Opinion

Jonathan Graham v. Department of the Army

Court: Merit Systems Protection Board
Filed: May 4, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.2%

finding that the Board has jurisdiction over an IRA appeal if the appellant has exhausted his or her administrative remedies before OSC and makes nonfrivolous allegations that: (1) he engaged in whistleblowing activity by making a protected disclosure; and (2

How later courts described this case

finding that the Board has jurisdiction over an IRA appeal if the appellant has exhausted his or her administrative remedies before OSC and makes nonfrivolous allegations that: (1) he engaged in whistleblowing activity by making a protected disclosure; and (2

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JONATHAN PIERRE GRAHAM, DOCKET NUMBER

Appellant, DC-1221-15-0661-W-3

DEPARTMENT OF THE ARMY, DATE: May 4, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jonathan Pierre Graham, Garner, North Carolina, pro se.

Tamiesha C. Robinson-Asbery, Aberdeen Proving Ground, Maryland, for

the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

dismissed his individual right of action (IRA) 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;

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 th e 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 The appellant filed an IRA appeal in which he alleged that the agency

“released” him, “select[ing him] for termination,” in retaliation for disclosing

violations of law in connection with the agency’s failure to use “Skills

Knowledge and Ability” and for filing an equal employment opportunity (EEO)

complaint in May 2012 alleging age discrimination and the agency’s “failure to

follow the required laws of 5 USC.” Graham v. Department of the Army, MSPB

Docket No. DC-1221-15-0661-W-1, Initial Appeal File (IAF), Tab 1 at 5. He

requested a hearing. Id. at 2. With his appeal, the appellant enclosed a

Notification of Personnel Action, Standard Form 50, showing that he was

terminated from his Digital Systems Training Analyst position, effective

January 3, 2015, on the expiration of his 3-year term appointment. Id. at 7; IAF,

Tab 7 at 19. The agency cited “lack of funding” as its reason for not extending

the appellant’s appointment past the not-to-exceed date. IAF, Tab 7 at 24.

¶3 During adjudication, the appellant requested that the appeal be dismissed

pending the outcome of an investigation into matters he claimed were at issue in

the appeal, IAF, Tab 8, and, on that basis, the administrative judge dismissed the

appeal without prejudice, Graham v. Department of the Army, MSPB Docket

No. DC-1221-15-0661-W-1, Initial Decision at 1-3 (May 29, 2015). The

appellant timely refiled the appeal, Graham v. Department of the Army, MSPB

Docket No. DC-1221-15-0661-W-2, Appeal File, Tab 1, but, because the

investigation was still pending, the administrative judge again dismissed the

appeal without prejudice, Graham v. Department of the Army, MSPB Docket

No. DC-1221-15-0661-W-2, Initial Decision at 3 (Mar. 25, 2016).

¶4 After the appellant sought another continuance, Graham v. Department of

the Army, MSPB Docket No. DC-1221-15-0661-W-3, Appeal File (W-3 AF),

Tab 1, the administrative judge issued an Order on Jurisdiction and Proof

Requirements regarding the appellant’s IRA appeal, W-3 AF, Tab 3. After

reviewing the parties’ submissions, W-3 AF, Tabs 4-7, including the contents of

the complaint the appellant filed with Office of Special Counsel (OSC), W-3 AF,

Tab 6 at 24-32, and OSC’s close-out letter, id. at 33-34, the administrative judge

found that the appellant exhausted his remedy before OSC as to his allegation

that he received lower scores based on his evaluations after he disclosed to his

supervisors that he was not working for the individual who wrote his evaluation,

and that this disclosure was a factor in the agency’s deci sion to terminate him at

the expiration of his appointment, as was the EEO complaint he filed in

May 2012. W-3 AF, Tab 8, Initial Decision (ID) at 9. 2

The administrative judge found, however, that the appellant did not exhaust before

OSC: (1) his alleged disclosure to a management official that he would tell another

management official about all of the issues in the office; (2) his alleged disclosure t o

management officials that the agency violated Department of Defense and Department

of the Army policy by failing to follow the merit system principles in the process it

employed to retain some, but not all, similarly situated term employees; (3) his alle ged

disclosure regarding his attempts to recruit other employees to raise issues of age

discrimination; and (4) his alleged disclosures of theft and conspiracy within the work

environment, including statements made during the investigation into those alleg ations.

ID at 9-10.

¶5 The administrative judge found, however, that the appellant did not make a

protected disclosure that he exhausted before OSC. 3 ID at 11. The

administrative judge found that the appellant’s disclosures regarding age

discrimination are not protected disclosures, id., and that he did not

nonfrivolously allege that the agency violated a law, rule, or regulatio n when he

reported that he was given his mid-year evaluation by an individual who was not

his supervisor during the rating period because that person was the appellant’s

supervisor at the time of the evaluation, ID at 11-12. The administrative judge

further found that the appellant failed to nonfrivolously allege that the agency

retaliated against him for engaging in the EEO process because he did not allege

that he was thereby seeking redress as to remedying a violation of 5 U.S.C.

