Mark I. Huckel v. Department of Veterans Affairs ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARK I. HUCKEL, DOCKET NUMBER
Appellant, AT-1221-15-0346-W-1
v.
DEPARTMENT OF VETERANS DATE: March 28, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Clark Hazley, Sr., Bay Pines, Florida, for the appellant.
T.B. Burton, Esquire, Bay Pines, Florida, 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 individual right of action (IRA) 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
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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 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. See 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).
¶2 The appellant, a Utility Systems Repairer Operator, filed this IRA appeal
alleging that the agency ordered him to report for an “unprecedented Fitness for
Duty exam” in retaliation for his disclosures concerning management’s failure to
follow correct procedures in making changes to his alternative work schedule.
Initial Appeal File (IAF), Tab 1 at 2. He requested a hearing. Id. at 1. The
administrative judge notified the appellant of his jurisdictional burden and
ordered him to file evidence and argument establishing jurisdiction over his
appeal. IAF, Tab 7. The appellant responded and submitted, among other things,
a copy of the December 31, 2014 letters from the Office of Special Counsel
(OSC) informing him that OSC had terminated its inquiry into his allegation of
reprisal for whistleblowing and notifying him of his right to seek corrective
action before the Board. IAF, Tab 8 at 1-6. Without holding the requested
hearing, the administrative judge dismissed the appeal for lack of jurisdiction.
IAF, Tab 9, Initial Decision (ID). The appellant has filed a petition for review of
the initial decision, and the agency has responded in opposition to his petition for
review. Petition for Review (PFR) File, Tabs 1, 3.
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¶3 The Board has jurisdiction over an IRA appeal if the appellant has
exhausted his administrative remedy before OSC and makes nonfrivolous
allegations that: (1) he engaged in whistleblowing activity by making a protected
disclosure; and (2) the disclosure 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); Yunus v. Department of Veterans
Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). To meet the nonfrivolous
standard, an appellant need only plead allegations of fact that, if proven, could
show that he made a protected disclosure and that the disclosure was a
contributing factor in a personnel action. Cassidy v. Department of Justice,
118 M.S.P.R. 74, ¶ 4 (2012). Any doubt or ambiguity as to whether the appellant
made nonfrivolous jurisdictional allegations should be resolved in favor of
finding jurisdiction. Id. If the appellant establishes Board jurisdiction over his
IRA appeal by exhausting his remedies before OSC and making the requisite
nonfrivolous allegations, he has the right to a hearing on the merits of his
claim. Id.
¶4 In the instant case, the administrative judge found that the appellant failed
to establish that he exhausted his administrative remedy because there was no
evidence in the record showing that he identified a potentially protected
disclosure to OSC related to the changes to his alternate work schedule and that,
even if he had exhausted his administrative remedy, he failed to identify any
retaliatory personnel action within the meaning of the Whistleblower Protection
Act (WPA). ID at 4-5. On review, the appellant argues that the December 31,
2014 letters from OSC prove that he exhausted his administrative remedy, but he
does not challenge the administrative judge’s finding that he failed to
nonfrivolously allege that he was subjected to a covered personnel action. PFR
File, Tab 1 at 1.
¶5 The OSC letter informing the appellant of his right to seek corrective action
from the Board summarizes the appellant’s allegations in one sentence: “Your
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complaint alleged that you were ordered to undergo a fitness for duty evaluation
after raising concerns over management altering your alternative work schedule.”
IAF, Tab 8 at 5. Assuming, without deciding, that the letter contains sufficient
information to establish exhaustion on this issue, we nonetheless agree with the
administrative judge that the Board lacks jurisdiction over the appeal because the
appellant failed to nonfrivolously allege that he was subjected to a covered
personnel action. ID at 5.
¶6 In an IRA appeal, an employee may seek corrective action from the Board
concerning any “personnel action” taken, or proposed to be taken, against him as
the result of a prohibited personnel practice described in 5 U.S.C. § 2302(b)(8).
5 U.S.C. § 1221(a); Mattil v. Department of State, 118 M.S.P.R. 662, ¶ 14 (2012).
In this context, a “personnel action” is defined as: (i) an appointment; (ii) a
promotion; (iii) an action under 5 U.S.C. chapter 75 or other disciplinary or
corrective action; (iv) a detail, transfer, or reassignment; (v) a reinstatement;
(vi) a restoration; (vii) a reemployment; (viii) a performance evaluation under
5 U.S.C. chapter 43; (ix) a decision concerning pay, benefits, or awards, or
concerning education or training if the education or training may reasonably be
expected to lead to an appointment, promotion, performance evaluation, or other
personnel action; (x) a decision to order psychiatric testing or examination; and
(xi) any other significant change in duties, responsibilities, or working
conditions. 5 U.S.C. § 2302(a)(2)(A); Mattil, 118 M.S.P.R. 662, ¶ 14.
¶7 According to the appellant, the agency retaliated against him by ordering
him to report for an “unprecedented” fitness-for-duty examination. IAF, Tab 8
at 1, 5. While a psychiatric test or examination is a covered personnel action
under the WPA, the appellant has not alleged, and the evidence he provided
does not show, that the agency ordered him to report for a psychiatric test or
examination. IAF, Tab 8 at 1-3, 14; 5 U.S.C. § 2302(a)(2)(A)(x). Rather, the
record reflects that the agency ordered the appellant to report for a standard
fitness-for-duty examination after he submitted a note stating that he could not
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stand or use his hands for more than 30 minutes at a time. IAF, Tab 6 at 26,
Tab 8 at 14.
¶8 As noted by the administrative judge, the appellant also appears to assert
that the schedule change was itself retaliatory. ID at 5. However, the appellant’s
supervisor’s announcement about the schedule change necessarily preceded the
appellant’s disclosure about this change. Thus, to the extent that the appellant is
alleging that the schedule change itself was a retaliatory personnel action, we
agree with the administrative judge that the appellant has failed to nonfrivolously
allege that his disclosure was a contributing factor in the action. ID at 5; see
Johnson v. Department of Justice, 104 M.S.P.R. 624, ¶ 26 (2007) (finding that the
appellant failed to nonfrivolously allege that his disclosures were contributing
factors in the personnel actions at issue where the personnel actions preceded the
disclosures). Accordingly, we agree with the administrative judge that the Board
lacks jurisdiction over this IRA appeal.
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.
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 review of this final decision by the U.S. Court of Appeals for the
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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 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 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
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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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.