Nathan Colodney v. Department of Health and Human Services ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NATHAN COLODNEY, DOCKET NUMBER
Appellant, PH-1221-16-0126-W-1
v.
DEPARTMENT OF HEALTH AND DATE: April 27, 2023
HUMAN SERVICES,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Nathan Colodney, Alexandria, Virginia, pro se.
Christina Patton Black, Washington, D.C., 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 his individual right of action (IRA) 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;
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 appellant 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 As further detailed previously in the initial decision for the instant appeal,
the agency appointed the appellant to a Senior Executive Service (SES) position
in October 2004. Colodney v. Department of Health and Human Services , MSPB
Docket No. PH-1221-16-0126-W-1, Initial Appeal File (0126 IAF), Tab 32,
Initial Decision (0126 ID) at 1-2. Two months later, in December 2004, the
agency effectuated his performance-based probationary termination. 0126 ID
at 3. The agency then placed him in a GS-15 position, which the appellant
resigned from in May 2005. Id.¶3 Between his probationary termination from the SES position and resignation
from the GS-15 position, the appellant filed an equal employment opportunity
(EEO) complaint concerning his SES termination and the investigation leading up
to it. 0126 IAF, Tab 10 at 8-11. In a final agency decision (FAD), the agency
found no support for the appellant’s allegations of discrimination. Id. at 12-27.
The Equal Employment Opportunity Commission affirmed the FAD. Id. at 28-31.
The appellant also filed related claims in district courts, but they were also
unsuccessful. See id. at 33-34.
3
¶4 In addition to the aforementioned actions, the appellant filed prior Board
appeals concerning his brief tenure with the agency. He filed his first Board
appeal in 2006, alleging that the agency improperly terminated his SES position
and his subsequent resignation was involuntary. 0126 ID at 2; Colodney v.
Department of Health and Human Services, MSPB Docket No. PH-0752-06-0217-
I-1, Initial Appeal File, Tab 24, Initial Decision (0217 ID). The administrative
judge dismissed the appeal. 0217 ID. First, she found that the Board lacked
jurisdiction over his probationary termination from the SES position. 0217 ID
at 2-3. Next, she found that the appellant failed to show or even nonfrivolously
allege that his resignation from the GS-15 position was involuntary. 0217 ID
at 3-8. On review, the Board affirmed, as did our reviewing court. Colodney v.
Department of Health and Human Services, MSPB Docket No. PH-0752-06-0217-
I-1, Final Order (Aug. 15, 2006), aff’d, 244 F. App’x 366 (Fed. Cir. 2007). The
appellant filed his second Board appeal in 2007, again challenging his termination
from the SES position. 0126 ID at 2; Colodney v. Department of Health and
Human Services, MSPB Docket No. PH-3443-07-0499-I-1, Initial Appeal File,
Initial Decision (0499 ID). The administrative judge also dismissed that appeal,
finding that it was barred by collateral estoppel. 0499 ID at 3 -5. Once again, the
Board and our reviewing court affirmed. Colodney v. Department of Health and
Human Services, MSPB Docket No. PH-3443-07-0499-I-1, Final Order (Mar. 17,
2008), aff’d, 314 F. App’x 312 (Fed. Cir. 2008).
¶5 Many years later, in 2015, the appellant filed a whistleblower reprisal
complaint with the Office of Special Counsel (OSC) concerning his 2004
probationary termination from the SES position. 0126 ID at 3. In it, he identified
two alleged disclosures. 0126 IAF, Tab 1 at 15. The first disclosure reportedly
occurred in November 2004, while he was being investigated for making
inappropriate remarks to subordinates. Id. According to the appellant’s OSC
complaint, he disclosed to a subordinate that “he believed a panel of four females
was discriminatory, that he would not be treated fairly because there was no
4
diversity of thought in that not a single male was included on the panel, and they
would not have permitted a panel of four males to investigate a female.” Id. The
second disclosure reportedly occurred in January 2005, when the appellant sent a
letter to the deciding official about his already effectuated termination. Id. at 16.
