Joseph Scovitch v. National Archives and Records Admin ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH M. SCOVITCH, DOCKET NUMBER
Appellant, DC-3443-15-1049-C-1
v.
NATIONAL ARCHIVES AND DATE: May 25, 2022
RECORDS ADMIN,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Joseph M. Scovitch, College Park, Maryland, pro se.
Hannah Bergman, College Park, Maryland, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his petition for enforcement. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.
BACKGROUND
¶2 In August 2015, the appellant, a former Archives Technician with the
agency, filed a Board appeal in which he alleged that he engaged in protected
whistleblowing and that the agency’s Office of the Inspector General (OIG) failed
to act on a complaint that he filed pertaining to missing and inaccurate records
regarding the Holocaust. On October 7, 2015, the administrative judge dismissed
the appeal for lack of jurisdiction. Scovitch v. National Archives and Records
Administration, MSPB Docket No. DC-3443-15-1049-I-1, Initial Decision,
(Oct. 7, 2015); Initial Appeal File, Tab 18.
¶3 The appellant filed a petition for review of the initial decision, and, on
February 25, 2016, the Board denied his petition for review in a nonprecedential
Final Order. Scovitch v. National Archives and Records Administration , MSPB
Docket No. DC-3443-15-1049-I-1, Final Order (Feb. 25, 2016) (I-1 Final Order);
Petition for Review File, Tab 5. The Board found that it lacked jurisdiction over
the appellant’s claims as an individual right of action (IRA) appeal because he
failed to demonstrate that he exhausted his administrative remedies befor e the
Office of Special Counsel (OSC). I-1 Final Order, ¶¶ 6-7. The Board further
3
found that it otherwise lacked jurisdiction over the appellant ’s claims regarding
his OIG complaint, and his claims that the agency was committing illegal,
criminal, and fraudulent actions. Id., ¶¶ 8-9.
¶4 On September 3, 2016, the appellant filed a petition for enforcement.
Scovitch v. National Archives and Records Administration , MSPB Docket
No. DC-3443-15-1049-C-1, Compliance File (CF), Tab 1. The administrative
judge denied the petition. CF, Tab 6, Compliance Initial Decision (CID). She
found that, because no corrective action had been ordered in connection with the
appellant’s allegations of whistleblower reprisal, he was not e ntitled to relief. Id.
at 2; I-1 Final Order, ¶ 7.
¶5 The appellant has filed a petition for review of the compliance initial
decision denying his petition for enforcement. Scovitch v. National Archives and
Records Administration, MSPB Docket No. DC-3443-15-1049-C-1, Compliance
Petition for Review (CPFR) File, Tabs 1-2. The agency has responded in
opposition to the petition for review, and the appellant has replied. CPFR File,
Tabs 5-6.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 In his petition for review, 2 the appellant appears to argue that the
administrative judge erred in failing to order the agency to provide answers to the
assertions he made in his appeal, and accepting its motion to dismiss as a
sufficient response to his allegations that the Board erroneously did not refer his
allegations of missing and inaccurate records regarding the Holocaust to OSC and
other agencies. CPFR File, Tab 2.
2
As noted, the Board denied the appellant’s petition for review of his IRA appeal on
February 25, 2016, and the appellant filed his petition for enforcement more than
6 months later on September 3, 2016. Under the Board’s regulations, a petition for
enforcement must be filed promptly with the regional office that issued the initial
decision. 5 C.F.R. § 1201.182(a). Because we are affirming the administrative judge’s
denial of the appellant’s petition for enforcement, we need not reach the issue of
whether the petition was filed promptly.
4
¶7 As correctly found by the administrative judge, the Board has jurisdiction to
consider an appellant’s claim of agency noncompliance with a Board order. CID
at 2; see 5 U.S.C. § 1204(a)(2); 5 C.F.R. § 1201.182(a); see also Kerr v. National
Endowment for the Arts, 726 F.2d 730, 733 (Fed. Cir. 1984) (stating that the
Board has jurisdiction to consider an appellant’s claim of agency noncompliance
with a Board order). Here, the appellant did not prevail in his appeal and, as the
agency asserted below, the Board’s Final Order in the appellant’s appeal did not
require any action on the agency’s part. I-1 Final Order, ¶¶ 6-9; CF, Tab 3 at 5.
Thus, we find that the appellant has failed to show that the agency is not in
compliance with the Board’s Final Order, and the administrative judge properly
denied the appellant’s petition for enforcement. See Gingery v. Department of
Defense, 121 M.S.P.R. 423, ¶ 8 (2014) (finding that the administrative judge
correctly denied the appellant’s petition for enforcement when the agency was in
compliance with the Board’s final order).
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
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.
5
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.
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(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
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:
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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 com mercial 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. 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).
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.
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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.
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.