UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
ROBERT L. SMITH, SR, DOCKET NUMBER Appellant, CH-0731-16-0176-I-1
v.
OFFICE OF PERSONNEL DATE: July 5, 2023 MANAGEMENT, Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Robert L. Smith, Sr., Copley, Ohio, pro se.
Darlene M. Carr, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which affirmed the negative suitability determination and associated actions of the Office of Personnel Management (OPM). Generally, we grant petitions such as this one only in the following circumstances: the initial decision co ntains
1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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 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). ¶2 On petition for review, the appellant argues that OPM failed to prove that he was unsuitable for the position in question. Petition for Review (PFR) File, Tab 1 at 4-9. He has attached numerous exhibits in support of his petition. PFR File, Tab 1 at 10-125, Tab 2 at 4-19. All of these exhibits appear to pre-date the close of the record, and many, if not all, were sub mitted into the record below. See, e.g., Initial Appeal File, Tab 1 at 26-42, Tab 2 at 7-12, Tab 4 at 4-13, 17-22, Tab 11 at 34-49, 93-103, Tab 14 at 65. To the extent that the appellant has submitted evidence on review that was not a part of the record below, we find that he has not shown that it was previously unavailable despite his due diligence, and we decline to consider it. 2 See Bowman v. Small Business Administration,
2 After the record closed on review, the appellant filed a motion requesting leave to submit “additional documents” in support of his claim. PFR File, Tab 16 at 3. He offers no description of these documents and only asserts in conclusory fashion that they became available after his petition for review was filed. Id. Because the appellant has not shown that the documents were not readily available before the record closed on review despite his due diligence and that the documents are of sufficient weight to warrant a different outcome, we deny his request. See Ellis v. Department of the Navy, 117 M.S.P.R. 511, ¶ 12 (2012); 5 C.F.R. § 1201.114(k). 3
122 M.S.P.R. 217, ¶ 7 n.4 (2015); 5 C.F.R. § 1201.115(d). For the reasons set forth in the initial decision, we affirm OPM’s negative suit ability determination and associated actions. 3
NOTICE OF APPEAL RIGHTS 4 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.
3 The National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114-92, § 1086(h), 129 Stat. 726, 1010 (2015), amended 5 U.S.C. § 7512 to state that chapter 75 of title 5 of the U.S. Code “does not apply to . . . a suitability action taken by [OPM] under regulations prescribed by [OPM], subject to the rules prescribed by the President under [title 5] for the administration of the competitive service.” 5 U.S.C. § 7512(F). Accordingly, the Board’s jurisdiction over a negative suitability determination is limited to that provided under 5 C.F.R. § 731.501, which does not extend to reviewing or modifying the ultimate action taken as a result of a suitability determination. Odoh v. Office of Personnel Management, 2022 MSPB 5, ¶ 16. 4 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. 4
(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.
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UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
ROBERT L. SMITH, SR, DOCKET NUMBER Appellant, CH-0731-16-0176-I-1
v.
OFFICE OF PERSONNEL DATE: July 5, 2023 MANAGEMENT, Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Robert L. Smith, Sr., Copley, Ohio, pro se.
Darlene M. Carr, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which affirmed the negative suitability determination and associated actions of the Office of Personnel Management (OPM). Generally, we grant petitions such as this one only in the following circumstances: the initial decision co ntains
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 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). ¶2 On petition for review, the appellant argues that OPM failed to prove that he was unsuitable for the position in question. Petition for Review (PFR) File, Tab 1 at 4-9. He has attached numerous exhibits in support of his petition. PFR File, Tab 1 at 10-125, Tab 2 at 4-19. All of these exhibits appear to pre-date the close of the record, and many, if not all, were sub mitted into the record below. See, e.g., Initial Appeal File, Tab 1 at 26-42, Tab 2 at 7-12, Tab 4 at 4-13, 17-22, Tab 11 at 34-49, 93-103, Tab 14 at 65. To the extent that the appellant has submitted evidence on review that was not a part of the record below, we find that he has not shown that it was previously unavailable despite his due diligence, and we decline to consider it. 2 See Bowman v. Small Business Administration,
2 After the record closed on review, the appellant filed a motion requesting leave to submit “additional documents” in support of his claim. PFR File, Tab 16 at 3. He offers no description of these documents and only asserts in conclusory fashion that they became available after his petition for review was filed. Id. Because the appellant has not shown that the documents were not readily available before the record closed on review despite his due diligence and that the documents are of sufficient weight to warrant a different outcome, we deny his request. See Ellis v. Department of the Navy, 117 M.S.P.R. 511, ¶ 12 (2012); 5 C.F.R. § 1201.114(k). 3
122 M.S.P.R. 217, ¶ 7 n.4 (2015); 5 C.F.R. § 1201.115(d). For the reasons set forth in the initial decision, we affirm OPM’s negative suit ability determination and associated actions. 3
NOTICE OF APPEAL RIGHTS 4 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.
3 The National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114-92, § 1086(h), 129 Stat. 726, 1010 (2015), amended 5 U.S.C. § 7512 to state that chapter 75 of title 5 of the U.S. Code “does not apply to . . . a suitability action taken by [OPM] under regulations prescribed by [OPM], subject to the rules prescribed by the President under [title 5] for the administration of the competitive service.” 5 U.S.C. § 7512(F). Accordingly, the Board’s jurisdiction over a negative suitability determination is limited to that provided under 5 C.F.R. § 731.501, which does not extend to reviewing or modifying the ultimate action taken as a result of a suitability determination. Odoh v. Office of Personnel Management, 2022 MSPB 5, ¶ 16. 4 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. 4
(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.
(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 5
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 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: 6
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. 5 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 Appe als 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
5 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 wit h 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. 7
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 t heir 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.