UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
SEAN C. NIKKILA, DOCKET NUMBER Appellant, SF-4324-23-0082-I-1
v.
DEPARTMENT OF ENERGY, DATE: July 24, 2024 Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Sean Christopher Nikkila , Sherwood, Oregon, pro se.
Sally Carter , Portland, Oregon, for the agency.
BEFORE
Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review and the agency has filed a cross petition for review of the initial decision, which dismissed the Uniformed Services Employment and Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C. §§ 4301-4335) (USERRA) appeal for lack of jurisdiction. On petition for review, the appellant argues that he made a nonfrivolous 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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
allegation of Board jurisdiction, he asserts that the administrative judge made an admission that is a basis for reopening his prior appeal, and he makes some general allegations regarding the scope of the civil service laws to remedy his perceived wrongs. Petition for Review (PFR) File, Tab 1. Generally, we grant petitions such as these 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 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 neither party has established any basis under section 1201.115 for granting the petition or cross petition for review. Therefore, we DENY the petition for review and the cross petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). We have considered the appellant’s argument that he satisfied his jurisdictional burden. However, for the reasons described in the initial decision, we agree with the administrative judge that the appellant failed to make a nonfrivolous allegation that the performance of duty or obligation to perform duty in the uniformed service was a substantial or motivating factor in the 2012 nonselection. Hau v. Department of Homeland Security, 123 M.S.P.R. 620, ¶ 11 (2016), aff’d sub nom. Bryant v. Merit Systems Protection Board, 878 F.3d 1320, 1325-26 (Fed. Cir. 2017). We have also considered the appellant’s assertion that the administrative judge admitted that he “incorrectly accepted the [Department of Labor] characterization that this is simply a [Veterans Employment Opportunities Act of 3
1998 (VEOA)] complaint and made the decision to deny based on the statutory 60-day limit.” PFR File, Tab 1 at 7. The appellant mischaracterizes the administrative judge’s statement in the initial decision. Rather, the quoted language from the initial decision was excerpted from the appellant’s petition for review in his prior VEOA appeal. 2 Initial Appeal File (IAF), Tab 7 at 4; see Nikkila v. Department of Energy, MSPB Docket No. SF-3330-17-0016-I-1, Petition for Review File, Tab 1 at 8. Therefore, this argument does not warrant a different outcome, and we are not persuaded that there is any basis upon which to reconsider the Board’s final decision in the VEOA appeal. The appellant also states that he “would welcome [B]oard review of the entirety of [his] case to better address civil service redress laws as they apply.” PFR File, Tab 1 at 8. It appears that the appellant is arguing that available avenues of redress are insufficient to address the scope of discrimination by the agency, and he is asking the Board to review his case to determine what, if any, other civil service laws apply. 3 However, the Board lacks jurisdiction to review wholesale the appellant’s 2012 nonselection. See, e.g., Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985) (stating that the Board’s jurisdiction is not plenary; it is limited to those matters over which it has been given jurisdiction by law, rule, or regulation); Becker v. Department of Veterans Affairs, 107 M.S.P.R. 327, ¶ 5 (2007) (explaining that the Board typically lacks direct jurisdiction under 5 U.S.C. § 7512 over a nonselection for a position, but an appellant may appeal a nonselection by other statutory means, including VEOA, USERRA, or through an individual right of action appeal) . Because we agree with the administrative judge that the Board lacks jurisdiction over the USERRA appeal, we need not address the agency’s
2 In Nikkila v. Department of Energy, MSPB Docket No. SF-3330-17-0016-I-1, Final Order, ¶¶ 11-14 (Nov. 21, 2022), the Board affirmed the administrative judge’s decision to deny corrective action in his VEOA appeal. 3 Here, too, the appellant mischaracterizes the administrative judge’s statements from the initial decision. PFR File, Tab 1 at 7-8; IAF, Tab 7 at 5. 4
argument, made in its cross petition for review, that the appeal is precluded by laches.
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.
