Lane O. Sato v. Department of the Army ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LANE O. SATO, DOCKET NUMBER
Appellant, SF-3443-16-0122-I-1
v.
DEPARTMENT OF THE ARMY, DATE: July 19, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lane O. Sato, Honolulu, Hawaii, pro se.
Dawn Dobbs and Steven J. Shim, Schofield Barracks, Hawaii, for the
agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, 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 when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 is a GS‑6 Medical Records Technician with the U.S. Army
Medical Command at Tripler Army Medical Center in Honolulu, Hawaii. Initial
Appeal File (IAF), Tab 6 at 32. On November 18, 2015, the appellant filed a
Board appeal, in which he alleged that, over a period of approximately 10 years,
the agency had slowly assigned him additional duties warranting a higher grade
level. IAF, Tab 1 at 5. He further alleged that: (1) his first‑level supervisor
violated 5 U.S.C. § 2302(b)(3) when she ignored his requests for a classification
review or upgrade of his position; and (2) his second‑level supervisor
violated 5 U.S.C. § 2302(b)(4) and 18 U.S.C. § 1001(a)(2) and (c)(1) when,
among other things, she falsely led the appellant to believe that a classification
review or upgrade of his position had been initiated. IAF, Tab 1 at 3, 5.
¶3 On his initial appeal form, the appellant indicated that he had filed a
whistleblower complaint with the Office of Special Counsel (OSC) on July 1,
2015, and that OSC had closed its inquiry into his complaint on October 22, 2015.
Id. at 4. With his appeal, the appellant submitted several documents, including a
narrative in which he reiterated his claims regarding the classification of his
3
position, and alleged, among other things, that the agency committed perjury,
denied him equal pay, failed to promote him, discriminated against him based on
age and gender, subjected him to a hostile work environment and bullying, and
retaliated against him for unspecified actions by accusing him of “spreading
propaganda and disruptive behavior.” Id. at 19‑26.
¶4 The administrative judge issued an acknowledgment order, which informed
the appellant that he did not appear to have raised any action directly appealable
to the Board and that the Board only has jurisdiction over an individual right of
action (IRA) appeal where an appellant exhausts his administrative remedies with
OSC and raises nonfrivolous allegations that the agency took or failed to take a
personnel action in retaliation for protected whistleblowing. IAF, Tab 2 at 2‑3.
The administrative judge ordered the appellant to submit evidence and argument
regarding the Board’s jurisdiction over his appeal. Id. at 3.
¶5 In response, the appellant asserted that one of the documents that he
furnished with his initial appeal form was a complaint that he had filed with OSC
and that OSC did not process the complaint as a whistleblower complaint. IAF,
Tab 4 at 1. He attached a July 23, 2015 letter from OSC, which indicated that the
appellant had filed a complaint with OSC (OSC File No. MA‑15‑4735), in which
he alleged that the agency had discriminated against him based on age and gender
and subjected him to a hostile work environment, and raised various matters
regarding the classification of his position. Id. at 33‑34. OSC characterized the
appellant’s allegations as potential violations of 5 U.S.C. § 2302(b)(1), (b)(3),
and b(12), and informed him that it had made a preliminary determination to close
its inquiry into his complaint. IAF, Tab 4 at 33-34. The appellant also submitted
a revised version of his prior narrative statement, dated November 20, 2015,
which raised new allegations that his supervisors had abused their authority. Id.at 2‑9; see id. at 10‑32.
4
¶6 Thereafter, the appellant filed an additional pleading in response to the
acknowledgment order, in which he alleged, among other things, that he had a
pending equal employment opportunity (EEO) complaint and that the agency
violated 5 U.S.C. § 2302(b)(9)(A) when it assigned him additional duties and
ignored his requests for a classification review or upgrade of his position. IAF,
Tab 5 at 4‑5.
¶7 The agency responded to the appellant’s pleadings, arguing that the Board
lacked jurisdiction over the appeal. IAF, Tab 6 at 5‑8, Tab 7. Thereafter, the
appellant filed a motion to withdraw his appeal on the ground that he had another
complaint pending before OSC (OSC File No. DI‑16‑0931). IAF, Tab 8 at 4.
¶8 The administrative judge issued an initial decision dismissing the appeal for
lack of jurisdiction without holding the appellant’s requested hearing.
IAF, Tab 9, Initial Decision (ID); IAF, Tab 1 at 2. He found that the Board
lacked jurisdiction over the appellant’s claims as an IRA appeal because the
appellant failed to prove that he exhausted his administrative remedies before
OSC regarding any allegations of whistleblower retaliation that he might have
raised in his Board appeal. ID at 12‑13. He further found that the appellant
failed to raise a nonfrivolous allegation that he was subject to an action directly
appealable to the Board and that, absent an otherwise appealable action, the
Board lacked jurisdiction over the appellant’s claims of prohibited personnel
practices and retaliation for EEO activity. ID at 7‑10. Finally, the administrative
judge denied the appellant’s request to withdraw his appeal, finding that the
initial decision dismissing the appeal for lack of jurisdiction obviated the need to
withdraw the appeal and that the appellant could file a new IRA appeal if he
exhausted his administrative remedies with OSC. ID at 5 n.4, 13 n.7.
