UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

JOHN DOE, Appellant,

v.
AGENCY FOR INTERNATI ONAL DEVELOPMENT,

Agency. DOCKET NUMBER DC

- 0752

- 16

- 0587

- I

- 1

DATE: October 25, 2022



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

John Doe , pro se. Sara Ryan , Washington, D.C., for the agency.

BEFORE Cathy A. Harris
, Vice Chairman Raymond A. Limon
, Member Tristan L. Leavitt , Member

FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her termination appeal for lack of jurisdiction . 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

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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 interpretation of statute or regulation or the erroneou s 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 af fected 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 decis ion. 5 C.F.R. § 1201.113 (b). ¶2 As the administrative judge found in the ini tial decision, the agency terminated the appellant from her Foreign Service Limited Officer position effective August 19, 2015 . Initial Appeal File (IAF), Tab 6, Initial Decision (ID)
at 1. After receiving a final agency decision on her equal employment opportunity (EEO) complaint , the appellant filed a Board appeal and requested a hearing. ID at 2; IAF, Tab 1. She made allegations of harassment, delays in the EEO process, and retaliation for EEO activity. IAF, Tab 1 at 5. The administrative judge inf ormed the appellant that the Board may not have jurisdiction over her appeal because she was a member of the Foreign Service. IAF, Tab 5. He issued an order directing her to show cause why the appeal should not be dismissed for lack of jurisdiction, but she did not respond. Id. ¶3 Without holding the requested hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. ID at 2, 4

. Specifically, he found that
, pursuant to 5 U.S.C. § 7511 (b)(6), the Board lacks the authority to review her termination because t he appellant was a member of the Foreign Service. ID at 2

- 3.3

¶4 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. She does not dispute that the Board lacks jurisdiction over her appeal and admits that the appeal should not have been filed. Id. Instead, she requests
that the Board not issue a decision, citing privacy concerns. Id. She includes a letter from the agency, which she purportedly did not receive until after issuance of the initial decision, explaining that the agency inadvertently included Board appeal rights in the fi nal agency decision on her EEO complaint. Id. at 8. 2 The agency has not filed a response. ¶5 For the reasons contained in the initial decision, we agree with the administrative judge’s finding that the Board lacks jurisdiction over the appeal
because the ap pellant was a member of the Foreign Service . ID at 2

- 3 ; see Ang v. Department of State , 103 M.S.P.R. 324 , ¶¶ 8

- 9 (2006) (finding that the appellant failed to establish jurisdiction over his appeal under 5 U.S.C. chapter 75 because he was a member of the Foreign Service )

. Moreover, w e deny the appellant’s privacy

- related request because her identity has been protected by allowing her to proceed anonymously as John Doe. 3

2 Assuming that the agency letter was unavailable prior to the close of the record below despite the appellant’s due diligence
, we find that it does not affect the outcome of the appeal. PFR File, T ab 1 at 4, 7; see Avansino v. U.S. Postal Service
, 3 M.S.P.R. 211 , 214 (1980) (stating that the Board generally will not consider evidence submitt ed for the first time with the petition for review absent a showing that it was unavailable before the record was closed despite the party’s due diligence); see also Russo v. Veterans Administration
, 3 M.S.P.R. 345 , 349 (1980) ( stating that the Board generally will not grant a 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).

3 The Board no longer uses Jane Doe and John Doe, universally using the gen e ric “John Doe” for all appeals when anonymity is granted. Doe v. Pension Benefit Guaranty Cor poration , 117 M.S.P.R. 579 n.1 (2012). Further, with the exception of the Board’s decision in this matter, which is available on the Boar d’s website, the case file from this appeal is protected by the Privacy Act of 1974 and is not available to the public through

e

- Appeal Online or the Board’s website. While MSPB’s adjudication records may be requested under the Freedom of Information Act (FOIA), all records are reviewed in accordance with the FOIA and may be withheld from release if warranted by a FOIA exemption.4

¶6 Accordingly, we find that the administrative judge properly dismissed the appeal for lack of jurisdiction.

NOTICE OF APPEAL RIG HTS 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. Failu re 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 que stions 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).

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

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 ad dress: 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 partic ular 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 a n 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, t hen 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 of6

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 th eir 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 O perations 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 Emplo yment 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 Op portunity 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) or7

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 personne l practice described in
section 2302(b) other than practices described in se ction 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 Fede ral 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
Cir cuit 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 intere sted 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 appel lants before the Federal Circuit. The

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

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 their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx

.

FOR THE BOARD:

Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board