Benjamin Cunningham v. Office of Special Counsel

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BENJAMIN CUNNINGHAM, DOCKET NUMBER

Appellant, NY-3443-17-0015-I-1

v.

OFFICE OF SPECIAL COUNSEL, DATE: November 2, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Benjamin Cunningham, Bronx, New York, pro se.

Amy Beckett, Esquire, and Kenneth Hendrickson, 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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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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 and AFFIRM the initial

decision, which is now the Board’s final decision. 2 5 C.F.R. § 1201.113(b).

BACKGROUND

¶2 The appellant filed an appeal alleging that he was a “Federal crime victim”

and, among other things, that the Office of Special Counsel (OSC) had unlawfully

dismissed his fraud, waste, abuse, and mismanagement complaint that he filed

against the U.S. Department of Justice, U.S. Marshals Service (USMS), simply

because he is “not a Federal employee.” Initial Appeal File (IAF), Tab 1 at 2-3.

Because it appeared that the Board may not have jurisdiction over the appeal, the

administrative judge issued two separate show cause orders that explained the

jurisdictional issues in this appeal and provided the appellant with an opportunity

to provide evidence and argument to establish that: (1) he is an employee under

5 U.S.C. § 7511; and (2) an adverse action as defined by 5 U.S.C. § 7512 had

occurred. IAF, Tabs 3, 9. Without holding a hearing, the administrative judge

issued an initial decision finding that, although the appellant responded to her

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The appellant also filed a motion for leave to file additional pleadings. P etition for

Review File, Tab 7. He has failed to sufficiently describe the nature of, and the need

for, the additional pleadings, as required by 5 C.F.R. § 1201.114(a)(5). Further, the

appellant has failed to explain how these additional pleadings would warrant a different

outcome than that of the initial decision; that is, the Board lacks jurisdiction over his

appeal. Accordingly, the appellant’s motion is denied.

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jurisdictional orders by referring to newspapers and various court hearings, he did

not dispute that he was not a current or prior Federal employee or allege that he

was an applicant for employment. IAF, Tab 12, Initial Decision (ID) at 4. The

administrative judge also found that the appellant did not dispute that he was not

appealing an adverse action as defined by 5 U.S.C. § 7512. Id. Finally,

concerning the appellant’s apparent claim that the Board has jurisdiction over his

appeal because he is a non-Federal employee whistleblower, the administrative

judge found that the appellant is not an “employee” entitled to protection under

the Whistleblower Protection Enhancement Act or the Whistleblower Protection

Act. ID at 5-6. Accordingly, the administrative judge found that the appellant

failed to make a nonfrivolous allegation that the Board has jurisdiction over his

appeal. ID at 6.

¶3 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. The agency has filed a response in opposition. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant has failed to make a nonfrivolous allegation that the Board has

jurisdiction over his appeal.

¶4 On review, the appellant has resubmitted documents he filed below and

asserts that the administrative judge’s decision is “ ILLEGAL” and

“UNCONSTITUTIONAL” because it is “protecting the USMS Agency’s

FRAUDULENT federal crime behavior which was unlawfully FUNDED by the

United States Government’s Tax-Dollars.” PFR File, Tab 1 at 9 (emphasis and

grammar as in the original); IAF, Tabs 1, 4-6, 10-11. He also challenges OSC’s

dismissing his complaint on the basis that he is not a Federal employee. PFR

File, Tab 1 at 10.

¶5 Although the appellant appears to reassert the claims he raised below, i.e.,

that he was mistreated by the USMS and that OSC improperly dismissed his

complaint against the agency, PFR File, Tab 1; IAF, Tabs 1, 4-6, 10, 11, he does

not challenge the administrative judge’s jurisdictional findings nor provid e

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evidence or argument showing that the Board has jurisdiction over this appeal.

Therefore, because the appellant has raised no arguments challenging the

administrative judge’s jurisdictional findings, he has shown no error by the

administrative judge in dismissing his appeal for lack of Board jurisdiction. See

Tines v. Department of the Air Force, 56 M.S.P.R. 90, 92 (1992) (finding that a

petition for review must contain sufficient specificity to enable the Board to

ascertain whether there is a serious evidentiary challenge justifying a complete

review of the record); Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133

(1980) (finding that, before the Board will undertake a complete review of the

record, the petitioning party must explain why the challenged factual

determination is incorrect and identify the specific evidence in the recor d that

demonstrates the error), review denied, 669 F.2d 613 (9th Cir. 1982) (per curiam).

¶6 Furthermore, it is undisputed that the appellant is not a current or former

Federal employee, and he did not allege that he was an applicant for a Federal

position. Therefore, we discern no reason to disturb the administrative judge’s

well-reasoned findings that the Board lacks jurisdiction over this matter . See

Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to

disturb the administrative judge’s findings when she considered the evidence as a

whole, drew appropriate inferences, and made reasoned conclusions); see

generally Willis v. Department of Agriculture, 141 F.3d 1139, 1144 (Fed. Cir.

1998) (finding that the Whistleblower Protection Act “is intended to protect

government employees who risk their own personal job security for the

advancement of the pubic good by disclosing abuses by government personnel”)

(emphasis added); Aviles v. Merit Systems Protection Board, 799 F.3d 457 (5th

Cir. 2015) (upholding the Board’s decision that a former Internal Revenue

Service employee’s report to his superiors that ExxonMobil Corporation has

5

allegedly committed tax fraud did not constitute a protected disc losure because it

concerned an allegation against a private entity). 3

NOTICE OF APPEAL RIGHTS 4

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 and 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.

3

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-

18-0055-I-1, Initial Decision (Feb. 27, 2018); Cunningham v. Administrative

Conference of the United States, MSPB Docket No. NY-3443-18-0200-I-1, Initial

Decision (Sept. 24, 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.

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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.

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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 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.

(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

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

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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

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

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(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 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. 5 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.

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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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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.