May Duong v. Department of the Treasury

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MAY DUONG, DOCKET NUMBER
Appellant, PH-752S-17-0143-I-1
v.
DEPARTMENT OF THE TREASURY, DATE: June 22, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
May Duong, Philadelphia, Pennsylvania, pro se.
Ariya McGrew, Esquire, and Jael Dumornay, Esquire, New York, New
York, 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 the appeal without a hearing 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; the initial decision is based
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
¶2 The appellant filed a Board appeal after the agency suspended her without
pay from the position of Mail Clerk, GS-0305-04, for 44 hours, effective
September 19, 2016. Initial Appeal File (IAF), Tab 1 at 1-2, Tab 7 at 28, 30,
34-36. The administrative judge issued a jurisdictional notice in the
acknowledgment order informing the appellant that the Board generally lacks
jurisdiction over appeals of suspensions of 14 days or less and that her suspension
might not be within the Board’s jurisdiction. 2 IAF, Tab 2 at 3-4. The
administrative judge explained exceptions to the general rule regarding Board
jurisdiction over suspensions of 14 days or less, e.g., when an appellant has
alleged in an individual right of action (IRA) appeal that she was suspended in
retaliation for activities protected under 5 U.S.C. § 2302(b)(8) or 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D). Id. at 3. He explained that the appellant
2
The acknowledgment order also included a notice on timeliness, to which the
administrative judge ordered the appellant to respond. IAF, Tab 2 at 2. The appeal was
filed on January 11, 2017, and thus appears to have been untimely filed. IAF, Tab 1
at 10; see 5 C.F.R. § 1201.22(b). The administrative judge did not reach the issue of
timeliness, though, because the appellant failed to establish the Board’s jurisdiction
over the appeal. IAF, Tab 13, Initial Decision at 2 n.1.
3
bore the burden of proof on the issue of jurisdiction and afforded her an
opportunity to file evidence and argument establishing the Board’s jurisdiction.
Id. at 4. He also gave the agency an opportunity to respond. Id. The appellant
filed a response and a separate request for additional time in which to conduct
discovery as to the jurisdictional issues. 3 IAF, Tabs 4-5.
¶3 The administrative judge issued a subsequent order to show cause, in which
he gave the appellant additional information regarding her jurisdictional burden,
including information about establishing the Board’s jurisdiction in an IRA
appeal. IAF, Tab 6 at 2-3. He ordered her to show cause in writing as to why her
appeal should not be dismissed. Id. at 3. He ordered the agency to respond as
well. Id. at 3-4. He also stayed the agency’s requirement to submit an agency
file and to respond to discovery requests until he could resolve the question of
whether the appellant had exhausted her administrative remedies by first filing a
complaint with the Office of Special Counsel (OSC) before filing an IRA appeal.
Id. at 3. The administrative judge received responses from both the agency and
the appellant before the record closed. 4 IAF, Tabs 7-8, 10. The administrative
judge then issued the initial decision. IAF, Tab 13, Initial Decision (ID).
¶4 The administrative judge found that the Board lacks jurisdiction over the
appeal because the appellant’s suspension did not exceed 14 days in length and
she failed to nonfrivolously allege any other basis for the Board’s jurisdiction.
ID at 3-4. The administrative judge found that the appellant had submitted no
evidence in support of her assertion that she had exhausted her remedies with
OSC, the preliminary step in establishing the Board’s jurisdiction over an IRA
appeal. ID at 3; IAF, Tab 10 at 8; see 5 U.S.C. § 1214(a)(3). Accordingly, the
3
The administrative judge denied the request, finding that discovery was not necessary
to address the threshold jurisdictional issues. IAF, Tab 6 at 4.
4
The agency moved for time in which to reply to the appellant’s response, which she
filed the day that the record closed. IAF, Tabs 10, 12. The administrative judge found
that dismissal of the appeal for lack of jurisdiction mooted the agency’s motion. IAF,
Tab 13, Initial Decision at 2 n.3.
4
administrative judge dismissed the appeal for lack of Board jurisdiction . ID at 4.
The appellant has filed a petition for review. Petition for Review (PFR) File,
Tab 1.
¶5 The petition for review largely addresses the appellant’s arguments on the
merits of the suspension action. Id. at 3-13. The appellant argues that the
agency’s allegations of misconduct were false, the agency violated her right to
due process or committed harmful error, and the agency suspended her in
retaliation for filing equal employment opportunity (EEO) and OSC complaints
and for reporting a health issue in the workplace, namely an infestation of insects.
Id. She also asserts that the administrative judge did not analyze the evidence
carefully and erred by not holding a hearing. Id. at 6, 10, 13.
