Derek J. Morris v. Department of the Navy
2016 MSPB 37
| MSPB | 2016Background
- The Department of the Navy removed Derek J. Morris (GS‑13 Physical Security Specialist) for misconduct and failure to follow policy; an administrative judge affirmed the removal in an initial decision.
- Morris filed a petition for review (PFR) that included lengthy "table of contents" and "table of authorities" sections which the Clerk’s Office determined contained substantive legal argument.
- Board regulations limit a PFR to 30 pages or 7,500 words (exclusive of a bona fide table of contents, table of authorities, attachments, and certificate of service); Morris’s submissions repeatedly exceeded the limit and included merits argument in the labeled tables.
- The Clerk’s Office rejected Morris’s PFR three times, notified him of the specific deficiencies, and gave him multiple opportunities and deadlines to file a compliant PFR.
- Morris continued to submit oversized, noncompliant filings and used abusive, gendered language toward Board staff; the Board concluded he failed to perfect his PFR and failed to prosecute.
- The Board dismissed Morris’s petition for review with prejudice; the initial decision affirming removal therefore remained the final decision on the merits. The Board also provided corrected appeal/ review rights information.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the PFR complied with 5 C.F.R. § 1201.114(h) page/word limits | Morris implicitly argued his titled sections were not part of the PFR (or otherwise attempted to file as submitted) | Clerk/Board argued the tables and attachments contained substantive argument and therefore counted toward the PFR limit | The Board treated the contested sections as part of the PFR and found the submission exceeded the 30‑page/7,500‑word limit |
| Whether Morris’s repeated noncompliance warranted sanctions, including dismissal with prejudice | Morris did not file a compliant PFR despite repeated opportunities | Board argued repeated failures, defiance, and bad‑faith conduct justified dismissal under 5 C.F.R. § 1201.43(b) | Dismissal with prejudice was appropriate for failure to prosecute given repeated noncompliance and bad faith |
| Whether the Clerk’s Office acted appropriately in rejecting and returning noncompliant filings | Morris argued by implication that his filings should stand as submitted | The Clerk’s Office relied on regulatory page limits and identified merit argument hidden in tables | The Board upheld the Clerk’s rejections and notices as proper procedural enforcement of the rule |
| Whether the Board’s final order preserved Morris’s further review rights | Morris did not obtain relief via PFR | Agency/Board noted the procedural disposition and informed Morris of appeal options | The Board affirmed the initial decision on the merits and explained available review routes (EEOC, district court, or Federal Circuit) and corrected prior omissions in stated review rights |
Key Cases Cited
- In re Maisto, 28 M.S.P.R. 436 (Board 1985) (Board’s interpretation of its own rules entitled to deference)
- Williams v. U.S. Postal Service, 116 M.S.P.R. 377 (MSPB 2011) (dismissal with prejudice appropriate when party fails to exercise due diligence or acts in bad faith)
- Mendoza v. Merit Systems Protection Board, 966 F.2d 650 (Fed. Cir. 1992) (litigants must comply with Board orders and regulations)
- Ahlberg v. Department of Health & Human Services, 804 F.2d 1238 (Fed. Cir. 1986) (dismissal appropriate where party repeatedly fails to comply with court/agency orders)
- Pi‑Net Int’l, Inc. v. JPMorgan Chase & Co., 600 F. App’x 774 (Fed. Cir. 2015) (appeal dismissed where parties failed to comply with court word limits and attempted improper circumvention)