¶9 The appellant has filed a timely petition for review of the initial decision, in
which he argues that the administrative judge erred in denying his motion to
5
withdraw his appeal. Petition for Review (PFR) File, Tab 1 at 4. The agency has
responded in opposition to the petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly found that the Board lacks jurisdiction over
the appellant’s claims as an IRA appeal.
¶10 The appellant does not contest the administrative judge’s finding that the
Board lacks jurisdiction over his claims as an IRA appeal, and we discern no
basis to disturb this finding on review. PFR File, Tab 1.
¶11 The Board has jurisdiction over an IRA appeal if the appellant exhausts his
administrative remedies before OSC and makes nonfrivolous allegations that:
(1) he made a disclosure described under 5 U.S.C. § 2302(b)(8), or engaged in
protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D);
and (2) the disclosure or protected activity was a contributing factor in the
agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302(a). 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Linder v. Department of
Justice, 122 M.S.P.R. 14, ¶ 6 (2014); Yunus v. Department of Veterans
Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). As to the exhaustion requirement,
the Board may only consider those disclosures, protected activities, and personnel
actions that the appellant raised before OSC. Coufal v. Department of
Justice, 98 M.S.P.R. 31, ¶¶ 14, 18 (2004). The appellant bears the burden of
demonstrating by preponderant evidence that he sought corrective action from
OSC and exhausted his administrative remedies there. Briley v. National
Archives & Records Administration, 236 F.3d 1373, 1377 (Fed. Cir.
2001); 5 C.F.R. § 1201.57(c)(1).
¶12 We agree with the administrative judge that, even assuming without finding
that the appellant alleged that he made a protected disclosure or engaged in
protected activity during his Board appeal, he failed to demonstrate that he
exhausted his administrative remedies regarding such allegations before OSC.
ID at 12‑13. The appellant did not allege that he exhausted his administrative
6
remedies before OSC regarding his allegations in OSC File No. DI‑16‑0931, but
instead, requested that the administrative judge dismiss the appeal because that
complaint was pending before OSC. IAF, Tab 8 at 4.
¶13 In the appellant’s submission that he alleged constituted his complaint in
OSC File No. MA‑15‑4735, he did not claim that he made a protected disclosure
or that the agency retaliated against him for protected whistleblowing. IAF,
Tab 1 at 7‑26, Tab 4 at 1. Similarly, in its July 23, 2015 correspondence, OSC
characterized the appellant’s allegations in OSC File No. MA‑15‑4735 as
potential violations of 5 U.S.C. § 2302(b)(1), (b)(3), and b(12), rather
than 5 U.S.C. § 2302(b)(8) or 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). IAF,
Tab 4 at 33‑34. While OSC’s opinions and conclusions are not binding on the
Board, see Smith v. Department of Agriculture, 64 M.S.P.R. 46, 55 (1994),
considering the content of the appellant’s purported OSC complaint in OSC File
No. MA‑15‑4735, we agree with OSC’s conclusion that the appellant alleged that
the agency committed prohibited personnel practices, but did not allege reprisal
for whistleblowing. For these reasons, we find that the appellant has not shown
that he exhausted his administrative remedies before OSC, and therefore, the
Board lacks jurisdiction over the appellant’s claims as an IRA appeal. See, e.g.,
Finston v. Health Care Financing Administration, 83 M.S.P.R. 100, ¶¶ 8–10
(1999) (finding that a complaint to OSC alleging a violation of 5 U.S.C.
§ 2302(b)(4) did not constitute exhaustion of an appellant’s administrative
remedies regarding his whistleblower allegations).
The administrative judge correctly found that the Board otherwise lacks
jurisdiction over the appellant’s claims.
¶14 On review, the appellant also does not contest the administrative judge’s
finding that the Board lacks jurisdiction over the appeal as a direct appeal to the
Board. PFR File, Tab 1. Again, we discern no reason to disturb this finding on
review.
7
¶15 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Thus, it follows that the
Board does not have jurisdiction over all matters involving Federal employees
that are alleged to be unfair or incorrect. Johnson v. U.S. Postal
Service, 67 M.S.P.R. 573, 577 (1995). An appellant who makes a nonfrivolous
allegation of jurisdiction is entitled to a hearing at which he then must prove
jurisdiction by a preponderance of the evidence. Garcia v. Department of
Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc); see 5 C.F.R.
§ 1201.56(b)(2)(i)(A).
