Gianna Castro v. Department of Justice

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

GIANNA CASTRO, DOCKET NUMBER

Appellant, AT-0752-17-0200-I-1

v.

DEPARTMENT OF JUSTICE, DATE: January 23, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Angelo Filippi, Esquire, Fort Lauderdale, Florida, for the appellant.

Jeffrey N. Poulin, Springfield, Virginia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed her termination appeal for lack of jurisdiction. Generally, we grant

petitions such as this one only in the following circumstances: 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. 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. Except as

expressly MODIFIED to clarify why the suitability regulations of the Office of

Personnel Management (OPM) are not a source of jurisdiction over this appeal ,

we AFFIRM the initial decision.

¶2 Approximately 4 months into her excepted-service appointment, the

appellant was terminated during her trial period for her alleged lack of candor in

her application for employment with the agency. Initial Appeal File (IAF), Tab 1

at 7-9, Tab 2 at 3. On appeal to the Board, she argued, among other things, that

her termination constituted a suitability action. IAF, Tab 9 at 1 3-15. The

administrative judge found that the appellant failed to make a nonfrivolous

allegation of Board jurisdiction, and he dismissed her appeal without holding the

requested hearing. IAF, Tab 11, Initial Decision (ID). He concluded that she had

failed to nonfrivolously allege that she had accrued adverse action appeal rights

under 5 U.S.C. chapter 75, ID at 2-4, or that she was denied procedures set forth

in 5 C.F.R. § 315.805 concerning terminations for conditions arising

preappointment, 2 ID at 4-5. He further determined that she had failed to make a

2

The appellant has not challenged these findings on review, and we find no material

error in the administrative judge’s analysis. Because the appellant was serving in the

excepted service, the regulatory right of appeal on the limited grounds set forth in

5 C.F.R. § 315.806 may not have even been available to her. See 5 C.F.R.

§ 210.101(b). Regardless, we find no reason to disturb the administrative judge’s

3

nonfrivolous allegation that she was in a position covered by OPM’s suitability

regulations at 5 C.F.R. part 731 or that she had been subjected to a suitability

action as defined in those regulations. ID at 5-6.

¶3 On petition for review, the appellant argues that her position was covered

by the suitability regulations and that her termination was a suitability action.

Petition for Review (PFR) File, Tab 1 at 3-6. A position in the excepted service

where the incumbent can be noncompetitively converted to the competitive

service constitutes a covered position. 5 C.F.R. § 731.101(b). The Standard

Form 50 (SF-50) documenting the appellant’s appointment states that her

appointment may be converted to a career appointment in not less than 3 years

and not more than 4 years. IAF, Tab 10 at 22. Thus, as the agency seems to

acknowledge on review, it appears the appellant was in a covered position. PFR

File, Tab 3 at 11.

¶4 We nevertheless find that she failed to nonfrivolously allege that her

termination was a suitability action under OPM’s regulations. 3 As a preliminary

matter, we find no documents or alleged facts in the record that would support the

appellant’s claim that this was a suitability action. For instance, t he proposal and

decision letters make no reference to the agency making a suitability

determination, taking a suitability action, or otherwise finding that the appellant

had made a material, intentional false statement, or deception or fraud in

examination or appointment. IAF, Tab 1 at 7-10, Tab 2 at 3. The SF-50

alternative analysis that the process provided to the appellant satisfied the requirements

of 5 C.F.R. § 315.805.

3

A nonfrivolous allegation is an assertion that, if proven, could establish the matter at

issue. 5 C.F.R. § 1201.4(s). An allegation generally will be considered non frivolous

when, under oath or penalty of perjury, an individual makes an allegation that is more

than conclusory, is plausible on its face, and is material to the legal issues in the appeal.

Id.

4

documenting her termination referenced 5 C.F.R. § 315.805, rather than part 731,

as the legal authority for the action. 4 IAF, Tab 2 at 4.

¶5 The appellant asserts that the agency’s finding that she lacked candor in her

application is akin to a finding that she had made a “material, intentional false

statement, or deception or fraud in examination or appointment,” which is a factor

upon which a suitability action may be taken. PFR File, Tab 1 at 5; see 5 C.F.R.

§ 731.202(b)(3). However, the appellant has failed to allege facts that, if proven,

would show that the agency’s lack-of-candor finding was equivalent to a finding

of a “material, intentional false statement, or deception or fraud in examination or

appointment.” IAF, Tab 9 at 13-15; PFR File, Tab 1 at 3-6; see, e.g., Ludlum v.

Department of Justice, 278 F.3d 1280, 1283-85 (Fed. Cir. 2002) (explaining that

lack of candor and falsification are different, though related, forms of

misconduct). Moreover, OPM has not delegated authority to employing agencies

to take suitability actions in matters involving a “material, intentional false

statement, or deception or fraud in examination or appointment,” 5 C.F.R.

§ 731.103(g), and OPM’s suitability regulations are not a source of jurisdiction

when an employing agency exceeds its delegated authority, see Edwards v.

Department of State, 98 M.S.P.R. 481, ¶ 7 (2005); 5 C.F.R. § 731.501(a).

4

Guidance from OPM suggests citing the legal authority for a trial period termination

for preappointment reasons as “Reg 315.805 Eq,” indicating the action was taken

pursuant to agency procedures equivalent to those required under the civil service laws

and regulations, or under other procedures. Guide to Process ing Personnel Actions,

Chapter 31, available at www.opm.gov/feddata/gppa/Gppa31.pdf. The administrative

judge’s statement that the termination “was explicitly taken as an adverse action

pursuant to [5 U.S.C. c]hapter 75,” ID at 6, is not supported by any document or

nonfrivolous allegation of fact in the record, but we find this statement immaterial to

the outcome. The appellant has failed to make a nonfrivolous allegation that the

termination was a suitability action under 5 C.F.R. part 731, and she has not contested

the administrative judge’s separate, explained conclusion that she failed to make a

nonfrivolous allegation that she possessed adverse action appeal rights under 5 U.S.C.

chapter 75. ID at 2-4; see 5 U.S.C. §§ 7511, 7512, 7513(d).

5

¶6 Accordingly, we find that the appellant has failed to nonfrivolously allege a

basis for the Board’s jurisdiction over this matter as a suitability action or on any

other theory. 5

NOTICE OF APPEAL RIGHTS 6

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation an d

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

5

The National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114 -92,

§ 1086(f)(9), 129 Stat. 726, 1010 (2015), amended 5 U.S.C. § 7512 to state that

5 U.S.C. chapter 75, subchapter II, “does not apply to . . . a suitability action taken by

[OPM] under regulations prescribed by [OPM], subject to the rules prescribed by the

President under [title 5] for the administration of the competitive service.” 5 U.S.C.

§ 7512(F). Given our finding that the appellant failed to make a nonfrivolous allegation

that her termination was a suitability action under OPM’s regulations, we do not

consider the effect, if any, of section 7512(F) on this appeal, an issue that has not been

addressed by either party.

6

Since the issuance of the initial decision in this matter, the Board may have up dated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

6

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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 partic ular

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, 10, and 11.

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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

7

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court (not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative re ceives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of

discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a court-appointed lawyer and

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

8

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in sec tion

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 7 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address:

7

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,

132 Stat. 1510.

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U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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, 10, and 11.

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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

Contact information for the 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.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.