Filed: Nov. 06, 2014
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2014 MSPB 83 Docket No. SF-1221-13-0574-W-2 Robert M. Miller, Appellant, v. Federal Deposit Insurance Corporation, Agency. November 6, 2014 Robert M. Miller, San Francisco, California, pro se. Thomas J. Sarisky, Arlington, Virginia, for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of an initial decision that dismisse
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2014 MSPB 83 Docket No. SF-1221-13-0574-W-2 Robert M. Miller, Appellant, v. Federal Deposit Insurance Corporation, Agency. November 6, 2014 Robert M. Miller, San Francisco, California, pro se. Thomas J. Sarisky, Arlington, Virginia, for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of an initial decision that dismissed..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2014 MSPB 83
Docket No. SF-1221-13-0574-W-2
Robert M. Miller,
Appellant,
v.
Federal Deposit Insurance Corporation,
Agency.
November 6, 2014
Robert M. Miller, San Francisco, California, pro se.
Thomas J. Sarisky, Arlington, Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of an initial decision that
dismissed his individual right of action (IRA) appeal for lack of jurisdiction
because, among other things, his claim of reprisal for disclosing information
during an internal grievance process was not a matter that could be adjudicated in
this IRA appeal, regardless of whether the pertinent provisions of the
Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. No.
112-199, 126 Stat. 1465, applied retroactively. For the following reasons, we
2
DENY the petition for review, AFFIRM the initial decision as modified, and
DISMISS this appeal for lack of jurisdiction.
BACKGROUND
¶2 In Miller v. Federal Deposit Insurance Corporation, MSPB Docket
No. SF-3443-12-0301-I-1, Final Order (June 26, 2013), the Board forwarded the
appellant’s petition for review to the Western Regional Office for docketing as an
IRA appeal, and this appeal followed. See Miller v. Federal Deposit Insurance
Corporation, MSPB Docket No. SF-1221-13-0574-W-1, Initial Appeal File (W-1
IAF), Tab 1. As explained in more detail below, all of the material events in this
matter occurred before the relevant provisions of the WPEA took effect on
December 27, 2012. See WPEA § 202. An IRA appeal is authorized by statute
only in certain reprisal cases as designated in 5 U.S.C. § 1221(a). Prior to the
WPEA, an eligible individual’s entitlement to seek corrective action from the
Board in an IRA appeal was limited to covered personnel actions taken or
proposed to be taken as a result of a prohibited personnel practice (PPP)
described in 5 U.S.C. § 2302(b)(8), i.e., retaliation for whistleblowing.
See 5 U.S.C. § 1221(a) (2011); see also 5 C.F.R. § 1209.4(b) (defining
“whistleblowing”). The WPEA extended the IRA appeal right in section 1221(a)
to include not only PPPs described in 5 U.S.C. § 2302(b)(8) but also PPPs
described in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), and (D), as amended by the
WPEA. WPEA § 101(b)(1)(A). The administrative judge dismissed this appeal
without prejudice to refiling pending the Board’s decision in Hooker v.
Department of Veterans Affairs, 120 M.S.P.R. 629 (2014), regarding whether the
expanded IRA appeal provisions in the WPEA should be applied retroactively.
See W-1 IAF, Tab 8, Initial Decision.
¶3 After this appeal was refiled, the administrative judge issued an order to
show cause explaining that, in Hooker, 120 M.S.P.R. 629, ¶¶ 8-15, the Board
3
determined that the new IRA appeal right in section 101(b)(1)(A) of the WPEA
pertaining to the PPPs described in 5 U.S.C. § 2302(b)(9)(B) did not apply
retroactively to a Board appeal that was pending when the WPEA was enacted. 1
Miller v. Federal Deposit Insurance Corporation, MSPB Docket No. SF-1221-
13-0574-W-2, Initial Appeal File (W-2 IAF), Tab 3. The administrative judge
noted that the analysis in Hooker “appears equally applicable” to a claim based
on the PPPs described in 5 U.S.C. § 2302(b)(9)(A). Id. at 3 n.2. The
administrative judge therefore ordered the appellant to show cause why his appeal
should not be dismissed for lack of jurisdiction. Id. at 4.
