Opinion

Jacqueline Ashmore v. Department of Defense

Court: Merit Systems Protection Board
Filed: Aug 8, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

stating the Board is not required to address all jurisdictional elements when an appeal fails to meet one jurisdictional requirement because addressing the others would be both “unnecessary and possibly wasteful”

How later courts described this case

stating the Board is not required to address all jurisdictional elements when an appeal fails to meet one jurisdictional requirement because addressing the others would be both “unnecessary and possibly wasteful”
“For the exhaustion requirement to serve its intended purpose . . . the employee must inform [OSC] of the precise grounds for his charge of whistleblowing.”

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JACQUELINE ASHMORE, DOCKET NUMBER

Appellant, SF-1221-21-0549-W-1

DEPARTMENT OF DEFENSE, DATE: August 8, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Georgia A. Lawrence, Esquire, Atlanta, Georgia, for the appellant.

Holly Kay Botes, APO, AP, 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 individual right of action appeal (IRA) for lack of jurisdiction . On

petition for review, she reargues the merits of her appeal, reraises or raises for the

first time on review additional claims that she has failed to prove she exhausted

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

with the Office of Special Counsel (OSC), and presents new evidence and

argument on the issue of administrative exhaustion. 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

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 the IRA exhaustion requirement, we AFFIRM the initial

decision. We VACATE as unnecessary the administrative judge’s findings that

the appellant failed to nonfrivolously allege that she disclosed what she

reasonably believed was an abuse of authority and as to the contributing factor

criterion.

¶2 The administrative judge found that the appellant failed to prove she

exhausted the required administrative remedies with OSC with respect to any

alleged disclosures and/or personnel actions beyond those referenced in OSC’s

close-out letter. Initial Appeal File (IAF) Tab 8, Initial Decision (ID) at 7-8. The

substantive requirements of exhaustion are met when an appellant has provided

OSC with sufficient basis to pursue an investigation . Chambers v. Department of

Homeland Security, 2022 MSPB 8, ¶ 10 (citations omitted). An appellant may

demonstrate exhaustion through her initial OSC complaint or correspondence

with OSC. Id., ¶ 11 (citing Mason v. Department of Homeland Security,

116 M.S.P.R. 135, ¶ 8 (2011)). In the alternative, exhaustion may be proved

through other sufficiently reliable evidence, such as an affidavit or declaration

attesting that the appellant raised with OSC the substance of the facts in her

Board appeal or an unrebutted certified statement to this effect on an appellant’s

initial appeal form. Id. & n.7 (citing, among other cases, Delgado v. Merit

Systems Protection Board, 880 F.3d 913, 927 (7th Cir.), as amended on denial of

reh’g and reh’g en banc (7th Cir. 2018)). The Board recently clarified that an

appellant may give a more detailed account of her whistleblowing activities

before the Board than she did to OSC. Id., ¶ 10 (citing Briley v. National

Archives & Records Administration, 236 F.3d 1373, 1378 (Fed. Cir. 2001)). To

the extent that the administrative judge suggested the appellant was limited to the

precise manner in which she described her claims to OSC, we find this

description of the exhaustion requirement was overly restrictive. ID at 6 (citing

Ward v. Merit Systems Protection Board, 981 F.2d 521, 526 (Fed. Cir. 1992)

(“For the exhaustion requirement to serve its intended purpose . . . the employee

must inform [OSC] of the precise grounds for his charge of whistleblowing.”).

The administrative judge’s statement regarding the standard for exhaustion was

harmless because even applying the proper, less restrictive standard, the appellant

failed to prove she exhausted her administrative re medies as to any disclosures

beyond those identified in OSC’s close-out letter. See Panter v. Department of

the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error

that is not prejudicial to a party’s substantive rights provides no basis for reversal

of an initial decision).

¶3 The administrative judge found that the appellant failed to nonfrivolously

allege that her disclosures evidenced an abuse of authority because she was

disputing agency policy or complaining about her treatment by her supervisor. ID

at 9-10, 13-14. The administrative judge did not clearly articulate the basis for

this alternative finding. Id. However, we vacate it as unnecessary because he

correctly determined that the appellant’s exhausted disclosures were, in essence,

allegations that the agency had discriminated against her in violation of equal

employment opportunity (EEO) laws, and thus not within the scope of the

Board’s IRA jurisdiction. ID at 10-13; see Edwards v. Department of Labor,

2022 MSPB 9, ¶¶ 10-17, 22-23. Finally, the administrative judge alternatively

reasoned that, even assuming the appellant’s disclosures were protected, she

failed to nonfrivolously allege that her March 2021 disclosure contributed to the

exhausted personnel action of her March 24, 2021 letter of reprimand because the

reprimand was already in contemplation prior to the disclosure. ID at 14 -17. We

also vacate this alternative finding. Resolving this issue would require weighing

conflicting evidence, and thus it is not appropriate at the j urisdictional stage.

