The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MATTHEW JOHN HAYDUK, DOCKET NUMBERS
Appellant, PH-0752-12-0004-B-4
PH-1221-13-0040-W-3
v.
DEPARTMENT OF THE ARMY,
Agency. DATE: August 14, 2014
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Matthew John Hayduk, Vance Air Force Base, Oklahoma, pro se.
Blaine Markuson, Esquire, Fort McCoy, Wisconsin, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeals for lack of jurisdiction. Generally, we grant petitions such
as this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
regulation or the erroneous application of the law to the facts of the case; the
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. See 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, and based on the following points and authorities, 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).
¶2 The agency terminated the appellant from the GS-9 excepted service
position of Training Specialist during his probationary period based on the
charges of submission of incorrect time and attendance records, failure to follow
a directive, and inability to conform to Command policy and direction. MSPB
Docket No. PH-0752-12-0004-I-1, Initial Appeal File (IAF), Tab 5, Subtab 4b.
The administrative judge dismissed the appeal for lack of jurisdiction. IAF,
Tab 6. On review, the Board found that, if the appellant occupied a Jobs for
Veterans Act (JVA) position, he was entitled to the same probationary appeal
rights as competitive service employees, and therefore, could establish Board
jurisdiction over his termination appeal if he could show that the termination was
for partisan political reasons or was based on marital status discrimination.
Petition for Review File, Tab 10; Hayduk v. Department of the Army, 118
M.S.P.R. 319 (2012) (Table). The Board remanded the appeal because the
appellant was not previously informed of what was required to establish
jurisdiction on that basis. Id., Tab 10.
¶3 On remand, the administrative judge joined the appellant’s probationary
termination appeal and his subsequently filed individual right of action (IRA)
3
appeal. MSPB Docket Nos. PH-0752-12-0004-B-4 and PH-1221-13-0040-W-3,
Remand Appeal File (RAF), Tab 9, Initial Decision (ID). 2 The administrative
judge found that the appellant occupied a JVA position and that he was
terminated for post-appointment reasons. ID at 2-3. The administrative judge
also found that the appellant failed to make a nonfrivolous allegation that his
termination was based on partisan political reasons or marital status
discrimination. ID at 4-5. Thus, the administrative judge found the appellant
failed to meet his burden to nonfrivolously allege that the Board had jurisdiction
over his termination appeal. See ID.
¶4 Regarding the appellant’s IRA appeal, the administrative judge found that
the appellant failed to allege that the agency terminated him in retaliation for
engaging in whistleblowing activity under 5 U.S.C. § 2302(b)(8). ID at 5-8. The
administrative judge found that the appellant’s allegation of retaliation for his
union activities and affiliation constituted an allegation of a violation of 5 U.S.C.
§ 2302(b)(9). See ID. He found that it has been settled that sections 2302(b)(8)
and 2302(b)(9) protect different activities and that retaliation for activities under
section 2303(b)(9) did not provide a basis for an IRA appeal at the time of the
appellant’s termination. ID at 6-7. The administrative judge further noted that a
provision of the Whistleblower Protection Enhancement Act (WPEA) expanded
the basis of an IRA appeal to include retaliation for activity protected under
section 2302(b)(9) if that activity also involves remedying a (b)(8) violation. ID
2
After the administrative judge joined the remanded probationary termination and
individual right of action appeals, and while the joined appeals were pending, Congress
passed the Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112–199,
126 Stat. 1465 (WPEA) that amended the Whistleblower Protection Act; the WPEA
became effective December 27, 2012. The administrative judge dismissed the joined
appeals without prejudice for refiling pending the Board’s decision on whether the
provisions of the WPEA would apply retroactively. See MSPB Docket No. PH-0752-
12-0004-B-2, Remand Appeal File, Tab 11, Initial Decision (Jan. 17, 2013); MSPB
Docket No. PH-0752-12-0004-B-3, Remand Appeal File, Tab 2, Initial Decision (May
20, 2013); MSPB Docket No. PH-1221-13-0040-W-2, Initial Appeal File, Tab 2, Initial
Decision (May 20, 2013).
4
at 6. He found, however, that the WPEA provision was not retroactive and that it
did not apply to the appellant’s protected activity because his activity predated
the effective date of the WPEA. ID at 7. Thus, the administrative judge found
that the appellant failed to make a nonfrivolous allegation that he engaged in
whistleblowing and failed to nonfrivolously allege jurisdiction over his IRA
appeal. ID at 7-8.
¶5 In his petition for review, the appellant first alleges that the administrative
judge erred in finding that the appellant failed to disclose his political party.
Remand Petition for Review (PFR) File, Tab 2 at 2-3. The appellant states that
he is a “card carrying and registered member of the Republican Party” and that he
could have proven that during a jurisdictional hearing. Id. at 2. However, the
appellant submits his assertion of his political party affiliation for the first time
on petition for review. Under 5 C.F.R. § 1201.115, the Board normally will not
consider evidence submitted for the first time with the petition for review absent
a showing that it was unavailable before the record was closed despite the party’s
due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). The
appellant has made no such showing. In any event, even if he established that his
coworkers knew of his Republican Party affiliation, the administrative judge
properly found that he failed to make a nonfrivolous allegation of Board
jurisdiction based on his assertion that the agency discriminated against him for
partisan political reasons.
