John McDuffie v. Department of Homeland Security

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN MCDUFFIE, DOCKET NUMBER
Appellant, SF-3443-15-0659-I-1
v.
DEPARTMENT OF HOMELAND DATE: January 28, 2016
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Henry E. Leinen, Pacific Grove, California, for the appellant.
Kenneth Sogabe, San Francisco, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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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. See 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 appellant filed an appeal alleging that the agency committed a
prohibited personnel practice when it failed to restore him to his prior assignment
as a Supervisory Customs and Border Protection (CBP) Officer in Dublin,
Ireland. The record reflects that, from October 22, 2012, until December 14,
2013, the appellant was assigned to work in Dublin, Ireland, in the position of
Supervisory CBP Officer. Initial Appeal File (IAF), Tab 1. While stationed in
Ireland, the appellant was diagnosed with a form of Lymphoma. Upon obtaining
the diagnosis, the appellant was reassigned first to Washington, D.C., and then to
San Francisco, California, to obtain medical treatment. Id. After completing his
treatment, the appellant applied for a Supervisory CBP Officer position in Dublin,
Ireland, but was deemed ineligible because the agency requires employees to
work in the United States 5 years before returning to an overseas assignment.
IAF, Tab 3. On May 11, 2015, the appellant was medically cleared for worldwide
assignment, and on June 10, 2015, he was deemed fully fit for duty as a
Supervisory CBP Officer with no restrictions or limitations and he was ordered to
immediately report to the Port of San Francisco. IAF, Tab 1. The appellant filed
this appeal with the Board on June 26, 2015. Id.
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¶3 Because it appeared that the Board did not have jurisdiction over this
appeal, the administrative judge issued an acknowledgment order, which advised
the appellant of what was necessary to establish jurisdiction and it directed him to
provide evidence and argument proving Board jurisdiction. IAF, Tab 2. In
response, the appellant asserted that the Board has jurisdiction over the agency’s
prohibited personnel practice of failure to restore him to his prior assignment in
Dublin, Ireland, pursuant to 5 U.S.C. § 2302. IAF, Tab 6. The agency moved to
dismiss the appeal for lack of jurisdiction. IAF, Tab 5.
¶4 The administrative judge found that the agency’s nonselection or failure to
reassign is not an adverse action for which the Board has jurisdiction. IAF,
Tab 8, Initial Decision (ID) at 4. The administrative judge found further that,
without an otherwise appealable action, the Board does not have jurisdiction over
the appellant’s discrimination claim or his claim that he was subjected to a
prohibited personnel practice when the agency failed to restore him to his prior
duty station after his medical condition resolved. Id. Accordingly, the
administrative judge granted the agency’s motion and dismissed the appeal for
lack of jurisdiction. ID at 5.
¶5 On review, the appellant argues for the first time that he was entitled to be
returned to his assignment in Dublin under the Family and Medical Leave Act of
1993 (FMLA). Because the appellant has made no showing that this argument is
based on new and material evidence not previously available despite his due
diligence, we need not consider it. See Banks v. Department of the
Air Force, 4 M.S.P.R. 268, 271 (1980). 2
2
In any event, this argument does not provide a basis for disturbing the initial decision.
The Board adjudicates claims that an agency failed to comply with the terms of the
FMLA in leave-related disciplinary action appeals. Lua v. U.S. Postal Service,
87 M.S.P.R. 647, ¶ 12 (2001). The administrative judge properly found that the Board
lacks jurisdiction over the agency’s nonselection or failure to reassign. ID at 4. Thus,
no further action is required regarding the appellant’s FMLA claim. See Lua,
87 M.S.P.R. 647, ¶ 12.
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¶6 To the extent the appellant also reasserts his allegation that the agency
committed a prohibited personnel practice when it failed to restore him to his
prior duty station after his medical condition resolved, because the Board does
not have jurisdiction over the underlying claim, the Board has no jurisdiction to
adjudicate these remaining claims. See 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)
(stating 5 U.S.C. § 2302(b) is not an independent source of Board jurisdiction);
Penna v. U.S. Postal Service, 118 M.S.P.R. 355, ¶ 13 (2012) (finding that, in the
absence of an otherwise appealable action, the Board lacks jurisdiction over
claims of harmful error, prohibited personnel practices, and the agency’s alleged
failure to comply with regulations).
¶7 Finally, the appellant appears to challenge the administrative judge’s
finding that there is no evidence in the record that he sustained an on-the-job
compensable injury for which he might have restoration rights pursuant
to 5 U.S.C. § 8151 and 5 C.F.R. part 353. ID at 3 n.2. The appellant asserts that
because he was “involuntarily reassigned” for medical reasons, he is “under the
assumption that the illness was work related.” However, a “compensable injury”
is a medical condition accepted by the Office of Workers’ Compensation
Programs to be job-related and for which medical or monetary benefits are
payable from the Employees’ Compensation Fund. See Mobley v. U.S. Postal
Service, 86 M.S.P.R. 161, ¶ 6 (2000). To have any restoration rights under
5 C.F.R. part 353 based on a compensable injury, an individual must first
establish that he was “separated or furloughed from an appointment without time
limitation . . . as a result of a compensable injury.” 5 C.F.R. § 353.103(b). Thus,
the right of restoration applies only to those employees who suffer from a
compensable injury. Brooks v. U.S. Postal Service, 26 M.S.P.R. 217, 219 (1985).
In this case, there is no evidence that the appellant sustained an on-the-job
compensable injury for which he might have restoration rights pursuant
5
to 5 U.S.C. § 8151 and 5 C.F.R. part 353. Accordingly, the appellant has
provided no basis upon which to disturb the initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information 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, 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
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Circuit. The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.