Lisa J. Wilson v. Department of Justice ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LISA J. WILSON, DOCKET NUMBER
Appellant, CH-3443-15-0480-I-1
v.
DEPARTMENT OF JUSTICE, DATE: September 16, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lisa J. Wilson, McKees Rocks, Pennsylvania, pro se.
Jennifer Spangler, Esquire, Kansas City, Kansas, 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 her 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 the law to the facts of the case; the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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. We AFFIRM the initial decision
insofar as it found that the appellant failed to establish jurisdiction under 5 C.F.R.
part 300 regarding employment practices. We MODIFY the initial decision to
explain why the appellant failed to establish jurisdiction under the suitability
regulations, 5 C.F.R. part 731.
BACKGROUND
¶2 The appellant challenged the agency’s Bureau of Prison’s decision to
eliminate her from consideration for a Correctional Officer position for which she
had applied. The appellant alleged that, during an interview for the position, the
Human Resources (HR) Specialist conducting the interview asked her about past
terminations or discipline, and she replied in the negative. Initial Appeal File
(IAF), Tab 1 (item 5 continuation sheet). According to the appellant, the HR
Specialist pointed to an answer on an employment form in which the appellant
had said she had been “separated” from a job “due to lack of productivity, did not
meet quota in month of employment.” Id.; IAF, Tab 6 at 19. The appellant
alleged that the HR Specialist subsequently terminated the interview, telling her,
“you won’t be able to get a security clearance based on the recent termination,
this applies to everybody and we must treat everyone the same.” IAF, Tab 1
(item 5 continuation sheet). The appellant stated that she had not understood her
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separation to have been a termination, and that she had separated from the
employer with “dignity and integrity.” IAF, Tab 2 at 8, Tab 9 at 5-6.
¶3 Using the Board’s electronic appeal form, the appellant stated that she was
appealing a “Negative suitability determination.” IAF, Tab 1 (item 1). In her
acknowledgment order, the administrative judge notified the appellant that
nonselections generally are not appealable to the Board, but informed her of three
exceptions to that general rule, none of which related to suitability. IAF, Tab 3
at 3. The agency then filed a motion to dismiss, arguing that the appellant failed
to make a case under the suitability regulations of 5 C.F.R. part 731. IAF, Tab 7.
The administrative judge then issued an order to show cause directing the
appellant to submit evidence and argument to show Board jurisdiction, in which
she explained the elements for establishing jurisdiction under 5 C.F.R. part 300,
subpart A, regarding employment practices. IAF, Tab 8. The order to show
cause did not mention the requirements for establishing jurisdiction over a
suitability appeal under 5 C.F.R. part 731. The appellant subsequently submitted
numerous pleadings. IAF, Tabs 9-11, 13-18. Although the appellant, in some of
her pleadings, argued for jurisdiction over her appeal as an employment practices
appeal, all of the pleadings argued for jurisdiction as a suitability appeal. Id. In
both its motion to dismiss and in its reply to the appellant’s response to the order
to show cause, the agency argued that the appellant failed to establish jurisdiction
over her appeal under the suitability regulations because those regulations only
apply when the agency has conducted a background investigation, and no such
investigation had been conducted. IAF, Tab 7, Tab 12 at 5.
¶4 Much of the initial decision was primarily devoted to explaining why the
appellant failed to establish jurisdiction over her nonselection as an employment
practices appeal. IAF, Tab 21 at 3-5. The decision did, however, briefly address
the appellant’s suitability claim as follows:
The appellant checked the box on her appeal form that she was
appealing a negative suitability action, however, the appellant
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has not provided any evidence that a suitability action was taken
pursuant to 5 C.F.R. §§ 731.103(a), .205 (2015). Conclusory, vague,
or unsupported allegations are insufficient to meet the non-frivolous
allegation standard. See Briscoe v. Department of Veterans Affairs,
55 F.3d 1571, 1573 (Fed. Cir. 1995).
IAF, Tab 21, Initial Decision (ID) at 3.
¶5 An appellant must receive explicit information on what is required to
establish an appealable jurisdictional issue before an appeal can be dismissed for
lack of jurisdiction. Burgess v. Merit Systems Protection Board, 758 F.2d 641,
643-44 (Fed. Cir. 1985). Although the initial decision briefly addressed the
appellant’s contention that her case should be heard as a suitability appeal under
5 C.F.R. part 731, the administrative judge previously had not acknowledged the
appellant’s claim of jurisdiction as a suitability appeal. Nor did the
administrative judge explain, in the initial decision or previously, what is
required to establish an appealable issue in a suitability appeal. The Board
therefore issued an order on July 6, 2016, which described the requirements for
establishing jurisdiction over a suitability appeal and ordered the appellant to
submit evidence and argument relating to her jurisdictional burden. Petition for
Review (PFR) File, Tab 5. The parties responded to that order. PFR File,
Tabs 6-7.
ANALYSIS
¶6 Suitability is directed toward whether the character or conduct of an
individual is such that her employment would adversely affect the integrity or the
efficiency of the service. 5 C.F.R. § 731.101(a). The criteria for making
suitability determinations are listed in 5 C.F.R. § 731.202. One factor in
determining if a person is suitable for Federal employment is whether she has
made a “[m]aterial, intentional false statement, or deception or fraud in
examination or appointment.” 5 C.F.R. § 731.202(b)(3). What is required to
establish jurisdiction over a suitability appeal changed effective June 16, 2008,
when the Office of Personnel Management (OPM) amended its regulations in
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part 731. 73 Fed. Reg. 20,149 (2008). In decisions governed by the regulations
in effect prior to that date, the Board found that appellants had made nonfrivolous
allegations of jurisdiction where denials of applications may have been based on
suitability factors, even in the absence of completed background investigations
and/or formal suitability determinations. See, e.g., Upshaw v. Consumer Product
Safety Commission, 111 M.S.P.R. 236, ¶ 7 (2009), modified by Scott v. Office of
Personnel Management, 116 M.S.P.R. 356 (2011), modified, 117 M.S.P.R. 467
(2012); Edwards v. Department of Justice, 86 M.S.P.R. 365, ¶¶ 5, 10-14 (2000);
Dillingham v. Department of Justice, 73 M.S.P.R. 538, 541-43 (1997). Under the
current regulations, however, only a “suitability action” taken by OPM or by an
agency under delegated authority may be appealed to the Board. 5 C.F.R.
§ 731.501(a). A “suitability action” is defined as a cancellation of eligibility, a
removal, a cancellation of reinstatement eligibility, and a debarment. 5 C.F.R
§ 731.203(a). Neither a “denial of appointment” nor a negative suitability
determination is listed as an appealable action, and section 731.103(g) no longer
provides that an applicant who is found unsuitable by an agency acting under
delegated authority from OPM may appeal an adverse suitability decision to the
Board. Upshaw, 111 M.S.P.R. 236, ¶¶ 7-8. The current regulations specify that a
“non-selection, or cancellation of eligibility for a specific position . . . is not a
suitability action even if it is based on reasons set forth in § 731.202.” 5 C.F.R.
§ 731.203(b) (emphasis in original); see Upshaw, 111 M.S.P.R. 236, ¶ 8.
¶7 Thus, even if, as the appellant alleges, the agency eliminated her from
consideration for a position for reasons set forth in section 731.202, and even if
those reasons could be said to reflect negatively on her character or conduct such
that her employment would adversely affect the integrity or the efficiency of the
service, the agency did not thereby take a suitability action that is appealable to
the Board.
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 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 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
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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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.