Gloria Sanford v. Office of Special Counsel ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GLORIA J. SANFORD, DOCKET NUMBER
Appellant, DE-3443-19-0125-I-1
v.
OFFICE OF SPECIAL COUNSEL, DATE: January 24, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Gloria J. Sanford, Littleton, Colorado, pro se.
Amy Beckett, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Member Leavitt recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 administ rative 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
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an 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 According to the appellant, an employee with the Department of Veterans
Affairs (VA), she filed a retaliation complaint with the VA Whistleblowers
Accountability Office. Initial Appeal File (IAF), Tab 1 at 5, 12. She alleges that
the complaint was not handled properly and was eventually closed. Id. She
subsequently filed a complaint with the Office of Special Counsel (OSC), and
claims to have been told by OSC that they would request and obtain the
documents regarding her complaint possessed by the VA Whistleblowers
Accountability Office. Id. at 5.
¶3 On November 28, 2018, OSC closed its investigation into t he appellant’s
complaint. Id. at 21-22. OSC’s close-out letter informed the appellant that she
could seek corrective action for any personnel action taken against her because of
protected disclosures included in her OSC complaint by filing an IRA appeal with
the Board. Id.3
¶4 On February 11, 2019, the appellant filed an appeal with the Board. IAF,
Tab 1. Rather than appealing the alleged retaliation against her by the VA,
however, the appellant listed OSC as the agency that took the action and made the
decision she was appealing. Id. at 1. According to the appellant, OSC was
unresponsive, failed to request and obtain various documents from the VA, and
generally mishandled her complaint. Id. at 5.
¶5 The administrative judge, questioning the Board’s jur isdiction, issued an
order to the appellant to establish that the Board has IRA jurisdiction over OSC.
IAF, Tab 3 at 1. In the same order, the administrative judge instructed the
appellant on how to file an IRA appeal against her employing agency based o n
alleged whistleblower retaliation. Id. at 2-3. The appellant responded confirming
that she did not intend to file an IRA appeal against the VA and again laid out the
facts allegedly demonstrating how OSC had mishandled her case. IAF, Tab 4
at 4-5. The appellant additionally asked the administrative judge to inform her
who, if not the Board, has jurisdiction over the matter. Id.¶6 On February 22, 2019, the administrative judge issued an initial decision
dismissing the appeal for lack of jurisdiction. IAF, Tab 10, Initial Decision (ID).
He found that an assertion that OSC mishandled a complaint is a matter outside
the Board’s jurisdiction. ID at 1-3. Accordingly, he concluded that the appellant
had failed to make a nonfrivolous jurisdictional allegation. Id.¶7 The appellant has filed a petition for review, and OSC has responded.
Petition for Review (PFR) File, Tabs 1, 3. In her petition, the appellant claims
that under the Freedom of Information Act (FOIA), she requested that the
administrative judge provide information as to who has the authority to oversee
her case against OSC, and he failed to respond. PFR File, Tab 1 at 3, 5. She
further claims that, under the First Amendment of the Constitution, she has a right
to petition the Government for a redress of grievances, which gives her the right
to seek relief for a wrong through the courts or other governmental action. Id.4
DISCUSSION OF ARGUMENTS ON REVIEW
¶8 When an appellant disagrees with OSC’s decision to close a whistleblower
complaint, she can bring an IRA appeal against the employing agency and seek
corrective action. 5 U.S.C. §§ 1214(a)(3), 1221(a). Here, rather than challenging
the merits of her underlying personnel action, the appellant is challenging OSC’s
handling of her case and its decision to close her complaint. IAF, Tab 4 at 4-5.
This is not a matter under the Board’s jurisdiction.
The appellant has not made a nonfrivolous allegation of Board jurisdiction over
her IRA appeal.
¶9 The Board has jurisdiction over an IRA appeal if the appellant has
exhausted her administrative remedies before OSC and makes nonfrivolous
allegations that (1) she made a protected disclosure described under 5 U.S.C.
§ 2302(b)(8) or engaged in protected activity described under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the disclosure or protected activity
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). Salerno v. Department of the
Interior, 123 M.S.P.R. 230, ¶ 5 (2016).
¶10 The appellant seeks to challenge OSC’s failure or refusal to properly
resolve her complaint. However, the appellant has not alleged either below or on
review that OSC’s action constitutes any of the personnel actions enumerated in
5 U.S.C. § 2302(a). An investigation generally is not considered a personnel
action, although the Board may consider whether the investigation was pretext to
take a closely related personnel action. Shibuya v. Department of Agriculture,
119 M.S.P.R. 537, ¶ 22 n.12 (2013). Here, there is no allegation that OSC’s
allegedly deficient investigation was a pretext to take a personnel action.
Without a personnel action taken by OSC, the named party in this case, the Board
lacks jurisdiction over the appellant’s IRA appeal. Carson v. Merit System
Protection Board, 680 F. App’x 1016, 1017 (Fed. Cir. 2017) (per curiam)
(affirming the Board’s determination that the allegation of OSC’s failure to
5
investigate or resolve the whistleblower complaint did not describe a personnel
action). 2
Even outside the context of a traditional IRA appeal, the Board does not
otherwise have jurisdiction.
