Tracie L Hamb v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRACIE L. HAMB, DOCKET NUMBER
Appellant, PH-1221-20-0326-W-1
v.
DEPARTMENT OF VETERANS DATE: August 6, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Tracie L. Hamb , Daniels, West Virginia, pro se.
Craig Komorowski , Huntington, West Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
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 individual right of action (IRA) appeal for lack of jurisdiction. On
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
petition for review, the appellant argues the following: (1) the administrative
judge erred in finding that she failed to make a nonfrivolous allegation of a
protected disclosure; (2) the agency’s hiring practices were both discriminatory
and in violation of agency policy and regulations; (3) she was unfamiliar with
e-Appeal Online; and (4) she is in the process of procuring legal counsel.
Petition for Review (PFR) File, Tab 1 at 25-29. 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 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).
To establish jurisdiction in a typical IRA appeal, an appellant must show
by preponderant evidence 2 that she exhausted her remedies before the Office of
Special Counsel (OSC) and make nonfrivolous allegations 3 of the following:
(1) she made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in a
protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D);
and (2) the disclosure or protected activity was a contributing factor in the
2
Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
3
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
3
agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302(a). Corthell v. Department of Homeland Security, 123 M.S.P.R. 417, ¶ 8
(2016), overruled on other grounds by Requena v. Department of Homeland
Security, 2022 MSPB 39. A protected disclosure is a disclosure of information
that an appellant reasonably believes evidences any violation of any law, rule, or
regulation, gross mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public health or safety. 5 U.S.C. § 2302(b)
(8); Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 12 (2014). The
disclosures must be specific and detailed, not vague allegations of wrongdoing.
Linder, 122 M.S.P.R. 14, ¶ 14.
The Board, in Chambers v. Department of Homeland Security,
2022 MSPB 8, ¶¶ 10-11, clarified the substantive requirements of exhaustion.
The requirements are met when an appellant has provided OSC with a sufficient
basis to pursue an investigation. The Board’s jurisdiction is limited to those
issues that were previously raised with OSC. However, appellants may give a
more detailed account of their whistleblowing activities before the Board than
they did to OSC. Id. Appellants may demonstrate exhaustion through their initial
OSC complaint; evidence that they amended the original complaint, including but
not limited to OSC’s determination letter and other letters from OSC referencing
any amended allegations; and, their written responses to OSC referencing the
amended allegations. Id. Appellants also may establish exhaustion through other
sufficiently reliable evidence, such as an affidavit or a declaration attesting that
they raised with OSC the substance of the facts in the Board appeal. Id.The appellant’s assertions do not provide a basis to disturb the initial decision.
The appellant ostensibly asserts that the administrative judge erred in
finding that she failed to make a nonfrivolous allegation of a disclosure described
under 5 U.S.C. § 2302(b)(8). PFR File, Tab 1 at 25-26. To this end, she claims
that the agency failed to select her for a position because she had challenged the
selecting official’s response to the COVID-19 pandemic. Id. However, we
4
discern no basis to disturb the administrative judge’s reasoned conclusion that the
appellant failed to make a nonfrivolous allegation of a protected disclosure.
Initial Appeal File (IAF), Tab 9, Initial Decision (ID) at 5-6. Indeed, the only
information in the record regarding the appellant’s purported disclosure was a
letter from OSC indicating that the appellant had alleged making disclosures
about her supervisor’s “lack of action regarding COVID-19.” IAF, Tab 1 at 6.
We agree that this vague allegation of inaction does not amount to a nonfrivolous
allegation of any of the circumstances described in 5 U.S.C. § 2302(b)(8).
See Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶¶ 2, 7 (2016)
(concluding that the appellant failed to make a nonfrivolous allegation that he
reasonably believed that he had disclosed a violation of law when he made vague
allegations regarding the inadequacy of the agency’s law enforcement
communication security system); see also King v. Department of Veterans Affairs ,
105 M.S.P.R. 21, ¶¶ 11, 14 (2007) (reasoning that the appellant’s bare allegations
that she had reported patient neglect and abuse on certain dates, without any
additional details or context, did not amount to a nonfrivolous allegation of a
protected disclosure). Thus, we discern no basis to disturb the initial decision.
