James Tucker v. Department of the Air Force ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES TUCKER, DOCKET NUMBER
Appellant, DE-4324-22-0298-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: June 21, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
James Tucker, Omaha, Nebraska, pro se.
Matthew John Mackey and Rachel Palacios, Joint Base Andrews,
Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
ORDER DENYING MR. DOWLING’S MOTION TO INTERVENE
¶1 Jonathan Dowling, a Commander in the Judge Advocate General’s Corps,
Department of the Navy, has moved to intervene in the above-captioned appeal
for the purpose of filing a petition for review of the initial decision issued on
April 13, 2023, which denied the appellant’s request for corrective action under
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the Uniformed Services Employment and Reemployment Rights Act of 1994
(codified as amended at 38 U.S.C. §§ 4301-4335) (USERRA). For the reasons set
forth below, Mr. Dowling’s motion to intervene is DENIED.
BACKGROUND
¶2 The appellant filed a Board appeal, alleging that the agency violated
USERRA when it failed to select him for an Attorney-Advisor position. Initial
Appeal File (IAF), Tab 1. Mr. Dowling, who was the hiring panel chair for the
vacancy announcement at issue, testified at the appellant’s Board hearing as the
appellant’s witness, claiming, among other things, that another panelist, the
Senior Civilian Advisor, had made statements indicating that he had a strong
preference for hiring civilians over members of the military reserves. Hearing
Recording (testimony of Dowling).
¶3 After considering both the written record and the hearing testimony, the
administrative judge issued an initial decision finding that the appellant failed to
establish his USERRA claim. IAF, Tab 30, Initial Decision (ID). First, the
administrative judge explained that the only evidence suggesting that the
appellant’s uniformed service was a substantial or motivating factor in his
nonselection was Mr. Dowling’s testimony. ID at 11-12. The administrative
judge credited the testimony of the Senior Civilian Advisor, noting that there was
evidence Mr. Dowling may have been biased because he had a personal friendship
with the appellant and a negative relationship with the Senior Civilian Advisor.
ID at 11. Thus, the administrative judge concluded that there was simply “no
credible direct evidence of uniformed service discrimination.” Id. The
administrative judge also found that, even if the appellant’s uniformed servic e
was a substantial or motivating factor in the Senior Civilian Advisor’s rankings,
the agency established that it still would have selected the same individual, given
that the selectee was the top-ranked candidate and was even strongly endorsed by
Mr. Dowling. ID at 12.
3
¶4 Mr. Dowling now seeks to intervene in this matter for purposes of filing a
petition for review, asserting that the administrative judge’s findings have caused
him harm. 2 Motion to Intervene at 4. Among other things, Mr. Dowling argues
that the initial decision undermined his credibility and judgment, which would
hinder his ability to obtain relief in complaints he filed against his employing
agency, and that his career had been negatively impacted because of th e Board
proceeding. 3 Id.ANALYSIS
¶5 Pursuant to the Board’s regulations, any person, organization, or agency, by
motion made in a petition for review, may ask for permission to intervene.
5 C.F.R. § 1201.114(i)(3). Here, Mr. Dowling has not yet filed a petition for
review, instead merely asking that the Board grant his request to file a petition for
review in the future. Motion to Intervene at 2-4, 17, 25. Accordingly, he has not
filed “a motion made in a petition for review,” as required by 5 C.F.R.
§ 1201.114(i)(3).
¶6 Nevertheless, even if we were to liberally construe Mr. Dowling’s filing as
a petition for review, he has not met the regulatory standard for granting a request
to intervene. The Board’s regulations provide that a motion for permission to
2
The agency filed an opposition to Mr. Dowling’s motion to intervene on June 12,
2023. Agency Response to Motion to Intervene. Pursuant to 5 C.F.R. § 1201.55(b),
any objection to a written motion must be filed within 10 days from the date of service
of the motion. The certificate of service states that the motion to intervene was served
by email on the agency on May, 18, 2023, and thus, accounting for a Sunday and
Federal holiday, the agency’s deadline to file its objection was May 30, 2023. Motion
to Intervene at 26; 5 C.F.R. § 1201.23. Accordingly, the agency’s response to the
motion to intervene was untimely filed, and we shall not consider it.
3
Mr. Dowling also attached two exhibits to his motion to intervene, seemingly
addressing the substance of his challenges to the initial decision, including an emai l
memorializing a statement the Senior Civilian Advisor allegedly made regarding his
reluctance to hire reservists and a copy of Mr. Dowling’s Freedom of Information Act
request. Because Mr. Dowling has failed to establish the relevancy of these documents
to his motion to intervene, we do not address them further.
4
intervene will be granted if the requester shows that he will be affected directly
by the outcome of the proceeding. 5 C.F.R. § 1201.114(i)(3) Given that the
initial decision has been issued, we are able to determine that the outcome had no
direct effect on Mr. Dowling. Mr. Dowling was not named as a responsible
official in this appeal, and there is no adverse finding impacting Mr. Dowling.
While Mr. Dowling asserts that the administrative judge’s findings may hinder
his ability to obtain relief in future proceedings, such statements are mere
speculation and do not warrant intervention. 4 Motion to Intervene at 4; see
Stevens v. Department of Housing and Urban Development, 36 M.S.P.R. 170, 173
(1988) (finding that intervention was not warranted when there was no evidence
beyond mere speculation that the initial decision would have any impact on the
movant’s future). 5
¶7 In conclusion, Mr. Dowling is merely a witness who is disappointed with
the outcome of this appeal. While the administrative judge’s findings may be
bothersome to him, there is no basis for granting intervention.
4
Mr. Dowling alleges that the agency retaliated against him as a result of his internal
reports and his testimony regarding the agency’s alleged violations of USERRA, which
is the subject of a complaint filed with the Commander of the U.S. Strategic Command
and a complaint filed with the Department of Defense Office of Inspector General.
Motion to Intervene at 4.
5
Although Stevens, 36 M.S.P.R. at 172-73, interpreted 5 C.F.R. § 1201.34, the
regulation governing intervention before an administrative judge, the language of
5 C.F.R. § 1201.114(i)(3) and 5 C.F.R. § 1201.34 are similar, including that both
require that the movant show that he will be affected directly by the outcome of the
proceeding. Therefore, we find the reasoning in Stevens to be persuasive here.
5
ORDER
¶8 The motion to intervene is denied. The initial decision issued on April 13,
2023, became the final decision of the Board on May 18, 2023. 5 C.F.R.
§ 1201.113(c). The notice of appeal rights contained within the final decision
governs further review rights, including any applicable time frames for exercising
those rights.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.