¶4 After the appellant responded to the order, W-2 IAF, Tab 4, the
administrative judge issued an initial decision that dismissed the IRA appeal for
lack of jurisdiction, W-2 IAF, Tab 6, Initial Decision (ID). The administrative
judge found that, under long-standing precedent of the Board and the U.S. Court
of Appeals for the Federal Circuit, the alleged reprisal for the appellant’s
grievance activity and for disclosing information as a part of that process could
be a PPP as described in 5 U.S.C. § 2302(b)(9) but not as described in 5 U.S.C.
§ 2302(b)(8). See ID at 6. The administrative judge further found that all the
material events in this case occurred prior to the effective date of the WPEA and
that, following Hooker, the extension of IRA appeal rights in the WPEA was not
to be given retroactive effect to reprisal claims based on certain activity described
in 5 U.S.C. § 2302(b)(9). See ID at 6-8. The administrative judge further
concluded that, even if these WPEA provisions applied retroactively, the
1
As amended by the WPEA, 5 U.S.C. § 2302(b)(9)(B) states that it is a PPP to take or
fail to take, or threaten to take or fail to take, any personnel action against any
employee because of “testifying for or otherwise lawfully assisting any individual in the
exercise of any right referred to in subparagraph (A)(i) or (ii).” Subparagraphs (A)(i)
and (ii) refer to the exercise of any appeal, complaint, or grievance right granted by any
law, rule, or regulation—(i) with regard to remedying a violation of paragraph (8), or
(ii) other than with regard to remedying a violation of paragraph (8).
4
appellant’s claims would be covered under 5 U.S.C. § 2302(b)(9)(A)(ii), as
amended by the WPEA, and as such would still not be among the enumerated
grounds for an IRA appeal. See ID at 8 (citing Mudd v. Department of Veterans
Affairs, 120 M.S.P.R. 365, ¶ 7 (2013)). 2 The administrative judge also found
that, to the extent that the appellant was raising allegations of reprisal for
separate whistleblowing disclosures that occurred outside of the context of the
internal grievance process, the appellant failed to prove that he had exhausted his
administrative remedy with the Office of Special Counsel (OSC) regarding such
claims and thus, by law, they could not be a basis for Board jurisdiction over this
IRA appeal. ID at 4-5.
¶5 The appellant has filed a petition for review, the agency has filed a
response, and the appellant has filed a reply. See Petition for Review (PFR) File,
Tabs 1, 3-4. On review, the appellant challenges the administrative judge’s
jurisdictional analysis. PFR File, Tab 1 at 8-14. He further argues that the
administrative judge improperly denied his motion to compel discovery and his
motion to strike certain information from the record. Id. at 8, 14. He also
includes an agency draft anti-harassment policy that may have been disseminated
to employees after the close of the record below. See id. at 11-12, 17-26.
2
As an additional basis for finding a lack of jurisdiction over the appellant’s (b)(9)
claims, the administrative judge found that, under pre-WPEA law, the appellant was an
employee of a government corporation rather than an “agency” as defined at 5 U.S.C.
§ 2302(a)(2)(C)(i) (2011), and thus was excluded from coverage under 5 U.S.C. § 2302
except for a claim arising under subsection (b)(8), ID at 6 & n.8 (citing Snead v.
Pension Benefit Guaranty Corporation, 74 M.S.P.R. 501, 502-03 (1997); Dockery v.
Federal Deposit Insurance Corporation, 64 M.S.P.R. 458, 460-62 (1994)). The WPEA
amended 5 U.S.C. § 2302(a)(2)(C)(i) to add language regarding section
2302(b)(9)(A)(i), (B), (C), and (D). See WPEA § 101(b)(1)(B). Because we find that
the Board lacks jurisdiction for the reasons set forth in this Opinion and Order, we do
not reach the administrative judge’s alternative analysis.
5
ANALYSIS
The administrative judge properly concluded that the appellant exhausted his
remedies with OSC regarding claims of reprisal for his grievance activities, but
he did not seek corrective action from OSC regarding his claims of reprisal for
disclosures or activities outside of the grievance process.
¶6 The first element of Board jurisdiction over an IRA appeal is exhaustion by
the appellant of his administrative remedies before OSC. See 5 U.S.C.
