Michael Kemp v. Department of the Army

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MICHAEL S. KEMP, DOCKET NUMBER Appellant, DA-1221-23-0434-W-1 v. DEPARTMENT OF THE ARMY, DATE: September 20, 2024 Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1 Michael S. Kemp , Deville, Louisiana, pro se.

John M. Breland and Nedra R. Frisby , Vicksburg, Mississippi, for the agency.

BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* *Member Kerner recused himself and did not participate in the adjudication of this appeal.

A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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).

FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which denied his request for corrective action in this individual right of action appeal . 2 On petition for review, the appellant argues that he reasonably believed the agency’s order requiring him to travel for work-related reasons on a Federal holiday violated a law, rule, or regulation, or constituted an abuse of authority.

He also reasserts that the agency took various personnel actions against him, including terminating him during his probationary period, in retaliation for disclosing said violations and abuse. 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 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). We conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. 3 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). 4 The appellant has filed a petition for review of the initial decision in a separate appeal alleging that the agency discriminated against him in violation of the Uniformed Services Employment and Reemployment Rights Act when, among other things, it terminated him during his probationary period. Kemp v. Department of the Army, MSPB Docket No. DA-4324-23-0255-I-1. The Board addresses that matter in a separate decision.

We take notice that the agency belatedly filed a response to the petition for review, including a motion addressing the untimeliness. Petition for Review (PFR) File, Tab 3.

We decline to consider the agency’s response as the agency has not demonstrated good cause for the delay.

¶2 In the initial decision, the administrative judge adopted the appellant’s characterization of a Comptroller General decision as a Government Accountability Office report and found that the document did not have the force and effect of law. Initial Appeal File (IAF), Tab 21, Initial Decision (ID) at 9.

The referenced document is a decision by the Comptroller General, stating that “the head of a department or agency may require the services of employees on a holiday in cases of necessity or emergency.” To the Chairman of the Civil Service Commission, 44 Comp. Gen. 274, 275 (1964); IAF, Tab 5 at 22. To the extent that the administrative judge erred in finding that the decision was not binding legal authority, we need not consider this question further because we agree with the administrative judge’s alternative finding that it was unreasonable for the appellant to believe that he could not be instructed to travel for work on a holiday. ID at 9. In this regard, the appellant acknowledges that there was no evidence that the authority to instruct employees to work on a holiday had been delegated, IAF, Tab 17 at 5, but it is unreasonable for an employee of the Department of the Army to believe that such authority rested solely with the Secretary of the Army and had not been delegated. Thus, we find that the appellant lacked a reasonable belief in his disclosure.

On petition for review, the appellant additionally argues that the administrative judge erred by not considering that he was perceived as a whistleblower. PFR File, Tab 1 at 10-11. The administrative judge notified the appellant regarding how to establish jurisdiction over an individual right of action appeal as a perceived whistleblower, Initial Appeal File (IAF), Tab 3 at 5-6, yet, contrary to his assertions, the appellant did not raise the issue before the administrative judge, see IAF, Tabs 5, 10, 12, 14.

Therefore, the Board need not consider it on review. See Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (explaining that the Board generally will not consider an argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence not previously available despite the party’s due diligence). Furthermore, the appellant has not shown that he exhausted his remedy with the Office of Special Counsel (OSC) on this issue. See IAF, Tab 1 at 12, Tab 5 at 23-38. As a result, he has not established the Board’s jurisdiction over this claim. See King v. Department of the Army, 116 M.S.P.R. 689, ¶ 9 (2011) (stating that an appellant must establish that she exhausted her remedies with OSC on whether the agency perceived her as a whistleblower).

NOTICE OF APPEAL RIGHTS 5 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:

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.

U.S. Court of Appeals for the Federal Circuit 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 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 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. 6 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 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.

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.

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.