The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DIETER STUSSY, DOCKET NUMBER
Appellant, SF-1221-16-0142-W-1
v.
MERIT SYSTEMS PROTECTION DATE: May 27, 2016
BOARD,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Dieter Stussy, Las Vegas, Nevada, pro se.
Matthew Edward Bradley, Esquire, Washington, D.C., 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
erroneous interpretation of statute or regulation or the erroneous application of
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, formerly a GS-9 Tax Technician with the Internal Revenue
Service who resigned in 1994, filed an IRA appeal in November 2013 in which he
alleged, inter alia, that a Board administrative judge erred and counsel for the
Office of Personnel Management (OPM) committed misconduct in a disability
retirement appeal he filed with the Board in 2012. Specifically, he claimed that,
during that proceeding, the OPM attorney violated 18 U.S.C. § 1519 2 by failing to
respond to his discovery request and that the administrative judge erred when, on
that basis, he did not enter a directed verdict in the appellant’s favor as a sanction
against OPM for its counsel’s act. 3 The administrative judge dismissed the IRA
appeal for lack of jurisdiction, finding that the appellant had not exhausted his
2
That section generally provides criminal penalties for the knowing concealment in any
record with the intent to impede or obstruct the proper administration of any matter
within the jurisdiction of any agency of the United States.
3
The administrative judge affirmed OPM’s decision disallowing as untimely filed the
appellant’s application for disability retirement benefits, Stussy v. Office of Personnel
Management, MSPB Docket No. SF-844E-13-0168-I-1, Initial Decision at 1, 9
(Mar. 13, 2013), and the full Board affirmed the initial decision, Stussy v. Office of
Personnel Management, MSPB Docket No. SF-844E-13-0168-I-1, Final Order at 2, 6
(May 7, 2014).
3
remedy before the Office of Special Counsel (OSC) as to this or other claims.
Stussy v. Department of the Treasury, MSPB Docket No. SF-1221-14-0068-W-1,
Initial Decision at 1, 10 (Mar. 26, 2014). Apart from modifications not here
relevant, the full Board affirmed the initial decision. Stussy v. Department of the
Treasury, MSPB Docket No. SF-1221-14-0068-W-1, Final Order at 2, 4-5
(June 23, 2015). As to the appellant’s whistleblower claim regarding the
handling of his disability retirement appeal, the Board found that he solely raised
these allegations to OSC’s Disclosure Unit on a Form OSC-12, but that, unlike
OSC’s Complaints Examining Unit, the Disclosure Unit does not review
allegations of prohibited personnel practices and that making a disclosure to the
Disclosure Unit does not satisfy the exhaustion requirement of 5 U.S.C.
§ 1214(a)(3). Id. at 5.
¶3 The appellant then filed a new IRA appeal after having brought his claim to
OSC’s Complaints Examining Unit and having received a closure letter. 4 Initial
Appeal File (IAF), Tab 1. He renewed his allegation that the Board’s
administrative judge essentially retaliated against him by ruling against him in his
disability retirement appeal after he disclosed misconduct by the OPM counsel
and the administrative judge himself. Id. After finding that the appellant had
now established exhaustion, another Board administrative judge 5 issued a
thorough jurisdictional order advising the appellant that it did not appear that he
had adequately alleged the other jurisdictional elements of an IRA appeal;
4
The appellant also raised a number of other claims, including those related to his 1993
removal, which was rescinded based on a settlement reached through the negotiated
grievance procedure, his resulting resignation in 1994, which he claimed was
involuntary, and the merits of his disability retirement appeal. The administrative judge
did not consider these claims in his adjudication of the appellant’s IRA appeal.
Because the appellant, on petition for review, has not challenged the failure of the
administrative judge to address these claims and because we agree that these claims are
not relevant to the appellant’s IRA appeal, we have not considered them.
5
This administrative judge is not the same administrative judge who issued both the
initial decision in the appellant’s disability retirement appeal and the initial decision in
his first IRA appeal.
4
namely, failing to nonfrivolously allege that he was subjected to a personnel
action under 5 U.S.C. § 2302, and the administrative judge directed him to file
evidence and argument to establish the Board’s jurisdiction. IAF, Tab 2 at 3-4.
The appellant filed a response, IAF, Tab 4, as did the agency, IAF, Tab 7.
¶4 In his initial decision, the administrative judge found that the appellant
failed to raise a nonfrivolous allegation that he was subject to a personnel action
in connection with his claim that, in ruling against him in an earlier appeal, a
Board administrative judge retaliated against the appellant for having disclosed
misconduct during that proceeding. IAF, Tab 8, Initial Decision (ID) at 3-6. The
administrative judge here reasoned that the Whistleblower Protection Act (WPA)
should not be interpreted in a manner that would interfere with normal appeal
processes. ID at 4. Accordingly, he dismissed the IRA appeal for lack of
jurisdiction. ID at 1, 6.
¶5 On petition for review, Petition for Review (PFR) File, Tab 1, the appellant
first argues, as he did below, that, because the administrative judge, through his
decision, denied the appellant disability retirement for which he claims he was
otherwise qualified, he was thereby subject to a decision concerning benefits,
which is a covered personnel action under 5 U.S.C. § 2302(a)(2)(A)(ix).
PFR File, Tab 1 at 6. He has not, however, shown error in the administrative
judge’s finding that the Board and our reviewing court have recognized that the
WPA should not be interpreted so as to interfere with normal appeal processes.