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UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
SEAN C. NIKKILA, DOCKET NUMBER Appellant, SF-4324-23-0082-I-1
v.
DEPARTMENT OF ENERGY, DATE: July 24, 2024 Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Sean Christopher Nikkila , Sherwood, Oregon, pro se.
Sally Carter , Portland, Oregon, for the agency.
BEFORE
Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review and the agency has filed a cross petition for review of the initial decision, which dismissed the Uniformed Services Employment and Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C. §§ 4301-4335) (USERRA) appeal for lack of jurisdiction. On petition for review, the appellant argues that he made a nonfrivolous 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
allegation of Board jurisdiction, he asserts that the administrative judge made an admission that is a basis for reopening his prior appeal, and he makes some general allegations regarding the scope of the civil service laws to remedy his perceived wrongs. Petition for Review (PFR) File, Tab 1. Generally, we grant petitions such as these 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 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 neither party has established any basis under section 1201.115 for granting the petition or cross petition for review. Therefore, we DENY the petition for review and the cross petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). We have considered the appellant’s argument that he satisfied his jurisdictional burden. However, for the reasons described in the initial decision, we agree with the administrative judge that the appellant failed to make a nonfrivolous allegation that the performance of duty or obligation to perform duty in the uniformed service was a substantial or motivating factor in the 2012 nonselection. Hau v. Department of Homeland Security, 123 M.S.P.R. 620, ¶ 11 (2016), aff’d sub nom. Bryant v. Merit Systems Protection Board, 878 F.3d 1320, 1325-26 (Fed. Cir. 2017). We have also considered the appellant’s assertion that the administrative judge admitted that he “incorrectly accepted the [Department of Labor] characterization that this is simply a [Veterans Employment Opportunities Act of 3
1998 (VEOA)] complaint and made the decision to deny based on the statutory 60-day limit.” PFR File, Tab 1 at 7. The appellant mischaracterizes the administrative judge’s statement in the initial decision. Rather, the quoted language from the initial decision was excerpted from the appellant’s petition for review in his prior VEOA appeal. 2 Initial Appeal File (IAF), Tab 7 at 4; see Nikkila v. Department of Energy, MSPB Docket No. SF-3330-17-0016-I-1, Petition for Review File, Tab 1 at 8. Therefore, this argument does not warrant a different outcome, and we are not persuaded that there is any basis upon which to reconsider the Board’s final decision in the VEOA appeal. The appellant also states that he “would welcome [B]oard review of the entirety of [his] case to better address civil service redress laws as they apply.” PFR File, Tab 1 at 8. It appears that the appellant is arguing that available avenues of redress are insufficient to address the scope of discrimination by the agency, and he is asking the Board to review his case to determine what, if any, other civil service laws apply. 3 However, the Board lacks jurisdiction to review wholesale the appellant’s 2012 nonselection. See, e.g., Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985) (stating that the Board’s jurisdiction is not plenary; it is limited to those matters over which it has been given jurisdiction by law, rule, or regulation); Becker v. Department of Veterans Affairs, 107 M.S.P.R. 327, ¶ 5 (2007) (explaining that the Board typically lacks direct jurisdiction under 5 U.S.C. § 7512 over a nonselection for a position, but an appellant may appeal a nonselection by other statutory means, including VEOA, USERRA, or through an individual right of action appeal) . Because we agree with the administrative judge that the Board lacks jurisdiction over the USERRA appeal, we need not address the agency’s
2 In Nikkila v. Department of Energy, MSPB Docket No. SF-3330-17-0016-I-1, Final Order, ¶¶ 11-14 (Nov. 21, 2022), the Board affirmed the administrative judge’s decision to deny corrective action in his VEOA appeal. 3 Here, too, the appellant mischaracterizes the administrative judge’s statements from the initial decision. PFR File, Tab 1 at 7-8; IAF, Tab 7 at 5. 4
argument, made in its cross petition for review, that the appeal is precluded by laches.
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.
(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: 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. 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. 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 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.
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 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.