                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     KENNETH L. GRAY,                                DOCKET NUMBER
                  Appellant,                         DE-0752-14-0450-I-1

                  v.

     DEPARTMENT OF THE INTERIOR,                     DATE: September 22, 2015
                 Agency.



               THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Kenneth L. Gray, Sandy, Utah, pro se.

           Grant L. Vaughn, Esquire, Salt Lake City, Utah, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his involuntary resignation appeal for lack of jurisdiction.        For the
     reasons set forth below, we GRANT the appellant’s petition for review, VACATE
     the initial decision, and instead find that the appeal is barred by the doctrine of
     laches.

     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                            2

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2         On March 3, 1974, the agency appointed the appellant to a temporary
     position as a Sociologist, GS-0184-07, with a not-to-exceed date of July 3, 1974.
     Initial Appeal File (IAF), Tab 12 at 112.        Effective July 7, 1974, the agency
     placed the appellant in a career-conditional appointment in the competitive
     service as a Sociologist, GS-0184-09. 2 Id. at 100. The appointment Standard
     Form 50 (SF-50), dated July 5, 1974, indicated that the appellant was subject to a
     1-year probationary period commencing March 7, 1974.              Id.   On January 22,
     1975, the agency issued a corrected SF-50 indicating that the appellant’s
     probationary period began on July 7, 1974, instead of March 7, 1974. Id. at 94.
     Effective May 30, 1975, the appellant resigned. Id. at 73-74, 76. The SF-50
     documenting the resignation indicated that he resigned during his probationary
     period due to “policy disagreements.” Id. at 76.
¶3         On July 10, 2014, the Denver Field Office received the appellant’s
     involuntary resignation appeal and request for a hearing. IAF, Tab 1. On appeal,
     the appellant alleged that, in 1975, his supervisor forced him to resign or to face
     termination. IAF, Tab 1 at 7. He further alleged that his supervisor falsified an
     SF-50 to reflect that he had not completed his probationary period and falsely
     informed him that he had no appeal rights. Id. at 7-9. He also appeared to argue
     that the agency violated the appeal rights notice requirements of 5 C.F.R.
     § 1201.21 to prevent him from filing a timely appeal. 3                 Id. at 3.   The
     administrative judge advised the appellant of his burden of proof to establish

     2
       The Standard Form 50 documenting the appellant’s career-conditional appointment
     lists the occupational series as GS-01840. IAF, Tab 12 at 100. Because the
     occupational series for a sociologist is 0184, the extra 0 at the end of the digits is
     presumably a typographical error.
     3
       When the appellant resigned, 5 C.F.R. § 1201.21 was not yet in effect. Rather,
     5 C.F.R. § 752.202(f) (1975) provided that, where an employee was subject to a covered
     adverse action, the decision notice must inform the employee, inter alia, of his right to
     appeal to the appropriate office of the Civil Service Commission, of the time limit for
     appealing, and where he may obtain information on how to pursue an appeal.
                                                                                             3

     Board jurisdiction over an alleged involuntary resignation, issued orders on
     timeliness and the doctrine of laches, and afforded the parties an opportunity to
     respond.    IAF, Tabs 2-3, 14.          Without holding the requested hearing, the
     administrative judge dismissed the appeal for lack of jurisdiction, finding that,
     under the regulations of the U.S. Civil Service Commission 4 pertaining to the
     termination of employees in 1975, the appellant was not a “covered employee”
     with appeal rights because: (1) on the date of his resignation, he was still serving
     a 1-year probationary period under 5 C.F.R. § 315.801 (1975); and (2) he had not
     completed    1   year   of   “current    continuous    employment”      under   5 C.F.R.
     § 752.201(a)(1)(i) (1975) as there was a 3-day break in service prior to his July 7,
     1974 career-conditional competitive service appointment. IAF, Tab 17, Initial
     Decision (ID).
¶4         The appellant has filed a timely petition for review, wherein he argues that
     the administrative judge erred by finding that he was not a “covered employee” in
     1975. Petition for Review (PFR) File, Tab 1 at 1-9. The agency has filed a
     response in opposition to the appellant’s petition for review, 5 and the appellant
     has filed a reply to the agency’s opposition. PFR File, Tabs 3, 5.

