Opinion

James Fitzpatrick v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: May 24, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.2%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JAMES F. FITZPATRICK, DOCKET NUMBER

Appellant, NY-1221-19-0098-W-1

DEPARTMENT OF HOMELAND DATE: May 24, 2024

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

James F. Fitzpatrick , Bronx, New York, pro se.

Daniel Piccaluga , Washington, D.C., 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 his individual right of action (IRA) appeal. 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 the facts of the case; the administrative judge’s rulings during either

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 appellant’s petition

for review. However, we VACATE the portion of the initial decision barring this

appeal on res judicata grounds. We AFFIRM the portion of the initial decision

concluding that the Board lacks jurisdiction over this IRA appeal due to the

appellant’s failure to prove that he exhausted his administrative remedies with the

Office of Special Counsel (OSC).

BACKGROUND

The appellant began his term appointment with the agency as a GS-07

Miscellaneous Assistant on July 22, 2018. 2 Fitzpatrick v. Department of

Homeland Security, MSPB Docket No. NY-1221-19-0098-W-1, Initial Appeal

File (0098 IAF), Tab 1 at 20. The appellant’s term appointment was subject to a

1-year probationary period. Id. Effective October 13, 2018, the agency

terminated the appellant during his probationary period for post -appointment

reasons related to his conduct and work performance. 0098 IAF, Tab 14 at 20-23.

On October 21, 2018, the appellant filed an appeal with the Board contesting his

probationary termination. Fitzpatrick v. Department of Homeland Security

(Fitzpatrick I), MSPB Docket No. NY-315H-19-0019-I-1, Initial Appeal File

(0019 IAF), Tab 1. The appellant withdrew his appeal, and the administrative

The appellant’s position title is referred to as a Sighted Assistant in some documents,

but an SF-50 in the record and his termination letter refer to the position title as a

Miscellaneous Assistant. Fitzpatrick v. Department of Homeland Security, MSPB

Docket No. NY-1221-19-0098-W-1, Initial Appeal File, Tab 1 at 13, 20, Tab 14

at 20-23.

judge subsequently dismissed Fitzpatrick I with prejudice. 0019 IAF, Tab 11

at 1-3. The appellant then filed a petition for review with the Board in

Fitzpatrick I. 3

During the pendency of his petition for review in Fitzpatrick I, the

appellant filed this IRA appeal, alleging that in reprisal for being a whistleblower,

the agency terminated him during his probationary period. 0098 IAF, Tab 1.

Because it appeared that the Board lacked jurisdiction over this IRA appeal, the

administrative judge issued a jurisdictional notice advising the appellant of his

burden and the types of argument and evidence that he had to file to establish

Board jurisdiction. 0098 IAF, Tab 4. After both parties responded, the

administrative judge issued an initial decision dismissing this appeal. 0098 IAF,

Tabs 6-8, 12-15, 17, Initial Decision (ID) at 1-5. The administrative judge first

found that this appeal was barred by res judicata based on the initial decision in

Fitzpatrick I that dismissed with prejudice the appellant’s Board appeal of his

probationary termination. ID at 2-3. The administrative judge further held that

notwithstanding her finding that the appeal was barred by res judicata, the

appellant failed to satisfy his burden of proving that he exhausted administrative

remedies with OSC before pursuing this IRA appeal. Id. at 3-4. The appellant

has filed a petition for review, to which the agency has responded in opposition,

and the appellant has replied. Petition for Review (PFR) File, Tabs 1-2, 7-8.

ANALYSIS

We vacate the administrative judge’s determination that this appeal is barred by

res judicata.

The doctrine of res judicata serves as a basis to dismiss an appeal over

which the Board has jurisdiction. Merzweiler v. Office of Personnel

Management, 100 M.S.P.R. 442, ¶ 7 (2005). Yet, when Board jurisdiction over

The Board has since denied the appellant’s petition for review and affirmed the initial

decision in Fitzpatrick I that dismissed the appeal as withdrawn. Fitzpatrick v.

