S. Ghosh v. Environmental Protection Agency ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
S. BEN GHOSH, DOCKET NUMBER
Appellant, AT-3443-16-0646-I-1
v.
ENVIRONMENTAL PROTECTION DATE: March 14, 2023
AGENCY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
S. Ben Ghosh, Marietta, Georgia, pro se.
Alicia Lewis, Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
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 in the following circumstances: 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 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. 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).
BACKGROUND
¶2 The appellant, a GS-12 Environmental Engineer, filed an appeal challenging
his nonselection for promotion to a GS-13 Environmental Engineer position.
Initial Appeal File (IAF), Tab 1 at 6-10. In his appeal, the appellant, who is of
Indian-American descent, alleged that the agency did not select him for the
promotion on the basis of his race, opting instead to promote a white male to the
position. Id. at 7-8. He also alleged additional examples of discriminatory
promotion, accusing agency management of engaging in a “pattern of practice” of
discriminatory promotions. Id. at 7.
¶3 By order dated July 11, 2016, the administrative judge informed the
appellant that the Board may not have jurisdiction over the appeal of his
nonselection. IAF, Tab 2. The administrative judge explained that the Board
3
generally lacks authority to review nonselection claims and identified the
exceptions in which the Board does have jurisdiction over nonselection s, such as
an individual right of action (IRA) appeal claiming reprisal for whistleblowing or
protected activity, claims under the Veterans Employment Opportunities Act of
1998 (VEOA), or claims under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA). Id. at 2-5; see Becker v.
Department of Veterans Affairs, 107 M.S.P.R. 327, ¶ 5 (2007). The
administrative judge also apprised the appellant of his burden in proving Board
jurisdiction, explained what was required to establish Board jurisdiction, and
ordered the appellant to file evidence and argument demonstrating that his claim
was within the Board’s jurisdiction. IAF, Tab 2 at 2-5.
¶4 In reply, the appellant argued that the Board had jurisdiction over his claim
as a “mixed-case” appeal or an appeal of a prohibited personnel practice. IAF,
Tab 3 at 2-4. Subsequently, he filed a motion for default judgment, arguing that
the agency had not entered an appearance or responded to the acknowledgment
order or to his discovery requests. IAF, Tab 4. The agency filed a response in
opposition to the default motion, arguing that the Board lacked the authority to
grant a default judgment against the agency. IAF, Tab 6 at 4-7. The agency also
argued that the appellant’s motion should be denied because he failed to prove
Board jurisdiction over the appeal of his nonselection, and so the appeal should
be dismissed for lack of jurisdiction. Id. at 6-7.
¶5 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for a lack of jurisdiction. IAF,
Tab 7, Initial Decision (ID) at 1-3. The appellant timely filed a petition for
review. Petition for Review (PFR) File, Tab 3 at 5-14. The agency did not
submit a response.
4
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 Broadly stated, the appellant’s arguments on review fall into one of three
categories: (1) arguments that the Board has jurisdiction over his appeal;
(2) disagreements with the administrative judge’s decision not to grant his
requested default judgment sanction; and (3) arguments either raised for the first
time on review or that are unrelated to the jurisdictional question at issue in the
appeal. 3 Id.¶7 Regarding the appellant’s argument that the Board has jurisdiction over his
nonselection, as the administrative judge correctly noted, the Board generally
lacks jurisdiction over nonselection appeals, with the exception of IRA appeals
claiming reprisal for whistleblowing or protected activity, VEOA appeals, and
USERRA appeals. ID at 2; Becker, 107 M.S.P.R. 327, ¶ 5. The appellant did not
allege below that the agency retaliated against him for disclosures or activities
protected under the Whistleblower Protection Act or the Whistleblower Protection
Enhancement Act, nor did he ever allege that he was a preference-eligible veteran
or that he was asserting claims under VEOA or USERRA. IAF, Tabs 1, 3-4.
Accordingly, we agree with the administrative judge’s determination that the
appellant has not made a nonfrivolous allegation of jurisdiction over his
nonselection appeal under any of the listed exceptions to the general rule, and
find no reason to disturb those findings. ID at 2.
¶8 Although the appellant argues that it is within the Board’s purview to
review the agency’s decision as a possible prohibited personnel practice, PFR
File, Tab 3 at 10, ¶ 21, absent an otherwise appealable issue, the Board does not
have jurisdiction to consider the appellant’s claim that the agency’s decision not
to promote him may have been a prohibited personnel practice, Wren v.
3
In addition to the cases directly discussed below, we have reviewed the numerous
other cases cited by the appellant on review in support of his argument that the Board
has jurisdiction over his appeal, and we have determined that they do not warrant a
different outcome. PFR File, Tab 3 at 5-14.
5
Department of the Army, 2 M.S.P.R. 1, 2 (1980) (holding that 5 U.S.C. § 2302(b)
is not an independent source of Board jurisdiction), aff’d, 681 F.2d 867, 871-73
(D.C. Cir. 1982); see also Davis v. Department of Defense, 105 M.S.P.R. 604,
¶¶ 15-16 (2007) (explaining that the merit system principles are not themselves a
source of Board jurisdiction; that absent an otherwise appealable action, a
prohibited personnel practices claim cannot be considered by the Board; and that
a nonselection is not an otherwise appealable action). Consequently, we find that
the Board also lacks jurisdiction over the appellant’s prohibited personnel
practice claim.
