UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

KIDADA JAMES,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

PH-0731-19-0362-I-1

DATE: May 1, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Kidada James, Baltimore, Maryland, pro se.

Darlene M. Carr, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

affirmed the decision of the Office of Personnel Management (OPM) finding her

unsuitable for Federal employment. On petition for review, the appellant argues

that the Board’s electronic filing system was down during a portion of her

hearing, that she lacked legal representation, and that others accused of the same

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
offenses would have received a lesser penalty. 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).

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). 

While the appellant was testifying during the video-hearing, she indicated

that she had been logged off the Board’s electronic filing system and thus could

not access electronically filed documents. Hearing Recording (HR). The agency

representative reported similar problems and stated that she would refer to the

hard copy of the file she had. HR. The administrative judge stated during the

hearing that “it doesn’t appear to be a problem” for the appellant in that her

challenge was to the reasons she was terminated by her private-sector employer,

not the basis for OPM’s adverse suitability determination. HR. Although the

appellant repeated that she was unable to access the electronic case file, at no

point did she request that the hearing be delayed or object to the administrative

judge proceeding with the hearing. HR. On review, the appellant argues that,

because the electronic case filing system was down during a portion of the

hearing, she could not clearly present the documents and explain the reasons for

her separation from her private-sector employer. Petition for Review (PFR) File,

2
Tab 1 at 4. We construe this claim as one of adjudicatory error, that is, error by

the administrative judge in continuing with the hearing under the circumstances.

Because the appellant did not request a continuance below or object to the

administrative judge proceeding with the hearing, she is precluded from raising

the issue on review. See McCarthy v. International Boundary and Water

Commission, 116 M.S.P.R. 594, ¶ 25 (2011) (stating that the appellant’s failure to

timely object to rulings during the hearing precludes his doing so on petition for

review), aff’d, 497 Fed. Appx. 4 (Fed. Cir. 2012); see also Tarpley v. U.S. Postal

Service, 37 M.S.P.R. 579, 581 (1988) (stating that the appellant’s failure to

timely object to the administrative judge’s rulings on witnesses precludes his

doing so on petition for review). In any event, an adjudicatory error that is not

prejudicial to a party’s substantive rights provides no basis for reversal of an

initial decision. Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282

(1984). Here, the administrative judge considered the appellant’s contentions

regarding the reasons for her previous separation and found, based on

contradictory evidence in the record, that the appellant’s explanation was not

credible. Initial Appeal File, Tab 27, Initial Decision at 4-6. Thus, the appellant

has failed to show that any error by the administrative judge prejudiced her

substantive rights.2 Panter, 22 M.S.P.R. at 282. 

2

 The appellant also argues on review that she was harmed by her lack of legal

representation during the proceedings below. PFR File, Tab 1 at 4. While the appellant

has a statutory right to be represented by an attorney or other representative, it is the

appellant’s obligation to secure representation. Grassell v. Department of

Transportation, 40 M.S.P.R. 554, 564 (1989). The Board is not required by law, rule,

or regulation to appoint counsel for an appellant. Id. To the extent that the appellant

was harmed by her lack of representation, she is responsible for that choice. See Sofio

v. Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981). Finally, regarding the

appellant’s argument about the penalty, PFR File, Tab 1 at 5, the Board’s jurisdiction

over a negative suitability determination does not extend to reviewing or modifying the

ultimate action taken as a result of a suitability determination, Folio v. Department of

Homeland Security, 402 F.3d 1350, 1353, 1355-56 (Fed. Cir. 2005).

3
NOTICE OF APPEAL RIGHTS3

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: 

3

 Since the issuance of the initial decision in this matter, the Board has 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.

4
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

5
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

6
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.4 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. 

4

 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. 

7
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.

8