Department of Homeland Security, MSPB Docket No. NY-315H-19-0019-I-1, Final

Order at 1-3 (Feb. 20, 2024)

an appeal is lacking, this doctrine generally will not serve as appropriate grounds

for dismissal. Id. Rather, the appeal should be dismissed for lack of jurisdiction.

Id., ¶¶ 1, 8. As detailed herein, this instant appeal does not fall under the Board’s

jurisdiction and should be dismissed accordingly. Thus, we vacate the initial

decision’s conclusion that this appeal is barred by res judicata.

We affirm the administrative judge’s conclusion that the Board lacks jurisdiction

over this IRA appeal because the appellant failed to prove that he exhausted his

administrative remedies with OSC.

The Board has jurisdiction over an IRA appeal if, inter alia, an appellant

exhausts his administrative remedies before OSC. Graves v. Department of

Veterans Affairs, 123 M.S.P.R. 434, ¶ 12 (2016); see 5 U.S.C. § 1214(a)(3). The

Board, in Chambers v. Department of Homeland Security, 2022 MSPB 8,

¶¶ 10-11, clarified the substantive requirements of exhaustion. The requirements

are met when an appellant has provided OSC with a sufficient basis to pursue an

investigation. The Board’s jurisdiction is limited to those issues that were

previously raised with OSC. However, appellants may give a more detailed

account of their whistleblowing activities before the Board than they did to OSC.

Id. Appellants may demonstrate exhaustion through their initial OSC complaint;

evidence that they amended the original complaint, including but not limited to

OSC’s determination letter and other letters from OSC referencing any amended

allegations; and, their written responses to OSC referencing the amended

allegations. Id. Appellants also may establish exhaustion through other

sufficiently reliable evidence, such as an affidavit or a declaration attesting that

they raised with OSC the substance of the facts in the Board appeal. Id. An

appellant may file an IRA appeal with the Board within 60 days of notification

from OSC that it has closed its investigation, or 120 days after the filing of a

request for corrective action if the appellant has not been notified if OSC will

take action. 5 U.S.C. § 1214(a)(3)(A), (a)(3)(B). If an appellant fails to meet his

burden in proving this exhaustion requirement, the Board shall dismiss the appeal

for lack of jurisdiction. Boechler v. Department of the Interior, 109 M.S.P.R.

638, ¶¶ 5, 12-13, 16 (2008), aff’d, 328 F. App’x. 660 (Fed. Cir. 2009) (Table).

As the administrative judge correctly found in the initial decision, the

appellant failed to meet his burden of establishing Board jurisdiction over this

IRA appeal, as he did not prove that he exhausted his administrative remedies

with OSC prior to filing this appeal. ID at 3-4. Despite being apprised of this

requirement and what was necessary to meet his burden, the appellant failed to

submit any piece of evidence through his numerous submissions before the

administrative judge outlining his purported whistleblowing disclosure(s) and/or

protected activity and the retaliatory prohibited personnel practice(s) that he

first included in an OSC complaint seeking corrective action or any

subsequent correspondence with OSC related to that complaint. 0098 IAF,

Tabs 4, 6-8, 12-13, 15. As the administrative judge determined, the evidence

before her did not even indicate that the appellant filed a whistleblower reprisal

complaint with OSC before pursuing this IRA appeal. ID at 4.

The appellant’s petition for review includes voluminous documentation in

an attempt to show that he exhausted his administrative remedies with OSC

before filing his IRA appeal in this case. 4 PFR File, Tabs 1-2, 8. Many of the

appellant’s submissions on review are duplicative of what he submitted before the

administrative judge or are irrelevant to the question of Board jurisdiction.

