Corbin v. Lynch et al

MOTION to Dismiss for Failure to State a Claim

D. Md.July 18, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND STEVEN T. CORBIN Plaintiff, v. Loretta E. Lynch, et al Defendants Civil No. RWT-16-cv-01495 DEFENDANT’S MOTION TO DISMISS Defendants, by and through counsel, Rod J. Rosenstein, United States Attorney for the District of Maryland, and Jane E. Andersen, Assistant United States Attorney for said district, hereby move to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) on the grounds that plaintiff’s claims are barred by res judicial and/or collateral estoppel, and otherwise fails to state a claim. The grounds supporting this motion are set forth in the Memorandum of Law filed herewith and Exhibits A through E. Respectfully submitted, Rod J. Rosenstein United States Attorney By: ______/s/__________________ Jane E. Andersen (Bar No: 802834) Assistant United States Attorney 36 South Charles Street, 4th Floor Baltimore, Maryland 21201 (p) 410-209-4892 (f) 410-962-2310 Jane.Andersen@usdoj.gov Case 8:16-cv-01495-RWT Document 27 Filed 07/18/16 Page 1 of 2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on July 18, 2016, I caused a copy of the forgoing Motion, Memorandum of Law, and Exhibits A through E to be mailed, first class, postage-prepaid to: Steven T. Corbin P. O. Box 5934 Bethesda, MD 20824 ________/s/___________________ Jane E. Andersen Assistant United States Attorney Case 8:16-cv-01495-RWT Document 27 Filed 07/18/16 Page 2 of 2 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND STEVEN T. CORBIN Plaintiff, v. Loretta E. Lynch, et al Defendants Civil No. RWT-16-cv-01495 MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS THE COMPLAINT Defendants, by and through counsel, Rod J. Rosenstein, United States Attorney for the District of Maryland, and Jane E. Andersen, Assistant United States Attorney for said District, respectfully submits this memorandum of law in support of their motion to dismiss the case pursuant to Rule12(b)(6) of the Federal Rules of Civil Procedure on the grounds that plaintiff’s claims are barred by res judicial and/or collateral estoppel, and otherwise fails to state a claim. STATEMENT OF FACTS A. Prior Lawsuits On April 23, 2015, plaintiff, proceeding without counsel, commenced an action in the Circuit Court of Maryland for Montgomery County, naming Lee J. Lofthus, Assistant Attorney General for Administration and “JMO Finance Staff” at the Department of Justice, Justice Management Division (herein “DOJ”) as a defendant, and filed an Amended Complaint on April 24, 2014. On July 21, 2015, the United States/DOJ removed the action to the United States District Court for the District of Maryland and the case was assigned as Case No. RWT-15-CV-02118. Case 8:16-cv-01495-RWT Document 27-1 Filed 07/18/16 Page 1 of 8 2 Defendant United States/DOJ filed a motion to dismiss, or on the alternative, for summary judgment, to which plaintiff filed a response and supplemental material, and defendant filed a reply. See ECF Docket for Case No. 15-CV-02118 at Entry #s 15, 21, 25, 26. On November 10, 2015, the Court issued an order granting defendant’s motion and dismissed the complaint. A copy of the Memorandum Opinion and Order is annexed hereto as Exhibit “A.” On January 12, 2016, plaintiff filed a notice of appeal, which was assigned to the Fourth Circuit Court of Appeals Case No. 16-1203. On May 17, 2016, an order was issued dismissing the appeal for failure to prosecute. See ECF Docket Entry #9. On June 23, 2016, plaintiff filed a motion to reopen the case, which is currently pending before the Fourth Circuit. See 4th Circuit ECF Docket for Case No. 16-1203. Additionally, Plaintiff filed two complaints in connection with his former federal employment which proceeded before the Merit System Protection Board (“MSPB”)-(1) asserting a claim that plaintiff’s rights pursuant to the Veterans Employment Opportunities Act of 1998 (VEOA) were violated, and (2) asserting a claim that his rights pursuant to the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) were violated. Annexed hereto are copies of the MSPB Decisions as Exhibits “B” and “C” respectively. Plaintiff appealed both these MSPB decision to the Court of Appeals for the Federal Circuit, which were issued Case Nos. 2016-1460 and 2016-1193 respectively. On April 12, 2016, plaintiff’s VEOA claim (2016-1460) was dismissed for failure to prosecute. A copy of the April 12, 2016 Order is annexed hereto as Exhibit “D.” On June 9, 2016, plaintiff’s USERRA claim (2016-1193) was dismissed by the Court of Appeals for the Federal Circuit. A copy of the June 9, 2016 Opinion is annexed hereto as Exhibit “E.” Case 8:16-cv-01495-RWT Document 27-1 Filed 07/18/16 Page 2 of 8 3 B. Instant Lawsuits On November 4, 2015, plaintiff commenced an action in the Circuit Court of Maryland for Montgomery County, Case No. 411307-V, naming Loretta Lynch, Attorney General of the United States; Shaun Donovan, Director of the United States Office of Management and Budget, Beth Cobert, Acting Director of the United States Office of Personnel Management, and Thomas E. Perez, Secretary of Labor, as defendants. On May 18, 2016, defendants removed the action to this Court. See ECF Docket # 1. Plaintiff has filed a number of documents both in State Court prior to removal and with this Court after the case was removed. ARGUMENT I. STANDARD OF REVIEW A motion to dismiss for failure to state a claim under Rule 12(b)(6) serves to test the legal sufficiency of the complaint. E.g., Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To survive a motion to dismiss pursuant to Rule 12(b)(6), a plaintiff’s “[f]actual allegations must be enough to raise a right to relief above the speculative level,” thereby “nudg[ing] their claims across the line from conceivable to plausible.” Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir. 2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). Although courts must generally accept as true the allegations of a complaint, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions” or “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “At bottom, determining whether a complaint states on its face a plausible claim for relief and therefore can survive a Rule 12(b)(6) motion will ‘be a Case 8:16-cv-01495-RWT Document 27-1 Filed 07/18/16 Page 3 of 8 4 context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not show[n] - that the pleader is entitled to relief . . . .” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1950) (internal quotation marks omitted). II. PLAINTIFF’S CLAIMS ARE BARRED BY THE DOCTRINE OF RES JUDICATA AND/OR COLLATERAL ESTOPPEL Federal law governs the preclusive effect of a prior federal decision. See Harnett v. Billman, 800 F.2d 1308, 1312-13 (4th Cir. 1986). A final judgment on the merits of an action precludes the parties or their privies from litigating issues that were or could have been raised in that action. Federated Dep’t Stores v. Moitie, 452 U.S. 394, 398 (1981); Pueschel v. United States, 369 F.3d 345, 354 (4th Cir. 2004). “By precluding parties from contesting matters that they have had a full and fair opportunity to litigate, the doctrine of res judicata minimizes the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions.” Union Carbide Corp. v. Richards, 721 F.3d 307, 314 (4th Cir. 2013) (internal punctuation altered). For the doctrine of res judicata to apply, there must be: (1) a final judgment on the merits in a prior suit; (2) an identity of the cause of action in both the earlier and the later suit; and (3) an identity of parties or their privies in the two suits. Pueschel v. United States, 369 F.3d 345, 354-55 (citing Nash County Bd. Of Educ. v. Biltmore Co., 640 F.2d 484, 486 (4th Cir. 1981)); accord In re Varat Enters., Inc., 81 F.3d 1310, 1315 (4th Cir. 1996). “Identity of the cause of action exits if two claims arise out of the same transaction or series of transactions or the same core of Case 8:16-cv-01495-RWT Document 27-1 Filed 07/18/16 Page 4 of 8 5 operative facts.” Nathan v. Takeda Pharms. Am., Inc., 546 Fed. Appx. 176, 178 (4th Cir. 013) (citing Union Carbide Corp. v. Richards, 721 F.3d 307, 314 (4th Cir. 2013)). “Privity between parties exists when the interests of one party are so identified with the interests of another that representation by one party is representation of the other’s legal right.” Id. (citing Weinberger v. Tucker, 510 F.3d 486, 491 (4th Cir. 2007)). Collateral estoppel, a subset of res judicata, precludes a party from litigating issues of fact or law that are identical to the issues which have been actually and necessarily decided in prior litigation. Kloth v. Microsoft Corp. (In re Microsoft Corp. Antitrust Litig.), 355 F.3d 322, 326 (4th Cir. 2004). To demonstrate that collateral estoppel applies, the proponent must demonstrate that: (1) the issue or fact is identical to the one previously litigated; (2) the issue or fact was actually resolved in the prior proceeding; (3) the issue or fact was critical and necessary to the judgment in the prior proceeding; (4) the judgment in the prior proceeding is final and valid; and (5) the party to be foreclosed by the prior resolution of the issue or fact had a full and fair opportunity to litigate the issue or fact in the prior proceeding. Id. (citations omitted). Even in cases where a determination was reached upon an erroneous view or by an erroneous application of law, collateral estoppel still applies. See United States v. Stauffer Chemical Co., 464 U.S. 165, 170 (1984). A claim may be collaterally estopped even if the particular legal theory in the prior case was not raised. Mathis v. Goldberg, 2013 U.S. Dist. LEXIS 21081 (D. Md. 2013). The Court may take judicial notice of facts from a prior judicial proceeding when the res judicata defense raises no disputed issues of fact. Andrews v. Daw, 201 