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1,100 | https://www.mspb.gov/decisions/nonprecedential/Honse_Michelle_C_SF-1221-20-0294-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHELLE C. HONSE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-1221-20-0294-W-1
DATE: July 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michelle C. Honse , Anaheim, California, pro se.
Thomas Davis , Esquire, Los Angeles, California, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication
of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal as untimely filed.
Generally, we grant petitions such as this one only in the following
1A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
Under 5 U.S.C. § 1214(a)(3)(A), an appellant may file an IRA appeal with
the Board once the Office of Special Counsel (OSC) closes its investigation into
her complaint and no more than 60 days have elapsed since notification of the
closure was provided to her. Heimberger v. Department of Commerce ,
121 M.S.P.R. 10, ¶ 6 (2014). Under the Board’s regulations implementing that
statutory time limit, an IRA appeal must be filed no later than 65 days after the
date that OSC issues its close-out letter, or, if the letter is received more than
5 days after its issuance, within 60 days of the date of receipt. Id.
The appellant received OSC’s close-out letter on December 9, 2019, and
she did not file a Board appeal until February 28, 2020. Initial Appeal File (IAF),
Tab 1 at 1, 20-21. As the administrative judge found, her appeal was thus filed
81 days after OSC’s close-out letter, and beyond the deadline to timely file an
appeal. IAF, Tab 23, Initial Decision (ID) at 7-8. Without providing any
supporting arguments or evidence, the appellant on review alleges that she had2
2 years to contact OSC after being subject to a disciplinary action, and that
therefore the administrative judge erred in not adjudicating her IRA appeal.
Petition for Review (PFR) File, Tab 1 at 4-5. However, the statutory language is
clear that a Board appeal must be filed “no more than 60 days” after an appellant
receives OSC’s close-out letter. 5 U.S.C. § 1214(a)(3)(A)(ii). Indeed, OSC’s
close-out letter here clearly gave the appellant notice of the time limit to file an
IRA appeal. IAF, Tab 6 at 4. Accordingly, we agree with the administrative
judge that the appellant’s IRA appeal was untimely.
Notwithstanding the implementing provisions of 5 C.F.R. § 1209.5(a), the
filing period for an IRA appeal is statutory, not regulatory. Heimberger,
121 M.S.P.R. 10, ¶ 9. As such, the statutory time limit for filing an IRA appeal
cannot be waived for good cause shown because there is no statutory mechanism
for doing so. Id. However, the filing deadline might be subject to equitable
tolling, under which the filing period is suspended for equitable reasons, such as
when the complainant has been induced or tricked by her adversary’s misconduct
into allowing the deadline to pass. Id., ¶ 10. Equitable tolling is a rare remedy
that is to be applied in unusual circumstances and generally requires a showing
that the litigant has been pursuing her rights diligently and some extraordinary
circumstances stood in her way. Id.
The appellant’s arguments on review do not provide a basis for disturbing
the administrative judge’s finding that there is no basis to toll the deadline for
filing the appeal. In her petition for review, the appellant asserts that she is
“[s]ocioeconomically disadvantaged,” does not “have access to Wi-Fi,” and
“could not mail anything in because the [Board] was not receiving anything by
mail” due to the Covid-19 pandemic. PFR File, Tab 1 at 4. The administrative
judge found that the appeal here pre-dated the shelter-in-place orders that limited
her access to the Board’s e -Appeal system and other resources. ID at 7. We
agree. Regardless of any subsequent difficulties in accessing the Board’s
e-appeal system or mailing options, the appellant has not demonstrated any3
extraordinary circumstances that hindered her ability to file a timely appeal. See
Brown v. U.S. Postal Service , 110 M.S.P.R. 381, ¶¶ 6, 12 (2009) (finding
equitable tolling does not extend to “garden variety” excusable neglect, and that
an appellant’s lack of due diligence in preserving her legal rights is not a ground
for equitable tolling).
