Jordan Griffin v. Department of the Navy ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JORDAN GRIFFIN, DOCKET NUMBER
Appellant, SF-0752-21-0571-I-1
v.
DEPARTMENT OF THE NAVY, DATE: July 28, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Matthew Camacho, Marine Corps Base Hawaii, Kaneohe Bay, Hawaii, for
the appellant.
Steven K. Forjohn, Esquire, Marine Corps Base Hawaii, Kaneohe Bay,
Hawaii, 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 his probationary termination appeal for lack of jurisdiction . Generally,
we grant petitions such as this one only in the following circumstances: the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 evid ence 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).
¶2 The appellant asserts that he does not have a copy of the agency’s
“unredacted file.” Petition for Review (PFR) File, Tab 1 at 4. 2 The appellant,
however, does not explain how the agency’s file or redactions therefrom pertain
to the Board’s jurisdiction, if at all. Thus, his assertion does not warrant a
different outcome. See Davis v. Department of Defense, 103 M.S.P.R. 516, ¶ 13
(2006) (explaining that, when an appeal is dismissed for lack of jurisdiction, there
is no prejudice to an appellant’s substantive rights based on the absence of
discovery that did not seek information that would establish the Board’s
jurisdiction).
2
Specifically, the appellant states as follows: “I have not yet received the file they
originally gave me an unredacted file and then threatened me with criminal and civil
charges along with debarring me from base.” PFR File, Tab 1 at 4 (grammar as in
original). To the extent the appellant, through this statement, raises claims regarding
his debarment, file redactions, or threatened charges, we discern no basis for Board
jurisdiction over the same. See Maddox v. Merit Systems Protection Board, 759 F.2d 9,
10 (Fed. Cir. 1985) (stating that the Board’s jurisdiction is limited to those matters over
which it has been given jurisdiction by law, rule, or regulation ).
3
¶3 The appellant makes several arguments that seemingly pertain to the merits
of the agency’s removal action. PFR File, Tab 1 at 4, 7. For example, he asserts
that he “did not receive any training for [his] position” and that he received
performance-based awards from the agency. Id. at 7. Because the Board lacks
jurisdiction over the matter, we cannot consider these arguments. See
Schmittling v. Department of the Army, 219 F.3d 1332, 1336-37 (Fed. Cir. 2000)
(explaining that the Board must first resolve the threshold issue of jurisdiction
before proceeding to the merits of an appeal).
¶4 For the first time on review, the appellant asserts that both he and his
nonattorney representative experienced difficulties accessing documents in
e-Appeal Online. PFR File, Tab 1 at 3. The Board generally will not consider an
argument raised for the first time in a petition for review absent a showing that it
is based on new and material evidence not previously available despite the party’s
due diligence. See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271
(1980); 5 C.F.R. § 1201.115(d). In any event, we find this vague assertion
unavailing. As a registered e-filer, the appellant consented to accept all
documents issued by the Board in electronic form and to monitor case activity at
the Repository at e-Appeal Online to ensure that he had received all case-related
documents. Initial Appeal File (IAF), Tab 1 at 2; see 5 C.F.R. § 1201.14(j)(3).
The appellant provides no clear explanation as to why he was unable to access
documents via the e-Appeal Online Repository or why, after realizing that he was
apparently unable to access documents, he did not alert the Board to the issue or
otherwise seek technical assistance. 3 Thus, the appellant’s vague assertion is
3
When Board documents are issued, email messages are sent to e-filers to notify them
of the issuance. 5 C.F.R. § 1201.14(j)(1). These messages contain links to the
Repository where the documents can be viewed and downloaded. Id. There is no
record of either the appellant or his nonattorney representative ever contacting the
Board with any technical problems. In any event, the appellant filed his petition for
review challenging the initial decision on the same day that it was issued; thus, he was
apparently able to access the administrative judge’s decision without issue. PFR File,
Tab 1; IAF, Tab 5, Initial Decision (ID) at 1; Tab 6 at 1. The initial decision provided
4
unavailing. To the extent the appellant faults his nonattorney representative for
any purported technical difficulties, his assertion is similarly unavailing. See
Sparks v. U.S. Postal Service, 32 M.S.P.R. 422, 425 (1987) (explaining that the
Board has long held that appellants are responsible for the actions and inactions
of their chosen representatives).
¶5 Last, with his petition for review, the appellant provides a copy of a
September 23, 2021 letter debarring him from entering Marine Corps Base
Hawaii. PFR File, Tab 1 at 6. The appellant provides no explanation as to why
he did not provide this letter, which predates the initial decision, to the
administrative judge. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214
(1980) (finding that the Board generally will not consider evidence submitted for
the first time with the petition for review absent a showing that it was unavailable
before the record was closed despite the party’s due diligence); 5 C.F.R.
§ 1201.115(d). In any event, the letter is not material to the outcome of this
appeal. See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980)
(stating that the Board will not grant a petition for review based on new evidence
absent a showing that it is of sufficient weight to warrant an outcome different
from that of the initial decision).
¶6 Accordingly, we affirm the initial decision.
the appellant with notice of the applicable burden regarding jurisdiction. ID at 2 -5.
Accordingly, even assuming that the appellant did not receive such notice prior to the
issuance of the initial decision due to technical issues, a different outcome would not be
warranted. See Easterling v. U.S. Postal Service, 110 M.S.P.R. 41, ¶ 11 (2008) (stating
that an administrative judge’s failure to provide an appellant with proper notice can be
cured if the initial decision provides appropriate notice, thus affording the appellant an
opportunity to meet his jurisdictional burden on review).
5
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 th e 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 rev iew 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:
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 indica ted in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
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 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
7
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
8
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.
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.
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.
9
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.