The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRYAN K. SANDERS, DOCKET NUMBER
Appellant, SF-300A-14-0185-I-1
v.
DEPARTMENT OF THE TREASURY, DATE: January 23, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Bryan K. Sanders, Rancho Cucamonga, California, pro se.
Megan K. Gibbons, Esquire, San Francisco, California, 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 employment practices 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
interpretation of statute or 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 On March 6, 2008, the agency terminated the appellant from his GS-5
Secretary position, during his probationary period, for poor performance. Initial
Appeal File (IAF), Tab 14, Attachments 1-2. Years later, he filed the instant
employment practices appeal 2 regarding various circumstances surrounding his
probationary period and termination. IAF, Tab 1.
¶3 He asserted that employment practices that violated 5 C.F.R. § 300.103
were applied to him because his performance plan and position description did
not accurately reflect the major duties and responsibilities of his position, in that
the agency: (1) failed to assign him various duties listed in his position
description; (2) required him, pursuant to his performance plan, to perform a
significant number of duties not listed in his position description; and also
2
The appellant stated that he was refiling his probationary termination appeal in MSPB
Docket No. SF-315H-08-0371-I-1, which he asserted was dismissed without prejudice.
IAF, Tab 1 at 2. However, the initial decision in that matter dismissed the appellant’s
appeal for lack of jurisdiction and did not address any employment practices claim.
Sanders v. Department of the Treasury, MSPB Docket No. SF-315H-08-0371-I-1
(0371), Final Order (Aug. 6, 2008) (0371 Final Order); 0371, Initial Decision (Apr. 30,
2008) (0371 ID).
3
(3) assigned him duties not listed in his performance plan. IAF, Tab 8 at 2-3. He
claimed that he did not receive adequate training to perform his duties, although
other secretaries received formal training. Id. at 3. He also argued that: (1) the
agency improperly subjected him to heightened standards when evaluating his
performance; (2) the agency erred in relying on the provisions of 5 C.F.R. Part
315, Subpart H to terminate him, rather than affording him an opportunity to
improve his performance as provided in 5 U.S.C. chapter 43 3; (3) the agency and
the Office of Personnel Management (OPM) “misapplied” an employment
practice by refusing to remove documentation regarding his performance and the
reasons for his termination from his Official Personnel Folder and Employee
Personnel File, which has affected his employment prospects; and (4) Critical
Element 1 of his performance plan had a disparate impact on non-White,
non-Asian employees. IAF, Tab 8 at 3-4, 6-7; IAF, Tab 12 at 17-18.
¶4 The administrative judge correctly informed the appellant of his burden to
establish jurisdiction by showing that the actions in question constituted
employment practices, and that OPM was involved in the administration of the
practices. IAF, Tab 2 at 2; see 5 C.F.R. § 300.104(a). She further informed the
appellant that the Board may not have jurisdiction because it appeared that he was
not a candidate for employment when the actions of which he complained
occurred, given that he had already been selected for his position and was serving
a probationary period. IAF, Tab 2 at 2; see IAF, Tab 7 at 2 (the administrative
judge stating that “the plain language of the regulation allows a ‘candidate’ to
3
On review, the appellant makes several arguments regarding the Board’s jurisdiction
over his termination, including that: (1) he was not a probationer at the time of his
termination; (2) the agency erred in effectuating his termination under 5 C.F.R. Part
315; (3) he was not terminated, but rather, was constructively removed because the
agency failed to advise him of his Board appeal rights; and (4) he has a right to appeal
his alleged removal under 5 U.S.C. chapter 43. Petition for Review (PFR) File, Tab 3 at
13-17. The appellant admittedly raised these arguments in MSPB Docket No.
SF-315H-14-0540-I-1, wherein he has also filed a petition for review for our
consideration. We will address these claims in our decision in that appeal, which will
be issued separately.
4
appeal to the Board”); see also 5 C.F.R. § 300.104(a). The agency also filed a
jurisdictional response, 4 wherein it argued that the Board lacks jurisdiction
because the appellant was not a candidate and the actions of which he complained
did not constitute employment practices. 5 IAF, Tab 14.