¶11 The appellant argues, both below and on review, that OSC failed to properly
request certain documents during the course of its investigation, failed to properly
investigate her case, and improperly closed her complaint. IAF, Tab 1 at 5;
PFR File, Tab 1 at 3. The Board does not have jurisdiction over all matters
alleged to be unfair or incorrect. Miller v. Department of Homeland Security,
111 M.S.P.R. 325, ¶ 14 (2009), aff’d per curiam, 361 F. App’x 134 (Fed. Cir.
2010). Rather, the Board’s jurisdiction is limited to those matters over which it
has been given jurisdiction by law, rule, or regulation. Clark v. U.S. Postal
Service, 118 M.S.P.R. 527, ¶ 7 (2012). There is no law, rule, or regulation,
pointed to by the appellant or otherwise available, which gives the Board
jurisdiction to review OSC’s handling of a case or decision to close a file. See
5 U.S.C. §§ 1211-1219 (establishing OSC and detailing such matters as its
process and procedures for conducting investigations without providing any
statutory right to appeal OSC’s action or inaction); 5 C.F.R. § 1201.3(a) (listing
those matters over which the Board has appellate jurisdiction). Although “OSC
must . . . investigate an alleged prohibited personnel practice involving reprisal s
against whistleblowing to the extent necessary to determine whether there” are
reasonable grounds to believe that a prohibited personnel practice has occurred
and “issue reasons for terminating an investigation,” the Board lacks authority to
enforce these statutory requirements. Wren v. Merit Systems Protection Board,
681 F.2d 867, 871-72 (D.C. Cir. 1982); see also 5 U.S.C. § 1214(a)(1)(A), (2)(A)
(reflecting the statutory requirements referenced in Wren).
2
The Board may follow a nonprecedential decision of the U.S. Court of Appeals for the
Federal Circuit when, as here, it finds its reasoning persuasive. Morris v. Department
of the Navy, 123 M.S.P.R. 662, ¶ 13 n.9 (2016).
6
¶12 The appellant also argues on review that the administrative judge erred by
not responding to her FOIA request, and seems to suggest that the Board thus has
jurisdiction to review the errors of the initial decision. PFR File, Tab 1 at 3-5.
The record reflects that, in response to the administrative judge’s order on
jurisdiction, the appellant asked, “if the MSPB does not have jurisdiction over the
improper handling of an OSC Case please provide who does.” IAF, Tab 4 at 4.
The appellant did not cite to FOIA or otherwise comply with the Board’s
procedures for making such a request. 5 C.F.R. § 1204.11. Further, an alleged
denial of a FOIA request is properly appealed to the Board’s Chairman under the
procedures in 5 C.F.R. § 1204.21, and not by way of a petition for review. See
Normoyle v. Department of the Air Force, 65 M.S.P.R. 80, 83 (1994) (recognizing
that the Board is not authorized to consider claims of FOIA vi olations in the
context of a petition for review); see also http://www.mspb.gov/foia/request.htm
(last visited Jan. 23, 2023) (providing information to requestors about MSPB’s
FOIA process).
¶13 The appellant additionally argues that, under the Right to Petition clause of
the First Amendment, she has the right to petition the Government for redress of
grievances and to ask the Government to provide relief for a wrong. PFR File,
Tab 1 at 3-5. The appellant is seemingly arguing that the Right to Petition
affords her the right to seek relief from any Federal Government agency, but cites
no authority for this interpretation of the First Amendment. In the context of an
IRA appeal, the Board lacks jurisdiction over First Amendment claims. Van Ee v.
Environmental Protection Agency, 64 M.S.P.R. 693, 699 (1994). While the
appellant may be correct that the First Amendment affords her the right to sue the
Government, we are without authority to address her claim. See Dooley v.
Department of Veterans Affairs, 112 M.S.P.R. 110, ¶¶ 5, 8 (2009) (explaining that
7
the Board lacks appellate jurisdiction over an appellant’s First Amendment claim
absent jurisdiction over an underlying appealable action). 3
NOTICE OF APPEAL RIGHTS 4
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.
3
We express no opinion as to whether the appellant may be able to seek redress for her
claims elsewhere. See Wren, 681 F.2d at 872 (finding that “if the OSC fails to perform
its statutory duties . . . relief—if it lies at all—must be sought in a separate action in the
district court to compel the OSC to perform its statutory duties”) (citing 5 U.S.C.
§§ 702, 704); see also Securiforce International America, LLC v. United States ,
879 F.3d 1354, 1360 (Fed. Cir. 2018) (finding that 5 U.S.C. § 702 provides a cause of
action for nonmonetary claims against the Government, so long as “there is no other
adequate remedy in a court”) (citing 5 U.S.C. § 704).
4
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.
8
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:
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
9
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 claim 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
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
10
(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
disposition of allegations of a prohibited personnel practice described 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. 5 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.
5
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.
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.
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.