James Humbert v. Department of Veterans Affairs

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES D. HUMBERT, DOCKET NUMBER
Appellant, SF-1221-16-0731-W-1
v.
DEPARTMENT OF VETERANS DATE: May 9, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
James D. Humbert, North Las Vegas, Nevada, pro se.
Matthew S. Voss, Esquire, North Las Vegas, Nevada, 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 erroneou s 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
BACKGROUND
¶2 Effective April 22, 2016, the agency terminated the appellant from his
position during his trial period based on his alleged unacceptable conduct and
behavior. Initial Appeal File (IAF), Tab 4 at 20, 22-23. The appellant filed an
appeal with the Board, alleging that the agency terminated him from his position
due to his protected activity, i.e., after he made complaints about other employees
and “Human Resources actions.” IAF, Tab 1 at 1-6.
¶3 The appellant’s appeal was docketed as an IRA appeal. IAF, Tab 2. The
administrative judge issued an acknowledgment order apprising the appellant of
the applicable law and burden of proof requirements for an IRA appeal and
ordering him to submit evidence and argument establishing Board jurisdiction
over his appeal. Id. The appellant did not respond to the administrative judge’s
order. The agency submitted a jurisdictional response and a motion to dismiss the
appeal, arguing that the appellant failed to meet his burden of proving Board
jurisdiction over his IRA appeal. IAF, Tabs 4-5. Alternatively, the agency
argued that, even if the appeal were to be considered as a direct challenge of his
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termination, it should be dismissed as untimely filed or for lack of Board
jurisdiction because the appellant was a preference eligible in an excepted service
position, serving in a trial appointment at the time of his termination, and not an
“employee” with Board appeal rights under 5 U.S.C. § 7511. IAF, Tab 4 at 5-6
n.1. The appellant did not respond to the agency’s motion to dismiss.
¶4 The administrative judge issued an initial decision without holding the
appellant’s requested hearing, in which he dismissed the IRA appeal for a lack of
Board jurisdiction. IAF, Tab 6, Initial Decision (ID). The appellant filed a
petition for review, and the agency filed a response. Petition for Review (PFR)
File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly found that the appellant failed to establish
Board jurisdiction over his IRA appeal.
¶5 The Board has jurisdiction over an IRA appeal if the appellant has
exhausted his 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. Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 25 (2013).
Under 5 U.S.C. § 1214(a)(3), administrative remedies must be exhausted by
seeking corrective action from OSC before seeking corrective action from the
Board. 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 purpose of the
exhaustion requirement is to give OSC the opportunity to take corrective action
before involving the Board in the case. Id. An appellant may demonstrate
exhaustion through an initial OSC complaint or correspondence with OSC. Id.,
¶ 11. Exhaustion may also be proved through other sufficiently reliable evidence,
such as an affidavit or declaration attesting that the appellant raised with OSC the
4
substance of the facts in the Board appeal. Id. The appellant must prove
exhaustion with OSC by preponderant evidence, not just nonfrivolous allegations.
Id.
¶6 Here, the administrative judge’s acknowledgment order notified the
appellant as to how to meet the jurisdictional requirements for an IRA appeal and
ordered him to file evidence and argument sufficient to establish that he met those
requirements. IAF, Tab 2 at 2-9. The appellant did not submit anything in
response to the administrative judge’s order and has not provided any additional
evidence on review to demonstrate that he has exhausted his remedies before
OSC. With his initial appeal, the appellant submitted a July 2016 letter from
OSC in which OSC acknowledged the appellant’s allegation that the agency
terminated him for his complaints “about employees and human resources
actions” but indicated that he had not provided OSC with copies of such
complaints or any information about their substance. IAF, Tab 1 at 29. Absent
any additional evidence of exhaustion, we find that the appellant fail ed to
establish that he provided OSC with a sufficient basis to pursue an investigation.
We therefore agree with the administrative judge that the appellant failed to prove
exhaustion by preponderant evidence. Accordingly, we affirm the dismissal of
the appellant’s IRA appeal for lack of jurisdiction. 2
We do not consider in this appeal the appellant’s arguments raised for the first
time on review.
¶7 The appellant argues for the first time on review that he was not serving in
a probationary or trial appointment at the time of his termination and that he was
an “employee” with Board appeal rights as defined by 5 U.S.C. § 7511. PFR File,
Tab 1 at 3. The appellant also appears to argue for the first time on review that
2
Because we find that the appellant failed to exhaust his administrative remedies with
OSC, we need not consider the administrative judge’s finding that the appellant failed
to nonfrivolously allege that his disclosure to OSC was a contributing factor in the
agency’s decision to terminate him. ID at 9.
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his termination was based on preappointment reasons and taken without proper
procedures. Id.¶8 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); 5 C.F.R. § 1201.115(d). The
appellant fails to make this showing. If the appellant wishes to pursue his claim
that he was an “employee” with Board appeal rights or that the agency terminated
him for preappointment reasons without following the required procedures, he
should file a separate appeal.
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 Mer it
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
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 matter.
6
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 partic ular
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
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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
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
8
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 2 302(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
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:
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 Appeal s
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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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.