Randy Carter v. Department of the Navy ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RANDY ORAN CARTER, DOCKET NUMBER
Appellant, AT-315I-23-0635-I-1
v.
DEPARTMENT OF THE NAVY, DATE: August 22, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Randy Oran Carter , Ridgeland, South Carolina, pro se.
John Errett Buis , Beaufort, South Carolina, 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.
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his probationary termination appeal for lack of jurisdiction . For the
reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 On February 27, 2023, the agency appointed the appellant to the
competitive-service position of GS-11 Supervisory Career Resource Manager,
subject to a 1-year probationary period. Initial Appeal File (IAF), Tab 6 at 10.
Effective July 19, 2023, the agency terminated his employment because of
“conduct unbecoming a Supervisory Federal Employee.” Id. at 13-16. On
August 8, 2023, the appellant filed a Board appeal challenging his termination.
IAF, Tab 1 at 7, 12, 453.
¶3 The administrative judge issued an acknowledgment order, which notified
the appellant that the Board may not have jurisdiction over his appeal unless he
made a nonfrivolous allegation that the agency terminated him based on partisan
political reasons or marital status. IAF, Tab 2 at 4-5. She provided the parties
with an opportunity to present evidence and argument regarding jurisdiction. Id.
at 5. In the appellant’s response, he alleged that he was terminated due to his
“marital status and conservative political views[, which] run counterintuitive [sic]
to [his director’s] single life and liberal political views.” IAF, Tab 5 at 2. The
agency responded to the acknowledgment order by arguing that the appeal should
be dismissed for lack of jurisdiction. IAF, Tab 6 at 4-8.
¶4 On November 27, 2023, the administrative judge issued an order observing
that the appellant might be raising a claim of reprisal for protected
whistleblowing disclosures or activity. IAF, Tab 8 at 1. She set forth the
appellant’s burden of establishing jurisdiction over an individual right of action
(IRA) appeal and provided him with an opportunity to present evidence and
argument establishing IRA jurisdiction. Id. at 2. The administrative judge served
the order on the parties electronically, as both parties had registered as e-filers at
the time the order was issued. Id. at 4. The appellant did not file a response to
the November 27, 2023 order.
¶5 On January 9, 2024, the administrative judge issued an initial decision,
which dismissed the appeal for lack of Board jurisdiction. IAF, Tab 9, Initial
3
Decision (ID) at 2, 6. She reasoned that the parties did not dispute that the
appellant lacked chapter 75 adverse action appeal rights. ID at 3-4. She further
found that the appellant failed to make a nonfrivolous allegation that his
probationary termination was based on partisan political reasons or marital status.
ID at 4-6. Accordingly, the administrative judge dismissed the appeal for lack of
jurisdiction without holding the appellant’s requested hearing. ID at 1; IAF,
Tab 1 at 2.
¶6 The administrative judge observed in the initial decision that the appellant
had not responded to her order regarding whistleblower reprisal; however, she did
not make any findings regarding this claim. ID at 6 n.2. She also indicated that
the appellant alleged that he was terminated in reprisal for asserting another
employee’s rights under the Uniformed Services Employment and Reemployment
Rights Act of 1994 (codified as amended at 38 U.S.C. §§ 4301-4335) (USERRA)
and advised him that he could file a separate USERRA appeal. Id.¶7 The appellant has filed a timely petition for review. Petition for Review
(PFR) File, Tab 1 at 14. He reasserts claims of reprisal for whistleblowing and
for defending another employee’s USERRA rights. Id. at 10-12. He also argues
that he experienced technical issues in accessing the judge’s order in the Board’s
e-Appeal system, for which he sought technical assistance, and that his inability
to access e-Appeal prevented him from responding to the administrative judge’s
November 27, 2023 order regarding whistleblower reprisal. Id. at 5-6. The
agency has filed a response. PFR File, Tab 3.
4
DISCUSSION OF ARGUMENTS ON REVIEW
¶8 The issue before us is whether we have jurisdiction over this appeal. The
Board does not have jurisdiction over all matters involving a Federal employee
that are allegedly unfair or incorrect. Weyman v. Department of Justice,
58 M.S.P.R. 509, 512 (1993). Rather, the Board only has the jurisdiction that
pertinent statutes and regulations provide it. Id.¶9 An appellant has the burden of proving Board jurisdiction. 5 C.F.R.
