Amy Hill v. Department of the Treasury

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AMY W. HILL, DOCKET NUMBER
Appellant, AT-3443-17-0371-I-1
v.
DEPARTMENT OF THE TREASURY, DATE: January 27, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Amy W. Hill, Pinson, Alabama, pro se.
Brian Self, Esquire, and Neal Wilson, Esquire, Parkersburg, West Virginia,
for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her nonselection appeal for lack of jurisdiction without a hearing .
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
BACKGROUD
¶2 The appellant is a GS-14 Management and Program Analyst for the agency.
Initial Appeal File (IAF), Tab 1 at 1, 7. From 2014 to 2015, she served a rotation
as acting Project Branch Manager, and during that time she filed an application
for appointment to the position. Id. at 11, 14, 31, 33-36, 71-73. However, on or
about September 8, 2015, the agency selected another individual instead. Id. at 5,
40, 42, 73.
¶3 On March 31, 2017, the appellant filed a Board appeal of her nonselection
and requested a hearing. Id. at 2-3. The administrative judge issued an
acknowledgment order, informing the appellant that the Board generally lacks
jurisdiction over nonselections, but listing several exceptions to the rule and
ordering the appellant to file evidence and argument on the jurisdictional issue.
IAF, Tab 2 at 2-5. The appellant did not respond to the acknowledgment order,
and the agency moved to dismiss the appeal on jurisdictional and timeliness
grounds. IAF, Tab 6. The administrative judge issued an initial decision
dismissing the appeal for lack of jurisdiction without a hearing, finding that the
3
appellant failed to make a nonfrivolous allegation that the Board has jurisdiction
over her appeal. IAF, Tab 7, Initial Decision at 1, 3. Having dismissed the
appeal on jurisdictional grounds, the administrative judge did not reach the
timeliness issue. Id. at 3 n.2.
¶4 The appellant has filed a petition for review contesting the initial decision
and has attached several documents in support. 2 Petition for Review (PFR) File,
Tab 1. The agency has filed a response, and the appellant has filed a reply to the
agency’s response. PFR File, Tabs 2, 4.
ANALYSIS
¶5 The Board does not have jurisdiction over all matters involving a Federal
employee that are allegedly unfair or incorrect. Rather, the Board’s jurisdiction
is limited to those matters over which it has been given jurisdiction by statute or
regulation. Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir.
1985); Johnson v. U.S. Postal Service, 67 M.S.P.R. 573, 577 (1995). The
appellant states she “believes that the Board should have jurisdiction over hiring
processes and review of those processes should improper procedures and/or laws
be violated.” PFR File, Tab 4 at 5. However, except in certain limited categories
of cases, including employment practices, Veterans Employment Opportunities
Act, Uniformed Services Employment and Reemployment Rights Act, and
individual right of action appeals, the Board lacks jurisdiction over such matters.
See Becker v. Department of Veterans Affairs, 112 M.S.P.R. 507, ¶¶ 5-6 (2009).
The appellant has not made a nonfrivolous allegation either below or on revie w
that her case falls under any of these exceptions.
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We have reviewed the documentary evidence that the appellant has attached to her
petition for review, at least some of which was included in the record below. We find
that none of this evidence pertains to the issue of jurisdiction, and is therefore not
material to the outcome of the appeal. See Russo v. Veterans Administration,
3 M.S.P.R. 345, 349 (1980).
4
¶6 On review, the appellant argues that, under 5 U.S.C. § 7701(a), an employee
or applicant may submit an appeal to the Board from any action which is
appealable to the Board. PFR File, Tab 1 at 4-5. This is true. However, it does
not establish that the appellant’s nonselection is, in fact, an action appealable to
the Board. Section 7701 is not itself a grant of jurisdiction. Rather, it sets forth
the procedures for adjudicating appeals that are within the Board’s jurisdiction.
Belhumeur v. Department of Transportation, 104 M.S.P.R. 408, ¶ 9 (2007).
Therefore, notwithstanding this provision, the appellant must still establish that
she has been subjected to an action “which is appealable to the Board.”
¶7 Next, the appellant argues that her nonselection violated the Equal Pay Act
of 1963 and the sex discrimination provisions of Title VII of the Civil Rights Act
of 1964, thereby violating several of the merit system principles of 5 U.S.C.
§ 2301(b). PFR File, Tab 1 at 5-6, Tab 4 at 4-7; see 29 U.S.C. § 206(d);
42 U.S.C. § 2000e-16(a). However, even if this is true, it is insufficient to
establish Board jurisdiction over the appeal. The merit system principles are not
self-executing, and they do not provide an independent basis for Board
jurisdiction. Davis v. Department of Defense, 105 M.S.P.R. 604, ¶ 15 (2007);
Corbett v. Department of Health & Human Services, 7 M.S.P.R. 431, 434 (1981).
Furthermore, even if the agency committed a prohibited personnel practice under
5 U.S.C. § 2302(b)(1), this would not provide a basis for Board jurisdiction
either. Imdahl v. U.S. Postal Service, 72 M.S.P.R. 453, 456 (1996); 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).
¶8 The appellant also argues the merits of her case, including that the agency
selected a man to perform the job that she previously had performed, except with
less responsibility and for greater pay. PFR File, Tab 1 at 5, 7 -8. She also argues
that she was the better-qualified candidate, the agency gave the selectee
preferential treatment, and the agency has been less than transparent about the
matter. PFR File, Tab 1 at 4-5, 7-8, Tab 4 at 7. However, we find that the
5
appellant’s arguments are immaterial. Even if these allegations are true, and the
agency’s actions toward her in the selection process were unfai r, incorrect, or
even illegal, this is insufficient to establish Board jurisdiction over the appeal.
See Davis, 105 M.S.P.R. 604, ¶ 15; Johnson, 67 M.S.P.R. at 577.
¶9 To the extent that the appellant is arguing that she filed this appeal based on
the advice of an equal employment opportunity counselor, PFR File, Tab 1 at 4,
we find that this advice was erroneous and is insufficient to confer Board
jurisdiction, see Nabors v. U.S. Postal Service, 31 M.S.P.R. 656, 660 (1986),
aff’d, 824 F.2d 978 (Fed. Cir. 1987) (Table).
¶10 Finally, the appellant argues, for several reasons, that her appeal should be
considered timely, or that the filing deadline should be waived. PFR File, Tab 1
at 4, Tab 4 at 5-6. However, because the Board lacks jurisdiction over this
appeal, we agree with the administrative judge’s decision not to reach the
timeliness issue. See Richardson v. Department of the Treasury, 41 M.S.P.R. 40,
43 n.* (1989).
¶11 For these reasons, we find that the appellant has not made a nonfrivolous
allegation of Board jurisdiction over her appeal and that she has provided no basis
to disturb the initial decision.
NOTICE OF APPEAL RIGHTS 3
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
3
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 mat ter.
6
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 particula r
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
7
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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative rec eives 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 o rigin, 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
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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. 4 The court of appeals must receive your petition for
4
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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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.
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.