Justin O'Hagan v. Department of Health and Human Services ( 2024 )


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  •                             UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    JUSTIN O’HAGAN,                                 DOCKET NUMBER
    Appellant,                         AT-1221-23-0326-W-1
    v.
    DEPARTMENT OF HEALTH AND                        DATE: November 5, 2024
    HUMAN SERVICES,
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    Andrew Brian Henson , Esquire, Decatur, Georgia, for the appellant.
    Laura T. VanderLaan , Esquire, Atlanta, Georgia, for the agency.
    BEFORE
    Cathy A. Harris, Chairman
    Raymond A. Limon, Vice Chairman
    Henry J. Kerner, Member*
    * Member Kerner recused himself and 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 individual right of action (IRA) appeal for lack of jurisdiction.
    Generally, we grant petitions such as this one only in the following
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    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).
    ¶2         The administrative judge found that although the appellant met some other
    jurisdictional requirements, he did not present the requisite nonfrivolous
    allegations of protected whistleblowing. Initial Appeal File (IAF), Tab 10, Initial
    Decision (ID) at 5-10.     On petition for review, the appellant argues that the
    administrative judge rendered her finding in a conclusory manner, without any
    citation to the record. Petition for Review (PFR) File, Tab 1 at 2-3. However,
    the initial decision reflects otherwise.   ID at 7-9 (citing IAF, Tab 8 at 7 -8,
    16-130).   We recognize that the administrative judge did not cite or discuss
    everything the appellant submitted below. E.g., IAF, Tab 8 at 134-48. However,
    an administrative judge’s failure to mention all of the evidence of record does not
    mean that they did not consider it in reaching their decision.           Marques v.
    Department of Health and Human Services, 
    22 M.S.P.R. 129
    , 132 (1984), aff’d,
    
    776 F.2d 1062
     (Fed. Cir. 1985) (Table).
    ¶3         The appellant next argues that he “made clear disclosures of violations of
    law and regulations” or “an abuse of authority” when he disclosed “bullying
    behavior” by two members of his supervisory chain. PFR File, Tab 1 at 3-7.
    3
    According to the appellant, this constituted nonfrivolous allegations of
    disclosures protected under 
    5 U.S.C. § 2302
    (b)(8). E.g., 
    id. at 6-7
    . Yet, we agree
    with the administrative judge’s conclusion to the contrary.         Throughout his
    arguments below, the appellant stated that he disclosed bullying and workplace
    violence.    He did not, however, present examples and explanations to
    nonfrivolously allege that he reasonably believed this rose to the level of a
    protected disclosure. IAF, Tab 1 at 7, Tab 8 at 4-11; see Salerno v. Department
    of the Interior, 
    123 M.S.P.R. 230
    , ¶ 7 (2016) (finding that an appellant’s
    allegations of disclosures did not meet the nonfrivolous standard for establishing
    jurisdiction in an IRA appeal because they were not sufficiently specific and
    detailed). The appellant did submit extensive unexplained documentation. IAF,
    Tab 1 at 12-39, Tab 8 at 13-148. However, to the extent that this was intended to
    supplement his arguments to the administrative judge about disclosures of
    bullying or workplace violence, it was insufficient. The documentation contains
    extensive allegations about the appellant expressing dissatisfaction with his
    management chain over several years, but it fails to nonfrivolously allege that this
    rose to the level of a protected disclosure about bullying.
    ¶4         On review, the appellant also suggests that he engaged in appeals,
    complaints, or grievances that could be whistleblowing activity protected under
    
    5 U.S.C. § 2302
    (b)(9). PFR File, Tab 1 at 10. In addition, the appellant asserts
    that he disclosed “inappropriate granting of research funding to outside groups”
    and one supervisor’s “interfering with grant funding decisions,” contrary to
    regulation. 
    Id. at 12-13
    . Lastly, he alleges that he disclosed possible reprisal for
    his having disclosed bullying and workplace violence. 
    Id. at 13
    . These are new
    theories of his case for jurisdiction, presented for the first time on review. In his
    arguments before the administrative judge, the appellant did not identify any of
    this as the whistleblowing underlying his claim of reprisal in the instant IRA
    appeal. See IAF, Tab 1 at 7, Tab 8 at 4-11.
    4
    ¶5         The Board generally will not consider an argument raised for the first time
    in a petition for review absent a showing that it is based on new and material
    evidence not previously available despite the party’s due diligence.           Banks v.
    Department of the Air Force, 
    4 M.S.P.R. 268
    , 271 (1980). However, the Board
    does oftentimes consider new arguments on the issue of jurisdiction because
    jurisdiction is always before the Board and may be raised by any party or sua
    sponte by the Board at any time.        DeGrella v. Department of the Air Force,
    
    2022 MSPB 44
    , ¶ 16 n.5. Accordingly, we have considered these new arguments,
    but we find them unavailing.
    ¶6         In support of the new arguments or assertions he presented for the first time
    on review, the appellant has only vaguely alluded to the extensive allegations he
    submitted to OSC. PFR File, Tab 1 at 10, 12-13. In turn, those allegations he
    submitted to OSC are difficult to follow in terms of identifying what his alleged
    whistleblowing was and why it might be protected. E.g., IAF, Tab 8 at 30-31, 36-
    37, 39-47, 51-64, 66-67. We have attempted to compare his brief arguments on
    review with the portions of his OSC submissions he referenced, but we are unable
    to discern any nonfrivolous allegations of protected disclosures or activity. For
    all these reasons, we are not persuaded by the appellant’s petition for review.
    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
    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.
    5
    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.
    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
    6
    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
    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
    7
    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. 3   The court of appeals must receive your petition for
    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.
    8
    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.
    9
    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.
    

Document Info

Docket Number: AT-1221-23-0326-W-1

Filed Date: 11/5/2024

Precedential Status: Non-Precedential

Modified Date: 11/6/2024