Gary Steven Kalus v. Department of Homeland Security ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GARY STEVEN KALUS, DOCKET NUMBER
Appellant, NY-1221-15-0110-B-1
v.
DEPARTMENT OF HOMELAND DATE: October 14, 2016
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Gary Steven Kalus, Massapequa, New York, pro se.
Cynthia J. Pree, Esquire, and Keturah Carr, New York, New York, for the
agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal 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 based on an
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative 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. 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, 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. However,
for the reasons set forth below, we VACATE the initial decision and DISMISS
the appeal for lack of jurisdiction on other grounds.
BACKGROUND
¶2 The appellant is employed as a National Import Specialist with the agency’s
Bureau of Customs and Border Protection, National Commodity Specialist
Division, Office of International Trade. Kalus v. Department of Homeland
Security, MSPB Docket Number NY-1221-15-0110-W-1, Initial Appeal File
(IAF), Tab 1 at 2, 9, Tab 8 at 166. On February 8, 2015, he filed this IRA appeal
alleging that his former branch chief failed to nominate him for a performance
award for fiscal year 2011 in reprisal for a September 16, 2011 letter he sent to
the Assistant Commissioner of the Office of International Trade in which he
alleged that his former branch chief had violated 5 U.S.C. § 2302(b)(8) by
retaliating against him. IAF, Tab 1 at 4, 6.
¶3 The agency moved to dismiss the appeal for lack of jurisdiction, arguing
that the appellant had failed to nonfrivolously allege that he had made a protected
disclosure. IAF, Tab 8 at 12-13. The agency also argued that the appellant failed
to nonfrivolously allege that his alleged protected disclosure was a contributing
factor in a personnel action taken against him because he provided no evidence
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that the branch chief was aware of his protected disclosure and the branch chief’s
failure to nominate the appellant for an award was not a personnel action under
5 U.S.C. § 2302(a)(2). IAF, Tab 8 at 13-15.
¶4 In an initial decision, the administrative judge dismissed the appellant’s
IRA appeal as untimely. IAF, Tab 15. In an Opinion and Order, the Board
reversed the administrative judge’s initial decision, finding that the appeal was
timely filed, and remanded the appeal for further adjudication. Kalus v.
Department of Homeland Security, 123 M.S.P.R. 226 (2016).
¶5 On remand, without holding the appellant’s requested hearing, the
administrative judge issued a remand initial decision dismissing the appeal for
lack of jurisdiction. Kalus v. Department of Homeland Security, MSPB Docket
No. NY-1221-15-0110-B-1, Remand File (RF), Tab 4, Remand Initial Decision
(RID). The administrative judge found that, although appellant had
nonfrivolously alleged that he suffered a personnel action when he was denied a
performance award, he failed to nonfrivolously allege that he made a protected
disclosure under 5 U.S.C. § 2302(b)(8). 2 RID at 4-7. The administrative judge
further found that, even assuming that the appellant nonfrivolously alleged that he
engaged in protected activity under section 2302(b)(9)(A)(i) of the Whistleblower
Enhancement Protection Act (WPEA) of 2012, he could not bring an IRA appeal
under that section regarding events that occurred in 2011, prior to the effective
date of the WPEA. RID at 7-8. Lastly, the administrative judge found that the
appellant failed to nonfrivolously allege that his alleged protected disclosure was
a contributing factor in a personnel action because there was no evidence that the
branch chief was aware of his disclosure. RID at 7.
2
Although the administrative judge appears to have applied the proper nonfrivolous
standard, the remand initial decision erroneously states that the appellant had not
established by preponderant evidence that he made a protected disclosure or engaged in
protected activity that was a contributing factor in a personnel action. RID at 5-7.
4
¶6 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has opposed the appellant’s petition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 The Board has jurisdiction over an IRA appeal under the Whistleblower
Protection Act of 1989 (WPA) 3 if the appellant exhausts his administrative
remedies before the Office of Special Counsel and makes nonfrivolous allegations
that: (1) he engaged in whistleblowing activity by making a protected disclosure
under 5 U.S.C. § 2302(b)(8); and (2) the disclosure was a contributing factor in
the agency’s decision to take or fail to take a personnel action as defined by
5 U.S.C. § 2302(a). 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Yunus v. Department of
Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).