§§ 1214(a)(3), 1221(a); see also Yunus v. Department of Veterans
Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001); Carney v. Department of Veterans
Affairs, 121 M.S.P.R. 446, ¶ 4 (2014). Specifically, under 5 U.S.C. § 1214(a)(3),
an employee is required to “seek corrective action from [OSC] before seeking
corrective action from the Board” through an IRA appeal. To satisfy this
requirement, an appellant must articulate to OSC the basis for his request for
corrective action “with reasonable clarity and precision.” Ellison v. Merit
Systems Protection Board, 7 F.3d 1031, 1037 (Fed. Cir. 1993); see Ward v. Merit
Systems Protection Board, 981 F.2d 521, 526 (Fed. Cir. 1992). Although an
appellant may add further detail to his claims before the Board, see Briley v.
National Archives & Records Administration, 236 F.3d 1373, 1378 (Fed. Cir.
2001), the appellant must first make a reasonably clear and precise claim with
OSC, see, e.g., Mintzmyer v. Department of the Interior, 84 F.3d 419, 422 (Fed.
Cir. 1996).
¶7 The administrative judge found that the appellant exhausted his
administrative remedies with OSC regarding his claims of reprisal for disclosures
made during steps 1, 2, and 3 of the grievance process. ID at 5. The record fully
supports this finding. See W-1 IAF, Tab 5 at 64-76 (OSC complaint), 13-21
(step 1 grievance dated May 29, 2011), 22-40 (step 2 grievance dated July 22,
6
2011), 41-57 (step 3 grievance dated September 8, 2011). 3 For instance, the
appellant’s OSC complaint specifically identifies these three grievances as the
alleged disclosures at issue. Id. at 68, 70-72. Further, he repeatedly made
narrative assertions on his OSC complaint form that he made his disclosures in
his grievances. See id. at 67 (“On May 29 th , I filed a grievance with the FDIC for
violations of law, regulation, EEOC guidance, FDIC policies, and the collective
bargaining agreement.”), 73 (“I filed a grievance for violation of law, regulation,
guidance, and the collective bargaining agreement.”), 74 (“In the grievance, I
accused [my first-line supervisor] and the FDIC generally of violating the law
and my rights.”). Thus, we find that the appellant satisfied the exhaustion
requirement of 5 U.S.C. § 1214(a)(3) regarding his allegations concerning
reprisal for his grievance activity and disclosures of information in that context.
¶8 In briefing the jurisdictional issue before the administrative judge, the
appellant claimed that he also suffered reprisal for making certain disclosures
outside of the grievance process. Specifically, he referenced his May 26, 2011
email to the agency Ombudsman, W-2 IAF, Tab 4 at 10, 18-19, and his emails to
the agency Acting Chairman and/or his Chief of Staff beginning on February 7,
2012, concerning “FDIC Values, Cultural Change, [and] Merit Systems
Principles,” W-1 IAF, Tab 5 at 8, 11, 58-63; W-2 IAF, Tab 4 at 10, 20-28. There
is no evidence that the appellant informed OSC of these communications with the
3
Although the appellant’s OSC complaint misstated the date of his step 3 grievance as
July 22, 2011, see W-1 IAF, Tab 5 at 72, it is clear from context that he was referring to
disclosures made during his step 3 grievance, see id. at 72-73, which was filed on
September 8, 2011, id. at 41, and was the subject of a hearing before a Deputy Director
on September 21, 2011, id. at 8, 68. Although the appellant’s OSC complaint did not
explicitly refer to either of these September dates, we find that his complaint was clear
enough to inform OSC that he was seeking corrective action for disclosures made in his
written step 3 grievance and during the hearing in that matter on September 21, 2011.
We modify the initial decision to the extent that the administrative judge found
otherwise. See ID at 5 n.7.
7
agency Ombudsman, Chairman, or Chief of Staff, and these communications are
not mentioned in his OSC complaint. See W-1 IAF, Tab 5 at 64-76. In contrast,
his OSC complaint described in detail his grievance activity, which was the core
of the complaint. See supra ¶ 7.
