UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

DEBRA M. SHEPARD,

Appellant,

v.
DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT

- 1221

- 16

- 0478

- W

- 1

DATE: May 30, 2023



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Debra M. Shepard , Lawrenceville, Georgia, pro se.

Edith W. Lewis , Columbia, South Carolina, 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 her individual right of action appeal for lack of jurisdiction

. On petition for review, the appellant argues that the administrative judge should have
recused himself and that he committed procedural errors , challenges his

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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

determination that she failed to ex haust her administrative remedies, 2 and identifies a number of alleged disclosures and prohibited personnel actions. 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, wa s 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 concl ude that the petitioner has not established any basis under section 1201.115 for granting the petition for review.

2 The appellant appears to be challenging the administrative judge’s finding that she failed to exhaust her remedies with the Office of Special Counsel (OSC) as to her claim that the agency delayed t ransferring her pursuant to a settlement agreement that resolved her prior equal employment opportunity complaint in retaliation for her whistleblowing disclosures or protected activity . Petition for Review File, Tab 1 at 10, 15

- 19, 28. In Chambers v. De partment of Homeland Security
, 2022 MSPB 8 , ¶ 10 , which was issued after the initial decision in this case, the Board clarified tha t t he substantive requirements of exhaustion are met when an appellant has provided OSC with a sufficient basis to pursue an investigation. Here, the administrative judge explicitly found that the appellant had “ failed to provide OSC with sufficient infor mation as to the basis for her claim of reprisal for whistleblowing and protected activity such that would permit it to actually pursue an investigation that might lead to corrective action on a claim of reprisal .” Initial Appeal File, Tab 15 at 14. Thus, i t appears that the administrative judge applied the same standard set out in Chambers in determining that the appellant had failed to me e t the exhaustion requirement . Even if we found that the administrative judge applied the standard in effect bef ore the issuance of Chambers , we have reviewed the record
, and we find that the appellant has not shown that she provide d OSC with a sufficient basis to pursue an investigation into this allegation.3

Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 3 5 C.F.R. § 1201.113 (b).

NOTICE OF APPEAL RIGHTS 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 jurisdicti on. 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 dismis sal 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 re view 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 Fed eral Circuit, which must be received by the court

3 During the pendency of this appeal, the National Defens e Authorization Act for Fiscal Year 2018 (NDAA), Pub. L. No. 115

- 91, 131 Stat. 1283, was signed into law on December 12, 2017. Section 1097 of the NDAA amended various provisions of T itle 5 of the U nited S tates Code. These changes do not affect the outco me of this appeal

. 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.4

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. Cour t 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 Ap peals 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, an d 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 Syste ms 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 re view 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 file5

with the district court no later than 30 calendar days after your representative
receives this d ecision. 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 f ees, 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 E EOC 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. 205076

(3) Judicial review pursuant to t he 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 prote cted 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 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).
I f 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.

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 J uly 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 jurisdictio n. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115

- 195, 132 Stat. 1510.7

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. 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/Co urt_Locator/CourtWebsites.aspx

.

FOR THE BOARD:

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