¶8 A “personnel action” for purposes of the WPA is defined as: (i) an
appointment; (ii) a promotion; (iii) an action under 5 U.S.C. chapter 75 or other
disciplinary or corrective action; (iv) a detail, transfer, or reassignment; (v) a
reinstatement; (vi) a restoration; (vii) a reemployment; (viii) a performance
evaluation under 5 U.S.C. chapter 43; (ix) a decision concerning pay, benefits, or
awards, or concerning education or training if the education or training may
reasonably be expected to lead to an appointment, promotion, performance
evaluation, or other personnel action; (x) a decision to order psychiatric testing or
examination; and (xi) any other significant change in duties, responsibilities, or
working conditions. 5 U.S.C. § 2302(a)(2)(A); Mattil v. Department of State,
118 M.S.P.R. 662, ¶ 14 (2012).
¶9 In finding that the appellant nonfrivolously alleged that he suffered a
personnel action, the administrative judge erroneously construed the appellant’s
claims as asserting that he was denied a performance award. RID at 4-5.
3
All of the relevant events occurred prior to the December 27, 2012 effective date of
the Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112-199, 126 Stat.
1465.
5
However the record reflects that the appellant specifically stated below that he
was not contesting the denial of a performance award, but rather the branch
chief’s failure to nominate him for consideration for a performance award. IAF,
Tab 1 at 4, 6, 10, Tab 11 at 6.
¶10 We agree with the agency that, under the circumstances of this case, the
branch chief’s failure to nominate the appellant for a performance award is not a
personnel action within the meaning of 5 U.S.C. § 2302(a)(2)(A). Not every
agency action is a personnel action under the WPA; an action must have practical
consequences for the employee to constitute a personnel action. King v.
Department of Health & Human Services, 133 F.3d 1450, 1453 (Fed. Cir. 1998).
For example, the denial of a performance‑based award can be a personnel action.
See 5 U.S.C. § 2302(a)(2)(A)(ix) (defining a personnel action to include a
“decision concerning pay, benefits, or awards”); see also Mastrullo v. Department
of Labor, 123 M.S.P.R. 110, ¶ 14 n.5 (2015) (finding that the agency’s decision
not to give the appellant a 40-hour time-off award constitutes a personnel action);
Hagen v. Department of Transportation, 103 M.S.P.R. 595, ¶ 13 (2006) (holding
that the denial of a cash award is a personnel action).
¶11 Despite the branch chief’s failure to nominate the appellant for an award,
the record reflects that the relevant policy concerning performance awards
provides that an individual could be nominated for an award by “a
peer/co‑worker; the employee him/her-self; a manager or supervisor; or by the
other members of a group/team of which the individual is a member.” IAF, Tab 8
at 128. Under the policy, such a nomination is to be submitted to the nominee’s
supervisor to validate whether the nominated employee is eligible to receive an
award (meaning he was rated at a successful level on his most recent annual
proficiency rating) and whether he performed the activity identified in the
nomination during the current performance rating cycle. Id. at 128-29. The
supervisor then submits the nomination to a Joint Awards Committee (JAC)
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comprised of three union representatives and three agency representatives. Id.
at 127, 129. After receiving the nomination, the JAC meets and makes a written
recommendation regarding which nominees should receive an award to an official
with award approval authority. Id. at 129. This official can accept, modify, or
reject the JAC’s award recommendations. Id. at 130.
¶12 The appellant does not dispute that, notwithstanding his supervisor’s failure
to nominate him for an award, pursuant to agency policy, he could have
nominated himself for an award, but did not. 4 IAF, Tab 11 at 6-7. Likewise,
under the pertinent policy, other individuals, such as coworkers or team members,
could have nominated the appellant for an award, but they did not. IAF, Tab 8 at
128. Thus, because the branch chief’s decision not to nominate the appellant for
an award did not have any practical consequences on the appellant being
considered for such an award, we find that it is not a personnel action within the
meaning of the WPA. 5 See King, 133 F.3d at 1453 (stating that an action must
have practical consequences for an employee to constitute a personnel action
under 5 U.S.C. § 2302(a)(2)(A)).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
This constitutes the Board’s final decision in this matter. 5 C.F.R.
§ 1201.113. You have the right to request review of this final decision by the
U.S. 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
4
We find unavailing the appellant’s argument that he believed his branch chief would
nominate him as he had in prior years and never informed the appellant that he would
not nominate him for a fiscal year 2011 award. IAF, Tab 11 at 7.
5
To the contrary, the appellant asserts that self-nomination, for example, could result in
a potentially greater award because an employee is able to reference accomplishments
that a supervisor may have forgotten. IAF, Tab 11 at 7.
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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 U.S. 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 U.S. 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 U.S. 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 U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information about
the U.S. Court of Appeals for the Federal 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 the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
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If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.