Michael Smith v. Department of Homeland Security ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL ANDREW SMITH, SR., DOCKET NUMBER
Appellant, AT-1221-21-0205-W-1
v.
DEPARTMENT OF HOMELAND DATE: May 3, 2024
SECURITY,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Michael Andrew Smith, Sr. , Palm Coast, Florida, pro se.
Ownie Eng , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed this individual right of action (IRA) appeal for failure to prosecute.
For the reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the Atlanta 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
The appellant, a Security Specialist serving as a term employee for the
Federal Emergency Management Agency (FEMA), filed this IRA appeal in which
he alleged, among other things, that the agency had suspended him for more than
14 days, gave him a negative suitability determination, denied him training, and
restricted his deployments. Initial Appeal File (IAF), Tab 1 at 1, 3. He indicated
that he filed a whistleblowing complaint with the Office of Special Counsel
(OSC) and included OSC’s letter closing its investigation, recounting his
allegations that the agency, among other things, improperly demobilized him in
2019. Id. at 7.
The administrative judge issued a jurisdictional order explaining to the
appellant the burdens and elements he must meet to establish jurisdiction over his
IRA appeal and receive a hearing on his allegations of whistleblower retaliation.
IAF, Tab 3 at 1-7. He ordered the appellant to file a statement, accompanied by
evidence, listing the following: (1) your protected disclosure(s) or activity(ies);
(2) the date(s) you made the disclosure(s) or engaged in the activity(ies); (3) the
individual(s) to whom you made any disclosure(s); (4) why your belief in the
truth of any disclosure(s) was reasonable; (5) the action(s) the agency took or
failed to take, or threatened to take or fail to take, against you because of your
disclosure(s) or activity(ies); (6) why you believe a disclosure or activity, or a
perception of such a disclosure or activity, was a contributing factor to the
action(s); and (7) the date of your complaint to OSC, the matters you raised in it
and any amendments, and the date that OSC notified you it was terminating its
investigation of your complaint, or if you have not received such notice, evidence
that 120 days have passed since you filed your complaint with OSC. Id. at 7-8.
The appellant filed four submissions in response. IAF, Tabs 9-12. The
submissions included his correspondence with an OSC attorney about the
appellant’s allegations. IAF, Tab 12 at 4-12.
3
The administrative judge found that the appellant’s response was not
sufficiently specific and focused to allow him to make a jurisdictional
determination, and he ordered the appellant to file a 1-page submission for each
of the alleged protected disclosures described in OSC’s closure letter, using this
prescribed format:
Disclosure No. ___
1. Date of disclosure:
2. Information disclosed:
3. Disclosure made to:
4. Disclosure evidences: (a) violation of law, rule, regulation; (b)
gross mismanagement; (c) gross waste of funds; (d) abuse of
authority; and/or (e) a substantial and specific danger to public
health or safety:
5. Basis for each category of wrongdoing listed in response to # 4
above:
6. Evidence supporting response to # 5 above (Do not resubmit
previously-provided evidence; refer to it by location in your
previous submissions [e.g., “Board Appeal File, Tab __, page
___”]. Attach only new evidence.)
7. Agency personnel action(s) taken (or not taken) because of this
disclosure:
8. Agency personnel involved in the personnel action(s) referenced
in # 7 above;
9. Basis for your belief that person(s) listed in response to # 8
was/were aware of this disclosure prior to taking personnel action(s)
listed in response to # 7 above.
10. Evidence supporting response to # 10 above. (Do not resubmit
previously provided evidence; refer to it by location in your
previous submissions [e.g., “Board Appeal File, Tab __, page
___”]. Attach only new evidence.)
IAF, Tab 13 at 1-2 (emphasis in original). The administrative judge warned the
appellant that a failure to comply with his order could result in the imposition of
sanctions. Id. at 2. In response, the appellant submitted a narrative response and
five separate 1-page submissions concerning his purported disclosures, but he did
4
not use the administrative judge’s prescribed format. IAF, Tabs 16-20. The
agency also filed a response to the order to show cause. IAF, Tabs 22-24.
