Angela Harvey v. Department of the Air Force ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANGELA HARVEY, DOCKET NUMBER
Appellant, DC-315H-19-0486-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: February 23, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Angela Harvey , St. Leonard, Maryland, pro se.
Jonathan Mott and Trinh G. Warner , Joint Base Andrews, Maryland,
for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her termination appeal for lack of jurisdiction without a hearing.
Generally, we grant petitions such as these 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 appellant 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). For the reasons
discussed below, we FORWARD the appellant’s claim of whistleblower reprisal
to the regional office with instructions for the administrative judge to docket a
new Individual Right of Action (IRA) appeal.
BACKGROUND
Effective May 1, 2017, the agency awarded the appellant a
career-conditional appointment to the competitive service position of GS -07
Contract Specialist, subject to a 2-year initial probationary period. Initial Appeal
File (IAF), Tab 1 at 7-8. On April 24, 2019, the agency terminated the appellant
for post-appointment reasons under 5 C.F.R. § 315.804. Id. at 11-13. On May 6,
2019, the appellant filed a Board appeal and requested a hearing, challenging the
merits of her termination and arguing that her termination was in reprisal for
whistleblowing and equal employment opportunity (EEO) activity. Id. at 2-5.
She attached a copy of a whistleblower complaint that she had filed with the
Office of Special Counsel (OSC) that same day. Id. at 14-25.
The administrative judge issued a jurisdictional order, notifying the
appellant of the standards for proving Board jurisdiction over her appeal under
5 U.S.C. chapter 75, 5 C.F.R. part 315, subpart H, and the Whistleblower
3
Protection Act (WPA). IAF, Tab 3 at 2-6. He ordered her to file evidence and
argument on the jurisdictional issue. Id. at 6. After the appellant failed to
respond within the deadline, the administrative judge issued an initial decision
dismissing the appeal for lack of jurisdiction without a hearing. IAF, Tab 5,
Initial Decision (ID). The administrative judge found that the Board lacks
jurisdiction under 5 U.S.C. chapter 75 because the appellant did not fit the
definition of “employee” under 5 U.S.C. § 7511(a)(1)(A). ID at 3-5. He found
that the Board lacks jurisdiction under 5 C.F.R. § 315.806 because the appellant
did not allege that her termination was based on partisan political reasons or
marital status, and he found that the Board lacks jurisdiction under the WPA
because the appellant had not yet exhausted her administrative remedies with
OSC. ID at 5 & n.4. The administrative judge further found that, to the extent
that the appellant was claiming that her termination was based on other prohibited
personnel practices, the Board lacks jurisdiction over such claims absent an
otherwise appealable action. ID at 5-6.
The appellant has filed a petition for review, arguing that, under agency
regulations, her probationary period should have been 1 year rather than 2 years,
and otherwise challenging the merits of the termination. Petition for Review
(PFR) File, Tab 1 at 9. She has attached numerous documents to her petition for
review form. Id. at 10-134. The agency has not filed a response.
ANALYSIS
At the outset, we find that the appellant should have submitted to the
administrative judge the evidence and argument that she now submits for the first
time on review. Under 5 C.F.R. § 1201.115, the Board will not consider evidence
or argument presented for the first time in a petition for review absent a showing
that it was previously unavailable despite the party’s due diligence. Banks v.
Department of the Air Force, 4 M.S.P.R. 268, 271 (1980); Avansino v. U.S.
Postal Service, 3 M.S.P.R. 211, 214 (1980). The appellant has made no such
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showing here. 2 Nevertheless, under the particular circumstances of this case, we
find it appropriate to waive the regulatory requirement and consider the
appellant’s late-raised evidence and argument. See 5 C.F.R. § 1201.12.
The appellant does not challenge the administrative judge’s findings as
they pertain to the Board’s jurisdiction under 5 U.S.C. § 315.806 or the WPA.