The appellant on review also requests that the Board appoint counsel to
assist her with her appeal, as she is “severely depressed” and “100% disabled
with emotional disturbances.” PFR File, Tab 1 at 4-5. The Board has procedures
under which an administrative judge may seek to arrange pro bono representation
for incompetent appellants. Brown v. Office of Personnel Management ,
94 M.S.P.R. 331, ¶ 9 (2003). However, the procedures for arranging such
representation only apply to disability retirement applications or disability
retirement annuity overpayments. Id. at ¶¶ 9-10. There is no mechanism to
arrange representation for a disabled appellant in IRA appeals.
Finally, following the close of the record on review, the appellant has filed
two motions for leave to submit new documents. PFR File, Tabs 9, 12. She
indicates that the documents concern various other claims and complaints before
a district court, the Department of Labor, the U.S. Circuit Court of Appeals for
the Ninth Circuit, and the Federal Labor Relations Authority. PFR File, Tabs 9,
12. She also makes arguments as to the merits of her appeal. PFR File, Tabs 9,
12. However, these documents and arguments appear to concern the agency’s
alleged mistreatment of the appellant, and she has not indicated how they affect
the timeliness of her initial appeal in the instant case. Accordingly, we deny her
motions. See 5 C.F.R. § 1201.114(k); see also Hooker v. Department of Veterans
Affairs, 120 M.S.P.R. 629, ¶ 3, ¶ 4 n.4 (2014) (denying an appellant’s motion to
file additional evidence after the close of the record because the appellant had not
shown that the alleged new evidence was material to the dispositive jurisdictional
issues). 4
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s7
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.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Honse_Michelle_C_SF-1221-20-0294-W-1__Final_Order.pdf | 2024-07-01 | MICHELLE C. HONSE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-1221-20-0294-W-1, July 1, 2024 | SF-1221-20-0294-W-1 | NP |
1,101 | https://www.mspb.gov/decisions/nonprecedential/McCartney_Gary_C_PH-0845-18-0378-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GARY C. MCCARTNEY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0845-18-0378-I-1
DATE: July 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Elchonon Reizes , Esquire, Robert Glazer , Esquire, and Stephen
Goldenzweig , Esquire, Houston, Texas, for the appellant.
Alison Pastor , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM)
dismissing his request for reconsideration of an overpayment determination under
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the Federal Employees’ Retirement System (FERS) as untimely . On petition for
review, the appellant repeats his argument that he was prevented from timely
submitting a request for reconsideration to OPM due to circumstances beyond his
control. Petition for Review File, Tab 3 at 8-10. He also repeats his assertion
that OPM should have provided to him a reasonable accommodation to facilitate
the reconsideration process. Id. at 10-11.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
clarify that the regulatory standard governing the timeliness of reconsideration
requests regarding the collection of an overpayment debt under FERS is set forth
at 5 C.F.R. § 845.204(b)(1), 2 we AFFIRM the initial decision.
2 The regulatory standards governing the timeliness of reconsideration requests under
the Civil Service Retirement System and FERS (including requests regarding the
collection of an overpayment debt), and the circumstances under which OPM may
extend those time limits, are essentially identical. Compare 5 C.F.R. § 831.1304(b)(1),
with 5 C.F.R. § 845.204(b)(1); compare 5 C.F.R. § 831.109(e)(1)-(2), with 5 C.F.R.
§ 841.306(d)(1)-(2). The administrative judge erroneously cited to 5 C.F.R.
§ 841.306(d)(1)-(2) in the initial decision, Initial Appeal File (IAF), Tab 57, Initial
Decision at 3, and to 5 C.F.R. § 831.1304(b)(1) in the timeliness order, IAF, Tab 13
at 1. Nevertheless, the record is clear that he gave the appellant proper notice regarding
his initial burden to demonstrate that he was eligible for an extension of time under
OPM’s regulations prior to determining whether OPM’s refusal to extend the time limit2
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
was unreasonable or an abuse of discretion. See Burgess v. Merit Systems Protection
Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985 ); Panter v. Department of the Air Force ,
22 M.S.P.R. 281, 282 (1984 ) (stating that an adjudicatory error that is not prejudicial to
a party’s substantive rights provides no basis for reversal of an initial decision).
