UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

TYLER JAMES STEWART,

Appellant,

v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Agency. DOCKET NUMBER DC-1221-20-0666-W-3

DATE: April 18, 2024



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Tyler James Stewart , Derwood, Maryland, pro se.

Sariana Garcia-Ocasio , New York, New York, 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 dismissed his individual right of action (IRA) 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 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1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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).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). Under 5 U.S.C. § 1221(a), the right to file an IRA appeal is limited to employees, former employees, and applicants for employment in the civil service. See, e.g. , Glover v. Department of the Army , 94 M.S.P.R. 534, ¶ 9 (2003) (finding that a widow or widower of a deceased Federal employee may not file an IRA appeal after the Federal employee’s death). To qualify as an employee or former employee for purposes of 5 U.S.C. § 1221(a), an individual must meet (or have met) the definition of an employee under 5 U.S.C. § 2105(a), i.e., “an officer and individual who is appointed in the civil service” by certain individuals specified by statute. The civil service in turn comprises “all appointive positions in the executive, judicial, and legislative branches of the Government of the United States, except positions in the uniformed services.” See 5 U.S.C. § 2101(1). As the administrative judge found below, the appellant has not provided evidence that he was appointed to a civil service position with the agency, such that he could be considered an employee, former employee, or applicant for employment with standing to file an IRA appeal. The record of the appellant’s traineeship does not bear the indicia of such an appointment, such as evidence of an oath of office, a Standard Form 50 or similar formal paperwork, or salary and benefits provided through the civil service system. See Horner v. Acosta , 2803 F.2d 687, 693-94 (Fed. Cir. 1986) (identifying elements indicative of an

appointment under 5 U.S.C. § 2105). To the contrary, the appellant’s correspondence with the agency, which he resubmits on review, indicates that he received a stipend rather than a salary and was responsible for obtaining private
health insurance. We have considered the appellant’s argument that he did not receive notice of his burden to establish that he was an employee with standing to file an IRA appeal. While the administrative judge did not specifically address the issue of standing in his jurisdictional order, the Board has held that an administrative judge’s failure to provide notice of jurisdictional requirements is not prejudicial if the agency’s motion to dismiss places the appellant on notice of what he has to allege to establish jurisdiction. Yost v. Department of Health and Human
Services , 85 M.S.P.R. 273, 277 (2000) aff’d , 4 F. App’x 900 (Fed. Cir. 2001). Here, we find that the appellant received adequate notice of the standing issue through the agency’s motion to dismiss. Stewart v. Department of Health and
Human Services , MSPB Docket No. DC-1221-20-0666-W-2, Appeal File, Tab 6. Finally, we find no merit to the appellant’s assertion that he is entitled to a hearing in order to reintroduce evidence and argument concerning his standing to file an IRA appeal. See Graves v. Department of Veterans Affairs , 123 M.S.P.R. 434, ¶ 22 (2016) (explaining that in an IRA appeal, the appellant is entitled to a hearing only after jurisdiction is established, and that hearing is on the merits).

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 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

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. 3Systems 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. 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 4http://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, 5and 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 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 6competent jurisdiction. 3 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.

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 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. 7Contact 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