The administrative judge subsequently issued a second order to show cause,
again ordering the appellant to file a 1-page submission in a prescribed format for
each of the alleged protected disclosures described in OSC’s closure letter. IAF,
Tab 25 at 1-2. As a sanction for the appellant’s failure to follow the instructions
in his first show cause order, the administrative judge did not consider the
appellant’s responses to it. IAF, Tabs 16-20, Tab 25 at 1. He warned the
appellant that another failure to follow his instructions may result in the
imposition of further sanctions, up to and including dismissal of the appeal for
failure to prosecute. IAF, Tab 25 at 2. The appellant subsequently filed four
single-page responses, but he once again failed to use the administrative judge’s
prescribed format. IAF, Tabs 26-29.
The administrative judge issued an initial decision dismissing the appeal
for failure to prosecute. IAF, Tab 30, Initial Decision (ID) at 1. He observed that
the appellant had failed to appropriately respond to his orders to submit evidence
and argument to explain why his appeal should not be dismissed for lack of
jurisdiction. ID at 5-6. The administrative judge found that this was a failure to
exercise basic due diligence in complying with Board orders, and he dismissed
the appeal for failure to prosecute on that basis. ID at 6.
In his petition for review, the appellant asserts that he thought that the
submissions he made in response to the administrative judge’s first order to show
cause were in compliance with the administrative judge’s instructions. Petition
for Review (PFR) File, Tab 1 at 4. The appellant claims that he asked for a
telephone conference to, among other things, clarify the administrative judge’s
instructions and find out how his submissions fell short, but the administrative
judge denied his request. PFR File at 5-6, 14. The appellant asserts that he then
rewrote and submitted four disclosures that he also thought were in compliance
with the administrative judge’s instructions. Id. at 6. The appellant also makes
5
arguments concerning his purported disclosures and the employment status of
FEMA reservists like himself. Id. at 6-9.
DISCUSSION OF ARGUMENTS ON REVIEW
To establish jurisdiction in an IRA appeal, an appellant must show by
preponderant evidence that he exhausted his remedies before OSC, and make
nonfrivolous allegations that: (1) he made a disclosure described under 5 U.S.C.
§ 2302(b)(8) or engaged in a 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 by 5 U.S.C. § 2302(a). Corthell v. Department of
Homeland Security, 123 M.S.P.R. 417, ¶ 8 (2016), overruled on other grounds by
Requena v. Department of Homeland Security , 2022 MSPB 39. A nonfrivolous
allegation is one that: (1) is more than conclusory; (2) is plausible on its face;
and (3) is material to the legal issues in the appeal. 5 C.F.R. § 1201.4(s). In
cases involving multiple alleged protected disclosures and personnel actions, an
appellant establishes Board jurisdiction over his IRA appeal when he makes a
nonfrivolous allegation that at least one alleged personnel action was taken in
reprisal for at least one alleged protected disclosure. 2 Baldwin v. Department of
Veterans Affairs, 113 M.S.P.R. 469, ¶ 6 (2010).
As explained above, the administrative judge dismissed the appeal for
failure to prosecute. ID at 1. In reaching that conclusion, the administrative
judge explained that the appellant failed to comply with the specific requirements
of three separate Board orders. ID at 6; IAF, Tabs 3, 13, 25. The administrative
judge did not consider the appellant’s deficient narrative responses, in part as a
sanction for failing to use the prescribed format in response to the first order to
2
An understanding of the nature of the Board’s jurisdiction over IRA appeals, such as
this, could help the appellant file the necessary information. Among other things, the
Board lacks the authority to investigate agency wrongdoing; the Board’s jurisdiction is
limited to claims that an agency took or failed to take a personnel action in reprisal for
protected disclosures and activities.
