Wei Wang v. Department of Labor ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WEI WANG, DOCKET NUMBER
Appellant, DC-315H-20-0753-I-1
v.
DEPARTMENT OF LABOR, DATE: November 28, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Wei Wang , Arlington, Virginia, pro se.
Matthew Babington , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her probationary termination 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; 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
BACKGROUND
¶2 Effective January 5, 2020, the agency appointed the appellant to the
career-conditional position of Economist in the competitive service, subject to a
1-year probationary period. Petition for Review (PFR) File, Tab 1 at 6. On
May 5, 2020, the agency issued to the appellant a notice of proposed termination,
having determined that her continued employment posed an “unacceptable risk for
both the security and confidentiality” of the agency’s data and reputation. Id. at
6-7. The proposal notice stated that the agency had been informed that the
appellant was under criminal investigation by the Federal Bureau of Investigation
(FBI) concerning an alleged incident at her previous employer. Id. at 6. The
notice informed the appellant that she could reply to the proposed action in
writing. Id. The appellant confirmed her receipt of the proposal notice and
submitted three written replies via electronic mail. Initial Appeal File (IAF),
Tab 1 at 8. Less than 1 year after the appellant’s initial appointment, effective
May 23, 2020, the agency terminated her appointment. Id. The decision
memorandum stated that, despite the appellant’s written explanations regarding
the incident with the appellant’s private sector employer, the agency had lost trust
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in the appellant’s “ability to adhere to the security and confidentiality policies for
[agency] data.” Id.¶3 The appellant filed an appeal and requested a hearing. Id. at 2. She stated
that she had 4 months of Federal service and checked the box indicating that she
was challenging her “[t]ermination during probationary or initial service period.”
Id. at 1, 4. The appellant asserted that the “termination decision was made based
on [her] mistake [during] previous work” and that, since she started working for
the agency, she had strictly complied with the policies without a “single mistake
ever.” Id. at 6. The appellant argued that the agency should provide her with the
opportunity to continue her employment. Id. The only documentary evidence
that the appellant submitted with her appeal was the termination decision
memorandum. Id. at 8-10.
¶4 The administrative judge issued an order to show cause informing the
appellant that the Board may not have jurisdiction over her appeal and apprised
her of the regulatory right to appeal for probationers in the competitive service
and the requirements for meeting the definition of an “employee” for purposes of
5 U.S.C. chapter 75 appeal rights. IAF, Tab 3 at 2-5. In particular, the
administrative judge noted that it appeared from the initial appeal that the
appellant may be claiming that she was terminated based on pre-appointment
reasons, and the administrative judge informed the appellant of the procedural
requirements of 5 C.F.R. § 315.805. Id. at 3. The administrative judge also
informed the appellant that she had the burden of proof on the issue of timeliness,
and it appeared that her appeal was untimely filed by 27 days. Id. at 5-6. She
ordered the appellant to file evidence and argument that her appeal was timely
filed or that good cause existed for the delay. Id. at 6-8. Finally, the
administrative judge explicitly informed the appellant that if she did not timely
respond to the order to show cause, the appeal would be dismissed for lack of
jurisdiction or untimeliness based on the existing record. Id. at 8. The appellant
4
did not file a response to the order to show cause. The agency did not file any
pleading during the pendency of the appeal.
¶5 Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the appeal because the appellant failed to make a
nonfrivolous allegation that the Board had jurisdiction over her appeal. IAF,
Tab 5, Initial Decision (ID) at 1 n.1. The administrative judge found that the
appellant failed to establish that she was an “employee” with chapter 75 appeal
rights because she provided no evidence or argument that she had completed her
probationary period or had 1 year of current continuous service at the time of her
termination. ID at 5. The administrative judge found that the record suggested
that the appellant was terminated during her probationary period for a
pre-appointment reason, but that the appellant had not made a nonfrivolous
allegation that the agency had failed to follow the procedural requirements set
forth at 5 C.F.R. § 315.805 and in fact the information that she submitted
suggested that the agency provided the requisite notice, opportunity to respond,
and decision. ID at 5-6. Finally, the administrative judge found that the
appellant had not alleged that she was terminated due to marital status or partisan
political reasons. ID at 6. The administrative judge did not make any findings on
the issue of the timeliness of the initial appeal.
