the Army , 534 F. App'x 965 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOHN YERESSIAN,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
______________________
2013-3080
______________________
Petition for review of the Merit Systems Protection
Board in No. SF0752090049-C-2.
______________________
Decided: August 16, 2013
______________________
JOHN YERESSIAN, of Pasadena, California, pro se.
SCOTT R. DAMELIN, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director and
STEVEN J. GILLINGHAM, Assistant Director. Of counsel
was LARRY F. ESTRADA, Assistant District Counsel, United
States Army Corps of Engineers, of Los Angeles, Califor-
nia.
______________________
2 YERESSIAN v. ARMY
Before RADER, Chief Judge, PROST, and TARANTO, Cir-
cuit Judges.
PER CURIAM.
The Merit Systems Protection Board denied Mr. John
Yeressian’s petition for enforcement of a prior ruling
related to his removal from the Department of the Army
(Army). Because Mr. Yeressian raises new arguments on
appeal to this court, and because the Board’s decision is
otherwise in accordance with law and supported by sub-
stantial evidence, this court affirms.
I.
This appeal is related to Yeressian v. Dep’t of the Ar-
my, No. 2013-3079. As described in that opinion, Mr.
Yeressian was hired by the Army on November 15, 2004
pursuant to the Student Temporary Employment Pro-
gram. On October 2, 2005, he entered the Student Career
Experience Program (SCEP) as a student trainee in the
Army’s administration and support division. On April 13,
2008, Mr. Yeressian accepted a transfer to a different
SCEP position as a student trainee in the Army’s realty
division. Unbeknownst to Mr. Yeressian, transferring
from the administration and support division to the realty
division required him to forfeit his appeal rights in the
event that he was terminated. On October 17, 2008, Mr.
Yeressian was terminated for poor performance, and he
appealed his termination to the Board.
An Administrative Judge dismissed the case because
Mr. Yeressian had relinquished his appeal rights. Mr.
Yeressian appealed the dismissal to the full Board. The
Board determined that the Army should have informed
Mr. Yeressian that he would forfeit his appeal rights if he
accepted the SCEP realty position. Thus, the Board
remanded the case for the AJ to consider whether Mr.
Yeressian would have accepted the position had he known
that fact.
YERESSIAN v. ARMY 3
On remand, the AJ determined that Mr. Yeressian
would not have accepted the realty position. On January
21, 2010, the AJ ordered the Army “to cancel [Mr.
Yeressian’s] removal and to retroactively restore [Mr.
Yeressian] effective October 17, 2008.” App. at 46. The
AJ also ordered the Army to pay Mr. Yeressian back pay.
Neither party appealed this decision, and it became final.
Soon after, the Army informed Mr. Yeressian that,
pursuant to the January 21, 2010 order, he was being
restored to his SCEP realty position. The Army instruct-
ed him to report for duty on June 7, 2010. Mr. Yeressian
did not report for work, but instead, on July 31, 2010, sent
a resignation letter to the Army stating, “Please consider
this a formal and official notice [of resignation] . . . effec-
tive June 7, 2010.” App. at 50–51.
Meanwhile, Mr. Yeressian filed a petition for en-
forcement alleging that the Army was in noncompliance
with the January 21, 2010 order. Mr. Yeressian alleged,
inter alia, that he should have been restored to a higher
position than his SCEP realty position because he had
completed certain requirements for advancement prior to
his termination. Mr. Yeressian also alleged that the
Army failed to provide him back pay.
On April 26, 2012, the AJ denied Mr. Yeressian’s peti-
tion for enforcement. The AJ drew “inferences adverse to
[Mr. Yeressian] in making certain findings” due to litiga-
tion misconduct. The misconduct included twice failing to
appear at a deposition and refusing to comply with dis-
covery requests, even after the AJ granted the Army’s
motion to compel and issued a stern warning to Mr.
Yeressian. App. at 30. The AJ also noted Mr. Yeressian’s
odd behavior throughout the case, including leaving
“numerous, lengthy telephone voicemail messages at my
office, at one point five or six [times] a day” and also
immediately hanging up the phone if the AJ answered.
App. at 25.
4 YERESSIAN v. ARMY
The AJ concluded that the Army reasonably complied
with the January 21, 2010 order by offering to restore Mr.