F.3d 521, 524 (4th Cir. 2000). Here, this Court has already dismissed a complaint that plaintiff filed under Case No. Case 8:16-cv-01495-RWT Document 27-1 Filed 07/18/16 Page 5 of 8 6 RWT-15-CV-02118 (“Corbin I.”) See Exhibit “A.” In Corbin I, the Court dismissed the complaint on the grounds that the complaint failed to contain sufficient factual allegation to raise a right to relief about the speculative level. This dismissal is on the merits entitled to res judiciata. See Fed. R. Civ. Pro. 41(b); McLean v. United States, 566 F.3d 391, 396 (4th Cir. 2009)(collecting cases holding dismissing case pursuant to 12(b)6) is a decision on the merits).1 The Court noted in Corbin I that plaintiff made allegations of “contributory infringement, harassment (detrimental), wiretapping, collusion, [and] assault.” See Exhibit “A” at 1. The Court also noted that plaintiff did not assert a claim of discrimination or retaliation. See Exhibit “A” at FN 1. Similarly, plaintiff asserted allegations of discrimination before the MSPB, and these cases were appealed to the Court of Appeals for the Federal Circuit, and dismissed. See Exhibits “B-E.” As such, any claim that was raised, or could have been raised, in either Corbin I or before the MSPB are barred by res judicata. In the instant lawsuit, plaintiff once again has filed numerous documents making various allegations. However, in reviewing all the documents plaintiff has filed, it appears clear that plaintiff is not attempting to raise any claims that he was otherwise unable to bring in Corbin I or before the MSPB. As was the case in Corbin I, plaintiff filed multiple documents and pages, making it difficult to ascertain what plaintiff is actually claiming. However, in a document plaintiff filed in State Court entitled “Case Information Report” under “Nature of the Case” plaintiff checked off the box that states “Contracts” and wrote “Fraud.” Moreover, plaintiff checked off the 1 While defendant also moved on jurisdiction grounds, even if one claim is dismissed pursuant to 12(b)(6), res judicata will apply. See Coby v. Mobley, 1994 U.S. Dist. LEXIS 5125, *6, 1994 WL 146792 (D. Md. 1994). Case 8:16-cv-01495-RWT Document 27-1 Filed 07/18/16 Page 6 of 8 7 box “yes” in response to whether the case was related to another case writing “Court of Appeals.” See Docket # 2 at 2. Similarly, plaintiff filed in State Court a number of documents that again, continues to make allegation regarding “Artworks, Publications, Patents, Trademarks, and Copyrights.” See Docket # 6 at 2. Plaintiff filed documents stating that he is asserting claims regarding personal information, breach of contract, and potential employment discrimination. See Docket # 12 at 2. Finally, after removing the instant case, plaintiff filed additional papers which once again seem to suggest that plaintiff is attempting to use this new lawsuit to challenge this Court’s prior decision, and/or the basis for removal, which plaintiff has already appealed to the Fourth Circuit. See ECF Docket # 15, 25. While in some of the papers he mentions “discrimination,” plaintiff’s claims of discrimination were raised and ultimately dismissed by the Court of Appeals for the Federal Circuit. See Exhibits B-E. III. PLAINTIFF OTHERWISE FAILS TO STATE A CLAIM As set forth above, plaintiff may not now assert any claim that he brought in his prior lawsuits, or could have brought in his prior lawsuits. However, plaintiff’s claims would nevertheless be subject to dismissal because plaintiff fails to allege any factual assertions sufficient to put the defendants on notice of what claim(s) are asserted against it, or to support the conclusory allegations made therein. “[T]he tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Legal conclusions are not entitled to the assumption of truth.”). As such, plaintiff’s claims should be dismissed. Case 8:16-cv-01495-RWT Document 27-1 Filed 07/18/16 Page 7 of 8 8 CONCLUSION For the reasons discussed above, the complaint should be dismissed. Respectfully submitted, Rod J. Rosenstein United States Attorney By: _________/s/_______________ Jane E. Andersen (Bar No: 802834) Assistant United States Attorney 36 South Charles Street, 4th Floor Baltimore, Maryland 21201 (p) 410-209-4892 (f) 410-962-2310 Jane.Andersen@usdoj.gov Counsel for Defendants Case 8:16-cv-01495-RWT Document 27-1 Filed 07/18/16 Page 8 of 8 EXHIBIT A Case 8:16-cv-01495-RWT Document 27-2 Filed 07/18/16 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND * STEVEN T. CORBIN, * * Plaintiff, * * v. * Civil Action No. RWT-15-2118 * LEE J. LOFTUS, et al., * * Defendants. * * MEMORANDUM OPINION AND ORDER On April 23, 2015, Plaintiff Steven Corbin, proceeding pro se, filed a Complaint in the Circuit Court for Montgomery County, which the Government removed to this Court on July 21, 2015. ECF No. 1. The Complaint names Lee J. Loftus, the Assistant Attorney General for Administration, “JMO Finance Staff” at the Department of Justice, and Tilton and Bernstein Management as defendants. ECF No. 2. Plaintiff filed an Amended Complaint on April 24, 2015, alleging “contributory infringement, harassment (detrimental), wiretapping, collusion, [and] assault,” but providing no factual basis for the allegations. Id. at 2. On July 28, 2015, the Government filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction and/or Failure to State a Cause of Action. ECF No. 15. A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the sufficiency of a complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted). The complaints of self-represented litigants are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, Case 8:15-cv-02118-RWT Document 28 Filed 11/10/15 Page 1 of 4Case 8:16-cv-01495-RWT Document 27-2 Filed 07/18/16 Page 2 of 5 2 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a complaint filed by a self-represented litigant to allow the development of a potentially meritorious case, see Erickson v. Pardus, 551 U.S. 89 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.; see also Simmons & United Mortg. & Loan Invest, 634 F.3d 754, 768 (4th Cir. 2011) (“On a Rule 12(b)(6) motion, a complaint must be dismissed if it does not allege enough facts to state a claim to relief that is plausible on its face.”) (internal quotations and emphasis omitted). “Thus, ‘[i]n reviewing a motion to dismiss an action pursuant to Rule 12(b)(6) . . . [a court] must determine whether it is plausible that the factual allegations in the complaint are enough to raise a right to relief above the speculative level.’” Monroe v. City of Charlottesville, 579 F.3d 380, 386 (4th Cir. 2009) (quoting Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009)). Plaintiff’s original and Amended Complaint both fail to assert how Defendants acted unlawfully. The original complaint is comprised of nonsensical statements, declaring in part “federal employees in a (higher) paygrade that lives [sic] in a TB property and works at JMD which makes complaint to local authorities and possession high value artifacts are more likely subject to this unfair treatment of the Rights Game.” ECF No. 2 at 1. Plaintiff further alleges that his phones are wiretapped, his bank accounts are monitored, and that he has “worked with the EEOC/EOC of DOJ for basic severance pay, but to no avail.” Id. Finally, Plaintiff writes “assaulted” at the bottom of his complaint. Id. The Amended Complaint fails to make any factual assertions whatsoever. Id. at 2. Plaintiff’s filings with the Court since then have not Case 8:15-cv-02118-RWT Document 28 Filed 11/10/15 Page 2 of 4Case 8:16-cv-01495-RWT Document 27-2 Filed 07/18/16 Page 3 of 5 3 cured these deficiencies.1 Even when the Court liberally construes Plaintiff’s pro se Complaint, the Court is unable to conclude that it contains sufficient factual allegations to raise a right to relief above the speculative level. See Weller v. Dep’t of Soc. Servs. for City of Baltimore, 901 F.2d 387 (4th Cir. 1990) (finding that liberal construction of a self-pleaded complaint does not mean that a court can ignore a clear failure in the pleading to allege facts that set forth a cognizable claim); see also Iqbal, 556 U.S. at 684 (outlining pleading requirements under Federal Rule of Civil Procedure 8 for “all civil actions”). The facts pleaded in the Complaint, therefore, do not fairly apprise Defendants of what is being claimed and are insufficient to survive a motion to dismiss. Having determined that the Complaint fails under Rule 12(b)(6), the Court need not address the Government’s remaining defenses. Plaintiff has also filed three identical Motions for Temporary Injunctions concerning “[a]rtworks, publications, trademarks and copyrights assigned to the name Steve T. Corbin” and use of Plaintiff’s social security number and personal banking information by the Department of Justice. ECF Nos. 9, 20, 27. In order to obtain such relief, Plaintiff “must establish” that: (1) he is “likely to succeed on the merits”; (2) he is “likely to suffer irreparable harm in the absence of preliminary relief”; (3) “the balance of equities tips” in his favor; and (4) an “injunction is in the public interest.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). “[A]ll four requirements must be satisfied” for the Court to grant the requested relief. The Real Truth About Obama, Inc., 575 F.3d at 346. Plaintiff has failed to clearly address or satisfy any of Winter’s four requirements for the Court to issue a preliminary injunction or temporary restraining order. Therefore, these Motions shall be denied. 