Kevin Bryars v. Department of the Air Force

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KEVIN R. BRYARS, DOCKET NUMBER

Appellant, DA-315I-18-0065-I-1

v.

DEPARTMENT OF THE AIR FORCE, DATE: May 16, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Kevin R. Bryars, Moore, Oklahoma, pro se.

Telin W. Ozier, Tinker Air Force Base, Oklahoma, for the agency.

BEFORE

Raymond A. Limon, Vice Chair

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

interpretation of statute or regulation or the erroneous a pplication of the law to

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 affec ted 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).

¶2 On review, the appellant first asserts that the agency’s decision to demote

him 4 months into his supervisory probationary period was procedurally deficient

and that the agency failed to train him properly during the probationary period.

Petition for Review (PFR) File, Tab 1 at 4. 2 For the reasons set forth in the initial

decision, we agree with the administrative judge that the Board lacks jurisdiction

over this appeal. Initial Appeal File (IAF), Tab 10, Initial Decision (ID) at 2-5.

Absent an otherwise appealable action, the Board cannot adjudicate claims of

harmful procedural error or prohibited personnel practices. See Penna v. U.S.

Postal Service, 118 M.S.P.R. 355, ¶ 13 (2012).

¶3 The appellant also asserts that the agency demoted him during his

supervisory probationary period in retaliation for whistleblowing. PFR File,

Tab 1 at 4. Although the appellant’s filings were generally vague and lacked

2

The appellant attaches a number of documents to his petition for review. PFR File,

Tab 1 at 5-11. Under 5 C.F.R. § 1201.115, the Board 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. Avansino v.

U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). The appellant has not described why

he could not provide these documents to the administrative judge, and we find that they

are immaterial to the dispositive issue of the Board’s jurisdiction over his appeal. Some

of the documents are already part of the record below and do not constitute new

evidence. See Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980).

3

detailed arguments about retaliation, IAF, Tabs 1, 6, he clearly and explicitly

asserted whistleblower retaliation in his supplemental filing before the

administrative judge issued the initial decision, IAF, Tab 9 at 3. The

administrative judge never apprised the appellant of the burden of proof to

establish jurisdiction in an individual right of action (IRA) appeal , including the

requirement to exhaust administrative remedies with the Office of Special

Counsel (OSC), prior to issuing the initial decision nor in the initial decision

itself. IAF, Tabs 2-3; ID at 2-5; see Burgess v. Merit Systems Protection Board,

758 F.2d 641, 643-44 (Fed. Cir. 1985) (explaining that an appellant must receive

explicit information on what is required to establish Board jurisdiction before

dismissing a claim for lack of jurisdiction); see also Washington v. Department of

the Navy, 75 M.S.P.R. 150, 153-54 (1997) (finding that, although the

jurisdictional notice was adequate at the time it was issued, the admi nistrative

judge should have afforded the appellant further jurisdictional notice when the

parties filed evidence and argument implicating further jurisdictional issues).

¶4 Under the circumstances of this case, however, we find that any lack of

notice was harmless and did not affect the appellant’s substantive rights. The

undisputed record evidence shows, and the appellant certified under penalty of

perjury, that he did not file any complaint with OSC, which is a prerequisite to

filing an IRA appeal with the Board. IAF, Tab 1, Tab 9 at 4; PFR File, Tab 1; see

Flores v. Department of the Army, 98 M.S.P.R. 427, ¶¶ 8-9 (2005). Thus, the

Board lacks jurisdiction over this appeal as an IRA appeal . See Flores,

98 M.S.P.R. 427, ¶¶ 8-9; see also Hudson v. Office of Personnel Management,

114 M.S.P.R. 669, ¶ 11 (2010) (finding that the lack of jurisdictional notice did

not affect the appellant’s substantive rights because the Board clearly lacked

jurisdiction over the appeal). Moreover, a different administrative judge in the

appellant’s second demotion appeal specifically apprised him of IRA appeal

jurisdictional requirements before dismissing that appeal for adjudicatory

efficiency and noted that the appellant certified under penalty of perjury that he

4

had not filed any complaint with OSC. Bryars v. Department of the Air Force,

MSPB Docket No. DA-315I-18-0179-I-1, Initial Decision at 3 n.1 (Feb. 22,

2018). Thus, the record in that appeal further supports our finding that the

appellant has not exhausted his administrative remedies with OSC and a remand

in this appeal would be futile. See Hudson, 114 M.S.P.R. 669, ¶ 11. Nothing

prevents the appellant from timely filing an IRA appeal with the Board after

exhausting his administrative remedies with OSC.

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

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 o f 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

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 notic e, the

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

5

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

6

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

7

(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

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.

4

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

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.