In this letter, the appellant reportedly disclosed that “the removal was unlawful
since he was required to be on a performance improvement plan and was not.
Furthermore, the SES [Executive Core Qualifications] are not automatic
performance objectives for probationary appointees.” Id.¶6 After exhausting his whistleblower retaliation allegations with OSC, the
appellant filed the instant IRA appeal. 0126 ID at 3. The administrative judge
issued an initial decision that dismissed the appeal for lack of jurisdiction. Id.The appellant has filed a petition for review. Colodney v. Department of Health
and Human Services, MSPB Docket No. PH-1221-16-0126-W-1, Petition for
Review (0126 PFR) File, Tab 4. The agency has filed a response and the
appellant replied. 0126 PFR File, Tabs 6-7.
The administrative judge properly dismissed this IRA appeal for lack of
jurisdiction.
¶7 To establish jurisdiction in an IRA appeal such as this, involving allegations
of whistleblower reprisal, an appellant must show that he exhausted his
administrative remedies before OSC and make nonfrivolous allegations that
(1) he made a protected disclosure described under 5 U.S.C. § 2302(b)(8), and
(2) the disclosure was a contributing factor in the agency’s decision to take or fail
to take a personnel action as defined by 5 U.S.C. § 2302(a)(2)(A). Yunus v.
Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). The
administrative judge found that the appellant’s first disclosure was not protected
under section 2302(b)(8) because it constituted a claim of discrimination.
0126 ID at 10-12. He also found that the appellant could not nonfrivolously
allege that the second disclosure was a contributing factor in his removal because
it occurred after that removal. 0126 ID at 13.
5
Disclosure 1
¶8 On review, the appellant reasserts that his first disclosure, pertaining to his
belief that an investigatory panel comprised solely of women was discriminatory,
is protected whistleblowing under section 2302(b)(8). 0126 PFR File, Tab 4
at 11, 13, 15-26, 34. We disagree. As the administrative judge properly
explained, allegations of an agency engaging in discrimination in violation of
Title VII are covered under 5 U.S.C. § 2302(b)(1) and (b)(9), but are excluded
from coverage under section 2302(b)(8). See Edwards v. Department of Labor,
2022 MSPB 9, ¶¶ 10, 22; McDonnell v. Department of Agriculture, 108 M.S.P.R.
443, ¶ 22 (2008). The appellant argues to the contrary on the basis that he made
the disclosure prior to filing his EEO complaint. 0126 PFR File, Tab 4 at 11,
15-16, 19-22, 34. However, the Board has concluded that this is not a meaningful
distinction. See Redschlag v. Department of the Army, 89 M.S.P.R. 589, ¶ 84
(2001) (recognizing that disclosures involving alleged discrimination, even if
made outside the grievance or EEO processes, do not constitute protected
whistleblower activity under section 2302(b)(8) because they pertain to matters
covered by section 2302(b)(1)).
¶9 Separately, the appellant also suggests that the panel of women who were
reportedly tasked with investigating his conduct were biased for reasons other
than their gender. 0126 PFR File, Tab 4 at 16-18, 25. He alleges that one of
them exhibited bias by instructing him to stop making inappropriate comments
before investigating whether any had occurred, two others were biased because
they were not selected for his position, and one more was biased because she was
adversely impacted by his selection. Id. The appellant also alleges that it was an
abuse of authority for the agency to impanel such a biased group of individuals to
investigate his actions. Id. at 18, 23-26. Even if true, we cannot address the
allegations of abuse of authority because these matters are not what the appellant
reportedly disclosed and exhausted before OSC. See Mason v. Department of
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Homeland Security, 116 M.S.P.R. 135, ¶ 8 (2011) (recognizing that, in an IRA
appeal, the Board may only consider disclosures of information and personnel
actions that the appellant raised before OSC). Thus, he did not provide OSC with
a sufficient basis to pursue an investigation of those matters. See Chambers v.
