Chatchai Udomporn v. Department of the Air Force ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHATCHAI UDOMPORN, DOCKET NUMBER
Appellant, SF-1221-15-0064-W-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: May 1, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Chatchai Udomporn, Palmer, Alaska, pro se.
Jason A. VanWagner, Andrews Air Force Base, Maryland, 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A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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 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. See
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, and based on the
following points and authorities, 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 appellant filed a prohibited personnel practice complaint with the
Office of Special Counsel (OSC) arguing, among other things, that he was
retaliated against for filing a grievance against his employing agency in April
2010. Initial Appeal File (IAF), Tab 1. OSC issued the appellant a close-out
letter informing him of his right to file a request for corrective action with the
Board, which he timely filed. Id. Based on the broad nature of the appellant’s
allegations supporting his request for corrective action, the administrative judge
apprised the appellant of several different ways he could establish the Board’s
jurisdiction over an IRA appeal. IAF, Tab 3. In response, the appellant
challenged both the administrative judge’s impartiality and the substantive
standards for establishing jurisdiction over an IRA appeal, IAF, Tab 11, and the
agency subsequently filed a narrative response and motion to dismiss for lack of
jurisdiction, IAF, Tab 8.
¶3 The administrative judge issued an initial decision dismissing the
appellant’s IRA appeal for lack of jurisdiction on two separate grounds. IAF, Tab
13, Initial Decision (ID). First, the administrative judge found that the appellant
failed to exhaust his administrative remedies with OSC regarding a possible claim
of whistleblower reprisal under 5 U.S.C. § 2302(b)(8) because he failed to
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demonstrate that he specifically presented his allegation of whistleblower reprisal
to OSC prior to filing his IRA appeal. ID at 3-4. Next, the administrative judge
found that the Board lacked jurisdiction over the appellant’s allegation of reprisal
based on his filing a grievance in April 2010 under 5 U.S.C. § 2302(b)(9) because
prior to December 27, 2012 (the effective date of the Whistleblower Protection
Enhancement Act of 2012 (WPEA), Pub. L. No. 112-199, 126 Stat. 1465), the
Board lacked IRA jurisdiction over an allegation of a prohibited personnel
practice under section 2302(b)(9). ID at 5-6; see Miller v. Federal Deposit
Insurance Corporation, 122 M.S.P.R. 3, ¶ 13 (2014) (prior to the enactment of
the WPEA, an individual could only seek corrective action from the Board for
retaliation for whistleblowing under section 2302(b)(8)). In his initial decision,
the administrative judge further explained that, although an employee can now
file an IRA appeal under the WPEA based on an allegation of reprisal for filing a
grievance under section 2302(b)(9)(A)(i), 2 this right only extends to such
allegations of reprisal occurring on or after the effective date of the WPEA. ID at
6 (citing King v. Department of the Air Force, 119 M.S.P.R. 663, ¶¶ 17-18
(2013)).
¶4 The appellant has filed a lengthy petition for review challenging the
jurisdictional dismissal of his appeal, the impartiality of the administrative judge,
and the Board’s general processes for adjudicating IRA appeals. Petition for
Review (PFR) File, Tab 1. The agency has filed a response in opposition to the
petition for review, and the appellant has filed a reply. PFR File, Tabs 3, 6.
¶5 Generally, the Board has jurisdiction over an IRA appeal only if the
appellant exhausts his administrative remedies with OSC. See Edwards v.
Department of the Air Force, 120 M.S.P.R. 307, ¶ 15 (2013). To properly
exhaust his administrative remedies before OSC, the appellant must show either
2
Section 2302(b)(9)(A)(i) further requires that the grievance must concern “remedying
a vio lation of [section 2302(b)(8)],” i.e., a grievance challenging alleged whistleblower
reprisal.
4
(a) OSC has notified him that an investigation concerning him has been
terminated and no more than 60 days have elapsed since notification was
provided to him; or (b) 120 days have elapsed since he sought corrective action
from OSC, and he has not been notified by OSC that it shall seek corrective
action on his behalf. Id. The Board has consistently held that it may only
consider the specific allegations of reprisal which have been presented to OSC.
See Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶ 14 (2004). The Board’s
jurisdiction over an IRA appeal is thus limited to the issues the appellant
specifically raised before OSC, and an appellant must articulate with reasonable
clarity and precision before OSC the basis for his request for corrective action in
order to provide OSC with a sufficient basis to pursue an investigation that could
lead to corrective action. Id.
¶6 We agree with the administrative judge that, to the extent that the appellant
attempted to raise a claim of whistleblower reprisal under section 2302(b)(8) in
his IRA appeal, he failed to present evidence that he exhausted his specific
alleged protected disclosures with OSC. ID at 2-3. We fully concur with the
administrative judge that the appellant’s submission lacks any specificity
regarding alleged reprisal for making a protected disclosure under section
2302(b)(8). See Rzucidlo v. Department of the Army, 101 M.S.P.R. 616, ¶ 17
(2006) (vague and conclusory allegations of wrongdoing do not constitute
nonfrivolous allegations establishing Board jurisdiction); ID at 2-3.
¶7 We further agree with the administrative judge that the appellant cannot
establish the Board’s jurisdiction over his IRA appeal under the expanded
provisions of the WPEA. ID at 5-6. Under the WPEA’s expanded IRA
provisions, an employee may now seek corrective action from the Board
concerning any personnel action taken, or proposed to be taken, against him as a
result of a prohibited personnel practice described in section 2302(b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D). See Miller, 122 M.S.P.R. 3, ¶ 15. The
Board has held, however, that an employee cannot bring an IRA appeal under one
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of these new IRA provisions based on events that occurred before the
December 27, 2012 effective date of the WPEA. Id. Here, the appellant alleged
that he was retaliated against for filing a grievance in April 2010, over 2 years
prior to the WPEA’s effective date. 3 We therefore agree with the administrative
judge that the appellant is unable to establish the Board’s jurisdiction under the
expanded IRA provisions of the WPEA, and we AFFIRM the jurisdictional
dismissal of the initial appeal. 4
¶8 Finally, we find that the appellant has not carried his heavy burden of
establishing administrative judge bias. See, e.g., Tyler v. U.S. Postal
Service, 90 M.S.P.R. 545, ¶ 6 (2002). Here, the appellant’s claim of bias focuses
on the administrative judge’s issuance of the Board’s standard acknowledgment
order and a separate jurisdictional order explaining the relevant standards of
proof. See IAF, Tab 9. In order to prove his claim of bias, the appellant must
show that the alleged bias constitutes extrajudicial conduct rather than conduct
arising in the administrative proceedings before the administrative judge. See
Tyler, 90 M.S.P.R. 545, ¶ 6. The appellant’s claims, however, focus on the
administrative judge’s conduct and the orders he issued during the proceedings
below and thus fail to demonstrate a claim of bias. Id.
3
In Miller, the Board further found that the WPEA’s expanded provisions should not be
applied to events predating the effective date of the WPEA even when the request for
corrective action has been filed with the Board after the WPEA’s effective date. See
Miller, 122 M.S.P.R. 3, ¶ 15 n.5. Thus, it is of no moment that the appellant filed h is
request for corrective action with the Board after the WPEA’s effective date. See id.,
¶ 13 (find ing that the Board lacked jurisdiction over claims under section 2302(b)(9)
based on the law in effect at the time of the events at issue).
4
To file an IRA appeal based on alleged retaliation under section 2302(b)(9)(A)(i), the
appellant must allege that he filed a grievance, complaint, or appeal as to remedying an
alleged violation of whistleblower reprisal under section 2302(b)(8). See Mudd v.
Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 (2013). The April 2010
grievance at issue did not concern remedying an alleged vio lation of section 2302(b)(8).
See PFR File, Tab 1, Subtab 46 (copy of the April 2010 grievance). Thus, even if the
WPEA’s expanded IRA provisions applied, which they do not, the appellant’s activity
would fall outside of the Board’s expanded IRA jurisdiction under section
2302(b)(9)(A)(i). See Mudd, 120 M.S.P.R. 365, ¶ 7.
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¶9 Accordingly, the administrative judge’s jurisdictional dismissal of the
appellant’s IRA appeal is AFFIRMED.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to 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
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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
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 your court
appeal, 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.