Opinion

Maria A Spassova v. Department of Agriculture

Court: Merit Systems Protection Board
Filed: Feb 28, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 34.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MARIA SPASSOVA, DOCKET NUMBER

Appellant, DC-1221-22-0496-W-1

DEPARTMENT OF AGRICULTURE, DATE: February 28, 2025

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Maria A. Spassova , Great Falls, Virginia, pro se.

Stephanye Snowden , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Henry J. Kerner, Vice Chairman*

Raymond A. Limon, Member

*Vice Chairman Kerner recused himself and

did not participate in the adjudication of this appeal.

FINAL ORDER

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

dismissed her individual right of action (IRA) appeal for lack of jurisdiction.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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).

On review, the appellant argues that the administrative judge ignored

portions of her appeal and committed procedural error by not allowing discovery

on jurisdiction and by dividing the proceedings instead of considering her

multiple Office of Special Counsel (OSC) files in a single appeal. She argues

that, when she informed OSC of the Letter of Reprimand at issue in Complaint 1

(MA-22-000539), she was reporting an abuse of authority, and that the agency

retaliated against her for that disclosure or activity by taking actions described in

her subsequent OSC complaints, such as not allowing her to compete for a detail,

systematically harassing her, and issuing her a Counseling Memorandum. She

also argues that jurisdictional discovery should have been permitted under the

Federal Rules of Civil Procedure and that discovery would have clarified her

disclosure concerning the SAS software, among other matters.

We find no error in the administrative judge’s decision to consider the

appellant’s multiple OSC complaints in separate appeals. To the extent the

appellant argues that the agency retaliated against her for Complaint 1 and the

disclosures made therein, as she previously alleged before OSC in Complaint 2

(MA-22-001437), she has not been prevented from pursuing that retaliation claim

in the appropriate proceeding, which was refiled at the regional office on

December 15, 2023, under MSPB Docket No. DC-1221-23-0094-W-2. 2 See

Spassova v. Department of Agriculture, MSPB Docket No. DC-1221-23-0094-

W-1, Initial Decision (Aug. 17, 2023).

It does not appear that the appellant timely objected to the administrative

judge’s decision to stay discovery pending a finding of jurisdiction, and, in any

case, we discern no abuse of discretion in that ruling. See Wagner v.

Environmental Protection Agency, 54 M.S.P.R. 447, 452 (1992) (holding that the

Board will not reverse an administrative judge’s rulings on discovery matters

absent an abuse of discretion), aff’d, 996 F.2d 1236 (Fed. Cir. 1993) (Table). The

dispositive jurisdictional issue, i.e., whether the appellant nonfrivolously alleged

that she made protected disclosures that contributed to a personnel action, is

determined based on whether the appellant alleged sufficient factual matters,

accepted as true, to state a claim that is plausible on its face. Hessami v. Merit

Systems Protection Board, 979 F.3d 1362, 1369 (Fed. Cir. 2022). Thus, the

jurisdictional issue was appropriately resolved based on the allegations contained

in the appellant’s pleadings, and further discovery would have been on the merits.

To the extent the appellant argues that the administrative judge’s ruling was

inconsistent with the Federal Rules of Civil Procedure, we note that the Rules are

instructive but not controlling in Board proceedings. See Wagner v. Department

of Homeland Security, 105 M.S.P.R. 67, ¶ 14 (2007); see 5 C.F.R. § 1201.72(a).

In finding that the appellant exhausted her administrative remedies before OSC, the

administrative judge stated that the appellant was required to show that she informed

OSC of the precise grounds of her claim. Spassova v. Department of Agriculture,

MSPB Docket No. DC-1221-22-0496-W-1, Initial Decision at 4. However, to prove

exhaustion, an appellant need only show that she provided OSC with a sufficient basis

to pursue an investigation that might lead to corrective action. Chambers v. Department

of Homeland Security, 2022 MSPB 8, ¶ 10. Under the circumstances, however, we find

that the administrative judge’s error did not prejudice the appellant’s substantive rights.

Finally, we discern no error in the administrative judge’s finding that the

appellant failed to nonfrivolously allege that the disclosures at issue in

Complaint 1, concerning the SAS software and the alleged hostile work

environment, were protected disclosures under 5 U.S.C. § 2302(b)(8). The

appellant’s mere disagreement with those findings does not warrant further

review. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding

no reason to disturb the administrative judge’s findings when she considered the

evidence as a whole, drew appropriate inferences, and made reasoned

conclusions); Broughton v. Department of Health and Human Services,

33 M.S.P.R. 357, 359 (1987) (same).

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

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.

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.

(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 review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

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.

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