Opinion

Michael Kemp v. Department of the Army

Court: Merit Systems Protection Board
Filed: Sep 20, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MICHAEL S. KEMP, DOCKET NUMBER

Appellant, DA-1221-23-0434-W-1

DEPARTMENT OF THE ARMY, DATE: September 20, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Michael S. Kemp , Deville, Louisiana, pro se.

John M. Breland and Nedra R. Frisby , Vicksburg, Mississippi, for the

agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner recused himself and

did not participate in the adjudication of this appeal.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

FINAL ORDER

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

denied his request for corrective action in this individual right of action appeal . 2

On petition for review, the appellant argues that he reasonably believed the

agency’s order requiring him to travel for work-related reasons on a Federal

holiday violated a law, rule, or regulation, or constituted an abuse of authority.

He also reasserts that the agency took various personnel actions against him,

including terminating him during his probationary period, in retaliation for

disclosing said violations and abuse. 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). We

conclude that the petitioner has not established any basis under section 1201.115

for granting the petition for review. 3 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). 4

The appellant has filed a petition for review of the initial decision in a separate appeal

alleging that the agency discriminated against him in violation of the Uniformed

Services Employment and Reemployment Rights Act when, among other things, it

terminated him during his probationary period. Kemp v. Department of the Army,

MSPB Docket No. DA-4324-23-0255-I-1. The Board addresses that matter in a

separate decision.

We take notice that the agency belatedly filed a response to the petition for review,

including a motion addressing the untimeliness. Petition for Review (PFR) File, Tab 3.

We decline to consider the agency’s response as the agency has not demonstrated good

cause for the delay.

¶2 In the initial decision, the administrative judge adopted the appellant’s

characterization of a Comptroller General decision as a Government

Accountability Office report and found that the document did not have the force

and effect of law. Initial Appeal File (IAF), Tab 21, Initial Decision (ID) at 9.

The referenced document is a decision by the Comptroller General, stating that

“the head of a department or agency may require the services of employees on a

holiday in cases of necessity or emergency.” To the Chairman of the Civil

Service Commission, 44 Comp. Gen. 274, 275 (1964); IAF, Tab 5 at 22. To the

extent that the administrative judge erred in finding that the decision was not

binding legal authority, we need not consider this question further because we

agree with the administrative judge’s alternative finding that it was unreasonable

for the appellant to believe that he could not be instructed to travel for work on a

holiday. ID at 9. In this regard, the appellant acknowledges that there was no

evidence that the authority to instruct employees to work on a holiday had been

delegated, IAF, Tab 17 at 5, but it is unreasonable for an employee of the

Department of the Army to believe that such authority rested solely with the

Secretary of the Army and had not been delegated. Thus, we find that the

appellant lacked a reasonable belief in his disclosure.

On petition for review, the appellant additionally argues that the administrative judge

erred by not considering that he was perceived as a whistleblower. PFR File, Tab 1

at 10-11. The administrative judge notified the appellant regarding how to establish

jurisdiction over an individual right of action appeal as a perceived whistleblower,

Initial Appeal File (IAF), Tab 3 at 5-6, yet, contrary to his assertions, the appellant did

not raise the issue before the administrative judge, see IAF, Tabs 5, 10, 12, 14.

Therefore, the Board need not consider it on review. See Clay v. Department of the

Army, 123 M.S.P.R. 245, ¶ 6 (2016) (explaining that the Board generally 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). Furthermore, the appellant has not shown that he exhausted his

remedy with the Office of Special Counsel (OSC) on this issue. See IAF, Tab 1 at 12,

Tab 5 at 23-38. As a result, he has not established the Board’s jurisdiction over this

claim. See King v. Department of the Army, 116 M.S.P.R. 689, ¶ 9 (2011) (stating that

an appellant must establish that she exhausted her remedies with OSC on whether the

agency perceived her as a whistleblower).

NOTICE OF APPEAL RIGHTS 5

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 following