1 Plaintiff responded to the Government’s Motion to Dismiss with a Motion to Vacate, in which he discusses his objections to removal and a discrimination complaint he filed with the Department of Justice’s Equal Employment Opportunity Staff. ECF No. 21. Plaintiff asserts that removal to this Court was improper because of “a conflict of interest…implicating the Attorney General of the Department of Justice,” but fails to provide any factual basis for this claim. Id. at 2. Plaintiff has not asserted a claim of discrimination or retaliation in this case. Case 8:15-cv-02118-RWT Document 28 Filed 11/10/15 Page 3 of 4Case 8:16-cv-01495-RWT Document 27-2 Filed 07/18/16 Page 4 of 5 4 Accordingly, it is this 6th day of November, 2015, by the United States District Court for the District of Maryland, ORDERED, that the Government’s Motion to Dismiss for Lack of Subject Matter Jurisdiction and/or Failure to State a Cause of Action (ECF No. 15) is hereby GRANTED; and it is further ORDERED, that Plaintiff’s Motions for Temporary Injunction (ECF Nos. 9, 20, 27) are hereby DENIED; and it is further ORDERED, that the Complaint (ECF No. 2) is hereby DISMISSED; and it is further ORDERED, that the Clerk is hereby DIRECTED to close this case; and it is further ORDERED, that the Clerk is hereby DIRECTED to mail a copy of this Memorandum Opinion and Order to Plaintiff. /s/ ROGER W. TITUS UNITED STATES DISTRICT JUDGE Case 8:15-cv-02118-RWT Document 28 Filed 11/10/15 Page 4 of 4Case 8:16-cv-01495-RWT Document 27-2 Filed 07/18/16 Page 5 of 5 EXHIBIT B Case 8:16-cv-01495-RWT Document 27-3 Filed 07/18/16 Page 1 of 10 UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD WASHINGTON REGIONAL OFFICE STEVEN T. CORBIN, Appellant, v. DEPARTMENT OF JUSTICE, Agency. DOCKET NUMBER DC-3330-15-1024-I-1 DATE: September 4, 2015 Steven T. Corbin, Sylacauga, Alabama, pro se. Melanie Russell, Esquire, Washington, D.C., for the agency. BEFORE David A. Thayer Administrative Judge INITIAL DECISION On July 27, 2015, Steven T. Crobin filed an appeal to the Board alleging that the Department of Justice had violated his rights under the Veterans Employment Opportunities Act of 1998 (VEOA) when it failed to restore him and forced him to involuntarily resign from his position. This decision is based on the written record.1 1 The appellant requested a hearing. I have determined, however, that one is not required because there is no genuine dispute over a material fact in this appeal. The Board may decide an appeal under VEOA on the merits without a hearing when there is no genuine dispute of material fact and one party must prevail as a matter of law. Davis v. Department of Defense, 105 M.S.P.R. 604, ¶ 12 (2007). Case 8:16-cv-01495-RWT Document 27-3 Filed 07/18/16 Page 2 of 10 2 Based on the following analysis and findings, the appellant’s request for corrective action is DISMISSED for lack of jurisdiction. ANALYSIS AND FINDINGS The appellant failed to exhaust his administrative remedies before the Department of Labor. VEOA affords a preference-eligible, who asserts that an agency has violated his rights under any statute or regulation relating to veterans’ preference, a right to file a complaint with the Department of Labor (DOL), and then to file an appeal of the alleged violation with the Board if he has exhausted his DOL remedies. 5 U.S.C. § 3330a(d). The complaint must be filed with DOL within 60 days of the alleged violation. 5 U.S.C. § 3330a(a)(2)(A). In his initial appeal, the appellant checked boxes indicating that he was a preference-eligible along with a narrative statement that seemed to suggest he wished to make a claim regarding veterans’ preference. AF Tab 1. The appellant indicated that he had been the target of an improper investigation. While it may appear unfair, being investigated is not an agency action directly appealable to the Board. See 5 U.S.C. § 7512. The Board, however, might have jurisdiction over a claim that an agency violated his rights through a personnel action under VEOA. See 5 U.S.C. §3330a(d); but cf. Hamner v. Department of Housing & Urban Development, 93 M.S.P.R. 84, ¶ 25 (2002) (the Board lacks jurisdiction over claims of discrimination that fail to allege an otherwise appealable action and the Board may not employ USERRA or VEOA to attain jurisdiction over them). To establish Board jurisdiction over an appeal brought under VEOA, an appellant must: (1) show that he exhausted his administrative remedy with DOL; and (2) make non-frivolous allegations that, (i) he is a preference eligible within the meaning of VEOA, (ii) the action(s) at issue took place on or after the October 30, 1998 enactment date of VEOA, and (iii) the agency violated his rights under a statue or regulation relating to veterans’ preference. Downs v. Department of Veterans Affairs, 110 M.S.P.R. 139, ¶ 7 (2008). Case 8:16-cv-01495-RWT Document 27-3 Filed 07/18/16 Page 3 of 10 3 Because the appeal appeared to be one which would not be within the Board’s jurisdiction absent first being presented to DOL, the Board’s Acknowledgment Order notified the appellant that there was a question about jurisdiction over his VEOA claim. AF Tab 2. It advised him that he must show that he exhausted his administrative remedies before the Department of Labor before the Board could exercise jurisdiction over his VEOA appeal. AF Tab 4. The appellant did not respond to the Acknowledgment Order. To ensure that the appellant had complete information regarding his jurisdictional burden, I issued an Order on VEOA Jurisdiction. AF Tab 5. The Order reviewed the jurisdictional requirements to show that his appeal was within the Board’s authority. Id. It provided the appellant an opportunity to submit evidence and argument to establish the Board’s jurisdiction. Id. The appellant responded to the Jurisdictional Order. AF Tab 8. He reviewed his claims and provided copies of various statutes. He also submitted a copy of a letter from the Department of Labor that addressed his claim under Uniformed Services Employment and Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333) (USERRA).2 He provided copies of his Form DD 214 and notice from the Department of Veterans Affairs which documented his service-connected disability. Id. He also filed copies of medical test results and regulations relating to the processing of EEO complaints. AF Tab 9. He did not, however, provide any evidence that he had raised his VEOA claim to DOL prior to filing with the Board. The agency responded to the Jurisdictional Order. AF Tab 10. It noted that the appellant had failed to show that he had filed any request for relief with DOL. It asserted that the appellant had, therefore, failed to exhaust his 2 The Board has docketed an appeal to address the appellant’s USERRA claims. See MSPB Appeal No. DC-4324-15-1023-I-1. Case 8:16-cv-01495-RWT Document 27-3 Filed 07/18/16 Page 4 of 10 4 administrative remedies and the Board lacked jurisdiction over the appeal. It urged that the appeal be dismissed. Based on the record as a whole, I find that the appellant had not exhausted his administrative remedy with the Department of Labor before filing this appeal with the Board. Accordingly, I find that the Board must dismiss his VEOA claim. Gingery v. Department of the Treasury, 113 M.S.P.R. 157, ¶¶ 13, 16 (2009). DECISION The appeal is DISMISSED. FOR THE BOARD: __________/S/_________________ David A. Thayer Administrative Judge NOTICE TO APPELLANT This initial decision will become final on October 9, 2015, unless a petition for review is filed by that date. This is an important date because it is usually the last day on which you can file a petition for review with the Board. However, if you prove that you received this initial decision more than 5 days after the date of issuance, you may file a petition for review within 30 days after the date you actually receive the initial decision. If you are represented, the 30- day period begins to run upon either your receipt of the initial decision or its receipt by your representative, whichever comes first. You must establish the date on which you or your representative received it. The date on which the initial decision becomes final also controls when you can file a petition for review with the Court of Appeals. The paragraphs that follow tell you how and when to file with the Board or the federal court. These instructions are important because if you wish to file a petition, you must file it within the proper time period. Case 8:16-cv-01495-RWT Document 27-3 Filed 07/18/16 Page 5 of 10 5 BOARD REVIEW You may request Board review of this initial decision by filing a petition for review. If the other party has already filed a timely petition for review, you may file a cross petition for review. Your petition or cross petition for review must state your objections to the initial decision, supported by references to applicable laws, regulations, and the record. You must file it with: The Clerk of the Board Merit Systems Protection Board 1615 M Street, NW. Washington, DC 20419 A petition or cross petition for review may be filed by mail, facsimile (fax), personal or commercial delivery, or electronic filing. A petition submitted by electronic filing must comply with the requirements of 5 C.F.R. § 1201.14, and may only be accomplished at the Board's e-Appeal website (https://e-appeal.mspb.gov). Criteria for Granting a Petition or Cross Petition for Review Pursuant to 5 C.F.R. § 1201.115, the Board normally will consider only issues raised in a timely filed petition or cross petition for review. Situations in which the Board may grant a petition or cross petition for review include, but are not limited to, a showing that: (a) The initial decision contains erroneous findings of material fact. (1) Any alleged factual error must be material, meaning of sufficient weight to warrant an outcome different from that of the initial decision. (2) A petitioner who alleges that the judge made erroneous findings of material fact must explain why the challenged factual determination is incorrect and identify specific evidence in the record that demonstrates the error. In reviewing a claim of an erroneous finding of fact, the Board will give deference to