Craig Wilbert v. Office of Personnel Management ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CRAIG S. WILBERT, DOCKET NUMBER
Appellant, PH-0841-21-0002-I-1
v.
OFFICE OF PERSONNEL DATE: January 12, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Craig S. Wilbert , Waldorf, Maryland, pro se.
Tanisha Elliott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the appellant’s appeal of the Leave Claim Decision, which was issued
by the Office of Personnel Management (OPM) under the authority of 31 U.S.C.
§ 3702, for lack of jurisdiction. On petition for review, the appellant argues that
OPM’s Leave Claim Decision is a final decision sufficient to establish Board
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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jurisdiction over his appeal. 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 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).
On review, the appellant argues that Montelongo v. Office of Personnel
Management, 939 F.3d 1351 (Fed. Cir. 2019), shows that the Board has
jurisdiction over his appeal. Petition for Review (PFR) File, Tab 1 at 4. We
disagree. In Montelongo, the appellant applied for a retirement annuity, and OPM
issued a final decision finding that he lacked the requisite 5 years of civilian
service necessary under 5 U.S.C. § 8410 because his time as a cadet student at the
United States Military Academy at West Point did not count as civilian service.
Montelongo, 939 F.3d at 1354-55. The claim in Montelongo was within the
Board’s jurisdiction because it concerned that appellant’s rights and interests
under 5 U.S.C. § 8410. Id.; see 5 U.S.C. § 8461(e)(1) (authorizing appeals to the
Board of decisions affecting the rights and interests of an individual under the
provisions of 5 U.S.C. chapter 84). In this matter, the appellant seeks accrued
leave and benefits allegedly due to him based on his service computation date, as
adjusted by the buyback of his military time. PFR File, Tab 1 at 4. This concerns
the application of 5 U.S.C. § 6303. Initial Appeal File (IAF), Tab 1 at 8-10. As
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it does not concern a decision concerning the appellant’s rights and interests
under the provisions of chapter 84, the administrative judge correctly found that
the Board lacks jurisdiction over the appeal. IAF, Tab 8, Initial Decision at 3-4;
see 5 U.S.C. § 8461(e)(1). If the appellant does receive a decision regarding
service credit for retirement purposes such that it concerns a matter affecting his
rights and interests under chapter 84, he may file an appeal at that time. 5 U.S.C.
§ 8461(e)(1).
We note that claims related to the accrual of leave have been heard by the
Board under the Uniformed Services Employment and Reemployment Rights Act
of 1994 (codified as amended at 38 U.S.C. §§ 4301-4335) (USERRA) if the
proper jurisdictional prerequisites are met. See Murray v. National Aeronautics
and Space Administration, 112 M.S.P.R. 680, ¶¶ 11-13 (finding that under
5 U.S.C. § 6303(a) a member of a uniformed service who is appointed to a
civilian position while on terminal leave pending retirement is entitled to credit
for his years of active military service only for the duration of his terminal leave;
once the employee retires from the uniformed service, he no longer is entitled to
credit for his years of active military service unless he satisfies one of the
statutory exceptions set forth at 5 U.S.C. § 6303(a)(A)-(C), (e)). Additionally,
there is no statutory time limit for filing an appeal to the Board under USERRA.
5 C.F.R. § 1208.12; see Lee v. Department of Justice, 99 M.S.P.R. 256, ¶ 15
(2005). The appellant may establish jurisdiction over a USERRA appeal by
showing: (1) performance of duty in a uniformed service of the United States;
(2) an allegation of a loss of a benefit of employment; and (3) an allegation that
the benefit was lost due to the performance of duty in the uniformed service. Lee,
99 M.S.P.R. 256, ¶ 9. We make no statement as whether the appellant has
satisfied or can satisfy these jurisdictional requirements. 2
2
In addition, the appellant may have other avenues of redress, as noted by OPM. IAF,
Tab 1 at 10 (noting “the claimant’s right to bring an action in an appropriate United
States court.”).
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NOTICE OF APPEAL RIGHTS 3
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.
(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:
3
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.
5
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
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
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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:
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
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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. 4 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
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.
4
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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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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.