The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CYNTHIA ANN RICKIS, DOCKET NUMBER
Appellant, AT-3443-14-0170-I-1
v.
DEPARTMENT OF VETERANS DATE: August 12, 2014
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Cynthia Ann Rickis, Jackson, Mississippi, pro se.
Johnston B. Walker, Jackson, Mississippi, 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 her appeal 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
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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).
BACKGROUND
¶2 The appellant alleged that the agency issued her a reprimand and threatened
to issue her a second reprimand with a suspension. Initial Appeal File (IAF),
Tab 1 at 3-5. The administrative judge dismissed the appeal for lack of
jurisdiction based on the parties’ written submissions because he found that such
actions are not directly appealable to the Board and that the appellant failed to
raise a nonfrivolous allegation that the Board had individual right of action (IRA)
jurisdiction over her appeal. IAF, Tab 8, Initial Decision (ID). Specifically, the
administrative judge concluded that the record contained no evidence that the
appellant exhausted her administrative remedies before the Office of Special
Counsel (OSC), and she had not adequately alleged that she had made a protected
disclosure that was a contributing factor in the agency’s personnel decision. ID
at 2-3. The administrative judge notified the appellant of the jurisdictional issues
in her appeal in two orders prior to issuing the initial decision. IAF, Tabs 2, 5.
Although the administrative judge granted the appellant’s motion for an extension
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of time to file her response, she submitted no evidence supporting Board
jurisdiction. See IAF, Tabs 6, 7.
DISCUSSION OF ARGUMENTS ON REVIEW
¶3 In her petition for review, the appellant argued that she submitted 64 pages
of evidence in support of her appeal via facsimile but that the administrative
judge failed to consider the evidence prior to issuing the initial decision. Petition
for Review (PFR) File, Tab 1 at 3. There is no evidence in the record below that
she made such a filing. According to her petition and accompanying facsimile
transmission records, the appellant submitted the alleged 64 pages of evidence on
February 27, 2014. See id. at 11-12. The administrative judge’s order granting
the appellant an extension of time instructed her to file a statement on jurisdiction
and accompanying evidence by February 20, 2014. IAF, Tab 7. Thus, even if the
appellant had submitted the alleged evidence via facsimile as alleged, the
submission was untimely. As part of her petition for review, the appellant
submitted a letter to the administrative judge, dated prior to the initial decision,
stating that she had “just been able to access [her] pleading and order directed by”
the administrative judge, had “tried to get assistance,” and had not received a
response within the allotted time frame. PFR File, Tab 1 at 8. However, the
petition for review made no arguments for finding good cause for the untimely
evidence or why the new evidence should be considered on review. We find that
the record does not support good cause for the untimely evidence submission after
the extension of time.
¶4 Based on the record below, the administrative judge correctly found that the
appellant failed to make a nonfrivolous allegation that the issues she raised were
appealable to the Board as an IRA appeal. The Board has jurisdiction over an
IRA appeal if the appellant has exhausted her administrative remedies before
OSC and makes nonfrivolous allegations that: (1) she engaged in whistleblowing
activity by making a protected disclosure; and (2) the disclosure was a
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contributing factor in the agency’s decision to take or fail to take a personnel
action. Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir.
2001). Protected whistleblowing occurs when an appellant makes a disclosure
that she reasonably believes evidences a violation of law, rule or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health and safety. Mudd v. Department of Veterans
Affairs, 120 M.S.P.R. 365, ¶ 5 (2013); see also 5 U.S.C. § 2302(b)(8).
¶5 Despite receiving detailed instructions from the administrative judge on
how to establish Board jurisdiction, the appellant failed to establish that she
exhausted administrative remedies with OSC or made a nonfrivolous allegation
that she engaged in whistleblowing activity. See IAF, Tab 5 at 2-3. For the first
time on review, the appellant alleges that she filed a complaint with OSC. See
PFR File, Tab 1 at 6; IAF, Tab 1 at 4. However, she provided no evidence of her
OSC complaint and did not allege that she exhausted administrative remedies, a
threshold issue for Board jurisdiction. The appellant has not submitted the
alleged 64 pages of evidence into the record on review, nor has she described the
nature of this evidence. See PFR File, Tab 1 at 3. After the close of the record
on review, the appellant requested a stay of a proposed suspension or reprimand,
stating that she contacted OSC, the Equal Employment Opportunity Commission,
the Department of Labor, and her representative, but she has not provided any
evidence of any such communications. PFR File, Tab 4 at 3. An employee may
request a stay of a proposed or threatened personnel action under the
Whistleblower Protection Act only after seeking corrective action from OSC and
exhausting those proceedings. Lozada v. Equal Employment Opportunity
Commission, 45 M.S.P.R. 310, 312-13 (1990). The appellant has made only
vague statements on review regarding retaliation and whistleblowing, failing to
adequately allege such actions under the requirements of 5 U.S.C. § 2302(b)(8).
See PFR File, Tab 1 at 8, Tab 4 at 3. The appellant has failed to show any
prejudice on review, and, to date, has provided no evidence supporting a finding
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of Board jurisdiction of her IRA appeal. Should the appellant exhaust her
administrative remedies with OSC, this decision does not preclude her from filing
a timely new appeal with the regional office. See Burroughs v. Department of the
Army, 120 M.S.P.R. 392, ¶ 9 (2013).
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
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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
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.