Wayne Thomas v. Department of Defense ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WAYNE ALLEN THOMAS, DOCKET NUMBER
Appellant, DC-3443-21-0015-I-1
v.
DEPARTMENT OF DEFENSE, DATE: August 26, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Wayne Allen Thomas , Chester, Virginia, pro se.
C. Michael Meehan and Jeffrey Csokmay , Esquire, Columbus, Ohio, 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 his 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 based on an erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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
The appellant filed an appeal against the Defense Logistics Agency, which
appears to concern his security clearance level. Initial Appeal File (IAF), Tab 1
at 4-5. Unsure of the precise nature of the appeal, the administrative judge issued
a jurisdictional order, which instructed the appellant to clarify the nature of his
appeal and to meet his burden to establish Board jurisdiction. IAF, Tab 3. The
appellant did not submit a response, and the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction, finding no basis to invoke
Board jurisdiction from the face of the appeal. IAF, Tab 7, Initial Decision. The
appellant then filed the instant petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response, and the appellant has filed a reply.
PFR File, Tabs 3-5.
DISCUSSION OF ARGUMENTS ON REVIEW
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). The Board does not have
jurisdiction over an agency’s security clearance process or its determinations.
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Skees v. Department of the Navy, 864 F.2d 1576, 1578 (Fed. Cir. 1989). We
agree, for the reasons set forth in the initial decision, that the appellant failed to
make a nonfrivolous allegation of Board jurisdiction over his claim about his
security clearance level.
The appellant files several documents for the first time on review. PFR
File, Tab 4 at 15-27. The Board generally will not consider evidence submitted
for the first time in a petition for review absent a showing that it is based on new
and material evidence that was not previously available despite a party’s due
diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 213-14 (1980). The
first document the appellant submits relates to his security clearance level and
appears to have been produced to the appellant by the Defense
Counterintelligence and Security Agency on December 4, 2020, pursuant to the
appellant’s November 27, 2020 Freedom of Information Act (FOIA) request.
PFR File, Tab 4 at 15-17. Because the appellant requested the records through
FOIA after the record closed before the administrative judge, we find that he did
not act diligently in procuring the records, and therefore we do not consider them.
See Avansino, 3 M.S.P.R. at 213-14. The appellant does not explain why he
delayed requesting the records through FOIA, but he states in his petition for
review that his “household was stricken by COVID-19.” PFR File, Tab 4 at 7,
25. To the extent the appellant argues that COVID-19 prevented him from
making a timely FOIA request, he does not explain how it impaired his ability to
request the records, and this argument is undermined by the fact that the appellant
submitted other filings after his COVID-19 diagnosis. E.g., IAF, Tab 1. Even if
we were to consider the document, it has no bearing on the question of whether
the Board has jurisdiction over this appeal. See Schoenig v. Department of
Justice, 120 M.S.P.R. 318, ¶ 7 (2013) (stating the Board may consider evidence
for the first time on a petition for review if it implicates the Board’s jurisdiction
and warrants an outcome different from that of the initial decision).
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The appellant files two other documents for the first time on review,
including a 2019 email chain relating to a job application and a 2018 job
announcement. PFR File, Tab 4 at 18-24. Both documents predate the filing of
the initial appeal. Compare IAF, Tab 1, with PFR File, Tab 4 at 18-24. The
Board will not consider evidence submitted for the first time on review when it
was previously available but a party elected not to submit it to the administrative
judge. Fox v. U.S. Postal Service, 81 M.S.P.R. 522, ¶¶ 4-5 (1999). The appellant
has not argued that he did not possess the documents prior to the close of the
record, and we do not find any evidence in the record to support this.
Accordingly, we do not consider these documents. Even if the Board were to
consider the documents, they are irrelevant to the question of jurisdiction over the
appellant’s appeal concerning his security clearance.
The appellant also raises new arguments for the first time on review,
including discussion of a pending equal employment opportunity (EEO)
complaint, his disabled veteran status, and the rescission of a job offer. PFR File,
Tab 1 at 3-5, Tabs 4-5. The Board generally will not consider an argument raised
for the first time in a petition for review absent a showing that it is based on new
and material evidence not previously available despite the party’s due diligence.
Hodges v. Office of Personnel Management, 101 M.S.P.R. 212, ¶ 7 (2006).
To the extent the appellant seeks to challenge the rescission of a job offer
by the Defense Contract Management Agency, the appellant raised that claim in
an earlier appeal, and the Board dismissed it for lack of jurisdiction. Thomas v.
Department of Defense, MSPB Docket No. DC-3443-19-0797-I-1, Final Order
(Aug. 23, 2024). The appellant is precluded from relitigating the issue of
jurisdiction over the rescission of a job offer in this appeal based on collateral
estoppel. See Noble v. U.S. Postal Service, 93 M.S.P.R. 693, ¶¶ 8-11 (2003)
(finding an appellant was barred from relitigating the issue of jurisdiction based
on collateral estoppel when (1) the issue in a second appeal was identical to that
involved in a prior action, (2) the issue was actually litigated in the prior action,
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(3) the determination on the issue in the prior action was necessary to the
resulting judgment, and (4) the party precluded was fully represented in the prior
action). The appellant has not explained how his pending EEO complaint or
disabled veteran status relate to the instant appeal about his security clearance,
and he has not established that these new arguments are based on evidence that
was unavailable prior to the close of the record despite his due diligence.
Therefore, we do not consider these new arguments. See Hodges, 101 M.S.P.R.
212, ¶ 7; 5 C.F.R. § 1201.115(d).
For the foregoing reasons, we affirm the initial decision and deny the
petition for review.
NOTICE OF APPEAL RIGHTS 2
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.
2
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.
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(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
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
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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
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:
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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. 3 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
3
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.