§§ 1201.56(b)(2)(i)(A), .57(b)-(c)(1). He must receive explicit information on
what is required to do so. Burgess v. Merit Systems Protection Board, 758 F.2d
641, 643-44 (Fed. Cir. 1985). If an administrative judge has not advised an
appellant of his burden of establishing jurisdiction, the appeal generally must be
remanded to allow the parties to submit evidence and argument regarding the
jurisdictional issue. Hudson v. Department of Veterans Affairs, 104 M.S.P.R.
283, ¶ 8 (2006). Nevertheless, an administrative judge’s failure to provide an
appellant with proper jurisdictional notice can be cured if the agency’s pleadings
contain the notice that was lacking in the administrative judge’s orders or if the
initial decision itself puts the appellant on notice of what he must do to establish
jurisdiction, thus affording him the opportunity to meet his jurisdictional burden
in the petition for review. Mapstone v. Department of the Interior, 106 M.S.P.R.
691, ¶ 9 (2007).
¶10 Here, the administrative judge did not advise the appellant of how to
establish jurisdiction over his termination under chapter 75 in either of her two
jurisdictional orders. IAF, Tab 2 at 4-5, Tab 8 at 2. However, her error was
cured by the initial decision, in which she provided the definition of a competitive
service appointee with the right to appeal his removal to the Board under chapter
75. ID at 3. An individual in the competitive service who, like the appellant, is
serving an initial probationary period and has not completed 1 year of current
continuous service has no right to appeal to the Board under chapter 75. 5 U.S.C.
5
§§ 7511(a)(1)(A), 7512(1), 7513(d); Starkey v. Department of Housing and Urban
Development, 2024 MSPB 6, ¶ 16. On review, the parties do not dispute the
administrative judge’s findings that the appellant was a competitive service
appointee subject to the completion of a 1-year probationary period and that he
was terminated before his 1-year anniversary. ID at 3-4; IAF, Tab 1 at 2-3, Tab 6
at 10, 16. Therefore, we discern no basis to disturb the administrative judge’s
finding that the Board lacks chapter 75 jurisdiction over the appellant’s
termination.
¶11 Under certain limited circumstances, a probationary competitive service
appointee who is terminated during the first year of his initial probationary period
may have a regulatory right of appeal under 5 C.F.R. § 315.806. 2 Starkey,
2024 MSPB 6, ¶ 16. As relevant here, he “may appeal . . . a termination not
required by statute which he . . . alleges was based on partisan political reasons or
marital status.” Id. (quoting 5 C.F.R. § 315.806(b)). To establish Board
jurisdiction under this provision, the appellant must prove by preponderant
evidence that his termination was, in fact, based on partisan political reasons or
marital status. Id. An appellant has the right to a hearing on the jurisdictional
issue only if he first makes a nonfrivolous allegation of jurisdiction, i.e.,
allegations of fact that, if proven, would establish that his termination was based
on partisan political reasons or marital status. Id., ¶ 16 n.4. On review, the
parties do not disagree with the administrative judge that the appellant’s factual
allegations that his manager’s expressed views in favor of diversity and Pride
Month, her divorced status and alleged feelings about her divorce, and the fact
2
In her acknowledgment order, the administrative judge mistakenly cited 5 C.F.R.
§ 315.908 as the basis of the Board’s jurisdiction over this type of claim. IAF, Tab 2
at 4. Section 315.908 concerns the Board’s jurisdiction over the return of a previously
promoted competitive service employee to his prior position for failure to satisfactorily
complete a supervisory probationary period. Burton v. Department of the Air Force,
118 M.S.P.R. 210, ¶ 7 (2012). That provision does not apply here. To the extent that
the administrative judge’s citation to the incorrect regulation may have caused the
parties confusion below, any such confusion was cured by the initial decision, which
correctly cited to 5 C.F.R. § 315.806. ID at 4.
6
that the appellant was married and had more “conservative views” were
insufficient to raise a nonfrivolous allegation of discrimination based on marital
status or partisan politics in violation of 5 C.F.R. § 315.806(b). ID at 4-6. We
discern no error in these findings. 3
¶12 We turn next to the appellant’s claim of whistleblower reprisal. A
probationary termination is a personnel action over which the Board may have
IRA jurisdiction. See 5 U.S.C. § 2302(a)(2)(A)(iii) (defining “personnel action”
for purposes of an IRA appeal as including a “disciplinary or corrective action”);
Scalera v. Department of the Navy, 102 M.S.P.R. 43, ¶ 15 (2006) (finding that a
probationary termination constitutes a personnel action under the Whistleblower
Protection Act). The appellant realleges on review that his termination was
retaliation for, among other matters, refusing the agency’s unlawful order that he
and the other two members of a selection panel interview unqualified candidates
after they had already chosen a candidate for the vacancy in question. PFR File,
Tab 1 at 11; IAF, Tab 1 at 16-17, 30.