Yeressian to his SCEP realty position, which the AJ found
to be the status quo ante prior to his termination. The AJ
rejected Mr. Yeressian’s argument that he was entitled to
a higher position, finding that Mr. Yeressian lacked a
number of qualifications and recognizing that promotion
was a matter of discretion committed to the Army.
In regard to back pay, the AJ found that the Army
made reasonable efforts to deliver Mr. Yeressian his back
pay check and itemized accounting. For example, on July
30, 2010, the Army mailed Mr. Yeressian a check with an
itemized accounting to Mr. Yeressian’s address of record.
This address was confirmed by Mr. Yeressian in an Order
Regarding Service of Submissions; however, the check
was returned to the Army as unclaimed. On September 3,
2010, the Army re-sent the check, via U.S. Certified Mail,
to an alternate address Mr. Yeressian provided to the
Army. This check was also returned as unclaimed. In a
final attempt, the Army sent forms to Mr. Yeressian and
his former legal representative with instructions on how
to claim the check. To date, Mr. Yeressian has not at-
tempted to do so.
The AJ found that Mr. Yeressian was receiving the
Army’s mail and reading its contents, but was returning
the mail as unclaimed. For instance, the AJ noted that
the Army sent a “notice to return to work” to Mr. Yeressi-
an’s address of record that was returned as unclaimed;
but soon after, Mr. Yeressian sent a letter to the Board
responding to the substance of that letter. App. at 35. In
light of the above, the AJ concluded that the Army rea-
sonably complied with the January 21, 2010 order and
denied Mr. Yeressian’s petition for enforcement.
Mr. Yeressian appealed the AJ’s decision to the full
Board, alleging that the AJ (1) failed to inform Mr.
Yeressian of his burden of proof to establish the Army’s
noncompliance of the January 21, 2010 order; (2) improp-
erly denied his request for a hearing; (3) improperly drew
YERESSIAN v. ARMY 5
adverse inferences against him; and (4) failed to properly
analyze which position Mr. Yeressian should be restored
to. Mr. Yeressian also challenged the agency’s back pay
calculation and alleged that the AJ was biased. The
Board rejected each of Mr. Yeressian’s claims, and Mr.
Yeressian appeals part of that decision to this court. This
court has jurisdiction under 5 U.S.C. § 7703.
II.
This court “must affirm the Board’s decision unless it
is arbitrary, capricious, an abuse of discretion or other-
wise not in accordance with law, obtained without proce-
dures required by rule, law, or regulation, or unsupported
by substantial evidence.” Addison v. Dep’t of Health and
Human Servs., 945 F.2d 1184, 1186 (Fed. Cir. 1991); see
also 5 U.S.C. § 7703(c).
Mr. Yeressian argues that the Board erred in denying
his petition for enforcement because (1) the Army should
have restored him to the SCEP position in the admin-
istration and support division—the position he held prior
to accepting the transfer to the realty division; and (2) the
Army has not provided him any back pay.
As a threshold matter, however, Mr. Yeressian waived
his first argument. Mr. Yeressian did not argue to the AJ
or the Board that he should be restored to his SCEP
position in the Army’s administration and support divi-
sion. Rather, he argued that the status quo ante was to
restore him to a higher position within the Army’s realty
division—one that he was not entitled to or qualified for.
He cannot now argue for the first time on appeal to this
court that he should be restored to a different position.
Sargent v. Dep’t of Health & Human Servs., 229 F.3d
1088, 1091 (Fed. Cir. 2000) (“Our precedent clearly estab-
lishes the impropriety of seeking a reversal of the
[B]oard’s decision on the basis of assertions never pre-
sented to the presiding official or to the [B]oard.”).
With respect to Mr. Yeressian’s argument that he has
not received back pay, Mr. Yeressian does not dispute
6 YERESSIAN v. ARMY
that the Army made multiple attempts to deliver his back
pay check and itemized accounting to him. These efforts
included mailing the check via certified mail to the ad-
dresses confirmed by Mr. Yeressian, as well as mailing
forms to Mr. Yeressian and his legal representative with
instructions on how to claim the check. Furthermore, the
AJ’s finding that Mr. Yeressian was reading the Army’s
mail but returning them as unclaimed is supported by
substantial evidence. Therefore, this court agrees with
the Board that the Army reasonably complied with the
January 21, 2010 order and affirms the Board’s denial of
Mr. Yeressian’s petition of enforcement.
Mr. Yeressian’s remaining arguments have been care-
fully considered and found unpersuasive. The decision of
the Board is affirmed.
AFFIRMED