Robert Bohinski v. Department of the Navy ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT BOHINSKI, DOCKET NUMBER
Appellant, PH-300A-20-0013-I-1
v.
DEPARTMENT OF THE NAVY, DATE: May 31, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Robert Bohinski , Mount Laurel, New Jersey, pro se.
Kimberly M. Engel , Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his employment practices appeal for lack of jurisdiction. On petition
for review, the appellant argues that the Office of Personnel Management’s
(OPM) use of a “closing date” for a vacancy announcement on the Federal
employment website, USAJOBS.gov, constitutes an “employment practice” and
that the agency failed to comply with it. Petition for Review (PFR) File, Tab 1
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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at 4-5. He also argues that the initial decision contains incorrect statements of
fact and that the OPM audits concerning the irregularities with the closing date of
the vacancy announcement are incorrect, unfair, and need to be corrected.
Id. at 5. He appears to reassert his claim that the agency violated the merit
system principles by questioning whether “preference or advantage” was given to
the selected applicant when the agency failed to comply with OPM’s “rules” for
the closing date. Id. He also argues, for the first time, that the agency engaged in
reprisal, and he submits emails between him and an agency official regarding the
OPM audits for the first time. Id. at 6, 8-12. 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).
The administrative judge correctly found that the appellant failed to
articulate any employment practice that was applied to him that is appealable to
the Board and, thus, that he failed to establish Board jurisdiction over his appeal.
Initial Appeal File (IAF), Tab 10, Initial Decision (ID) at 8-9; see 5 C.F.R.
§ 300.101 (partially defining “employment practices”). To the extent that he
failed to address the appellant’s other claims of harmful procedural error and a
violation of the merit system principles, the appellant’s rights were not prejudiced
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because, absent an otherwise appealable action, the Board is without jurisdiction
to consider these claims. See Penna v. U.S. Postal Service, 118 M.S.P.R. 355,
¶ 13 (2012) (stating that the Board lacks jurisdiction over an appellant’s harmful
error claim absent an otherwise appealable action); Neal v. Department of Health
& Human Services, 46 M.S.P.R. 26, 28 (1990) (stating that an appellant’s
reference to the merit system principles does not establish jurisdiction because
they are intended to furnish guidance to Federal agencies and do not constitute an
independent basis for legal action); Panter v. Department of the Air Force,
22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision); Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980),
aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).
The appellant argues for the first time on review that the agency engaged in
reprisal. PFR File, Tab 1 at 6. Generally, the Board will not consider an
argument raised for the first time on review absent a showing that it is based on
new and material evidence not previously available despite the party’s due
diligence. Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016).
The appellant has neither asserted nor proven as much. Moreover, the Board is
without jurisdiction to consider a reprisal claim absent an otherwise appealable
action. See Winns v. U.S. Postal Service, 124 M.S.P.R. 113, ¶ 19 (2017)
(reaffirming the Board’s lack of jurisdiction to consider reprisal claims absent an
otherwise appealable action), aff’d sub nom. Williams v. Merit Systems Protection
Board, 892 F.3d 1156 (Fed. Cir. 2018). If the appellant wishes to pursue an
individual right of action appeal on the basis of whistleblower reprisal, he should
first exhaust his administrative remedy with the Office of Special Counsel before
coming to the Board with that claim.
The appellant also submitted with his petition for review several emails
between him and an agency official concerning follow-up inquiries he had about
the OPM audits. PFR File, Tab 1 at 8-12. The appellant did not submit these
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emails below. IAF, Tabs 1, 6, 9. 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 record closed before the
administrative judge despite the party’s due diligence. Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 213-14 (1980).
The emails submitted by the appellant are dated between
September 26, 2019, and October 2, 2019. PFR File, Tab 1 at 8-12. The record
below closed on or around November 4, 2019. IAF, Tab 2 at 1, 5. The appellant
has not explained why he was unable to submit these emails prior to the close of
the record, nor has he shown that they are of sufficient weight to warrant an
outcome different from that of the initial decision. PFR File, Tab 1.
Accordingly, we have not considered them. See Avansino, 3 M.S.P.R. at 213-14;
Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980).
NOTICE OF APPEAL RIGHTS 2
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 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.
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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
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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.