Charles Johnson v. Department of Commerce

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHARLES H. JOHNSON, DOCKET NUMBERS

Appellant, CH-4324-13-0112-B-2

CH-3443-13-1466-B-2

v.

DEPARTMENT OF COMMERCE,

Agency. DATE: March 16, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Charles H. Johnson, Detroit, Michigan, pro se.

David M. Brown and Frances C. Silva, Esquire, Washington, D.C., for the

agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member 2

FINAL ORDER

¶1 The appellant has filed a petition for review of the remand initial decision,

which denied his request for corrective action under the Uniformed Services

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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Member Leavitt’s name is included in decisions on which the three -member Board

completed the voting process prior to his March 1, 2023 departure.

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Employment and Reemployment Rights Act of 1994 (codified as amended at

38 U.S.C. §§ 4301-4335) (USERRA) and dismissed several other claims for

failure to prosecute. 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, des pite 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 these appeals, 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 remand initial

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

¶2 The instant decision involves two separate appeals the appellant filed

against the agency. An administrative judge dismissed the fir st, finding that,

although the appellant was attempting to challenge his removal, he failed to show

that he was a covered employee within the Board’s jurisdiction. Johnson v.

Department of Commerce, MSPB Docket No. CH-4324-13-0112-I-1, Initial

Appeal File (0112 IAF), Tab 8, Initial Decision (0112 ID) at 1, 3-4. She further

found that, while the appellant alleged discrimination under USERRA, he failed

to meet the corresponding jurisdictional burden. 0112 ID at 1, 4-5. Another

administrative judge similarly dismissed the appellant’s second appeal.

Johnson v. Department of Commerce, MSPB Docket No. CH-3443-13-1466-I-1,

Initial Appeal File, Tab 7, Initial Decision (1466 ID). That administrative judge

found that, while the appellant challenged the cancellation of his appointments,

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the Board lacked jurisdiction over the matter because he had not completed a year

of current continuous service in his position. 1466 ID at 2.

¶3 The appellant filed petitions for review in each of these appeals. Johnson v.

Department of Commerce, MSPB Docket No. CH-4324-13-0112-I-1, Petition for

Review File, Tab 1; Johnson v. Department of Commerce, MSPB Docket No.

CH-3443-13-1466-I-1, Petition for Review File, Tab 1. On review, the Boar d

joined the appeals and issued a single remand order. Johnson v. Department of

Commerce, MSPB Docket Nos. CH-4324-13-0112-I-1 and CH-3443-13-1466-I-1,

Remand Order (RO) (Apr. 22, 2014).

¶4 The Board affirmed the administrative judges’ determination s that the

Board lacked chapter 75 jurisdiction over the appellant’s adverse action appeals.

RO at 3-5. The Board also denied the appellant’s claim that his termination

constituted a furlough or reduction in force within our jurisdiction, dismissed his

assertion that the Board had jurisdiction over his appeal as a termination for

preemployment reasons, and declined his request to reopen a prior appeal he filed

many years earlier. RO at 5-6. However, the Board found that remand was

appropriate for other reasons.

¶5 To the extent that the appellant had alleged that the agency denied him a

benefit of employment by failing to credit his military service for purposes of his

service computation date for leave accrual, the Board found that the appellant met

his jurisdictional burden for a discrimination claim under USERRA and vacated

the administrative judge’s finding to the contrary. RO at 6 -7. The Board also

found that the appellant did not receive Burgess notice concerning allegations that

appeared to include a Veterans Employment Opportunities Act of 1998 (VEOA)

claim, an employment practice claim, and a claim for relief under the Federal

Erroneous Retirement Coverage Corrections Act (FERCCA), in addition to a

possible reemployment claim under USERRA. RO at 7; see Burgess v. Merit

Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985) (recognizing

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that an appellant must receive explicit information on what is required to

establish an appealable jurisdictional issue).

