John G. Baumgarten v. Department of the Army ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN G. BAUMGARTEN, DOCKET NUMBER
Appellant, CH-1221-13-0579-W-2
v.
DEPARTMENT OF THE ARMY, DATE: October 23, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
John G. Baumgarten, FPO, APO/FPO Pacific, pro se.
Gary F. Baumann, Esquire, Fort Campbell, Kentucky, 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 for lack of jurisdiction his request for corrective action in connection
with his individual right of action (IRA) appeal. Generally, we grant petitions
such as this one only when: the initial decision contains erroneous findings of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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
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).
¶2 On December 28, 2011, the appellant filed an appeal challenging the
agency’s action removing him during probation from his GS-13 Supervisory IT
Specialist position, effective November 28, 2011, and returning him to the GS-12
position he held prior to his promotion to GS-13. He alleged that the agency’s
action was discriminatory based on race and disability and was in retaliation for
his whistleblowing activity. The administrative judge dismissed the appeal for
lack of jurisdiction, finding that the appellant had failed to make a nonfrivolous
allegation that the action was based on partisan political affiliation or marital
status and that, as to his whistleblowing claim, he had not exhausted his remedy
before the Office of Special Counsel (OSC). Baumgarten v. Department of the
Army, MSPB Docket No. CH-315I-12-0176-I-1, Initial Decision (Mar. 9. 2012).
¶3 On April 2, 2013, the appellant filed a complaint with OSC in which he
alleged that the agency’s action was in retaliation for his whistleblowing activity,
specifically, his disclosing contract improprieties. MSPB Docket No. CH-1221-
13-0579-W-1 (W-1), Initial Appeal File (IAF), Tab 1 at 13. He also noted that,
on November 30, 2012, in connection with his equal employment opportunity
3
(EEO) complaint, he had reached a settlement but that the agency had failed to
comply and that failure evidenced “more retaliation for my whistle blowing.” Id.
at 22. After OSC decided to close its file on the matter, id. at 5, the appellant
filed an IRA appeal, id. at 1. The administrative judge afforded him complete
information regarding what he needed to allege in order to establish the Board’s
jurisdiction over his whistleblowing claim. Id., Tab 2. In its response, the
agency explained and offered evidence to show that the settlement agreement
reached through the EEO process was a global one, settling all complaints and
claims the appellant might have had against the agency up to that time and that he
agreed to refrain from initiating any other actions or appeals. Id., Tab 6 at 4-5,
10. The agency further argued and provided evidence to show that the appellant
had raised the issue of the agency’s alleged noncompliance with the settlement
agreement to the proper authority, which found that the agency was in full
compliance, id. at 5, 13; and that he had appealed that agency decision to the
Equal Employment Opportunity Commission’s Office of Federal Operations
(OFO) where a decision was pending, id. at 5, 27.
¶4 The administrative judge dismissed the appellant’s appeal without
prejudice, providing that he could refile within 30 days of a final decision on his
earlier appeal which was then pending before the Board on his petition for
review. W-1, IAF, Tab 8, Initial Decision (W-1 ID) at 1, 4.
¶5 After the Board dismissed the appellant’s petition for review as untimely
filed, Baumgarten v. Department of the Army, MSPB Docket No. CH-315I-12-
0176-I-1, Final Order (Feb. 28, 2014), the appellant refiled his IRA appeal.
MSPB Docket No. CH-1221-13-0579-W-2 (W-2), IAF, Tab 1. In response, the
agency argued and provided evidence to show that the OFO had remanded to the
agency the appellant’s challenge to its finding that there was no breach of the
settlement agreement, with instructions to supplement the record with additional
evidence and to issue a new decision, id., Tab 4 at 4, 18; that the agency had done
so, again finding no breach of the agreement, id. at 4-5, 6; and that OFO had
4
affirmed that decision, id. at 5, 33. The agency urged that the appeal be
dismissed because the matter had been fully settled by agreement of the parties.
Id. at 5.
¶6 The administrative judge ordered the appellant to show cause why his
appeal should not be dismissed based on the settlement agreement. Id., Tab 7.
She also stated that he could challenge the agreement as invalid and explained
how to raise such a claim. Id. In response, the appellant argued only that the
agency had breached the agreement. Id., Tab 8.
