Matthew D Danzey v. Department of Justice ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MATTHEW D. DANZEY, DOCKET NUMBER
Appellant, NY-1221-20-0118-W-1
v.
DEPARTMENT OF JUSTICE, DATE: July 25, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Chungsoo Lee , Jenkintown, Pennsylvania, for the appellant.
Kealin Culbreath , Esquire, Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) 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;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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. Except as expressly MODIFIED to
address the appellant’s jurisdictional response in greater detail, we AFFIRM the
initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
In addressing the evidence and argument that the appellant submitted
below, the administrative judge appears to have overlooked the appellant’s main
jurisdictional pleading. Initial Appeal File (IAF), Tab 5 at 34-36. We consider it
now.
The appellant bears the burden of proving jurisdiction over an appeal.
5 C.F.R. § 1201.56(b)(2) To establish jurisdiction over an IRA appeal, an
appellant must show that he exhausted his administrative remedies before the
Office of Special Counsel (OSC) and make nonfrivolous allegations that (1) he
made a protected 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 disclosure or protected activity was a contributing factor in the
agency’s decision to take or fail to take a personnel action as defined under
5 U.S.C. § 2302(a). Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5
(2016); see 5 U.S.C. §§ 1214(a)(3), 1221(e)(1). Whether allegations are
3
nonfrivolous is determined on the basis of the written record. Massie v.
Department of Transportation, 114 M.S.P.R. 155, ¶ 11 (2010). Once an appellant
establishes jurisdiction over his IRA appeal, he is entitled to a hearing on the
merits of his claim. Salerno, 123 M.S.P.R. 230, ¶ 5.
We first consider the exhaustion requirement. Under 5 U.S.C. § 1214(a)
(3), an employee is required to seek corrective action from OSC before seeking
corrective action from the Board. Mason v. Department of Homeland Security,
116 M.S.P.R. 135, ¶ 8 (2011). The exhaustion requirement is met when the
appellant has provided OSC with a sufficient basis to pursue an investigation.
Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶¶ 10-11. The
Board’s jurisdiction is limited to those issues that were previously raised with
OSC. However, appellants may give a more detailed account of their
whistleblowing activities before the Board than they did to OSC. Id. Appellants
may demonstrate exhaustion through their initial OSC complaint; evidence that
they amended the original complaint, including but not limited to OSC’s
determination letter and other letters from OSC referencing any amended
allegations; and their written responses to OSC referencing the amended
allegations. Id. Appellants also may establish exhaustion through other
sufficiently reliable evidence, such as an affidavit or a declaration attesting that
they raised with OSC the substance of the facts in the Board appeal. Id.In determining whether the appellant has satisfied the exhaustion
requirement, we have considered the March 4, 2020 closeout letter and notice of
appeal rights, the February 19, 2020 letter from OSC, and the body text of the
appellant’s additional correspondence with an OSC attorney. IAF, Tab 1 at 8, 13,
Tab 5 at 5-25. Because the appellant states, under penalty of perjury, that he
provided OSC with the brief timeline included in his response to the jurisdictional
order, we have considered it as well. IAF, Tab 5 at 26-29, 34. We have not,
however, pored over the voluminous additional documents found at Tabs 6
through 25. See Keefer v. Department of Agriculture, 92 M.S.P.R. 476, ¶ 18 n.2
4
(2002). To the extent those documents may refer to additional alleged disclosures
and retaliatory actions, the appellant failed to show by preponderant evidence that
his articulated claims provided OSC with a sufficient basis to pursue an
investigation. 1
Based on our review of the appellant’s main jurisdictional pleading, we
conclude that he clearly alleged before OSC that he made protected disclosures
when, in November 2018, he reported to the Trust Fund Supervisor: (1) that
inmates had been allowed to hire other inmates in the commissary and handle
sensitive documents; and (2) that two Material Handler Supervisors had
improperly used replacement product samples to offset inventory shortages. The
appellant’s correspondence with OSC also refers to a disclosure involving “3 year
old bacon,” which was apparently being kept at the commissary (although the
appellant did not clearly inform OSC when or to whom he made that disclosure).