¶13 Although he had already created an account in the Board’s e-Appeal system
when the administrative judge issued her November 27, 2023 order regarding
whistleblower reprisal, and the order was served electronically on the parties, the
appellant was unable to access e-Appeal at that time. 4 IAF, Tab 8; see also
5 C.F.R. § 1201.14(e)(2) (providing that a party who registers as an e-filer
3
On review, the appellant reraises claims under Title VII of race discrimination and
retaliation for protected activity and realleges that the agency made harmful errors or
violated his right to due process in connection with his termination. PFR File, Tab 1
at 2-4, 6-12; IAF, Tab 1 at 15-16, 30, 33, 35-36, Tab 7 at 4-7. We discern no error in
the administrative judge’s determination that the Board lacks jurisdiction over such
claims because the appellant did not establish jurisdiction over an otherwise appealable
action. ID at 6; see 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, including
discrimination claims); Moore v. Department of State, 15 M.S.P.R. 488, 489-90 (1983)
(stating that neither an allegation of a prohibited personnel practice nor a violation of
constitutional rights standing alone will confer jurisdiction in the absence of an
otherwise appealable action), aff’d, 765 F.2d 159 (Fed. Cir. 1985) (Table). Therefore,
we have not addressed these claims further.
7
consents to accept electronic service of pleadings filed by other e-filers and
documents issued by the Board). After the administrative judge issued her initial
decision, the appellant gained access to his e-Appeal account, and therefore could
have responded to the order on review. However, he has not done so.
Nonetheless, given his difficulty with the e-Appeal system, his pro se status, and
the fact that the administrative judge did not make a determination as to whether
the appellant met his jurisdictional burden, the appellant may be confused
regarding his obligation to establish jurisdiction over his whistleblower reprisal
claim. ID at 6 n.2.
¶14 Further, the administrative judge’s order regarding the Board’s IRA
jurisdiction was incomplete. A Board order should be “reasonably calculated to
apprise [an appellant] of what was required” to establish jurisdiction. See
Burgess, 758 F.2d at 643-44 (concluding that a Board’s order was not “reasonably
calculated to apprise [the petitioner] of what was required to obtain a hearing” on
the issue of jurisdiction over his alleged involuntary resignation); King v.
Department of Veterans Affairs, 105 M.S.P.R. 21, ¶ 10 (2007) (observing that
jurisdiction in an IRA appeal is determined based on the written record). She
correctly stated that the Board has jurisdiction if the appellant has exhausted his
administrative remedies before the Office of Special Counsel (OSC) and makes
nonfrivolous allegations that (1) he made a protected disclosure described under
5 U.S.C. § 2302(b)(8) or engaged in 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 agency’s decision to take or fail to take a
personnel action as defined under 5 U.S.C. § 2302(a)(2)(A). IAF, Tab 8 at 2.
This statement of law is correct. Salerno v. Department of the Interior,
123 M.S.P.R. 230, ¶ 5 (2016). However, the administrative judge did not explain,
for example, how the appellant could prove exhaustion or define what constitutes
4
We find that the appellant exercised due diligence in seeking technical support from
the Board for the period he was unable to access his e-Appeal account and view the
administrative judge’s order. PFR, Tab 1 at 5-6.
8
a protected disclosure or activity. E.g., Cooper v. Department of Veterans
Affairs, 2023 MSPB 24, ¶ 14 (defining what constitutes a protected disclosure for
purposes of an IRA appeal); Chambers v. Department of Homeland Security,
2022 MSPB 8, ¶¶ 10-11 & n.7 (discussing the types of submissions that might be
sufficient to prove exhaustion by preponderant evidence). On remand, the
administrative judge should provide explicit information to the parties regarding
how the appellant may establish jurisdiction over an IRA appeal.
¶15 Finally, we turn to the appellant’s claim that the agency violated USERRA.
The appellant invoked USERRA below, and again cites the statute on review.
