Opinion

Jordan Griffin v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Jul 28, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

explaining that the Board must first resolve the threshold issue of jurisdiction before proceeding to the merits of an appeal

How later courts described this case

explaining that the Board must first resolve the threshold issue of jurisdiction before proceeding to the merits of an appeal
stating that the Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JORDAN GRIFFIN, DOCKET NUMBER

Appellant, SF-0752-21-0571-I-1

DEPARTMENT OF THE NAVY, DATE: July 28, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Matthew Camacho, Marine Corps Base Hawaii, Kaneohe Bay, Hawaii, for

the appellant.

Steven K. Forjohn, Esquire, Marine Corps Base Hawaii, Kaneohe Bay,

Hawaii, 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 probationary termination appeal for lack of jurisdiction . Generally,

we grant petitions such as this one only in the following circumstances: the

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 evid ence 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. 5 C.F.R. § 1201.113(b).

¶2 The appellant asserts that he does not have a copy of the agency’s

“unredacted file.” Petition for Review (PFR) File, Tab 1 at 4. 2 The appellant,

however, does not explain how the agency’s file or redactions therefrom pertain

to the Board’s jurisdiction, if at all. Thus, his assertion does not warrant a

different outcome. See Davis v. Department of Defense, 103 M.S.P.R. 516, ¶ 13

(2006) (explaining that, when an appeal is dismissed for lack of jurisdiction, there

is no prejudice to an appellant’s substantive rights based on the absence of

discovery that did not seek information that would establish the Board’s

jurisdiction).

Specifically, the appellant states as follows: “I have not yet received the file they

originally gave me an unredacted file and then threatened me with criminal and civil

charges along with debarring me from base.” PFR File, Tab 1 at 4 (grammar as in

original). To the extent the appellant, through this statement, raises claims regarding

his debarment, file redactions, or threatened charges, we discern no basis for Board

jurisdiction over the same. See Maddox v. Merit Systems Protection Board, 759 F.2d 9,

10 (Fed. Cir. 1985) (stating that the Board’s jurisdiction is limited to those matters over

which it has been given jurisdiction by law, rule, or regulation ).

¶3 The appellant makes several arguments that seemingly pertain to the merits

of the agency’s removal action. PFR File, Tab 1 at 4, 7. For example, he asserts

that he “did not receive any training for [his] position” and that he received

performance-based awards from the agency. Id. at 7. Because the Board lacks

jurisdiction over the matter, we cannot consider these arguments. See

Schmittling v. Department of the Army, 219 F.3d 1332, 1336-37 (Fed. Cir. 2000)

(explaining that the Board must first resolve the threshold issue of jurisdiction

before proceeding to the merits of an appeal).

¶4 For the first time on review, the appellant asserts that both he and his

nonattorney representative experienced difficulties accessing documents in

e-Appeal Online. PFR File, Tab 1 at 3. The Board generally will not consider an

argument raised for the first time in a petition for review absent a showing that it

is based on new and material evidence not previously available despite the party’s

due diligence. See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271

(1980); 5 C.F.R. § 1201.115(d). In any event, we find this vague assertion

unavailing. As a registered e-filer, the appellant consented to accept all

documents issued by the Board in electronic form and to monitor case activity at

the Repository at e-Appeal Online to ensure that he had received all case-related

documents. Initial Appeal File (IAF), Tab 1 at 2; see 5 C.F.R. § 1201.14(j)(3).

The appellant provides no clear explanation as to why he was unable to access

documents via the e-Appeal Online Repository or why, after realizing that he was

apparently unable to access documents, he did not alert the Board to the issue or

otherwise seek technical assistance. 3 Thus, the appellant’s vague assertion is

When Board documents are issued, email messages are sent to e-filers to notify them

of the issuance. 5 C.F.R. § 1201.14(j)(1). These messages contain links to the

Repository where the documents can be viewed and downloaded. Id. There is no

record of either the appellant or his nonattorney representative ever contacting the

Board with any technical problems. In any event, the appellant filed his petition for

review challenging the initial decision on the same day that it was issued; thus, he was

apparently able to access the administrative judge’s decision without issue. PFR File,

Tab 1; IAF, Tab 5, Initial Decision (ID) at 1; Tab 6 at 1. The initial decision provided

unavailing. To the extent the appellant faults his nonattorney representative for

any purported technical difficulties, his assertion is similarly unavailing. See

Sparks v. U.S. Postal Service, 32 M.S.P.R. 422, 425 (1987) (explaining that the

Board has long held that appellants are responsible for the actions and inactions

of their chosen representatives).

¶5 Last, with his petition for review, the appellant provides a copy of a

September 23, 2021 letter debarring him from entering Marine Corps Base

Hawaii. PFR File, Tab 1 at 6. The appellant provides no explanation as to why

he did not provide this letter, which predates the initial decision, to the

administrative judge. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214

(1980) (finding that the Board generally will not consider evidence submitted for

the first time with the petition for review absent a showing that it was unavailable

before the record was closed despite the party’s due diligence); 5 C.F.R.

§ 1201.115(d). In any event, the letter is not material to the outcome of this

appeal. See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980)

(stating that the Board will not grant a petition for review based on new evidence

absent a showing that it is of sufficient weight to warrant an outcome different

from that of the initial decision).

¶6 Accordingly, we affirm the initial decision.

the appellant with notice of the applicable burden regarding jurisdiction. ID at 2 -5.

Accordingly, even assuming that the appellant did not receive such notice prior to the

issuance of the initial decision due to technical issues, a different outcome would not be

warranted. See Easterling v. U.S. Postal Service, 110 M.S.P.R. 41, ¶ 11 (2008) (stating

that an administrative judge’s failure to provide an appellant with proper notice can be

cured if the initial decision provides appropriate notice, thus affording the appellant an

opportunity to meet his jurisdictional burden on review).

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 th e 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 rev iew 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:

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 indica ted in the notice, the

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

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 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