¶6 The appellant has filed a petition for review, primarily addressing her delay
in filing the initial appeal and failure to respond to the order to show cause. PFR
File, Tab 1 at 4-5. The agency has filed a response arguing that the appellant has
provided no basis for granting her petition for review, has not addressed the
administrative judge’s jurisdictional findings, and has not provided good cause
for her failure to respond to the order to show cause. PFR File, Tab 3 at 5-8. The
appellant has filed a response arguing for the first time on review that the
agency’s “procedural defects” prevented her from “understanding her right to
appeal on the appropriate grounds and pursuing her rights in a timely manner.”
PFR File, Tab 4 at 4. She alleges that the agency failed to provide to her
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information regarding an appeal regarding conditions arising prior to her
appointment and that the agency had not responded to her inquiries after her
termination “asking about the feasibility of appeal and MSPB jurisdiction of her
specific case.” Id. The appellant repeats her contentions that she failed to
respond to the administrative judge’s order due to technological difficulties and
confusion regarding the Board’s e-Appeal system. 2 Id. at 5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 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). An appellant has the burden
of establishing that the Board has jurisdiction over her appeal. 5 C.F.R.
§ 1201.56(b)(2)(i)(A). To establish Board jurisdiction under 5 U.S.C. chapter 75,
an individual must, among other things, show that she satisfied one of the
definitions of “employee” in 5 U.S.C. § 7511(a)(1). Walker v. Department of the
Army, 119 M.S.P.R. 391, ¶ 5 (2013). For an individual in the competitive
service, such as the appellant, this means that she either must not be serving a
probationary or trial period under an initial appointment, or have completed
1 year of current continuous service under other than a temporary appointment
limited to 1 year or less. 5 U.S.C. § 7511(a)(1)(A)(i), (ii). A probationary
2
Following the close of the record on review, the appellant filed a request to submit an
additional pleading. PFR File, Tab 6. The Board’s regulations provide that the
pleadings allowed on review include a petition for review, a cross petition for review, a
response to a petition for review, a response to a cross petition for review, and a reply
to a response to a petition for review. 5 C.F.R. § 1201.114(a). In order to obtain leave
to submit a pleading other than the ones described in 5 C.F.R § 1201.114(a), a party
must file a motion describing the nature of and need for the pleading. 5 C.F.R.
§ 1201.114(a)(5). In addition, if a party wishes to submit additional evidence and
argument after the close of the record, the party must show that the evidence and
argument was not readily available before the record closed. 5 C.F.R. § 1201.114(k).
Here, the appellant states in general terms that an additional pleading “will provide
more to support [her] case,” PFR File, Tab 6 at 3, but she has not explained what
evidence and argument that pleading might contain, or why that evidence and argument
was not readily available before the close of the record. Accordingly, we deny her
request.
6
employee in the competitive service has a limited regulatory right of appeal. See
5 C.F.R. § 315.806. If such a person is terminated for reasons that arose after her
appointment, she may appeal to the Board only if she raises a nonfrivolous claim
that her termination was based on partisan political reasons or marital status.
5 C.F.R. § 315.806(b).
¶8 Under 5 C.F.R. § 315.806(c), a probationary employee whose termination
was based in whole or in part on conditions arising before her appointment may
appeal her termination to the Board on the ground that it was not effected in
accordance with the procedural requirements set forth in 5 C.F.R. § 315.805.
LeMaster v. Department of Veterans Affairs, 123 M.S.P.R. 453, ¶ 7 (2016).
Those procedural requirements include advance notice of the termination, an
opportunity to respond, and consideration of the response. Id., ¶ 13; 5 C.F.R.