¶9 Concerning the appellant’s argument that the Board has jurisdiction over his
appeal as a mixed-case appeal, because he has not alleged that he was subjected
to an action that is appealable to the Board, his appeal is not a mixed-case appeal.
See Lethridge v. U.S. Postal Service, 99 M.S.P.R. 675, ¶ 9 (2005) (explaining that
a mixed-case appeal involves an action that is appealable to the Board and an
allegation that the appealable action is based on prohibited discrimination) (citing
5 C.F.R. § 1201.151(a)(1); 29 C.F.R. § 1614.302(a)(2)). Thus, we find no basis
for finding jurisdiction over the appellant’s appeal as a mixed-case.
¶10 Regarding the administrative judge’s decision not to grant the requested
default judgment sanction, the appellant generally argues that the au thority cited
by the agency is old or inapplicable or has been overruled, and he offers
alternative precedent to support his claim that the Board has authority to grant a
default judgment. PFR File, Tab 3 at 11-12, ¶¶ 23-27. Despite the appellant’s
argument to the contrary, the Board is without authority to issue a default
judgment against an agency. Burnett v. Department of Housing and Urban
Development, 114 M.S.P.R. 1, ¶ 3 n.1 (2010); Hayes v. Department of the
Treasury, 74 M.S.P.R. 613, 615 (1997). 4 The cases cited by the appellant are
4
Although the appellant notes that Lavelle v. Department of the Navy, 37 M.S.P.R. 86,
90 (1988), cited by the agency to support this proposition, was overruled b y Mattern v.
6
either inapplicable—as in the cases of Robinson v. Department of the Army,
EEOC Case Nos. 531-2012-00210X and 531-2012-00211X (October 17, 2012)
(field office order), which was an order by an Equal Employment Opportunity
Commission’s administrative judge granting a default judgment, and In re
Gleason, 492 F. App’x 86 (11th Cir. 2012), which involved the imposition of
sanctions by a bankruptcy court—or do not support the appellant’s stated
position, as in the case of Williams v. U.S. Postal Service, 116 M.S.P.R. 377,
¶¶ 7, 9 (2011), which involved an appellant’s repeated failure to respond to the
Board’s orders addressing jurisdiction and timeliness. PFR File, Tab 3 at 12,
¶¶ 25-27.
¶11 Further, absent an abuse of discretion, the Board will not ordinarily reverse
an administrative judge’s determination regarding sanctions. See Leseman v.
Department of the Army, 122 M.S.P.R. 139, ¶ 6 (2015) (citing Davis v.
Department of Commerce, 120 M.S.P.R. 34, ¶ 18 (2013)); Wagner v. Department
of Homeland Security, 105 M.S.P.R. 67, ¶ 9 (2007). The appellant has not
demonstrated that the administrative judge abused his discretion in denying the
default judgment request, and we find no reason to disturb the administrative
judge’s findings in this regard. See Crosby v. U.S. Postal Service, 74 M.S.P.R.
98, 106 (1997) (finding no reason to disturb the administrative judge’s findings
when she considered the evidence as a whole, drew appropriate inferences, and
made reasoned conclusions); Broughton v. Department of Health and Human
Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶12 Finally, for the first time on review, the appellant has alleged that the
agency retaliated against him for filing an equal employment opportunity (EEO)
claim. PFR File, Tab 3 at 8, ¶ 14. The Board generally will not consider an
Department of the Treasury, 88 M.S.P.R. 65 (2001), aff’d, 291 F.3d 1366 (Fed. Cir.
2002), Lavelle was overruled on other grounds. See Mattern, 88 M.S.P.R. 65, ¶¶ 9-16.
Indeed, subsequent post-Lavelle Board decisions have continued to state this
proposition. See Burnett, 114 M.S.P.R. 1, ¶ 3 n.1.
7
argument raised for the first time on review absent a showing that it is based on
new and material evidence not previously available despite the party’s due
diligence. Hodges v. Office of Personnel Management, 101 M.S.P.R. 212, ¶¶ 7-9
(2006); Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980);
5 C.F.R. § 1201.115(d). The appellant has provided no explanation for why he
could not have raised this argument below, and we need not consider it on review.
Additionally, it appears that the subject matter of the appellant’s EEO complaint
is the same nonselection claim that he alleges constitutes the agency’s retaliatory
act, and as such, it could not also be the action that motivated the agency’s
purported retaliation. Further, although the Board may ordinarily have
jurisdiction to consider a nonselection claim raised in the context of an IRA
appeal, see Ormond v. Department of Justice, 118 M.S.P.R. 337, ¶ 13 (2012), the
appellant’s vague statement raised for the first time on review, unaccompanied by
any documents, and unaccompanied by any claim that he has exhausted his
remedies with the Office of Special Counsel regarding any potential retaliation
claim, would fail to present any reviewable claim even if we were to consider this
argument at this time. If the appellant desires to file an IRA appeal, he may do so
with the Board’s regional office in accordance with the Board’s procedures. See
5 C.F.R. §§ 1209.5-1209.6.
¶13 We therefore deny the petition for review and affirm the initial decision.
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
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.
8
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.
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
9
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
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 receives 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 origin, 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,
10
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:
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
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
11
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
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 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.
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.
12
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.