Kartarii Vice v. Department of Labor ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KARTARII VICE, DOCKET NUMBER
Appellant, DC-531D-21-0073-I-1
v.
DEPARTMENT OF LABOR, DATE: August 13, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kartarii Vice , La Plata, Maryland, pro se.
Nnenne U. Agbai , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of her within-grade increase (WIGI) denial 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 erroneous interpretation of statute or regulation
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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
The appellant, who is employed by the agency as a GS-11 Staff Assistant,
received a memorandum on February 24, 2020, informing her of the decision to
withhold her WIGI based on a failure to demonstrate an acceptable level of
competence during the Fiscal Year 2019 (FY19) rating period. Initial Appeal File
(IAF), Tab 1 at 8-10. On November 5, 2020, the appellant filed an appeal of her
WIGI denial alleging that, amongst other things, the agency retaliated against her
for protected whistleblowing activity and committed other prohibited personnel
practices. Id. at 3, 5. The administrative judge informed the appellant that the
Board may not have jurisdiction over her WIGI denial and ordered her to submit
evidence and argument to establish why the appeal should not be dismissed for
lack of jurisdiction or as untimely. IAF, Tab 3.
In response to the order, the appellant argued that the agency should have
provided her with an opportunity to avoid the alleged performance deficiencies
that led to her WIGI denial, questioned its assessment of her performance, and
asserted that she was unable to timely request reconsideration of her WIGI denial
due to the need to care for her ill grandson and her own “emergency medical
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leave.” IAF, Tab 5 at 4. She submitted several documents, including leave
records, a doctor’s note for the care of her grandchild, and emails with agency
human resources staff and her supervisor regarding her WIGI. Id. at 5-8, 10-14.
She also expressed disagreement with her FY19 performance rating and the
manner in which it was issued. IAF, Tab 9 at 4-6. The agency filed a response to
the order arguing that the Board lacks jurisdiction over the appellant’s WIGI
denial and requesting dismissal. IAF, Tab 7 at 4-9.
In an initial decision, the administrative judge found that it was undisputed
the appellant failed to request or receive a reconsideration decision as necessary
to establish jurisdiction over her WIGI denial under 5 U.S.C. § 5335(c). IAF,
Tab 13, Initial Decision (ID) at 3-5 (citing 5 C.F.R. § 531.410, an Office of
Personnel Management (OPM) regulation establishing procedures under 5 U.S.C.
§ 5335(c)). She also found the appellant did not claim she exhausted her
administrative remedies before the Office of Special Counsel (OSC) as necessary
to establish Board jurisdiction over an individual right of action (IRA) appeal. ID
at 5-6. Finally, the administrative judge determined that the Board lacks
jurisdiction to review the appellant’s other prohibited personnel practice and
harmful error claims in the absence of an otherwise appealable action. ID at 6.
As a result, she dismissed the appeal for lack of jurisdiction without holding the
appellant’s requested hearing. IAF, Tab 1 at 2; ID at 1, 6-7.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response to the appellant’s petition.
PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant does not dispute the administrative judge’s
determination that she did not seek to exhaust her OSC remedy as to any potential
IRA appeal. ID at 6. We discern no basis to disturb the administrative judge’s
well-reasoned determination that the Board therefore lacks jurisdiction over the
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appellant’s claim as an IRA appeal. See Salerno v. Department of the Interior,
123 M.S.P.R. 230, ¶ 5 (2016) (listing the prerequisites for Board jurisdiction over
an IRA appeal, including OSC exhaustion).
The appellant asserts for the first time on review that she requested
reconsideration when she disputed her performance rating in October 2019.
PFR File, Tab 1 at 4; IAF, Tab 9 at 5. We interpret this claim as an argument that
the Board has jurisdiction over her WIGI denial under 5 U.S.C. § 5335(c).
