The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VERNICE LOCKHART JAMES, DOCKET NUMBER
Appellant, AT-3443-14-0870-I-1
v.
SOCIAL SECURITY DATE: February 11, 2015
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Vernice Lockhart James, Columbia, South Carolina, pro se.
Ealy Ko, Atlanta, Georgia, 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 this appeal of her nonselection 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A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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 The appellant, a Senior Case Technician in the agency’s Office of Disability
Adjudication and Review, filed this appeal of her nonselection to the position of
Lead Legal Assistant. Initial Appeal File (IAF), Tabs 1-2. The administrative
judge informed the appellant that the Board generally lacks jurisdiction over
nonselections except under certain circumstances involving veterans and in
reprisal for protected whistleblowing. IAF, Tab 3 at 2. In her response, the
appellant asserted that the agency retaliated against her and that a chief
administrative law judge where she worked slandered her in reprisal for protected
whistleblowing activity involving the allegedly fraudulent use of Vocational
Experts in agency hearings. IAF, Tabs 7-8. The appellant also alleged that the
agency denied her the opportunity to become part of the Training Cadre for her
office, to participate in the GEAR program (which she fails to identify), and to
become an equal employment opportunity (EEO) counselor. Id.
¶3 The agency moved to dismiss the appeal because the appellant failed to
demonstrate that she exhausted her whistleblowing claims before the Office of
Special Counsel (OSC) and failed to nonfrivolously allege that she made a
protected disclosure that was a contributing factor in the personnel actions at
3
issue. IAF, Tab 10. Without holding the hearing the appellant requested, the
administrative judge dismissed the appeal for lack of jurisdiction, finding that the
appellant failed to demonstrate that she exhausted her administrative remedies
before OSC. 2 IAF, Tab 11, Initial Decision (ID).
¶4 In her petition for review, the appellant states that the agency denied her
use of official time to prepare her responses and she argues the merits of her
appeal. Petition for Review (PFR) File, Tab 1 at 2-3. Although she claimed
therein that she raised the actions that she describes before OSC, she provided no
evidence in support. Id. at 3-4. The agency responded in opposition. PFR File,
Tab 3. With her reply to the agency’s response, the appellant provides, among
other documents, four separate submissions that she made to OSC, one of which
she submitted with her appeal below, and all of which date from well before the
close of the record in this matter. PFR File, Tabs 4-5; 5 C.F.R. § 1201.58.
2
The administrative judge noted that, if the appellant sought corrective action from
OSC, she could file another Board appeal with in the appropriate time lim its. ID at 2
n.2. Although the appellant does not raise the issue on review, to the extent that the
administrative judge’s jurisdictional order, IAF, Tab 3, failed to apprise the appellant of
exactly how to establish jurisdiction over her whistleb lowin g defense, this deficiency
was cured by the agency’s motion to dismiss, IAF, Tab 10, and the initial decision
itself, ID at 3, such that the appellant was on notice as to what she must do to address
her whistleblowing claim on petition for review. See, e.g., Fleming v. Department of
Labor, 97 M.S.P.R. 341, ¶ 9 (2004) (finding that the appellant received an opportunity
to meet his jurisdictional burden on petition for review because the initial decision
itself provided notice as to what he must have done to establish jurisdiction); Nichols v.
Department of the Interior, 69 M.S.P.R. 386, 388-89 (1996) (determining that an
administrative judge’s failure to provide an appellant with proper jurisdictional notice
was cured by the agency’s pleadings). We also note that, as opposed to her actions in
the instant matter, the appellant previously filed an individual right of action (IRA)
appeal in which she diligently attempted to demonstrate exhaustion of her
administrative remedies before OSC, filing a copy of her initial complaint to OSC, as
well as a copy of OSC’s closure letter. James v. Social Security Administration, MSPB
Docket No. AT-1221-13-0041-W-2, Initial Decision (Jan. 15, 2014). That decision,
which dismissed the appellant’s prior IRA appeal for lack of jurisdiction, id., became
the Board’s final decision when neither party filed a petition for review, see 5 C.F.R.
§ 1201.113.
4
¶5 Under 5 C.F.R. § 1201.115, the Board generally 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.
The appellant offers no explanation for why she failed to submit these documents
in her appeal below despite the fact the documents reflect that she submitted each
one to OSC long before the record closed. PFR File, Tabs 4-5; 5 C.F.R.
§ 1201.58. Nevertheless, the Board may consider such evidence if it implicates
the Board’s jurisdiction and warrants an outcome different from that in the initial
decision. See, e.g., Schoenig v Department of Justice, 120 M.S.P.R. 318, ¶ 7
(2013).
¶6 In this case, the appellant’s evidence is not sufficient to warrant a different
outcome. First of all, none of the documents that the appellant filed with OSC
mention her nonselection for the Lead Legal Assistant position. See PFR File,
Tab 5. Thus, the appellant clearly did not exhaust her administrative remedies
before OSC for that personnel action. Moreover, the appellant provided evidence
below that she filed a grievance involving her nonselection for the Lead Legal
Assistant position. IAF, Tab 2. As noted above, the appellant’s nonselection is
not an appealable action under chapter 43 or chapter 75, and the appellant’s
election under 5 U.S.C. § 7121(g) to first pursue a union grievance for such an
action precludes her from bringing a whistleblower claim regarding this matter.
See Agoranos v. Department of Justice, 119 M.S.P.R. 498, ¶ 16, & n.6 (2013).
¶7 With regard to the agency denying the appellant an opportunity to become a
part of the Training Cadre for her office, she alleged in OSC Complaint MA-11-
2556 that an agency attorney who had “very little knowledge” of the agency’s
operations was “promoted up the ranks when she could not do the job that she
was hired to do” while the chief administrative law judge who assisted that
attorney with her advancement had, by contrast, “bad mouth[ed]” the appellant.
PFR File, Tab 5 at 16. The appellant does not claim, nor is there any evidence to
5
indicate, that OSC has closed its file on this matter. 3 Moreover, the appellant
makes exceptionally broad statements and makes comparisons between selections
for completely different positions in concluding that the agency retaliated against
her. Ultimately on this claim, as well as her claims regarding the agency’s GEAR
program and her application to become an EEO counselor, the appellant identifies
no connection whatsoever between her alleged whistleblowing activity and the
agency’s actions. Consequently, in addition to her failure to establish that she
exhausted her administrative remedies before OSC, she also has failed to
nonfrivolously allege that she made a protected disclosure or that such a
disclosure was a contributing factor to any of the personnel actions that she
identified. Thus, we find that the appellant has provided no basis upon which to
disturb the initial decision.
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).
3
Under 5 U.S.C. § 1214(a)(3)(A), an individual may file an IRA appeal with the Board
once OSC closes its investigation into her complaint and no more than 60 days have
elapsed since notification of the closure was provided to her. Alternatively, an
employee may file an IRA appeal with the Board 120 days after seeking corrective
action from OSC, if the individual has not received notification from OSC that it shall
seek corrective action on the individual’s behalf. 5 U.S.C. § 1214(a)(3)(B). The
appellant’s failure to address her OSC submissions precludes analysis of the issue.
6
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
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
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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.