UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
ANDREA K. DEMPS, DOCKET NUMBER Appellant, AT-0752-23-0345-I-1
v.
DEPARTMENT OF VETERANS DATE: June 24, 2024 AFFAIRS, Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Andrea K. Demps , Alachua, Florida, pro se.
Benjamin Reynolds , Esquire, Tampa, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which dismissed her 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 interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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
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. Except as expressly MODIFIED to find that the Board lacks chapter 75 jurisdiction over the appellant’s September 14, 2022 detail and the reassignment that accompanied her February 19, 2023 suspension, we AFFIRM the initial decision. ¶2 Below, the appellant challenged either her September 14, 2022 detail or the February 19, 2023 reassignment that accompanied her unpaid 14 -day suspension, or both. Initial Appeal File (IAF), Tab 1 at 3, 6. The administrative judge did not address whether the Board has chapter 75 jurisdiction over either of these actions. IAF, Tab 6, Initial Decision (ID). On review the appellant challenges at least one, and possibly both, of these actions. Petition for Review (PFR) File, Tab 1 at 5, 7, 16. We modify the initial decision to find that we lack jurisdiction over the appellant’s detail and reassignment. 2 ¶3 The Board generally does not have chapter 75 jurisdiction over lateral details or reassignments that, like the ones at issue here, are unaccompanied by a removal, suspension of more than 14 days, reduction in pay or grade, or furlough of 30 days or less. IAF, Tab 5 at 15, 46, 79; 5 U.S.C. §§ 7512(1)-(5), 7513(d); see Stewart v. Department of Defense, 82 M.S.P.R. 649, ¶ 15 (1999) (explaining
2 A detail is generally considered a temporary assignment, with the employee returning to the original position at the end of the detail, Rogers v. Department of the Army, 88 M.S.P.R. 610, ¶ 8 (2001); see 5 U.S.C. § 3341, while a reassignment means a change of an employee, while serving continuously within the same agency, from one position to another without promotion or demotion, 5 C.F.R. § 210.102(b)(12).. 3
that the Board only had jurisdiction over an appellant’s combined 14 -day suspension, reassignment, and reduction in pay if one of those actions constituted an appealable adverse action (citing Brewer v. American Battle Monuments Commission, 779 F.2d 663, 663-65 (Fed. Cir. 1985) (remanding to the Board the issue of whether a petitioner’s transfer was reasonable as an “inseparable part” of the same “unified penalty” that included the petitioner’s reduction in grade)). Here, because we lack chapter 75 jurisdiction over the appellant’s 14-day suspension, we also lack jurisdiction over her detail and reassignment. ¶4 The appellant raises a claim of whistleblower reprisal for the first time on review. PFR File, Tab 1 at 5. The Board has jurisdiction over an individual right of action appeal if the appellant has exhausted her administrative remedies before the Office of Special Counsel (OSC) and makes nonfrivolous allegations that (1) she made a protected 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). Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). If the appellant satisfies each of these jurisdictional requirements, she has the right to a hearing on the merits of her claim. Id. ¶5 The appellant indicated both below and on review that she has not filed a complaint with OSC. IAF, Tab 1 at 4. PFR File, Tab 1 at 4. If the appellant believes that she has exhausted her administrative remedies with OSC and can satisfy the remaining jurisdictional requirements, she may wish to file a new appeal with the Atlanta Regional Office. We express no opinion regarding the timeliness of, or the Board’s jurisdiction over, such an appeal. 4
NOTICE OF APPEAL RIGHTS 3 The initial decision, as supplemented by this Final Order, constitutes the Boards final decision in this matter. 5 C.F.R. § 1201.113. 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.
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UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
ANDREA K. DEMPS, DOCKET NUMBER Appellant, AT-0752-23-0345-I-1
v.
DEPARTMENT OF VETERANS DATE: June 24, 2024 AFFAIRS, Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Andrea K. Demps , Alachua, Florida, pro se.
Benjamin Reynolds , Esquire, Tampa, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which dismissed her 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 interpretation of statute or regulation or the erroneous application of the law to
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
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. Except as expressly MODIFIED to find that the Board lacks chapter 75 jurisdiction over the appellant’s September 14, 2022 detail and the reassignment that accompanied her February 19, 2023 suspension, we AFFIRM the initial decision. ¶2 Below, the appellant challenged either her September 14, 2022 detail or the February 19, 2023 reassignment that accompanied her unpaid 14 -day suspension, or both. Initial Appeal File (IAF), Tab 1 at 3, 6. The administrative judge did not address whether the Board has chapter 75 jurisdiction over either of these actions. IAF, Tab 6, Initial Decision (ID). On review the appellant challenges at least one, and possibly both, of these actions. Petition for Review (PFR) File, Tab 1 at 5, 7, 16. We modify the initial decision to find that we lack jurisdiction over the appellant’s detail and reassignment. 2 ¶3 The Board generally does not have chapter 75 jurisdiction over lateral details or reassignments that, like the ones at issue here, are unaccompanied by a removal, suspension of more than 14 days, reduction in pay or grade, or furlough of 30 days or less. IAF, Tab 5 at 15, 46, 79; 5 U.S.C. §§ 7512(1)-(5), 7513(d); see Stewart v. Department of Defense, 82 M.S.P.R. 649, ¶ 15 (1999) (explaining
2 A detail is generally considered a temporary assignment, with the employee returning to the original position at the end of the detail, Rogers v. Department of the Army, 88 M.S.P.R. 610, ¶ 8 (2001); see 5 U.S.C. § 3341, while a reassignment means a change of an employee, while serving continuously within the same agency, from one position to another without promotion or demotion, 5 C.F.R. § 210.102(b)(12).. 3
that the Board only had jurisdiction over an appellant’s combined 14 -day suspension, reassignment, and reduction in pay if one of those actions constituted an appealable adverse action (citing Brewer v. American Battle Monuments Commission, 779 F.2d 663, 663-65 (Fed. Cir. 1985) (remanding to the Board the issue of whether a petitioner’s transfer was reasonable as an “inseparable part” of the same “unified penalty” that included the petitioner’s reduction in grade)). Here, because we lack chapter 75 jurisdiction over the appellant’s 14-day suspension, we also lack jurisdiction over her detail and reassignment. ¶4 The appellant raises a claim of whistleblower reprisal for the first time on review. PFR File, Tab 1 at 5. The Board has jurisdiction over an individual right of action appeal if the appellant has exhausted her administrative remedies before the Office of Special Counsel (OSC) and makes nonfrivolous allegations that (1) she made a protected 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). Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). If the appellant satisfies each of these jurisdictional requirements, she has the right to a hearing on the merits of her claim. Id. ¶5 The appellant indicated both below and on review that she has not filed a complaint with OSC. IAF, Tab 1 at 4. PFR File, Tab 1 at 4. If the appellant believes that she has exhausted her administrative remedies with OSC and can satisfy the remaining jurisdictional requirements, she may wish to file a new appeal with the Atlanta Regional Office. We express no opinion regarding the timeliness of, or the Board’s jurisdiction over, such an appeal. 4
NOTICE OF APPEAL RIGHTS 3 The initial decision, as supplemented by this Final Order, constitutes the Boards final decision in this matter. 5 C.F.R. § 1201.113. 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). 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. 5
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. 420 (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 6
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 7
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 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. 8
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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.