UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY WINEY, DOCKET NUMBER
Appellant, DC-300A-17-0280-I-1
v.
DEPARTMENT OF DEFENSE, DATE: April 20, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Timothy Winey, Suffolk, United Kingdom, pro se.
Schwanda Rountree, Alexandria, Virginia, 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
dismissed for lack of jurisdiction his appeal of an alleged employment practice.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of mat erial fact;
the initial decision is based on an erroneous interpretation of statute or regulation
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 dec ision
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 During the adjudication of a related individual right of action appeal, the
appellant raised an employment practices claim. The administrative judge
docketed the employment practices claim as a separate appeal. After affording
the appellant an opportunity to establish the Board’s jurisdiction over the appeal
and considering the parties’ responses, the administrative judge issued an initial
decision that dismissed the appeal on the written record without granting the
appellant his requested hearing. Initial Appeal File (IAF), Tabs 2, 22. The
appellant petitions for review of the initial decision. Petition for Review (PFR)
File, Tab 1. The agency has not responded to the petition for review.
¶3 An applicant for employment who believes that an employment practice
applied to him by the Office of Personnel Management (OPM) violates a basic
requirement in 5 C.F.R. § 300.103 is entitled to appeal to the Board. Sauser v.
Department of Veterans Affairs, 113 M.S.P.R. 403, ¶ 6 (2010); 5 C.F.R.
§ 300.104(a). The Board has jurisdiction under 5 C.F.R. § 300.104(a) when two
conditions are met: First, the appeal must concern an employment practice that
OPM is involved in administering; and second, the appellant must make a
nonfrivolous allegation that the employment practice violated one of the “basic
requirements” for employment practices set forth in 5 C.F.R. § 300.103. Sauser,
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113 M.S.P.R. 403, ¶ 6. “Employment practices,” as defined in OPM’s
regulations, “affect the recruitment, measurement, ranking, and selection” of
applicants for positions in the competitive service. 5 C.F.R. § 300.101. The
appellant’s concerns are about the agency’s actions while he was employed by the
agency, not questions about how it arrived at its decision to select one candidate
over another. Thus, he has not identified an employment practice subject to
review by the Board.
¶4 Second, the appellant has not alleged that an employment practice was
applied to him by OPM, as required by 5 C.F.R. § 300.104(a), or that a valid
employment practice administered by OPM was misapplied to him by the agency.
Sauser, 113 M.S.P.R. 403, ¶ 7. In fact, the appellant contends that the agency
implemented a particular training program without obtaining OPM’s approval.
IAF, Tab 7 at 4. Therefore, the appellant does not even contend that OPM was
involved in the alleged employment practice under appeal.
¶5 Third, the appellant has not alleged that an employment practice applied to
him violates one of the basic requirements contained in 5 C.F.R. § 300.103.
Finally, the alleged violations concern matters related to his employment and
termination from employment, not to his status as an applicant for employment
prior to his selection. Only “candidates” may bring employment practices appeals
to the Board under 5 C.F.R. § 300.104(a). National Treasury Employees Union v.
Office of Personnel Management, 118 M.S.P.R. 83, ¶ 9 (2012). Therefore, the
appellant has not raised a cognizable employment practices claim within the
Board’s jurisdiction.
¶6 On review, the appellant asserts that the agency committed the following
appealable employment practices: it implemented an illegal scheme to train
managers how to remove “vulnerable employees”; the agency and the Office of
Special Counsel obstructed the appellant’s rights under the Freedom of
Information Act (FOIA); the deciding official in the appellant’s removal was a
“proven crook” who was removed in part because of the appellant’s protected
4
disclosures; and the appellant was supervised by managers who were being
investigated by the Inspector General pursuant to a complaint that the appellant
initiated. PFR File, Tab 1 at 7. None of these assertions relate to “the
recruitment, measurement, ranking, and selection” of applicants for positions in
the competitive service. 5 C.F.R. § 300.101. Moreover, none of these allegations
overcome the fact that the appellant is pursuing issues that arose when he was an
employee and/or after his separation; because only a candidate for employment
can file an employment practices appeal, the appellant’s status as an employee
and later a former employee is fatal to his appeal.
¶7 The remaining more than 280 pages of the appellant’s petition for review
purport to be electronic mails, correspondence, and other documents pertaining to
the appellant’s removal, FOIA requests, and his actions in furtherance of his
litigation against the agency. The appellant has not provided copies of any
original documents. Instead, he appears to have cut-and-paste excerpts of other
documents into the body of his petition for review. There is no way to verify that
any of these insertions are either accurate or complete versions of the documents
they purport to cite and therefore, they do not constitute evidence. Moreover, it
appears that all of these insertions concern alleged documents that substantially
pre-date the close of the record below, and some of them appear to duplicate
similar pleadings already in the record. Therefore, we need not consider this
portion of the appellant’s petition for review. Meier v. Department of the
Interior, 3 M.S.P.R. 247, 256 (1980) (finding that evidence that is already a part
of the record is not new); Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214
(1980) (explaining that, under 5 C.F.R. § 1201.115, the Board will not consider
evidence submitted for the first time on review absent a showing that it was
unavailable before the record was closed despite the party’s due diligence).
¶8 More importantly, none of these insertions appear to involve claims that the
appellant was subjected to “employment practices” as defined in 5 U.S.C.
§ 300.101 while he was a candidate for employment. The Board will not grant a
5
petition for review based on new evidence absent a showing that it is of sufficient
weight to warrant an outcome different from that of the initial decision . Russo v.
Veterans Administration, 3 M.S.P.R. 345, 349 (1980). Therefore, even if we were
to consider these insertions, they do not warrant an outcome different from that of
the initial decision.
¶9 The appellant asserts that the administrative judge’s rulings show that she
was biased against him. PFR File, Tab 1 at 7. There is a presumption of honesty
and integrity on the part of administrative judges that can only be overcom e by a
substantial showing of personal bias; the Board will not infer bias based on an
administrative judge’s case-related rulings. Vaughn v. Department of the
Treasury, 119 M.S.P.R. 605, ¶ 18 (2013). The appellant has made no such
showing.
¶10 Finally, on March 1, 2018, the appellant filed a pleading titled “Motion to
Waive Jurisdiction for DC-300A-17-0280-I-1.” PFR File, Tab 3. The Clerk of
the Board issued an order informing the appellant that it appeared that his
pleading may constitute a request to withdraw his petition for review and it
ordered the appellant to submit a pleading confirming his request to withdraw his
petition for review if that was his intent. PFR File, Tab 4. The appellant did not
respond to the Clerk’s order and we find that he did not intend to withdraw his
petition for review.
¶11 Accordingly, we find that the administrative judge correctly dismissed this
employment practices appeal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS 2
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
2
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.
6
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:
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.
7
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. ____ , 137 S. Ct. 1975 (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
8
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 Boar d’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. 3 The court of appeals must receive your
3
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
9
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 ou r 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.
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.
10
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.