Opinion

Josephine M Schiavone v. Department of the Army

Court: Merit Systems Protection Board
Filed: Aug 19, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.5%

holding that the Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation

How later courts described this case

holding that the Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation
stating that it is well established that the fact that an employee is faced with an unpleasant situation or that her choice is limited to two unattractive options does not make the employee’s decision any less voluntary

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOSEPHINE M. SCHIAVONE, DOCKET NUMBER

Appellant, PH-3322-20-0277-I-1

DEPARTMENT OF THE ARMY, DATE: August 19, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Joseph Padolsky , Esquire, Boston, Massachusetts, for the appellant.

Matthew J. Harris , Esquire, Concord, Massachusetts, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

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

dismissed her appeal 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 on an erroneous

interpretation of statute or regulation or the erroneous application of the law to

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 vacate the administrative judge’s finding that the appellant failed

to make a nonfrivolous allegation that she was the subject of a personnel

investigation as defined under 5 U.S.C. § 3322, we AFFIRM the initial decision.

On petition for review, the appellant argues for the first time that her

resignation was involuntary. Petition for Review (PFR) File, Tab 1 at 5-6. She

also argues for the first time that the Board has jurisdiction over her appeal

challenging the notation on her Standard Form 50 (SF-50) “Resignation-ILIA”

(resignation in lieu of an involuntary action) pursuant to 5 U.S.C. § 3322. 2 Id.

at 7. The agency has filed a response arguing that the appellant improperly raised

her involuntary resignation argument for the first time on review and did not

make a nonfrivolous allegation that her appeal was within the Board’s jurisdiction

pursuant to 5 U.S.C. 3322. PFR File, Tab 3 at 20-27.

The Board 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. See Banks v.

Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant has

Section 1140 of the National Defense Authorization Act for Fiscal Year 2017, Pub. L.

No. 114-328, signed into law on December 23, 2016, added 5 U.S.C. § 3322 to the U.S.

Code to grant Board appeal rights to former employees to challenge an agency’s

decision to place a notation of an adverse investigative or administrative finding in the

employee’s official personnel folder.

made no such showing regarding her new argument that her resignation was

involuntary and she provides no explanation why she did not raise this claim in

her initial appeal. PFR File, Tab 1 at 5-6; Initial Appeal File (IAF), Tab 1 at 3, 5.

In any event, the appellant’s argument on review that she resigned pending the

outcome of her proposed removal “so that she would not be adversely impacted in

her efforts to obtain employment with another Federal agency” and that she

would not have resigned if she had known that the agency would reference the

proposed removal on her SF-50 is unavailing. PFR File, Tab 1 at 6; see

Covington v. Department of Health & Human Services, 750 F.2d 937, 942 (Fed.

Cir. 1984) (stating that it is well established that the fact that an employee is

faced with an unpleasant situation or that her choice is limited to two unattractive

options does not make the employee’s decision any less voluntary).

Regarding the failure to respond to the administrative judge’s order to show

cause that her appeal was within the Board’s jurisdiction, the appellant simply

states that she was “under the mistaken impression that the deadline for opposing

the [a]gency’s motion to dismiss was Wednesday, July 8, 2020.” PFR File, Tab 1

at 4 n.1. The administrative judge granted the appellant’s motion for a 10-day

extension of the deadline to respond to the order to show cause and explicitly

stated that the new deadline to file a response was the first business day after

July 4, 2020, which was July 6, 2020. IAF, Tab 9 at 1. The appellant is

responsible for her representative’s failure to raise the involuntary resignation

claim on appeal or to file a jurisdictional response. See Sofio v. Internal Revenue

Service, 7 M.S.P.R. 667, 670 (1981) (stating that it is well settled that an

appellant is responsible for the errors and omissions of her chosen

representative).

Having reviewed the appellant’s arguments on appeal, we find that she has

provided no basis to find that she has made a nonfrivolous allegation 3 that the

A nonfrivolous allegation is an assertion that, if proven, could establish the matter at

issue. 5 C.F.R. § 1201.4(s).

Board has jurisdiction over her appeal. PFR File, Tab 1 at 4-7; see Maddox v.

Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985) (holding that the

Board’s jurisdiction is limited to those matters over which it has been given

jurisdiction by law, rule, or regulation). The appellant makes a conclusory

statement on review, without any supporting evidence or argument, that the Board

has jurisdiction over her challenge to the “Resignation-ILIA” notation on her

resignation SF-50 pursuant to 5 U.S.C. § 3322. PFR File, Tab 1 at 7.

We agree with the administrative judge that the appellant has failed to

make a nonfrivolous allegation that 5 U.S.C. § 3322 applies to her claim

challenging her resignation SF-50. IAF, Tab 10, Initial Decision (ID) at 2-4.

However, we vacate the administrative judge’s finding that the appellant failed to

make a nonfrivolous allegation that she was subject to a personnel investigation 4

because the appellant submitted evidence and argument that she resigned

following receipt of notice of proposed removal for unacceptable performance

under chapter 43. ID at 4; IAF, Tab 1 at 7-15. Instead, we find that the

appellant’s allegations demonstrate that she is challenging a notation on her

SF-50 regarding a proposed action and therefore she has not made a nonfrivolous

allegation that the agency made a permanent notation in her official personnel

record file regarding an adverse finding. See 5 U.S.C. § 3322(a). Because she

has not raised nonfrivolous allegations of Board jurisdiction, she is not entitled to

a jurisdictional hearing. See Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329

(1994).

The definition of a personnel investigation includes “an adverse personnel action as a

result of performance, misconduct, or for such cause as will promote the efficiency of

the service under chapter 43 or chapter 75.” 5 U.S.C. § 3222(e)(2).

NOTICE OF APPEAL RIGHTS 5

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

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:

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.

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. 6 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