IAF, Tab 1 at 39, Tab 5 at 3, Tab 7 at 6; PFR File, Tab 1 at 11. He alleges that he
was retaliated against for asserting another employee’s USERRA rights. PFR
File, Tab 1 at 10-12. Individuals like the appellant who have not completed
1 year of current continuous service in the same or similar positions qualify as
“persons” under USERRA, and thus are not excluded from filing appeals under
the provisions of that statute. Henderson v. U.S. Postal Service, 95 M.S.P.R. 454,
¶ 6 (2004). An administrative judge may dismiss a USERRA appeal only if the
appellant was placed on specific notice of what he needed to show or allege to
establish Board jurisdiction over his USERRA claim, and he failed to make the
requisite showing or allegations. Goldberg v. Department of Homeland Security,
99 M.S.P.R. 660, ¶ 5 (2005) (citing, along with another case, Burgess, 758 F.2d
at 643-44). Here, the administrative judge never advised the appellant of what he
must do to establish jurisdiction over a USERRA claim. Instead, she stated in the
initial decision that the appellant could file a separate USERRA appeal if he
wished. ID at 6 n.2. Because the appellant was never apprised of his rights and
burdens under USERRA, remand is appropriate. Walker v. Department of Health
and Human Services, 99 M.S.P.R. 367, ¶ 10 (2005).
¶16 To establish jurisdiction over a USERRA retaliation claim, an appellant
must make nonfrivolous allegations that (1) he engaged in activity protected
under 38 U.S.C. § 4311(b), (2) the agency discriminated in employment or took
9
an adverse employment action against him, and (3) his protected activity was a
motivating factor in the agency’s action. Kitlinski v. Department of Justice,
2023 MSPB 13, ¶ 8. The appellant alleged that while at the agency, at least two
different supervisors ordered him to violate USERRA. Specifically, he alleged
that they told him to “deny” a subordinate’s military orders because she
“volunteered” for her military service and her “team was ‘short staffed,’” which
he argues was illegal. IAF, Tab 1 at 39 (emphasis omitted). Although not
entirely clear, he suggested that the agency took adverse employment actions
against him as a result. IAF, Tab 1 at 30, 39, Tab 7 at 5-6; PFR File, Tab 1
at 11-12. On remand, the administrative judge should advise the parties regarding
how to establish jurisdiction over a USERRA claim and provide them with an
opportunity to respond.
¶17 The appellant requests that the Board compel the agency to respond to his
discovery requests. PFR File, Tab 1 at 2, 4, 6, 13. Because he did not exercise
due diligence by filing a motion to compel during the proceedings below, we deny
his request. IAF, Tab 2 at 6-7; see Boston v. Department of the Army,
122 M.S.P.R. 577, ¶ 12 (2015) (declining to grant review based on an appellant’s
assertion that the agency did not respond to his interrogatories when the
administrative judge advised the appellant of Board’s regulations regarding
discovery and the appellant did not file a motion to compel below). The appellant
also contends that the administrative judge did not read and consider his entire
initial appeal because she “fail[ed] to address the Appellant’s documented
concerns in her Initial Decision.” PFR File, Tab 1 at 2. However, an
administrative judge’s failure to mention all of the evidence of record does not
mean that she did not consider it in reaching her decision. Marques v.
Department of Health and Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d,
776 F.2d 1062 (Fed. Cir. 1985) (Table). In any event, as discussed in this order,
the appellant will have an opportunity on remand to address the relevant
jurisdictional issues. In doing so, he may refer to evidence that is already in the
10
record as well as submit new evidence. In addition, despite our ruling above and
given that the appellant did not receive adequate notice below as to his
jurisdictional burdens, the appellant may seek to conduct discovery anew,
including on the jurisdictional issues, at the administrative judge’s discretion.
Parker v. Department of Housing & Urban Development , 106 M.S.P.R. 329, ¶ 9
(2007) (an appellant may request discovery of relevant materials to assist him in
meeting his burden of establishing the Board’s jurisdiction).
¶18 As set forth above, we remand this appeal for the administrative judge to
provide the appellant with notice of how to establish jurisdiction over his claims
of reprisal for whistleblowing and for asserting another employee’s rights under
USERRA. If the administrative judge determines that the appellant establishes
jurisdiction over either or both claims on remand, he is entitled to his requested
hearing on the merits. IAF, Tab 1 at 2, Tab 5 at 5; see Salerno, 123 M.S.P.R.
230, ¶ 5 (providing that once an appellant establishes jurisdiction over his IRA
appeal, he is entitled to a hearing on the merits of his claim); Gossage v.
Department of Labor, 118 M.S.P.R. 455, ¶ 10 (2012) (stating that once an
appellant has established Board jurisdiction over his USERRA claim, he has an
unconditional right to a hearing on the merits). After closing the record on
remand, the administrative judge must issue a remand initial decision. Assuming
that the parties present no additional evidence or argument on remand
establishing jurisdiction over the appellant’s termination under chapter 75 or
5 C.F.R. § 315.806, the administrative judge may incorporate into her remand
initial decision her prior findings that the Board lacks jurisdiction under these
provisions.
11
ORDER
¶19 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.