Cory Z. Newman v. Department of the Air Force

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CORY Z. NEWMAN,
Petitioner
v.
DEPARTMENT OF THE AIR FORCE,
Respondent
______________________
2019-2297, 2019-2298
______________________
Petitions for review of the Merit Systems Protection
Board in Nos. AT-0752-18-0701-I-1, AT-0752-19-0232-I-1.
______________________
Decided: January 6, 2021
______________________
M ICHELLE SMITH , Michelle Smith Attorney at Law,
Warner Robins, GA, for petitioner.
SHARI A. ROSE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by JEFFREY B.
CLARK , TARA K. H OGAN , ROBERT EDWARD K IRSCHMAN , JR.,
ERIN M URDOCK -PARK .
______________________
Before NEWMAN , M OORE , and H UGHES , Circuit Judges.
Case: 19-2297 Document: 72 Page: 1 Filed: 01/06/2021

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NEWMAN v. AIR FORCE 2
H UGHES , Circuit Judge.
Corey Z. Newman appealed his removal from employ-
ment to the Merit Systems Protection Board. Because the
Board correctly determined that Mr. Newman’s removal
complied with the Master Labor Agreement governing his
employment and did not violate Mr. Newman’s due process
rights, we affirm.
I
Mr. Newman was employed as a sheet metal aircraft
mechanic at Robins Air Force Base in Warner Robins,
Georgia. On May 29, 2018, the Air Force proposed remov-
ing Mr. Newman for misconduct based on two charges: un-
authorized absence and failure to comply with leave
procedures. Newman v. Dep’t of the Air Force, AT-0752-18-
0701-I-1, 2019 MSPB LEXIS 1688, at *1 (M.S.P.B. May 17,
2019) (First Decision). Two specifications supported the
charges: (1) Mr. Newman was absent without leave for
eight hours on April 13, 2018; and (2) Mr. Newman was
absent without leave for five hours on April 16, 2018. The
agency also considered his four previous disciplinary ac-
tions for unauthorized absence and failure to comply with
leave procedures as aggravating factors.
Mr. Newman provided an oral reply to the deciding of-
ficial, Deputy Director Timothy Gray. After that, the
agency notified Mr. Newman of the decision to remove him,
effective July 24, 2018.
Subsequently, the agency canceled the removal and in-
dicated on a Standard Form 50 that the removal was can-
celed due to “Agency error – violation of due process.” Id.
at *2. The agency indicated a due process violation may
have occurred because, following Mr. Newman’s in-person
reply to Mr. Gray, Mr. Gray had several ex parte commu-
nications with Mr. Newman’s supervisors, and
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NEWMAN v. AIR FORCE 3
Mr. Newman was not given the opportunity to respond to
the information Mr. Gray discovered during the course of
his investigation. Id. at *18–20. On October 1, 2018, the
agency notified Mr. Newman that it had canceled the re-
moval, and that his pay and benefits would be reinstated,
effective July 24, 2018, although he would be placed on
“non-duty with pay status.” S.A. 79. The notice also in-
formed Mr. Newman that the Air Force was still consider-
ing taking disciplinary action based on the incidences of
unauthorized absence and failure to follow leave proce-
dures. Id.
Two days later, on October 3, 2018, the Air Force issued
a second notice of proposed removal on the same charges
and specifications as the original proposal notice. The sec-
ond proposal informed Mr. Newman of the same aggravat-
ing factors as the initial proposal, described the additional
information Mr. Gray had received in the initial proposed
removal action, and provided Mr. Newman with the right
to reply to the proposed removal.
Mr. Newman provided an oral and written reply to the
deciding official, Mr. Gray, and was subsequently removed
on January 9, 2019. The removal notice informed Mr. New-
man that Mr. Gray only considered the unauthorized ab-
sence specification for April 16, 2018 in rendering his
decision and that the specification relating to April 13,
2018 was considered as an aggravating factor.
Mr. Newman appealed the agency’s decisions to re-
move him. Although the agency had canceled the first re-
moval action, the Board determined that it retained
jurisdiction over the appeal of the first removal action be-
cause the agency had not established that it had provided
Mr. Newman with all of the relief he could have received if
he had prevailed before the Board. First Decision, 2019
MSPB LEXIS 1688, at *3. Mr. Newman then appealed the
agency’s second removal decision, and the Board held one
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NEWMAN v. AIR FORCE 4
hearing on both appeals and issued separate decisions sus-
taining Mr. Newman’s removal. First Decision, 2019
MSPB LEXIS 1688; Newman v. Dep’t of the Air Force, AT-
0752-19-0232-I-1, 2019 MSPB LEXIS 2347 (M.S.P.B.
July 3, 2019) (Second Decision).
II
We review a decision of the MSPB for whether it is
(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.
5 U.S.C. § 7703(c); Avalos v. Dep’t of Hous. and Urban Dev.,
963 F.3d 1360, 1365 (Fed. Cir. 2020).
A
In this appeal, Mr. Newman first contends that the
Master Labor Agreement (MLA) between the Air Force and
the union, the American Federation of Government Em-
ployees, precludes an agency from effecting disciplinary ac-
tion based on misconduct that occurred more than 45 days
prior to the action.
“Interpretation of a collective-bargaining agreement is
a question of law we review de novo.” Garcia v. Dep’t of
Homeland Sec., 780 F.3d 1145, 1147 (Fed. Cir. 2015). “We
begin with the plain language of the agreement.” Id. “We
give the words in the agreement their ordinary meaning
unless the parties mutually intended and agreed to an al-
ternative meaning.” Id. (citing Harris v. Dep’t of Veterans
Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998)).
Section 5.01.b of the MLA reads:
Discipline is the responsibility and the right of the
Employer. The Employer agrees that disciplinary
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NEWMAN v. AIR FORCE 5
actions shall be based on just and sufficient cause
