Jonathan Graham v. Department of the Army

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JONATHAN PIERRE GRAHAM, DOCKET NUMBER
Appellant, DC-1221-15-0661-W-3
v.
DEPARTMENT OF THE ARMY, DATE: May 4, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jonathan Pierre Graham, Garner, North Carolina, pro se.
Tamiesha C. Robinson-Asbery, Aberdeen Proving Ground, Maryland, for
the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 th e 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).
BACKGROUND
¶2 The appellant filed an IRA appeal in which he alleged that the agency
“released” him, “select[ing him] for termination,” in retaliation for disclosing
violations of law in connection with the agency’s failure to use “Skills
Knowledge and Ability” and for filing an equal employment opportunity (EEO)
complaint in May 2012 alleging age discrimination and the agency’s “failure to
follow the required laws of 5 USC.” Graham v. Department of the Army, MSPB
Docket No. DC-1221-15-0661-W-1, Initial Appeal File (IAF), Tab 1 at 5. He
requested a hearing. Id. at 2. With his appeal, the appellant enclosed a
Notification of Personnel Action, Standard Form 50, showing that he was
terminated from his Digital Systems Training Analyst position, effective
January 3, 2015, on the expiration of his 3-year term appointment. Id. at 7; IAF,
Tab 7 at 19. The agency cited “lack of funding” as its reason for not extending
the appellant’s appointment past the not-to-exceed date. IAF, Tab 7 at 24.
¶3 During adjudication, the appellant requested that the appeal be dismissed
pending the outcome of an investigation into matters he claimed were at issue in
3
the appeal, IAF, Tab 8, and, on that basis, the administrative judge dismissed the
appeal without prejudice, Graham v. Department of the Army, MSPB Docket
No. DC-1221-15-0661-W-1, Initial Decision at 1-3 (May 29, 2015). The
appellant timely refiled the appeal, Graham v. Department of the Army, MSPB
Docket No. DC-1221-15-0661-W-2, Appeal File, Tab 1, but, because the
investigation was still pending, the administrative judge again dismissed the
appeal without prejudice, Graham v. Department of the Army, MSPB Docket
No. DC-1221-15-0661-W-2, Initial Decision at 3 (Mar. 25, 2016).
¶4 After the appellant sought another continuance, Graham v. Department of
the Army, MSPB Docket No. DC-1221-15-0661-W-3, Appeal File (W-3 AF),
Tab 1, the administrative judge issued an Order on Jurisdiction and Proof
Requirements regarding the appellant’s IRA appeal, W-3 AF, Tab 3. After
reviewing the parties’ submissions, W-3 AF, Tabs 4-7, including the contents of
the complaint the appellant filed with Office of Special Counsel (OSC), W-3 AF,
Tab 6 at 24-32, and OSC’s close-out letter, id. at 33-34, the administrative judge
found that the appellant exhausted his remedy before OSC as to his allegation
that he received lower scores based on his evaluations after he disclosed to his
supervisors that he was not working for the individual who wrote his evaluation,
and that this disclosure was a factor in the agency’s deci sion to terminate him at
the expiration of his appointment, as was the EEO complaint he filed in
May 2012. W-3 AF, Tab 8, Initial Decision (ID) at 9. 2
2
The administrative judge found, however, that the appellant did not exhaust before
OSC: (1) his alleged disclosure to a management official that he would tell another
management official about all of the issues in the office; (2) his alleged disclosure t o
management officials that the agency violated Department of Defense and Department
of the Army policy by failing to follow the merit system principles in the process it
employed to retain some, but not all, similarly situated term employees; (3) his alle ged
disclosure regarding his attempts to recruit other employees to raise issues of age
discrimination; and (4) his alleged disclosures of theft and conspiracy within the work
environment, including statements made during the investigation into those alleg ations.
ID at 9-10.
4
¶5 The administrative judge found, however, that the appellant did not make a
protected disclosure that he exhausted before OSC. 3 ID at 11. The
administrative judge found that the appellant’s disclosures regarding age
discrimination are not protected disclosures, id., and that he did not
nonfrivolously allege that the agency violated a law, rule, or regulatio n when he
reported that he was given his mid-year evaluation by an individual who was not
his supervisor during the rating period because that person was the appellant’s
supervisor at the time of the evaluation, ID at 11-12. The administrative judge
further found that the appellant failed to nonfrivolously allege that the agency
retaliated against him for engaging in the EEO process because he did not allege
that he was thereby seeking redress as to remedying a violation of 5 U.S.C.
§ 2302(b)(8). 4 5 U.S.C. § 2302(b)(9)(A)(i); ID at 13-14. Therefore, the
administrative judge dismissed the IRA appeal for lack of jurisdiction. ID at 1,
15.
