Opinion

Tyrone McDowell v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jul 26, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TYRONE MCDOWELL, DOCKET NUMBER

Appellant, NY-3443-23-0024-I-1

DEPARTMENT OF VETERANS DATE: July 26, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Tyrone McDowell , Lockport, New York, pro se.

Justina L. Lillis , Esquire, Cheektowaga, New York, 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

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

dismissed this appeal concerning the assignment of duties for lack of jurisdiction

and for untimeliness. The appellant raises a whistleblower reprisal claim for the

first time on review. He asserts reasons for extending the filing deadline for any

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

such claim. 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. Except as expressly MODIFIED to

address the appellant’s new whistleblower reprisal claim, we AFFIRM the initial

decision to the extent that the administrative judge found the Board lacks

jurisdiction over the appeal. We VACATE as unnecessary the administrative

judge’s finding that the appeal was untimely filed.

¶2 The administrative judge found that the appellant did not raise a claim of

whistleblower reprisal. Initial Appeal File (IAF), Tab 12, Initial Decision (ID)

at 4. She concluded that, in any event, any such claim would be untimely filed.

ID at 5-6. The appellant asserts a whistleblower reprisal claim for the first time

on review. Petition for Review (PFR) File, Tab 3 at 7-9. Although he did not

make this claim below, we consider it here. The issue of Board jurisdiction is

always before the Board and may be raised by either party or sua sponte by an

administrative judge or the Board at any time during a Board proceeding. See

Engler v. Department of the Navy, 69 M.S.P.R. 109, 114 (1995). Nonetheless, we

find the appellant did not establish jurisdiction over his claims.

¶3 To establish jurisdiction over an individual right of action (IRA) appeal, an

appellant must have exhausted his administrative remedies before the Office of

Special Counsel (OSC) and make nonfrivolous allegations of the following:

(1) he made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or

engaged in protected activity as specified in 5 U.S.C. § 2302(b)(9)(A)(i), (B),

(C), or (D); and (2) the disclosure or protected activity was a contributing factor

in the agency’s decision to take or fail to take a personnel action as defined by

5 U.S.C. § 2302(a). 5 U.S.C. §§ 1214(a)(3), 1221; Salerno v. Department of the

Interior, 123 M.S.P.R. 230, ¶ 5 (2016). The substantive requirements of

exhaustion are met when an appellant has provided OSC with sufficient basis to

pursue an investigation. Chambers v. Department of Homeland Security,

2022 MSPB 8, ¶ 10. An appellant has not exhausted his administrative remedy

for purposes of an IRA appeal when his complaint to OSC alleged a prohibited

personnel practice, but not whistleblower reprisal. Davis v. Department of

Defense, 103 M.S.P.R. 516, ¶ 11 (2006); see Clemente v. Department of

Homeland Security, 101 M.S.P.R. 519, ¶ 13 (2006) (finding that a disclosure of

agency wrongdoing to OSC does not satisfy the exhaustion requirement).

¶4 The administrative judge issued a detailed order that set forth the

appellant’s burdens of proof at the jurisdictional and merits stages of an IRA

appeal and described the allegations and evidence he needed to submit. IAF,

Tab 4. In response, the appellant submitted a copy of his OSC complaint and his

correspondence with OSC. IAF, Tab 5 at 18-34, 37-38, 45-46, 49-61. The OSC

complaint reveals that he did not select the boxes for retaliation claims but did so

for “improper personnel actions” and “other” under the “other claims” category.

Id. at 20-21. He asserted to OSC that the assignment of certain duties violated

agency policy and merit systems principles. Id. at 30. The appellant also

submitted OSC’s August 22, 2022 letter closing out its investigation. IAF, Tab 1

at 7. In that letter, OSC advised the appellant that it had determined that it lacked

evidence that the assignment of the Controlled Substances Coordinator position

violated a law, rule, or regulation and concluded that agencies had wide

discretion to assign duties to employees. Id.

¶5 The appellant’s submissions to OSC do not mention whistleblowing, section

2302(b)(8)-(9), or reprisal for whistleblowing. IAF, Tab 5; see Davis,

103 M.S.P.R. 516, ¶ 11. Additionally, the appellant selected “no” on the Board’s

appeal form for whether he had filed a whistleblower complaint with OSC. IAF,

Tab 1 at 4, Tab 5 at 4. He asserted that his Board appeal had nothing to do with

whistleblower reprisal, discrimination, or a prior EEO complaint. IAF, Tab 5

at 4, Tab 8 at 9. In sum, we find that the appellant has not exhausted his

administrative remedy because he did not allege whistleblower reprisal before

OSC concerning the assignment of duties.

¶6 In view of our determination that the Board lacks jurisdiction over this

appeal, we vacate as unnecessary the administrative judge’s finding that the

appeal was untimely filed. ID at 5-6. Therefore, we do not address the

appellant’s new arguments and evidence requesting that the Board waive the time

limit. PFR File, Tab 3 at 10-16.

NOTICE OF APPEAL RIGHTS 2

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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

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.

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. 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).

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.

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