Barry A. Ormond v. Department of Justice ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BARRY A. ORMOND, DOCKET NUMBER
Appellant, DC-3443-14-0179-I-1
v.
DEPARTMENT OF JUSTICE, DATE: October 21, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Barry A. Ormond, Chesterfield, Virginia, pro se.
John T. LeMaster, Esquire, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant, who mandatorily retired from his Human Resources
Specialist position in April 2013, filed a Board appeal alleging that he had
applied for numerous non-law enforcement positions within the agency, and the
agency deemed his application for reemployment “ineligible” for processing.
Initial Appeal File (IAF), Tab 1 at 3, 7 (retirement Standard Form 50). The
administrative judge issued a show cause order in which she explained that the
Board may not have jurisdiction over the appeal and ordered the appellant to
provide evidence and argument concerning the Board’s jurisdiction over his
appeal. IAF, Tab 3. The appellant filed a response identifying 5 C.F.R.
§§ 1201.3(a)(2), (7) and other statutes and regulations as sources of the Board’s
jurisdiction and alleging that the agency committed age discrimination and
prohibited personnel practices. IAF, Tab 5. The administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 8, Initial
Decision (ID). The administrative judge noted that the appellant also
cited 5 C.F.R. § 1201.3(a)(7), which discusses employment practices appeals, but
3
deemed it unclear whether the appellant was arguing that the Board has
jurisdiction over the appeal on this basis. She therefore directed him to file a
separate employment practices appeal if he intended to make such a claim. ID at
3 n.*. 2 The appellant has filed a petition for review, but the agency has not filed
a response. Petition for Review (PFR) File, Tab 1.
¶3 On review, the appellant reiterates his argument that the Board has
jurisdiction over the appeal, asserts that he was improperly barred from
reemployment, and argues that this case is a “Mixed Complaint.” Id. He also
asserts that the administrative judge did not return his calls or notify the Office of
Personnel Management about the issues in this appeal. Id. The appellant
includes with his petition his email correspondence with various agency
representatives and an equal employment opportunity counselor, and he also
provides what he calls “Department of Commerce [Law Enforcement Officer]
Information.” See PFR File, Tab 1, Attachments.
¶4 The Board’s jurisdiction is not plenary; it is limited to those matters over
which it has been given jurisdiction by law, rule or regulation. Maddox v. Merit
Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Generally, an
unsuccessful candidate for a federal civil service position has no right to appeal
his nonselection. Tines v. Department of the Air Force, 56 M.S.P.R. 90, 93
(1992). The appellant’s petition for review does not persuade us that the
administrative judge erred or that the Board has jurisdiction over the
nonselections at issue in this matter. Indeed, we note that the regulation
at 5 C.F.R. § 1201.3(a)(2) states that the Board has jurisdiction over retirement
appeals, but the agency’s decision not to select the appellant for the vacancies in
question does not appear to involve a determination affecting the rights or
interests of an individual under the Federal retirement laws as prescribed therein.
2
The appellant did not subsequently file an employment practices appeal. It appears,
however, that the appellant has an individual right of action appeal currently pending
with the regional office after remand. See Ormond v. Department of Justice, MSPB
Docket No. DC-1221-11-0860-B-4.
4
The appellant’s citation to 5 C.F.R. § 831.909, PFR File, Tab 1 at 12-13, which
states that an employee who has been mandatorily separated under 5 U.S.C.
§ 8335(b) is not barred from reemployment in any position except a primary
position after age 60, does not change the outcome because there is no evidence
that the appellant was barred from reemployment. To the contrary, the appellant
was apparently found “[q]ualified and referred with the Exception group” for one
of the vacancies. See IAF, Tab 5 at 15. Other vacancies were apparently limited
to certain current, surplus, and/or displaced employees, see id. at 18, 21-22, and
the appellant did not fall into any of these categories because of his
mandatorily-retired status. Because the Board lacks jurisdiction over the appeal,
it also lacks jurisdiction to hear the appellant’s claims of age discrimination and
prohibited personnel practices. See Wren v. Department of the Army, 2 M.S.P.R.
1, 2 (1980) (prohibited personnel practices under 5 U.S.C. § 2302(b) are not an
independent source of Board jurisdiction), aff’d, 681 F.2d 867, 871-73 (D.C. Cir.
1982).
¶5 We disagree with the appellant’s contention that this case is a mixed case.
Indeed, in Cunningham v. Department of the Army, 119 M.S.P.R. 147, ¶¶ 13-14
(2013), the Board held that appeals of matters outside the Board’s jurisdiction do
not qualify as mixed cases even if they involve covered discrimination claims.
We have also considered the appellant’s remaining arguments on review, but they
do not warrant a different outcome.
¶6 Finally, we have considered the documentation submitted on petition for
review. Under 5 C.F.R. § 1201.115, the Board generally 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. Even if such evidence could be
considered “new” evidence, this documentation does not persuade us that the
Board has jurisdiction over the appeal.
5
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. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
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 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 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.
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 a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
6
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.