Thomas N Blake v. Department of Agriculture ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THOMAS NATHANIEL BLAKE, SR, DOCKET NUMBER
Appellant, PH-315H-19-0291-I-1
v.
DEPARTMENT OF AGRICULTURE, DATE: July 1, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Thomas Nathaniel Blake, Sr. , Indian Head, Maryland, pro se.
Dora Malykin , Esquire, Washington, D.C., 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 his probationary 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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).
BACKGROUND
On December 9, 2018, the appellant received a term appointment in the
competitive service, not to exceed December 8, 2019, to a GS-12 Auditor
position. Initial Appeal File (IAF), Tab 1 at 7. This appointment was subject to a
1-year probationary period. Id. at 6-7. Effective April 26, 2019, before the end
of his probationary period, the agency terminated the appellant based on
post-appointment conduct-related issues. IAF, Tab 4 at 8-11. The appellant filed
this appeal of his termination to the Board, requesting a hearing. IAF, Tab 1.
The administrative judge issued an acknowledgment order, informing the
appellant that the Board may not have jurisdiction over his appeal and advising
him of his jurisdictional burden. IAF, Tab 2 at 2-5. The administrative judge
advised the appellant that he was entitled to the hearing that he requested if he
made a nonfrivolous allegation that he was an “employee” within the meaning of
chapter 75 or that his termination was based on partisan political reasons or
marital status. Id. The appellant did not respond. The agency filed a motion to
dismiss. IAF, Tab 4 at 4-5.
3
The administrative judge issued an initial decision dismissing the appeal
for lack of jurisdiction. IAF, Tab 5, Initial Decision (ID) at 1, 4. He observed
that the appellant did not argue that his termination was based on partisan
political reasons or marital status. ID at 3-4. He found that, as a probationary
employee, the appellant has neither a statutory nor a regulatory right of appeal to
the Board. ID at 4.
In his petition for review, the appellant asserts that he did not respond to
the jurisdictional order and motion to dismiss because he was unable to access the
Board’s e-Appeal system. Petition for Review (PFR) File, Tab 2 at 1. He argues
that he was discriminated against because he was unmarried, African American,
and male, and retaliated against for equal employment opportunity (EEO) activity
and based on a short-term medical condition. Id. at 2-4. He also argues the
merits of his termination. Id. at 2-3. 2 The agency has responded to the
appellant’s petition, PFR File, Tab 4, and the appellant has replied to the
response, PFR File, Tab 6.
ANALYSIS
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule or regulation. Maddox v. Merit Systems Protection
Board, 759 F.2d 9, 10 (Fed. Cir. 1985). An appellant bears the burden of proving
Board jurisdiction by preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(A). A
probationary employee in the competitive service who has not completed 1 year
of current continuous service has no statutory right of appeal to the Board. See
2
The appellant attaches a number of documents to his petition for review, including
copies of many certificates of completion for courses related to his position, PFR File,
Tab 2 at 6-30, a copy of the agency’s desk review program, id. at 31-35, medical
evidence including evidence that he was under a doctor’s care from March 14, 2019,
through April 9, 2019, id. at 36-39, his performance evaluation and performance
standards, id. at 40-53, a designation of his tour of duty, id. at 54, an e-mail denying an
allegation that he was sleeping on duty, id. at 55-56, and his résumé, id. at 57-62. As
explained below, none of these submissions are relevant to the dispositive issue of the
Board’s jurisdiction over this appeal.
4
5 U.S.C. § 7511(a)(1)(A); Marynowski v. Department of the Navy, 118 M.S.P.R.
321, ¶ 4 (2012). However, a probationary employee in the competitive service
may appeal a termination if he alleges that it was based on partisan political
reasons or marital status. Id.; 5 C.F.R. § 315.806(b).
The appellant’s assertion for the first time on review that he was
discriminated against because he is unmarried appears to be an assertion that he
was discriminated against based on his marital status. PFR File, Tab 1 at 2. We
have considered this argument even though it was not raised below because it
implicates the Board’s jurisdiction, an issue that is always before the Board and
may be raised by any party or sua sponte by the Board at any time during a Board
proceeding. See Lovoy v. Department of Health and Human Services ,
94 M.S.P.R. 571, ¶ 30 (2003).
In determining whether an appellant has established jurisdiction under
5 C.F.R. § 315.806(b) because of marital status discrimination, the Board follows
a two-step process. Marynowski. 118 M.S.P.R. 321, ¶ 5. First, the appellant must
make nonfrivolous claims of jurisdiction, i.e., factual allegations that, if proven,
would establish that his termination was based on marital status. Id. An
appellant who makes such nonfrivolous claims is entitled to a jurisdictional
hearing at which he must then prove the basis for jurisdiction, i.e., that his
termination was based on marital status, by a preponderance of the evidence. Id.The appellant has failed to establish step one in that process. To make a
nonfrivolous allegation of marital status discrimination, an appellant must allege
facts which, taken as true, would show he was treated differently because of his
marital status or facts that go to the essence of his status as married, single, or
divorced. Id. Here, the appellant infers discriminatory intent from his status as
“the sole male, black, single auditor in a primary white, female, married
personnel group.” PFR File, Tab 2 at 2. He does not claim he was terminated
because he was single. Rather, he alleges that because he was, as relevant here,
single, he was “terminated . . . without notice (oral or written) or cause.” Id.5
Thus, he alleges no facts that, if true, would suggest his termination resulted from
his unmarried status or go to the essence of that status.
To the extent that the appellant’s allegations that he was discriminated
against based on being African American, male, and having a short-term medical
condition constitute allegations of discrimination on the bases of race, sex, and
disability, or reprisal for EEO activity, the allegations provide no basis for
jurisdiction over his appeal absent an otherwise appealable issue. The appellant’s
discrimination and EEO reprisal claims are not an independent source of Board
jurisdiction. Pridgen v. Office of Management and Budget, 117 M.S.P.R. 665,
¶ 7 (2012). Finally, to the extent that the appellant is arguing that the agency’s
termination action was improper on the merits, the Board is precluded from
reviewing the merits of the agency’s action in the appeal of the termination of a
probationary employee. 5 C.F.R. § 315.806(a).
NOTICE OF APPEAL RIGHTS 3
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.
3
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.
6
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:
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.
7
(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
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:
8
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
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. 4 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).
4
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.
9
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.
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.