Gregory Finch v. Department of the Army ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GREGORY L. FINCH, DOCKET NUMBER
Appellant, DC-3443-17-0246-I-1
v.
DEPARTMENT OF THE ARMY, DATE: November 10, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Gregory L. Finch, Fort Walton Beach, Florida, pro se.
Judith A. Fishel, APO, AE, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
BACKGROUND
¶2 The appellant filed an appeal challenging the agency’s denying his request
for a curtailment of his assignment as an Installation Food Advisor at the U.S.
Army base located at Camp Bondsteel, Kosovo. 2 Initial Appeal File (IAF), Tab 1
at 6, 8-12. Specifically, on June 1, August 25, and October 17, 2016, the
appellant submitted written formal requests for curtailment of his assignment in
Kosovo. Id. at 8-10; IAF, Tab 11 at 4-9. It is undisputed that the agency denied
his requests on January 3, 2017. IAF, Tab 1 at 4, Tab 12 at 5. The appellant filed
this appeal on January 11, 2017, asserting that the agency’s denying his request
violated two of the merit system principles. IAF, Tab 1 at 6. The appellant also
checked a box on the appeal form indicating that he had received a negative
suitability determination. Id. at 3.
¶3 After issuing an order to show cause to the parties regarding jurisdiction
and considering their responses, the administrative judge dismissed the appeal for
2
On petition for review, the appellant has submitted documentation showing that his
request to curtail his assignment was granted effective March 1, 2017. P etition for
Review File, Tab 4.
3
lack of jurisdiction, finding that denying a request for curtailment of the
appellant’s assignment at Camp Bondsteel is not an otherwise appealable action
within the Board’s jurisdiction under 5 U.S.C. § 7512(1)-(5). IAF, Tab 14, Initial
Decision (ID) at 4. The administrative judge also found that the appellant’s
request for a tour curtailment is analogous to denying a reassignment opportunity
and that, absent a reduction in grade or pay, a reassignment is not an adverse
action within the Board’s jurisdiction. ID at 5. In this connection, the
administrative judge found that the appellant failed to establish that his pay was
reduced. Id. She further concluded that, to the extent the appellant was alleging
that his position classification was improper, such claim did not form the basis
for jurisdiction over this matter. ID at 6. The administrative judge found that,
while the appellant raised an allegation of a prohibited personnel practice, the
Board does not have jurisdiction over an allegation of a prohibited personnel
practice absent an otherwise appealable action within the Board’s jurisdiction. ID
at 5-6. Similarly, the administrative judge found that, because the merit system
principles are only intended to provide guidance to agencies, they do not
constitute an independent basis for Board review. ID at 6. Concluding, the
administrative judge found no negative suitability determination at issue in this
appeal. ID at 7-8.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency filed a response, and the appellant has filed a reply. PFR
File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has failed to establish that the Board has jurisdiction over the
agency’s action denying his request for a curtailment of his assigned duty.
¶5 On review, the appellant reasserts the bases for his request for curtailment,
specifically, that he is being prevented from performing the work duties specified
in his position description, including travel, which he was led to believe he would
perform while in his Installation Food Advisor position at Camp Bondsteel. PFR
4
File, Tab 1 at 3. He further contends that he has been denied training and that, as
a result of these issues, the agency should have granted his request for
curtailment. Id. The appellant also asserts that, although he may not have a valid
legal claim, morally he believes that he has not been treated fairly. PFR File,
Tab 4 at 3.
¶6 While the appellant continues to challenge the agency’s denying his request,
he has failed to explain how the administrative judge erred or to provide any
evidence in support of Board jurisdiction. PFR File, Tabs 1, 4; see Tines v.
Department of the Air Force, 56 M.S.P.R. 90, 92 (1992) (finding that a petition
for review must contain sufficient specificity to enable the Board to ascertain
whether there is a serious evidentiary challenge justifying a complete review of
the record); Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133 (1980)
(finding that before the Board will undertake a complete review of the record, the
petitioning party must explain why the challenged factual determination is
incorrect and identify the specific evidence in the record which demonstrates the
error), review denied, 669 F.2d 613 (9th Cir. 1982) (per curiam).
¶7 Nevertheless, we have considered the appellant’s arguments on review
concerning his assigned duties, training, travel, and additional pay and benefits.
However, we discern no reason to disturb the well-reasoned findings of the
administrative judge that the Board lacks jurisdiction over this matter. See
Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason
to disturb the administrative judge’s findings when she considered the evidence
as a whole, drew appropriate inferences, and made reasoned conclusions) .
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NOTICE OF APPEAL RIGHTS 3
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 choice s 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:
3
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
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 particu lar
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. ____ , 137 S. Ct. 1975 (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
7
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
8
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. 4 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 a t 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.uscour ts.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.
4
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
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.