Opinion

Sean J Gutterman v. Department of Treasury

Court: Merit Systems Protection Board
Filed: Aug 22, 2024
Status: Unpublished
Cited by: 0 cases

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SEAN J. GUTTERMAN, DOCKET NUMBER

Appellant, DE-315H-21-0056-I-1

DEPARTMENT OF THE TREASURY, DATE: August 22, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Sean J. Gutterman , Denver, Colorado, pro se.

Varvara E. Marmarinou , Esquire, San Francisco, California, 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 his probationary termination appeal for lack of jurisdiction. 2 On

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Prior to the filing of the instant appeal, the appellant had filed another appeal

challenging his termination. See Gutterman v. Department of the Treasury , MSPB

Docket No. DE-315H-20-0376-I-1. The administrative judge assigned to that case

dismissed the appeal for lack of jurisdiction. 0376 AF, Tab 6, Initial Decision. That

decision became the Board’s final decision on the matter on October 21, 2020, when

petition for review, the appellant argues the merits of his termination. 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).

The administrative judge correctly found that the appellant was not an

“employee” under 5 U.S.C. § 7511(a)(1)(A), and that he, therefore, did not have

chapter 75 appeal rights. Initial Appeal File (IAF), Tab 11, Initial Decision (ID)

at 4. She also correctly found that the appellant did not allege any of the

scenarios set forth in 5 C.F.R. §§ 315.805 and 315.806 that provide for a

regulatory right to appeal. Id. Accordingly, she appropriately dismissed the

appellant’s appeal for lack of jurisdiction. ID at 5. The appellant’s argument on

review concerning the merits of his termination does not provide a basis to

disturb the initial decision. See Sapla v. Department of the Navy , 118 M.S.P.R.

551, ¶ 7 (2012) (holding that an appellant’s arguments concerning the merits of

her appeal were not relevant to the question of jurisdiction); Rivera v. Department

of the Navy, 114 M.S.P.R. 52, ¶ 7 (2010) (same)

neither party filed a petition for review. Id. at 7; see 5 C.F.R. § 1201.113 (explaining

that an initial decision will become the Board’s final decision 35 days after issuance

when no petition for review is filed).

The appellant has also submitted as a supplement to his petition for review

documentary evidence regarding three separate periods of hospitalization—one in

August 2020, one in September and October 2020, and one in October and

November 2020. Petition for Review (PFR) File, Tab 3. These documents do not

appear to have been submitted into the record below. IAF, Tabs 1, 9-10.

Generally, the Board will not consider evidence submitted for the first time with a

petition for review absent a showing that it was unavailable before the record

closed before the administrative judge despite the party’s due diligence. See

Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 213-14 (1980). Here, the

documents all appear to have been issued by, at the latest, November 12, 2020.

PFR File, Tab 3. The appellant did not file the instant appeal until a week later,

on November 19, 2020. IAF, Tab 1. Thus, the documents submitted on review

were available below before the record closed, and the appellant has not

explained why he was unable to submit them then. PFR File, Tabs 3, 6.

Moreover, he has not explained how the documents are relevant to the question of

jurisdiction or are otherwise of sufficient weight to warrant an outcome different

than that of the initial decision, and thus, they do not provide a basis to grant the

petition for review. See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349

(1980) (stating that the Board generally will not grant a petition for review based

on new evidence absent a showing that it is of sufficient weight to warrant an

outcome different from that of the initial decision).

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

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.

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. 4 The court of appeals must receive your petition for

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,

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