Bridget Bullard v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRIDGET BULLARD, DOCKET NUMBER
Appellant, AT-3443-18-0329-I-1
v.
DEPARTMENT OF VETERANS DATE: March 21, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Bridget Bullard , West Palm Beach, Florida, pro se.
Heather G. Blackmon , Tampa, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her 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
interpretation of statute or regulation or the erroneous application of the law to
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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, a GS-6 Civilian Pay Technician, received a written
admonishment for unprofessional and inappropriate conduct. Initial Appeal File
(IAF), Tab 1 at 1, 6-7. The appellant filed a Board appeal challenging the action,
and she requested a hearing. Id. at 2-3. On her Board appeal form, the appellant
claimed that the agency had committed a prohibited personnel practice by issuing
the admonishment. Id. at 3.
The administrative judge issued a show cause order explaining that the
Board may not have jurisdiction over this appeal because a letter of
admonishment is not one of the personnel actions listed in 5 U.S.C. § 7512. IAF,
Tab 5 at 1. The administrative judge further explained that, while the Board
might have jurisdiction over such an action in the context of an Individual Right
of Action (IRA) appeal asserting that the action was taken in reprisal for
protected whistleblowing disclosures, the appellant made no such claim in her
appeal and indicated on her Board appeal form that she had not filed a complaint
with the Office of Special Counsel (OSC) on any such claim, which is a
prerequisite for filing an IRA appeal with the Board. 2 Id. at 3 n.1; IAF, Tab 1
2
Under the Whistleblower Protection Enhancement Act, the Board has jurisdiction over
an IRA appeal if the appellant has exhausted her administrative remedies before OSC
3
at 4. Accordingly, the administrative judge ordered the appellant to submit
evidence and argument sufficient to raise allegations of fact which, if proven,
would establish that she was subjected to a personnel action within the Board’s
jurisdiction. IAF, Tab 5 at 3. The administrative judge also stated that if the
appellant intended to assert a whistleblower reprisal claim, she must so state in
her response to the order. Id. at 3 n.1.
In response to the order, the appellant stated that she was unable to show
that the Board has jurisdiction over her admonishment. IAF, Tab 6. She did not
express an intention to assert a whistleblower reprisal claim. Id.Without holding the requested hearing, the administrative judge dismissed
the appeal for lack of jurisdiction, finding that an admonishment is not directly
appealable to the Board and that the appellant did not allege that she was
subjected to any action which would be appealable to the Board. IAF, Tab 8,
Initial Decision (ID) at 2. The administrative judge further found that, although
the appellant alleged in her appeal that the agency committed an unspecified
prohibited personnel practice, in the absence of an otherwise appealable action,
the Board lacks independent jurisdiction over such an allegation. ID at 2 n.1; 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).
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has filed a response in opposition to
the petition for review, PFR File, Tab 3, and the appellant has filed a reply to the
agency’s response. PFR File, Tab 4.
and makes nonfrivolous allegations of the following: (1) she made a 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 protected disclosure or activity
was a contributing factor in the agency’s decision to take or fail to take a personnel
action as defined by 5 U.S.C. § 2302(a)(2)(A). Salerno v. Department of the Interior ,
123 M.S.P.R. 230, ¶ 5 (2016).
4
ANALYSIS
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 admonishment is not an
adverse action under 5 U.S.C. chapter 75, over which the Board has jurisdiction.
5 U.S.C. § 7512.
On review, the appellant argues that, although an admonishment is not one
of the actions listed in 5 U.S.C. § 7512, it falls within the Board’s jurisdiction
and is directly appealable to the Board because it qualifies as “other disciplinary
or corrective action” under 5 U.S.C § 2302(a)(2)(A)(iii). 3 PFR File, Tab 1 at 4.
This argument is unavailing. The fact that an admonishment qualifies as
“other disciplinary or corrective action” under 5 U.S.C § 2302(a)(2)(A)(iii), and
therefore meets the definition of “personnel action” set forth in 5 U.S.C.
§ 2302(a)(2)(A), is relevant to the jurisdictional issue in an IRA appeal. 4 See
Massie v. Department of Transportation, 114 M.S.P.R. 155, ¶ 13 (2010)
(reflecting that an admonishment is a personnel action for purposes of an IRA
appeal). It has no bearing on whether the Board has jurisdiction over this appeal,
however, as it is undisputed that this is not an IRA appeal. In that regard, we
note that, in her reply to the agency’s response to her petition for review, the
appellant states that this is not an IRA appeal, she is not alleging whistleblower
retaliation, and she has never contacted OSC. PFR File, Tab 4 at 4. Therefore,
although we agree with the appellant that an admonishment qualifies as an “other
disciplinary or corrective action” under 5 U.S.C 2302(a)(2)(A)(iii), contrary to
3
Although the appellant raises this argument for the first time on review, we consider it
because it implicates the Board’s jurisdiction. The issue of jurisdiction is always before
the Board and may be raised by either party or sua sponte by the Board at any time
during a Board proceeding. Zajac v. Department of Agriculture, 112 M.S.P.R. 160, ¶ 8
(2009).
4
As previously noted, to establish Board jurisdiction in an IRA appeal, the appellant
must show, inter alia, that the agency took or failed to take a personnel action as
defined by 5 U.S.C. § 2302(a). Salerno, 123 M.S.P.R. 230, ¶ 5.
5
her contention on review, this does not render the admonishment directly
appealable to the Board, nor does it confer the Board with jurisdiction over this
appeal.
On review, the appellant also reasserts her argument below that the agency
committed a prohibited personnel practice (which she identifies on review as an
abuse of authority) by issuing the admonishment. PFR File, Tab 1 at 5. As
previously discussed, however, in the absence of an otherwise appealable action,
the Board lacks independent jurisdiction over such an allegation. ID at 2 n.1; see
Wren, 2 M.S.P.R. at 2.
Lastly, the appellant contends on review that this is a mixed case because
she has an equal employment opportunity case pending in conjunction with the
agency’s alleged abuse of authority. PFR File, Tab 1 at 5. A mixed case is one in
which the appellant alleges she suffered an otherwise appealable action motivated
by unlawful discrimination. Perry v. Merit Systems Protection Board, 582 U.S.
420, 431-32 (2017). An appellant may pursue such a claim by filing a formal
equal employment opportunity complaint with her employing agency followed by
an appeal to the Board, or by filing a direct appeal with the Board. Hess v. U.S.
Postal Service, 124 M.S.P.R. 40, ¶ 11 (2016). Here, because the appellant has
not alleged that she suffered an otherwise appealable action, her case is not a
mixed case over which the Board may have jurisdiction.
NOTICE OF APPEAL RIGHTS 5
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
5
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
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:
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
7
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
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
8
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
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. 6 The court of appeals must receive your petition for
6
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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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.
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.