Yi Du v. Department of Justice ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
YI DU, DOCKET NUMBER
Appellant, NY-3443-14-0232-I-1
v.
DEPARTMENT OF JUSTICE, DATE: December 23, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Yi Du, Brooklyn, New York, pro se.
Jessica Childress, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal of his nonselection for Firearms Instructor Training for lack
of jurisdiction. Generally, we grant petitions such as this one only when: the
initial decision contains erroneous findings of material fact; the initial decision is
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the judge’s rulings during either the
course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. See Title 5 of the Code of Federal Regulations, section 1201.115
(5 C.F.R. § 1201.115). After fully considering the filings in this appeal, and
based on the following points and authorities, we conclude that the petitioner has
not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The facts of this appeal are accurately set forth in the initial decision. Initial
Appeal File (IAF), Tab 14, Initial Decision (ID) at 2-3. The appellant filed an
appeal challenging the agency’s failure to select him for Firearms Instructor
Training, which he claimed was a prohibited personnel practice. IAF, Tab 1 at 5,
7. The administrative judge issued a show cause order advising the appellant of
his burden of proof on jurisdiction and ordering him to produce evidence and
argument that his appeal was within the Board’s jurisdiction. IAF, Tab 4. The
appellant replied, contending that his nonselection for the training course
constituted prohibited personnel practices in violation of 5 U.S.C. § 2302(b)(2),
(b)(4), (b)(6), and (b)(8), and arguing the merits of his appeal. IAF, Tab 7.
Concerning his allegation under subsection (b)(8), it appears that the appellant
claimed that his whistleblowing activity consisted of his submissions to the
Board. Id.¶3 In an initial decision based on the written record, the administrative judge
dismissed the appeal for lack of jurisdiction, concluding that the appellant failed
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to raise a nonfrivolous allegation of jurisdiction. ID at 5. She found that the
Board had no authority to address his nonselection claim and that, absent an
appealable action, the Board lacked jurisdiction over his allegations that the
agency committed prohibited personnel practices. ID at 4. She further found that
the appellant failed to make a nonfrivolous allegation of whistleblower reprisal.
ID at 4.
¶4 The appellant has filed a petition for review. Petition for Review (PFR) File,
Tab 1.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 On review, the appellant contends that he could not find a precedential case
analogous to his situation but nevertheless asserts that the Board should assume
jurisdiction over his appeal and adjudicate the merits. PFR File, Tab 1 at 4.
Specifically, he claims that the administrative judge erred in finding that the
prohibited personnel practices he alleged were not within the Board’s jurisdiction.
Id.¶6 The administrative judge, however, properly found that the Board lacks
jurisdiction over allegations that the agency committed prohibited personnel
practices absent an appealable action. ID at 4 (citing Schmidt v. Department of
Interior, 153 F.3d 1348, 1356 (Fed. Cir. 1985)). She also properly determined
that the appellant’s nonselection for the training course was not an action within
the Board’s jurisdiction. ID at 4 (citing Tines v. Department of the Air
Force, 56 M.S.P.R. 90, 93 (1992)). Under these circumstances, we agree with the
administrative judge that the appellant failed to make a nonfrivolous allegation of
jurisdiction. See, e.g., Mims v. Social Security Administration, 120 M.S.P.R. 213,
¶ 16 (2013). Therefore, because the Board lacks jurisdiction over the matter, it
does not have the authority to address the merits underlying the appellant’s
appeal. See Burton v. Department of the Air Force, 118 M.S.P.R. 210, ¶ 16
(2012).
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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.
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 want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
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.
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 about the United States Court of Appeals for the Federal
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Circuit 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.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for a list of attorneys who have expressed
interest in providing 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.