Clarence Jackson v. Department of Defense

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CLARENCE J. JACKSON, DOCKET NUMBER

Appellant, DC-752S-21-0065-I-1

v.

DEPARTMENT OF DEFENSE, DATE: August 23, 2024

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Clarence J. Jackson , Rockville, Maryland, pro se.

Randy W. Stone , Falls Church, Virginia, 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.

REMAND ORDER

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

dismissed his challenge to a 14-day suspension for lack of jurisdiction. For the

reasons discussed below, we GRANT the appellant’s petition for review,

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

VACATE the initial decision, and REMAND the case to the regional office for

further adjudication in accordance with this Remand Order.

DISCUSSION OF ARGUMENTS ON REVIEW

In January 2020, the agency suspended the appellant from his Facilities

Manager position for 14 days, based on charges of failure to follow instructions

and lack of candor. Initial Appeal File (IAF), Tab 1 at 8, 13-14. In

November 2020, the appellant filed the instant appeal, alleging that his 14-day

suspension was the product of whistleblower retaliation. Id. at 4, 6. On his

initial appeal form, the appellant indicated that he had not yet filed a

whistleblower complaint with the Office of Special Counsel (OSC). Id. at 5.

The administrative judge issued orders explaining the Board’s

jurisdictional limitations, including some limitations involving individual right of

action (IRA) appeals, and instructing the appellant to meet his jurisdictional

burden. IAF, Tab 2 at 2-4, Tab 3 at 1-3. Over the following weeks, the appellant

twice requested additional time to respond, which the administrative judge

granted. IAF, Tabs 6-9. Within one of those requests, he attached a

September 2020 closeout letter from OSC, showing that he had filed a

whistleblower complaint regarding his 14-day suspension, despite the earlier

indication to the contrary. IAF, Tab 6 at 6. The appellant did not, however,

submit any other argument or evidence regarding his jurisdictional burden.

The administrative judge dismissed the appellant’s appeal, finding that he

failed to meet his burden of proving that the Board had jurisdiction over this

appeal. IAF, Tab 11, Initial Decision (ID). The appellant has filed a petition for

review, arguing that medical conditions interfered with his ability to obtain

representation and meet his jurisdictional burden. Petition for Review (PFR) File,

Tab 1.

3

The appellant’s 14-day suspension is not appealable under chapter 75.

The Board’s jurisdiction is not plenary; it is limited to those matters over

which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit

Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). An appellant must

prove jurisdiction by preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(A).

Suspensions of more than 14 days are within the Board’s jurisdiction under

5 U.S.C. §§ 7512(2) and 7513(d), however, a suspension of 14 days or fewer is

not an appealable action under those provisions. Lefavor v. Department of the

Navy, 115 M.S.P.R. 120, ¶ 5 (2010).

Here, evidence the appellant submitted shows that his suspension was

14 days. IAF, Tab 1 at 8, 10, 13. Therefore, we agree with the administrative

judge’s determination that the appellant failed to prove that his suspension is

appealable under chapter 75. ID at 2-3.

The appellant must be given an opportunity to establish jurisdiction over his

suspension in an IRA appeal.

Unlike chapter 75 appeals, IRA appeals are not limited to suspensions of a

certain duration. To establish the Board’s jurisdiction over an IRA appeal, an

appellant must have exhausted his administrative remedies before 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)(2)(A). 5 U.S.C.

§§ 1214(a)(3), 1221; Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5

(2016); see Yunus v. Department of Veterans Affairs , 242 F.3d 1367, 1371 (Fed.

Cir. 2001). For the reasons that follow, we find that this appeal must be

remanded to give the appellant an opportunity to meet that burden.

In her orders on jurisdiction, the administrative judge acknowledged that an

appellant may be able to establish jurisdiction in an IRA appeal involving a

4

14-day suspension, but neither provided the full jurisdictional burden of proof.

The first order generally described how the relevant whistleblower statutes

prohibit retaliation for protected disclosures and certain other protected activities.

IAF, Tab 2 at 3 (citing 5 U.S.C. § 2302(b)(8), (9)). The second order explained

that, if the appellant intended to bring an IRA appeal, additional information was

needed. IAF, Tab 3 at 1-2. In particular, the administrative judge noted that the

appellant’s initial pleading indicated that he had not filed a complaint with OSC,

but exhaustion of administrative remedies with OSC is a prerequisite to bringing

an IRA appeal before the Board. Id. at 2-3 (referencing IAF, Tab 1 at 5). The

administrative judge indicated that, if the appellant had filed a complaint with

OSC, he should submit a copy of the complaint and OSC’s closeout letter. Id.

at 3 n.4.

As mentioned above, the appellant did submit his OSC closeout letter in

one of his requests for a time extension. IAF, Tab 6 at 6-7. According to that

closeout letter, OSC had considered several alleged disclosures, along with

allegations that the agency retaliated by giving the appellant a low performance

rating and suspending him for 14 days. Id. at 6.

It is evident that, although the administrative judge considered and

approved the appellant’s request for a time extension, she overlooked the attached

OSC closeout letter. The administrative judge dismissed this appeal without

providing the appellant with his complete jurisdictional burden for an IRA appeal

or otherwise addressing his evidence of exhaustion with OSC. ID at 2-3.

Because the appellant provided proof of OSC exhaustion regarding a claim that

his 14-day suspension was retaliation for whistleblowing, but he was not

informed of his other jurisdictional requirements, remand is appropriate. See

Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir.

1985) (finding that an appellant must receive explicit information on what is

required to establish an appealable jurisdictional issue). We, therefore, need not

5

address the appellant’s arguments about his medical conditions interfering with

his ability to establish jurisdiction below.

ORDER

For the reasons discussed above, we REMAND this case to the regional

office for further adjudication in accordance with this Remand Order.

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.