¶9 On review, the appellant does not argue that he raised with OSC his
communications with the Ombudsman, Chairman, or Chief of Staff. Instead, he
asserts that he generally “made reasonable attempts” to exhaust with OSC and
that “[i]t simply does not matter whether [he] notified the OSC that he had also
made disclosures outside the grievance process” because OSC had already
determined that it would terminate an investigation into his allegations. PFR
File, Tab 1 at 14. He further speculates that, if OSC had chosen to interview him,
it could have determined whether there were disclosures outside of the grievance
process, other types of personnel actions, or other covered disclosures. PFR File,
Tab 4 at 12-13. We find these arguments unavailing.
¶10 Seeking corrective action with OSC is an important statutory prerequisite
to an IRA appeal before the Board. See 5 U.S.C. § 1214(a)(3); see also Serrao v.
Merit Systems Protection Board, 95 F.3d 1569, 1578 (Fed. Cir. 1996);
Ward,
981 F.2d at 526. The appellant’s allegations regarding alleged disclosures
outside the grievance process are not merely a more detailed account of the
claims he presented to OSC; rather, they are new allegations of protected activity
separate from the grievance activity that was the core of the retaliation claim
described in his submissions to OSC. See supra ¶ 7; cf. Briley, 236 F.3d at 1378.
As such, he has not proven that he sought corrective action with OSC regarding
these claims, and the Board lacks jurisdiction to review them in this IRA appeal.
See Serrao, 95 F.3d at 1575-78 (finding that the Board did not have jurisdiction
over a potential claim of reprisal as a result of a PPP described in 5 U.S.C.
§ 2302(b)(8) because the employee did not articulate such a claim with
reasonable clarity and precision when seeking corrective action from OSC for
8
reprisal for the exercise of grievance rights); see also Mintzmyer, 84 F.3d at 422
(finding that an appellant’s allegation in her OSC complaint that she was
“subjected to constructive discharge by harassing and retaliatory behavior” was
not sufficiently clear or precise to constitute exhaustion of her administrative
remedies regarding four alleged retaliatory actions that she specified for the first
time to the Board in her IRA appeal).
The appellant’s allegations of reprisal for grievance activity are properly
considered as allegations of PPPs under 5 U.S.C. § 2302(b)(9), rather than
subsection (b)(8).
¶11 It is well-settled that reprisal for filing a grievance is protected by 5 U.S.C.
§ 2302(b)(9), not section 2302(b)(8). Serrao, 95 F.3d at 1574-76; Mason v.
Department of Homeland Security, 116 M.S.P.R. 135, ¶ 22 n.6 (2011); Fisher v.
Department of Defense, 47 M.S.P.R. 585, 587-88 (1991). The U.S. Court of
Appeals for the Federal Circuit has emphasized that the Board must avoid
blurring the deliberate and substantive distinction established by Congress
between whistleblowing disclosures protected under subsection (b)(8) and the
exercise of grievance rights protected under subsection (b)(9)(A). Serrao,
95 F.3d at 1576 (citing
Ellison, 7 F.3d at 1035). Thus, the court has held that an
appellant cannot meet the jurisdictional requirements in an IRA appeal merely by
inserting section 2302(b)(8) allegations into an agency grievance. Id.
¶12 Notwithstanding this clear precedent, the appellant cites Bump v.
Department of the Interior, 64 M.S.P.R. 326 (1994), for the proposition that “it
simply does not matter that the protected disclosures were made within the
grievance process when they otherwise establish the type of fraud, waste or abuse
that the WPA was intended to reach.” PFR File, Tab 4 at 12; accord PFR File,
Tab 1 at 12-13. This is a misinterpretation of Bump and the relevant law. In
Bump, the Board recognized that an employee may make a number of related
disclosures based upon the same operative facts. Bump, 64 M.S.P.R. at 332.
Mr. Bump had made certain disclosures to OSC that could qualify as protected
9
disclosures under 5 U.S.C. § 2302(b)(8). Id. at 331. The Board found that he
was not disqualified from pursing an IRA appeal based on reprisal for making
those disclosures to OSC merely because he also may have raised them as part of
a grievance. Id. at 331-32. That is not the situation here. As set forth above, the
issue in this appeal is limited to alleged reprisal only as a result of the appellant’s
grievance activity and disclosures of information in that context. Thus, Bump is
distinguishable, see Serrao, 95 F.3d at 1576 n.6, and the appellant’s exhausted
claims are properly considered as allegations of PPPs under 5 U.S.C.