PFR File, Tab 1 at 4. 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 employee under
the General Schedule earns periodic increases in pay, or WIGIs, as long as her
performance is at an acceptable level of competence. Brookins v. Department of
the Interior, 2023 M.S.P.B. 3, ¶ 6; see 5 U.S.C. § 5335(a). When an agency
determines that an employee is not performing at an acceptable level of
competence and that a WIGI should be withheld, the employee is entitled to
“prompt written notice of that determination” and an opportunity for
reconsideration under regulations prescribed by OPM. 5 U.S.C. § 5335(a)
(B), (c). OPM’s regulations provide that an employee must seek reconsideration
of a decision to withhold a WIGI in writing within 15 days of receiving the
decision from the agency. 5 C.F.R. § 531.410(a)(1). The Board can exercise
jurisdiction over an appeal from the withholding of a WIGI only if the agency has
affirmed its initial decision on reconsideration or has unreasonably refused to act
on a request for reconsideration. 5 U.S.C. § 5335(c); Priselac v. Department of
the Navy, 77 M.S.P.R. 332, 335 (1998). The administrative judge found that the
Board lacked jurisdiction because the appellant failed to nonfrivolously allege
that she requested, or that the agency issued, a reconsideration decision. ID at 1,
3-5. We agree.
On review, the appellant argues that before she received notice of her WIGI
denial of February 2020, “[she] did in fact submit an email to [the agency]
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requesting reasonable reconsideration and [the agency] denied that reasonable
reconsideration.” 2 PFR File, Tab 1 at 4. In support of her claim, she refers to an
alleged October 2019 email exchange with her supervisor, in which she disputed
her performance rating, and he stated that his “rating stands.” Id.; IAF, Tab 9
at 5. Because this alleged request predated and was not directed at her WIGI
denial, it was not a request for reconsideration from that denial.
The appellant also claims she sought guidance regarding requesting
reconsideration. PFR File, Tab 1 at 4. She points to the emails that she
submitted below in response to the show cause order to support this argument.
Id.; IAF Tab 5 at 11-14. In the appellant’s emails, she notified the agency’s
Office of Human Resources that she did not receive her WIGI and requested
guidance on the process to receive it. IAF, Tab 5 at 11-14. She also asked her
supervisor if he was “aware that this ‘minimally satisfactory rating’ [he] gave
denies [her a] WIGI?” Id. at 12-13. We have given careful consideration to the
emails to evaluate whether they could constitute a request for reconsideration.
Based on their content and the fact that they are dated January to February 2020,
before the appellant received her WIGI denial, we find that they do not.
In Jack v. Department of Commerce, 98 M.S.P.R. 354, ¶¶ 2-4, 11 (2005),
after the agency effected and the appellant learned of the agency’s denial of his
WIGI, but before the agency issued him written notice of its decision, the
appellant “formally request[ed]” in writing that the agency’s decision to deny the
WIGI be reversed and that his step increase be retroactively granted. The agency
failed to act on his written request. Id., ¶ 3. The Board concluded that it had
jurisdiction. Id., ¶ 13. As relevant here, it determined that the agency’s failure to
2
Although the agency dated its WIGI denial on February 21, 2020, it appears likely the
appellant received it on February 24, 2020. IAF, Tab 1 at 8, 10. The notice states that
the appellant refused to sign on that date. Id. at 10. In any event, because we agree
with the administrative judge that the appellant never requested reconsideration either
within or after the 15 day period for doing so, we need not determine whether the
appellant received written notice of her WIGI denial on February 21, 2020, or 3 days
later. ID at 3-5 & n.2.
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provide the appellant with prompt written notice of its decision until months after
it made its decision could not defeat jurisdiction and its failure to act on his
earlier request was unreasonable. Id., ¶¶ 10-13.
Here, the appellant has failed to nonfrivolously allege that she ever
requested reconsideration. Although the emails reflect that she was seeking
information regarding the process to receive her WIGI, the emails do not contain
any language that could be construed to be a request for reconsideration of the
WIGI denial. IAF, Tab 5 at 11-14. Further, unlike Jack, the agency issued a
prompt written notice of the appellant’s WIGI denial. Specifically, her WIGI was
due on February 2, 2020, and the agency informed her of its denial in the
February 21, 2020 memorandum, which she received on February 24, 2020. IAF,
Tab 1, at 8-10, Tab 5 at 14. Moreover, the appellant conceded that “there wasn’t
anything filed within the required time frame [because her] grandson having
cancer [sic] and [she] went to Arizona where he was living.” IAF, Tab 5 at 4.