¶5 The administrative judge issued an initial decision dismissing the appeal for
lack of jurisdiction, without holding a hearing, 6 finding that the appellant was not
a candidate within the meaning of 5 C.F.R. § 300.104(a), failed to identify any
employment practice and, in any event, failed to show that OPM was significantly
involved in any of the actions he argued constituted employment practices. IAF,
Tab 25, Initial Decision (ID).
¶6 The appellant has filed a petition for review. PFR File, Tab 3. He disputes
the administrative judge’s finding that he was not a candidate for employment,
asserting that he remained a candidate within the meaning of 5 C.F.R.
4
The appellant asserts that the administrative judge abused her discretion by refusing to
consider his January 28, 2014 reply to the agency’s jurisdictional response. PFR File,
Tab 3 at 18; see ID at 3 n.3. Specifically, he argues that, under 5 C.F.R. § 1201.23, his
reply was not due until January 28, 2014, because the agency did not serve its
jurisdictional submission to him by mail until January 13, 2014. PFR File, Tab 3 at 18;
see IAF, Tab 14. His reliance on this regulation is misplaced, however, because the
regulation makes clear that a different deadline may be “specified by the Board or its
designee.” 5 C.F.R. § 1201.23. The administrative judge specified that the appellant’s
reply must be received by the Board on or before January 23, 2014, and that the record
on jurisdiction would close on that date. IAF, Tab 7 at 3. Thus, we find that the
administrative judge properly refused to consider the appellant’s untimely submission.
In any event, we have reviewed the appellant’s January 28, 2014 submission and it
contains nothing that would warrant a different outcome in this matter. See IAF, Tab
18.
5
Based on the foregoing, we find the appellant’s assertion on review that he did not
receive proper jurisdictional notice to be without merit. See PFR File, Tab 1 at 4, Tab
11 at 7-8.
6
The appellant indicated that he wished to cancel his hearing request if the Board
would not provide him with a list of attorneys who may be willing to represent him on a
pro bono basis. IAF, Tab 3 at 6, Tab 16 at 1-2. We note that an appellant is
responsible for securing his own representative, if he so desires, because no statute or
regulation requires the Board to appoint a representative for an appellant. Brum v.
Department of Veterans Affairs, 109 M.S.P.R. 129, ¶ 5 (2008).
5
§ 300.104(a) during his probationary period because probationary periods are
used to examine eligibility for permanent tenure in the competitive service and,
therefore, his termination was actually a nonselection. Id. at 6, 9-13. He also
reiterates the claims he made below concerning alleged employment practices.
PFR File, Tab 3. The agency filed a response in opposition and the appellant
submitted a reply. PFR File, Tabs 4, 11.
¶7 We discern no basis to disturb the initial decision. 5 C.F.R. Part 300,
Subpart A establishes principles to govern “employment practices . . . that affect
the recruitment, measurement, ranking, and selection of individuals for initial
appointment and competitive promotion in the competition service.” The Board
has jurisdiction to review “[e]mployment practices administered by [OPM] to
examine and evaluate the qualifications of applicants for appointment in the
competitive service.” 5 C.F.R. § 1201.3(a)(7). The appellant’s complaints as to
his position description and performance plan, the agency’s assignment of duties
and appraisal of his performance, allegedly inadequate training, and documents
placed in his personnel files following his termination, do not relate to practices
employed during the selection process for the position he held. We therefore
agree with the administrative judge that the appellant did not identify any
employment practice in this appeal. See ID at 5; cf. Crum v. Department of the
Navy, 75 M.S.P.R. 75, 79-80 (1997) (the appellants failed to show that any
alleged improprieties in the reclassifications of their positions related to an initial
appointment or competitive promotion and, therefore, failed to show that the
reclassifications involved any appealable employment practice). We also agree
that his claims that he remained a candidate while serving a probationary period,
and that the agency’s imposition of a probationary period constituted an
6
