Petition for review of the Merit Systems Protection Board in consolidated case nos. DC0752080188-C-1 and DC0752080188-I-1.
The opinion of the court was delivered by: Michel, Chief Judge.
Before MICHEL, Chief Judge, PLAGER, and LINN, Circuit Judges.
William Armstrong filed an untimely petition for review with the Merit Systems Protection Board (MSPB), seeking review of the Administrative Judge's (AJ's) decision dismissing his case under a settlement agreement. The MSPB declined to decide Armstrong's petition for review, finding that, because Armstrong's new evidence of fraud in the procurement of the agreement was insufficient to render the agreement invalid, it would not excuse the untimeliness of his petition. Because the MSPB improperly conflated the issue of timeliness with the ultimate decision on the merits of Armstrong's claim, we vacate the MSPB's decision on the petition for review, and we remand for further proceedings to determine whether the MSPB should waive its timeliness requirement to permit Armstrong's case to be decided on the merits.
The MSPB also held that Armstrong abandoned any appeal from the AJ's separate decision that Armstrong's employing agency, the Treasury Inspector General for Tax Administration (TIGTA), had not breached the settlement agreement. Because we agree with the MSPB that Armstrong abandoned the appeal of that decision, we affirm the MSPB with respect to its compliance decision.
William Armstrong served as a GS-14 criminal investigator for the Treasury Inspector General for Tax Administration (TIGTA). In October 2006, TIGTA began investigating him for unlawfully accessing computer databases. On September 4, 2007, TIGTA proposed Armstrong's removal, and TIGTA decided on December 4, 2007, to remove Armstrong effective December 11, 2007. Armstrong v. Geithner, 610 F. Supp. 2d 66, 68 (D.D.C. 2009).
During the investigation and the disciplinary proceedings regarding his position with TIGTA, Armstrong sought other employment with the government. On August 20, 2007, the Department of Agriculture (USDA) sent Armstrong a letter confirming its offer of a GS-14 criminal investigator position, with a start date of September 2, 2007. Shortly after USDA sent the August 20 letter, the USDA received six anonymous letters accusing Armstrong of serious misconduct. Armstrong alleged that these letters were written by various employees of TIGTA. Apparently in response to these letters, the USDA placed a hold on its job offer to Armstrong. On January 2, 2008, USDA requested information from TIGTA regarding the status of Armstrong's disciplinary matter.
Armstrong appealed his December 4 removal to the MSPB, and the case was settled on February 7, 2008. The settlement agreement substituted a thirty-day suspension for the removal, required TIGTA to generate a new SF-50 documenting the suspension and the charges supporting it, required TIGTA to remove from Armstrong's record any documentation concerning the rescinded removal, prohibited TIGTA from giving the USDA any information about the rescinded removal, required employment inquiries about Armstrong to be routed through a particular office, and limited TIGTA's response to any employment inquiries about Armstrong to Armstrong's dates of employment, grades, salary information, and classification series. The settlement agreement did not prohibit TIGTA from responding fully and truthfully to inquiries in suitability or security clearance background investigations. As part of the settlement, TIGTA and Armstrong negotiated TIGTA's response to the January 2 USDA request for information about the disciplinary action against Armstrong, specifying that TIGTA would tell USDA only that Armstrong had been suspended from duty and pay for thirty days and had remained on the rolls in the position of assistant special agent in charge. The AJ entered the parties' settlement agreement into the record and dismissed the case due to settlement on February 19, 2008.
At the same time that Armstrong's initial MSPB appeal was pending, Armstrong also was suing TIGTA in the U.S. District Court for the District of Columbia, alleging that TIGTA had violated the Privacy Act and that individual TIGTA officials had defamed him when the anonymous letters were sent to USDA. On March 18, 2008, TIGTA filed its initial disclosures in that suit. Armstrong believed the initial disclosures violated the MSPB settlement agreement, because they contained statements about what TIGTA's witnesses would say at trial about why Armstrong was originally removed from his position. In the course of discovery during the Privacy Act litigation, TIGTA turned over to Armstrong some reports prepared by TIGTA investigators. Armstrong claims that these reports showed that TIGTA's investigators met with Kathy Horsley, the USDA hiring official, in or around August and September 2007, twice in December 2007, and once in January 2008.
Armstrong believes that the failure of TIGTA to disclose to Armstrong these contacts between TIGTA and USDA, together with TIGTA's February 2008 representation that TIGTA had had no contact in 2008 with USDA, constitutes fraud by TIGTA. Thus, he believes that the settlement agreement in his initial MSPB appeal was obtained through fraud and should not be enforced, and his original MSPB complaint should be reinstated. On May 28, 2008, Armstrong filed a pleading with the MSPB to this effect. In the alternative, Armstrong sought a holding that TIGTA had breached the settlement agreement by allowing or instructing its investigators to speak to Ms. Horsley in August 2007, September 2007, December 2007, and January 2008.
The AJ treated the May 28 filing as a petition for enforcement of the settlement agreement. She noted that there were two avenues for reviewing a settlement agreement. First, if Armstrong wished to argue that the agreement was invalid because it was obtained by fraud or coercion or was entered into through mutual mistake, that argument could only be raised in a petition to the full Board for review of the initial decision by the AJ to dismiss the MSPB appeal based on the settlement agreement.
Second, if Armstrong wished to challenge the agency's compliance with the terms of the agreement, he could do so by filing a petition for enforcement with the regional office that dismissed the MSPB appeal based on the settlement agreement. Because Armstrong had filed with the regional office, the AJ found that the proper response was to treat the May 28 filing as a petition for enforcement (focused on the breach issue) rather than as a petition for review (focused on the fraud issue) and to inform Armstrong that he could file a separate petition for review with the full Board. The AJ then proceeded to deny the petition for enforcement because any improper contacts between TIGTA and USDA were alleged to have occurred no later than January 2, 2008, while the settlement agreement was executed on February 7, 2008. Because the alleged breaching acts occurred before the contract was executed, those acts could not constitute a breach. The AJ's decision was issued July 14, 2008.
On August 12, 2008, Armstrong filed with the full MSPB a petition for review of the settlement agreement, seeking to set aside the agreement on the grounds that the agreement was a product of fraud and misrepresentation. The clerk of the MSPB told Armstrong that the petition would be treated as seeking both review of the settlement agreement and review of the July 14 compliance decision denying the petition for enforcement. Despite this, Armstrong did not make any argument concerning the compliance decision. With respect to the settlement agreement, the MSPB treated the petition for review as a petition to review the February 19, 2008 decision of the AJ to dismiss the case due to the settlement agreement. Because the MSPB's regulations required such a petition to be filed within 35 days after the decision for which review was sought, the MSPB required Armstrong to file a motion asking the MSPB to waive the time limit for good cause, along with a sworn statement or affidavit in support of the "good cause" argument. Armstrong filed such a motion and statement.
The MSPB first considered whether to waive its time limit for filing the petition for review of the settlement decision. The MSPB treated Armstrong's original May 28, 2008 petition (which had been filed in the wrong place for a petition for review of the settlement agreement and which had a title that suggested it should be treated as a petition for enforcement of TIGTA's compliance with the settlement agreement, rather than a petition for review of the settlement agreement) as the operative filing for timeliness purposes, because Armstrong acted with due diligence from that point forward. That May 28 filing still came 99 days after the February 19 decision. The MSPB held that it would waive the 35-day time limit if Armstrong could point to new evidence that was not available before the original decision, that was discovered after the original decision, ...