IAF, Tab 5 at 8, 10.IAF, Tab 5 at 13, 26-27. He further alleged before OSC that
the agency retaliated against him for those disclosures by: (1) denying his
request for a transfer; and (2) refusing or delaying authorization for outside
employment. Id. at 26-29. Hence, as the appellant points out on review, he
exhausted his remedies with respect to alleged disclosures and retaliatory actions
that were not mentioned in the closeout letter or the initial decision.
However, assuming without deciding that the appellant made nonfrivolous
allegations that one or more of his disclosures were protected under 5 U.S.C.
§ 2302(b)(8), he failed to nonfrivolously allege that his disclosures were a
contributing factor in the contested personnel actions. Under the statute
governing IRA appeals, an employee may demonstrate that a disclosure or
protected activity was a contributing factor in the contested personnel action
1
For example, the appellant notes on review that the documents he provided OSC
included the Standard Form 50 recording his August 18, 2019 reduction in grade.
Petition for Review File, Tab 1 at 6; see IAF, Tab 19 at 37. However, considering that
the form was surrounded by hundreds of other pages of disorganized documents, the
appellant did not clearly inform OSC that he was claiming the demotion as an alleged
retaliatory action.
5
through circumstantial evidence, such as evidence that the official taking the
personnel action knew of the disclosure or protected activity, and that the
personnel action occurred within a period of time such that a reasonable person
could conclude that the disclosure or protected activity was a contributing factor
in the personnel action. 5 U.S.C. § 1221(e)(1); Salerno, 123 M.S.P.R. 230, ¶ 13.
The knowledge-timing test is only one way of establishing contributing factor,
and if an appellant fails to satisfy the knowledge-timing test, other evidence must
be considered, such as that pertaining to the strength or weakness of the agency’s
reasons for taking the personnel action, whether the whistleblowing was
personally directed at the responsible agency officials, and whether those
individuals had a desire or motive to retaliate against the appellant. Dorney v.
Department of the Army, 117 M.S.P.R. 480, ¶¶ 14-15 (2012).
Regarding the appellant’s request for a change of position, an appointment
or reassignment constitutes a “personnel action” for purposes of a whistleblowing
claim. See 5 U.S.C. § 2302(a)(2)(A)(i), (iv). However, the appellant has not
identified the responsible agency officials, alleged that they were aware of his
disclosures, or otherwise explained how a retaliatory motive may have played a
role in the agency’s decision. Thus, he has not made a nonfrivolous allegation
that his disclosures were a contributing factor in the agency’s failure to grant his
request. As for the appellant’s claim that the agency delayed his authorization for
outside employment, the agency’s actions in that regard do not constitute a
personnel action within the meaning of 5 U.S.C. § 2302(a)(2)(A).
In sum, the appellant failed to make a nonfrivolous allegation that his
disclosures, assuming they were protected, were a contributing factor in the
agency’s decision to take or fail to take, or threaten to take or fail to take,
a personnel action under 5 U.S.C. § 2302(a). To the extent the appellant raises
claims of race discrimination, the Board lacks jurisdiction to consider such claims
in the context of an IRA appeal. See Edwards v. Department of Labor, 2022
MSPB 9, ¶¶ 18-23 (clarifying that the Whistleblower Protection Enhancement Act
6
of 2012 did not expand the scope of the Board’s IRA jurisdiction to include
claims relating to Title VII of the Civil Rights Act of 1964). Finally, there is no
law, rule, or regulation that would grant the Board authority to review the
appellant’s allegation that OSC misinterpreted his complaint. See Maddox v.
Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985) (stating that the
Board’s authority is limited to those matters over which it has been given
jurisdiction by law, rule or regulation). Because the appellant did not meet his
burden on the threshold issue of jurisdiction, it was unnecessary for the
administrative judge to conduct a hearing on the merits or require the agency to
submit a narrative response. Accordingly, we find no basis for further review of
the initial decision.
NOTICE OF APPEAL RIGHTS 2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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.
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.
7
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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
8
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:
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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. 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).
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.
10
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.