an administrative Case 8:16-cv-01495-RWT Document 27-3 Filed 07/18/16 Page 6 of 10 6 judge’s credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing. (b) 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 petitioner must explain how the error affected the outcome of the case. (c) The 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. (d) New and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. To constitute new evidence, the information contained in the documents, not just the documents themselves, must have been unavailable despite due diligence when the record closed. As stated in 5 C.F.R. § 1201.114(h), a petition for review, a cross petition for review, or a response to a petition for review, whether computer generated, typed, or handwritten, is limited to 30 pages or 7500 words, whichever is less. A reply to a response to a petition for review is limited to 15 pages or 3750 words, whichever is less. Computer generated and typed pleadings must use no less than 12 point typeface and 1-inch margins and must be double spaced and only use one side of a page. The length limitation is exclusive of any table of contents, table of authorities, attachments, and certificate of service. A request for leave to file a pleading that exceeds the limitations prescribed in this paragraph must be received by the Clerk of the Board at least 3 days before the filing deadline. Such requests must give the reasons for a waiver as well as the desired length of the pleading and are granted only in exceptional circumstances. The page and word limits set forth above are maximum limits. Parties are not expected or required to submit pleadings of the maximum length. Typically, a well-written petition for review is between 5 and 10 pages long. Case 8:16-cv-01495-RWT Document 27-3 Filed 07/18/16 Page 7 of 10 7 If you file a petition or cross petition for review, the Board will obtain the record in your case from the administrative judge and you should not submit anything to the Board that is already part of the record. A petition for review must be filed with the Clerk of the Board no later than the date this initial decision becomes final, or if this initial decision is received by you or your representative more than 5 days after the date of issuance, 30 days after the date you or your representative actually received the initial decision, whichever was first. If you claim that you and your representative both received this decision more than 5 days after its issuance, you have the burden to prove to the Board the earlier date of receipt. You must also show that any delay in receiving the initial decision was not due to the deliberate evasion of receipt. You may meet your burden by filing evidence and argument, sworn or under penalty of perjury (see 5 C.F.R. Part 1201, Appendix 4) to support your claim. The date of filing by mail is determined by the postmark date. The date of filing by fax or by electronic filing is the date of submission. The date of filing by personal delivery is the date on which the Board receives the document. The date of filing by commercial delivery is the date the document was delivered to the commercial delivery service. Your petition may be rejected and returned to you if you fail to provide a statement of how you served your petition on the other party. See 5 C.F.R. § 1201.4(j). If the petition is filed electronically, the online process itself will serve the petition on other e-filers. See 5 C.F.R. § 1201.14(j)(1). A cross petition for review must be filed within 25 days after the date of service of the petition for review. NOTICE TO AGENCY/INTERVENOR The agency or intervenor may file a petition for review of this initial decision in accordance with the Board's regulations. Case 8:16-cv-01495-RWT Document 27-3 Filed 07/18/16 Page 8 of 10 8 NOTICE TO THE APPELLANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request review of this final decision by the United States Court of Appeals for the Federal Circuit. You must submit your request to the court at the following address: United States Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, DC 20439 The court must receive your request for review no later than 60 calendar days after the date this initial decision becomes final. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27, 2012). If you choose to file, be very careful to file on time. The court has held that normally it does not have the authority to waive this statutory deadline and that filings that do not comply with the deadline must be dismissed. See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). If you need further information about your right to appeal this decision to court, you should refer to the federal law that gives you this right. It is found in Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27, 2012). You may read this law as well as other sections of the United States Code, at our website, http://www.mspb.gov/appeals/uscode/htm. Additional information 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, and 11. If you are interested in securing pro bono representation for your court appeal, that is, representation at no cost to you, the Federal Circuit Bar Association may be able to assist you in finding an attorney. To find out more, please click on this link or paste it into the address bar on your browser: Case 8:16-cv-01495-RWT Document 27-3 Filed 07/18/16 Page 9 of 10 9 http://www.fedcirbar.org/olc/pub/LVFC/cpages/misc/govt_bono.jsp The Merit Systems Protection Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Case 8:16-cv-01495-RWT Document 27-3 Filed 07/18/16 Page 10 of 10 EXHIBIT C Case 8:16-cv-01495-RWT Document 27-4 Filed 07/18/16 Page 1 of 16 UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD WASHINGTON REGIONAL OFFICE STEVEN T. CORBIN, Appellant, v. DEPARTMENT OF JUSTICE, Agency. DOCKET NUMBER DC-1221-15-1022-W-1 DATE: September 16, 2015 Steven T. Corbin, Sylacauga, Alabama, pro se. Melanie Russell, Esquire, Washington, D.C., for the agency. BEFORE David A. Thayer Administrative Judge INITIAL DECISION On September 3, 2015, Steven T. Corbin filed an individual right of action (IRA) appeal with the Board contending that the Department of Justice retaliated against him for making a disclosure. This decision is based on the written submissions of the parties.1 Based on the following analysis and findings, the appeal is DISMISSED for lack of jurisdiction. 1 The appellant requested a hearing. I find that no hearing is necessary, however, because his submissions on the jurisdictional issue failed to raise nonfrivolous allegations of fact which, if proven, could establish the Board’s jurisdiction over his appeal. Beets v. Department of Homeland Security, 98 M.S.P.R. 451, ¶ 9 (2005). Case 8:16-cv-01495-RWT Document 27-4 Filed 07/18/16 Page 2 of 16 2 ANALYSIS AND FINDINGS The appellant bears the burden of proof on the issue of jurisdiction. Under the provisions of the Whistleblower Protection Act (WPA), an individual who claims that an agency either took or failed to take a personnel action in retaliation for his protected whistleblower disclosures may file an IRA appeal with the Board. See 5 U.S.C. § 1221(a); 5 C.F.R. § 1209.2 (2015). The appellant bears the burden of proving by a preponderance of the evidence that his IRA appeal is within the jurisdiction of the Board. 5 U.S.C. § 1201.56(a)(2)(i) (2015). Preponderant evidence is that degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2) (2015). Before filing an IRA appeal on an action that is not an “otherwise appealable action,”2 the employee must first seek relief and exhaust proceedings before the Office of Special Counsel (OSC) on the particular personnel action alleged to be in reprisal for whistleblowing. 5 U.S.C. § 1214(a)(3); 5 C.F.R. § 1209.2(b)(1) (2015). The appellant alleged: On January 05 and 06, 2015, my civil service career was summed up over two days in my office at JMD FOS. I was judge on who I was, my valuable possession and my numerous accomplishments and promotions at JMD. In light of the recent developments, I have learned that I was under a reprisal. In addition, I was interrogated in a manner that leans toward defamation of character, due rights process violated and all my rights of a DOJ’s employee violated under a reprisal (as prescribed in CFR 27.3). It is become more obvious, there were several federal entitlements and value possessions they want from me mixed with all federal entitlement 2 See 5 C.F.R. § 1209.2(b) (2015) which defines “otherwise appealable action appeals” as: “appeals to the Board under laws, rules, or regulations other than 5 U.S.C. 1221(a) that include an allegation that the action was based on the appellant’s whistleblowing activities.” Case 8:16-cv-01495-RWT Document 27-4 Filed 07/18/16 Page 3 of 16 3 (was this disparate). In other words the law did not matter or play no factor on removing from my position or value possessions. AF Tab 1 (spelling, capitalization, grammar, and punctuation as in original). Based on the appellant’s description of events, it appeared that the identified personnel action was not one over which the Board would otherwise have jurisdiction. Thus, the only avenue by which the appellant can obtain Board jurisdiction over his claims is by presenting them first to OSC for review. The Board has jurisdiction over an IRA appeal if the appellant has exhausted his administrative remedies before OSC and makes nonfrivolous allegations3 that: (1) he engaged in whistleblowing activity by making a protected disclosure4; and (2) the disclosure was a contributing factor5 in the agency’s decision to take or fail to take a personnel action.6 Yunus v. Department of 3 A nonfrivolous allegation is a claim that has some factual basis to support it. In other words, although the appellant does not need to prove the facts he has claimed in order to establish the Board’s jurisdiction and to get a hearing on the merits of his claim, he must make a specific allegation of facts that, if proven, could show that the matter is within the Board’s jurisdiction. Conclusory, vague, or unsupported allegations are not enough to meet this standard. See Stokes v. Federal Aviation Administration, 761 F.2d 682, 685-86 (Fed. Cir. 1985); McDonnell v. Department of Agriculture, 108 M.S.P.R. 443 (2008). 