Freddie Johnson v. Department of the Army ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FREDDIE JOHNSON, III, DOCKET NUMBER
Appellant, DC-0842-16-0749-I-1
v.
DEPARTMENT OF THE ARMY, DATE: June 27, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Freddie Johnson, III, Stafford, Virginia, pro se.
Weston C. Harlan, Fort Rucker, Alabama, for the agency.
BEFORE
Cathy A. Harris, Vice 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 of the agency’s decision denying him eligibility for Special
Retirement Coverage (SRC) as untimely filed. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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 af fected 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 By a letter dated May 12, 2016, the agency informed the appellant that his
position as an Air Traffic Control Specialist was no longer eligible for SRC
classification. Initial Appeal File (IAF), Tab 1 at 6. That letter also informed the
appellant that he could file an appeal of the agency’s decision with the Board
“within 30 days of this letter or 30 days from the date the retirement code
correction is processed, whichever is later.” Id. On July 21, 2016, the appellant
filed a Board appeal challenging the agency’s reclassification decision. IAF,
Tab 1. The administrative judge issued an acknowledgment order informing the
appellant that his appeal appeared to be untimely and directing him to file
evidence and argument proving either that his appeal was timely filed or that
good cause existed for his untimely filing. IAF, Tab 2 at 2-3. The appellant did
not respond. The agency replied, arguing that the appeal should be dismissed as
untimely filed without good cause shown and addressing the merits of the SRC
reclassification decision. IAF, Tab 4.
3
¶3 The administrative judge issued an initial decision without holding the
requested hearing, finding that the appellant’s appeal was untimely filed without
good cause shown for waiving the Board’s timeliness regulations. IAF, Tab 5,
Initial Decision (ID) at 4. The administrative judge determined that the appellant
admitted to receiving the agency’s decision letter on June 6, 2016, and that the
retirement code correction was processed by the agency on June 9, 2016, as
reflected in a Standard Form 50 (SF-50) submitted by the agency. ID at 3; IAF,
Tab 1 at 4, Tab 4 at 25. She further found that 30 days from those dates would
have been July 6, 2016, and July 11, 2016, respectively. 2 ID at 3. Because the
appellant filed his appeal on July 21, 2016, at least 10 days after both filing
deadlines, the administrative judge dismissed the appeal as untimely filed. ID
at 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 The appellant has filed a petition for review in which he argues that his
appeal was timely filed. Petition for Review (PFR) File, Tab 1. He asserts that
the SF-50 provided by the agency that reflects the change in his retirement code
from “L” (SRC Federal Employees’ Retirement System (FERS) retirement) to
“K” (Standard FERS retirement) was never made available to him and was not
included in his official personnel file. Id. at 5. Instead, the appellant claims that
the change in his retirement code was first reflected on his leave and earnings
statement for the pay period starting July 9, 2016, which included a remark
identifying the change. Id. at 5, 9. He argues that, because he filed his appeal
within 30 days of the end of that pay period, his appeal was timely filed. Id.
at 5-6. He also asserts that he did not make this argument below because the
agency’s filings failed to alert him to the fact that he was required to respond. Id.2
As the administrative judge noted, July 9, 2016, fell on a Saturday so the appeal would
have been due the next business day, Monday, July 11, 2016, at the latest. ID at 3 n.2.
4
at 4. The agency has filed a response to the petition for review. PFR File, Tab 3
at 5.
¶5 The Board generally will not consider an argument raised for the first time
on review absent a showing that it is based on new and material evidence not
previously available despite the party’s due diligence. See Hodges v. Office of
Personnel Management, 101 M.S.P.R. 212, ¶¶ 7-9 (2006) (refusing to consider
the appellant’s arguments, raised for the first time on review, in support of her
position that she had good cause for untimely refiling her appeal) (citing Banks v.
Department of the Air Force, 4 M.S.P.R. 268, 271 (1980)); 5 C.F.R.
§ 1201.115(d). The appellant has provided no explanation for why he could not
have raised the argument below that he timely filed his appeal within 30 days of
the processing of the change in his retirement status.
¶6 Furthermore, the appellant’s argument that he was unaware that it was his
responsibility to file additional evidence and argument in response to the
agency’s dismissal motion is similarly unavailing. PFR File, Tab 1 at 4. As the
agency correctly notes in its response to the petition for review, the
administrative judge’s acknowledgment order clearly set forth that it was the
appellant’s burden to prove timeliness, and ordered him to file any additional
evidence and argument on the timeliness question within 15 days of that order.
IAF, Tab 2 at 3; PFR File, Tab 3 at 5. The order also noted that the record would
close 25 calendar days after the date of that order, and that no new evidence or
argument would be accepted unless the appellant could show that it was
unavailable before the record closed. IAF, Tab 2 at 3. The appellant did not file
anything in response to the acknowledgment order and has provided no
explanation for his failure to do so. As such, the appellant has failed to show that
his argument on review is based on any new and material evidence that was not
previously available despite his due diligence. Hodges, 101 M.S.P.R. 212,
¶¶ 7-9.
5
¶7 Accordingly, we affirm the initial decision dismissing the appeal as
untimely filed without good cause.
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 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).
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 m atter.
6
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. ____ , 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
7
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
8
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. 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 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
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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.