3 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.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on4
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | McCartney_Gary_C_PH-0845-18-0378-I-1__Final_Order.pdf | 2024-07-01 | GARY C. MCCARTNEY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0845-18-0378-I-1, July 1, 2024 | PH-0845-18-0378-I-1 | NP |
1,102 | https://www.mspb.gov/decisions/nonprecedential/Lister_Tracey_V_CH-315H-20-0412-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRACEY V. LISTER,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
CH-315H-20-0412-I-1
DATE: July 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tracey V. Lister , Bellwood, Illinois, pro se.
Deborah L. Lisy , Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation . Maddox v. Merit Systems
Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). To establish the Board’s
jurisdiction over a disciplinary removal action, a Postal Service employee must
show that (1) she was a preference eligible, a management or supervisory
employee, or an employee engaged in personnel work in other than a purely
nonconfidential clerical capacity; and (2) she completed 1 year of current
continuous service in the same or a similar position. Herbert v. U.S. Postal
Service, 86 M.S.P.R. 80, ¶ 8 (2000); see 39 U.S.C. § 1005(a)(4)(A)(i); 5 U.S.C.
§ 7511(a)(1)(B)(ii). It is undisputed that the appellant does not satisfy these
criteria. Furthermore, as a Postal Service employee, the appellant occupied an
excepted service position, and therefore does not have a right to appeal her
probationary termination under 5 C.F.R. § 315.806, which applies only to the
competitive service. See Herbert, 86 M.S.P.R. 80, ¶ 12; Shobe v. U.S. Postal
Service, 5 M.S.P.R. 466, 469-70 (1981); see also 5 U.S.C. § 2105(e); 5 C.F.R.
§ 210.101(b). Accordingly, we affirm the administrative judge’s conclusion that
the Board lacks jurisdiction over this appeal. 2
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
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.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Lister_Tracey_V_CH-315H-20-0412-I-1__Final_Order.pdf | 2024-07-01 | TRACEY V. LISTER v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-315H-20-0412-I-1, July 1, 2024 | CH-315H-20-0412-I-1 | NP |
1,103 | https://www.mspb.gov/decisions/nonprecedential/Dphrepaulezz_KareemSF-0432-19-0137-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KAREEM DPHREPAULEZZ,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
SF-0432-19-0137-I-1
DATE: June 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kareem Dphrepaulezz , Ontario, California, pro se.
Lauren Marini , Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his chapter 43 performance-based demotion. For the reasons set forth
below, the appellant’s petition for review is DISMISSED as untimely filed
without good cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
On November 25, 2018, the agency effected the appellant’s chapter 43
performance-based demotion from his position of Supervisory Paralegal,
GS-0950-13, Step 3, to Claims Specialist, GS -0105-11, Step 10. Initial Appeal
File (IAF), Tab 10 at 117-22. The appellant filed a timely appeal, challenging the
merits of his demotion. IAF, Tab 1. He further alleged that, in demoting him, the
agency discriminated against him based on his race, retaliated against him for
filing an equal employment opportunity complaint and for whistleblowing,
committed harmful procedural error, and violated his due process rights. IAF,
Tab 1, Tab 30, Tab 47, Initial Decision (ID) at 25.
On July 12, 2019, the administrative judge issued an initial decision
affirming the agency’s demotion action and finding that the appellant did not
prove his affirmative defenses. ID at 1, 34, 36-37, 41. Therein, the
administrative judge notified the appellant that the initial decision would become
final on August 16, 2019, unless he filed a petition for review with the Board by
that date. ID at 42.
