The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HERMAN E. MILLENDER, DOCKET NUMBER
Appellant, AT-1221-15-0613-W-1
v.
DEPARTMENT OF THE ARMY, DATE: March 21, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Herman E. Millender, Talladega, Alabama, pro se.
Polly Russell, Esquire, Anniston, Alabama, 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 his individual right of action (IRA) 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 regulation or the erroneous application of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the law to the facts of the case; the administrative 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, 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 current agency employee, filed this IRA appeal alleging
that the agency retaliated against him for representing employees in complaints
and grievances against the agency involving the Merit Systems Protection Board
(MSPB), the Equal Employment Opportunity Commission, the Office of Special
Counsel (OSC), the Federal Labor Relations Authority, the Department of Labor,
and the Office of Labor Management Standards. Initial Appeal File (IAF), Tab 1
at 2, Tab 9 at 1. He requested a hearing and alleged, inter alia, that the agency
retaliated against him by refusing to take action against employees and a
nonemployee trespasser for spreading false rumors about him on Federal property
to destroy his reputation and “to deny a fair Union election.” IAF, Tab 1 at 2. He
further alleged that the agency allowed the local union to attack his reputation
and character by spreading false rumors in violation of “regulation, policy, [and]
rules.” Id. at 1. The appellant also alleged an abuse of authority and an abuse of
discretion by the agency. 2 Id. at 11.
2
The appellant submitted a copy of his January 9, 2015 letter to OSC alleging that the
agency’s refusal to discipline two employees and a nonemployee for spreading false
rumors was an abuse of authority, an abuse of discretion, and a violation of laws,
regulations, rules, and policies. IAF, Tab 1 at 11. The appellant also provided OSC
and the Board with a copy of the July 24, 2014 complaint he filed with the agency’s
3
¶3 Attached to his appeal the appellant also submitted campaign material from
an American Federation of Government Employees Local 1975 election, accusing
him of various misdeeds. IAF, Tab 1 at 6-7. The appellant also submitted: the
agency’s Table of Penalties for various offenses; the July 24, 2014 letter he sent
to the agency’s Inspector General; the January 9, 2015 letter he sent to OSC and
the April 9, 2015 letter informing him that OSC had terminated its inquiry into
his allegation of reprisal for whistleblowing and he could seek corrective action
from the Board. Id. at 4-5, 9-16. The administrative judge issued an order
informing the appellant of his jurisdictional burden and ordering him to file
evidence and argument establishing jurisdiction over his appeal. IAF, Tabs 3, 8.
The parties responded. IAF, Tabs 9‑12.
¶4 Based on the written record, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction. IAF, Tab 13, Initial
Decision (ID). She found that the appellant nonfrivolously alleged that he
engaged in an activity protected under 5 U.S.C. 2302(b)(9) by representing and
assisting coworkers in complaints and grievances against the agency, and that he
raised this activity in his letter to OSC. ID at 3-5. The administrative judge
found, however, that the appellant failed to allege that the agency took or threated
to take a personnel action against him in reprisal for his protected activity. ID
at 5. The administrative judge also found that the appellant’s complaints in his
January 9, 2015 letter to OSC alleging an abuse of authority, an abuse of
discretion, and violations of laws, rules, regulations and policies, were too vague
to constitute protected disclosures under 5 U.S.C. § 2302(b)(8). ID at 3, n.3. The
appellant filed a petition for review of the initial decision, and the agency
Office of the Inspector General alleging that the agency failed to protect him on a
military installation in reprisal for his “involvement with EEO AND MSPB cases.” Id.
at 9, 11. He further alleged that “[t]he Agency allowed Union Officers to enter
government property to spread false statements and called the incident ‘internal Union
Business.’” Id.
4
responded in opposition to his petition for review. Petition for Review (PFR)
File, Tabs 1, 3. 3
¶5 The Board has jurisdiction over an IRA appeal if the appellant exhausts his
administrative remedies before OSC and makes nonfrivolous allegation that:
(1) he made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in
protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D) 4;
and (2) the disclosure or protected activity was a contributing factor in the
agency’s decision to take or fail to take a personnel action, as defined by 5 U.S.C.