Department of Homeland Security, 2022 MSPB 8, ¶ 10. According to his OSC
complaint, the appellant disclosed that “he believed a panel of four females was
discriminatory, that he would not be treated fairly because there was no diversity
of thought in that not a single male was included on the panel, and that they
would not have permitted a panel of four males to investigate a female.” 0126
IAF, Tab 1 at 15. Other complaints the appellant may have about the
investigatory panel are not properly before us in this IRA appeal.
Disclosure 2
¶10 For his second disclosure, that the agency violated the law in effectuating
his probationary termination from the SES position, the appellant does not appear
to dispute the administrative judge’s conclusion that it could not have been a
contributing factor in that termination. 0126 ID at 13. In fact, he acknowledges
that the disclosure occurred after the termination. 0126 PFR File, Tab 4 at 13.
He does, however, appear to misunderstand the dispositive nature of that timing.
As stated above, the appellant’s jurisdictional burden in this IRA appeal includes
a requirement that he nonfrivolously allege that a protected disclosure was a
contributing factor in the personnel action at issue. Supra ¶ 7. A disclosure such
as this one, occurring after his probationary termination, cannot be considered a
contributing factor in that personnel action. See Sherman v. Department of
Homeland Security, 122 M.S.P.R. 644, ¶ 8 (2015). We recognize the appellant’s
suggestion that, although his termination was a personne l action that occurred
before his disclosure, the agency’s failing to reverse itself and give him his job
back after he made the disclosure is a separate personnel action. 0126 PFR File,
Tab 4 at 16, 28, 33. However, we are not persuaded. See Simmons v. Small
7
Business Administration, 115 M.S.P.R. 647, ¶ 14 (2011) (dismissing an IRA
appeal for lack of jurisdiction when the employee invoked reinstatement as the
covered personnel action, but she failed to make any nonfrivolous allegations that
she was entitled to reinstatement; she merely reargued the merits of her prior
removal appeal and the validity of her settlement agreement, sug gesting
reinstatement as a related remedy).
The appellant’s remaining arguments do not warrant a different result.
¶11 Separate from the dispositive jurisdictional issues, the appellant argues that
the administrative judge in the instant appeal acted inappro priately by, inter alia,
exhibiting bias, intentionally ignoring the law, committing fraud, and looking for
a way to dismiss the instant appeal and conceal the truth. 0126 PFR File, Tab 4
at 8-9, 21-23, 28-32, 34-37. In making a claim of bias or prejudice against an
administrative judge, a party must overcome the presumption of honesty and
integrity that accompanies all administrative adjudicators. Washington v.
Department of the Interior, 81 M.S.P.R. 101, ¶ 7 (1999). An administrative
judge’s conduct during the course of a Board proceeding warrants a new
adjudication only if his comments or actions evidence “a deep -seated favoritism
or antagonism that would make fair judgment impossible.” Bieber v. Department
of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United
States, 510 U.S. 540, 555 (1994)). Here, the appellant has identified nothing of
the sort. It is evident that the appellant disagrees with the administrative judge’s
decision, but he has failed to establish that the administrative judge was biased or
otherwise acted inappropriately.
¶12 The appellant also devotes a significant portion of his petition for review to
matters that are not relevant to the instant appeal, many of which instead
implicate his prior Board appeals. See supra ¶ 4. For example, the appellant is
adamant that the agency relied on improper performance standards to terminate
him from the SES position in 2004 and otherwise acted inappropriately during the
time leading up to that termination. 0126 PFR File, Tab 4 at 8 -14, 18-19, 26-27,
8
30-31, 33. In addition, he disputes the voluntariness of his 2005 resignation from
the GS-15 position and suggests that the administrative judges presiding over his
prior Board appeals also were biased. Id. at 10, 14, 30, 36. Because these and
other such arguments are not relevant to the instant IRA appeal, we will not
address them further.
NOTICE OF APPEAL RIGHTS †
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 cl aims 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
†
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.
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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
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
10
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 respe ctive
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 Employme nt
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
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
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(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. ‡ 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:
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.
‡
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.
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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.