Al Evans v. Department of Homeland Security

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AL J. EVANS, JR., DOCKET NUMBER
Appellant, DA-1221-22-0097-W-1
v.
DEPARTMENT OF HOMELAND DATE: November 29, 2023
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Al J. Evans, Jr. , Frisco, Texas, pro se.
Teena Mathew Makil , Esquire, Irving, Texas, 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
denied corrective action in his individual right of action (IRA) appeal. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 On review, the appellant reasserts many of the same arguments that he made
before the administrative judge. Petition for Review (PFR) File, Tab 1 at 5-12.
He also asserts the following: (1) the Board should consider new and material
evidence submitted with his petition for review; (2) the administrative judge
failed to consider his claim that his supervisor threatened to remove him in
retaliation for engaging in protected activity; (3) the administrative judge erred in
requiring the appellant to prove that the agency officials responsible for taking
the personnel actions had knowledge of his protected activity; (4) the
administrative judge failed to consider the appellant’s claims under 5 U.S.C.
§ 2302(b)(4) and (b)(8); and (5) the administrative judge erred in denying the
appellant’s request for subpoenas and his motion to compel the agency to provide
further discovery responses. Id.¶3 First, we consider the document submitted with the appellant’s petition for
review. PFR File, Tab 2 at 4-11. The document is dated June 4, 2021, more than
6 months before the appellant filed his initial appeal. Initial Appeal File (IAF),
Tab 1; PFR File, Tab 2 at 4. The appellant has not explained why the information
was not available to him prior to the close of the record despite his due diligence,
and we therefore find that it does not constitute new and material evidence. PFR
3
File, Tab 1 at 6; see Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 213-14
(1980) (stating that the Board generally will not consider evidence submitted for
the first time with a petition for review absent a showing that it was unavailable
before the record was closed before the administrative judge despite the party’s
due diligence); 5 C.F.R. § 1201.115(d).
¶4 Second, we agree with the administrative judge’s finding that the appellant
did not exhaust with the Office of Special Counsel (OSC) his claim that his
supervisor threatened to remove him in retaliation for engaging in protected
activity, and the Board therefore lacks jurisdiction to address it. IAF, Tab 10
at 4, Tab 14 at 1-2; see Mason v. Department of Homeland Security , 116 M.S.P.R.
135, ¶ 8 (2011) (stating that, in an IRA appeal, the Board may only consider
personnel actions that the appellant raised before OSC). The appellant has not
shown that he provided OSC with sufficient basis to pursue an investigation into
such an issue. See Chambers v. Department of Homeland Security, 2022 MSPB
8, ¶¶ 10-11.
¶5 Third, we consider the appellant’s argument that the administrative judge
applied an incorrect legal standard, requiring him to prove that the management
officials he accused of retaliation had knowledge of his protected activity. PFR
File, Tab 1 at 6-7. The appellant has misconstrued the administrative judge’s
findings. Although she considered that the appellant did not prove that the
responsible management officials had knowledge of his protected activity as one
factor, she concluded that, based on the entire record, the appellant failed to show
by circumstantial evidence that his protected activity was a contributing factor to
the personnel actions. IAF, Tab 26, Initial Decision (ID) at 8-16. She considered
that the agency’s explanations for taking the personnel actions were strong and
that the officials did not have motive to retaliate against the appellant. ID
at 9-16; see Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶ 15 (2012)
(explaining that if the appellant fails to meet the knowledge/timing test, the
administrative judge shall consider other evidence such as the strength or
4
weakness of the agency’s reasons for taking the personnel action, whether the
whistleblowing was personally directed at the proposing or deciding officials, and
whether these individuals had a desire or motive to retaliate against the
appellant). We find that the administrative judge applied the correct legal
standard, and we agree with her conclusion that the appellant failed to prove that
his protected activity was a contributing factor to the personnel actions.
¶6 Fourth, the appellant argues that the law that “should apply” to his appeal is
5 U.S.C. § 2302(b)(4) and (b)(8). PFR File, Tab 1 at 6-7. To the extent the
appellant is asking the Board to review a claim that the agency violated 5 U.S.C.
§ 2302(b)(4) by obstructing his right to compete for employment in March 2018,
before he engaged in protected activity, the Board lacks jurisdiction to hear such
a claim. See Schmidt v. Department of the Interior , 153 F.3d 1348, 1356 (Fed.
Cir. 1998) (“Section 2302(b)(4) cannot establish Board jurisdiction because
§ 2302(b) is not an independent source of appellate jurisdiction and does not by
itself authorize an appeal to the Board.”). To the extent the appellant is arguing
that his complaints to the Office of Inspector General (OIG) are protected
disclosures under § 2302(b)(8) because he was disclosing a violation of
§ 2302(b)(4), we find that it is unnecessary to resolve whether complaints, which
the administrative judge found were protected under § 2302(b)(9), are also
covered by § 2302(b)(8) because, in any event, we agree with the administrative
judge’s finding that the appellant failed to prove that his OIG complaints were a
contributing factor to the personnel actions. ID at 8-16.
¶7 Finally, we consider the appellant’s argument that the administrative judge
erred in denying his motion to compel and request for subpoenas. PFR File,
Tab 1 at 7. The Board will not reverse an administrative judge’s rulings on
discovery matters absent an abuse of discretion. Wagner v. Environmental
Protection Agency, 54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d 1236 (Fed. Cir.
1993) (Table). The appellant has not established that the administrative judge
abused her discretion in denying the appellant’s motion to compel and request for
5
subpoenas, which were not timely filed in accordance with 5 C.F.R.
§ 1201.73(d)(3). IAF, Tab 20; see Pumphrey v. Department of Defense,
122 M.S.P.R. 186, ¶ 15 (2015) (finding the administrative judge did not abuse her
discretion in denying an untimely motion to compel). Insofar as the appellant
alleges that the agency failed to turn over relevant documents in addition to the
categories of information identified in his motion to compel, i.e., attendance at
the Integrity Briefing meeting, PFR File, Tab 1 at 10, we find that he has failed to
preserve that objection for review, IAF, Tab 16 at 4-14; see Szejner v. Office of
Personnel Management, 99 M.S.P.R. 275, ¶ 5 (2005) (stating that an appellant is
precluded from raising a discovery issue for the first time on review), aff’d,
167 F. App’x 217 (Fed. Cir. 2006). Based on the foregoing, we deny the petition
for review and affirm the initial decision.
NOTICE OF APPEAL RIGHTS 2
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
2
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 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
7
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 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. 3 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
3
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.
9
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.