Christopher R. Chin-Young v. Department of Transportation ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTOPHER R. CHIN-YOUNG, DOCKET NUMBER
Appellant, AT-0752-11-0699-I-2
v.
DEPARTMENT OF DATE: September 1, 2015
TRANSPORTATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Christopher R. Chin-Young, Alpharetta, Georgia, pro se.
William P. Vines, Esquire, Atlanta, Georgia, 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 for lack of jurisdiction his appeal of a reassignment. For the reasons
discussed below, we GRANT the appellant’s petition for review, MODIFY the
initial decision, and DISMISS the appeal for lack of jurisdiction on different
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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grounds. Except as expressly MODIFIED by this Final Order to correct the
administrative judge’s analysis concerning exhaustion, we AFFIRM the initial
decision.
¶2 On June 7, 2011, the appellant filed an appeal of an April 2009
reassignment from one position to another position at the same grade and pay.
Chin Young v. Department of Transportation, MSPB Docket No. AT-0752-11-
0699-I-1, Initial Appeal File (I-1 IAF), Tab 1. The administrative judge
dismissed the appeal without prejudice on September 29, 2011, pending
resolution of the appellant’s equal employment opportunity (EEO) complaint
concerning the same matter. I-1 IAF, Tab 6.
¶3 When the EEO process finally concluded, the appellant timely refiled his
appeal on January 14, 2014. Chin Young v. Department of Transportation, MSPB
Docket No. AT-0752-11-0699-I-2, Initial Appeal File (I-2 IAF), Tab 1. He
asserted for the first time that his reassignment constituted reprisal for
whistleblowing. I-2 IAF, Tab 3 at 1. The administrative judge issued an order
apprising the appellant of the jurisdictional requirements in an individual right of
action (IRA) appeal and ordering him to submit evidence and argument on the
jurisdictional issue. I-2 IAF, Tab 4. After affording the parties the opportunity to
respond, the administrative judge dismissed the appeal for lack of IRA
jurisdiction without a hearing on the basis that the appellant did not prove that he
exhausted his administrative remedies before the Office of Special Counsel
(OSC). I-2 IAF, Tab 11, Initial Decision (ID) at 3. He also found that the Board
otherwise lacked jurisdiction over the appellant’s reassignment. Id.¶4 The Board has jurisdiction over an IRA appeal if the appellant has
exhausted his administrative remedies before OSC and makes nonfrivolous
allegations that: (1) he engaged in whistleblowing activity by making a protected
disclosure; and (2) the disclosure was a contributing factor in the agency’s
decision to take or fail to take a personnel action. Yunus v. Department of
Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). To satisfy the exhaustion
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requirement of 5 U.S.C. § 1214(a)(3), an appellant must inform OSC of the
precise ground of his charge of whistleblowing, giving OSC a sufficient basis to
pursue an investigation which might lead to corrective action. Ward v. Merit
Systems Protection Board, 981 F.2d 521, 526 (Fed. Cir. 1992).
¶5 The administrative judge correctly found that an appellant’s interactions
with OSC’s Disclosure Unit do not satisfy the exhaustion requirement. See
Clemente v. Department of Homeland Security, 101 M.S.P.R. 519, ¶ 13 (2006);
ID at 3. He was mistaken, however, in finding that the appellant’s
communications in this case were with the Disclosure Unit. ID at 3. In his
response to the administrative judge’s jurisdictional order, the appellant
submitted a copy of his initial complaint to OSC. I-2 IAF, Tab 5 at 7-12. He also
submitted a copy of a letter from an attorney in the Complaints Examining Unit
setting forth OSC’s preliminary conclusions, id. at 4-5, and a brief closure letter,
id. at 6. Because the administrative judge’s findings of fact are contradicted by
record evidence, we modify the initial decision.
¶6 However, we find that the record is sufficiently developed to permit us to
resolve the initial jurisdictional issue without a remand. In his OSC complaint,
the appellant alleged that he was displaced from his position and reassigned to
make room for an unqualified individual who was a personal friend of the
relevant manager. Id. at 10. He did not claim that he made a protected disclosure
or that that the agency took reprisal against him for protected whistleblowing.
Similarly, in its correspondence, OSC characterizes the appellant’s allegations as
potential violations of 5 U.S.C. § 2302(b)(4)-(b)(6). Id. at 4-5. While OSC’s
opinions and conclusions are not binding on the Board, 2 considering the content
of the appellant’s OSC complaint, we agree with OSC’s conclusion that the
appellant alleged that the agency committed prohibited personnel practices but
did not allege reprisal for whistleblowing. Therefore, the appellant has not shown
2
Because an IRA appeal is a de novo action, OSC’s statements and findings cannot be
dispositive. Smith v. Department of Agriculture, 64 M.S.P.R. 46, 55 (1994).
4
that he exhausted his administrative remedies before OSC and the Board lacks
IRA jurisdiction over this appeal. See Finston v. Health Care Financing
Administration, 83 M.S.P.R. 100, ¶¶ 9-10 (1999).
¶7 Similarly, because, as the administrative judge correctly found, the Board
lacks jurisdiction over reassignments that do not involve a reduction in pay or
grade, the appellant has not otherwise established jurisdiction over his
reassignment. See Lopez v. Department of the Navy, 108 M.S.P.R. 384, ¶ 18
(2008).
¶8 Finally, the appellant has submitted a number of documents with his
petition for review. Most of these documents already are part of the record.
Petition for Review (PFR) File, Tab 1 at 4-6, 11-29. Evidence that is already a
part of the record is not new. Meier v. Department of the Interior, 3 M.S.P.R.
247, 256 (1980). Some of the documents that the appellant submits on review are
not in the record below. PFR File, Tab 1 at 7-10. However, with one exception,
they all predate the close of the record below. Under 5 C.F.R. § 1201.115, the
Board 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. Avansino v. U.S. Postal Service, 3 M.S.P.R.
211, 214 (1980). The appellant has not made such a showing. In any event, none
of the documents shed any light on the question of whether the appellant
exhausted his administrative remedies. Because they are neither new nor
material, we have not relied upon them. See Ellis v. U.S. Postal Service,
121 M.S.P.R. 570, ¶¶ 6-7 (2014).
¶9 Accordingly, we dismiss the appeal for lack of jurisdiction.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
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request review of this final decision by the United States 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).
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 United States 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 United States 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 United States 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
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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
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to the
United States 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 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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.