¶6 The Board remanded with instructions to further adjudicate the USERRA

discrimination claim described above and provide Burgess notice for the VEOA,

employment practice, and FERCCA claims. RO at 8. The Board also indicated

that the administrative judge should determine whether the appellant intended his

allegations to constitute a USERRA reemployment claim. RO at 7 n.5.

¶7 On remand, the administrative judge held a status conference with the

parties, at which time the appellant requested and was granted 30 days to try to

meet his jurisdictional burden. See Johnson v. Department of Commerce, MSPB

Docket No. CH-4324-13-0112-B-1, Remand File (0112-B-1 RF), Tab 3 at 1, 14.

Consequently, the administrative judge issued an order that provided Burgess

notice concerning the VEOA, employment practice, FERCCA, and USERRA

reemployment claims; directed the appellant to submit his jurisdictional response

by September 22, 2014; and scheduled a status conference for October 14, 2014.

Id. at 14. The appellant did not submit a timely response, nor did he appear for

the scheduled status conference. 0112-B-1 RF, Tab 5 at 1.

¶8 In a subsequent order, the administrative judge instructed the appellant to

establish good cause for his failure to respond to the jurisdictional order and his

failure to appear for the status conference. Id. The administrative judge warned

that she would dismiss the appeal for failure to prosecute if the appellant did not

respond by October 29, 2014. Id. at 1-2. Although the appellant submitted a

pleading before that deadline, he did not present good cause arguments.

0112-B-1 RF, Tab 6. Instead, he requested certification of an interlocutory

appeal. Id.

¶9 The administrative judge denied the appellant’s motion and once again

ordered the appellant to establish good cause, this time by February 16, 2015, or

have his appeal dismissed for failure to prosecute. 0112-B-1 RF, Tab 8.

Thereafter, the appellant submitted a pleading that was nonresponsive in terms of

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the administrative judge’s instruction to establish good cause. 0112 -B-1 RF,

Tab 9. As a result, the administrative judge dismissed for failure to prosecute the

appellant’s possible VEOA, employment practice, FERCCA, and USERRA

reemployment claims. 0112-B-1 RF, Tab 12 at 1.

¶10 At the appellant’s request, the administrative judge dismissed the remaining

USERRA discrimination claim, without prejudice, to address the matter with the

Department of Labor. 0112-B-1 RF, Tab 12 at 1-2, Tab 16. After refiling, the

appellant summarily requested that the administrative judge reconsider the

dismissal of his other claims for failure to prosecute, though he did not submit

any supportive argument, despite being given the opportunity to do so.

Johnson v. Department of Commerce, MSPB Docket No. CH-4324-13-0112-B-2,

Refiled Remand File (0112-B-2 RRF), Tab 5 at 1, Tab 7 at 2. The administrative

judge denied that request. 0112-B-2 RRF, Tab 7 at 2. The appellant also

presented argument that the administrative judge construed as a request that the

Board assert jurisdiction over his case based on the Veterans Benefits

Improvement Act of 2004 and the Veterans’ Benefits Act of 2010. 0112-B-2

RRF, Tab 3, Tab 9 at 1. The administrative judge also denied that request,

finding that neither provided additional Board appeal rights. 0112 -B-2 RRF,

Tab 9 at 1-2.

¶11 For the lone remaining claim—a USERRA claim involving allegations that

the agency failed to credit his military service for purposes of determining his

service computation date for leave accrual—the appellant indicated that he did

not want a hearing. 0112-B-2 RRF, Tab 5 at 1. Accordingly, the administrative

judge issued a decision on the written record, denying the request for corrective

action in that claim and reaffirming her prior dismissals for failure to prosecute.

0112-B-2 RRF, Tab 13, Remand Initial Decision.

¶12 The appellant has filed a petition for review. Johnson v. Department of

Commerce, MSPB Docket No. CH-4324-13-0112-B-2, Remand Petition for

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Review (0112-B-2 RPFR) File, Tab 1. The agency has filed a response , and the

appellant has replied. 0112-B-2 RPFR File, Tabs 3, 5.