¶6 The Board’s jurisdiction is not plenary. Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant bears the
burden of proving Board jurisdiction by preponderant evidence. 5 C.F.R.
§ 1201.56(a)(2)(i). A probationary employee in the excepted service who has not
completed his probationary period has no statutory right of appeal to the Board.
See Ramirez-Evans v. Department of Veterans Affairs, 113 M.S.P.R. 297, ¶ 9
(2010). However, as noted above, a probationary employee in the excepted
service who receives a JVA appointment may appeal a termination if he alleges
5
that it was based on partisan political reasons or marital status. See 5 C.F.R.
§ 315.806(b). In determining whether an appellant has established jurisdiction
under 5 C.F.R. § 315.806(b), the Board follows a two-step process. See Burton v.
Department of the Air Force, 118 M.S.P.R. 210, ¶ 8 (2012). First, the appellant
must make a nonfrivolous allegation of jurisdiction, i.e., factual allegations that,
if proven, would establish that his termination was based on partisan political
reasons or marital status. See id. An appellant who makes such nonfrivolous
allegations is entitled to a jurisdictional hearing, at which he must then prove the
basis for jurisdiction, i.e., that his termination was based on partisan political
reasons or marital status, by a preponderance of the evidence. See id.
¶7 The Board has held that discrimination based on “partisan political reasons”
under 5 C.F.R. § 315.806(b) means discrimination based on affiliation with any
political party or candidate. Sweeting v. Department of Justice, 6 M.S.P.R. 715,
719 (1981). We agree with the administrative judge that the appellant’s
allegations that coworkers would attempt to engage him in discussions about
pictures that he had taken with certain elected officials do not fall within the
meaning of partisan political reasons as the phrase is used in the regulation. The
appellant’s bare assertion that his termination was based on his coworkers’ belief
that he was a Republican is mere conjecture. We therefore conclude that the
appellant failed to make a nonfrivolous allegation that his termination was based
on partisan political reasons. The administrative judge properly dismissed the
appellant’s termination appeal for lack of jurisdiction.
¶8 In his petition for review, the appellant also alleges that the administrative
judge erred in finding that he failed to make a protected disclosure and thus erred
in dismissing his IRA appeal. Remand PFR File, Tab 2 at 3. On petition for
review, the appellant alleges that he disclosed that his supervisor assaulted him.
Id. In order to secure corrective action from the Board in an IRA appeal, an
appellant must first seek corrective action from the Office of Special Counsel
(OSC). 5 U.S.C. § 1214(a)(3); Cassidy v. Department of Justice, 118 M.S.P.R.
6
74, ¶ 5 (2012). If an appellant has exhausted his administrative remedies before
OSC, he can establish Board jurisdiction over an IRA appeal by nonfrivolously
alleging that he made a protected disclosure and that the disclosure was a
contributing factor in the agency’s decision to take a personnel action. Peterson
v. Department of Veterans Affairs, 116 M.S.P.R. 113, ¶ 8 (2011). To satisfy the
exhaustion requirement of 5 U.S.C. § 1214(a)(3), an appellant must inform OSC
of the precise grounds of his charge of whistleblowing, giving OSC a sufficient
basis to pursue an investigation that might lead to corrective action. Davis v.
Department of Defense, 103 M.S.P.R. 516, ¶ 10 (2006). The sufficiency of an
employee’s whistleblowing charge is determined by the statement made in the
complaint to OSC requesting corrective action, not by his post hoc
characterization of those statements. Id.
¶9 In his complaint to OSC, the appellant stated that the agency terminated him
“for accepting [a] position as union vice president and for filing [a Federal Labor
Relations Authority (FLRA)] complaint along with political activities on behalf
of the union.” MSPB Docket No. PH-0752-12-0004-B-2, B-2 Remand Appeal
File, Tab 9 at 28. But, on review, the appellant claims that he was retaliated
against for disclosing that his supervisor assaulted him. Remand PFR File, Tab 2
at 3-4. This is a post hoc characterization of his statements in his OSC complaint.
The appellant may have attached a copy of his FLRA complaint to his OSC
complaint. In his FLRA complaint, the appellant stated that his supervisor
became “visibly agitated and verbally assaulted” him when the appellant handed
the supervisor a request for use of official time for union activities. B-2 Remand
Appeal File, Tab 9 at 18. However, we find the administrative judge properly
found that, in his OSC complaint, the appellant alleged retaliation for his union
activity and filing his FLRA complaint, not for the events that allegedly occurred
when he requested official time for union activities. Because the appellant failed
to establish that he exhausted his administrative remedies before OSC with
respect to these alleged disclosures, the Board lacks jurisdiction to consider them.
7
The administrative judge justifiably refused to consider issues that the appellant
had not properly raised before OSC.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
8
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for a list of attorneys who have
expressed interest in providing pro bono representation for Merit Systems
Protection Board appellants before the Federal Circuit. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.