The Board has held that it is not required to pore through the record in

order to construe or make sense of pleadings filed by a party. See, e.g.,

Keefer v. Department of Agriculture, 92 M.S.P.R. 476, ¶ 18 n.2 (2002). An

appellant’s submissions that lack clarity run the risk of being found to have failed

For the first time on review, the appellant appears to claim that issues with uploading

documents on the Board’s e-appeal system prevented him from proving that he

exhausted his administrative remedies with OSC. PFR File, Tab 8 at 4. The appellant

provides no additional information regarding this allegation, and thus, we find it

insufficient to grant his petition for review.

to meet the requisite burden of proof. Luecht v. Department of the Navy,

87 M.S.P.R. 297, ¶ 8 (2000).

However, the appellant submits two documents on review that he did not

submit before the administrative judge–a November 7, 2018 complaint that the

appellant filed with OSC alleging that an agency official engaged in prohibited

political activity in violation of the Hatch Act 5 and an undated retyped email

purportedly from an OSC investigator asking follow-up questions on an

unreferenced OSC complaint that the appellant filed. PFR File, Tab 1 at 6-7,

Tab 2 at 36-41.

The Board will generally not consider evidence submitted for the first time

with a petition for review absent a showing that it was unavailable before the

record was closed despite the party’s due diligence. Avansino v. U.S. Postal

Service, 3 M.S.P.R. 211, 214 (1980). The appellant has failed to show that

circumstances exist for us to consider either of these documents for the first time

on review. The Hatch Act complaint filed by the appellant is dated and signed

November 7, 2018, which is more than 4 months before the jurisdictional record

closed before the administrative judge in this case. 0098 IAF, Tab 4 at 1, 8; PFR

File, Tab 2 at 36. Further, the apparent retyped email from an OSC investigator

is undated and the appellant did not provide any other information in order for us

to ascertain when it became available to him. PFR File, Tab 1 at 6-7.

Notwithstanding, 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. Russo v. Veterans

The Hatch Act, as amended, limits certain political activities of Federal employees, as

well as some state, D.C., and local government employees, who work with federally

funded programs. https://osc.gov/Services/Pages/HatchAct.aspx (last visited May 23,

2024); Hatch Act of 1939, Pub. L. No. 76-252, 53 Stat. 1147 (Aug. 2, 1939); Hatch Act

Modernization Act of 2012, Pub. L. No. 112-230, 126 Stat. 1616 (Dec. 28, 2012). The

law’s objectives are to ensure that Federal programs are administered in a nonpartisan

fashion, to protect Federal employees from political coercion in the workplace, and to

ensure that Federal employees are advanced based on merit and not based on political

affiliation. https://osc.gov/Services/Pages/HatchAct.aspx .

Administration, 3 M.S.P.R. 345, 349 (1980). Even when considering these

additional documents as new evidence, the appellant still has not established that

he exhausted administrative remedies with OSC before filing this IRA appeal.

Proof that the appellant filed a complaint with OSC alleging that an agency

official engaged in prohibited political activity in violation of the Hatch Act does

not prove that he also filed a whistleblower reprisal complaint with OSC in which

he gave OSC a sufficient basis to pursue an investigation which might lead to

corrective action. 6 Even if the appellant intended for his Hatch Act complaint to

be construed as a whistleblower reprisal complaint, he does not sufficiently allege

therein that the agency terminated him during his probationary period in reprisal

for making a whistleblowing disclosure and/or engaging in protected activity.

PFR File, Tab 2 at 36-41. The purported retyped email from an OSC investigator

mentions that the appellant was terminated, but it does not indicate the nature of

the complaint that he filed with OSC, the date it was filed, or if OSC is taking

action or closing its investigation, nor does it identify any alleged whistleblowing

disclosure(s) and/or protected activity. PFR File, Tab 1 at 6-7.

Therefore, we find no reason to disturb the portion of the initial decision

holding that the Board lacks jurisdiction over this IRA appeal because the

appellant failed to meet his burden of proving that he exhausted his

administrative remedies with OSC. Boechler, 109 M.S.P.R. 638, ¶¶ 5, 12-13, 16.

NOTICE OF APPEAL RIGHTS 7

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

The process of filing a complaint with OSC alleging a violation of the Hatch Act is

distinct from the OSC complaint process seeking corrective action for an action

allegedly taken in reprisal for making a whistleblowing disclosure and/or engaging in

protected activity. 5 C.F.R. § 1800.1(c), (d).

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions to provide a comprehensive

summary of all available review options. 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 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:

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. 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