Opinion

Monal Patel v. Department of the Army

Court: Merit Systems Protection Board
Filed: Feb 29, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.4%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MONAL PATEL, DOCKET NUMBER

Appellant, DC-3443-20-0398-I-1

DEPARTMENT OF THE ARMY, DATE: February 29, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Monal Patel , Washington, D.C., pro se.

Richard Floyd Kane , Washington, D.C., 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 his appeal for lack of jurisdiction because he was not a Government

employee at the time of his termination and he did not have standing to file an

individual right of action (IRA) appeal pursuant to 5 U.S.C. § 1221(a).

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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, 2 the appellant complains about his supervisor and

asserts that he was a Federal employee. Petition for Review (PFR) File, Tab 1

at 4. Based on our review of the record, the appellant’s arguments and evidence 3

provide no basis to disturb the initial decision. The administrative judge properly

found that, because the appellant was employed by a Government contractor, he

failed to meet the definition of an employee under 5 U.S.C. § 1221(a). Initial

The agency requests leave to file its response to the appellant’s petition for review

1 day late. Petition for Review (PFR) File, Tab 8 at 4. The Board will waive its filing

deadline only upon a showing of good cause, regardless of how minimal the delay.

5 C.F.R. § 1201.114(g); see Lands v. Department of the Air Force, 95 M.S.P.R. 593,

¶¶ 2-3, 5-7 (2004) (stating that filing even 1 day late requires a showing of good cause).

Here, the agency’s representative asserted in a pleading submitted under penalty of

perjury that he was experiencing problems with his internet service provider while

teleworking during the COVID-19 pandemic. PFR File, Tabs 3-4. Because we find that

the agency’s representative has made a showing of good cause, we waive the filing

deadline and consider the response. In the interests of fairness, we also consider the

appellant’s reply to the agency’s response. PFR File, Tab 10.

The appellant provided illegible, partial scans of a Christmas card and an email from a

prospective employer inquiring about an incident report filed by his former employer

that it saw on his clearance profile. PFR File, Tab 1 at 6-9. This evidence was

submitted below. Initial Appeal File, Tab 9 at 4-5. Evidence that is already a part of

the record is not new. Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980).

Appeal File, Tab 10, Initial Decision (ID) at 4-5. Thus, the appellant lacks

standing to file an IRA appeal with the Board. ID at 7.

After the appellant filed his petition for review, but before the record

closed on review, he sought leave from the Clerk of the Board to submit new

evidence. PFR File, Tabs 4, 6. In his first motion, he vaguely asserts that there is

evidence that was not available before the record closed and seeks to submit

emails with the Department of the Army that “indicate stark incongruencies with

the sudden adverse action.” PFR File, Tab 4 at 3. In his second motion, he seeks

to submit an email from an Army civilian staffer that would have a “huge impact

on [his] defense.” PFR File, Tab 6 at 3.

Pleadings allowed on review include a petition for review, a cross petition

for review, a response to a petition for review, a response to a cross petition for

review, and a reply to a response to a petition for review. 5 C.F.R. § 1201.114(a).

No pleading other than those set forth above will be accepted unless the party

files a motion with and obtains leave from the Clerk of the Board. 5 C.F.R.

§ 1201.114(a)(5). The motion must describe the nature and need for the pleading.

Id. Here, the appellant has not explained how the evidence he wishes to submit,

or the information contained therein, is new; nor has he shown how it is material

to the dispositive issue in this appeal, whether he meets the definition of an

employee under 5 U.S.C. § 1221(a). Thus, we deny his motions. Russo v.

Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (stating that the Board will

not grant a petition for review based on new evidence absent a showing that it is

of sufficient weight to warrant an outcome different from that of the initial

decision).

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 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. 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. 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