ID at 4-5, see Meuwissen v. Department of the Interior, 234 F.3d 9, 11, 13-14
(Fed. Cir. 2000) (holding that the “disclosure” of a decision by an administrative
judge, even an incorrect one, is not a disclosure protected by the WPA; even an
erroneous decision by an administrative judge empowered to make adjudicative
decisions based on operative facts and relevant law is not the type of violation
comprehended by the WPA; the remedy for an incorrect decision is an appeal).
Acknowledging that Meuwissen was legislatively overruled by the Whistleblower
Protection Enhancement Act (WPEA) to the extent that the court found that the
5
appellant did not make a disclosure because the administrative ruling with which
he disagreed was already publicly known, the administrative judge determined,
nonetheless, that the WPEA did not disturb the court’s more general finding that
erroneous administrative rulings are not the type of danger or wrongdoing that
whistleblower protections were meant to address. ID at 4; O’Donnell v.
Department of Agriculture, 120 M.S.P.R. 94, ¶ 15 n.5 (2013), aff’d, 561 F. App’x
926 (Fed. Cir. 2014) 6; Francisco v. Office of Personnel Management, 295 F.3d
1310 (Fed. Cir. 2002) (explaining that alleged disclosures that were merely legal
arguments concerning supposed errors by OPM in connection with the appellant’s
application for benefits to OPM and by OPM in defending its action before the
Board are simply not the types of disclosures the WPA was designed to protect; it
was not designed to afford an opportunity to collaterally attack the results of
earlier litigation brought by the appellant).
¶6 Noting that these cases addressed whether, in challenging litigation-related
conduct, the employee engaged in protected activity, the administrative judge
determined that the same considerations support finding that adjudication is not a
personnel action covered by the WPA. ID at 4-5. He reasoned that allowing such
collateral challenges would thwart orderly adjudication by allowing
administrative judges to sit in appellate review of Board members’ previous
decisions and would undermine the finality of the Board’s determinations by
opening the door to an endless cycle of new appeals in every case. ID at 5. The
administrative judge further found that, in analogous circumstances, other
tribunals, including the Equal Employment Opportunity Commission and Federal
district courts, have refused to adopt interpretations of their governing statutes
6
The appellant argues on review that the administrative judge improperly relied on this
nonprecedential decision to which he, as a pro se litigant, lacks access. PFR File, Tab 1
at 9, 11. However, the Board may rely on unpublished decisions of the U.S. Court of
Appeals for the Federal Circuit if it finds, as it does here, the court’s reasoning
persuasive. Mauldin v. U.S. Postal Service, 115 M.S.P.R. 513, ¶ 12 (2011). Moreover,
such decisions are readily available on the internet.
6
that would allow this type of collateral challenge. ID at 5-6. Beyond disagreeing
with the administrative judge’s ultimate conclusion in this regard, the appellant
has not challenged his reasoning or the support he has provided for his findings.
To the extent the appellant still believes that the Board’s decisions were
incorrectly decided based on the same claims that he now raises or others, he
acknowledges that the further review he has sought is pending in the U.S. Court
of Appeals for the Federal Circuit. IAF, Tab 4 at 11; Stussy v. Office of
Personnel Management, Appeal No. 2014-3149, Stussy v. Department of the
Treasury, Appeal No. 2016-1553. In sum, and because we find the administrative
judge’s reasoning persuasive, we agree that the appellant failed to nonfrivolously
allege that he was subject to a covered personnel action under the WPA when the
administrative judge, in the appellant’s disability retirement appeal, ruled against
him. Therefore his IRA appeal must be dismissed for lack of jurisdiction. 7
¶7 The appellant also claims that he was subject to a denial of reinstatement,
another personnel action under 5 U.S.C § 2302(a)(2)(A)(v), because that would
be the proper remedy for his employing agency’s alleged violation of the
settlement agreement reached in 1994 pursuant to which his removal was
rescinded and he agreed to resign. According to the appellant, if he had been
reinstated, then his disability retirement would have been timely filed. PFR File,
Tab 1 at 6. To the extent that the appellant contends that, in adjudicating his first
7
Because our finding compels this disposition, we need not address the appellant’s
claims that he alleged a violation of law, that he established that his disclosure was a
contributing factor based on the “knowledge/timing test,” and that Congress did not
immunize the Merit Systems Protection Board from the WPA and the WPEA. PFR File,
Tab 1 at 6-7. Nor has the appellant shown that the administrative judge violated the
court’s instructions in Burgess v. Merit Systems Protection Board, 758 F.2d 641
(Fed. Cir. 1985), by not providing him adequate notice of his jurisdictional burden.
IAF, Tab 2 at 1-4. Further, to the extent the appellant argues that the agency’s action is
in some way violative of Chevron, USA, Inc., v. Natural Resources Defense Council,
Inc., et al., 467 U.S. 837 (1984), PFR File, Tab 1 at 5, this is not an argument that he
raised below, and we therefore will not address it, Banks v. Department of the Air
Force, 4 M.S.P.R. 268, 271 (1980).
7
IRA appeal, the administrative judge denied him reinstatement when he ruled that
the appellant’s challenge to the settlement agreement (which was reached in
another forum and was not entered into the record of a Board appeal for
enforcement purposes) did not constitute a nonfrivolous allegation of Board
jurisdiction in that IRA appeal, Stussy v. Department of the Treasury, MSPB
Docket No. SF-1221-14-0068-W-1, Initial Decision at 5, our holding in this
appeal applies equally to that claim.
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 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
8
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.
If you are interested in securing pro bono representation for your 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.