NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3262
EDMUNDO M. MALIC,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Edmundo M. Malic, of San Diego, California, pro se.
David M. Hibey, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Peter D. Keisler, Acting Attorney General, Jeanne E. Davidson, Director,
and Martin F. Hockey, Jr. , Assistant Director.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3262
EDMUNDO M. MALIC,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
__________________________
DECIDED: October 5, 2007
__________________________
Before SCHALL, Circuit Judge, CLEVENGER, Senior Circuit Judge, and MOORE,
Circuit Judge.
PER CURIAM.
Petitioner Edmundo M. Malic petitions for review of the final decision of the Merit
Systems Protection Board (“Board”) that he had not made nonfrivolous allegations of
the Board’s jurisdiction sufficient to justify a jurisdictional hearing. We vacate and
remand.
I
Edmundo M. Malic is a former correspondence clerk at the Department of
Veterans Affairs (“VA”) in San Diego. On January 20, 2004, he was charged with
violating the VA’s standards for employee conduct. In particular, Mr. Malic was charged
with (1) “inappropriate behavior” for speaking to his superior in “a belligerent, loud tone,”
and (2) “failure to follow instructions” for being ten minutes late to his post. The VA
initially proposed to terminate Mr. Malic’s employment, but later decided to enter into a
“Last Chance Agreement” (“LCA”) with Mr. Malic. The LCA provided, inter alia, that the
VA would hold the effective date of Mr. Malic’s termination in abeyance for two years,
and if, after two years, Mr. Malic had “satisfactorily complied with each and every term
of [the LCA],” the VA would rescind his termination entirely. Mr. Malic also agreed that
he would not appeal the VA’s decision to enforce his termination in the event that he
breached the LCA before the expiration of the two-year period.
The LCA did not spell out the nature of Mr. Malic’s alleged previous
“inappropriate behavior” or of his alleged previous “failure to follow instructions.” Nor
did the LCA refer to the VA’s Memorandum 05-01 on Employee Conduct, which set the
standards for behavior and performance and which Mr. Malic had allegedly breached.
Indeed, the LCA on its face identifies no particular behavior that would lead to
Mr. Malic's automatic, unappealable removal. Mr. Malic’s only obligation under the LCA
was to comply with “each and every term of this Agreement.”
By a letter of January 24, 2006, Mr. Malic was again accused of (1) speaking
belligerently and loudly to a coworker, and (2) being absent without leave for thirty
minutes at the end of his shift. As to the first accusation, the VA alleged that Mr. Malic
raised his voice to a coworker, saying, “you are making too many copies and you’re
bullshitting me,” and calling the coworker “a liar.” The VA informed Mr. Malic that this
alleged behavior violated the LCA, and therefore, that he would be removed from his
employment with the VA as of February 3, 2006. Mr. Malic denied that either
accusation was true and subsequently appealed his removal to the Board. The VA
2007-3262 2
moved to dismiss Mr. Malic’s appeal for lack of jurisdiction based on his agreement not
to challenge his removal under the LCA. An Administrative Judge (“AJ”) assigned to the
case issued an order to show cause directing Mr. Malic to make nonfrivolous allegations
in support of the Board’s jurisdiction.
Mr. Malic timely responded to the AJ’s order with a letter dated December 29,
2006, in which he explained his side of the story:
On November 29, 2005, the dialogue between [the coworker] and me was
short and brief. I used the word “bullshit” and “lying” only once, in [this]
context: “you are telling me a bullshit story” and “now you are lying” and I
said these in a regular tone of voice. I have a hearing problem (disability,
tinnitus) which causes the volume of my voice to constantly adjust to the
noise around me (we were next to a copy machine, very noisy). [The
coworker] did not welcome my comments due to the volume of my voice.
A few minutes after that dialogue I tried to talk to [the coworker], he
refused. On his report he stated that I bombarded him with derogatory
words during our short dialogue, [this] is untrue.
In the same letter, Mr. Malic also asserted that he was not, in fact, absent without leave.
The AJ acknowledged Mr. Malic’s letter, but deemed his explanation of the
incident insufficient:
I find that the appellant admits speaking to a co-worker in a way that was
at least discourteous, and very likely to provoke conflict. I find further that
this can reasonably be interpreted as a failure “to conform [his] conduct to
the agency’s standards” within the meaning of the LCA. . . . The
appellant therefore failed to make non-frivolous allegations showing that
he complied with the LCA, or to raise any disputed issue of fact material to
this issue, that would require a hearing.
Based on his evaluation of Mr. Malic’s explanation of the incident with the coworker, the
AJ further concluded that he need not address Mr. Malic’s contention that he was not
guilty of being absent without leave. Accordingly, the VA’s motion to dismiss was
granted. The AJ’s decision became final, and Mr. Malic now appeals to this court. We
have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9).
2007-3262 3
II
“Whether the Board has jurisdiction is a question of law that we review de novo.”
Pittman v. Dep’t of Justice,
486 F.3d 1276, 1279 (Fed. Cir. 2007). In this case, the AJ
determined that Mr. Malic was not entitled to a jurisdictional hearing to resolve disputed
issues of material fact because Mr. Malic had not, in the AJ’s opinion, made sufficient
nonfrivolous allegations in support of the Board’s jurisdiction. We disagree. The clear
import of Mr. Malic’s letter in response to the show cause order was that he did not act
belligerently and that there was a medical explanation for the fact that his voice may
have appeared raised. To be sure, Mr. Malic used arguably “discourteous” language.
However, it is not evident from the face of the LCA—which is hardly the model of due
process notice—that Mr. Malic’s use of discourteous language would violate one of
these undefined “terms” of the agreement. At best, the LCA merely implies that
Mr. Malic was prohibited from repeating the same or similar behavior that led to the
removal action in the first place. And since Mr. Malic clearly stated in his letter that he
did not act belligerently or intentionally raise his voice to a coworker, he has made a
sufficient nonfrivolous allegation in support of the Board’s jurisdiction. As such, he was
entitled to a hearing.
III
For the reasons stated, we vacate and remand.
COSTS
No costs.
2007-3262 4