6
show cause. IAF, Tab 25 at 1. The administrative judge ultimately dismissed the
appeal because of the appellant’s failure to follow his prescribed format, notably
without considering any of the allegations described in the appellant’s
correspondence with OSC. ID at 4-6; IAF, Tab 1 at 7-8, Tab 12 at 4-16.
The sanction of dismissal with prejudice may be imposed if a party fails to
prosecute or defend an appeal. Ahlberg v. Department of Health and Human
Services, 804 F.2d 1238, 1242 (Fed. Cir. 1986); 5 C.F.R. § 1201.43(b). Although
the regulation at 5 C.F.R. § 1201.43(b) does not set forth guidelines for applying
this sanction, the Board has held that such a severe sanction must only be used
when necessary to serve the ends of justice, for example, when a party has failed
to exercise basic due diligence in complying with an order, or has exhibited
negligence or bad faith in his efforts to comply. Williams v. U.S. Postal Service,
116 M.S.P.R. 377, ¶ 7 (2011) (quoting Chandler v. Department of the Navy,
87 M.S.P.R. 369, ¶ 6 (2000)). By contrast, an appeal should not be dismissed for
failure to prosecute when, for example, a pro se appellant has made incomplete
responses to the Board’s orders but has not exhibited bad faith or evidenced any
intent to abandon his appeal, and appears to be confused by Board procedures.
Id.Although the appellant restricted the discussion of each of his alleged
disclosures to 1 page after he was instructed to do so, the administrative judge
was correct to note that the appellant failed to actually comply with the
instructions in his jurisdictional order. Compare IAF, Tab 13 at 2, with IAF,
Tabs 16-20, 26-29. Rather than comply with the administrative judge’s
instructions, the appellant appears to have distilled his narrative response into
single-page segments. IAF, Tabs 9-12, 16-20, 26-29.
However, the sanction of dismissal was not appropriate under the
circumstances. The cases that the administrative judge cited in support of his
imposition of sanctions are distinguishable in that the appellants in each of those
cases simply did not respond at all. ID at 5; see Ahlberg, 804 F.2d at 1242
7
(noting that the petitioners failed to file any response to the presiding official’s
order); Williams, 116 M.S.P.R. 377, ¶ 10 (observing that the regional office sent
three orders to which the appellant made “no attempt to respond”); Heckman v.
Department of the Interior, 106 M.S.P.R. 210, ¶ 9 (2007) (describing the
appellant’s “total failure” to respond to the administrative judge’s orders);
Murdock v. Government Printing Office, 38 M.S.P.R. 297, 299 (1988) (observing
that the appellant completely failed to reply to the administrative judge’s orders).
Here, the appellant responded to each of the administrative judge’s orders. IAF,
Tabs 3, 9-13, 16-20, 25-29. We disagree with the administrative judge that the
appellant failed to show basic due diligence in his efforts to properly comply.
The appellant responded in apparent good faith to the administrative judge’s
order with single-page submissions, but the lack of clarity in his submissions
illustrates the importance of following the instructions provided in the
administrative judge’s order. IAF, Tab 13 at 2. Moreover, the appellant argues
on review that he sought a telephone conference with the administrative judge in
an effort to understand the instructions, and how his prior submissions were not
responsive, but the administrative judge denied the request as unnecessary. PFR
File, Tab 1 at 5-6, 14. Thus, even though the administrative judge found that the
appellant failed to respond to three separate Board orders directing him to submit
evidence and argument to meet his jurisdictional burden, ID at 5-6; IAF, Tabs 3,
13, 25, 3 the record shows that after each order the appellant filed submissions in
response, IAF, Tabs 10-12, 15-20, 26-29. Additionally, most of those
submissions consisted of a single page, in keeping with that portion of the
administrative judge’s instructions, if not following the exact format specified.
IAF, Tab 13 at 1, Tabs 16-20, 26-29.
