Opinion

Candice Brown v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jul 2, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.2%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CANDICE BROWN, DOCKET NUMBER

Appellant, DC-3443-20-0567-I-1

DEPARTMENT OF VETERANS DATE: July 2, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Candice Brown , Largo, Maryland, pro se.

Darryl Joe , Esquire, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed her appeal for lack of jurisdiction without holding a hearing.

Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of material fact;

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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).

On petition for review, the appellant argues that the agency wrongfully

denied her leave requests, charged her with being absent without leave (AWOL),

required her to work without reasonable accommodations, and administered such

disciplinary actions as a reprimand and verbal counseling. 2 Petition for Review

(PFR) File, Tab 1 at 5. She appears to allege for the first time on review that, in

denying her leave requests and placing her in an AWOL status, the agency

subjected her to a constructive suspension. Id. at 4.

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

The appellant also appears to have challenged the alleged reprimand below. Initial

Appeal File (IAF), Tab 1 at 5. Specifically, she argued that, in denying her leave

requests, the agency committed harmful procedural error and caused her to receive a

letter of reprimand. Id. The appellant’s assertions that she was subjected to a

reprimand and verbal counseling provide no basis for disturbing the administrative

judge’s finding that the Board lacks jurisdiction over the appellant’s assertions. IAF,

Tab 7, Initial Decision at 3-4; see 5 C.F.R. § 1201.3 (identifying the subject matters

over which the Board has jurisdiction). Moreover, to the extent the appellant is alleging

that the agency failed to provide her with a reasonable accommodation and committed

harmful procedural error, absent jurisdiction over the appeal, the Board lacks

jurisdiction to consider any such allegations. See Penna v. U.S. Postal Service,

118 M.S.P.R. 355, ¶ 13 (2012).

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, the issue of the

Board’s jurisdiction is always before the Board and may be raised by either party

or sua sponte by the Board at any time during a Board proceeding. Simnitt v.

Department of Veterans Affairs, 113 M.S.P.R. 313, ¶ 5 (2010). Accordingly,

because it is jurisdictional in nature, we will consider the appellant’s allegation

that the agency constructively suspended her.

To be appealable to the Board, a suspension—constructive or otherwise—

must be for more than 14 days. See 5 U.S.C. § 7512; Lefavor v. Department of

the Navy, 115 M.S.P.R. 120, ¶ 5 (2010); Giannetto v. Department of

Transportation, 109 M.S.P.R. 522, ¶ 5 (2008) (finding that, to be appealable, a

constructive suspension must have exceeded 14 days). On review, the appellant

argues that her case “should be treated as a suspension of 14 days or more”

because “[t]hat is the duration of time [she is] alleging the various periods of

leave and improper AWOL were involuntary.” PFR File, Tab 1 at 4. However,

she does not specify the dates and time period during which she was purportedly

denied leave and placed on AWOL. The appellant’s vague and unsupported

allegation does not constitute a nonfrivolous allegation that the Board has

jurisdiction over her appeal as a suspension, constructive or otherwise. 3 Initial

Appeal File (IAF), Tab 7, Initial Decision (ID) at 3-4; see Liu v. Department of

Agriculture, 106 M.S.P.R. 178, ¶ 8 (2007) (stating that mere pro forma

allegations are insufficient to satisfy this nonfrivolous standard); 5 C.F.R.

§ 1201.4(s)(1) (providing that an allegation generally will be considered

nonfrivolous when, among other things, it is more than conclusory).

Even taking the pro forma assertion as true, the appellant would still not necessarily

satisfy the Board’s jurisdiction if her suspension were only for 14 days, rather than for

more than 14 days. See 5 U.S.C. § 7512; Alves v. U.S. Postal Service, 95 M.S.P.R. 587,

¶ 8 (2004) (upholding the administrative judge’s finding that the Board lacked

jurisdiction over any enforced leave in the appellant’s appeals because she did not

allege that the “suspension” exceeded 14 days).

On review, the appellant also indicates that she did not respond to the

administrative judge’s acknowledgment order due to stress and medical issues

and because emails from the Board were routed to her spam folder. PFR File,

Tab 1 at 4. She requests that the Board deny the agency’s motion to stay

discovery, which the administrative judge found moot in light of her

jurisdictional determination. Id. at 5-6; IAF, Tab 5; ID at 4 n.1.

As an e-filer, the appellant was required by regulation to ensure that emails

from @mspb.gov were not blocked by filters and to monitor her case at e-Appeal

to ensure she received all case-related documents. See 5 C.F.R.

§ 1201.14(j)(2)-(3) (2020). Thus, her argument that the Board’s emails were

routed to her spam folder does not provide a basis for review. To the extent the

appellant is alleging that she was improperly denied discovery by the

administrative judge, the record reflects that the administrative judge’s

acknowledgment order clearly apprised the parties of the availability of

discovery, the Board’s guidelines for engaging in discovery, and where to find the

applicable regulations. IAF, Tab 2 at 4. The Board has held that, when an

appellant has received specific notice of the Board’s discovery procedures, but

fails to comply with those procedures and, if necessary, to file a motion to

compel, she has failed to exercise due diligence. See Buscher v. U.S. Postal

Service, 69 M.S.P.R. 204, 210 (1995); Head v. Office of Personnel Management,

53 M.S.P.R. 421, 422 (1992) (explaining that, absent a motion to compel, the

appellant failed to exercise due diligence in pursuing discovery). Therefore, we

find that the appellant has shown no error in this regard.

NOTICE OF APPEAL RIGHTS 4

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

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.

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:

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

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

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. 5 The court of appeals must receive your

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

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