§ 2302(a)(2)(a), against the appellant. See 5 U.S.C. §§ 1214(a)(3), 1221(e)(1);
Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).
Once an appellant establishes jurisdiction over his IRA appeal, he is entitled to a
hearing on the merits of his claim, which he must prove by preponderant
evidence. Rebstock Consolidation v. Department of Homeland
Security, 122 M.S.P.R. 661, ¶ 9 (2015).
¶6 On review, the appellant reasserts the claim he raised on appeal that his
protected activity was a contributing factor in the agency’s failure to take
3
On March 1, 2016, the Office of the Clerk of the Board received a pleading from the
appellant titled, “Response to Agency’s Cross Petition for Review,” which appears to
be intended as the appellant’s reply to the agency’s January 11, 2016 response to his
petition for review. PFR File, Tab 4. Though this pleading is dated January 25, 2016,
it bears a postmark date of February 1, 2016. Id. Accordingly, because the appellant’s
reply was untimely filed, we have not considered it. See 5 C.F.R. § 1201.114(e);
5 C.F.R. § 1201.23.
4
The Whistleblower Protection Enhancement Act (WPEA) expanded the Board’s
jurisdiction in IRA appeals to include claims that a personnel action was proposed or
taken as a result of a prohibited personnel practice described at 5 U.S.C.
§ 2302(b)(9)(B). Specifically, section 101(b)(1)(A) of the WPEA amended 5 U.S.C.
§ 1221(a) to provide that an employee, former employee, or applicant for employment
may seek corrective action from the Board with respect to any personnel action taken,
or proposed to be taken, against such employee, former employee, or applicant for
employment, as a result of a prohibited personnel practice described in 5 U.S.C.
§ 2301(b)(8) or 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). See Hooker v.
Department of Veterans Affairs, 120 M.S.P.R. 629, ¶ 9 (2014) (discussing the scope of
the WPEA amendments to title 5).
5
disciplinary action against other employees and nonemployees for distributing
false statements about the appellant and his wife during the course of a union
campaign. PFR File, Tab 1 at 3. Because the appellant does not allege that the
agency took, threatened to take, or failed to take, any personnel action against
him based upon his protected activity, we agree with the administrative judge’s
decision to dismiss this IRA appeal for lack of jurisdiction. ID at 5; see 5 U.S.C.
§§ 1214(b)(4)(B)(i), 2302(a)(2)(A), 2302(b)(9); Rebstock, 122 M.S.P.R. 661, ¶ 9.
We find that the appellant’s remaining arguments on review, alleging that the
administrative judge made factual, legal, and procedural errors that affected the
outcome of his appeal, provide no basis to disturb the initial decision. 5 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 U.S.
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
5
For example, the appellant argues, among other things, that the initial decision
incorrectly cites the date of “[t]he letter that exhausted his OSC complaint,” and he
submits his letter to OSC dated March 23, 2015. PFR File, Tab 1 at 1, 16. However,
the letter he submits on review predates the April 9, 2015 closure letter that he received
from OSC, which the administrative judge properly cited in the initial decision. ID
at 3; IAF, Tab 1 at 5. The appellant argues that the agency should have disciplined the
individuals who spread false rumors about him on Government property. IAF, Tab 1
at 3. The appellant submits part of the January 23, 2014 final order issued by the Board
in a Uniformed Services Employment and Reemployment Rights Act of 1994 (codified
at 38 U.S.C. §§ 4301-4333) case, in which he represented an individual disciplined for
spreading rumors. PFR File, Tab 1 at 32-33. The appellant resubmits his June 29, 2015
Response to Jurisdiction and the agency’s Table of Penalties, which is part of the record
on appeal. PFR File, Tab 1 at 21-31; IAF, Tab 1 at 13-16, Tab 9. The appellant also
submits a copy of the initial decision issued by the Board in this appeal. PFR File,
Tab 1 at 6-15. Having considered the appellant’s evidence and argument on review, we
find no basis to disturb the initial decision.
6
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 U.S. 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 U.S. 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 U.S. 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 U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information about
the U.S. 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 the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
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If you are interested in securing pro bono representation for an appeal to
the U.S. 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
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.