Christopher Robinson v. Department of the Navy ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTOPHER ROBINSON, DOCKET NUMBER
Appellant, PH-315H-20-0373-I-1
v.
DEPARTMENT OF THE NAVY, DATE: May 25, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Christopher Robinson, Rochester, New Hampshire, pro se.
Matthew L. Schmid, Portsmouth, New Hampshire, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his 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 based
on an erroneous interpretation of statute or regulation or the erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 Boar d’s
final decision. 5 C.F.R. § 1201.113(b).
¶2 On petition for review, 2 the appellant does not challenge the administrative
judge’s findings that he failed to make a nonfrivolous allegation that the Board
had jurisdiction over his appeal and that he acknowledged that he was terminated
during his probationary period. Petition for Review (PFR) File, Tab 1 at 4-6;
Initial Appeal File (IAF), Tab 5, Initial Decision (ID) at 2-4. The appellant also
does not challenge the administrative judge’s finding that the agency satisfied
the regulatory requirement of providing written notice of the termination. PFR
File, Tab 1 at 4-6; ID at 4; see 5 C.F.R. § 315.804(a) (stating that, when an
agency terminates an employee serving a probationary or tr ial period because of
performance or conduct, it must provide the employee written notice as to why
he is being separated and the effective date of the action). Rather, the appellant
2
The appellant filed his petition for review 1 day after the presumptive date on which
the initial decision became final, and the Acting Clerk of the Board issued an
acknowledgment letter informing the appellant that his petition appeared to be
untimely. Petition for Review File, Tab 3 at 1-2. In light of the Board’s finding that it
lacks jurisdiction over the appeal, we need not address the issue of the timeliness of the
petition for review. See Rosell v. Department of Defense, 100 M.S.P.R. 594, ¶ 5 (2005)
(explaining that, when the Board clearly lacks jurisdiction over an appeal, and the
existing record suggests that the question of timeliness is close, the better practice is to
dismiss the case for lack of jurisdiction), aff’d, 191 F. App’x 954 (Fed. Cir. 2006).
3
repeats his arguments about the merits of his termination and maintains that it
was related to his mental health issues. PFR File, Tab 1 at 5; IAF, Tab 1 at 14.
He states that he has been “struggling to find legal representation” and
translation support for his appeal, as he is deaf and uses American Sign
Language. PFR File, Tab 1 at 4. Finally, the appellant requests from the Board
“more time to explain [his] jurisdiction about why [he] was wrongly terminated. ”
Id.¶3 At the time of the appellant’s May 28, 2019 appointment, in order to qualify
as an “employee” of the Department of Defense with Board appeal rights under
chapter 75, an individual appointed to the competitive service had to show that
he was not serving a probationary period or had completed 2 years of “current
3
continuous service” under appointment to a permanent position. 5 U.S.C.
§ 7511(a)(1)(A)(ii); 10 U.S.C. § 1599e; Bryant v. Department of the Army,
2022 MSPB 1, ¶¶ 8-10 (finding that the appellant, who was appointed to a
competitive service position at the Department of the Army while 10 U.S.C.
§ 1599e was in effect, was subject to a 2-year probationary period); IAF, Tab 4
at 42. For purposes of 10 U.S.C. § 1599e, the “Department of Defense” included
the Department of the Navy, the appellant’s employing agency. See Bryant,
2022 MSPB 1, ¶ 8 n.2.
¶4 Effective May 29, 2020, less than 2 years after his initial appointment, the
agency terminated the appellant. IAF, Tab 4 at 38-41. As noted by the
3
Congress enacted the National Defense Authorization Act for Fiscal Year 2016 (2016
NDAA) on November 25, 2015, Pub. L. No. 114-92, 129 Stat. 726. The 2016 NDAA
extended the probationary period for an individual appointed to a permanent
competitive-service position at the Department of Defense to a 2-year probationary
period and provided that such individual only qualifies as an “employee” under
5 U.S.C. § 7511(a)(1)(A)(ii) if he has completed 2 years of current continuous service.
Pub. L. No. 114-92, § 1105, 129 Stat. 726, 1023-24 (codified as relevant here
at 10 U.S.C. § 1599e and 5 U.S.C. § 7511(a)(1)(A)(ii)). The National Defense
Authorization Act for Fiscal Year 2022, enacted on December 27, 2021, repealed
10 U.S.C. § 1599e and the 2-year probationary period, effective December 31, 2022.
Pub. L. No. 117-81, § 1106, 135 Stat. 1541, 1950.
4
administrative judge, the appellant acknowledged that he had not completed his
probationary period at the time of his termination. ID at 3; IAF, Tab 1 at 1, 3.
Moreover, the appellant has not alleged that he had 2 years of current continuous
service, and he stated in his initial appeal form that his length of Government
service was 1 year. IAF, Tab 1 at 1.
¶5 Finally, there is no regulatory basis for his appeal under the provisions set
forth in 5 C.F.R. part 315, subpart H. Although the appellant repeats on review
his allegations that his termination was related to his mental health condition, a
probationary employee may file a termination appeal alleging disability
discrimination only if the discrimination is raised in addition to allegations that
the action is based on marital status or for partisan political reasons, or because
of conditions arising before appointment to the position in question. PFR File,
Tab 1; IAF, Tab 1 at 14; see 5 C.F.R. §§ 315.805-.806(b)-(d). The appellant has
raised no allegations on appeal or review relevant to the limited regulatory right
of appeal for probationers in the competitive service. PFR File, Tab 1 at 5; IAF,
Tab 1 at 14. Therefore, we agree with the administrative judge that the appellant
has not raised nonfrivolous allegations that the Board has jur isdiction over his
appeal. ID at 4; see Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994)
(stating that an appellant is entitled to a jurisdictional hearing if he presents
nonfrivolous allegations of Board jurisdiction).
¶6 Accordingly, we affirm the initial decision.
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).
4
Since the issuance of the initial decision in this matter, the Board m ay 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.
5
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:
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.
6
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
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
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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
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
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
8
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.
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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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.