Therefore, we decline to disturb the administrative judge’s finding that she failed
to request a reconsideration decision after she received the notice of her WIGI
denial. ID at 3, 5 & n.2.
To the extent that the appellant asserts on review that the evidence she
submitted below supports her inability to timely request reconsideration, thus
justifying extending the timeline, we agree with the administrative judge that her
argument is unavailing. 3 PFR File, Tab 1 at 5; ID at 4. She alleged below that
her grandchild’s illness and related leave prevented her from timely requesting
3
The appellant also appears to argue that she has good cause for untimely filing her
Board appeal and asserts that she was on emergency leave for a portion of the filing
period. PFR File, Tab 1 at 5. Her argument on review appears inconsistent with her
statement below that she returned from emergency leave in January 2020, which was
prior to her WIGI denial. IAF, Tab 5 at 4. We need not resolve this discrepancy. We
affirm the administrative judge’s determination that because the Board lacks
jurisdiction to review this case, we need not reach the appellant’s arguments on review
regarding the timeliness of her appeal. ID at 2 n.1; see Alston v. Social Security
Administration, 95 M.S.P.R. 252, ¶ 19 (2003), aff’d per curiam, 134 F. App’x 440 (Fed.
Cir. 2005).
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reconsideration. IAF, Tab 5 at 4. When an agency denies a request for
reconsideration of the withholding of a WIGI because it was not submitted by the
regulatory deadline, the Board will review the record that was before the agency
to determine whether the denial was unreasonable or an abuse of discretion.
Priselac, 77 M.S.P.R. at 336. If the Board finds that the appellant did not present
sufficient evidence to justify extending the deadline, the Board lacks jurisdiction
over the appeal. Id. at 336-37; 5 C.F.R. § 531.410(b) (“The time limit to request
a reconsideration may be extended when the employee shows he or she . . . was
prevented by circumstances beyond his or her control from requesting
reconsideration within the time limit.”). Here, as the administrative judge
correctly determined, the appellant did not request reconsideration. ID at 3,
5 & n.2. The administrative judge alternatively found that the evidence the
appellant submitted predated her WIGI denial and did not address the 15 days
during which she was required to request reconsideration. IAF, Tab 5 at 5-10; ID
at 4. Thus, the administrative judge properly found that she failed to show how
she was prevented from circumstances beyond her control from requesting
reconsideration within the regulatory time limit. ID at 4.
The appellant’s remaining arguments provide no basis to grant review. She
asserts that the agency engaged in prohibited personnel practices and abused its
authority by failing to comply with Federal Government policies regarding
negative performance-based actions. PFR File, Tab 1 at 4. The administrative
judge properly determined that, because the Board lacks jurisdiction over the
appellant’s WIGI denial, it cannot consider her claims of prohibited personnel
practices. ID at 6; Penna v. U.S. Postal Service, 118 M.S.P.R. 355, ¶ 13 (2012)
(finding that, in the absence of an otherwise appealable action, the Board lacks
jurisdiction over claims of harmful error and prohibited personnel practices);
Wren v. Department of 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). She
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further argues that the agency did not serve her with copies of the documents at
Tabs 1 through 4 of the Initial Appeal File relied on by the administrative judge
in the initial decision. PFR File, Tab 1 at 5. However, Tabs 1-4 are pleadings
submitted by the appellant and orders issued by the administrative judge. Thus,
the agency was not obligated to serve copies on the appellant. See 5 C.F.R.
§ 1201.26(b)(2) (requiring parties to serve each other with copies of their
pleadings). Further, the appellant was an e-filer and thus deemed to have
received the agency’s pleadings on the date of electronic submission. 5 C.F.R.
§ 1201.14(m)(2).
Accordingly, we affirm the dismissal of the appellant’s WIGI appeal for
lack of jurisdiction.
NOTICE OF APPEAL RIGHTS 4
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
4
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.
9
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.
(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
10
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:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
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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. 5 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
5
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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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.