Tyrone McDowell v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TYRONE MCDOWELL, DOCKET NUMBER
Appellant, NY-3443-23-0024-I-1
v.
DEPARTMENT OF VETERANS DATE: July 26, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Tyrone McDowell , Lockport, New York, pro se.
Justina L. Lillis , Esquire, Cheektowaga, New York, 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
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed this appeal concerning the assignment of duties for lack of jurisdiction
and for untimeliness. The appellant raises a whistleblower reprisal claim for the
first time on review. He asserts reasons for extending the filing deadline for any
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
such 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 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 new whistleblower reprisal claim, we AFFIRM the initial
decision to the extent that the administrative judge found the Board lacks
jurisdiction over the appeal. We VACATE as unnecessary the administrative
judge’s finding that the appeal was untimely filed.
¶2 The administrative judge found that the appellant did not raise a claim of
whistleblower reprisal. Initial Appeal File (IAF), Tab 12, Initial Decision (ID)
at 4. She concluded that, in any event, any such claim would be untimely filed.
ID at 5-6. The appellant asserts a whistleblower reprisal claim for the first time
on review. Petition for Review (PFR) File, Tab 3 at 7-9. Although he did not
make this claim below, we consider it here. The issue of Board jurisdiction is
always before the Board and may be raised by either party or sua sponte by an
administrative judge or the Board at any time during a Board proceeding. See
Engler v. Department of the Navy, 69 M.S.P.R. 109, 114 (1995). Nonetheless, we
find the appellant did not establish jurisdiction over his claims.
¶3 To establish jurisdiction over an individual right of action (IRA) appeal, an
appellant must have exhausted his administrative remedies before the Office of
3
Special Counsel (OSC) and make nonfrivolous allegations of the following:
(1) he made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or
engaged in protected activity as specified in 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). 5 U.S.C. §§ 1214(a)(3), 1221; Salerno v. Department of the
Interior, 123 M.S.P.R. 230, ¶ 5 (2016). The substantive requirements of
exhaustion are met when an appellant has provided OSC with sufficient basis to
pursue an investigation. Chambers v. Department of Homeland Security,
2022 MSPB 8, ¶ 10. An appellant has not exhausted his administrative remedy
for purposes of an IRA appeal when his complaint to OSC alleged a prohibited
personnel practice, but not whistleblower reprisal. Davis v. Department of
Defense, 103 M.S.P.R. 516, ¶ 11 (2006); see Clemente v. Department of
Homeland Security, 101 M.S.P.R. 519, ¶ 13 (2006) (finding that a disclosure of
agency wrongdoing to OSC does not satisfy the exhaustion requirement).
¶4 The administrative judge issued a detailed order that set forth the
appellant’s burdens of proof at the jurisdictional and merits stages of an IRA
appeal and described the allegations and evidence he needed to submit. IAF,
Tab 4. In response, the appellant submitted a copy of his OSC complaint and his
correspondence with OSC. IAF, Tab 5 at 18-34, 37-38, 45-46, 49-61. The OSC
complaint reveals that he did not select the boxes for retaliation claims but did so
for “improper personnel actions” and “other” under the “other claims” category.
Id. at 20-21. He asserted to OSC that the assignment of certain duties violated
agency policy and merit systems principles. Id. at 30. The appellant also
submitted OSC’s August 22, 2022 letter closing out its investigation. IAF, Tab 1
at 7. In that letter, OSC advised the appellant that it had determined that it lacked
evidence that the assignment of the Controlled Substances Coordinator position
violated a law, rule, or regulation and concluded that agencies had wide
discretion to assign duties to employees. Id.4
¶5 The appellant’s submissions to OSC do not mention whistleblowing, section
2302(b)(8)-(9), or reprisal for whistleblowing. IAF, Tab 5; see Davis,
103 M.S.P.R. 516, ¶ 11. Additionally, the appellant selected “no” on the Board’s
appeal form for whether he had filed a whistleblower complaint with OSC. IAF,
Tab 1 at 4, Tab 5 at 4. He asserted that his Board appeal had nothing to do with
whistleblower reprisal, discrimination, or a prior EEO complaint. IAF, Tab 5
at 4, Tab 8 at 9. In sum, we find that the appellant has not exhausted his
administrative remedy because he did not allege whistleblower reprisal before
OSC concerning the assignment of duties.
¶6 In view of our determination that the Board lacks jurisdiction over this
appeal, we vacate as unnecessary the administrative judge’s finding that the
appeal was untimely filed. ID at 5-6. Therefore, we do not address the
appellant’s new arguments and evidence requesting that the Board waive the time
limit. PFR File, Tab 3 at 10-16.
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
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.
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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.
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.
6
(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
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.
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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.