Christopher Chin-Young v. Department of Transportation

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTOPHER R. CHIN-YOUNG, DOCKET NUMBER
Appellant, AT-1221-17-0217-W-1
v.
DEPARTMENT OF DATE: January 13, 2023
TRANSPORTATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Christopher R. Chin-Young, Tallahassee, Florida, pro se.
Philip D. Edwards, Esquire, College Park, Georgia, 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 his individual right of action (IRA) 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;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. Except as expressly MODIFIED by
this Final Order to clarify the administrative judge’s analysis of the appellant’s
fourth and fifth disclosures, we AFFIRM the initial decision.
¶2 The appellant filed an IRA appeal in which he alleged that the agency took
a number of personnel actions in retaliation for a number of protected disclosures.
The administrative judge, in an initial decision, found that the appellant failed to
make a nonfrivolous allegation of jurisdiction, and he dismissed the appeal for
lack of jurisdiction without a hearing. The appellant petitions for review.
¶3 The Board has jurisdiction over an IRA appeal if the appellant has
exhausted his or her administrative remedies before the Office of Special Counsel
(OSC) and makes nonfrivolous allegations that: (1) he engaged in whistleblowing
activity by making a protected disclosure; and (2) the disclosure was a
contributing factor in the agency’s decision to take or fail to take a personnel
action. Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). The
appellant raised seven alleged protected disclosures and seven alleged personnel
actions. We adopt the administrative judge’s grouping of these claims in
our analysis.
3
The appellant failed to show that he exhausted his remedies before OSC
concerning some of his alleged protected disclosures. 2
¶4 An employee seeking corrective action for whistleblower reprisal under
5 U.S.C. § 1221 is required to seek corrective action from OSC before seeking
corrective action from the Board. Edwards v. Department of the Air Force,
120 M.S.P.R. 307, ¶ 15 (2013). This requirement is met when an appellant has
provided OSC with a sufficient basis to pursue an investigation. Chambers v.
Department of Homeland Security, 2022 MSPB 8, ¶¶ 10-11. The Board’s
jurisdiction is limited to those issues that have been previously raised with OSC.
However, an appellant may give a more detailed account of his whistlebl owing
activities before the Board than he did to OSC. Id.¶5 An appellant may demonstrate exhaustion through his initial OSC
complaint, evidence that he amended the original complaint, including but not
limited to OSC’s determination letter and other letters from OSC referencing any
amended allegations, and his written responses to OSC referencing the amended
allegations. He may also establish exhaustion through other sufficiently reliable
evidence, such as an affidavit or a declaration attesting that he raised with OSC
the substance of the facts in the Board appeal. Id. However, the appellant’s
failure to provide any of these in this case means there is little evidence to show
precisely what he raised before OSC. We agree with the administrative judge that
OSC’s closure letters are the best evidence available in the file as to which claims
the appellant raised to OSC. Initial Appeal File (IAF), Tab 25, Initial Decision
(ID) at 4.
¶6 OSC’s correspondence reveals that the appellant raised two alleged
protected disclosures, one concerning excessive spending on employee travel
(disclosure 4) and one concerning excessive spending on conferences
(disclosure 5). IAF, Tab 1 at 11-12. OSC makes no mention of the appellant’s
2
We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
4
remaining alleged protected disclosures, misuse of classification series 2186;
nepotism and favoritism in hiring within the Planning and Requirements group;
excessive travel funding by a particular named individual; and misuse of work
details to silence and isolate the appellant. As the administrative j udge correctly
determined, because there is no evidence that the appellant raised these four
alleged protected disclosures to OSC, he failed to prove exhaustion as to them.
ID at 5-7; Chambers, 2022 MSPB 8, ¶¶ 10-11 (finding that, in an IRA appeal, the
Board may consider only those charges of whistleblowing that the appellant first
asserted before OSC).
