Ahmed M. Nuri v. Department of the Army ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AHMED M. NURI, DOCKET NUMBER
Appellant, SF-1221-16-0293-W-1
v.
DEPARTMENT OF THE ARMY, DATE: November 10, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Ahmed M. Nuri, Pacific Grove, California, pro se.
Michael L. Halperin, Esquire, Monterey, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) 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 regulation or the erroneous application of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 Beginning in 2005, the appellant held a series of excepted service,
not-to-exceed, teaching positions with the agency’s Defense Language Institute
and Foreign Language Center (DLIFLC), ultimately advancing to the position of
Assistant Professor. Initial Appeal File (IAF), Tab 5 at 20, 34-35. In April 2015,
the agency advised him that there were some issues with his classroom
performance, and on June 24, 2015, that his lesson presentation failed to meet the
criteria for certification in “Principles of Language Learning.” Id. at 28-30. On
September 25, 2015, the appellant’s performance was rated as “needs
improvement, 1 or more objectives,” id. at 25-26, and, on October 16, 2015, the
Dean of the Middle East II School notified him that his appointment would not be
renewed beyond its current not-to-exceed date of October 27, 2015, id. at 23. He
was terminated on that date. Id. at 20.
¶3 On October 21, 2015, the appellant filed a complaint with the Office of
Special Counsel (OSC) in which he alleged that the agency had terminated his
appointment after 20 years of good service for a reason that did not support such
a harsh penalty and that the real reason for the agency’s action was that he had
signed many “petitions,” along with other coworkers, protesting gross
mismanagement, abuse of authority, and favoritism by the agency. IAF, Tab 3
3
at 6. He indicated that he had filed actions since 2008 against various members
of management, the last being a class action he filed on October 31, 2015,
regarding “Rank Advancement.” Id. The other actions he referenced included an
October 15, 2015 grievance, an April 22, 2014 equal employment opportunity
(EEO) complaint, a March 22, 2015 unfair labor practice (ULP) charge filed with
the Federal Labor Relations Authority, and a September 15, 2015 report to the
Office of Inspector General (OIG). Id. at 5. According to the appellant, he was
terminated in retaliation for these filings Id. at 6. On January 29, 2016, OSC
issued its letter closing its investigation. IAF, Tab 1 at 8.
¶4 On appeal, the appellant reiterated his claim that, when he was terminated,
the agency provided no reason and that the real reason was that, in his many
petitions, he exposed gross violations of Federal and state labor laws on the part
of the agency. Id. at 5. He requested a hearing before the Board. Id. at 2.
¶5 The administrative judge issued a thorough order setting out the
requirements for the appellant to establish jurisdiction and proof on the merits of
his IRA appeal. IAF, Tab 6. The agency moved that the appeal be dismissed for
lack of jurisdiction on the basis that it had legitimate reasons for terminating the
appellant’s appointment. IAF, Tab 5. In response, he challenged the merits of
the termination and described in more detail the numerous actions he had filed,
those referenced in his OSC complaint and others. IAF, Tab 7. Noting that the
appellant had failed to respond to his first order on jurisdiction and proof
requirements, the administrative judge afforded him a final opportunity to do so,
IAF, Tab 8, and the appellant filed a response, IAF, Tab 9.
¶6 In an initial decision based on the written record, the administrative judge
first found that the appellant’s termination on the date his current not-to-exceed
appointment was to expire was not an adverse action appealable to the Board and
that therefore his claims could only be considered in the context of an IRA
appeal. IAF, Tab 10, Initial Decision (ID) at 4-5. The administrative judge then
found that the appellant had exhausted his administrative remedy before OSC as
4
to the following activities: (1) a November 24, 2008 OIG complaint alleging
agency violations of 5 U.S.C. § 2302(b)(1) and (7); 2 (2) an April 22, 2014 3 EEO
complaint alleging discrimination and favoritism in hiring; (3) a March 22, 2015
ULP alleging abuses in the hiring system; (4) an August 31, 2015 class action
complaint filed in U.S. District Court for the Northern District of California
alleging unfairness in the criteria for rank advancement; 4 (5) a September 15,
2015 matter he reported to the OIG; and (6) an October 15, 2015 grievance he
filed alleging that the agency had unfairly evaluated his work performance. ID
at 6-7. The administrative judge found that the appellant failed to exhaust his
remedy as to other actions he raised on appeal because he did not identify them in
his complaint to OSC. ID at 7-8.