¶7 In her initial decision issued on the written record, the administrative judge
first found that, based on the terms of the settlement agreement, the appellant
waived his right to challenge his reduction in grade. W-2, IAF, Tab 9, ID (W-2
ID) at 6. As to the appellant’s claim for corrective action based on his allegation
that the agency breached the settlement agreement in retaliation for his
whistleblowing activity, the administrative judge found that he failed to allege
that the agency took or threatened to take a covered personnel action against him
on that basis and therefore the Board lacks jurisdiction to review his claim of
breach as a request for corrective action. W-2 ID at 7. She thus dismissed his
appeal.
¶8 The appellant filed a pleading with the Board’s Central Regional Office,
Petition for Review (PFR) File, Tab 1, which was forwarded to the Office of the
Clerk of the Board as a petition for review, id., Tab 2.
¶9 A petition for review must contain sufficient specificity to enable the Board
to ascertain whether there is a serious evidentiary challenge justifying a complete
review of the record. In addition, before the Board will undertake a complete
review of the record, the petitioning party must explain why the challenged
factual determinations are wrong and identify the specific evidence in the record
that demonstrates the error. Herndon v. Department of the Navy, 97 M.S.P.R.
609, ¶ 7 (2004).
5
¶10 Here, the appellant’s petition clearly does not meet the criteria for review.
See 5 C.F.R. § 1201.115; PFR File Tab 1. He does not challenge the
administrative judge’s finding that the appeal of his reduction in grade is properly
dismissed as settled, and we agree with that disposition. See Lee v. U.S. Postal
Service, 111 M.S.P.R. 551, ¶ 7 (2009), aff’d, 367 F. App’x 137 (Fed. Cir. 2010).
The appellant asks only that the processing of his case be suspended because of
his further pending litigation, specifically, his July 15, 2014 claim to OFO that
the settlement agreement should be voided because of allegedly newly-discovered
information showing that the agency is in breach, PFR File, Tab 1 at 5, and the
June 24, 2014 petition for review he filed in the U.S. Court of Appeals for the
Federal Circuit concerning Baumgarten v. Department of the Navy, MSPB Docket
No. CH-315I-12-0176-I-1, Final Order (Feb. 28, 2014); PFR File, Tab 1 at 22.
To the extent that the appellant argues that these pleadings constitute new and
material evidence, they do not. Although both filings were initiated after the
close of the record below, see Avansino v. U.S. Postal Service, 3 M.S.P.R. 211,
214 (1980), neither is of sufficient weight to warrant an outcome different from
that of the initial decision. See Russo v. Veterans Administration, 3 M.S.P.R.
345, 349 (1980).
¶11 Moreover, we agree with the administrative judge’s finding that the
appellant failed to nonfrivolously allege that he was subjected to a covered
personnel action based on his claim that the agency breached the settlement
agreement in retaliation for his whistleblowing activity. 5 U.S.C.
§ 2302(a)(2)(A). We further agree that, in the absence of that nonfrivolous
allegation, the appellant has failed to establish the Board’s jurisdiction over his
IRA appeal in that regard and that it must be dismissed. 2 Carney v. Department
of Veterans Affairs, 121 M.S.P.R. 446, ¶ 11 (2014).
2
At the outset of the initial decision, the administrative judge stated that, “[f]or the
reasons set forth below, the appellant’s request for corrective action is DENIED.” W-2
ID at 2. However, after analyzing the issues in the appeal, she found that, as to the
6
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.
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 want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
appellant’s challenge that his reduction in grade was retaliatory based on his
whistleblowing activity, he had waived his right to appeal that matter based on the
terms of the settlement agreement and that, in that regard, his appeal was dismissed as
settled. As to his claim that the agency’s alleged breach of the settlement agreement
was itself retaliatory, the administrative judge found that the appellant failed to allege
that he was subjected to a personnel action under the Whistleblower Protection Act and
that therefore the Board lacks jurisdiction over his IRA appeal in that regard. W-2 ID
at 7. As set forth above, we agree with these findings and dispositions and here correct
the administrative judge’s initial misstatement.
7
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 about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, 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 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.