Rosemary Greenlaw v. Department of Labor ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROSEMARY B. GREENLAW, DOCKET NUMBER
Appellant, SF-0752-17-0090-I-1
v.
DEPARTMENT OF LABOR, DATE: January 26, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Rosemary B. Greenlaw, San Jose, California, pro se.
David M. Kahn, Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her termination appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is base d 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
¶2 In April 2016, the agency appointed the appellant to an Administrative
Assistant position in the competitive service, with her Standard Form 50 (SF-50)
reflecting that she was appointed by reinstatement under the authority of 5 C.F.R.
§ 315.401 as a former career employee. Initial Appeal File (IAF), Tab 1 at 7.
Effective October 31, 2016, the appellant was terminated from her position. Id.
at 10. The agency informed her that, as a reemployed annuitant, she did not have
the right to appeal her termination to the Board. Id.¶3 The appellant filed an appeal with the Board, claiming that her termination
was retaliatory. IAF, Tab 1 at 5. She explained that she was not selected for an
Investigator position despite being better qualified than other candidates for the
position. 2 Id. She asserted that, after her nonselection, she was directed to
perform the former duties of one of the selectees, though she did not receive the
2
The appellant’s nonselection claim was docketed as a separate appeal. Greenlaw v.
Department of Labor, MSPB Docket No. SF-3443-17-0089-I-1. The appellant has filed
a petition for review concerning that appeal as well, and the Board will issue a separate
final decision concerning her nonselection.
3
higher compensation that the selectee had received. Id. She alleged that, after
she discussed this issue with her immediate supervisor and other management
officials, she was terminated in retaliation. Id.¶4 The administrative judge informed the appellant that it appeared she was a
reemployed annuitant and that reemployed annuitants generally have no right to
appeal their termination to the Board. IAF, Tab 2 at 2. He therefore ordered her
to file evidence and argument establishing that the appeal was within the Board’s
jurisdiction. Id.¶5 In her response, the appellant argued that she was hired as a
career-reinstatement candidate, rather than as a reemployed annuitant. IAF,
Tab 3 at 4. She referred to the SF-50 reflecting her reinstatement under the
authority of 5 C.F.R. § 315.401. IAF, Tab 1 at 7, Tab 3 at 4. In its response, the
agency asserted that the appellant was a reemployed annuitant during her
employment with the agency and thus the Board lacks jurisdiction over her
appeal. IAF, Tab 5 at 5. As proof, the agency attached the appellant’s annuity
statement for May 2016. Id. at 11. The agency also stated that it had issued a
corrected SF-50 two days after the one referred to by the appellant. Id. at 4. The
corrected SF-50 reflects that the appellant was a reemployed annuitant who
served at the will of the appointing officer. Id. at 8. Notably, however, the
corrected SF-50, like the initial SF-50, still indicated that the appellant was hired
as a career-reinstatement candidate under the legal authority of 5 C.F.R.
§ 315.401. Id. at 7-8.
¶6 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision finding that she undisputedly was receiving a retirement
annuity while an employee with the agency and thus had no appeal rights
pursuant to 5 U.S.C. § 3323(b)(1). IAF, Tab 6, Initial Decision (ID) at 1-2. He
found that the appellant failed to make a nonfrivolous allegation of Board
jurisdiction over her termination, and he therefore dismissed her appeal. Id.4
¶7 The appellant has filed a petition for review, 3 the agency has filed a
response, and the appellant has filed a reply to the agency’s response. Petition
for Review (PFR) File, Tabs 1, 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶8 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Wilson v. Department of Homeland
Security, 122 M.S.P.R. 262, ¶ 2 (2015). If an appellant makes a nonfrivolous
allegation of Board jurisdiction over her appeal, 4 she is entitled to a jurisdictional
hearing at which she must prove jurisdiction by a preponderance of the evidence.
Jones v. Department of the Treasury, 107 M.S.P.R. 466, ¶ 11 (2007).
¶9 With exceptions not applicable to this case, reemployed annuitants serve at
the will of the appointing authority. 5 U.S.C. § 3323(b)(1). Accordingly,
reemployed annuitants generally have no right to appeal an adverse action to the
Board. See Garza v. Department of the Navy, 119 M.S.P.R. 91, ¶ 9 (2012). On
review, the appellant does not dispute that she was receiving an annuity while
employed by the agency. PFR File, Tabs 1, 5. Regarding the argument she raised
below, that she was a career-reinstatement appointee, rather than a reemployed
annuitant, we find that the agency’s assertion in the SF-50 that the appellant was
a career-reinstatement appointee does not negate the fact that, for purposes of
5 U.S.C. § 3323(b)(1), she was a reemployed annuitant receiving an annuity. The
appellant was an at-will employee even if the agency neglected to inform her of
that fact. See Phillips v. Department of Housing & Urban Development,
3
Although there is a question regarding the timeliness of the appellant’s petition, we
have not decided that issue because the petition for review does not meet the Board’s
criteria for review for the reasons set forth in this Final Order.
4
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s). An allegation generally will be considered nonfrivolous
when, under oath or penalty of perjury, an individual makes an allegation that is more
than conclusory, is plausible on its face, and is material to the legal issues in the appea l.
Id.5
44 M.S.P.R. 48, 52 (1990); see also Dunklebarger v. Merit Systems Protection
Board, 130 F.3d 1476, 1480 (Fed. Cir. 1997) (finding that the principles of
estoppel do not apply to vest the Board with subject-matter jurisdiction when
Congress has not done so). Because the undisputed evidence establishes that the
appellant was a reemployed annuitant, we find that she has failed to make a
nonfrivolous allegation of jurisdiction. IAF, Tab 5 at 8, 11.
¶10 The appellant seems to allege that she was terminated in retaliation for
opposing discrimination that she experienced due to her age and disability. IAF,
Tab 1 at 5; PFR File, Tab 1 at 6. However, absent an otherwise appealable
action, the Board has no jurisdiction to adjudicate her claims of discrimination or
retaliation. See, e.g., Rosario-Fabregas v. Department of the Army, 122 M.S.P.R.
468, ¶ 20 (2015), aff’d, 833 F.3d 1342 (Fed. Cir. 2016). To the extent that the
appellant intended to file an individual right of action appeal, we note that she
has indicated that she has not filed a complaint with the Office of Special
Counsel, IAF, Tab 1 at 4, and we would therefore lack jurisdiction over such an
appeal, 5 U.S.C. §§ 1214(a)(3), 1221.
¶11 Finally, the appellant asserts that she was denied discovery in her appeal.
IAF, Tab 3 at 4; PFR File, Tab 1 at 7, Tab 5 at 4. However, we find that the
appellant has failed to demonstrate how the absence of discovery prejudiced her
ability to make a nonfrivolous allegation on the dispositive jurisdictional issue .
See Vores v. Department of the Army, 109 M.S.P.R. 191, ¶ 14 (2008), aff’d,
324 F. App’x 883 (Fed. Cir. 2009); Sommers v. Department of Agriculture,
62 M.S.P.R. 519, 523 (1994); 5 C.F.R. § 1201.115(c).
¶12 Accordingly, we affirm the initial decision and dismiss the appeal for lack
of jurisdiction.
6
NOTICE OF APPEAL RIGHTS 5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights , the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
5
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
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, 10, and 11.
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a clai m of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
8
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
9
disposition of allegations of a prohibited personnel practice descri bed in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
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, 10, and 11.
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
Contact information for the 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.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.