§ 2302(b)(8). 4 5 U.S.C. § 2302(b)(9)(A)(i); ID at 13-14. Therefore, the

administrative judge dismissed the IRA appeal for lack of jurisdiction. ID at 1,

15.

¶6 The appellant has filed a petition for review, Petition for Review (PFR)

File, Tab 1, to which the agency has responded in opposition , PFR File, Tab 3.

ANALYSIS

¶7 On review, the appellant argues that he made protected disclosures in a

May 19, 2012 letter he wrote to a management official in which he reported that

a Team Lead had impersonated a military officer, committed time fraud, and

Notwithstanding this statement, it is clear that the administrative judge applied the

analysis appropriate at this jurisdictional stage of the proceeding to find that the

appellant failed to nonfrivolously allege that he made a prote cted disclosure. ID at 12;

Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001) (finding

that the Board has jurisdiction over an IRA appeal if the appellant has exhausted his or

her administrative remedies before OSC and makes nonfrivolous allegations that:

(1) he engaged in whistleblowing activity by making a protected disclosure; and (2) the

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

personnel action).

Based on these findings, the administrative judge decided the case on the written

record without convening the requested hearing. ID at 14.

improperly used his Government credit card. PFR File, Tab 1 at 1; W-3 AF,

Tab 4, Subtab 4. Under 5 U.S.C. § 1214(a)(3), an employee is required to “seek

corrective action from [OSC] before seeking corrective action from the Board”

through an IRA appeal. Miller v. Federal Deposit Insurance Corporation,

122 M.S.P.R. 3, ¶ 6 (2014), aff’d, 626 F. App’x 261 (Fed. Cir. 2015). The

substantive requirements of exhaustion are met when an appellant has provided

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

of Homeland Security, 2022 MSPB 8, ¶ 10. The Board’s jurisdiction over an

IRA appeal is limited to those issues that have been previously raised with OSC,

but appellants may give a more detailed account of their whistleblowing

activities before the Board than they did to OSC. Id. Appellants may

demonstrate exhaustion of their OSC remedies with evidence regarding their

initial OSC complaint and other communications with OSC concerning their

allegations. See Baldwin v. Department of Veterans Affairs, 113 M.S.P.R. 469,

¶ 8 (2010). Here, the appellant submitted only his original OSC complaint, IAF,

Tab 1 at 10-15, and OSC’s close-out letter. 5 Id. at 16-17. Our review of these

documents reveals that the appellant did not exhaust before OSC the matters he

now raises on petition for review. Because he did not exhaust his remedy as to

those claims, the Board lacks jurisdiction to consider them. Chambers,

2022 MSPB 8, ¶ 11.

¶8 Similarly, the appellant argues on review that the administrative judge

should have considered his claim that the agency falsely charged him with theft,

although he acknowledges that this matter was “not ruled on as a complaint.”

PFR File, Tab 1 at 4. The administrative judge properly declined to consider this

claim because the appellant failed to raise such allegations to OSC. Mason,

The appellant did submit below an earlier OSC complaint he filed in 2014 and OSC’s

close-out letter. W-3 AF, Tab 4, Subtab 1. The administrative judge found that the

appellant did not assert that he was seeking review of this complaint, and therefore she

did not consider it. ID at 8 n. 6. The appellant has not challenged that finding on

review and we see no reason to disturb it.

116 M.S.P.R. 135, ¶ 8; ID at 5 n.5. The appellant also argues on review that

“[n]ew evidence was not exhausted to the OSC but was submitted to this Court

[sic] for consideration . . . .” PFR File, Tab 1 at 3. The appellant has not

identified the “new evidence.” With his petition, he has submitted two

documents, but both were submitted below. Id. at 6-19, IAF, Tab 4, Subtabs 4,

8. Because these documents are a part of the record below, they do not

constitute new evidence. Meier v. Department of the Interior, 3 M.S.P.R. 247,

256 (1980).

¶9 The appellant argues for the first time on review that, in terminating him at

the end of his appointment, the agency violated the merit system principles. PFR

File, Tab 1 at 2. The Board 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.

Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). In any event,

even when an employee has established the Board’s jurisdiction over his IRA

appeal such that the merits of the agency’s action are adjudicated, the Board will

not consider any affirmative defenses. 5 C.F.R. § 1209.2(c); Corthell v.

Department of Homeland Security, 123 M.S.P.R. 417, ¶ 16 (2016). Here, as

noted, the appellant has failed to establish Board jurisdiction. 6

¶10 Finally, the appellant asserts on review that he is not a lawyer and cannot

afford one, suggesting presumably that, for that reason, he has bee n unable to

present his case in a more favorable light. PFR File, Tab 1 at 2. The

consideration the Board affords pro se litigants as they pursue their appeals does

not extend to a less strict interpretation of the law. Moreover, it is well

established that an appellant is responsible for the errors of his chosen

representative. Sofio v. Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981).

We have reviewed the relevant legislation enacted during the pendency of this appeal

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

NOTICE OF APPEAL RIGHTS 7

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).

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 indicated 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. 8 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