4 In order to establish that he had a reasonable belief that her disclosure(s) was protected, the appellant must show that a disinterested observer, with knowledge of the essential facts known to and readily ascertainable by him, could reasonably conclude that the actions of the government evidence a violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety. Lachance v. White, 174 F.3d 1378, 1380-81 (Fed. Cir. 1999), cert. denied, 528 U.S. 1153 (2000). 5 Contributing factor means any disclosure that affects an agency’s decision to threaten, propose, take, or not take a personnel action with respect to the individual making the disclosure. 5 C.F.R. § 1209.4(c) (2015). 6 The statute defines “personnel action” as an appointment; a promotion; an action under 5 U.S.C. chapter 75 or other disciplinary or corrective action; a detail, transfer, or reassignment; a reinstatement; a restoration; a reemployment; a performance evaluation under 5 U.S.C. chapter 43; a decision concerning pay, benefits, or awards concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in 5 U.S.C. § 2302(a)(2)(A); a decision to Case 8:16-cv-01495-RWT Document 27-4 Filed 07/18/16 Page 4 of 16 4 Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001); Mason v. Department of Homeland Security, 116 M.S.P.R. 135, ¶ 7 (2011). The determination of whether the appellant has made a nonfrivolous allegation is based on the written record, without holding a jurisdictional hearing. Spencer v. Department of the Navy, 327 F.3d 1354, 1356 (Fed. Cir. 2003); Usharauli v. Department of Health & Human Services, 116 M.S.P.R. 383, ¶ 19 (2011). If the appellant establishes Board jurisdiction over his IRA appeal, he has the right to a hearing on the merits of his claim. See Swanson v. General Services Administration, 110 M.S.P.R. 278, 283, ¶ 6 (2008). The appellant exhausted his administrative remedies before OSC. In an IRA appeal, the Board may only review those disclosures and personnel actions that an appellant raised before OSC. Ellison v. Merit Systems Protection Board, 7 F.3d 1031, 1037 (Fed. Cir. 1993); Baldwin v. Department of Veterans Affairs, 113 M.S.P.R. 469 (2010); Swanson, 110 M.S.P.R. at 283, ¶ 7; and Lewis v. Department of the Army, 58 M.S.P.R. 325, 332 (1993). Here, the appellant submitted a copy of the correspondence he received from OSC. OSC’s letter, dated May 4, 2015, reviewed the appellant claims and notified the appellant that it appeared OSC lacked jurisdiction over his claims, consequently it declined to conduct an investigation: We understand you disclosed that JMD financial staff and Tilton Bernstein Management (TBM), a property management company located in Washington, DC, improperly participated in a prohibited “Game of Rights” for approximately 22 weeks. You alleged that in doing so they inappropriately took the following rights from you including your DOJ employment, freedom from harassment, and privacy rights, all to the detriment of your mental health and physical well-being. . . . . Regarding your first disclosure, you stated that since September 2014 you have made several noise complaints to the local order psychiatric testing or examination; and any other significant change in duties, responsibilities, or working conditions. 5 U.S.C. § 2302(a)(2)(A). Case 8:16-cv-01495-RWT Document 27-4 Filed 07/18/16 Page 5 of 16 5 authorities and the board of directors of your condominium complex, and while the parties attempted to reach a reasonable solution about the banging noises and music disturbing you, no solution has been reached. You also disclosed that while you were at home in your condominium, an unknown group chemically sprayed and implanted you with earpieces and other surveillance devices on your body, which violated your right to privacy and left you feeling incapacitated and unsafe at home. You stated that JMD employees in a higher pay grade live at this property, which makes complaining to the local authorities unfair. Regarding the above, your disclosures concerned activities that did not involve a federal agency. Rather they concerned actions that occurred at your home. As a result, OSC does not have jurisdiction over the above-described matter. Therefore, we cannot take any further action concerning these disclosures. AF Tab 1. The OSC letter also recounts the appellant’s claim that he was drugged while working late at work one night and that JMD placed a camera in his office because they thought he had stolen from a “military financial fund” managed by JMD. OSC again declined to take action, indicating that allegations of criminal activity are “more appropriately directed to local law enforcement authorities.” Id. Thus, there was evidence that the appellant had presented his claims to OSC and exhausted that avenue of relief. The appellant bears the burden of proof on jurisdiction. Under the provisions of the Whistleblower Protection Act of 1989 (WPA) and the Whistleblower Protection Enhancement Act of 2012 (WPEA), an employee who believes he was subject to retaliation because of a protected whistleblowing disclosure may seek corrective action through an IRA appeal with the Board. See 5 U.S.C. § 1221(a); 5 C.F.R. § 1209.2(b)(1) (2015). As noted above, the appellant bears the burden of proof on the issue of jurisdiction. 5 C.F.R. § 1201.56(2)(i) (2014). Further, as described above, the appellant’s claims were not otherwise appealable actions. Regarding the jurisdictional element of whether the appellant has made a nonfrivolous allegation that he engaged in whistleblowing activity by making a Case 8:16-cv-01495-RWT Document 27-4 Filed 07/18/16 Page 6 of 16 6 protected disclosure, the appellant is not required to prove the substance of his protected disclosures but, rather, he is required merely to make a nonfrivolous allegation that at least one of his disclosures was protected under 5 U.S.C. § 2302(b)(8).7 See Grubb v. Department of the Interior, 96 M.S.P.R. 377, ¶ 11 (2004); Greenspan v. Department of Veterans Affairs, 94 M.S.P.R. 247, ¶¶ 9-10 (2003). To establish Board jurisdiction over the IRA appeal, the appellant must also nonfrivolously allege that his whistleblowing activity was a contributing factor in the agency’s decision to take or fail to take a personnel action. See 5 U.S.C. § 2302(a)(2)(A)(iv) (2014). To satisfy the contributing factor jurisdictional criterion, the appellant need only raise a nonfrivolous allegation that the fact of, or content of, protected disclosures was one factor that tended to affect the personnel action in any way. See Perkins v. Department of Veterans Affairs, 98 M.S.P.R. 250, ¶ 19 (2005). In this IRA appeal, the appellant asserted that is disclosures of participation in the “game of rights” contributed to loss of his employment. He further asserted that the agency placed him under surveillance (with a camera) and accused him of theft. See AF Tab 1 (OSC letter of May 4, 2015). The appellant may demonstrate that a disclosure was a contributing factor in a personnel action through circumstantial evidence, including, but not limited to, evidence that the official taking the personnel action knew of the disclosure and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action. 5 U.S.C. § 1221(e)(1); Easterbrook v. Department of Justice, 85 M.S.P.R. 60, ¶ 7 (2000). With regard to the knowledge prong of the 7 Under 5 U.S.C. § 2302(b)(8), a protected disclosure is a disclosure of information which the employee reasonably believes evidences any violation of the law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety. See Grubb, 96 M.S.P.R. 377, ¶ 11; see also DiGiorgio v. Department of the Navy, 84 M.S.P.R. 6, ¶ 11 (1999). Case 8:16-cv-01495-RWT Document 27-4 Filed 07/18/16 Page 7 of 16 7 knowledge/timing test, the appellant may establish, for jurisdictional purposes, that a disclosure was a contributing factor in a personnel action by nonfrivolously alleging that the official taking the personnel action had constructive knowledge of the disclosure; constructive knowledge may be established by demonstrating that an individual with actual knowledge of the disclosure influenced the official(s) accused of taking the retaliatory action. See Marchese v. Department of the Navy, 65 M.S.P.R. 104, 108 (1994). Regarding the timing prong of the knowledge/timing test, the relevant inquiry is the time between when the agency official taking the action had actual or constructive knowledge of the disclosure-not necessarily the date of the disclosure itself-and the time that the action was taken. See Caddell v. Department of Justice, 57 M.S.P.R. 508, 514 (1993). The appellant has failed to make a nonfrivolous allegation of fact that she made a protected disclosure or that it contributed to her termination. As noted above, the appellant presented general allegations of disclosures and loss of employment. The WPEA (effective December 27, 2012), removed the principle that a disclosure cannot be made within the scope of one’s own duties: (f)(1) A disclosure shall not be excluded from subsection (b)(8) because- (A) the disclosure was made to a person, including a supervisor, who participated in an activity that the employee or applicant reasonably believed to be covered by subsection (b)(8)(A)(ii). 