Opinion

Kenneita Landry v. Social Security Administration

Court: Merit Systems Protection Board
Filed: Feb 2, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.0%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KENNEITA LANDRY, DOCKET NUMBER

Appellant, SF-3443-19-0173-I-1

SOCIAL SECURITY DATE: February 2, 2024

ADMINISTRATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Kenneita Landry , Emeryville, California, pro se.

General Counsel , Baltimore, Maryland, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

dismissed for lack of jurisdiction her appeal of the agency’s decision to rescind

its tentative offer of employment. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 and AFFIRM the initial

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

On petition for review, the appellant reasserts her argument that the agency

violated her civil rights by relying on a prior conviction that was dismissed.

Petition for Review (PFR) File, Tab 1 at 3; Initial Appeal File (IAF), Tab 1 at 6.

She further argues that the Board should apply the law under the Civil Service

Reform Act regarding convictions and the statute of limitations. PFR File, Tab 1

at 4. In addition, she argues that the Board should overturn the agency’s decision

to rescind the job offer and the agency’s determination that she did not pass a

pre-employment screening because of a prior conviction that was paid in full and

dismissed. 2 Id.

The administrative judge adequately addressed the appellant’s civil rights

argument in the initial decision, explaining that claims of prohibited personnel

practices are not an independent source of Board jurisdiction and that the Board

lacks jurisdiction over them absent an otherwise appealable action. IAF, Tab 9,

Initial Decision (ID) at 10 n.6; see Davis v. Department of Defense, 105 M.S.P.R.

Given the appellant’s pro se status, we liberally interpret her petition for review by

assuming that she means the agency’s pre-employment screening process when she

refers to a “security clearance.” PFR File, Tab 1 at 4; see Melnick v. Department of

Housing and Urban Development, 42 M.S.P.R. 93, 97-98 (1989) (observing that the

pleadings of pro se parties should be interpreted liberally), aff’d, 899 F.2d 1228

(Fed. Cir. 1990) (Table).

604, ¶ 16 (2007); Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980),

aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982). Moreover, we find that the

appellant’s remaining arguments on the merits of the appealed matter fail to

address the dispositive jurisdictional issue; thus, they do not provide a reason to

disturb the initial decision. See, e.g., Sapla v. Department of the Navy,

118 M.S.P.R. 551, ¶ 7 (2012) (finding that the appellant’s arguments on the

merits of the appeal were not relevant to the jurisdictional question at issue

before the Board).

Accordingly, we affirm the initial decision. 3

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.

Because we agree with the administrative judge’s finding that the appellant failed to

prove that the agency subjected her to an appealable suitability action, ID at 9-10, we

need not consider what would be the effect on this case, if any, of the National Defense

Authorization Act of 2016, Pub. L. No. 114-92, § 1086, and its amendment to 5 U.S.C.

§ 7512, which states, “This subchapter . . . does not apply to— . . . ‘(F) a suitability

action taken by the Office [of Personnel Management] under regulations prescribed by

the Office, subject to the rules prescribed by the President under this title for the

administration of the competitive service.’”

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.

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 you wish to challenge the Board’s rulings on your whistleblower claims

only, excluding all other issues , 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

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.