Opinion

Edith Rios v. Department of Justice

Court: Merit Systems Protection Board
Filed: Jun 1, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.4%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

EDITH M. RIOS, DOCKET NUMBER

Appellant, NY-0752-15-0229-I-1

DEPARTMENT OF JUSTICE, DATE: June 1, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Edith M. Rios, Guaynabo, Puerto Rico, pro se.

Katherine Meng, Katherine Stewart, and Lillian Monfort, Washington,

D.C., 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 involuntary retirement 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. Except as expressly MODIFIED to address the appellant’s claim that

the agency denied her adequate notice and opportuni ty to respond to the

management-directed reassignment (MDR) and motion to exclude evidence, we

AFFIRM the initial decision.

¶2 The appellant argues that the Board has jurisdiction over her involuntary

retirement appeal. Petition for Review (PFR) File, Tab 1 at 1-3. She disagrees

with the administrative judge’s findings that she failed to prove that he r

retirement was involuntary under the unsustainable threatened action theory. Id.

at 3-5. She further argues that the administrative judge erred in finding that the

agency did not discriminate against her based on her age. Id. at 4, 8-9. She also

provides a list of prohibited personnel practice provisions and merit systems

principles and asserts, without argument, that the agency violated each provision.

Id. at 1-2. These allegations do not provide a basis for review. See 5 C.F.R.

§ 1201.115.

¶3 We also consider the appellant’s arguments that the agency failed to

properly notify her of the selection criteria, to provide her enough time to respond

and submit evidence indicating that she was the most senior Industry Operations

Investigator (her former position) before issuing the MDR, or to suspend the

MDR order pending an investigation into her allegations of discrimination and

claims of error. PFR File, Tab 1 at 10. Although the appellant raised those

allegations below, the administrative judge did not consider them as a challenge

to the legitimacy of the agency’s action. Initial Appeal File (IAF), Tab 7,

Exhibit B at 3, 6-7, Tab 19 at 7-8; see generally Jordan v. Office of Personnel

Management, 108 M.S.P.R. 119, ¶ 19 (2008) (explaining that the Board construes

pro se pleadings liberally).

¶4 An agency must ensure that an MDR was based on a legitimate management

reason and that the employee was given adequate notice of the reassignment. See

generally Krawchuk v. Department of Veterans Affairs, 94 M.S.P.R. 641, ¶ 9

(2003) (explaining that to take an adverse action based upon an employee’s

failure to accept an MDR, the agency must show that the reassignment was based

upon a legitimate management reason, the employee was given adequate notice of

the reassignment, and the employee refused to accept the reassignment). The

administrative judge found that the MDR was taken for bona fide management

reasons; we have no basis to disturb that finding. IAF, Tab 30, Initial Decision

(ID) at 8-13. We further find that the appellant also received adequate notice of

her MDR because the agency advised her that she would be reassigned from the

Puerto Rico Satellite Office to the Miami VI Field Office nearly 4 months before

the December 14, 2014 effective date of her reassignment. See Wear v.

Department of Agriculture, 22 M.S.P.R. 597, 598-99 (1984) (notifying an

employee of the MDR 1 month before the effective date of the reassignment is

adequate); O’Connor v. Department of the Interior, 21 M.S.P.R. 687, 689 (1984)

(interpreting adequate notice as having sufficient time between when the

employee is notified of the MDR and his reporting date) . The appellant has not

shown that she was entitled to any further notice or opportunity to respond. See

generally 5 U.S.C. § 7513 (granting the enumerated statutory due process rights

only to those adverse actions listed under 5 U.S.C. § 7512, of which an MDR

without a loss in grade or pay is not a part). Thus, the appellant has not shown

that the administrative judge’s failure to consider those claims affected her

substantive rights. Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282

(1984) (explaining that an adjudicatory error that is not prejudicial to a party’s

substantive rights provides no basis for reversal of an initial decision).

¶5 Finally, the appellant alleges that the administrative judge erred by

considering evidence relating to her personal and family situation that she

requested be excluded from the record. PFR File, Tab 1 at 7-8. Although the

appellant raised her apparent motion in limine as an objection to the status

conference summary, IAF, Tab 22 at 5, the administrative judge did not rule on

her motion and instead addressed that evidence in the initial decision, ID at 23.

To the extent this was error, it is not reversible. Because the administrative judge

found that the appellant’s personal considerations for refusing the reassignment

did not factor into whether the agency’s actions were coercive, there is no

indication that she would have reached a different result had the evidence been

removed from the record. ID at 23; see Renville v. Department of Health and

Human Services, 21 M.S.P.R. 737, 739-40 (1984) (finding that the appellant’s

retirement was not coerced because his reasons for retiring in lieu of being

reassigned were personal and not attributable to any agency action) , aff’d,

790 F.2d 93 (Fed. Cir. 1986) (Table). Accordingly, we find that the appellant has

not shown that she was prejudiced by that potential error. Karapinka v.

Department of Energy, 6 M.S.P.R. 124, 127 (1981) (finding that the

administrative judge’s procedural error was of no legal consequence unless it was

shown to have adversely affected a party’s substantive rights).

NOTICE OF APPEAL RIGHTS 2

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

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.

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 appropri ate

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:

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 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. 3 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