5 U.S.C. § 2302(f)(1). In this appeal, the appellant’s “disclosure” remains unclear in terms of both its timing and its recipient. Moreover, there is no information about who might have had knowledge of the disclosure or how the knowledge influenced a decision regarding the appellant’s employment. Nevertheless, for the Board to have jurisdiction over an IRA appeal, an appellant need not prove that he disclosed actual violations of law, rule, or regulation, gross mismanagement, gross waste of funds, abuse of authority, or a Case 8:16-cv-01495-RWT Document 27-4 Filed 07/18/16 Page 8 of 16 8 substantial and specific danger to public health or safety. He must show only that the allegations he disclosed were such that a reasonable person in his position would believe they evidenced one of the situations covered by 5 U.S.C. § 2302(b)(8). See Pashun v. Department of the Treasury, 74 M.S.P.R. 374, 380- 81 (1997). To ensure that the appellant had complete information about his jurisdictional burden, I issued an Order on Jurisdiction and Proof Requirements. AF Tab 6. The Order reviewed the elements of proof required to establish the Board’s jurisdiction over an IRA appeal. It directed the appellant to submit detailed factual allegations that described his disclosure, the dates of the disclosure, the reasonableness of his belief in the truth of the disclosure, along with specific descriptions about the action that the agency took or failed to take related to his employment. Id. The appellant did not respond to the Order on Jurisdiction. The agency responded to the Order on Jurisdiction. AF Tab 9. It asserted that the appellant had failed to present nonfrivolous allegations of fact sufficient to establish the Board’s jurisdiction over his IRA appeal. It pointed out that the letter from OSC, which rejected the appellant’s claims of whistleblowing, demonstrated that the appellant could not establish the necessary elements to show jurisdiction. Id. It urged that the appeal be dismissed. The appellant did not respond to the agency’s jurisdictional submission. Based on the record as submitted, I find that the appellant has failed to make a nonfrivolous factual allegation of a disclosure sufficient to establish jurisdiction. He has not revealed what federal government activities his disclosures addressed, nor has he specified when he made the disclosure(s). His vague claims fail to meet the requirement of alleging “violations of law, rule, or regulation, gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety.” Further, I find that, the appellant has failed to present factual allegations of knowledge on the part of Case 8:16-cv-01495-RWT Document 27-4 Filed 07/18/16 Page 9 of 16 9 any supervisor or manager who might have taken a personnel action. Nor is there evidence, or even an allegation, of knowledge of his disclosure by anyone. Accordingly, I find that the appellant has failed to establish the “knowledge” prong of the knowledge/timing test. The timing branch of the knowledge/timing test requires a showing that the protected disclosure was made sufficiently close in time that a reasonable person could conclude that the whistleblowing was a contributing factor to the personnel action. See Gonzalez v. Department of Transportation, 109 M.S.P.R. 250, ¶ 20 (2008) (a period of more than 1 year can satisfy the knowledge/timing test). Here, the timing of the appellant’s disclosure is completely unknown. The appellant has failed to allege sufficient facts to determine whether the unspecified personnel action preceded or followed his alleged disclosure. Consequently, I find that the appellant has failed to allege facts to show prior knowledge by any supervisor or manager sufficient to draw an inference that a disclosure contributed to the “loss of his employment rights.” The appeal is not subject to the Board’s jurisdiction. Based on my review of the appellant’s allegations, I find that while he exhausted his administrative remedies before OSC, he has failed to raise a nonfrivolous allegation sufficient to establish jurisdiction. Accordingly, the IRA appeal must be dismissed for lack of jurisdiction. See Garrison v. Department of Defense, 101 M.S.P.R. 229, 236 (2006); Powers v. Department of the Navy, 69 M.S.P.R 150, 155 (1995). DECISION The request for corrective action is DISMISSED for lack of jurisdiction. FOR THE BOARD: ______/S/________________________ David A. Thayer Administrative Judge Case 8:16-cv-01495-RWT Document 27-4 Filed 07/18/16 Page 10 of 16 10 NOTICE TO APPELLANT This initial decision will become final on October 21, 2015, unless a petition for review is filed by that date. This is an important date because it is usually the last day on which you can file a petition for review with the Board. However, if you prove that you received this initial decision more than 5 days after the date of issuance, you may file a petition for review within 30 days after the date you actually receive the initial decision. If you are represented, the 30- day period begins to run upon either your receipt of the initial decision or its receipt by your representative, whichever comes first. You must establish the date on which you or your representative received it. The date on which the initial decision becomes final also controls when you can file a petition for review with the Court of Appeals. The paragraphs that follow tell you how and when to file with the Board or the federal court. These instructions are important because if you wish to file a petition, you must file it within the proper time period. BOARD REVIEW You may request Board review of this initial decision by filing a petition for review. If the other party has already filed a timely petition for review, you may file a cross petition for review. Your petition or cross petition for review must state your objections to the initial decision, supported by references to applicable laws, regulations, and the record. You must file it with: The Clerk of the Board Merit Systems Protection Board 1615 M Street, NW. Washington, DC 20419 A petition or cross petition for review may be filed by mail, facsimile (fax), personal or commercial delivery, or electronic filing. A petition submitted by electronic filing must comply with the requirements of 5 C.F.R. § 1201.14, and Case 8:16-cv-01495-RWT Document 27-4 Filed 07/18/16 Page 11 of 16 11 may only be accomplished at the Board's e-Appeal website (https://e-appeal.mspb.gov). Criteria for Granting a Petition or Cross Petition for Review Pursuant to 5 C.F.R. § 1201.115, the Board normally will consider only issues raised in a timely filed petition or cross petition for review. Situations in which the Board may grant a petition or cross petition for review include, but are not limited to, a showing that: (a) The initial decision contains erroneous findings of material fact. (1) Any alleged factual error must be material, meaning of sufficient weight to warrant an outcome different from that of the initial decision. (2) A petitioner who alleges that the judge made erroneous findings of material fact must explain why the challenged factual determination is incorrect and identify specific evidence in the record that demonstrates the error. In reviewing a claim of an erroneous finding of fact, the Board will give deference to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing. (b) 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 petitioner must explain how the error affected the outcome of the case. (c) The 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. (d) New and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. To constitute new evidence, the information contained in the documents, not just the documents themselves, must have been unavailable despite due diligence when the record closed. Case 8:16-cv-01495-RWT Document 27-4 Filed 07/18/16 Page 12 of 16 12 As stated in 5 C.F.R. § 1201.114(h), a petition for review, a cross petition for review, or a response to a petition for review, whether computer generated, typed, or handwritten, is limited to 30 pages or 7500 words, whichever is less. A reply to a response to a petition for review is limited to 15 pages or 3750 words, whichever is less. Computer generated and typed pleadings must use no less than 12 point typeface and 1-inch margins and must be double spaced and only use one side of a page. The length limitation is exclusive of any table of contents, table of authorities, attachments, and certificate of service. A request for leave to file a pleading that exceeds the limitations prescribed in this paragraph must be received by the Clerk of the Board at least 3 days before the filing deadline. Such requests must give the reasons for a waiver as well as the desired length of the pleading and are granted only in exceptional circumstances. The page and word limits set forth above are maximum limits. Parties are not expected or required to submit pleadings of the maximum length. Typically, a well-written petition for review is between 5 and 10 pages long. If you file a petition or cross petition for review, the Board will obtain the record in your case from the administrative judge and you should not submit anything to the Board that is already part of the record. A petition for review must be filed with the Clerk of the Board no later than the date this initial decision becomes final, or if this initial decision is received by you or your representative more than 5 days after the date of issuance, 30 days after the date you or your representative actually received the initial decision, whichever was first. If you claim that you and your representative both received this decision more than 5 days after its issuance, you have the burden to prove to the Board the earlier date of receipt. You must also show that any delay in receiving the initial decision was not due to the deliberate evasion of receipt. You may meet your burden by filing evidence and argument, sworn or under penalty of perjury (see 5 C.F.R. Part 1201, Appendix 4) to support your claim. The date of filing by mail is determined by the postmark date. The date of filing by fax or by electronic Case 8:16-cv-01495-RWT Document 27-4 Filed 07/18/16 Page 13 of 16 13 filing is the date of submission. The date of filing by personal delivery is the date on which the Board receives the document. The date of filing by commercial delivery is the date the document was delivered to the commercial delivery service. Your petition may be rejected and returned to you if you fail to provide a statement of how you served your petition on the other party. See 5 C.F.R. § 1201.4(j). If the petition is filed electronically, the online process itself will serve the petition on other e-filers. See 5 C.F.R. § 1201.14(j)(1). A cross petition for review must be filed within 25 days after the date of service of the petition for review. NOTICE TO AGENCY/INTERVENOR The agency or intervenor may file a petition for review of this initial decision in accordance with the Board's regulations. NOTICE TO THE APPELLANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request review of this final decision by the United States Court of Appeals for the Federal Circuit. The court must receive your request for review no later than 60 calendar days after the date this initial decision becomes final. