James Roberts v. National Aeronautics and Space Admin ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES E. ROBERTS, DOCKET NUMBER
Appellant, AT-0432-18-0770-I-1
v.
NATIONAL AERONAUTICS AND DATE: March 27, 2024
SPACE ADMIN,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
James E. Roberts , Melbourne, Florida, pro se.
Shannon A. Sharkey , Esquire, Kennedy Space Center, 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 that
construed his appeal as a claim of an involuntary retirement and dismissed it for
his failure to raise a nonfrivolous allegation of Board jurisdiction. For 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
reasons set forth below, the appellant’s petition for review is DISMISSED for
lack of a substitute party. 5 C.F.R. § 1201.35.
In September 2018, the appellant, proceeding pro se, filed a Board appeal
contesting his retirement from the Federal service. Initial Appeal File (IAF),
Tab 1. He argued that he retired when faced with a removal decision. IAF, Tab 1
at 3, 5; Tab 15 at 4; Tab 16 at 4; Tab 19 at 4; Tab 21 at 4, 6. The administrative
judge treated the appeal as an involuntary retirement and issued an initial
decision dismissing it for lack of jurisdiction. IAF, Tab 12, Tab 22, Initial
Decision at 1-7. The appellant filed a petition for review on January 28, 2019.
Petition for Review (PFR) File, Tab 1. In September 2020, with the appellant’s
petition for review pending, the agency advised that the appellant died on
February 7, 2020. PFR File, Tab 4 at 4-6. The agency served this pleading on
the appellant via e-Appeal Online. Id. at 8.
Pursuant to 5 C.F.R. § 1201.35(a), if an appellant dies during the pendency
of his appeal, the processing of his appeal will only be completed upon the
substitution of a proper party. See, e.g., Estate of Kravitz v. Department of the
Navy, 110 M.S.P.R. 97, ¶ 2 n.1 (2008) (finding that substitution was proper where
an appellant passed away while his appeal was pending and the appellant’s
counsel submitted a motion for the widow to be a substitute party); Cole v.
Department of Veterans Affairs, 77 M.S.P.R. 434, 434 n.1 (1998) (granting a
motion to substitute the administrator of an appellant’s estate, where the appellant
died as his petition for review was pending). The regulatory deadline to file a
motion to substitute is 90 days after the death of an appellant and can be waived
with a showing of good cause. 5 C.F.R. § 1201.35(b).
On September 29, 2020, the Office of the Clerk of the Board issued an
order to the parties advising that the appellant’s petition for review may be
dismissed if a proper substitution of party is not made. PFR File, Tab 5. The
order, which the Board served on the appellant electronically and to his address
of record, directed any party seeking to substitute for the appellant to set forth the
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following: (1) how the filer is a proper substitute; (2) how the interests of the
appellant did not terminate with his death; and (3) if good cause exists to waive
the filing deadline to seek substitution set forth at 5 C.F.R. § 1201.35(b). Id. The
order contained explicit information on how to establish each of these
requirements. Id. at 2. Neither party responded to the order.
In accordance with 5 C.F.R. § 1201.35(a), we dismiss the instant petition
for review for lack of a substitute party. This is the Board’s final decision
regarding the appellant’s petition for review. Because of this, the initial decision
remains the final decision of the Board concerning the appellant’s appeal of his
retirement.
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.
4
(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:
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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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.