Ronan Le Magueresse v. CIA ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RONAN LE MAGUERESSE, DOCKET NUMBER
Appellant, DC-3443-15-0894-I-1
v.
CENTRAL INTELLIGENCE DATE: January 19, 2016
AGENCY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Ronan Le Magueresse, Nantes, France, pro se.
Sandy Caruco, Esquire, Washington, D.C., 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 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
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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regulation or the erroneous application of 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. 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, 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 an appeal in which he claimed that the Central
Intelligence Agency (CIA or agency) forced him into involuntary “black ops”
service without pay from November 2009 to May 2015. Initial Appeal File (IAF),
Tabs 1, 4, 12. Because it appeared that the Board may not have jurisdiction over
this appeal, the administrative judge issued an order informing the appellant that
the Board does not have jurisdiction over CIA employees, and ordered him to
provide evidence and argument showing that this action is within the Board’s
jurisdiction. IAF, Tab 2. In response, the appellant claimed that he was forced
into a period of covert service by the CIA, that he received no pay or benefits
during that period of time, and that there is no record of his service. IAF, Tabs 1,
4, 5, 7. The appellant submitted copies of correspondence between himself and
the CIA, the National Security Agency (NSA), the Defense Intelligence Agency
(DIA), the Department of the Navy, and the Department of State related to his
requests for information under the Freedom of Information Act (FOIA). The
appellant also asserted that Congress could, with very little effort, modify the
laws and provide the employees of the various national security agencies (CIA,
NSA, DIA) with standard protections against adverse actions that most other
Federal employees enjoy. IAF, Tab 7.
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¶3 The administrative judge dismissed the appeal for lack of jurisdiction,
finding that the Board has previously determined that it lacks jurisdiction to
review CIA personnel actions under the provisions of the National Security Act of
1947. Initial Decision (ID) at 3-4. The administrative judge further found
that 5 U.S.C. § 7511, which creates the Board’s jurisdiction over most Federal
employees, explicitly excludes coverage of CIA employees under § 7511(b)(7).
¶4 The Board’s jurisdiction 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). The appellant must show by
preponderant evidence that the Board has jurisdiction over his appeal. 5 C.F.R.
§ 1201.56(a)(2)(i). A preponderance of the evidence is that degree of relevant
evidence that a reasonable person, considering the record as a whole, would
accept as sufficient to find that a contested fact is more likely to be true than
untrue. 5 C.F.R. § 1201.56(c)(2).
¶5 Here, the appellant asserts on review that he has new evidence that he
obtained through a FOIA request. Petition for Review (PFR) File, Tab 1.
Specifically, the appellant asserts that the agency now has accepted his FOIA
request for information and that “arrangements are being made for its
consideration by the Agency Release panel.” Id. at 5-6. However, the appellant’s
only “new evidence” is a copy of a July 22, 2015 letter from the agency stating
that it has accepted his appeal of the agency’s decision “to neither confirm nor
deny material responsive to his FOIA request.” PFR File, Tab 1 at 8. He has not
submitted any evidence that he was employed by the agency during the relevant
period of time. Thus, while the agency has agreed to consider his appeal of the
denial of his FOIA request, the appellant has not submitted any new evidence of
his employment status. To the extent the agency’s July 22, 2015 letter may be
new evidence, it does not warrant disturbing the initial decision. The Board will
not grant a petition for review based on new evidence absent a showing that it is
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of sufficient weight to warrant an outcome different from that of the initial
decision. Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980).
¶6 The appellant also appears to be asserting that, as a result of his accepted
FOIA appeal, the agency will subsequently provide him documentary evidence
showing that he was an agency employee and that the Board should consider such
evidence when he finally receives it. PFR File, Tab 1. However, even if the
appellant were to receive sufficient evidence to prove that he was employed by
the agency during the relevant period of time, the administrative judge correctly
found that the Board lacks jurisdiction to review CIA personnel actions. See
Neely v. Central Intelligence Agency, 2 M.S.P.R. 371, 373 (1980). Thus, such
evidence would not warrant an outcome different from that of the initial decision.
¶7 Finally, the appellant argues that the agency failed to respond to his
discovery request and that the administrative judge erred by denying his
discovery request. PFR File, Tab 1 at 6. The June 29, 2015 Acknowledgment
Order set forth the Board’s guidelines for engaging in discovery, as well as where
to find the applicable regulations. IAF, Tab 2. On July 27, 2015, the
administrative judge returned the appellant’s discovery request, advising him that
the Board does not participate in the discovery process until there is a failure or
refusal to fully reply to the discovery request and a motion to compel is filed.
IAF, Tab 10. In this case, the appellant did not file a motion to compel and the
administrative judge did not deny his discovery request. The Board has held that,
where an appellant has received specific notice of the Board’s discovery
procedures, but fails to comply with those procedures and, if necessary, file a
motion to compel, the appellant has failed to exercise due diligence. See Buscher
v. U.S. Postal Service, 69 M.S.P.R. 204, 210 (1995); Head v. Office of Personnel
Management, 53 M.S.P.R. 421, 422 (1992) (finding that, absent a motion to
compel, the appellant failed to exercise due diligence in pursuing discovery).
Thus, we find that the appellant has shown no error by the administrative judge
regarding his to discovery rulings. In any event, even if the administrative judge
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had erred regarding his discovery rulings, the appellant has failed to show how
any such error constituted an abuse of discretion because he has not shown how
the information requested was material. See Vores v. Department of the
Army, 109 M.S.P.R. 191, ¶ 15 (2008) (determining that the appellant failed to
show that the administrative judge abused his discretion by not extending the
discovery period where the appellant failed to show how information that could
have been obtained would have affected the administrative judge’s finding that
the Board lacked jurisdiction over the appeal), aff’d, 324 F. App’x 883 (Fed. Cir.
2009). Accordingly, we conclude that the appellant has shown no basis upon
which to disturb the initial decision.
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. 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 U.S. 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 U.S. Code, at our
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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 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 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.