Opinion

Carrie Christman v. Department of the Army

Court: Merit Systems Protection Board
Filed: Jun 14, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CARRIE M. CHRISTMAN, DOCKET NUMBER

Appellant, NY-315H-17-0086-I-1

DEPARTMENT OF THE ARMY, DATE: June 14, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Harvey P. Sanders, Esquire, Cheektowaga, New York, for the appellant.

Daniel S. Lacy, North Chicago, Illinois, 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 de cision, which

dismissed her probationary 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 decis ion is

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 and AFFIRM the initial decision, which is now the Board’s final

decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

¶2 Effective April 15, 2016, the agency terminated the appellant from her Test

Coordinator position during her probationary period. Initial Appeal File (I AF),

Tab 1 at 8. She filed a Board appeal alleging that her termination was due to

discrimination based on her age, perceived disability, reprisal, and “her political

claim.” Id. at 4. On February 27, 2017, the administrative judge issued an

acknowledgment order setting forth the law applicable to the question of the

Board’s jurisdiction and ordered the appellant to file evidence and argument

showing that her appeal was within the Board’s jurisdiction by March 14, 2017.

IAF, Tab 2 at 2-5. The administrative judge also afforded the agency until

March 24, 2017, to file a response on the jurisdictional issue. Id. at 5. The

appellant did not respond to the administrative judge’s order. On March 20,

2017, the agency submitted its response, arguing that the appellant failed to raise

nonfrivolous allegations of Board jurisdiction. IAF, Tab 4 at 5-7.

¶3 On March 28, 2017, without holding the appellant’s requested hearing, the

administrative judge issued an initial decision, dismissing the appeal for lack of

jurisdiction. IAF, Tab 5, Initial Decision (ID). The administrative judge found

that the appellant conceded that she was terminated during her probationary

period and failed to raise a nonfrivolous allegation that her termination was due

to partisan political reasons or marital status discrimination or that her

termination was based on preappointment reasons and was not effected in

accordance with the procedural requirements of 5 C.F.R. § 315.805. ID at 4-5.

In particular, the administrative judge found that the appellant’s bare assertion

that she was discriminated against on the basis of her “political claim ,” without

more, failed to amount to a nonfrivolous allegation. ID at 5 n.5.

¶4 On March 29, 2017, one day after the issuance of the initial decision, the

appellant submitted a response in which she argued that the initial decision was

prematurely issued and she should have been afforded 10 days to respond to the

agency’s March 20, 2017 motion to dismiss. IAF, Tab 7. She further argued that

she was not afforded an opportunity to address her allegation on her appeal form

that she was terminated based on partisan political reasons and submitted an

affidavit setting forth facts in support of such a claim. Id. Because the

appellant’s submission was received after the initial decision was issued, the

administrative judge declined to consider it and informed the appellant that, if she

was dissatisfied with the initial decision, she could file a petition for review.

IAF, Tab 8.

¶5 The appellant has filed a petition for review in which she argues that the

administrative judge erred in failing to consider her response. Petition for

Review (PFR) File, Tab 1. She maintains that she should have been afforded

10 days to respond to the agency’s motion and, thus, the initial decision was

prematurely issued prior to the deadline for her response. Id. We disagree and

find that the administrative judge did not err in issuing the initial decision on

March 28, 2017. The acknowledgment order afforded the appellant until

March 14, 2017, to submit evidence and argument establishing Board jurisdiction,

afforded the agency until March 24, 2017, to file a response on the jurisdictional

issue, and indicated that the final date for receipt of submissions by the parties on

the jurisdictional issue was March 24, 2017. 2 IAF, Tab 2 at 5. Thus, in light of

the clear language in the acknowledgment order setting forth the applicable

deadlines, we find unpersuasive the appellant’s argument that she should have

had 10 days to respond to the agency’s motion to dismiss. Although the

acknowledgment order also indicated that, unless otherwise specified, a response

to a motion must be filed within 10 calendar days, here, the jurisdictional

deadlines were clearly and separately specified. Id. at 5, 7. The appellant, who

was represented by counsel, simply failed to file a jurisdictional response within

the required deadline.

¶6 We similarly find unpersuasive the appellant’s argument that the

administrative judge should have considered her untimely response pursuant to

5 C.F.R. § 1201.59. PFR File, Tab 1 at 5. Under 5 C.F.R. § 1201.59(c), once the

record closes, additional evidence or argument ordinarily will not be accepted

unless the party submitting it shows that the evidence or argument was not readily

available before the record closed or it is in rebuttal to new evidence or argument

submitted by the other party just before the record closed. The appellant

contends that her response should have been considered because it was not clear

that her appeal would be dismissed for lack of jurisdiction and no argument was

raised in support of dismissal until the agency submitted its response. Id. at 5-6.

¶7 We disagree. The administrative judge’s order clearly informed the

appellant that her appeal would be dismissed unless she raised nonfrivolous

allegations of Board jurisdiction. IAF, Tab 2 at 5. The appellant does not allege

that the information contained in her untimely March 29, 2017 response

constitutes new and material evidence that was not readily available before the

record closed on March 24, 2017. Additionally, we find that her March 29, 2017

The order also noted that, notwithstanding the close of the record, pursuant to 5 C.F.R.

§ 1201.59(c), a party must be allowed to respond to new evidence or argument

submitted by the other party just before the close of the record. IAF, Tab 2 at 5.

response does not constitute a rebuttal to new or material evidence or argument

submitted by the agency. In its response, the agency simply summarized the

applicable law as set forth in the acknowledgment order and argued that the

appellant failed to meet her burden of raising nonfrivolous allegations of Board

jurisdiction. IAF, Tab 4 at 5-7. The appellant’s March 29, 2017 response set

forth, for the first time, her arguments in support of her claim that her termination

was due to partisan political reasons. IAF, Tab 7. Thus, it constitutes an

untimely jurisdictional response that should have been filed by March 14, 2017.

For these reasons, we find that the administrative judge did not abuse her

discretion in declining to consider the appellant’s untimely response. See Gavette

v. Department of the Treasury, 44 M.S.P.R. 166, 174 (1990) (stating that the

deadline for closing the record is within the sound discretion of the administrative

judge so long as the procedures used comport with the basic requirements of

fairness and notice). Similarly, we decline to consider the appellant’s response

for the first time on review. See Banks v. Department of the Air Force,

4 M.S.P.R. 268, 271 (1980); Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214

(1980).

¶8 Accordingly, we affirm the initial decision, dismissing the appeal for lack

of jurisdiction.

NOTICE OF APPEAL RIGHTS 3

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

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.

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 a ll

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).

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 tha t

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. 4 The court of appeals must receive your

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 Appea ls

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.

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