¶7 Addressing the appellant’s claim of retaliation for filing the EEO complaint
(activity 2), the ULP (activity 3), the class complaint (activity 4), and the
grievance (activity 6), the administrative judge found that the appellant failed to
nonfrivolously allege that any of these actions sought to remedy whistleblower
retaliation, as required under 5 U.S.C. §§ 1221(a), 2302(b)(9)(A), and that
therefore the Board lacks jurisdiction to consider such claims in the context of an
IRA appeal. ID at 10-12. Finding that the appellant had failed to nonfrivolously
allege that the OIG complaints he filed (i.e., activities 1 and 5) were contributing
factors to the agency’s action terminating his employment, ID at 13-15, the
administrative judge dismissed the appeal for lack of jurisdiction, ID at 1, 15.
2
Section 2302(b)(7) addresses nepotism in hiring.
3
The actual date of this complaint appears to be March 21, 2014. IAF, Tab 7 at 25.
4
The appellant filed these first four actions on behalf of numerous other DLIFLC
faculty members. IAF, Tab 7 at 11-14, 25-27, 35, 37-43.
5
¶8 The appellant has filed a petition for review, 5 Petition for Review (PFR)
File, Tab 1, the agency has responded, PFR File, Tab 3, and the appellant has
filed a reply, PFR File, Tab 4.
¶9 On review, the appellant argues that he is an employee entitled to appeal his
removal to the Board and that he was denied the due process rights attendant to
such an action. PFR File, Tab 1 at 2-5, 11. He also argues that the agency failed
to consider the relevant factors in determining the reasonableness of the penalty.
Id. at 4. And, he contends that the agency based the action on 5 U.S.C.
chapter 43, but failed to afford him the procedural protections required under
chapter 43. Id. at 4-5.
¶10 To have Board appeal rights under 5 U.S.C. chapter 75, an individual must
be an “employee” as defined by section 7511 (a)(1)(C)(i) or (ii) and must have
suffered an “adverse action.” 5 U.S.C. §§ 7511(a), 7512(1), 7513(d). The
administrative judge correctly explained, however, that when, as here, an
appointment’s expiration is specified as a basic condition of employment, the
expiration of the appointment is not an adverse action appealable to the Board,
and there is no further right to Federal employment upon the appointment’s
expiration. See Endermuhle v. Department of the Treasury, 89 M.S.P.R. 495, ¶ 9
(2001); Leonard v. Department of the Army, 78 M.S.P.R. 492, 494 (1998); see
5 C.F.R. §§ 752.401(b)(11). As such, even if the appellant qualified as an
“employee” within the statutory definition, no appealable adverse action occurred
because his employment ended on October 27, 2015, when the final not-to-exceed
appointment expired. IAF, Tab 5 at 20, 23; see Scott v. Department of the
Air Force, 113 M.S.P.R. 434, ¶ 9 (2010). Accordingly, as correctly determined
by the administrative judge, the Board lacks jurisdiction over this appeal under
5 U.S.C. chapter 75. For that reason, the Board cannot consider the appellant’s
5
With his petition, the appellant stated that he provided a list of 15 “Attached
Documents.” PFR File, Tab 1 at 13. He has not, however, submitted any
such documents.
6
claims regarding due process rights or the reasonableness of the penalty. Further,
as to the appellant’s claim that terminating his appointment was actually a
performance-based action over which the Board has jurisdiction, the fact that an
agency considers an employee’s performance in deciding not to reappoint him
fails to establish jurisdiction. Scott, 113 M.S.P.R. 434, ¶ 9 (citing Shelton v.
Federal Deposit Insurance Corporation, 38 M.S.P.R. 303, 306 (1988)).
¶11 On review, the appellant next argues that the administrative judge
improperly considered OSC’s closure letter in determining that he failed to
establish exhaustion. PFR File, Tab 1 at 6-8. Title 5 U.S.C., section 1221(f)(2)
does provide that OSC’s decision to terminate its investigation may not be
considered in an IRA appeal. However, “[t]he purpose of this evidentiary
rule . . . is to ensure that a whistleblower is not ‘penalized’ or ‘prejudiced’ in any
way by OSC’s decision not to pursue a case.” Costin v. Department of Health &
Human Services, 64 M.S.P.R. 517, 531 (1994). There is no statutory violation in
the Board’s considering of OSC’s closure letter solely to determine the issue of
exhaustion. 6 Lewis v. Department of Defense, 123 M.S.P.R. 255, ¶ 10 (2016).