§ 315.805(a)-(c). In a probationary termination appeal arising under
section 315.806(c), the only issue before the Board is whether the agency’s
failure to follow the procedures set forth in section 315.805 was harmful error,
and the Board does not address the merits of the agency’s termination. LeMaster,
123 M.S.P.R. 453, ¶ 7.
¶9 An appellant is entitled to a jurisdictional hearing if she presents
nonfrivolous allegations 3 of Board jurisdiction. Ferdon v. U.S. Postal Service,
60 M.S.P.R. 325, 329 (1994). In determining whether the appellant has made a
nonfrivolous allegation of jurisdiction entitling her to a hearing, the
administrative judge may consider the agency’s documentary submissions;
however, to the extent that the agency’s evidence constitutes mere factual
contradiction of the appellant’s otherwise adequate prima facie showing of
jurisdiction, the administrative judge may not weigh evidence and resolve
conflicting assertions of the parties, and the agency’s evidence may not be
dispositive. Id.3
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
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¶10 On petition for review, the appellant does not challenge the administrative
judge’s finding that she failed to make a nonfrivolous allegation that she was an
“employee” in the competitive service for purposes of 5 U.S.C. chapter 75 appeal
rights. ID at 5; PFR File, Tab 1 at 4-5, Tab 4 at 4-6. Rather, she seemingly raises
an allegation for the first time on review that the agency failed to follow the
procedural requirements set forth in 5 C.F.R. § 315.805 regarding her termination
during a probationary period due to conditions arising before her appointment.
PFR File, Tab 4 at 4. She also submits new evidence on review, the notice of
proposed termination. PFR File, Tab 1 at 6-7.
¶11 Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence
submitted for the first time with a petition for review absent a showing that it was
unavailable before the close of the record below despite the party’s due diligence.
Pirkkala v. Department of Justice, 123 M.S.P.R. 288, ¶ 5 (2016); see Clay v.
Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (stating that the Board
generally will not consider a new argument raised for the first time on review
absent a showing that it is based on new and material evidence). However, we
have considered the appellant’s new evidence and argument to the extent it
concerns the issue of the Board’s jurisdiction because the Board’s jurisdiction can
be raised at any time including on review. See Pirkkala, 123 M.S.P.R. 288, ¶ 5
(considering evidence submitted for the first time on review because it was
relevant to the Board’s jurisdiction).
¶12 Even considering the appellant’s evidence providing additional information
regarding her appointment and termination, we find no basis to find that she was
an “employee” for purposes of 5 U.S.C. chapter 75 appeal rights. The appellant
has not alleged that she was not serving a probationary period at the time of her
termination or that she had completed 1 year of current continuous service under
other than a temporary appointment limited to 1 year or less, and thus has not
made a nonfrivolous allegation that she meets the statutory definition of an
employee in the competitive service. IAF, Tab 1 at 1, 4, 6; PFR File, Tab 1
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at 4-5, Tab 4 at 4-6; see 5 U.S.C. § 7511(a)(1)(A)(i), (ii). We also find that the
appellant has not made a nonfrivolous allegation that there was a regulatory basis
for her appeal under the provisions set forth in 5 C.F.R. part 315, subpart H. The
administrative judge correctly found that the appellant has not alleged that her
termination was based on partisan political reasons or marital status
discrimination. ID at 6; see 5 C.F.R. § 315.806(b). Moreover, the appellant’s
new argument on review alleging that the agency’s “procedural defects”
prevented her from “understanding her right to appeal on the appropriate grounds
and pursu[e] her rights in a timely manner” does not provide a basis for
jurisdiction over her probationary appeal due to conditions arising prior to her
appointment pursuant to 5 C.F.R. § 315.806(c). PFR File, Tab 4 at 4. She has
not alleged that the agency failed to provide to her the requisite notice of her
proposed termination and an opportunity to respond, and instead argues that the
agency failed to respond to her post-termination inquiries regarding her Board
appeal. Id.; see 5 C.F.R. § 315.805. In any event, the agency’s decision
memorandum clearly informed the appellant that she could file a Board appeal if
she believed that the agency had “not followed the proper procedures for
terminating a probationary employee.” IAF, Tab 1 at 9.
¶13 Regardless of any technological or other difficulties the appellant alleges
affected her ability to timely file her appeal and respond to the administrative
judge’s orders, PFR File, Tab 1 at 4, Tab 4 at 5, she has failed to raise
nonfrivolous allegations of Board jurisdiction and is not entitled to a
jurisdictional hearing, see Ferdon, 60 M.S.P.R. at 329. Therefore, the
administrative judge appropriately did not reach the issue of timeliness, and we
do not address the appellant’s new arguments regarding this issue on appeal.
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NOTICE OF APPEAL RIGHTS 4
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:
4
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.
10
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
11
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
12
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. 5 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.
5
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.
13
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.