¶13 A petition for review must contain sufficient specificity for the Board to

ascertain whether there is a serious evidentiary challenge justifying a complete

review of the record. Tines v. Department of the Air Force, 56 M.S.P.R. 90, 92

(1992). Under the Board’s regulations, a petition for review must identify

specific evidence in the record demonstrating any alleged erroneous findings of

material fact and explain why the challenged factual determinations are incorrect.

5 C.F.R. § 1201.115(a).

¶14 Because the appellant has filed his petition for review pro s e, we have

construed it liberally. Harper v. Office of Personnel Management, 116 M.S.P.R.

309, ¶ 9 (2011). Nevertheless, we are unable to discern any specific challenges to

the remand initial decision regarding those issues that the Board remanded. The

appellant does not appear to challenge the administrative judge’s decision to deny

corrective action in his USERRA discrimination claim or her decision to dismiss

the other claims for failure to prosecute.

¶15 Rather than present specific challenges concerning the issues that remained

during the remand proceedings, the appellant alleges that the administrative judge

failed to address all genuine issues of material fact. 0112-B-2 RPFR File, Tab 1

at 1-2 (referencing Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587,

589 (1980)). In doing so, he presents several arguments concerning matters that

are altogether different from those that were before the administrative judge on

remand, in what appears to be an attempt to establish Board jurisdiction in some

other context. For example, the appellant argues that he was “a statutory

‘employee’” and “entitled to all the protections for all purposes of Title 5.”

0112-B-2 RPFR File, Tab 1 at 2-3. However, the Board already determined that

the appellant is not an “employee” with adverse action appeal rights. See supra

¶ 4. We will not reconsider that determination. See Mudrich v. Department of

Agriculture, 93 M.S.P.R. 313, ¶ 2 (2003) (recognizing that, under the law of the

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case doctrine, a tribunal generally will not reconsider issues that already have

been decided in an appeal). The appellant also references various provisions

within 5 U.S.C. § 2302, suggesting that the agency has committed some sort of

prohibited personnel practice and requesting that the Board assert jurisdiction

over this appeal as an individual right of action appeal. 0112-B-2 RPFR File,

Tab 1 at 6, 10-13. However, it is well established that section 2302 is not an

independent source of Board jurisdiction. E.g., Belhumeur v. Department of

Transportation, 104 M.S.P.R. 408, ¶ 11 (2007). While an individual may bring

an individual right of action appeal before the Board in certain contexts,

concerning allegations of retaliation, we found no such allegations here. See

Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 6 (2014) (recognizing that

the Board has jurisdiction over an individual right of action appeal if an appellant

exhausts her administrative remedies before the Office of Special Counsel and

makes nonfrivolous allegations that: (1) she made a protected disclosure

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

under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or

protected activity was a contributing factor in the agency’s decision to take or fail

to take a personnel action as defined by 5 U.S.C. § 2302(a)).

¶16 The appellant’s petition for review also contains some arguments

concerning veterans’ preference and the agency’s hiring him into the excepted,

rather than the competitive, service. 0112-B-2 RPFR File, Tab 1 at 3-9, 13.

Although this argument is connected to the allegations we previously remanded as

a possible VEOA claim, 0112 IAF, Tab 1 at 1-10; RO at 7, the appellant has

failed to present any basis for us to disturb the administrative judge’s dismissal of

that claim for failure to prosecute, see Williams v. U.S. Postal Service,

116 M.S.P.R. 377, ¶ 9 (2011) (recognizing that dismissal for failure to prosecute

is appropriate if an appellant does not exercise basic due diligence by responding

to repeated Board orders).

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¶17 In sum, although we have considered the appellant’s petition for review, we

are not persuaded by any of the arguments he made therein. Without any

particularized arguments concerning the administrative judge’s findings, we will

not undertake further review of the record. 3 See Tines, 56 M.S.P.R. at 92.

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 choice s 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

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We have reviewed the relevant legislation enacted during the pendency of these

appeals and have concluded that it does not affect the outcome of the appeals.

4

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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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 particu lar

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

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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 expire d 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 Appe als

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.