¶12 Next, the appellant argues on review that the administrative judge ignored a
disclosure he made on July 19, 2013, to his dean regarding his supervisor
allegedly violating 5 U.S.C. § 2302(b)(8) by engaging in mismanagement and
violating school rules and regulations. PFR File, Tab 1 at 8, 10. Although the
appellant insists that he set forth this argument “in his appeal to OSC,” id. at 8,
6
The appellant argues that, because he appeared pro se before OSC, he “should not be
punished for failing to comply with the stringent standards of an adversarial, court-like
process during the informal preliminary stage of OSC’s complaint process.” PFR File,
Tab 1 at 8. The Board has no control over the manner in which OSC processes
complaints or the resolutions reached there. While the appellant also appeared pro se
before the Board, the consideration that the Board affords pro se litigants as they pursue
their appeals does not extend to a less strict interpretation of the law. And, to the
extent the appellant suggests that he was hampered in presenting his appeal because he
appeared without representation, it is well settled that an appellant is responsible for the
errors of his chosen representative. Sofio v. Internal Revenue Service, 7 M.S.P.R. 667,
670 (1981).
7
the administrative judge found, ID at 7-8, and we agree, that the appellant did not
do so, IAF, Tab 3. Because the test of the sufficiency of an employee’s charges
of whistleblowing to OSC is the statement that he makes in the complaint
requesting corrective action, not his post hoc characterization of those statements,
Ellison v. Merit Systems Protection Board, 7 F.3d 1031, 1036 (Fed. Cir. 1993),
the appellant has not shown that the administrative judge erred in failing to
consider this matter.
¶13 The appellant further argues on review that the administrative judge erred in
finding that he failed to nonfrivolously allege that his 2008 OIG complaint was a
contributing factor in the agency’s decision to terminate him. PFR File, Tab 1
at 10. Although the appellant disputes that conclusion, he does not challenge the
administrative judge’s underlying finding that the appellant failed to
nonfrivolously allege that the individual who issued him the termination letter
had knowledge of the appellant’s 2008 OIG complaint and his further finding that
the appellant’s alleged protected activity in 2008 was too remote in time to have
been a contributing factor to the appellant’s 2015 termination. ID at 13. Thus,
the appellant has not shown error in the administrative judge’s finding that the
appellant failed to nonfrivolously allege that, based on the knowledge/timing test,
his 2008 OIG complaint was a contributing factor to his 2015 termination. Carey
v. Department of Veterans Affairs, 93 M.S.P.R. 676, ¶ 11 (2003).
¶14 The administrative judge then properly considered whether the appellant
raised claims that might otherwise constitute a nonfrivolous allegation of
contributing factor; specifically, that the agency’s reasons for taking the action
were weak, that the whistleblowing was personally directed at the official who
took the action, and that that individual had a motive to retaliate against the
appellant. Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶ 15 (2012); ID
at 13. Here, the administrative judge found that, because an agency can terminate
an employee at the end of a not-to-exceed appointment for any or no reason, the
concerns the agency had with the appellant’s performance could provide a basis
8
for doing so. ID at 14. On review, the appellant seeks to correct the
administrative judge’s misconstruing of facts, denying that he ever made any
disclosure against the individual who issued him the termination notice. PFR
File, Tab 1 at 10. In fact, the administrative judge specifically found that the
appellant’s 2008 OIG complaint was not directed at that individual and that there
was no evidence that she knew about it. ID at 13-14. Because we have found
that the appellant was not entitled to due process in this termination action, we
reject as wholly unsupported his suggestion that that individual’s alleged
violation of his due process rights in taking the action somehow evidenced her ill
motive. As such, the administrative judge properly found that the appellant failed
to establish that his 2008 OIG complaint was a contributing factor in his
termination. 7
¶15 In sum, we conclude that the appellant has not shown that the administrative
judge erred in dismissing this IRA appeal for lack of jurisdiction.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the
U.S. Court of Appeals for the Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
7
The appellant does not challenge on review the administrative judge’s finding that the
appellant failed to nonfrivolously allege that his September 15, 2015 OIG complaint
was a contributing factor in his termination because he did not submit a copy of the
complaint or otherwise provide any facts about it. ID at 14-15. We discern no basis to
disturb that finding.
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If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the U.S. Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction. The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time. You may choose to request review of the
Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
court of appeals of competent jurisdiction, but not both. Once you choose to seek
review in one court of appeals, you may be precluded from seeking review in any
other court.
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
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, and 11. Additional
information about other 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.
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
10
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.