Opinion

Bridget Bullard v. Department of Veterans Affairs

Court
Merit Systems Protection Board
Filed
Mar 21, 2024
Status
Unpublished
Cited by
0 cases
Authority
More cited than 15.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BRIDGET BULLARD, DOCKET NUMBER

Appellant, AT-3443-18-0329-I-1

v.

DEPARTMENT OF VETERANS DATE: March 21, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Bridget Bullard , West Palm Beach, Florida, pro se.

Heather G. Blackmon , Tampa, Florida, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

dismissed her 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 based on an erroneous

interpretation of statute or regulation or the erroneous application of the law to

1

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

2

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).

BACKGROUND

The appellant, a GS-6 Civilian Pay Technician, received a written

admonishment for unprofessional and inappropriate conduct. Initial Appeal File

(IAF), Tab 1 at 1, 6-7. The appellant filed a Board appeal challenging the action,

and she requested a hearing. Id. at 2-3. On her Board appeal form, the appellant

claimed that the agency had committed a prohibited personnel practice by issuing

the admonishment. Id. at 3.

The administrative judge issued a show cause order explaining that the

Board may not have jurisdiction over this appeal because a letter of

admonishment is not one of the personnel actions listed in 5 U.S.C. § 7512. IAF,

Tab 5 at 1. The administrative judge further explained that, while the Board

might have jurisdiction over such an action in the context of an Individual Right

of Action (IRA) appeal asserting that the action was taken in reprisal for

protected whistleblowing disclosures, the appellant made no such claim in her

appeal and indicated on her Board appeal form that she had not filed a complaint

with the Office of Special Counsel (OSC) on any such claim, which is a

prerequisite for filing an IRA appeal with the Board. 2 Id. at 3 n.1; IAF, Tab 1

2

Under the Whistleblower Protection Enhancement Act, the Board has jurisdiction over

an IRA appeal if the appellant has exhausted her administrative remedies before OSC

3

at 4. Accordingly, the administrative judge ordered the appellant to submit

evidence and argument sufficient to raise allegations of fact which, if proven,

would establish that she was subjected to a personnel action within the Board’s

jurisdiction. IAF, Tab 5 at 3. The administrative judge also stated that if the

appellant intended to assert a whistleblower reprisal claim, she must so state in

her response to the order. Id. at 3 n.1.

In response to the order, the appellant stated that she was unable to show

that the Board has jurisdiction over her admonishment. IAF, Tab 6. She did not

express an intention to assert a whistleblower reprisal claim. Id.

Without holding the requested hearing, the administrative judge dismissed

the appeal for lack of jurisdiction, finding that an admonishment is not directly

appealable to the Board and that the appellant did not allege that she was

subjected to any action which would be appealable to the Board. IAF, Tab 8,

Initial Decision (ID) at 2. The administrative judge further found that, although

the appellant alleged in her appeal that the agency committed an unspecified

prohibited personnel practice, in the absence of an otherwise appealable action,

the Board lacks independent jurisdiction over such an allegation. ID at 2 n.1; see

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).

The appellant has filed a petition for review of the initial decision. Petition

for Review (PFR) File, Tab 1. The agency has filed a response in opposition to

the petition for review, PFR File, Tab 3, and the appellant has filed a reply to the

agency’s response. PFR File, Tab 4.

and makes nonfrivolous allegations of the following: (1) she made a disclosure

described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described under

5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the protected disclosure or activity

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

action as defined by 5 U.S.C. § 2302(a)(2)(A). Salerno v. Department of the Interior ,

123 M.S.P.R. 230, ¶ 5 (2016).

4

ANALYSIS

The Board’s jurisdiction is limited to those matters over which it has been

given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). An admonishment is not an

adverse action under 5 U.S.C. chapter 75, over which the Board has jurisdiction.

5 U.S.C. § 7512.

On review, the appellant argues that, although an admonishment is not one

of the actions listed in 5 U.S.C. § 7512, it falls within the Board’s jurisdiction

and is directly appealable to the Board because it qualifies as “other disciplinary

or corrective action” under 5 U.S.C § 2302(a)(2)(A)(iii). 3 PFR File, Tab 1 at 4.

This argument is unavailing. The fact that an admonishment qualifies as

“other disciplinary or corrective action” under 5 U.S.C § 2302(a)(2)(A)(iii), and

therefore meets the definition of “personnel action” set forth in 5 U.S.C.

§ 2302(a)(2)(A), is relevant to the jurisdictional issue in an IRA appeal. 4 See

Massie v. Department of Transportation, 114 M.S.P.R. 155, ¶ 13 (2010)

(reflecting that an admonishment is a personnel action for purposes of an IRA

appeal). It has no bearing on whether the Board has jurisdiction over this appeal,

however, as it is undisputed that this is not an IRA appeal. In that regard, we

note that, in her reply to the agency’s response to her petition for review, the

appellant states that this is not an IRA appeal, she is not alleging whistleblower

retaliation, and she has never contacted OSC. PFR File, Tab 4 at 4. Therefore,

although we agree with the appellant that an admonishment qualifies as an “other

disciplinary or corrective action” under 5 U.S.C 2302(a)(2)(A)(iii), contrary to

3

Although the appellant raises this argument for the first time on review, we consider it

because it implicates the Board’s jurisdiction. The issue of jurisdiction is always before

the Board and may be raised by either party or sua sponte by the Board at any time

during a Board proceeding. Zajac v. Department of Agriculture, 112 M.S.P.R. 160, ¶ 8

(2009).

4

As previously noted, to establish Board jurisdiction in an IRA appeal, the appellant

must show, inter alia, that the agency took or failed to take a personnel action as

defined by 5 U.S.C. § 2302(a). Salerno, 123 M.S.P.R. 230, ¶ 5.

5

her contention on review, this does not render the admonishment directly

appealable to the Board, nor does it confer the Board with jurisdiction over this

appeal.

On review, the appellant also reasserts her argument below that the agency

committed a prohibited personnel practice (which she identifies on review as an

abuse of authority) by issuing the admonishment. PFR File, Tab 1 at 5. As

previously discussed, however, in the absence of an otherwise appealable action,

the Board lacks independent jurisdiction over such an allegation. ID at 2 n.1; see

Wren, 2 M.S.P.R. at 2.

Lastly, the appellant contends on review that this is a mixed case because

she has an equal employment opportunity case pending in conjunction with the

agency’s alleged abuse of authority. PFR File, Tab 1 at 5. A mixed case is one in

which the appellant alleges she suffered an otherwise appealable action motivated

by unlawful discrimination. Perry v. Merit Systems Protection Board, 582 U.S.

420, 431-32 (2017). An appellant may pursue such a claim by filing a formal

equal employment opportunity complaint with her employing agency followed by

an appeal to the Board, or by filing a direct appeal with the Board. Hess v. U.S.

Postal Service, 124 M.S.P.R. 40, ¶ 11 (2016). Here, because the appellant has

not alleged that she suffered an otherwise appealable action, her case is not a

mixed case over which the Board may have jurisdiction.

NOTICE OF APPEAL RIGHTS 5

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

5

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.

6

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

7

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

8

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. 6 The court of appeals must receive your petition for

6

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.

9

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

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.

10

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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