§ 2302(b)(9), see, e.g., Serrao, 95 F.3d at 1574-76; Mason, 116 M.S.P.R. 135,
¶ 22 n.6; Fisher, 47 M.S.P.R. at 587-88.
The provisions of the WPEA authorizing an IRA appeal based on an allegation of
reprisal as a result of a PPP under 5 U.S.C. § 2302(b)(9)(A)(i) do not apply to
this case.
¶13 Under the law in effect at the time of the events at issue in this appeal, an
eligible individual’s entitlement to seek corrective action from the Board in an
IRA appeal was limited to covered personnel actions taken or proposed to be
taken as a result of a PPP described in 5 U.S.C. § 2302(b)(8), i.e., retaliation for
whistleblowing. See 5 U.S.C. § 1221(a) (2011). Because the appellant only
sought corrective action from OSC regarding allegations of reprisal as a result of
PPPs as described in 5 U.S.C. § 2302(b)(9), the Board lacks IRA jurisdiction over
those claims under the law in effect at the time of the events at issue. See Serrao,
95 F.3d at 1574-76.
¶14 We now turn to the impact of the WPEA, if any, on the appellant’s appeal.
The WPEA was signed into law on November 27, 2012, and it had an effective
date of December 27, 2012. King v. Department of the Air Force, 119 M.S.P.R.
663, ¶ 3 (2013). With exceptions not applicable here, under 5 U.S.C. § 1221(a),
as amended by section 101(b)(1)(A) of the WPEA, an employee may seek
corrective action from the Board concerning any personnel action taken, or
proposed to be taken, against him as a result of a PPP described in section
10
2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D). 4 Amended section
2302(b)(9)(A) provides that any employee who has authority to take, direct others
to take, recommend, or approve any personnel action shall not, with respect to
such authority, take or fail to take, or threaten to take or fail to take, any
personnel action against any employee because of:
(A) the exercise of any appeal, complaint, or grievance right granted
by any law, rule, or regulation—
(i) with regard to remedying a violation of paragraph (8); or
(ii) other than with regard to remedying a violation of paragraph
(8).
Under 5 U.S.C. § 1221(e)(1), as amended by the WPEA, and subject to the
provisions of section 1221(e)(2), in any case involving an alleged PPP as
described under 5 U.S.C. § 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or
(D), “the Board shall order such corrective action as the Board considers
appropriate if the employee . . . has demonstrated that a disclosure or protected
activity described under section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C),
or (D) was a contributing factor in the personnel action which was taken or is to
be taken.”
¶15 In Hooker, 120 M.S.P.R. 629, ¶¶ 11-15, the Board used the analytical
framework set forth in Landsgraf v. USI Film Products, 511 U.S. 244 (1994), to
determine that the retroactive application of the new IRA appeal right in section
101(b)(1)(A) of the WPEA, as it pertains to the personnel actions taken as a result
of a PPP, as set forth at 5 U.S.C. § 2302(b)(9)(B), would be impermissible
because it would increase a party’s liability for past conduct as compared to
4
Section 2302(b)(9)(C) involves cooperating with or disclosing information to the
Inspector General of an agency, or the Special Counsel, in accordance with applicable
provisions of law. Section 2302(b)(9)(D) involves refusing to obey an order that would
require the individual to violate a law. Neither of these subsections is implicated in this
matter.
11
pre-WPEA liability. The same rationale is applicable here. Indeed, as in Hooker,
the WPEA created a new Board appeal right in IRA appeals for employees who
allege that a personnel action has been taken as a result of a PPP described in
section 2302(b)(9)(A)(i), and it includes a new provision directing the Board to
order such corrective action as the Board considers appropriate when such
protected activity is a contributing factor in a personnel action. See
Hooker, 120 M.S.P.R. 629, ¶ 15. Therefore, consistent with Hooker, we decline
to apply in this case the new IRA appeal right in section 101(b)(1)(A) of the
WPEA as it pertains to the PPPs described at 5 U.S.C. § 2302(b)(9)(A)(i) because
doing so would increase a party’s liability for past conduct as compared to pre-
WPEA liability. 5 Thus, even assuming that the appellant made a nonfrivolous
allegation that he engaged in activity that would now be considered protected
under 5 U.S.C. § 2302(b)(9)(A)(i), the appellant cannot bring an IRA appeal on
that basis regarding events that occurred before the effective date of the WPEA. 6
We discern no error with the administrative judge’s decision to deny the
appellant’s motion to compel discovery and motion to strike certain information
from the record.
