Wishart Smith v. Department of Veterans Affairs ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WISHART SMITH, DOCKET NUMBER
Appellant, NY-315H-16-0230-I-1
v.
DEPARTMENT OF VETERANS DATE: April 15, 2022
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Wishart Smith, Brooklyn, New York, pro se.
Kathleen J. Tulloch, Esquire, Brooklyn, New York, 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 appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
¶2 The Board’s chief administrative judge found, and the parties do not
dispute, that on October 18, 2015, the agency relied on its Veterans Recruitment
Appointment (VRA) authority to appoint the appellant, a preference -eligible
veteran, to the position of GS-6 Motor Vehicle Operator, subject to the
satisfactory completion of a 2-year probationary period. Initial Appeal File
(IAF), Tab 7, Initial Decision (ID) at 2. It is further undisputed that the agency
issued a decision to terminate his employment effective May 13, 2016, for
misconduct during his employment. ID at 2; IAF, Tab 6 at 13. He filed an appeal
disputing the charges. IAF, Tab 1 at 3.
¶3 The chief administrative judge issued an initial decision dismissing the
appeal for lack of jurisdiction, finding that, as a probationary employee with less
than 1 year of Federal civilian service, the appellant was not an “em ployee” as
defined at 5 U.S.C. § 7511 with adverse action appeal rights under 5 U.S.C.
chapter 75. ID at 4. He further found that the appellant failed to make a
nonfrivolous allegation of a claim within the Board’s jurisdiction pursuant to
5 C.F.R. § 315.806(b)-(c), i.e., discrimination based on partisan political reasons
or marital status, or that he was terminated for reasons a rising pre-appointment
without certain required procedures. ID at 4.
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¶4 The appellant has filed a petition for review, asserting that he has more than
2 years of military service and thus should satisfy the definition of “employee” in
5 U.S.C. § 7511. Petition for Review (PFR) File, Tab 1 at 2. He also asserts that,
although the underlying misconduct for his termination stemmed from criminal
charges, the charges have been dismissed. Id. The agency has opposed the
appellant’s petition. PFR File, Tab 3 at 3-4.
¶5 As a preliminary matter, we note that there is conflicting information in the
record regarding the nature of the appellant’s appointment. The agency asserted,
and the chief administrative judge found, that the appellant’s VRA appointment
was to a position in the excepted service. ID at 2. The appellant has not
contested this finding or argued otherwise. However, by definition, VRA
appointments “are excepted appointments . . . to positions otherwise in the
competitive service.” 5 C.F.R. § 307.103 (emphasis added). Further, the Standard
Form 50 documenting the appellant’s appointment does not refer to VRA
appointing authority, but rather indicates that he received an excepted
appointment pursuant to 5 C.F.R. § 213.3102(u), which concerns the appointment
of persons with intellectual disabilities, severe physical disabilities, or psychiatric
disabilities. IAF, Tab 6 at 16. In addition, the documents in the record are
inconsistent as to whether the appellant was required to serv e a 1-year or 2-year
probationary or trial period. Compare IAF, Tab 6 at 13, with id. at 16.
¶6 We find it unnecessary to resolve these discrepancies to resolve the
dispositive jurisdictional question in this appeal. Regardless of which of the
foregoing appointment scenarios applies, the appellant lacks Board appeal rights
under 5 U.S.C. chapter 75 or 5 C.F.R. part 315, subpart H. He cannot satisfy any
definition of “employee” set forth in 5 U.S.C. § 7511 because, at the time of his
termination, he had completed only approximately 7 months of his probation and
had less than 1 year of Federal civilian service. IAF, Tab 1 at 2; 5 U.S.C.
§ 7511(a)(1)(A)-(B). Further, even if he was eligible to appeal based on the
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limited regulatory grounds set forth in 5 C.F.R. § 315.806, 2 we agree with the
chief administrative judge that the appellant failed to make a nonfrivolous
allegation of one of those grounds. ID at 4-5.
¶7 The appellant’s claim on review that his 2 years of military service should
be considered for purposes of establishing jurisdiction , PFR File, Tab 1 at 2, is
without merit. The Board has held that military service may not be tacked on to
civilian service for the purpose of meeting the definitions of “employee” set forth
in 5 U.S.C. § 7511. Bell v. Department of Homeland Security, 95 M.S.P.R. 580,
¶¶ 16-17 (2004). The appellant also claims on review that his termination is
unsubstantiated because the criminal charges stemming from his misconduct have
been dismissed. PFR File, Tab 1 at 2. Such a claim is insufficient to raise a
nonfrivolous allegation of Board jurisdiction because it is irrelevant to the
question of whether the appellant has a statutory or regulatory basis for Board
jurisdiction. See 5 U.S.C. § 7511; 5 C.F.R. §§ 307.105, 315.806.
¶8 Because the appellant is not an “employee” within the meaning of 5 U.S.C.
§ 7511, and he has not alleged any basis for a regulatory right to review, ID
at 4-5; 5 C.F.R. §§ 307.105, 315.806, we agree with the chief administrative
judge that the appellant did not make a nonfrivolous allegation of jurisdiction,
and therefore, he has no appeal rights before the Board.
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).
2
The regulatory appeal rights set forth in 5 C.F.R. part 315, subpart H, generally apply
to appointees in the competitive service but not the excepted service. However, VRA
appointees are afforded these appeal rights during their first-year trial periods. 5 C.F.R.
§§ 307.105, 315.806.
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, 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, th e
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. 4 The court of appeals must receive your petition for
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
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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.
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.