The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEO D. WASHINGTON, DOCKET NUMBER
Appellant, CH-3443-15-0089-I-1
v.
DEPARTMENT OF VETERANS DATE: May 29, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL *
Leo D. Washington, Countryside, Illinois, pro se.
Janet M. Kyte, Esquire, Hines, Illinois, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal challenging his performance
appraisal. Generally, we grant petitions such as this one only when: the initial
decision contains erroneous findings of material fact; the initial decision is based
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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on an erroneous 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 preference-eligible appellant filed an appeal challenging his
performance rating of “Minimally Satisfactory” for fiscal year 2014, and he
requested a hearing. Initial Appeal File (IAF), Tab 1 at 2-3, 5. He also alleged
claims of retaliation for whistleblowing activity, harmful procedural error,
prohibited personnel practices, and unlawful discrimination. Id. at 4, 9. On his
appeal form, the appellant indicated that he did not file a whistleblowing
complaint with the Office of Special Counsel (OSC) and he did not file a
complaint with the Department of Labor.
¶3 The administrative judge acknowledged the appeal and issued an order to
show cause why the appeal should not be dismissed for lack of jurisdiction,
explaining that the Board might not have jurisdiction over the appellant’s action
challenging his performance appraisal and informing him of the criteria for
establishing jurisdiction over an individual right of action (IRA) appeal. IAF,
Tab 2 at 2, Tab 3. The administrative judge ordered the appellant to file evidence
and argument in support of his jurisdictional claim. IAF, Tab 3 at 6-8. The
appellant did not respond to the acknowledgment order or the jurisdiction order,
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and the agency responded by requesting that the administrative judge dismiss the
appeal for lack of jurisdiction. IAF, Tab 7.
¶4 Without holding the hearing requested by the appellant, the administrative
judge issued an initial decision dismissing the appeal for lack of jurisdiction.
IAF, Tab 8, Initial Decision (ID) at 6-7. In reaching his decision, the
administrative judge stated that the only basis for finding jurisdiction over the
appellant’s appeal challenging his performance appraisal would be as an IRA
appeal or an appeal under Uniformed Services Employment and Reemployment
Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333) (USERRA), and that the
appellant failed to raise any matter within the Board’s jurisdiction. ID at 3. The
administrative judge found no evidence that the appellant filed a complaint with
OSC and satisfied the exhaustion requirement for an IRA appeal, and that the
appellant did not allege that the agency violated his rights under USERRA. ID
at 5-6.
¶5 The appellant filed a petition for review of the initial decision arguing the
merits of the claims he raised on appeal. Petition for Review (PFR) File, Tab 1.
The appellant also submits, for the first time on review, a January 2012 email
chain sent to fraudnet@gao.gov and several individuals reporting a “VA FSS
Waste and Abuse of Non Appropriated Funds,” although the appellant submits no
evidence or argument that he exhausted his administrative remedies before OSC.
Id. at 11-14. The appellant notes that the administrative judge’s
acknowledgement and jurisdictional orders failed to address his claims of harmful
procedural error, prohibited personnel practices, and unlawful discrimination. Id.
at 7-8. The appellant also argues that the administrative judge focused on the
jurisdictional issue and his retaliation claim to avoid addressing his remaining
claims on appeal. Id. at 4. After the deadline stated in the Board’s
acknowledgement order, the agency filed a response in opposition to the
appellant’s petition. PFR File, Tab 3. The appellant responded by asking the
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Board to disregard the agency’s untimely reply and we have not considered it.
PFR File, Tab 4.
¶6 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule or regulation. Maddox v. Merit Systems Protection
Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The Board generally lacks jurisdiction
over appeals from performance appraisal ratings. Wein v. Department of the
Navy, 37 M.S.P.R. 379, 381 (1988). Appealable actions under 5 U.S.C.
chapter 75 do not include performance appraisals. See 5 U.S.C. §§ 7512,
7513(d); see also 5 C.F.R. § 1201.3(a)(1). The only bases on which the Board
could have jurisdiction over such an appeal would be as a USERRA claim or as
an IRA appeal. Bambl v. Department of the Treasury, 113 M.S.P.R. 55, ¶ 9
(2010). In this case, the appellant expressly denies that he raised a claim under
USERRA, and therefore we agree with the administrative judge’s finding that the
Board has no jurisdiction over this appeal under USERRA. PFR File, Tab 1 at 8;
ID at 3-6.
¶7 The Board has jurisdiction over an IRA appeal if the appellant has
exhausted his or her administrative remedies before OSC and makes nonfrivolous
allegations that: (1) he engaged in whistleblowing activity by making a protected
disclosure; and (2) the disclosure was a 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). An individual may bring
an IRA appeal claiming that the agency gave him a low performance rating in
retaliation for his whistleblowing activity, but the record reflects that the
appellant did not exhaust his administrative remedies before OSC regarding his
claim of whistleblower retaliation and he did not address the exhaustion issue on
appeal or on review. IAF, Tab 1 at 4; see Bambl, 113 M.S.P.R. 55, ¶ 9. We
therefore find that the administrative judge properly found that the Board has no
jurisdiction to consider the appellant’s claim of whistleblower retaliation as an
IRA appeal. ID at 6.
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¶8 Despite the appellant’s assertions on review, his remaining allegations of
harmful error, unlawful discrimination, and prohibited personnel practices
under 5 U.S.C. § 2302(b) are not independent sources of Board jurisdiction. See
Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867,
871-73 (D.C. Cir. 1982); see also Latham v. U.S. Postal Service, 117 M.S.P.R.
400, ¶ 5 (2012). Accordingly, we find that because the appellant failed to
identify any matter within the Board’s jurisdiction, the administrative judge could
not consider the merits of the appellant’s claims on appeal. We therefore DENY
the petition for review.
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
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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 information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
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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.