Opinion

Payce Carupella v. Department of the Army

Court: Merit Systems Protection Board
Filed: May 12, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PAYCE CARUPELLA, DOCKET NUMBER

Appellant, PH-3443-17-0124-I-1

DEPARTMENT OF THE ARMY, DATE: May 12, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Randolph Elliott, Camp Hill, Pennsylvania, for the appellant.

Nancy Anna Waldron, Huntsville, Alabama, 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 her 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 fi ndings of material fact;

the initial decision is based on an erroneous interpretation of statute or regulation

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 th e 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).

¶2 The Board has jurisdiction over an IRA appeal if the appellant has

exhausted her administrative remedies before the Office of Special Counsel

(OSC) and makes nonfrivolous allegations that (1) she 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. Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir.

2001). To satisfy the exhaustion requirement of 5 U.S.C. § 1214(a)(3) in an IRA

appeal, an appellant must file a complaint with OSC and inform OSC of the

precise ground of her charge of whistleblowing, giving OSC a sufficient basis to

pursue an investigation which might lead to corrective action. 2 Ward v. Merit

Systems Protection Board, 981 F.2d 521, 526 (Fed. Cir. 1992).

¶3 Here, although the appellant claimed that the agency took various actions

against her in reprisal for protected whistleblowing, she indicated on her appeal

form that she had not filed a complaint with OSC. Initial Appeal File, Tab 1 at 6.

We have reviewed the relevant legislation amending the whistleblower protection

statutory scheme that was enacted during the pendency of this appeal and have

concluded that it does not affect the outcome of the appeal, nor does it affect the

relevant holdings of the case law cited in this Final Order.

There is nothing in the record below otherwise showing that the appellant first

sought relief with OSC before filing her Board appeal. Therefore, the

administrative judge correctly dismissed the appeal for lack of IRA jurisdiction.

¶4 On review, the appellant asserts that she filed a complaint with OSC, and

she includes a copy of her complaint and correspondence from OSC. Petition for

Review (PFR) File, Tab 1 at 9-15. The Board has exercised its discretion to

reopen an appeal when the appellant submits evidence for the first time on review

that does not meet the Board’s review criteria under 5 C.F.R. § 1201.115(d) but

that implicates the Board’s jurisdiction and warrants an outcome different from

that in the initial decision. Atkinson v. Department of State, 107 M.S.P.R. 136,

¶ 12 (2007). In particular, when an appellant submits evidence of exhaustion for

the first time on review, the Board will consider it, along with other record

evidence, to determine if the appellant has met her jurisdictional burden.

Schoenig v. Department of Justice, 120 M.S.P.R. 318, ¶ 7 (2013).

¶5 Here, instead of filing an OSC Form 11 “Complaint of Possible Prohibited

Personnel Practice or Other Prohibited Activity” with OSC’s Complaints

Examining Unit, the appellant filed an OSC Form 12 “Disclosure of Information”

with OSC’s Disclosure Unit. 3 PFR File, Tab 1 at 9-15. The Disclosure Unit does

not review allegations of prohibited personnel practices, and the Board has held

that making a disclosure to the Disclosure Unit does not satisfy the exhaustion

requirement under 5 U.S.C. § 1214(a)(3). Scoggins v. Department of the Army,

123 M.S.P.R. 592, ¶ 9 (2016); Mason v. Department of Homeland Security,

116 M.S.P.R. 135, ¶ 16 (2011). Therefore, the appellant’s newly filed evidence

does not establish that she exhausted her administrative remedies before OSC and

does not warrant an outcome different from that of the initial decision. We thus

After the appellant submitted the form to OSC, OSC reorganized its components such

that the functions previously performed by the Complaints Examining Unit are no w

performed by the Investigation and Prosecution Division.

find that the administrative judge correctly dismissed this appeal for lack of IRA

jurisdiction.

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 case s 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).

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.

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. 420 (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 chal lenge 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 e ither 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