     The appellant was a “covered employee” with appeal rights to the Civil Service
     Commission when he resigned in May 1975 because he completed his
     probationary period as of March 6, 1975.
¶5         On review, the appellant argues that the administrative judge erred by
     finding that he was not a “covered employee” in 1975 because he had completed

     4
       The Civil Service Commission was, in the context of employee appeals from a
     termination, the predecessor agency to the Board. See Daisy v. U.S. Postal Service,
     68 M.S.P.R. 15, 17 (1995).
     5
       Although the agency styled its submission as a “cross petition for review,” we treat it
     as a response to the appellant’s petition for review because the agency does not
     challenge the initial decision. See PFR File, Tab 3. The agency asserts that it “has no
     interest in challenging [the administrative judge’s] findings and ruling,” but that “there
     are other sound bases to dismiss the appeal”; specifically, the doctrine of laches, the
     presumption that the appellant’s resignation was voluntary, and/or the “doctrine of
     absurdity.” Id.
                                                                                        4

     his probationary period by the time of his resignation, and he did not have a break
     in service between his temporary and career-conditional appointments. PFR File,
     Tab 1 at 1-9. The agency does not address this argument in its response to the
     appellant’s petition for review. See PFR File, Tab 3.
¶6        Under the regulations in place when the appellant resigned, prior service
     under a temporary limited appointment could count toward completion of an
     individual’s probationary period if it was: (1) rendered immediately prior to the
     career or career-conditional appointment or conversion; (2) in the same line of
     work; (3) in the same agency; and (4) with no more than one break in service of
     less than 30 days. 6 See Long v. Department of the Navy, 32 M.S.P.R. 438, 441
     (1987) (relying on Federal Personnel Manual, chapter 315, Appendix A-3(c)
     (Apr. 27, 1982)); Angell v. Department of the Navy, 4 M.S.P.R. 266, 267-68
     (1980).   Here, the appellant was appointed to a temporary position as a
     Sociologist from March 3, 1974, to July 3, 1974. IAF, Tab 12 at 112. Effective
     July 7, 1974, the agency placed the appellant in a career-conditional appointment
     in the competitive service as a Sociologist. Id. at 100. Thus, the appellant’s
     service in the temporary appointment should have been counted towards the
     completion of his probationary period because it was rendered immediately
     preceding the career-conditional appointment, in the same line of work, with the
     same agency, and only 3 days elapsed between the end of the temporary
     appointment and the beginning of the career-conditional appointment. As such,
     we find that the appellant completed his probationary period on or about March
     6, 1975, and that, when he resigned, effective May 30, 1975, he was an
     “employee” under 5 C.F.R. § 752.202(a)(1)(i) (1975) with adverse action appeal
     rights to the Civil Service Commission.


     6
       The appellant provided a printout of chapter S-2 of the July 29, 1960 Federal
     Personnel Manual (FPM), which sets forth the same criteria for determining when prior
     service may be counted towards completion of an employee’s probationary period. See
     PFR File, Tab 1 at 17-19.
                                                                                        5

¶7         Although the administrative judge incorrectly found that the appellant was
     not a “covered employee” at the time of his alleged involuntary resignation, we
     find that the appeal is barred by the doctrine of laches for the reasons set forth
     below.

     The appellant’s appeal is barred by the doctrine of laches.
¶8         The equitable defense of laches bars an appeal when an unreasonable delay
     in bringing the appeal has prejudiced the agency. See Pueschel v. Department of
     Transportation, 113 M.S.P.R. 422, ¶ 6 (2010). The party asserting laches must
     prove both unreasonable delay and prejudice. Id. Under laches, the mere fact
     that time has elapsed from the date a cause of action first accrued is not sufficient
     to bar suit; rather, the delay must be unreasonable and unexcused. Cornetta v.
     United States, 851 F.2d 1372, 1377-78 (Fed. Cir. 1988). As to prejudice, there
     are two types that may stem from delay in filing suit. First, “evidentiary” or
     “defense” prejudice may arise by reason of a defendant’s inability to present a
     full and fair defense on the merits due to the loss of records, the death of a
     witness, or the unreliability of memories of long past events, thereby undermining
     the Board’s ability to judge the facts. See A.C. Aukerman Co. v. R.L. Chaides
     Construction Co., 960 F.2d 1020, 1033 (Fed. Cir. 1992).           The second type,
     economic prejudice, centers on consequences, primarily monetary, to the
     government should the claimant prevail. Cornetta, 851 F.2d at 1378.
¶9         In this case, the agency argues that the appellant’s 40-year delay is
     unreasonable on its face and that he had access to his employment records when
     he separated in 1975 or, at the latest, in August 1979, when he received a
     transcript/statement of his Federal employment from the National Personnel
     Records Center (NPRC). PFR File, Tab 3 at 5; see IAF, Tab 12 at 62-66. Thus,
     the agency concludes, the appellant could have discovered the alleged error he is
     now appealing decades later. PFR File, Tab 3 at 5. Further, the agency argues
     that it has been “seriously prejudiced” by the appellant’s delay, due to the
     unavailability of witnesses and the loss of potentially relevant documents after
                                                                                        6