¶7 Turning to disclosures 4 and 5, the administrative judge found that the
appellant did not exhaust his remedies because his allegations lacked detail and
because he failed to inform OSC of the precise ground of his charge of
whistleblowing so as to give OSC a sufficient basis to pursue an investigation that
might lead to corrective action. ID at 4; see Ward v. Merit Systems Protection
Board, 981 F.2d 521, 526 (Fed. Cir. 1992). He went on to find that the appellant
failed to make a nonfrivolous allegation that disclosure 4 was protected. ID
at 7-8. The administrative judge noted that there were two versions of
disclosure 5 in the record and that one had been raised to OSC and the other had
not. ID at 8 n.4. It appears from OSC’s closure letter that the appellant provided
more information about disclosures 4 and 5 to OSC than he has to the Board. It is
also clear that OSC was able to make at least a cursory investigation into both
disclosures 4 and 5. 3 IAF, Tab 1 at 13. Because the appellant provided OSC with
sufficient basis to pursue an investigation, we find that he proved by preponderant
evidence that he exhausted his administrative remedies before OSC regarding
disclosures 4 and 5.
3
As to disclosure 5, the appellant provided OSC with enough information that OSC was
able to construct a crude timeline of events. IAF, Tab 1 at 13.
5
The appellant failed to show that he exhausted his remedies before OSC
concerning some of his alleged personnel actions.
¶8 The appellant raised a number of alleged personnel actions in his appeal.
However, the only personnel actions mentioned in the OSC closure letter are an
alleged reduction in grade, pay or band (disclosure 1); and a reassignment from a
supervisory to a nonsupervisory position (disclosure 5). We agree with the
administrative judge that the appellant failed to exhaust his administrative
remedies regarding the remaining personnel actions and that the Board therefore
lacks jurisdiction to consider them.
The appellant failed to make a nonfrivolous allegation that disclosures 4 and 5
were protected.
¶9 As noted above, one element of the test for establishing jurisdiction in an
IRA appeal is that the appellant must make a nonfrivolous allegation that he made
a protected disclosure. Salerno, 123 M.S.P.R. 230, ¶ 5. A protected disclosure is
defined as a disclosure of information that the individual reasonably believes
evidences a violation of law, rule, or regulation, gross mismanagement, gross
waste of funds, abuse of authority, or substantial and specific danger to public
health or safety. Tatsch v. Department of the Army, 100 M.S.P.R. 460, ¶ 10
(2005). The test to determine whether a putative whistleblower has a reasonable
belief is an objective one: Whether a disinterested observer, with knowledge of
the essential facts known to and readily ascertainable by the employee, could
reasonably conclude that the agency’s actions evidenced one of these categories
of wrongdoing. Id. The Board will not require, as a basis for its jurisdiction, that
an appellant in an IRA appeal correctly label a category of wrongdoing.
McCorcle v. Department of Agriculture, 98 M.S.P.R. 363, ¶ 18 (2005). However,
the disclosures must be specific and detailed, not vague allegations of
wrongdoing regarding broad or imprecise matters. Id. A nonfrivolous allegation
is an assertion that, if proven, could establish the matter at issue. Lewis v.
Department of Defense, 123 M.S.P.R. 255, ¶ 7 (2016). An allegation generally
6
will be considered nonfrivolous when, under oath or penalty of perjury, an
individual makes an allegation that is more than conclusory, plausible on its face,
and material to the legal issue in the appeal. Id.¶10 The appellant’s disclosures 4 and 5 are little more than allegations that the
agency spent too much on travel and on either a conference or a Christmas party.
He makes no specific allegation about how much of each expenditure is
appropriate and how much is excessive. It is not clear whether the appellant
believes that the agency is engaging in unnecessary travel, or whether the travel is
appropriate but the costs are not. We agree with the administrative judge, ID
at 7-9, that these are the sort of vague and conclusory allegations that do not rise
to the level of nonfrivolous allegations of a protected disclosure. 4
The appellant failed to establish the Board’s jurisdiction over his hostile working
environment claim.
