NOTE: This disposition is nonprecedential.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 Liti gation Branch, Civil Division, United States Department of Ju stice, of Washington, DC, fo r 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 Appealed from: United States Merit Systems Protection BoardNOTE: This disposition is nonprecedential.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 re view of the final de cision of the Merit Systems Protection Board (“Board”) that he had not made nonfrivolous allegations of the Board’s jurisdiction sufficient to ju stify a jurisdictional hearing. We vacate and remand

. I Edmundo M. Malic is a former corre spondence clerk at the Department of Veterans Affairs (“VA”) in San Diego. On January 20, 2004, he was charged with violating the VA’s standards fo r employee conduct. In particular, Mr. Malic was charged with (1) “inappropriate behavior” for speaking to hi s superior in “a belligerent, loud tone,”and (2) “failure to follow instructions” for bei ng ten minutes late to his post. The VA initially proposed to terminate Mr. Malic’s empl oyment, but later decided to enter into a “Last Chance Agreement” (“LCA”) wit h Mr. Malic. The LCA provided, inter alia , that the VA would hold the effective dat e of Mr. Malic’s termination in abeyance for two years, and if, after two years, Mr. Malic had “satis factorily complied with each and every term of [the LCA],” the VA would re scind his termination entirely. Mr. Malic also agreed that he would not appeal the VA’s decision to enforc e his termination in the event that he breached the LCA before the expira tion of the two-year period. The LCA did not spell out the natur e 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 whic h 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. Ma lic was again accuse d 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 fi rst accusation, the VA a lleged that Mr. Malic raised his voice to a coworker, saying, “y ou 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 LC A, 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 2moved to dismiss Mr. Malic’s appeal for lack of jurisdiction based on his agreement not to challenge his removal under the LCA. An Administrati ve 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 “bulls hit” 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 constant ly 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 tr ied to talk to [the coworker], he refused. On his report he stated t hat 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 le tter, but deemed his explanation of the incident insufficient: I find that the appellant admits speaking to a co-wor ker 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 mean ing 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 explanati on of the incident wit h 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 bec ame final, and Mr. Malic now appeals to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

2007-3262 32007-3262 4 II “Whether the Board has jurisdiction is a que stion 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 supp ort of the Board’s jurisdiction. We disagree. The clear import of Mr. Malic’s letter in response to t he show cause order was that he did not act belligerently and that there was a medical explanation for th e fact that his voice may have appeared raised. To be sure, Mr. Ma lic 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 th e 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 in tentionally raise his voice to a coworker, he has made a sufficient nonfrivolous allegati on 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.