The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LIBBY A. DEMERY, DOCKET NUMBER
Appellant, DC-3443-24-0105-I-1
v.
DEPARTMENT OF THE ARMY, DATE: September 5, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Libby A. Demery , Clinton, Maryland, pro se.
Russell Niemyer , Raleigh, North Carolina, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal for lack of jurisdiction without holding her requested
hearing. On petition for review, the appellant argues, among other things, that
the administrative judge made numerous legal and factual errors and should be
recused for changing the docket number, she failed to properly analyze her
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Veterans Employment Opportunities Act of 1998 (VEOA) claim, the agency’s
actions were based on age discrimination and/or constituted prohibited personnel
practices or harmful procedural error, and her appeal should be considered timely
pursuant to 5 C.F.R. § 1201.154(b). Petition for Review (PFR) File, Tab 1.
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 find that her VEOA claim is
barred by res judicata, we AFFIRM the initial decision. 2
¶2 We have considered the appellant’s arguments on review, but none warrant
a different outcome. For example, the crux of the appellant’s petition for review
appears to be the administrative judge’s failure to address her claim that the
agency violated her veterans’ preference rights during the 2010 selection process
for the GS-11 Management Analyst position, pursuant to vacancy announcement
number NEHT10457276D. PFR File, Tab 1 at 4-9. The administrative judge
noted below that the appellant stated that this appeal is “not a VEOA” appeal,
Initial Appeal File (IAF), Tab 4 at 3, Tab 6 at 1, and she therefore did not analyze
such a claim in the initial decision, IAF, Tab 9, Initial Decision (ID) at 2 n.1.
2
In light of our disposition of the issues raised in this matter, we need not make
findings on the issues of timeliness and/or laches.
3
However, any adjudicatory error made by the administrative judge in this regard
is not prejudicial to the appellant’s substantive rights and provides no basis for
reversal of the initial decision. See Panter v. Department of the Air Force,
22 M.S.P.R. 281, 282 (1984). The appellant’s VEOA claim involving her 2010
nonselection, pursuant to vacancy announcement number NEHT10457276D,
which she subsequently pursued with the Department of Labor (DOL) (MD-2019-
021-VPH), is the same claim that she raised in Demery v. Department of the
Army, MSPB Docket No. PH-3330-19-0292-I-1. Compare IAF, Tab 1 at 6, Tab 4
at 3, Tab 7 at 4-5; PFR File, Tab 1 at 4-9, with Demery v. Department of the
Army, MSPB Docket No. PH-3330-19-0292-I-1, Initial Decision (July 25, 2019).
Following the appellant’s petition for review in the 0292 matter, the Board issued
a final decision in which it found that it has jurisdiction over the VEOA appeal,
but it denied the appellant’s request for corrective action because she failed to file
a timely DOL complaint. Demery v. Department of the Army, MSPB Docket No.
PH-3330-19-0292-I-1, Final Order (June 25, 2024).
¶3 Under the doctrine of res judicata, a valid, final judgment on the merits of
an action bars a second action involving the same parties or their privies based on
the same cause of action, and it precludes parties from relitigating claims that
were, or could have been, raised in the prior action, and is applicable if (1) the
prior judgment was rendered by a forum with competent jurisdiction, (2) the prior
judgment was a final judgment on the merits, and (3) the same cause of action
and the same parties or their privies were involved in both cases. Peartree v. U.S.
Postal Service, 66 M.S.P.R. 332, 337 (1995). We find that these criteria are
satisfied. Accordingly, the appellant’s VEOA claim in this matter is barred by res
judicata. See Sabersky v. Department of Justice, 91 M.S.P.R. 210, ¶ 9 (2002)
(stating that the Board is permitted to raise the issue of res judicata sua sponte),
aff’d, 61 F. App’x 676 (Fed. Cir. 2003).
¶4 The appellant appears to be arguing on review that her Board appeal was
timely filed pursuant to 5 C.F.R. § 1201.154(b). PFR File, Tab 1 at 11. This
4
argument is not persuasive. The regulation at 5 C.F.R. § 1201.154(b) states that
an appellant who files an appeal raising issues of prohibited discrimination “in
connection with a matter otherwise appealable to the Board” must comply with
certain time limits. Here, however, the time limits in 5 C.F.R. § 1201.154(b) are
not applicable because the appellant’s 2010 nonselection, as described in her
pleadings, is not a matter that is otherwise appealable to the Board.
¶5 We are also not persuaded by the appellant’s argument that the
administrative judge erred by dismissing her appeal for lack of jurisdiction.
Regarding the appellant’s assertion on review that the agency’s actions were due
to prohibited age discrimination, were based on prohibited personnel practices, or
otherwise constituted harmful procedural error, the Board lacks jurisdiction to
hear such claims in the absence of an otherwise appealable action. ID at 4-5; see
Penna v. U.S. Postal Service, 118 M.S.P.R. 355, ¶ 13 (2012) (holding that, absent
an otherwise appealable action, the Board has no jurisdiction to consider claims
of discrimination, prohibited personnel practices, and harmful procedural error,
among other things); see also Wren v. Department of the Army, 2 M.S.P.R. 1, 2
(1980) (stating that prohibited personnel practices under 5 U.S.C. § 2302(b) are
not an independent source of Board jurisdiction), aff’d, 681 F.2d 867, 871-73
(D.C. Cir. 1982).
¶6 We have considered the appellant’s remaining arguments on review, but
none warrants a different outcome. For example, we are not persuaded that
recusal is appropriate. See 5 C.F.R. § 1201.42. In making a claim of bias or
prejudice against an administrative judge, a party must overcome the presumption
of honesty and integrity that accompanies administrative adjudicators . Oliver
v. Department of Transportation, 1 M.S.P.R. 382, 386 (1980). An administrative
judge’s conduct during the course of a Board proceeding warrants a new
adjudication only if the administrative judge’s comments or actions evidence “a
deep-seated favoritism or antagonism that would make fair judgment impossible.”
Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002)
5
(quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). We see no evidence
of such favoritism or antagonism in the record before the administrative judge.
¶7 Finally, the appellant has filed a motion for leave to file an additional
pleading. PFR File, Tab 4. We deny this motion because it does not warrant a
different outcome on the issues before us.
NOTICE OF APPEAL RIGHTS 3
The initial decision, as supplemented by this Final Order, constitutes the
Boards 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
3
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.
6
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
7
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
8
(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
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
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.
4
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.
9
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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.