Tyrone Scott v. Department of the Army ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TYRONE D. SCOTT, DOCKET NUMBER
Appellant, SF-0752-16-0596-I-1
v.
DEPARTMENT OF THE ARMY, DATE: July 27, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Tyrone D. Scott, Biloxi, Mississippi, pro se.
Inam Rabbani, APO, AP, 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 removal 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 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 and
AFFIRM the initial decision, which is now the Board’s final decis ion. 5 C.F.R.
§ 1201.113(b). However, we FORWARD the appellant’s claims of whistleblower
retaliation to the Western Regional Office for docketing as a new individual right
of action (IRA) appeal.
¶2 The agency imposed the appellant’s removal due to the expiration of his
overseas tour and his failure to remain eligible for its Priority Placement
Program. Initial Appeal File (IAF), Tab 16 at 125-26. On the day that the agency
issued its decision, the appellant filed a complaint with the Office of Special
Counsel (OSC) regarding, among other things, the removal action . IAF, Tab 3
at 8-31. Subsequently, he sent an email to OSC requesting to withdraw his
complaint and OSC confirmed the withdrawal. Id. at 32, 65. He then filed the
instant appeal challenging his removal. IAF, Tab 1. The administrative judge
dismissed the appeal for lack of jurisdiction because she found that the appellant
made a binding election when he filed his OSC complaint. IAF, Tab 53, Initial
Decision (ID).
¶3 The appellant has filed a petition for review, the agency has responded in
opposition to the petition, and the appellant has replied. Petition for Review
(PFR) File, Tabs 1, 4-5. On September 23, 2016, after the record closed on
review, the appellant submitted a motion in which he sought leave from the Board
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to file an additional pleading. PFR File, Tab 6. The Board issued an order
granting the appellant’s motion and permitting him the opportunity to submit
specific documentation. PFR File, Tab 8. The appellant filed the document
specified in the Board’s order, and the agency submitted a response to the order
furnished by the appellant. 2 PFR File, Tabs 9-10.
¶4 By statute, an appellant who has been subjected to an action appealable to
the Board, and who alleges that he has been affected by a prohibited personnel
practice in retaliation for whistleblowing under 5 U.S.C. § 2302(b)(8) or in
retaliation for other protected activity under 5 U.S.C. § 2302(b)(9), may elect
one, and only one, of the following remedies: (1) an appeal to the Board under
5 U.S.C. § 7701; (2) a grievance filed under the provisions of a negotiated
grievance procedure; or (3) a complaint following the procedures for seeking
corrective action from OSC under 5 U.S.C. chapter 12, subchapters II and III.
5 U.S.C. § 7121(g); see Corthell v. Department of Homeland Security,
123 M.S.P.R. 417, ¶ 15 (2016); 5 C.F.R. § 1209.2(d)(1). The remedy that the
aggrieved employee seeks first is deemed an election of that procedure and
precludes pursuing the matter in either of the other two forums. Edwards v.
Department of the Air Force, 120 M.S.P.R. 307, ¶ 12 (2013). In determining the
appellant’s election, the administrative judge must consider whether any election
was knowing and informed. 5 U.S.C. § 7121(d), (g); see Agoranos v. Department
of Justice, 119 M.S.P.R. 498, ¶ 16 (2013).
¶5 We agree that, despite his assertions to the contrary, the appellant failed to
show nonreceipt of the first and fourth pages of the comprehensive notice of
2
The appellant filed several subsequent motions for leave to file an additional pleading.
PFR File, Tabs 13, 16, 18, 22, 27. Because the Board is forwarding the appellant’s
claims of whistleblower retaliation to the regional office for docketing as a new IRA
appeal, we find the additional evidence and argument he sought leave to submit, as
described by the appellant in these motions, to be immaterial to the outcome of this
appeal. Accordingly, the appellant’s motions for leave to submit additional evidence
and argument on review are denied.
4
rights, included with the removal decision, which explained the binding nature of
an initial election of remedies. ID at 5-6. Thus, we also agree that he did not
show that his election to file an OSC complaint was not knowing and informed.
Id. Accordingly, we affirm the administrative judge’s decision to dismiss this
appeal for lack of jurisdiction.
¶6 However, we forward the appellant’s claims of whistleblower retaliation for
docketing as an IRA appeal. On September 27, 2016, the appellant submitted a
previously unavailable OSC closeout letter, dated September 22, 2016, which
addressed his allegations regarding several agency actions, including his removal.
PFR File, Tab 9 at 34-36. As the appellant may now have become entitled to
bring an IRA appeal, we forward his whistleblower retaliation claims to the
Board’s Western Regional Office for docketing and adjudication as a new IRA
appeal as to the matters raised therein. 5 U.S.C. §§ 1214(a)(3), 1221(a); 5 C.F.R.
§ 1209.5(a). After docketing the appeal, the administrative judge should apprise
the appellant of the jurisdictional requirements for filing an IRA appeal. Graves
v. Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 12 (2016).
NOTICE OF APPEAL RIGHTS 3
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
3
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, th e
Board cannot advise which option is most appropriate in any matter.
5
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:
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
(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
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:
7
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
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. 4 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).
4
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.
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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.
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.