¶6 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded in opposition , PFR File, Tab 3.
ANALYSIS
¶7 On review, the appellant argues that he made protected disclosures in a
May 19, 2012 letter he wrote to a management official in which he reported that
a Team Lead had impersonated a military officer, committed time fraud, and
3
Notwithstanding this statement, it is clear that the administrative judge applied the
analysis appropriate at this jurisdictional stage of the proceeding to find that the
appellant failed to nonfrivolously allege that he made a prote cted disclosure. ID at 12;
Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001) (finding
that the Board has jurisdiction over an IRA appeal if the appellant has exhausted his or
her administrative remedies before 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).
4
Based on these findings, the administrative judge decided the case on the written
record without convening the requested hearing. ID at 14.
5
improperly used his Government credit card. PFR File, Tab 1 at 1; W-3 AF,
Tab 4, Subtab 4. Under 5 U.S.C. § 1214(a)(3), an employee is required to “seek
corrective action from [OSC] before seeking corrective action from the Board”
through an IRA appeal. Miller v. Federal Deposit Insurance Corporation,
122 M.S.P.R. 3, ¶ 6 (2014), aff’d, 626 F. App’x 261 (Fed. Cir. 2015). The
substantive requirements of exhaustion are 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. The Board’s jurisdiction over an
IRA appeal is limited to those issues that have been previously raised with OSC,
but appellants may give a more detailed account of their whistleblowing
activities before the Board than they did to OSC. Id. Appellants may
demonstrate exhaustion of their OSC remedies with evidence regarding their
initial OSC complaint and other communications with OSC concerning their
allegations. See Baldwin v. Department of Veterans Affairs, 113 M.S.P.R. 469,
¶ 8 (2010). Here, the appellant submitted only his original OSC complaint, IAF,
Tab 1 at 10-15, and OSC’s close-out letter. 5 Id. at 16-17. Our review of these
documents reveals that the appellant did not exhaust before OSC the matters he
now raises on petition for review. Because he did not exhaust his remedy as to
those claims, the Board lacks jurisdiction to consider them. Chambers,
2022 MSPB 8, ¶ 11.
¶8 Similarly, the appellant argues on review that the administrative judge
should have considered his claim that the agency falsely charged him with theft,
although he acknowledges that this matter was “not ruled on as a complaint.”
PFR File, Tab 1 at 4. The administrative judge properly declined to consider this
claim because the appellant failed to raise such allegations to OSC. Mason,
5
The appellant did submit below an earlier OSC complaint he filed in 2014 and OSC’s
close-out letter. W-3 AF, Tab 4, Subtab 1. The administrative judge found that the
appellant did not assert that he was seeking review of this complaint, and therefore she
did not consider it. ID at 8 n. 6. The appellant has not challenged that finding on
review and we see no reason to disturb it.
6
116 M.S.P.R. 135, ¶ 8; ID at 5 n.5. The appellant also argues on review that
“[n]ew evidence was not exhausted to the OSC but was submitted to this Court
[sic] for consideration . . . .” PFR File, Tab 1 at 3. The appellant has not
identified the “new evidence.” With his petition, he has submitted two
documents, but both were submitted below. Id. at 6-19, IAF, Tab 4, Subtabs 4,
8. Because these documents are a part of the record below, they do not
constitute new evidence. Meier v. Department of the Interior, 3 M.S.P.R. 247,
256 (1980).
¶9 The appellant argues for the first time on review that, in terminating him at
the end of his appointment, the agency violated the merit system principles. PFR
File, Tab 1 at 2. The Board 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). In any event,
even when an employee has established the Board’s jurisdiction over his IRA
appeal such that the merits of the agency’s action are adjudicated, the Board will
not consider any affirmative defenses. 5 C.F.R. § 1209.2(c); Corthell v.
Department of Homeland Security, 123 M.S.P.R. 417, ¶ 16 (2016). Here, as
noted, the appellant has failed to establish Board jurisdiction. 6
¶10 Finally, the appellant asserts on review that he is not a lawyer and cannot
afford one, suggesting presumably that, for that reason, he has bee n unable to
present his case in a more favorable light. PFR File, Tab 1 at 2. The
consideration the Board affords pro se litigants as they pursue their appeals does
not extend to a less strict interpretation of the law. Moreover, it is well
established that an appellant is responsible for the errors of his chosen
representative. Sofio v. Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981).
6
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.
7
NOTICE OF APPEAL RIGHTS 7
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.
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:
7
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.
8
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
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
9
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:
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
10
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. 8 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).
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.
8
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.
11
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.