Alesya Paschal v. Department of the Army ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALESYA M. PASCHAL, DOCKET NUMBER
Appellant, AT-0752-18-0083-I-1
v.
DEPARTMENT OF THE ARMY, DATE: February 6, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Alesya M. Paschal , Madison, Alabama, pro se.
Kathryn R. Shelton , Redstone Arsenal, Alabama, for the agency.
Daniel Dougherty , Colorado Springs, Colorado, 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 her appeal for failure to state a claim. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 dismiss the appeal for lack of jurisdiction instead of for failure to
state a claim, we AFFIRM the initial decision.
BACKGROUND
On July 10, 2016, the agency imposed the appellant’s indefinite suspension
pending final adjudication of the interim suspension of her access to classified
information. 2 Initial Appeal File (IAF), Tab 1 at 7. On July 11, 2017, the
Department of Defense Consolidated Adjudications Facility favorably adjudicated
her eligibility for a Top Secret Security Clearance and her access to classified
information was restored. IAF, Tab 4 at 24, 29. Accordingly, the agency
returned her to duty, effective July 11, 2017. Id. at 26.
The appellant filed the instant appeal challenging the agency’s failure to
provide her with back pay for the period of the indefinite suspension. IAF, Tab 1.
She asserted discrimination based on sex and disability and retaliation for equal
employment opportunity and whistleblowing activity. Id. at 5. Without holding
2
The appellant filed a Board appeal challenging the indefinite suspension. Paschal v.
Department of the Army, MSPB Docket No. AT-0752-16-0740-I-1. The administrative
judge issued an initial decision that sustained the indefinite suspension and, after
considering the appellant’s petition for review, the Board affirmed the initial decision.
Paschal v. Department of the Army, MSPB Docket No. AT-0752-16-0740-I-1, Final
Order (Feb. 5. 2024); Paschal v. Department of the Army, MSPB Docket No. AT-0752-
16-0740-I-1, Initial Decision (Dec. 5, 2016).
3
the appellant’s requested hearing, the administrative judge found that the Board
had jurisdiction over the appeal but dismissed it for failure to state a claim upon
which relief could be granted. IAF, Tab 14, Initial Decision (ID) at 2-4.
Specifically, he found jurisdiction because there are situations when the
occurrence of a condition subsequent, such as the resolution of the criminal
charges upon which an indefinite suspension was based, could give rise to an
appealable adverse action, and because the appellant asserted that she suffered an
appealable reduction in pay under 5 U.S.C. § 7512 when the agency did not give
her back pay. ID at 2-3. He found, however, that the restoration of the
appellant’s clearance was not a condition subsequent that entitled her to back pay
and thus it was appropriate to dismiss the appeal for failure to state a claim upon
which relief could be granted. ID at 3. Further, the administrative judge stated
that, because he dismissed the appeal for failure to state a claim upon which relief
could be granted, the appellant’s claims regarding discrimination did not affect
the outcome of the case. Id.The appellant has filed a petition for review, the agency has responded in
opposition, and the appellant has replied. Petition for Review (PFR) File,
Tabs 1, 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant reasserts her claim that she is entitled to back pay
during the period of the indefinite suspension and her claims of disparate
treatment based on sex and retaliation for whistleblowing activities. 3 PFR File,
Tab 1 at 4-7. She also asserts that the appellant in Rogers v. Department of
Defense, MSPB Docket No. AT-3443-13-3415-I-1, Final Order (Apr. 25, 2014),
3
To the extent that the appellant is attempting to challenge her indefinite suspension by
stating that it was initiated on the basis of mere allegations from the agency, we find
that she is barred from doing so under the doctrine of res judicata because we already
issued a valid, final judgment on the merits of this action. PFR File, Tab 1 at 6; see
Hicks v. U.S. Postal Service, 114 M.S.P.R. 232, ¶ 11 (2010).