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27, 2012). If you choose to file, be very careful to file on time. The court has held that normally it does not have the authority to waive this statutory deadline and that filings that do not comply with the deadline must be dismissed. See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). If you want to request review of this decision concerning your claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8), (b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge the Board’s disposition of any other claims of prohibited personnel practices, you may request review of this decision only after it becomes final by filing in the United States Case 8:16-cv-01495-RWT Document 27-4 Filed 07/18/16 Page 14 of 16 14 Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. The court of appeals must receive your petition for review within 60 days after the date on which this decision becomes final. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose to file, be very careful to file on time. You may choose to request review of the Board’s decision in the United States Court of Appeals for the Federal Circuit or any other court of appeals of competent jurisdiction, but not both. Once you choose to seek review in one court of appeals, you may be precluded from seeking review in any other court. If you need further information about your right to appeal this decision to court, you should refer to the federal law that gives you this right. It is found in Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27, 2012). You may read this law as well as other sections of the United States Code, at our website, http://www.mspb.gov/appeals/uscode/htm. Additional information about the United States 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, and 11. Additional information about other courts of appeals can be found at their respective websites, which can be accessed through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. If you are interested in securing pro bono representation for your court appeal, that is, representation at no cost to you, the Federal Circuit Bar Association may be able to assist you in finding an attorney. To find out more, please click on this link or paste it into the address bar on your browser: http://www.fedcirbar.org/olc/pub/LVFC/cpages/misc/govt_bono.jsp Case 8:16-cv-01495-RWT Document 27-4 Filed 07/18/16 Page 15 of 16 15 The Merit Systems Protection Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Case 8:16-cv-01495-RWT Document 27-4 Filed 07/18/16 Page 16 of 16 EXHIBIT D Case 8:16-cv-01495-RWT Document 27-5 Filed 07/18/16 Page 1 of 3 NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit __________________________ STEVEN T. CORBIN, Petitioner v. DEPARTMENT OF JUSTICE, Respondent __________________________ 16-1460 __________________________ Petition for review of the Merit Systems Protection Board in case no. DC-3330-15-1024-I-1 __________________________ O R D E R The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52 (a) (1), and to file the required Statement Concerning Discrimination, and to file the brief required by Federal Circuit Rule 31 (a) within the time permitted, it is ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. Case: 16-1460 Document: 13 Page: 1 Filed: 04/12/2016 Case 8:16-cv-01495-RWT Document 27-5 Filed 07/18/16 Page 2 of 3 CORBIN V. DOJ 2 FOR THE COURT April 12, 2016 /s/ Daniel E. O'Toole Daniel E. O'Toole Clerk of Court cc: Clerk's Office, Merit Systems Protection Board Steven T. Corbin Ida Nassar ISSUED AS A MANDATE: April 12, 2016 Case: 16-1460 Document: 13 Page: 2 Filed: 04/12/2016 Case 8:16-cv-01495-RWT Document 27-5 Filed 07/18/16 Page 3 of 3 EXHIBIT E Case 8:16-cv-01495-RWT Document 27-6 Filed 07/18/16 Page 1 of 9 UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT NOTICE OF ENTRY OF JUDGMENT ACCOMPANIED BY OPINION OPINION FILED AND JUDGMENT ENTERED: 06/09/2016 The attached opinion announcing the judgment of the court in your case was filed and judgment was entered on the date indicated above. The mandate will be issued in due course. Information is also provided about petitions for rehearing and suggestions for rehearing en banc. The questions and answers are those frequently asked and answered by the Clerk's Office. No costs were taxed in this appeal. Regarding exhibits and visual aids: Your attention is directed Fed. R. App. P. 34(g) which states that the clerk may destroy or dispose of the exhibits if counsel does not reclaim them within a reasonable time after the clerk gives notice to remove them. (The clerk deems a reasonable time to be 15 days from the date the final mandate is issued.) FOR THE COURT /s/ Peter R. Marksteiner Peter R. Marksteiner Clerk of Court cc: Steven T. Corbin Ida Nassar 16-1193 - Corbin v. DOJ Merit Systems Protection Board, Case No. DC-4324-15-1023-I-1 Case: 16-1193 Document: 32-1 Page: 1 Filed: 06/09/2016 (1 of 8) Case 8:16-cv-01495-RWT Document 27-6 Filed 07/18/16 Page 2 of 9 NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ STEVEN T. CORBIN, Petitioner v. DEPARTMENT OF JUSTICE, Respondent ______________________ 2016-1193 ______________________ Petition for review of the Merit Systems Protection Board in No. DC-4324-15-1023-I-1. ______________________ Decided: June 9, 2016 ______________________ STEVEN T. CORBIN, Bethesda, MD, pro se. IDA NASSAR, Commercial Litigation Branch, Civil Di- vision, United States Department of Justice, Washington, DC, for respondent. Also represented by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., REGINALD T. BLADES, JR., MELANIE RUSSELL. ______________________ Before MOORE, SCHALL, and O’MALLEY, Circuit Judges. Case: 16-1193 Document: 32-2 Page: 1 Filed: 06/09/2016 (2 of 8) Case 8:16-cv-01495-RWT Document 27-6 Filed 07/18/16 Page 3 of 9 CORBIN v. DOJ 2 PER CURIAM. DECISION Steven T. Corbin petitions for review of the final decision of the Merit Systems Protection Board (“Board”) that denied his request for corrective action following his resignation from the Department of Justice (“DOJ” or “agency”). Corbin v. Dep’t of Justice, No. DC-4324-15- 1023-I-1 (M.S.P.B. Oct 27, 2015) (“Final Decision”). We affirm. DISCUSSION I. On July 27, 2015, Mr. Corbin filed an appeal with the Board alleging that DOJ had discriminated against him on account of his prior military service and had forced him to resign from his position as an accountant (GS-13) in the Justice Management Division (“JMD”), in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. § 4301 et seq. Specifically, Mr. Corbin asserted that he had been ac- cused of theft and that, because of extreme duress put upon him, he was forced to resign on January 6, 2015.1 On October 14, 2015, at Mr. Corbin’s request, the administrative judge (“AJ”) to whom the appeal was assigned held a telephonic hearing. At the hearing, Mr. Corbin testified that his resignation came after Christopher C. Alvarez, Deputy Director of the Finance Staff, JMD, his third-level supervisor, accused him of stealing “military money.” Final Decision at 3-4. 1 Although Mr. Corbin contends that he separated from DOJ on January 6, 2015, the record suggests he remained at DOJ until January 20, 2015, the date he informed his supervisor that he was leaving his position “effective immediately.” See Final Decision at 2-3, 5. Case: 16-1193 Document: 32-2 Page: 2 Filed: 06/09/2016 (3 of 8) Case 8:16-cv-01495-RWT Document 27-6 Filed 07/18/16 Page 4 of 9 CORBIN v. DOJ 3 Mr. Corbin stated that he was questioned “all night” about the matter and that the agency installed a camera above his desk to watch his activities. Id. at 3. Mr. Corbin further testified that, two weeks after his resigna- tion, he tried to get his job back but was denied entry to the building. Id. Mr. Alvarez testified that he never accused Mr. Corbin of theft or of stealing from a “military fund” or any other fund. Id. at 4. In fact, Mr. Alvarez stated, he was not aware of the existence of any “military fund” administered by the Finance Staff. See id. Mr. Alvarez also testified that he was not aware of any camera being placed in Mr. Corbin’s office, that he had no involvement in Mr. Corbin’s resignation, and that, before the instant appeal, he was not aware of any report by Mr. Corbin that he was being treated improperly. Id. Mr. Alvarez stated that it was normal protocol to deny access to anyone who resigned from DOJ and was no longer an employee. Id. The AJ also received the testimony of Letitia Bing, Assistant Director for JMD’s Financial Operations Ser- vices Group. Id. Ms. Bing was Mr. Corbin’s second-level supervisor. See id. On January 20, 