¶16 Chapter 75 of title 5 grants the Board jurisdiction to hear appeals of certain
enumerated adverse actions taken by an agency against an employee. 5 U.S.C.
§§ 7512, 7513(d). Such appealable adverse actions include a removal, a
suspension for more than 14 days, a reduction in pay or grade, and certain
furloughs. 5 U.S.C. § 7512. Having considered the appellant’s submissions
below and on review, we agree with the administrative judge that the appellant
failed to raise a nonfrivolous allegation that he was subjected to an appealable
adverse action. ID at 7‑10.
¶17 As the administrative judge correctly found, the Board lacks jurisdiction
over the appellant’s claims concerning the proper classification of his position.
ID at 7‑8; see Pierce v. Merit Systems Protection Board, 242 F.3d 1373, 1375‑76
(Fed. Cir. 2001); Saunders v. Merit Systems Protection Board, 757 F.2d 1288,
1290 (Fed. Cir. 1985). The administrative judge also correctly found that, with
certain exceptions not applicable here, the Board lacks jurisdiction over claims
regarding an agency’s failure to promote an employee, or claims regarding the
agency’s assignment of additional duties to an employee. 2 ID at 8 & n.5; Harrell
2
Moreover, the denial of a promotion that would have provided the appellant with a pay
increase is not an appealable reduction in pay. Caven v. Merit Systems Protection
Board, 392 F.3d 1378, 1381 (Fed. Cir. 2004).
8
v. U.S. Postal Service, 112 M.S.P.R. 492, ¶ 11 (2009) (finding that the Board
generally lacks jurisdiction over an appellant’s nonselection for a promotion);
D’Leo v. Department of the Navy, 53 M.S.P.R. 44, 48 (1992) (finding that the
Board lacks jurisdiction over matters concerning an agency’s authority to assign
duties). The appellant’s allegations of perjury and false statements by the agency
do not constitute appealable adverse actions, and no law, rule, or regulation
otherwise grants the Board jurisdiction to review such claims. See 5 U.S.C.
§ 7512.
¶18 Finally, the administrative judge correctly found that, absent an otherwise
appealable action, the Board lacks jurisdiction to consider the appellant’s claims
of prohibited personnel practices or EEO retaliation. ID at 7; McNeil v.
Department of Defense, 100 M.S.P.R. 146, ¶ 21 (2005) (finding that the Board
lacked jurisdiction to consider an appellant’s claim of retaliation for EEO activity
in the absence of an otherwise appealable action); Wren v. Department of the
Army, 2 M.S.P.R. 1, 2 (1980) (finding that prohibited personnel practices
under 5 U.S.C. § 2302(b) are not an independent source of Board jurisdiction),
aff’d, 681 F.2d 867, 871‑73 (D.C. Cir. 1982).
¶19 In sum, for the reasons discussed above, we agree with the administrative
judge that the appellant failed to raise a nonfrivolous allegation of jurisdiction
over his appeal as a direct appeal to the Board.
The administrative judge did not abuse his discretion in denying the appellant’s
motion to withdraw the appeal.
¶20 On review, the appellant contests the administrative judge’s denial of his
motion to withdraw his appeal. PFR File, Tab 1 at 4. The appellant’s motion to
withdraw the appeal indicated that he intended to refile the appeal once he
exhausted his administrative remedies before OSC. IAF, Tab 8 at 4. Thus, the
appellant’s motion reflected that he wished to withdraw his appeal without
prejudice. Simon v. Department of Justice, 112 M.S.P.R. 169, ¶ 7 (2009) (finding
that a relinquishment of an appellant’s right to appeal to the Board must be made
9
by clear, unequivocal, and decisive action). An administrative judge has wide
discretion in deciding whether to grant or deny a motion to dismiss an appeal
without prejudice. Cassel v. Department of Agriculture, 72 M.S.P.R. 542, 546
(1996); 5 C.F.R. § 1201.29(b) (stating that the decision whether to dismiss an
appeal without prejudice is committed to the sound discretion of the
administrative judge). Here, we find that the administrative judge did not abuse
his discretion. The Board lacked jurisdiction over the appeal, and, as the
administrative judge correctly noted, the appellant is free to file a future IRA
appeal if he exhausts his administrative remedies with OSC regarding any
allegations of whistleblowing that he may have raised in his Board appeal.
ID at 13 n.7; see also Bump v. Department of the Interior, 64 M.S.P.R. 326,
330-33 (1994) (finding that a jurisdictional dismissal of an appellant’s prior
whistleblower claims for failure to exhaust his administrative remedies before
OSC did not bar a second IRA appeal of the same claims after his administrative
remedies had been exhausted).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
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.
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
10
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by 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 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 U.S. 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.
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 U.S. 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 U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. 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, and 11. Additional information about
other 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.
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
11
Merit Systems 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.