4
was paid during his indefinite suspension. 4 Id. at 7. As described below, we find
that the appellant has failed to nonfrivolously allege that the Board has
jurisdiction over her claim for back pay. 5 Thus, it was not proper for the
administrative judge to dismiss the appeal for failure to state a claim upon which
relief can be granted. See Alford v. Department of Defense, 113 M.S.P.R. 263,
¶ 11 (2010) (describing that an appeal that is already within the Board’s
jurisdiction can be dismissed for failure to state a claim upon which relief can be
granted), aff’d, 407 F. App’x 458 (Fed. Cir. 2011).
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). A request for back pay is not
listed among those matters and it does not create an independent basis for Board
jurisdiction. 5 C.F.R. § 1201.3; see Bosley v. Merit Systems Protection Board,
162 F.3d 665, 667-68 (Fed. Cir. 1998) (stating that, if the Board does not
otherwise have jurisdiction over an appeal, the Back Pay Act does not confer
jurisdiction). Accordingly, we find that the Board lacks jurisdiction over her
claim for back pay absent an otherwise appealable action. Further, the Board
4
In Rogers, the appellant filed an appeal challenging his placement in a paid
administrative leave status, which the administrative judge dismissed for lack of
jurisdiction. Rogers v. Department of Defense, MSPB Docket No. AT-3443-13-3415-
I-1, Initial Decision (Nov. 5, 2013). On review in that case, the appellant stated that he
had since been indefinitely suspended without pay after his security clearance was
suspended and thus the Board forwarded his petition for review for processing as a new
appeal of the indefinite suspension. Rogers v. Department of Defense, MSPB Docket
No. AT-3443-13-3415-I-1, Final Order (Apr. 25, 2014); Rogers v. Department of
Defense, MSPB Docket No. AT-3443-13-3415-I-1, PFR File, Tab 1 at 3. We fail to see
how the agency’s decision in Rogers to place the appellant in a paid leave status prior to
suspending him affects the outcome in this case.
5
An appellant bears the burden of proving jurisdiction by a preponderance of the
evidence. 5 C.F.R. § 1201.56(b)(2)(i)(A); see Barrand v. Department of Veterans
Affairs, 112 M.S.P.R. 210, ¶ 8, aff’d, 370 F. App’x 85 (Fed. Cir. 2009). However, an
appellant is entitled to a jurisdictional hearing if she makes a nonfrivolous allegation of
Board jurisdiction, i.e., an allegation of fact that, if proven, could establish a prima
facie case that the Board has jurisdiction over the matter at issue. 5 C.F.R. § 1201.4(s);
see Barrand, 112 M.S.P.R. 210, ¶ 8.
5
lacks jurisdiction over her claim as a reduction in pay because she has not alleged
that her rate of pay was actually reduced once she was reinstated. IAF, Tab 4
at 26; see Chaney v. Veterans Administration, 906 F.2d 697, 698 (Fed. Cir. 1990)
(stating that an appealable reduction in pay occurs only when there is an
ascertainable lowering of an employee’s pay at the time of the action).
The appellant’s request for back pay here could be construed as a request
for compliance in Paschal v. Department of the Army, MSPB Docket No. AT-
0752-16-0740-I-1. Because of the lack of quorum, however, her petition for
review in that appeal was pending before the Board when she filed the present
appeal and a petition for enforcement therefore was not docketed. Nevertheless,
even if this appeal had been docketed as a petition for enforcement, the appellant
is not entitled to receive back pay because the Board affirmed the indefinite
suspension. See Biggers v. Department of the Navy, 745 F.3d 1360, 1362-63
(Fed. Cir. 2014) (finding that the appellant was not entitled to back pay when the
agency indefinitely suspended him pending a decision regarding his security
clearance and later returned him to duty after it was determined that he was
eligible for the clearance).
Finally, absent an otherwise appealable action, the Board lacks jurisdiction
over the appellant’s claims of retaliation and discrimination. See Winns v. U.S.
Postal Service, 124 M.S.P.R. 113, ¶ 19 (2017), aff’d sub nom. Williams v. Merit
Systems Protection Board, 892 F.3d 1156 (Fed. Cir. 2018).
NOTICE OF APPEAL RIGHTS 6
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
6
Since the issuance of the initial decision in this matter, the Board has 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
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:
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.
7
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
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
8
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
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. 7 The court of appeals must receive your petition for
7
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
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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.
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.