The appellant avers that agency management engaged in a series of
improprieties in the selection process for the position for which she was not
selected. PFR File, Tab 1 at 25-29. To this end, she avers that that agency
engaged in favoritism, violated numerous agency policies and regulations, and
discriminated against certain applicants based on their age. Id. However, insofar
as the appellant does not identify any protected disclosures or activity regarding
these alleged improprieties, a different outcome is not warranted. See Doster v.
Department of the Army, 56 M.S.P.R. 251, 253-54 (1993) (concluding that the
Board lacked jurisdiction when the appellant’s filings contained a litany of
allegations of agency improprieties but failed to allege any disclosures regarding
the same). Indeed, absent an otherwise appealable action, the Board is unable to
consider the appellant’s claim of age discrimination. See Wren v. Department of
5
the Army, 2 M.S.P.R. 1, 2 (1980) (explaining 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).
The appellant seemingly alleges that she was prejudiced by her
unfamiliarity with e-Appeal Online. PFR File, Tab 1 at 25. To this end, she
avers that she was “not familiar with the repository and how to access the
documents in a timely manner until recently.” Id. However, as a registered
e-filer during the adjudication of her initial appeal, IAF, Tab 1 at 2, the appellant
consented to accept all documents issued by other registered e -filers and by the
Board in electronic form, see 5 C.F.R. § 1201.14(e)(1) (2020). She was therefore
required by regulation to ensure that email from @mspb.gov was not blocked by
filters and to monitor her case at the Repository at e-Appeal Online to ensure that
she received all case-related documents. 5 C.F.R. § 1201.14(j)(2)-(3) (2020).
Thus, the appellant’s professed technical issues do not warrant a different
outcome. See Rocha v. Merit Systems Protection Board, 688 F.3d 1307, 1310
(Fed. Cir. 2012) (finding unavailing the pro se appellant’s assertions that he did
not timely receive the initial decision when the appellant was a registered e-filer
and the initial decision was sent to the email address that he provided to the
Board). Moreover, the appellant fails to explain how she was prejudiced by her
apparent inability to timely access Board filings; indeed, we have considered all
of the evidence and argument that the appellant provides on review, and we find
that the record remains devoid of a nonfrivolous allegation of a disclosure
described under 5 U.S.C. § 2302(b)(8) or protected activity described under
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). See Simnitt v. Department of
Veterans Affairs, 113 M.S.P.R. 313, ¶ 5 (2010) (explaining that the issue of the
Board’s jurisdiction is always before the Board and may be raised by either party
or sua sponte by the Board at any time during a Board proceeding).
Last, the appellant avers that she is “in the process of potentially selecting
legal representation.” PFR File, Tab 1 at 25. To the extent the appellant argues
6
that she was prejudiced by her lack of legal representation before the
administrative judge, a different outcome is not warranted. Indeed, it was the
appellant’s obligation to timely secure legal representation. See Raymond v.
Department of the Army, 102 M.S.P.R. 665, ¶ 4 n.1 (2006) (explaining that the
Board is not required by law, rule, or regulation to appoint counsel for an
appellant).
The appellant provides additional documents with her petition for review;
however, these documents do not warrant a different outcome.
With her petition for review, the appellant provides, for the first time,
handwritten interview notes and an agency handbook on qualification standards
for certain positions. PFR File, Tab 1 at 31-63. However, the appellant provides
no discernable explanation as to why she did not timely provide this evidence to
the administrative judge. 4 See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211,
214 (1980) (finding that the Board generally will not consider evidence submitted
for the first time with the petition for review absent a showing that it was
unavailable before the record was closed despite the party’s due diligence).
Moreover, these documents are not material to the outcome of this appeal.
See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (stating that
the Board will not grant a petition for review based on new evidence absent a
showing that it is of sufficient weight to warrant an outcome different from that
of the initial decision).
Accordingly, we affirm the initial decision.
4
The appellant seemingly indicates that she received the handwritten interview notes
via a Freedom of Information Act (FOIA) request. PFR File, Tab 1 at 26. To the extent
she alleges that the agency did not respond to her FOIA request until after the close of
the record, a different outcome is not warranted insofar as the notes are not material to
the jurisdictional issue. Id. at 31; see Russo v. Veterans Administration, 3 M.S.P.R.
345, 349 (1980).
7
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.
8
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
9
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
10
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.
11
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.