The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BENJAMIN CUNNINGHAM, DOCKET NUMBER
Appellant, NY-3443-18-0200-I-1
v.
ADMINISTRATIVE CONFERENCE DATE: November 3, 2022
OF THE UNITED STATES,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Benjamin Cunningham, Bronx, New York, pro se.
Matthew Wiener, Washington, D.C., 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 his 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 erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 that the appellant failed to make a nonfrivolous allegation
that the Board has jurisdiction over his appeal, we AFFIRM the initial decision.
¶2 On petition for review, the appellant resubmits documents already in the
record and repeats his allegations that the agency banned him from its office
building and refused to provide him with copies of its administrative decision
regarding a fraud complaint that he had filed against a Federal judge. Petition for
Review (PFR) File, Tab 1 at 4-25; Initial Appeal File (IAF), Tabs 4-6. 2 He does
not allege that he was ever a Federal employee or applicant for employment or
2
After he filed his petition for review, the appellant attempted to submit two additional
pleadings. PFR File, Tabs 3-4. The Office of the Clerk of the Board advised the
appellant that he could submit a motion requesting leave to file additional pleadings,
explaining the nature and the need for the pleadings, and showing that the evidence was
not readily available before the record closed. PFR File, Tab 4; see 5 C.F.R.
§ 1201.114(a)(5), (k). The appellant subsequently filed a motion for leave to file an
additional pleading in addition to his petition for review, asserting that the agency had
failed to file any response to his appeal or provide any documents regarding his
administrative procedures with the agency. PFR File, Tab 5. He thereafter filed an
additional pleading, which was rejected by the Office of the Clerk of the Board. PFR
File, Tab 7. The appellant has failed to sufficiently explain the nature of the argument
or evidence he wishes to file in his additional pleading, how this purported new
evidence or argument changes the outcome of his appeal, or why he could not have
submitted such documents in his petition for review. See Durr v. Department of
Veterans Affairs, 119 M.S.P.R. 195, ¶ 23 (2013); 5 C.F.R. § 1201.114(a)(5), (k).
Accordingly, the appellant’s motion is denied.
3
that he was subjected to an appealable action under 5 U.S.C. § 7512. PFR File,
Tab 1 at 4-19. The appellant does not assert that he was entitled to a hearing or
repeat his request for a hearing. Id.
¶3 Although an appellant bears the burden of proving by preponderant
evidence 3 that his appeal is within the Board’s jurisdiction, he is entitled to a
jurisdictional hearing if he presents nonfrivolous allegations 4 of Board
jurisdiction. See Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994);
5 C.F.R. § 1201.56(b)(2)(i)(A). The administrative judge erred in applying a
preponderant evidence standard, rather than nonfrivolous allegation standard, and
finding that the appellant was not entitled to a hearing because he had not
established that the Board had jurisdiction over his appeal by preponderant
evidence. IAF, Tab 7, Initial Decision at 2, 4. However, having reviewed the
record, we find that the appellant has not presented nonfrivolous allegations of
Board jurisdiction. PFR File, Tab 1 at 4-19; IAF, Tabs 1, 4-6. Therefore, we find
no material error in the dismissal of the appeal for lack of jurisdiction without
holding a hearing. 5
3
A preponderance of the evidence is that degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as suffic ient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
4
A nonfrivolous allegation is an assertion that, if proven, could establish the matter a t
issue. 5 C.F.R. § 1201.4(s).
5
The appellant filed three additional appeals, all of which were dismissed for lack of
jurisdiction. Cunningham v. Office of Special Counsel, MSPB Docket No. NY-3443-
17-0015-I-1, Initial Decision (Nov. 18, 2016); Cunningham v. Office of Special
Counsel, MSPB Docket No. NY-3443-18-0055-I-1, Initial Decision (Feb. 27, 2018);
Cunningham v. Office of Special Counsel, MSPB Docket No. NY-3443-18-0201-I-1,
Initial Decision (Sept. 21, 2018). The appellant’s petitions for review of those three
initial decisions will be resolved separately.
4
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
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).
6
Since the issuance of the initial decision in this matter, the Board may have updated
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.
5
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 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 war rants 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 t he Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. distri ct 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 receives 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
6
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
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
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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 section
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:
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
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.
8
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.