Oliver Perry v. Department of Justice

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
OLIVER PERRY, DOCKET NUMBER
Appellant, DC-3443-22-0673-I-1
v.
DEPARTMENT OF JUSTICE, DATE: November 22, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Oliver Perry , Arnold, Maryland, pro se.
Evan Perlman , Esquire, Washington, D.C., 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 for lack of jurisdiction his appeal of the agency’s decision to rescind an
offer of employment. On petition for review, the appellant reargues that the
agency improperly initiated a background investigation while his security
clearance investigation was ongoing and subjected him to an employment practice
when it rescinded the tentative job offer. He also argues for the first time on
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
review that the agency made a suitability determination that violated 5 C.F.R.
§ 731.202(d). 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 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 argues for the first time on review that the agency’s
suitability determination violated 5 C.F.R. § 731.202(d). 2 Petition for Review
(PFR) File, Tab 6 at 5. Pursuant to the Office of Personnel Management’s
regulations, the Board has jurisdiction over certain matters involving suitability
for Federal employment. See Kazan v. Department of Justice, 112 M.S.P.R. 390,
¶ 6 (2009). Under 5 C.F.R. § 731.501(a), when an agency takes a “suitability
action” against a person, that person may appeal the action to the Board. Kazan,
112 M.S.P.R. 390, ¶ 6. A suitability action is distinct from a suitability
determination, the former constituting a cancellation of eligibility, a removal, a
2
The Board generally 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. Clay v. Department of the Army,
123 M.S.P.R. 245, ¶ 6 (2016). However, we have considered the appellant’s argument
to the extent it impacts the Board’s jurisdiction, which is always before the Board and
can be raised by the parties or sua sponte by the Board at any time. Ney v. Department
of Commerce, 115 M.S.P.R. 204, ¶ 7 (2010).
3
cancellation of reinstatement eligibility, or a debarment, and the latter
constituting the underlying decision that a person is suitable or not suitable for
employment in a covered position or with a particular agency. 5 C.F.R.
§§ 732.202, 731.203(a), 731.501(a); see Ricci v. Merit Systems Protection Board,
953 F.3d 753, 757 (Fed. Cir. 2020) (explaining the difference between suitability
determinations and actions). Only suitability actions are appealable to the Board,
suitability determinations are not. Kazan, 112 M.S.P.R. 390, ¶ 6 (citing 5 C.F.R.
§ 731.501(a)). A nonselection or cancellation of eligibility for a specific position
is not a suitability action even if it is based on the suitability criteria of 5 C.F.R.
§ 731.202. Kazan, 112 M.S.P.R. 390, ¶ 6; 5 C.F.R. § 731.203(b).
¶3 The rescission of a tentative offer of employment, as occurred here, also is
not a suitability action that is appealable to the Board. Ricci, 953 F.3d at 756-57.
There is no indication that the appellant was subject to anything other than a
nonselection for a specific position. IAF, Tab 10 at 14-15. The record is devoid
of evidence that the agency cancelled the appellant’s eligibility, removed him,
cancelled his reinstatement eligibility, or debarred him. Thus, he has not alleged
facts indicating that the agency subjected him to a suitability action. His claim
that the agency violated 5 C.F.R. § 731.202(d) does not provide a basis for
disturbing the administrative judge’s determination that the appellant failed to
establish jurisdiction over his appeal.
¶4 The appellant also filed a motion to dismiss the agency’s response to his
petition for review as untimely. PFR File, Tab 5. The agency’s response was due
on December 26, 2022, but was filed on December 27, 2022. PFR File, Tab 2
at 2, Tab 4. We find that the agency timely filed its response on the first workday
following the filing deadline, which fell on a holiday. PFR File, Tab 4; see
5 C.F.R. §§ 1201.23 (explaining that when the last day for filing falls on a
weekend or a Federal holiday, the filing period includes the first workday after
that date), 1201.114(e) (providing that a party must file a response to a petition
4
for review within 25 days of the date of service of the petition for review).
Accordingly, we deny the appellant’s motion.
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 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:
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.
5
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. 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
6
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
7
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. 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:
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.
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 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.
8
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.