We observe that the administrative judge appears to be sanctioning the
appellant for failing to follow his instructions, rather than for a failure to
3
Although there are three separate orders involved here, the second two are essentially
the same order, with harsher warnings in the third one for disregarding the instructions
therein. IAF, Tabs 3, 13, 25.
8
prosecute the appeal. Concerning an appellant’s failure to follow instructions for
pleadings, the Board has dismissed a petition for review for failure to prosecute,
based on an appellant’s repeated failure to comply with the Board’s regulations
and the directions of the Clerk of the Board. Morris v. Department of the Navy,
123 M.S.P.R. 662, ¶ 14 (2016) (finding that the appellant failed to exercise due
diligence when he was “noncompliant in a substantial way, on four occasions,”
when his pleading exceeded the regulatory page limit by approximately 200
pages). As described above, the appellant’s failure to follow the administrative
judge’s instructions in this appeal is limited to his failure to follow the specific
format prescribed for his single-page submissions, as set forth in the
administrative judge’s first order to show cause. IAF, Tab 13 at 2. It does not
resemble the bad faith shown by the appellant in Morris.
As noted above, the severe sanction of dismissal for failure to prosecute
should not be imposed when a pro se appellant has made incomplete responses to
the Board’s orders but has not exhibited bad faith or evidenced any intent to
abandon his appeal, and appears to be confused by Board procedures. Williams,
116 M.S.P.R. 377, ¶ 7. The appellant here did not exhibit bad faith or indicate
that he intended to abandon his appeal. Moreover, he asked for help
understanding the administrative judge’s instructions but was denied the
opportunity. Dismissing an appeal by a pro se appellant for failure to prosecute
when the appellant did not demonstrate bad faith in his attempts to respond, and
was denied a requested telephone conference to help him to comply with those
instructions, is an abuse of discretion. See Williams, 116 M.S.P.R. 377, ¶ 7.
Also, the administrative judge failed to consider any of the allegations
described in the appellant’s correspondence with OSC concerning his reprisal
claim. IAF, Tab 1 at 7-8, Tab 12 at 4-16. This evidence may have helped the
administrative judge to better understand the appellant’s assertions.
9
On remand, the appellant must comply with the administrative judge’s order and
meet his jurisdictional burden.
The appellant’s correspondence with OSC contains the most succinct
recitation of the appellant’s claims. IAF, Tab 1 at 7-8, Tab 12 at 4-16. For
example, in that correspondence, the appellant noted his allegation that he had
been demobilized early from an assignment in Puerto Rico in retaliation for
reporting that a housing project employee had forgotten to return her FEMA
visitor badge, and that the agency’s subsequent withholding of his appraisal from
that assignment impeded his application for another position. IAF, Tab 12 at 4.
A claim that a FEMA reservist was demobilized is a personnel action for the
purposes of an IRA appeal. Jessup v. Department of Homeland Security,
107 M.S.P.R. 1, ¶ 9 (2007). The appellant also alleged that he reported to the
agency’s Office of Professional Responsibility (OPR) that some employees,
including one of his supervisors, improperly ran a private security company, and
that he suffered retaliation for making that disclosure by, among other things,
receiving an unsatisfactory performance rating. IAF, Tab 12 at 6.
Nevertheless, it remains unclear what allegations of reprisal for protected
disclosures and activities the appellant intends to pursue in the instant IRA appeal
and whether those allegations are within the Board’s jurisdiction. On remand, the
administrative judge should conduct a telephone conference with the appellant
and the agency’s representative and should answer the appellant’s questions about
how to comply with his jurisdictional order. 4 The administrative judge should
consider any response that the appellant makes, in concert with explicit findings
as to the disclosures and personnel actions alleged in the appellant’s
correspondence with OSC, and issue a new initial decision concerning the
appellant’s IRA appeal.
4
The administrative judge shall document the contents of this telephone conference in a
summary served on the parties and shall afford the parties at least 5 business days to
object to that summary.
10
ORDER
For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.