Richard Mokua v. Department of Justice ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICHARD A. MOKUA, DOCKET NUMBER
Appellant, CH-0752-22-0376-I-1
v.
DEPARTMENT OF JUSTICE, DATE: March 22, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jerry Girley , Esquire, Orlando, Florida, for the appellant.
Amy Standefer-Malott , Esquire, Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his alleged involuntary resignation appeal for lack of jurisdiction
because the appellant lacks Board appeal rights as a probationary employee with
less than 1 year of Federal service. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
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).
¶2 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). If an appellant makes a
nonfrivolous allegation that the Board has jurisdiction over his appeal, the
appellant is entitled to a hearing on the jurisdictional question if he requests one.
Niemi v. Department of the Interior, 114 M.S.P.R. 143, ¶ 8 (2010). On review,
the appellant reasserts that he was not serving a probationary period at the time of
his June 10, 2022 resignation because (1) his probation began on May 20, 2021,
when he received notice from the agency of his appointment rather than on the
August 15, 2021 appointment date reflected in his Standard Form 52 (SF-52) and
(2) the agency told him that his probationary period was 90 days. Petition for
Review (PFR) File, Tab 1 at 5, 7; Initial Appeal File (IAF), Tab 11 at 6-7.
¶3 The Board has held that the calculation to determine an individual’s first
year of service begins on the date he entered duty. See Calixto v. Department of
Defense, 120 M.S.P.R. 557, ¶ 19 (2014); see also Hintz v. Department of Army,
21 F.3d 407, 410 & n.2 (Fed. Cir. 1994) (holding that the appellant’s probationary
period began when he reported for duty, not when he received the letter informing
3
him that he had been selected for the position and directing him to report for
duty). Here, the parties do not dispute that the appellant actually started work in
August 2021. 2 IAF, Tab 1 at 8, Tab 8 at 4, Tab 12 at 5. In his sworn affidavit,
the appellant stated that the agency hired him in August 2021. IAF, Tab 7 at 10.
Additionally, the appellant has not alleged that he performed a Federal function
before his start date in August 2021. See Vandewall v. Department of
Transportation, 52 M.S.P.R. 150, 152-53 (1991) (holding that the appellant’s
probationary period began her first workday because she was not performing a
Federal function or supervised by a Federal official prior to that date).
¶4 In reviewing the appellant’s SF-52, the administrative judge noted that it
showed an appointment date of August 15, 2021, and that the appellant was
required to serve a 1-year probationary period that began on August 15, 2021.
IAF, Tab 13, Initial Decision (ID) at 5-6; IAF, Tab 9 at 55-56. However, the
administrative judge erroneously assessed that the SF-52 was “clearly
determinative” when it came to ascertaining the appointment date. ID at 5 (citing
Grisby v. Department of Commerce, 729 F.2d 772 (Fed. Cir. 1984) (citing
Goutos v. United States, 552 F.2d 922 (Ct. Cl. 1976)). In Grisby, the U.S. Court
of Appeals for the Federal Circuit clarified that an SF-50 and SF-52 are not
controlling of an employee’s status but rather they could be considered as
evidence. Grisby, 729 F.2d at 775-76. Thus, the appointment SF-52 submitted by
the agency in this matter is not “determinative” at this stage. Nevertheless, even
disregarding that document, we find that the appellant has not made a
nonfrivolous allegation that his probationary period began prior to his entry on
duty in August 2021 for the reasons set forth above in ¶ 3.
2
The appellant states he started work on August 16, 2021, while the agency states he
was hired on August 15, 2021. IAF, Tab 1 at 8, Tab 8 at 4, Tab 12 at 5. The SF-52
documenting his appointment listed the effective date as August 15, 2021, a Sunday.
IAF, Tab 9 at 55-56. The appellant appears to have reported for duty on Monday,
August 16, 2021. The distinction between these dates is immaterial to the outcome of
this appeal.
4
¶5 We have considered the appellant’s assertion that, at the time of his
appointment, the agency informed him that he would be placed in a trial or
probationary status for only 90 days. IAF, Tab 11 at 7; PFR File, Tab 1 at 7.
However, the appellant has not alleged any facts that would support a conclusion
that he was subject to a probationary period less than 1 year. See 5 C.F.R.
§ 1201.4(s) (defining “nonfrivolous allegation”); see also Calixto, 120 M.S.P.R.
557, ¶ 5 (noting that almost all first-time competitive service employees are
subject to a 1-year probationary or trial period before accruing adverse action
appeal rights to the Board). 3 Even if the agency misrepresented such information,
this would not be a basis for conferring jurisdiction on the Board to hear the
appeal on the merits. See Calixto, 120 M.S.P.R. 557, ¶ 17 n.6; Phillips v.
Department of Housing and Urban Development, 44 M.S.P.R. 48, 52 (1990).
¶6 Accordingly, we agree with the administrative judge’s conclusion that the
appellant did not make a nonfrivolous allegation that he was an “employee” with
adverse action appeal rights under 5 U.S.C. chapter 75. ID at 4, 7; see 5 U.S.C.
§§ 7511(a)(1)(A), 7512, 7513(d).
¶7 For the first time on review, the appellant states that he was threatened with
termination for preappointment reasons without proper procedures, which might
be a basis for jurisdiction under 5 C.F.R. § 315.806(c). PFR File, Tab 1 at 8-9.
However, he provides no factual allegations to support his bare assertion that his
proposed termination was based in whole or in part on conditions arising before
his appointment. Id.; ID at 7; IAF, Tab 7 at 10-11. We find no basis to disturb
the administrative judge’s conclusion that the appellant has not made a
nonfrivolous allegation of jurisdiction pursuant to 5 C.F.R. § 315.806(a)-(c).
¶8 On review, the appellant again claims that he was coerced into resigning
immediately due to alleged misleading and false statements by the agency.
PFR File, Tab 1 at 9-10. However, because the Board lacks jurisdiction for the
reasons already explained, we cannot decide the merits of these claims. ID at 8-9.
3
There is no dispute that the appellant had no prior Federal service. IAF, Tab 1 at 8.
5
¶9 Having considered the appellant’s petition for review, we affirm the initial
decision dismissing this appeal for lack of jurisdiction. We note, however, that
we do so without prejudice to the appellant, after exhausting his administrative
remedies with the Office of Special Counsel (OSC), timely filing a future
individual right of action (IRA) appeal should he wish to pursue a claim of
whistleblower reprisal. See 5 U.S.C. § 1221; 5 C.F.R. part 1209. In his initial
appeal, the appellant asserted, among other things, that he was retaliated against
for raising certain “concerns” with the Associate Warden and Warden in
December 2021. IAF, Tab 1 at 9. It does not appear that the appellant was
provided notice regarding how to establish jurisdiction over his claims as an IRA
appeal. See, e.g., Chambers v. Department of Homeland Security, 2022 MSPB 8,
¶ 14; 5 C.F.R. § 1209.2. Nevertheless, before pursuing an IRA appeal, the
appellant must first seek corrective action from OSC before seeking corrective
action from the Board. See Chambers, 2022 MSPB 8, ¶ 5 (quoting 5 U.S.C.
§ 1214(a)(3)). There is no indication that the appellant has done so here,
IAF, Tab 1 at 4, so there is no basis for finding IRA jurisdiction at this time.
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
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.
6
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:
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.
7
(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
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:
8
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
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).
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.
9
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.
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.