Wanda Myers v. Department of Veterans Affairs ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WANDA L. MYERS, DOCKET NUMBER
Appellant, AT-3443-17-0039-I-1
v.
DEPARTMENT OF VETERANS DATE: February 28, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Fateen Anthony Bullock, Esquire, and James Jones, Atlanta, Georgia, for
the appellant.
Deetric M. Hicks, Decatur, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only in the following circumstances: the initial decis ion contains
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the c ourse 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 appellant filed the instant appeal challenging her nonselection for a
promotion following a desk audit and requested a hearing. Initial Appeal File
(IAF), Tab 1. The administrative judge informed the appellant that she ha d the
burden of establishing jurisdiction by preponderant evidence and ordered her to
file evidence and argument that this appeal was within the Board’s jurisdiction. 2
IAF, Tab 4. Although the appellant did not respond, the agency responded and
moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 5. Without
holding the appellant’s requested hearing, the administrative judge dismissed the
2
The administrative judge did not notify the appellant that the Board has jurisdiction
over certain nonselection appeals, such as when the appellant alleges that her veterans’
preference rights have been violated, claims of discrimination based upon her military
service, or assertions of whistleblower reprisal. IAF, Tab 4. However, because the
initial decision put the appellant on notice of what she must do to meet her
jurisdictional burden regarding such claims, this omission has been cured. See
Caracciolo v. Department of the Treasury, 105 M.S.P.R. 663, ¶ 12 (2007) (finding that
the administrative judge’s failure to inform the appellant that she was required to show
an actual lowering of pay to establish jurisdiction in a reduction-in-pay appeal was
cured because the administrative judge mentioned this requirement in the initial
decision), overruled on other grounds by Brookins v. Department of the Interior ,
2023 MSPB 3.
3
appeal for lack of jurisdiction, finding that the Board generally does not have
jurisdiction over nonselections such as this one and that the appellant failed to
allege jurisdiction under any of the exceptions to th is general rule. IAF, Tab 6,
Initial Decision (ID).
¶3 The appellant has filed a petition for review and a supplement thereto , and
the agency has responded in opposition to the appellant’s petition. Petition for
Review (PFR) File, Tabs 1-2, 4. 3 In her petition for review, the appellant
challenges the merits of her nonselection. PFR File, Tab 1. However, as
discussed below, these contentions do not provide a basis for disturbing the initial
decision.
¶4 As the administrative judge stated, the Board’s jurisdiction is limited to
those matters over which it has been given jurisdiction by law, rule , or regulation.
ID at 2; see Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir.
1985). We agree with the administrative judge that the Board generally does not
have jurisdiction over promotion denials or classification matters. ID at 2; see
5 U.S.C. §§ 7512, 7513; Mapstone v. Department of the Interior, 106 M.S.P.R.
691, ¶ 7 (2007). Further, we agree with the administrative judge that, although
the Board has jurisdiction over certain nonselections under the Veterans
Employment Opportunities Act of 1998 and the Uniformed Services Employment
and Reemployment Rights Act of 1994 (USERRA), the Board does not have such
jurisdiction here because of the following: the appellant indicated that she was
not entitled to veterans’ preference, she did not claim that the agency violated her
rights under USERRA, and there is otherwise no indication that she is asserting
such claims. ID at 3; IAF, Tab 1; see 5 U.S.C. §§ 3330a, 3330b; 38 U.S.C.
§§ 4301-4335. Additionally, we agree with the administrative judge that the
Board does not have jurisdiction over this appeal as an individual right of action
3
On review, the appellant attaches evidence that she previously submitted below. PFR
File, Tabs 1-2. Because this evidence is neither new nor material, we have not
considered it. 5 C.F.R. § 1201.115(d).
4
(IRA) appeal because there is no evidence that the appellant exhausted her
administrative remedies before the Office of Special Counsel (OSC) or made
nonfrivolous allegations of the required elements in such an appeal. ID at 3 n.2;
see 5 U.S.C. §§ 1214(a)(3), 1221(e)(1), 2302(a), (b)(8),(9)(A)(i),(B),(C),(D); see
also Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). 4
Finally, absent an otherwise appealable action, the appellant’s other claims do not
provide an independent basis for finding Board jurisdiction. Davis v. Department
of Defense, 103 M.S.P.R. 516, ¶ 11 (2006).
NOTICE OF APPEAL RIGHTS 5
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).
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.
4
Under the Whistleblower Protection Enhancement Act of 2012, the Board has
jurisdiction over an IRA appeal if the appellant has exhausted h er administrative
remedies before OSC and makes nonfrivolous allegations of the following: (1) she
made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in
protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and
(2) the disclosure or protected activity was a contributing factor in the agency’s
decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). See
Salerno, 123 M.S.P.R. 230, ¶ 5.
5
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
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.
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
6
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 rece ives 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 or igin, 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
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:
7
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. 6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
6
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
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.
8
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 Federa l
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.
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.