¶16 The appellant asks the Board to overturn the administrative judge’s
decision on his request to “have information that was prejudicial to this case
5
The Board appeal in Hooker was pending when the WPEA was enacted. See Hooker,
120 M.S.P.R. 629, ¶ 10. Here, however, the relevant events occurred before the WPEA
was enacted and its effective date, but the appeal was docketed after the effective date
of the WPEA. See, e.g., W-1 IAF, Tab 5 at 13-21 (May 29, 2011 step 1 grievance),
22-40 (July 22, 2011 step 2 grievance), 41-57 (September 8, 2011 step 3 grievance),
64-76 (the appellant’s March 2012 OSC complaint), 77-78 (OSC’s correspondence to
the appellant). This difference in chronology does not warrant a different disposition.
See Hooker, 120 M.S.P.R. 629, ¶ 11 (citing Landsgraf, 511 U.S. at 280).
6
In light of this finding, we need not reach the issue of whether the appellant’s claim
should be considered as a claim covered by 5 U.S.C. § 2302(b)(9)(A)(ii) rather than
subsection (b)(9)(A)(i).
12
removed from the record,” and he states that he did not have a sufficient
opportunity to conduct discovery. PFR File, Tab 1 at 14. Although unclear, it
appears that the appellant is challenging the administrative judge’s June 6, 2014
order that denied his: (1) motion for reconsideration of the order denying his
motion to compel in his prior Board appeal, Miller v. Federal Deposit Insurance
Corporation, MSPB Docket No. SF-3443-12-0301-I-1; and (2) objection to the
order to show cause that made reference to his grieving his letter of warning
(LOW). See W-2 IAF, Tab 5 at 1-2 (June 6, 2014 order); see also W-2 IAF,
Tab 4 at 4-6 (the appellant objected to any further reference to a “LOW
grievance”), 14-15 (the appellant requested reconsideration of the decision to
deny his motion to compel in his prior Board appeal).
¶17 We discern no error with the administrative judge’s decisions in this
regard. As the administrative judge noted, the Board found in its final order in
the prior Board appeal that the administrative judge did not abuse his discretion
in denying the appellant’s motions to compel. See W-1 IAF, Tab 1 at 4.
Moreover, we agree with the administrative judge that the appellant’s May 29,
2011 grievance “[w]ithout question” referenced the LOW. W-2 IAF, Tab 5 at 2;
see W-1 IAF, Tab 5 at 18, 21. Accordingly, we see no basis upon which to strike
the administrative judge’s reference to the appellant’s grieving the LOW in the
show cause order.
The appellant’s “new” evidence on review does not warrant a different outcome.
¶18 We have considered the draft anti-harassment policy that the appellant
includes with his petition for review. See PFR File, Tab 1 at 17-26. We find,
even if we viewed the draft policy as “new” evidence, it is not of sufficient
weight to warrant an outcome different from that of the initial decision because it
does not change our determination that the Board lacks jurisdiction over the
appeal for the reasons set forth above. See Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980).
13
ORDER
¶19 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
§ 1201.113(c)).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request the United States Court of Appeals for the Federal Circuit or any
court of appeals of competent jurisdiction to review this final decision. The court
of appeals must receive your petition for review within 60 days after the date of
this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you
choose to file, be very careful to file on time. You may choose to request review
of the Board’s decision in the United States Court of Appeals for the Federal
Circuit or any other court of appeals of competent jurisdiction, but not both.
Once you choose to seek review in one court of appeals, you may be precluded
from seeking review in any other court.
14
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for a list of attorneys who have
expressed interest in providing pro bono representation for Merit Systems
Protection Board appellants before the Federal Circuit. The Merit Systems
15
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD:
______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
