Opinion

Neri Tawfiq v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Aug 27, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

NERI MANASSAH HAMID TAWFIQ, DOCKET NUMBER

Appellant, CH-315H-21-0233-I-1

DEPARTMENT OF VETERANS DATE: August 27, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Neri Manassah Hamid Tawfiq , Saginaw, Michigan, pro se.

Gregory White , Esquire, Detroit, Michigan, 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. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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). We FORWARD his newly raised claim of

discrimination based on his status as a veteran to the regional office for docketing

as a new appeal under the Uniformed Services Employment and Reemployment

Rights Act (USERRA).

BACKGROUND

The appellant was appointed to a Staff Pharmacist position in the excepted

service on November 22, 2020, subject to the completion of a 1-year probationary

period. Initial Appeal File (IAF), Tab 7 at 45, 47. On March 23, 2021, the

agency terminated the appellant during his probationary period due to conduct

issues. IAF, Tab 2 at 1-3, Tab 7 at 26, 28-31. The appellant subsequently filed a

Board appeal alleging that the termination was based on false accusations and

discrimination based on race and color. IAF, Tab 1 at 6. Although the appellant

claimed that he was in the competitive service, the administrative judge noted that

it appeared he was hired in the excepted service, informed the appellant of how to

establish jurisdiction over his probationary termination accordingly, and ordered

him to file evidence and argument establishing a nonfrivolous allegation of Board

jurisdiction. IAF, Tab 1 at 1, Tab 6 at 1-7. The appellant did not respond to this

jurisdictional order.

The administrative judge subsequently issued an initial decision dismissing

the appeal for lack of jurisdiction. IAF, Tab 11, Initial Decision (ID) at 1.

Specifically, the administrative judge found that the appellant was in a

probationary period and had not completed the current continuous service

requisite for Board jurisdiction. ID at 2-4. She further found that the appellant

did not allege that his termination was for preappointment reasons or that his

termination was procedurally deficient. ID at 3-4. Finally, the administrative

judge found that, absent an otherwise appealable action, the Board lacked

jurisdiction over the appellant’s claims of discrimination. ID at 4.

The appellant has filed a petition for review, generally arguing the merits

of the agency’s termination action and reraising his discrimination claims.

Petition for Review (PFR) File, Tab 1 at 4-5. He additionally attaches new

evidence on review, including a hotline complaint to the agency’s Office of

Inspector General and various emails regarding his termination. Id. at 6-27. The

agency has responded to the petition for review. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge found that the appellant failed to establish that he

was an “employee” for purposes of Board jurisdiction over adverse actions under

5 U.S.C. chapter 75. ID at 2-4. The appellant does not challenge this finding on

review, and we decline to disturb it. A preference-eligible individual in the

excepted service is an employee for purposes of Board jurisdiction only if he has

completed 1 year of current continuous service in the same or similar positions.

5 U.S.C. § 7511(a)(1)(B); Allen v. Department of the Navy, 102 M.S.P.R. 302,

¶¶ 7-9 (2006). The appellant asserted that he is a preference-eligible veteran, and

the record reflects that his veteran status renders him a preference eligible.

5 U.S.C. § 2108(3); IAF, Tab 1 at 1, 6, Tab 7 at 26, 45. Nonetheless, the

appellant worked for the agency for only 4 months before he was terminated.

IAF, Tab 7 at 26-28, 47. On his appeal form, the appellant claimed to have

2 years and 2 months of Government service. IAF, Tab 1 at 1. However, he has

not further explained this bare assertion, and he has failed to allege any facts

about any prior civilian service that, if proven, could establish that he had

completed 1 year of current continuous service in the same or similar positions.

5 C.F.R. § 1201.4(s) (defining a nonfrivolous allegation as an assertion that, if

proven, could establish the matter at issue). Thus, we find no basis to disturb the

administrative judge’s conclusion that the appellant failed to make a nonfrivolous

allegation that he was an “employee” with Board appeal rights under 5 U.S.C.

chapter 75. See 5 U.S.C. § 7511(a)(1)(B); Allen, 102 M.S.P.R. 302, ¶ 9.

The appellant challenges the merits of the agency’s termination, arguing

that it was unlawful and based on false accusations, and that the agency failed to

investigate the truth of any accusations. PFR File, Tab 1 at 4-5. These arguments

pertain to the merits of the agency’s action and do not address the jurisdictional

issue. The Board must first resolve the threshold issue of jurisdiction before

proceeding to the merits of an appeal. Barrand v. Department of Veterans

Affairs, 112 M.S.P.R. 210, ¶ 11 (2009). The appellant additionally argues that the

removal was discriminatorily based on race and color, and that the agency created

a hostile work environment. PFR File, Tab 1 at 4-5. It is well established,

however, that the Board lacks jurisdiction to hear claims of discrimination absent

an otherwise appealable action. Wren v. Department of the Army, 2 M.S.P.R. 1, 2

(1980), aff’d, 681 F.2d 867 (D.C. Cir. 1982).

In sum, we find that the administrative judge properly dismissed the

appellant’s appeal for lack of jurisdiction. However, for the first time on review,

the appellant appears to assert that his termination was discrimination based on

his status as a veteran, which could be a violation of USERRA. 2 PFR File, Tab 1

The appellant referenced being a disabled veteran in his initial appeal, but he made no

allegation that the termination was based on his status as a veteran sufficient to prompt

the administrative judge to address the issue. IAF, Tab 1 at 6.

at 4-5, 7; see 38 U.S.C. § 4311(a). The Board applies a liberal approach to

USERRA jurisdiction, and an appellant need only allege that (1) he served in the

military, (2) he was denied initial employment, reemployment, retention in

employment, promotion, or a benefit of employment, and (3) the denial was due

to his service in the military. Beck v. Department of the Navy, 120 M.S.P.R. 504,

¶ 8 (2014). Because the Board may have jurisdiction over the appellant’s

USERRA claim, we forward this matter to the Central Regional Office for

processing as a separate USERRA appeal. See Maibaum v. Department of

Veterans Affairs, 116 M.S.P.R. 234, ¶ 20 (2011) (forwarding a USERRA claim to

the regional office for docketing); see also Roberson v. U.S. Postal Service,

77 M.S.P.R. 569, 571 (1998) (finding that individuals who have not completed

1 year of current continuous service in the same or similar positions may

nonetheless qualify as “persons” under USERRA and thus are not excluded from

filing appeals under the provisions of that statute); 5 C.F.R. § 1208.12 (stating

that there is no time limit for filing a USERRA appeal with the Board). The

Board would be exercising its jurisdiction over this new appeal as a complaint

under 38 U.S.C. § 4324(c), and thus any future adjudication will be limited to

consideration of the appellant’s claim under USERRA. See Nahoney v. U.S.

Postal Service, 112 M.S.P.R. 93, ¶ 20 (2009).

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

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

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.

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,

132 Stat. 1510.

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