Olga Hernandez-Strader v. Department of Defense ( 2023 )


Menu:
  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    OLGA HERNANDEZ-STRADER,                         DOCKET NUMBER
    Appellant,                          DC-0752-16-0748-I-1
    v.
    DEPARTMENT OF DEFENSE,                          DATE: April 28, 2023
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    Bradley R. Marshall, Charleston, South Carolina, for the appellant.
    Maxwell Selz, APO, AE, for the agency.
    BEFORE
    Cathy A. Harris, Vice Chairman
    Raymond A. Limon, Member
    FINAL ORDER
    ¶1         The appellant has filed a petition for review of the initial decision, which
    dismissed her appeal challenging a reassignment from a full-time position to a
    part-time one for lack of Board jurisdiction based on the administrative judge’s
    determination to give preclusive effect to an Equal Employment Opportunity
    Commission (EEOC) decision finding that the appellant’s reassignment was
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    voluntary or, alternatively, that the appellant failed to make a nonfrivolous
    allegation of involuntariness. 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 e ither 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 th at, 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).
    ¶2         On petition for review, the appellant argues, among other things, that her
    reassignment was involuntary, that the agency reassigned her without affording
    her due process, and that collateral estoppel did not apply. We disagree. The
    administrative judge in this appeal properly gave collateral estoppel effect to an
    EEOC administrative judge’s initial decision finding that the appellant sought and
    voluntarily accepted a reassignment to a part-time position. Initial Appeal File
    (IAF), Tab 26, Initial Decision (ID) at 3-4; IAF, Tab 1 at 8-21; see Peartree v.
    U.S. Postal Service, 
    66 M.S.P.R. 332
    , 336-37 (1995). The administrative judge
    also correctly found that, even if collateral estoppel did not apply, the appellant
    failed to nonfrivolously allege that her change to a part-time status was
    involuntary. ID at 4-5. Because the action was voluntary, the appellant was not
    entitled to the procedural protections set forth at 
    5 U.S.C. § 7513
     and in the
    Constitution.   Rivera v. Department of Homeland Security, 
    116 M.S.P.R. 429
    ,
    ¶ 16 (2011) (finding that the Board lacked jurisdiction over the appellant’s age
    3
    discrimination and due process claims in light of its lack of jurisdiction over the
    underlying termination). The fact that the agency purportedly failed to comply
    with the precise procedures for documenting the appel lant’s reassignment is of no
    import as the record shows that she voluntarily sought and accepted the
    reassignment, and thus the Board lacks jurisdiction over the appeal.              Also,
    because the Board lacks jurisdiction over this appeal, contrary to the appellan t’s
    assertions, this is not a mixed case. Wren v. Department of the Army, 
    2 M.S.P.R. 1
    , 2 (1980) (holding that 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).
    NOTICE OF APPEAL RIGHTS 2
    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
    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
    2
    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.
    4
    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
    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
    5
    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 befor e
    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,
    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
    6
    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. 3   The court of appeals must receive your petition for
    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:
    3
    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
    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
    .
    7
    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.
    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.
    

Document Info

Docket Number: DC-0752-16-0748-I-1

Filed Date: 4/28/2023

Precedential Status: Non-Precedential

Modified Date: 4/28/2023