and in accordance with applicable laws. The Em-
ployer further agrees to effect disciplinary actions
in an efficient and timely manner. In this respect,
when an employee is subject to discipline, the Em-
ployer will strive to effect disciplinary action within
either 45 days of the offense, the Employer’s aware-
ness of the offense, or the completion of an investi-
gation of the matter by other than the supervisor,
whichever occurs later. If, for reasons of signifi-
cantly changed circumstances, further delay in tak-
ing the action is anticipated, a written notice from
the Employer to the employee advising that disci-
plinary action is being considered, the general ba-
sis for the action, reason for the delay, and that the
employee will be informed when a decision has
been made satisfies the requirements of this sec-
tion.
S.A. 49 (emphasis added).
Because § 5.01.b of the MLA states that the “Employer
will strive to effect disciplinary action within . . . 45 days of
the offense,” it “articulate[s] a goal, rather than a manda-
tory time limit.” Stevens v. Dep’t of the Air Force,
395 F. App’x. 679, 682 (Fed. Cir. 2010) (interpreting a dif-
ferent MLA with identical language); accord Trojan Techs.,
Inc. v. Com. Of Pa., 916 F.2d 903, 906 (3d. Cir. 1990) (in-
terpreting the language “strive to achieve” as “hortatory ra-
ther than mandatory”). Further, “because no language in
the agreement specifies a consequence for noncompliance,
it is best read as a housekeeping requirement that is not
judicially enforceable.” Stevens, 395 F. App’x. at 682 (in-
ternal quotations and citations omitted); see also Timken
U.S. Corp. v. United States, 421 F.3d 1350, 1357 (Fed. Cir.
2005). Therefore, we hold that the plain language of the
MLA does not require the Air Force to effect disciplinary
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NEWMAN v. AIR FORCE 6
action within 45 days of the offense.1 Accordingly, we see
no error in the Board’s determination that Mr. Newman’s
first removal was consistent with the MLA, as he received
notice of his proposed removal 46 days after the first mis-
conduct that led to his removal, and within 45 days of the
second misconduct that led to his removal.
Further, while Mr. Newman received a second notice of
proposed removal several months after the conduct oc-
curred, the Board found that the October 1, 2018, written
notice to Mr. Newman “met the requirements under the
MLA to justify the agency’s delay for reasons of signifi-
cantly changed circumstances.” Second Decision, 2019
MSPB LEXIS 2347, at *8. The October 1 notice informed
Mr. Newman of the “significantly changed circumstance”
that the first removal was canceled, that disciplinary ac-
tion was still being considered against him based on his
April 13 and April 16 misconduct, and that he would be no-
tified in writing of any proposal of disciplinary action. Id.
at *7–8. Therefore, we see no error in the Board’s decision
that this notice satisfied the MLA’s requirements for de-
layed action due to significantly changed circumstances.
Because the plain language of the MLA does not re-
quire the Air Force to effect disciplinary action within 45
days of an offense, and because the October 1, 2018 notice
met the requirements under the MLA to justify the Air
Force’s delay for reasons of significantly changed circum-
stances, we find that the Board’s decision that Mr. New-
man’s removal was consistent with the MLA was in
1 We do not hold that no amount of delay could ever
violate the 45-day goal set out by the MLA, only that disci-
pline effected outside the 45-day window does not per se
violate the MLA.
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NEWMAN v. AIR FORCE 7
accordance with law and was supported by substantial ev-
idence.
B
Mr. Newman also contends that the Air Force violated
his due process rights and committed harmful error by can-
celing the first removal action only to issue a second notice
of removal based on the same conduct as the first removal.
He argues that the Air Force should have amended the first
proposal, rather than canceling it. We reject this argu-
ment.
The Board determined that the agency canceled the
first removal specifically because the deciding official,
Mr. Gray, had engaged in ex parte communications and
Mr. Newman had not been given the opportunity to re-
spond. Second Decision, 2019 MSPB LEXIS 2347, at *12–
13. The agency’s second removal action remedied this by
describing the nature of the ex parte information Mr. Gray
received and giving Mr. Newman the opportunity to re-
spond, which he did both in writing and orally. Mr. New-
man provides no reason why an amendment to the original
notice of proposed removal would not violate his due pro-
cess rights, but a cancellation of the first action and issu-
ance of a second notice of proposed removal does. Nor do
we see any legitimate reason for such a distinction.
Indeed, the agency properly recognized that it might
have committed a harmful procedural error and took
prompt steps to remedy that error by (1) canceling the first
removal, (2) reinstating him with full pay and (3) issuing a
new proposal of removal with an additional opportunity to
respond. Mr. Newman received all the process he was due.
Therefore, we agree with the Board that Mr. Newman
failed to establish that the agency violated his due process
rights or committed harmful error.
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NEWMAN v. AIR FORCE 8
III
Mr. Newman does not challenge any other aspects of
his removal on appeal. Because we hold that the MLA does
not require the Air Force to effect disciplinary action within
45 days of the occurrence of misconduct, and because the
Board’s determination that Mr. Newman’s removal did not
violate due process or constitute harmful error is in accord-
ance with law and supported by substantial evidence, we
affirm.
AFFIRMED
Case: 19-2297 Document: 72 Page: 8 Filed: 01/06/2021

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