employment practice, are without merit. 7 See ID at 4-5. Thus, we AFFIRM the
initial decision. 8
¶8 The appellant requests that the Board reopen his appeals in MSPB Docket
Nos. SF-1221-10-0187-W-1 and SF-315H-08-0371-I-1, and vacate the initial
decisions in those matters. PFR File, Tab 3 at 1. The Board only exercises its
discretion to reopen in unusual or extraordinary circumstances, such as where a
change in the law results in a conflict between the holding in a decision and
controlling precedent or statute, misrepresentation or fraud is discovered after the
issuance of the initial decision, or the interests of justice warrant a different
outcome based on the weight of the evidence. Lugo v. Department of the
Navy, 96 M.S.P.R. 95, ¶ 6 (2004), aff’d, 128 F. App’x 145 (Fed. Cir. 2005);
Anthony v. Office of Personnel Management, 70 M.S.P.R. 214, 219 (1996);
Moriarty v. Rhode Island Air National Guard, 56 M.S.P.R. 144, 148 (1992). The
appellant has presented no such evidence here. Moreover, in considering whether
to exercise our discretion to reopen an appeal, we must balance the desirability of
finality against the public interest in reaching the correct result.
Lugo, 96 M.S.P.R. 95, ¶ 6. Our authority to reopen an appeal under 5 C.F.R.
7
The appellant argues that the administrative judge made an erroneous finding of fact
and law, in that she stated that the appellant’s attempt to draw “distinctions about
whether he filed an appeal over the termination during a probationary period, the
termination of his appointment, or the termination of his employment” is “a distinction
without a difference.” PFR File, Tab 1 at 4-6; see ID at 2 n.1. The basis for the
appellant’s argument is unclear. Regardless, we discern no error and we note that the
circumstances surrounding the appellant’s separation are wholly irrelevant to the
jurisdictional issue in this appeal.
8
The appellant asserts that the administrative judge erred in applying Chadwell v. Merit
Systems Protection Board, 629 F.3d 1306, 1309 (Fed. Cir. 2010), to his case because he
believes it “does not concern OPM regulations.” PFR File, Tab 3 at 12; see ID at 3-4.
We discern no error. The administrative judge cited Chadwell for the proposition that,
in an employment practices appeal, an appellant must nonfrivolously allege that an
employment practice violated one of the basic requirements of 5 C.F.R. § 300.103 and
must otherwise establish jurisdiction by preponderant evidence, which is accurate. See
Mapstone v. Department of the Interior, 110 M.S.P.R. 122, ¶ 7 (2008); see also ID at
3-4.
7
§ 1201.118 is thus limited by the requirement that such authority be exercised
“within a short period of time,” which is usually measured in weeks, not years.
Miller v. Department of the Army, 113 M.S.P.R. 572, ¶ 10 (2010). The Board’s
decisions in the appeals at issue became final approximately 3 and 6 years ago,
respectively. 9 For the foregoing reasons, we DENY the appellant’s request to
reopen his prior appeals.
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. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
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).
9
The initial decision in MSPB Docket No. SF-1221-10-0187-W-1, denied the
appellant’s request for corrective action under the Whistleblower Protection Act
regarding his termination. Sanders v. Department of the Treasury, MSPB Docket No.
SF-1221-10-0187-W-1 (0187), Initial Decision (July 8, 2010). The appellant thereafter
filed a petition for review, which the Board denied. 0187, Final Order (Apr. 6, 2011).
The initial decision in MSPB Docket No. SF-315H-08-0371-I-1, which was issued on
April 30, 2008, dismissed the appellant’s 5 U.S.C. chapter 75 appeal of his termination
during his probationary period for lack of jurisdiction. 0371 ID. The appellant filed a
petition for review in that matter as well, which the Board denied in a Final Order
issued on August 6, 2008. 0371 Final Order. The appellant did not exercise his right to
seek judicial review of either Final Order.
8
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
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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.
If you are interested in securing pro bono representation for your court
appeal, 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 court. 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.