Aurora Shingledecker v. Department of the Air Force ( 2024 )


Menu:
  •                       UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    AURORA SHINGLEDECKER,                           DOCKET NUMBER
    Appellant,                         DA-315H-20-0104-I-1
    v.
    DEPARTMENT OF THE AIR FORCE,                    DATE: June 21, 2024
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    Russell J. Amsberry , Esquire, San Antonio, Texas, for the appellant.
    Alana Kitchen , Wright-Patterson Air Force Base, Ohio, for the agency.
    BEFORE
    Cathy A. Harris, Chairman
    Raymond A. Limon, Vice Chairman
    Henry J. Kerner, Member*
    *Member Kerner did not participate in the adjudication of this appeal.
    FINAL ORDER
    The appellant has filed a petition for review of the initial decision, which
    dismissed her termination 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; the initial decision is based on an
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    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 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).
    On petition for review, 2 the appellant does not challenge the administrative
    judge’s finding that she failed to make a nonfrivolous allegation 3 that she was an
    “employee” for purposes of 5 U.S.C. chapter 75 appeal rights or that there was a
    regulatory basis for her appeal under the provisions set forth in 5 C.F.R. part 315,
    subpart H.    Petition for Review (PFR) File, Tab 1 at 5-7; Initial Appeal File
    (IAF), Tab 7, Initial Decision at 2-6; see Ferdon v. U.S. Postal Service,
    
    60 M.S.P.R. 325
    , 329 (1994) (holding that an appellant is entitled to a
    jurisdictional hearing if she presents nonfrivolous allegations of Board
    jurisdiction). She also does not allege that the agency failed to meet the “broad
    stroke language” of 
    5 C.F.R. § 315.804
    (a) in providing her notice of the reason
    for, and effective date of, her termination. PFR File, Tab 1 at 5-7. Rather, the
    2
    Although the appellant’s petition was date and time stamped with Eastern Time, the
    Office of the Clerk of the Board considered the petition to have been timely filed
    because her representative filed it by e-Appeal from the Central Time Zone and the
    timeliness of a pleading is assessed based on the time zone from which it is filed.
    Petition for Review File, Tab 2 at 1; see 
    5 C.F.R. § 1201.14
    (m)(1).
    3
    A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
    issue. 
    5 C.F.R. § 1201.4
    (s).
    3
    appellant repeats her arguments regarding the merits of her termination for
    performance deficiencies. Id.; IAF, Tab 1 at 12.
    The appellant argues for the first time on review that her termination
    violated Executive Order 13892, § 3, 
    84 Fed. Reg. 55239
     (Oct. 9, 2019), because
    the order states that “when an agency . . . makes a determination that has legal
    consequences for a person, it must establish a violation of law by applying statues
    and regulations.” PFR File, Tab 6-7. The Board will not consider an argument
    raised for the first time in a petition for review absent a showing that it is based
    on new and material evidence not previously available despite the party’s due
    diligence. Banks v. Department of the Air Force, 
    4 M.S.P.R. 268
    , 271 (1980).
    The appellant has made no such showing regarding this executive order, which
    was issued prior to the appellant’s termination and filing of her initial appeal.
    She offers no explanation for why she did not make this argument during the
    pendency of her appeal or respond to the jurisdiction order at all.           PFR File,
    Tab 1 at 5-7. 4   In any event, the section of this Executive Order cited by the
    appellant, entitled “Proper Reliance on Guidance Documents,” prohibits an
    agency from “treat[ing] noncompliance with a standard of conduct announced
    solely in a guidance document as itself a violation of applicable statutes or
    regulations.” Executive Order 13892, § 3. She offers no argument as to how this
    Executive Order alters either chapter 75 appeal rights or the Office of Personnel
    Management regulations applicable to her probationary termination. See Maddox
    v. Merit Systems Protection Board, 
    759 F.2d 9
    , 10 (Fed. Cir. 1985) (holding that
    the Board’s jurisdiction is limited to those matters over which it has been given
    jurisdiction by law, rule, or regulation).
    Accordingly, we affirm the initial decision.
    4
    In a statement regarding the timeliness of the petition for review, the appellant’s
    representative asserts that he was hospitalized for a period of 2 weeks ending
    February 10, 2020. PFR File, Tab 1 at 4. He makes no contention in this statement that
    he was medically incapacitated during the response period for the jurisdiction order. 
    Id.
    4
    NOTICE OF APPEAL RIGHTS 5
    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
    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:
    5
    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.
    5
    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. 420
     (2017). If you have a representative in this case,
    and your representative receives this decision before 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
    6
    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
    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
    7
    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. 6   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.
    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.
    6
    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.
    8
    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:                       ______________________________
    Gina K. Grippando
    Clerk of the Board
    Washington, D.C.
    

Document Info

Docket Number: DA-315H-20-0104-I-1

Filed Date: 6/21/2024

Precedential Status: Non-Precedential

Modified Date: 6/24/2024