2015, after learning that Mr. Corbin intended to leave DOJ, she went to his office, spoke to him, and tried to convince him to stay. Id. at 5. Ms. Bing testified that she also spoke to Mr. Corbin later in the day. She stated that she told him he was a good employee and, again, tried to convince him not to resign. Id. Ms. Bing stated that she told Mr. Corbin he could take leave for a couple of weeks if he wanted, but that he just packed up his things and left. Id. Hoping that Mr. Corbin might change his mind, Ms. Bing did not immediately process his resignation. About a week later, however, a JMD employee who had been in contact with Mr. Corbin on an almost daily basis told Ms. Bing that Mr. Corbin wanted his resignation to stand; as a result, she processed it. Id. The last contact Ms. Bing had with Mr. Corbin was on April 1, 2015, when, at his request, she Case: 16-1193 Document: 32-2 Page: 3 Filed: 06/09/2016 (4 of 8) Case 8:16-cv-01495-RWT Document 27-6 Filed 07/18/16 Page 5 of 9 CORBIN v. DOJ 4 met him for lunch. She recounted that, at the lunch, Mr. Corbin asked how things were going at the office and whether his position had been filled, but that he did not say he wanted his job back. Id. at 6. Ms. Bing testified that Mr. Corbin had never been absent from work on account of military duty or service and that he had never told her he was treated improperly at DOJ. Ms. Bing also testified that a camera was never placed over Mr. Corbin’s desk. Id. On October 27, 2015, the AJ issued an initial decision in which he found that Mr. Corbin had failed to show that his uniformed service had played any part in his separa- tion from DOJ. The AJ stated that Mr. Corbin’s claims of being accused of theft or embezzlement were “unsupport- ed by any corroborating evidence.” Id. at 6. The AJ also stated that Mr. Corbin had failed to show that “the per- formance, application to perform, or obligation to perform duty in the uniformed service was a substantial or moti- vating factor in his resignation or any other agency ac- tion.” Id. (internal quotation marks and citation omitted). On this basis, the AJ determined that Mr. Corbin had failed to establish that DOJ had violated his USERRA rights. Id. The AJ’s initial decision became the final decision of the Board on December 1, 2015, after Mr. Corbin failed to petition the Board for review. See 5 C.F.R. § 1201.113(a). This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). II. Our scope of review in an appeal from a decision of the Board is limited. We must affirm the Board’s decision unless we find it to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c); Kewley v. Dep’t Case: 16-1193 Document: 32-2 Page: 4 Filed: 06/09/2016 (5 of 8) Case 8:16-cv-01495-RWT Document 27-6 Filed 07/18/16 Page 6 of 9 CORBIN v. DOJ 5 of Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998). III. An employee making a USERRA discrimination claim bears the initial burden of establishing, by a preponder- ance of the evidence, that his military service was a “substantial or motivating factor” in the adverse employ- ment action taken against him. Sheehan v. Dep’t of the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001). In rejecting Mr. Corbin’s claim of mistreatment and discrimination, the AJ relied on the testimony of Mr. Alvarez and Ms. Bing. In other words, the AJ weighed the evidence before him and made credibility determinations regarding the evidence presented and the testimony of the witness- es, crediting the testimony of Mr. Alvarez and Ms. Bing over that of Mr. Corbin. Such credibility determinations are “virtually unreviewable.” Parkinson v. Dep't of Jus- tice, 815 F.3d 757, 764 (Fed. Cir. 2016). Mr. Corbin, moreover, has presented us with no reason why we should disturb those determinations. The testimony of Mr. Alvarez and Ms. Bing clearly refutes Mr. Corbin’s claim of discrimination and mistreatment by the agency. Thus, Mr. Corbin has failed to demonstrate error in the Final Decision. IV. For the foregoing reasons, the final decision of the Board is affirmed. AFFIRMED No costs. Case: 16-1193 Document: 32-2 Page: 5 Filed: 06/09/2016 (6 of 8) Case 8:16-cv-01495-RWT Document 27-6 Filed 07/18/16 Page 7 of 9 UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT Questions and Answers Petitions for Panel Rehearing (Fed. Cir. R. 40) and Petitions for Hearing or Rehearing En Bane (Fed. Cir. R. 35) Q. When is a petition for panel rehearing appropriate? A. Petitions for panel rehearing are rarely considered meritorious. Consequently, it is easiest to first answer when a petition for panel rehearing is not appropriate. A petition for panel rehearing should not be used to reargue issues already briefed and orally argued. If a party failed to persuade the court on an issue in the first instance, they do not get a second chance. This is especially so when the court has entered a judgment of affirmance without opinion under Fed. Cir. R. 36, as a disposition of this nature is used only when the appellanVpetitioner has utterly failed to raise any issues in the appeal that require an opinion to be written in support of the court's judgment of affirmance. Thus, as a usual prerequisite, the court must have filed an opinion in support of its judgment for a petition for panel rehearing to be appropriate. Counsel seeking panel rehearing must be able to identify in the court's opinion a material error of fact or law, the correction of which would require a different judgment on appeal. Q. When is a petition for rehearing en bane appropriate? A. En bane decisions are extraordinary occurrences. To properly answer the question, one must first understand the responsibility of a three-judge merits panel of the court. The panel is charged with deciding individual appeals according to the law of the circuit as established in the court's precedential opinions. While each merits panel is . empowered to enter precedential opinions, the ultimate duty of the court en bane is to set forth the law of the Federal Circuit, which merits panels are obliged to follow. Thus, as a usual prerequisite, a merits panel of the court must have entered a precedential opinion in support of its judgment for a petition for rehearing en bane to be appropriate. In addition, the party seeking rehearing en bane must show that either the merits panel has failed to follow decisions of the Supreme Court of the United States or Federal Circuit precedential opinions. or that the merits panel has followed circuit precedent, which the party seeks to have overruled by the court en bane. Q. How frequently are petitions for panel rehearing granted by merits panels or petitions for rehearing en bane granted by the court? A. The data regarding petitions for panel rehearing since 1982 shows that merits panels granted some relief in only three percent of the petitions filed. The relief granted usually involved only minor corrections of factual misstatements, rarely resulting in a change of outcome in the decision. En bane petitions have been granted less frequently. Historically, the court has initiated en bane review in a few of the appeals decided en bane since 1982. Q. Is it necessary to have filed either of these petitions before filing a petition for certiorari in the U.S. Supreme Court? A. No. All that is needed is a final judgment of the Court of Appeals. Case: 16-1193 Document: 32-3 Page: 1 Filed: 06/09/2016 (7 of 8) Case 8:16-cv-01495-RWT Document 27-6 Filed 07/18/16 Page 8 of 9 UNITED STATES COURT OJ' APPEALS FOR THE FEDERAL CmCillT INFORMATION SHEET FILING A PETITION FOR A WRIT OF CERTIORARI There is no automatic right of appeal to the Supreme Court of the United States from judgments of the Federal Circuit. You must file a petition for a writ of certiorari which the Supreme Court will grant only when there are compelling reasons. (See Rule 10 of the Rules of the Supreme Court of the United States, hereinafter called Rules.) Time. The petition must be filed in the Supreme Court of the United States within 90 days of the entry ofjudgment in this Court or within 90 days of the denial ofa timely petition for rehearing. The judgment is entered on the day the Federal Circuit issues a final decision in your case. [The time does not run from the issuance of the mandate, which has no effect on the right to petition.] (See Rule 13 of the Rules.) Fees. Either the $300 docketing fee or a motion for leave to proceed in forma pauperis with an affidavit in support thereof must accompany the petition. (See Rules 38 and 39.) Authorized Filer. The petition must be filed by a member of the bar of the Supreme Court of the United States or by the petitioner representing himself or herself. Format of a Petition. The Rules are very specific about the order of the required information and should be consulted before you start drafting your petition. (See Rule 14.) Rules 33 and 34 should be consulted regarding type size and font, paper size, paper weight, margins, page limits, cover, etc. Number of Copies. Forty copies of a petition must be filed unless the petitioner is proceeding in forma pauperis, in which case an original and ten copies of the petition for writ of certiorari and of the motion for leave to proceed in forma pauperis. (See Rule 12.) Where to File. You must file your documents at the Supreme Court. Clerk Supreme Court of the United States 1 First Street, NE Wasbington, DC 20543 (202) 479-3000 No documents are filed at the Federal Circuit and the Federal Circuit provides no information to the Supreme Court unless the Supreme Court asks for the information. Access to the Rules. The current rules can be found in Title 28 of the United States Code Annotated and other legal publications available in many public libraries. Revised December J6, 1999 Case: 16-1193 Document: 32-4 Page: 1 Filed: 06/09/2016 (8 of 8) Case 8:16-cv-01495-RWT Document 27-6 Filed 07/18/16 Page 9 of 9