      four decades. Id. at 5-6. The appellant counters that laches does not bar this
      appeal because the agency is responsible for the delay and there is no prejudice to
      the agency because the available documents—namely, the appointment and
      resignation SF-50s—are sufficient to prove that the appellant was denied his
      constitutional right to due process.     PFR File, Tab 5 at 9-12, 16, 18.       The
      appellant also refutes the agency’s contention that, as of 1979, he had all of the
      documentation necessary to make the arguments he now makes because the
      employment transcript shows only the appellant’s dates of employment and does
      not contain any details about his probationary status. Id. at 7.
¶10         Contrary to the appellant’s assertion, the SF-50 showing that he still was
      serving in his probationary period at the time of his resignation does not establish
      a due process violation. First, an SF-50 is merely a record of a personnel action
      usually generated after the action has been taken. See Scott v. Department of the
      Air Force, 113 M.S.P.R. 434, ¶ 8 (2010). The fact that it contains a mistake does
      not tend to show, much less establish, that the agency violated the appellant’s due
      process rights. See id. Moreover, even if the resignation SF-50 had correctly
      reflected that he had completed his probationary period, and the agency otherwise
      treated him as a “covered employee,” he would not have been entitled to the
      regulatory notice procedures or to appeal his resignation to the Civil Service
      Commission because a resignation is not a covered adverse action. See 5 C.F.R.
      §§ 752.201(b), 752.202-752.203 (1975).       Rather, an employee-initiated action,
      such as a resignation, is presumed to be voluntary, and thus not a covered adverse
      action, unless the employee presents sufficient evidence to establish that the
      action was obtained through duress or coercion or to show that a reasonable
      person would have been misled by the agency.             Searcy v. Department of
      Commerce, 114 M.S.P.R. 281, ¶ 12 (2010).           Accordingly, to show that the
      appellant’s due process rights to notice and an appeal were violated, he must first
      show that the agency’s actions vitiated the voluntariness of his choice. See id. A
      ministerial error on an SF-50 does not meet this burden.
                                                                                           7

¶11         Rather, the touchstone of the voluntariness analysis is whether, considering
      the   totality of   the   circumstances,   factors    operated   on   the   employee’s
      decision-making process that deprived him of freedom of choice.              Id.   The
      appellant has alleged that his resignation was involuntary because, in 1975, his
      supervisor told him that he was hiring a replacement and that the appellant could
      “resign immediately or be fired for no cause with no appeal rights.” IAF, Tab 4
      at 1-2. Although he purportedly told his supervisor that he did not want to resign
      or be fired, the appellant alleged that his supervisor “forced” him to resign. Id. at
      2. He further alleged that his resignation was involuntary because the agency
      “imposed the terms of the resignation,” he had “no realistic alternative but to
      resign,” and “[t]he Agency’s falsification of [his] probationary status had the
      intended effect to force [him] to quit.” Id. at 4. The agency, however, responds
      that it cannot defend itself against these allegations because there is “no one”
      presently at the agency who has “any knowledge” of the appellant’s former
      employment, and, even if the agency could find a former supervisor or personnel
      specialist who was present at the agency during the appellant’s employment, there
      is no reasonable assurance that the individual would be able to remember any of
      the relevant details from 40 years ago. PFR File, Tab 3 at 6. Further, the agency
      asserts that, due to the 40-year delay, it is unable to determine whether there were
      any relevant records that may have since been destroyed, such as notes written by
      the former supervisor or personnel specialists. Id.
¶12         We find that the 40-year delay is unreasonable and has materially
      prejudiced the agency.        Given the significant passage of time and the
      unavailability of witnesses and relevant documents, the agency is unable to
      defend itself against the appellant’s allegations that his former supervisor’s
      actions rendered his resignation involuntary.          See Johnson v. U.S. Postal
      Service, 121 M.S.P.R. 101, ¶ 9 (2014) (citing Brown v. Department of the Air
      Force, 88 M.S.P.R. 22, ¶¶ 8-9 (2001) (the loss of documents, retirement of
      witnesses, and faded recollections established that the agency suffered prejudice
                                                                                  8

due to the appellant’s 6-year delay)).     We agree with the appellant that the
transcript of Federal employment does not contain the same information as the
SF-50s about his probationary status, but we find that it does show that he had the
ability to request his personnel records from the NPRC and could have requested
his complete personnel file at any time over the past 40 years, as he did in 2014.
Although the incorrect information on the SF-50 (and, if true, any misinformation
given by the former supervisor) rendered the appellant’s ability to exercise his
appeal rights more difficult, his 40-year delay is unreasonable and inexcusable,
especially in light of the overwhelming prejudice to the agency, which has no way
to defend itself against the appellant’s allegations. Thus, we find that this appeal
is barred by the doctrine of laches.

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
                                                                                         9

Dec. 27, 2012). You may read this law as well as other sections of the United
States     Code,   at   our      website,    http://www.mspb.gov/appeals/uscode.htm.
Additional         information         is          available      at    the         court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11.
      If you are interested in securing pro bono representation for your appeal to
the Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono            for     information   regarding   pro     bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit.    The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.




FOR THE BOARD:                                    ______________________________
                                                  William D. Spencer
                                                  Clerk of the Board
Washington, D.C.