For the reasons explained in the initial decision, we agree with these findings. ID
at 5 & n.2; see Calixto v. Department of Defense, 120 M.S.P.R. 557, ¶¶ 20-21
(2014); Williams v. Department of Defense, 96 M.S.P.R. 335, ¶ 14 (2004). To the
extent that the appellant is contesting the administrative judge’s jurisdictional
findings regarding her discrimination and EEO retaliation claims, PFR File, Tab 1
at 9, we agree with the administrative judge that these do not provide an
independent source of Board jurisdiction, ID at 5-6; see Wren v. Department of
the Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).
Regarding the Board’s chapter 75 jurisdiction, the appellant argues that she
fits the definition of “employee” under 5 U.S.C. § 7511(a)(1)(A)(i) because she
had already completed her 1-year probationary period at the time of her
termination. PFR File, Tab 1 at 9. Tacitly acknowledging the requirement of
10 U.S.C. §§ 111(b) and 1599e(a), that competitive service appointees in the
military departments serve a 2-year probationary period, the appellant argues that
Air Force Instruction 36-1001 § 3.1 provides that “[e]mployees who receive a
career or career-conditional appointment, and who have not previously completed
probation serve a one-year probationary period.” PFR File, Tab 1 at 9, 23. We
find, however, that this Air Force Instruction conflicts with the statute, which
2
Among the documents that the appellant has submitted are several Inspector General
complaints that she filed after the close of the record below. PFR File, Tab 1 at 86-91.
Although these documents may have been previously unavailable, the information
contained in them was not. To constitute new and material evidence, the information
contained in the documents, not just the documents themselves, must have been
unavailable despite due diligence when the record closed. Grassell v. Department of
Transportation, 40 M.S.P.R. 554, 564 (1989).
5
imposes a mandatory 2-year probationary period. 10 U.S.C. § 1599e(a). 3 The
statute allows for the probationary period to be extended, but it does not allow for
it to be shortened. Id. Where there is an affirmative conflict between a statute
and an agency rule or regulation, the Board will follow the statute. Johnson v.
Department of Justice, 71 M.S.P.R. 59, 67 (1996). We therefore agree with the
administrative judge that because the agency terminated the appellant within
2 years of her appointment, she was not an “employee” with chapter 75 appeal
rights. ID at 3-5 & n.2; see 5 U.S.C. § 7511(a)(1)(A); 10 U.S.C. § 1599e(a), (d).
Nevertheless, we find it appropriate at this time to forward this case to the
administrative judge for consideration as an individual right of action (IRA)
appeal. The record shows that the appellant filed her OSC complaint on May 6,
2019, and when the initial decision was issued on May 16, 2019, 120 calendar
days had not elapsed and the appellant had not shown that OSC had terminated its
investigation into her allegations. Therefore, the administrative judge correctly
dismissed the IRA appeal for lack of jurisdiction. See Kochanoff v. Department
of the Treasury, 98 M.S.P.R. 405, ¶ 6 (2005). However, it is the Board’s practice
to adjudicate an appeal that was premature when it was filed but becomes ripe
while pending with the Board. Id., ¶ 7. Because more than 120 days have now
elapsed since the appellant’s May 6, 2019 whistleblower complaint to OSC, her
whistleblower claim is ripe for adjudication. See 5 U.S.C. § 1214(a)(3)(B); cf.
Becker v. Department of Veterans Affairs, 107 M.S.P.R. 327, ¶¶ 7-8 (2007)
(remanding an IRA appeal for adjudication that was premature when filed but
ripened while the appeal was pending).
Accordingly, we forward the appellant’s IRA claim to the administrative
judge with instructions to docket a new IRA appeal.
3
The 2-year probationary period for DOD employees has been repealed, but only for
appointments made on or after December 31, 2022. Bryant v. Department of the Army,
2022 MSPB 1, ¶ 8.
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NOTICE OF APPEAL RIGHTS 4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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:
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.
7
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
8
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
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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
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.
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.
10
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.