Toyoaki Nogami v. Department of the Interior

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

TOYOAKI NOGAMI, DOCKET NUMBER
Appellant, DC-315H-15-0134-I-1

v.

DEPARTMENT OF THE INTERIOR, DATE: May 20, 2015
Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

Toyoaki Nogami, Falls Church, Virginia, pro se.

Toye Olarinde, Esquire, Washington, D.C., 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 involuntary resignation 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 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A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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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the facts of the case; the 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, and based on the following
points and authorities, 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).

DISCUSSION OF ARGUMENTS ON REVIEW
¶2 Effective November 3, 2013, the appellant received a career-conditional
appointment to a Civil Engineer position in the competitive service subject to a
1—year probationary period ending on November 3, 2014. Initial Appeal File
(IAF), Tab 8 at 10. The appellant had no prior federal or military service. Id.
The agency informed the appellant that it was terminating his appointment during
his probationary period, and he resigned effective November 1, 2014. Id. at
12-13, 16. The appellant filed an appeal alleging that his resignation was
involuntary and requesting a hearing. IAF, Tab 1 at 2, 5-7. He challenged the
basis for his proposed termination, and he submitted documents in support of his
appeal. See id. at 5-55. He also claimed race discrimination and whistleblower
retaliation. Id. at 6.
¶3 The administrative judge informed the appellant of his burden of proving
jurisdiction and ordered him to file evidence or argument concerning whether the
Board had jurisdiction over his appeal, having informed the appellant of the
applicable jurisdictional criteria. IAF, Tab 2 at 3-5. After the deadline for
responding to the administrative judge’s order, the appellant filed an additional
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copy of the attachments to his appeal without addressing the jurisdictional issue.
IAF, Tab 6. In response, the agency filed a motion to dismiss the appeal for lack
of jurisdiction. IAF, Tab 7.
¶4 Without holding a hearing, the administrative judge dismissed the appeal
for lack of jurisdiction finding that the appellant failed to make a nonfrivolous
allegation of jurisdiction over his appeal. IAF, Tab 9, Initial Decision (ID) at 4.
In reaching her decision, the administrative judge found that the appellant had no
right of appeal because he was a probationary employee when he resigned in lieu
of termination, and he submitted no evidence or argument that his proposed
termination was the product of discrimination based on partisan political reasons
or marital status. ID at 3. The administrative judge further found that the
appellant’s discrimination allegation, standing alone, was not appealable to the
Board. ID at 3-4. The administrative judge did not address the appellant’s
whistleblower reprisal claim in dismissing the appeal.
¶5 The appellant filed a petition for review arguing that his resignation during
his probationary period was involuntary because the agency forced him to choose
between resignation and termination. Petition for Review (PFR) File, Tab 1 at 4.
He also disputes the merits of his proposed termination, arguing that the agency’s
criticism of his work was “based on misunderstanding, distortion or fabrication,”
and he reasserts his claims of race discrimination and whistleblower retaliation.
Id. at 6-10. The appellant does not claim that he qualifies as an “employee”
within the meaning of 5 U.S.C. § 7511(a)(1), with a statutory right of appeal to
the Board. See id. at 4. The agency filed a response in opposition to the
appellant’s petition for review. PFR File, Tab 3.
¶6 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). In order to establish Board
jurisdiction under 5 U.S.C. chapter 75, an individual must, among other things,
show that he satisfies one of the definitions of “employee” in 5 U.S.C.
 4

§ 7511(a)(1). Walker v. Department of the Army, 119 M.S.P.R. 391, ¶ 5 (2013).
For an individual in the competitive service, this means that he must either: (1)
not be serving a probationary or trial period under an initial appointment, or (2)
have completed 1 year of current continuous service under other than a temporary
appointment limited to 1 year or less. Id.; see 5 U.S.C. § 7511(a)(1)(A).
Individuals in the competitive service who do not satisfy either definition may
nevertheless have the right to appeal a termination to the Board under 5 C.F.R.
§ 315.806. Walker, 119 M.S.P.R. 391, ¶ 5. However, the Board’s jurisdiction
over termination appeals under that section is limited to situations in which: (1)
the employee was discriminated against based on his marital status; (2) the
agency action was based on partisan political reasons; or (3) the agency action
was based (in whole or part) on pre-appointment reasons and the agency did not
follow the procedures of 5 C.F.R. § 315.805. Id. There is no statutory
requirement that the Board hold a hearing on the threshold issue of jurisdiction.
Walker, 119 M.S.P.R. 391, ¶ 6. Nevertheless, if an appellant makes a
nonfrivolous allegation of jurisdiction, and the Board cannot make a
determination based on the documentary evidence, the Board should hold an
evidentiary hearing to resolve the jurisdictional question. See id.
¶7 Here, the appellant does not allege that he has a statutory right of appeal
because he qualifies as an “employee” under 5 U.S.C. § 7511(a)(1). Moreover,
he does not allege that he has a regulatory right of appeal because the agency
terminated him for pre-appointment reasons or because his termination was for
partisan political reasons or due to marital status discrimination. Accordingly, we
agree with the administrative judge’s finding that the Board has no jurisdiction to
review the appellant’s claim that his resignation was involuntary. See Link v.
Department of the Navy, 3 M.S.P.R. 187, 189 (1980) (the appellants’ alleged
involuntary resignations during their probationary periods provided them with no
greater right of appeal to the Board than they would have had if they had been
terminated); ID at 3. We also agree with the administrative judge’s finding that,
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absent an otherwise appealable action, the Board has no jurisdiction to adjudicate
the appellant’s claim of race discrimination. 2 ID at 3-4; PFR File, Tab 1 at 9;
IAF, Tab 1 at 6; see Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980),
aff’d sub nom. Wren v. Merit Systems Protection Board, 681 F.2d 867 (D.C. Cir.
1982).

NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States 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 United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The

2
We similarly find that the Board lacks jurisdiction over the appellant’s affirmative
defense of whistleblower retaliation absent an otherwise appealable action. See Barrios
v. Department of the Interior, 100 M.S.P.R. 300, ¶ 5 (2005). In addition, there is no
indication in the record that the appellant first filed a whistleb lower complaint with the
Office of Special Counsel (OSC) to provide the Board with jurisdiction over the appeal
as an individual right of action (IRA) appeal. Should the appellant wish to pursue a
claim of whistleblower retaliation concerning his resignation, he may do so by filing a
complaint with OSC. See 5 U.S.C. § 1214(a); Morales v. Social Security
Administration, 108 M.S.P.R. 583, ¶¶ 6-7 (2008) (an appellant must exhaust his
administrative remedies with OSC before filing an IRA appeal with the Board).
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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 United States 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 United States 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 http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for your court
appeal, 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 Merit Systems Protection Board
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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.