IAF, Tab 6 at 24, 55-57, 78-83; King v. Department of Veterans Affairs,

105 M.S.P.R. 21, ¶ 8 (2007) (“Before adjudicating an IRA appeal on the merits,

the Board must make a threshold finding of jurisdiction.” (emphasis in original));

see Sherman v. Department of Homeland Security, 122 M.S.P.R. 644, ¶¶ 9-11

(2015) (finding that, at the jurisdictional stage in an IRA appeal, the Board could

not weigh conflicting evidence regarding whether a personnel action was merely

contemplated or completed and awaiting implementation, and therefore

concluding an appellant nonfrivolously alleged he met the contributing factor

criterion). Because we agree with the administrative judge that the appellant

failed to nonfrivolously allege her disclosures were protected, we need not reach

the contributing factor criterion. See Schmittling v. Department of the Army,

219 F.3d 1332, 1336-37 (Fed. Cir. 2000) (stating the Board is not required to

address all jurisdictional elements when an appeal fails to meet one jurisdictional

requirement because addressing the others would be both “unnecessary and

possibly wasteful”).

¶4 The appellant includes new documents and arguments with her petition for

review. 2 Petition for Review (PFR) File, Tab 1. First, she attaches a copy of a

Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence or

argument submitted for the first time with a petition for review absent a showing that it

was unavailable before the record was closed before the administrative judge despite

response to OSC’s preliminary determination letter, apparently to support her

burden as to the administrative exhaustion requirement. Id. at 9-12. We note

that the response letter does not provide any new information regarding the

appellant’s alleged disclosures. Id. The administrative judge considered this

information below. Id.; ID at 7. Nothing in the response letter suggests that the

appellant made any disclosure not previously considered by the administrative

judge or that any of her disclosures were protected under 5 U.S.C. § 2302(b)(8).

¶5 Second, the appellant raises multiple new claims on review, including for

example that she was subjected to the hostile work environment in reprisal f or

testifying in support of coworkers’ EEO complaints. PFR File, Tab 1 at 2 -4.

There is no evidence below or on review that she exhausted her administrative

remedies regarding these issues.

¶6 Finally, the appellant attaches to her petition for review a printout from the

Board’s website regarding prohibited personnel practices under 5 U.S.C.

§ 2302(b)(9). PFR File, Tab 1 at 14-17. Although not entirely clear, she may

have attached this printout to support her argument that the administrative judge

improperly limited his analysis to whether the appellant made a disclosure or

engaged in an activity protected under 5 U.S.C. § 2302(b)(8) or

§ 2302(b)(9)(A)(i), (B), (C), or (D). PFR File, Tab 1 at 7. The Board’s IRA

jurisdiction is limited to claims that an agency retaliated against an appellant in

reprisal for prohibited personnel practices set forth in 5 U.S.C. § 2302(b)(8) or

§ 2302(b)(9)(A)(i), (B), (C), or (D). PFR File, Tab 1 at 7; see Carney v.

Department of Veterans Affairs, 121 M.S.P.R. 446, ¶ 5 (2014) (identifying those

prohibited personnel practices over which the Board currently has IRA

jurisdiction); Van Ee v. Environmental Protection Agency, 64 M.S.P.R. 693, 697,

the party’s due diligence. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 213-14

(1980). However, we have considered the appellant’s arguments to the extent they

impact the Board’s jurisdiction, which is always before the Board and can be raised by

the parties or sua sponte at any time. Ney v. Department of Commerce, 115 M.S.P.R.

204, ¶ 7 (2010).

699 (1994) (explaining that the scope of the Board’s IRA jurisdiction did not

include other prohibited personnel practices beyond, at the time that appeal was

decided, reprisal for whistleblowing). Therefore, we discern no error in the

administrative judge limiting his discussion to such claims . In sum, the

appellant’s new evidence and argument provides no basis to disturb the

administrative judge’s determination that the Board lacks jurisdiction over the

appeal. 3

¶7 The appellant did not allege below that her resignation was involuntary.

IAF, Tab 5 at 9. On review, she concedes that, as the administrative judge found,

she failed to exhaust this personnel action with OSC. ID at 7 -8; PFR File, Tab 1

at 4; IAF, Tab 6 at 34. For the first time on review, the appellant suggests that

her resignation was the result of a lack of management support and a resulting

illness. PFR File, Tab 1 at 4. She may wish to file an alleged involuntary

resignation appeal with the regional office. An employee-initiated action, such as

a resignation, generally is not appealable to the Board unless an appellant proves

that it was involuntary and thus constituted a constructive removal. Gutierrez v.

U.S. Postal Service, 90 M.S.P.R. 604, ¶ 7 (2002). An appellant can establish

involuntariness by demonstrating that the action resulted from duress, coercion,

or misrepresentation provided by the agency. Id. We express no opinion as to

whether the Board would have jurisdiction over such an appeal or whether it

would be timely filed.

¶8 Accordingly, we affirm the administrative judge’s initial decision as

modified above.

Nor do the appellant’s arguments on review regarding the merits of the agency’s

alleged actions against her establish jurisdiction over her claims. PFR File, Tab 1

at 3-4.

NOTICE OF APPEAL RIGHTS 4

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 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.

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).

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.

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

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

(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 a ny 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