¶6 The appellant’s arguments on review almost exclusively address the merits
of the suspension action and the affirmative defenses she alleges. She has not
alleged, however, any basis for the Board’s jurisdiction. The Board’s jurisdiction
is limited to those actions that are made appealable to it by law, rule, or
regulation. Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir.
1985); see 5 U.S.C. § 7701(a). The appellant bears the burden of proof on the
issue of jurisdiction. 5 C.F.R. §§ 1201.56(b)(2)(i)(A), 1201.57(b). The
administrative judge, after providing notice of the jurisdictional issues before
him, appropriately dismissed the appeal for lack of jurisdiction. See Burgess v.
Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). A
suspension of 14 days or fewer is not an appealable adverse action. See 5 U.S.C.
§ 7512(2); Lefavor v. Department of the Navy, 115 M.S.P.R. 120, ¶ 5 (2010). The
Board likewise lacks jurisdiction over any issues related to retaliation for EEO
activities because prohibited personnel practices under 5 U.S.C. § 2302(b) are not
independent sources of Board jurisdiction. 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). As for her
contention that the Board has jurisdiction over her appeal because the suspension
was in retaliation for protected activity under 5 U.S.C. § 2302(b)(9), the appellant
5
failed to demonstrate that she exhausted her administrative remedies with OSC.
Proof of exhaustion is the first element in establishing the Board’s jurisdiction in
an IRA appeal. 5 U.S.C. § 1214(a)(3); Carney v. Department of Veterans Affairs,
121 M.S.P.R. 446, ¶ 4 (2014). 5
¶7 The petition for review includes several attached documents that predate the
close of the record. Some of these documents pertain to the appellant’s efforts to
file an EEO complaint. PFR File, Tab 1 at 16-28. Others pertain to the agency’s
decision to suspend the appellant. Id. at 35-41. Additionally, the appellant
included a print-out of an internet form for creating an account with OSC. Id.
at 30-31. She also provided an email message from OSC dated December 1,
2016, which states in relevant part:
This is to notify you that your electronic complaint has been received
by OSC’s E-Filing System. . . .
This also serves to notify you of your file number, which is
MA-17-0990. If you wish to send additional information or
documents concerning this complaint, please identify this file
number on each of your submissions.
Id. at 32.
¶8 Under 5 C.F.R. § 1201.115(d), the Board will not consider evidence
submitted for the first time with the petition for review absent a showing that it
was unavailable before the record was closed despite the party’s due diligence.
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). The Board likewise
will not grant a petition for review based on new evidence absent a showing that
it is of sufficient weight to warrant an outcome different from that of the initial
decision. Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980). All of
the documents submitted with the petition for review predate the close of the
record, and the appellant has not alleged that they were unavailable to her before
5
We have reviewed the relevant legislation amending the whistleblower protection
statutory scheme enacted during the pendency of this appeal and have concluded that it
does not affect the outcome of the appeal.
6
that time. These documents also are not of sufficient weight to warrant an
outcome different from that of the initial decision. Except for the items
pertaining to OSC, none of these documents address the jurisdictional issues upon
which the administrative judge decided this appeal.
¶9 As for the submissions related to OSC, the Board, in Chambers v.
Department of Homeland Security, 2022 MSPB 8, ¶¶ 10-11, clarified the
substantive requirements of IRA exhaustion. The requirements are met when an
appellant has provided OSC with a sufficient basis to pursue an investigation.
The Board’s jurisdiction is limited to those issues that previously have been
raised with OSC. However, appellants may give a more detailed account of the ir
whistleblowing activities before the Board than they did to OSC. Appellants may
demonstrate exhaustion through their initial OSC complaint, evidence that they
amended the original complaint, including but not limited to OSC’s determination
letter and other letters from OSC referencing any amended allegations, and their
written responses to OSC referencing the amended allegations. Appellants also
may establish exhaustion through other sufficiently reliable evidence, such as an
affidavit or a declaration attesting that they raised with OSC the substance of the
facts in the Board appeal. Id.¶10 The appellant did not submit a copy of her OSC complaint or other
correspondence with that agency. The documents she did submit show only that
she created an online account with OSC and filed a complaint. PFR File, Tab 1
at 30-33. They do not address the particular matters she reported to OSC.
Accordingly, we conclude that the documents not only predate the close of the
record, but they also fail to meet the Board’s standard for materiality, and we will
not consider them.
7
NOTICE OF APPEAL RIGHTS 6
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 o ption 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 cour t at the
following address:
6
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.usc ourts.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. 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
9
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 a ny court of appeals of
competent jurisdiction. 7 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.
7
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.