¶11 As the administrative judge correctly stated, the appellant raised the issue
of a hostile working environment both as an alleged protected disclosure and as
an alleged personnel action. ID at 3 n.2. The appellant has provided no evidence,
however, that he asserted to OSC that he disclosed a hostile working
environment. Therefore, he did not exhaust his remedies as to any disclosure
about a hostile working environment. As to the appellant’s other claim,
allegations of a hostile work environment may constitute a personnel action under
4
Because the appellant did not nonfrivolously allege a protected disclosure, he cannot
meet his jurisdictional burden. See, e.g., Covarrubias v. Social Security
Administration, 113 M.S.P.R. 583, ¶ 17 (2010) (explaining that the Board need not
address whether a disclosure was a contributing factor to a personnel action when the
appellant did not make a nonfrivolous allegation that she made a protected disclosure),
overruled in part on other grounds by Colbert v. Department of Veterans Affairs,
121 M.S.P.R. 677, ¶ 12 n.5 (2014). Thus, challenges to the administrative judge’s
findings pertaining to the appellant’s alleged personnel actions would not be a basis for
granting the appellant’s petition for review. We nevertheless expand upon the
administrative judge’s analysis of the appellant’s hostile work environment claim to
apply recently issued Board law, which the administrative judge did not have the
benefit of at the time of the initial decision’s issuance.
7
the Whistleblower Protection Act only if they meet the statutory criteria of
constituting a significant change in duties, responsibilities, or working conditions.
5 U.S.C. § 2302(a)(2)(A)(xii). To amount to a “significant change” under
section 2302(a)(2)(A)(xii), an agency action must have a significant impact on the
overall nature or quality of an employee’s working conditions, responsibilities, or
duties. Skarada v. Department of Veterans Affairs, 2022 MSPB 17, ¶ 15. The
appellant does nothing more than state that he met with a human resources
official about a hostile work environment. Accordingly, we agree with the
administrative judge that, by this, the appellant failed to make a nonfrivolous
allegation that he was subjected to a hostile working environment.
The appellant’s arguments on review do not warrant disturbing the
initial decision.
¶12 The appellant’s arguments on review essentially derive from the
misconception that evidence submitted in his prior appeals is available to and
should be considered by the administrative judge. In a refiled appeal, the Board
informs the parties that documents already in the record need not be resubmitted.
That instruction does not apply in a newly filed appeal with an entirely different
docket number. The administrative judge twice ordered the appellant to submit
evidence and argument showing Board jurisdiction, and so the appellant should
have done so rather than assume that the administrative judge would retrieve the
files from the appellant’s earlier cases and search through them for anything that
might be relevant in this case. There is nothing from the administrative judge in
this file that could reasonably be interpreted to mean that the appellant could rely
on the records generated in his other cases or that he need not introduce evidence
in this case.
¶13 The appellant further contends that the administrative judge’s suspension of
discovery prevented him from obtaining the complete OSC file. P etition for
Review File, Tab 2 at 21-22. He also asserts that the administrative judge should
have ordered OSC to produce its file. Id. at 24. The documents that would show
8
what allegations the appellant raised before OSC are all documents that he would
have generated himself or at least have had in his custody and control at some
point. The form that OSC utilized at the time the appellant filed with OSC—
Form 11, “Complaint of Possible Prohibited Personnel Practice or Other
Prohibited Activity”—expressly states on page 2 that complainants should keep
copies of their submissions to OSC. If the appellant chose not to keep copies of
documents he would need later in litigation before the Board, the consequences of
that decision are his responsibility.
¶14 For the foregoing reasons, we find that the administrative judge correctly
dismissed this IRA appeal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS 5
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 appli cable 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.
5
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.
9
Please read carefully each of the three main possible choi ces 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 parti cular
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
10
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 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:
11
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 descri bed 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. 6 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).
6
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.
12
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.