On September 14, 2019, the appellant filed a petition for review, alleging
that he had new and material evidence proving his race discrimination affirmative
defense. Petition for Review (PFR) File, Tab 1 at 4-5. He also filed a motion
requesting that the Board accept his petition as timely and/or waive the time limit
for good cause based on this evidence. PFR File, Tab 3. The agency has filed a
response to the appellant’s petition for review and motion, to which the appellant
has replied. PFR File, Tabs 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s petition for review is untimely by nearly 1 month.
A petition for review must be filed within 35 days after the initial decision
was issued, or, if the petitioner shows he received the initial decision more than
5 days after its date of issuance, within 30 days of his receipt of the initial2
decision. 5 C.F.R. § 1201.114(e). The appellant stated that he received the initial
decision on July 16, 2019, not more than 5 days after its July 12, 2019 issuance.2
PFR File, Tab 3 at 4. Thus, he had 35 days from the issuance date, or until
August 16, 2019, to file his petition for review. ID at 1, 42; see 5 C.F.R.
§ 1201.114(e). Because he did not file until September 14, 2019, his petition for
review is untimely by nearly 1 month. PFR File, Tab 1.
The appellant has not shown good cause to waive the time limit.
On review, the appellant requests that the Board reopen his appeal and
argues that any untimeliness should be excused because he received new,
dispositive evidence after the filing deadline. PFR File, Tab 1 at 4-5, Tab 3
at 4-5, Tab 5 at 5. The evidence is a letter, dated August 30, 2019, from the
agency’s Office of Labor-Management and Employee Relations (OLMER),
advising him that, after an internal administrative investigation, it had
substantiated claims he raised against the proposing official in an October 25,
2018 harassment complaint, and that it would take corrective action. PFR File,
Tab 1 at 7 (OLMER letter), Tab 4 at 14; IAF, Tab 10 at 215-30. He asserts that,
given this letter, the Board must find that the agency discriminated against him
based on his race in demoting him. PFR File, Tab 1 at 4-5. He avers that the
agency mailed the OLMER letter to his prior duty station and electronically to his
agency email address, but that he only received the latter copy. PFR File, Tab 3
at 4. He contends that he did not receive the hardcopy because he was no longer
at his prior duty station and that he was delayed in receiving the electronic
version because he was receiving treatment for an illness from August 28 to
August 30, 2019, and was out of state “caring for family members with medical
issues until September 11, 2019.” PFR File, Tab 3 at 4-5. He alleges that he
2 Generally, an e-filer, such as the appellant, is presumed to have received the initial
decision on its date of its issuance. IAF, Tab 1 at 2; see Lima v. Department of the Air
Force, 101 M.S.P.R. 64, ¶ 5 (2006); 5 C.F.R. § 1201.14(m)(2) (2019).3
acted diligently by filing his petition for review within 4 days of receiving the
OLMER letter. PFR File, Tab 3 at 4-5.
When a party requests that the Board reopen an initial decision that became
final after neither party filed a timely petition for review, as is the case here, the
Board treats the request as an untimely filed petition for review. Dunn v.
Department of the Army , 100 M.S.P.R. 89, ¶ 5 (2005). The Board will waive its
filing deadline only upon a showing of good cause for the delay. Gaetos v.
Department of Veterans Affairs , 121 M.S.P.R. 201, ¶ 5 (2014); 5 C.F.R.
§ 1201.114(g). To establish good cause for the untimely filing of an appeal, a
party must show that he exercised due diligence or ordinary prudence under the
particular circumstances of the case. Alonzo v. Department of the Air Force ,
4 M.S.P.R. 180, 184 (1980). To determine whether an appellant has shown good
cause for the untimely filing of a petition for review, the Board will consider the
length of the delay, the reasonableness of his excuse and his showing of due
diligence, whether he is proceeding pro se, and whether he has presented evidence
of the existence of circumstances beyond his control that affected his ability to
comply with the time limits or of unavoidable casualty or misfortune that
similarly shows a causal relationship to his inability to timely file his petition.
Moorman v. Department of the Army , 68 M.S.P.R. 60, 62–63 (1995), aff’d,
79 F.3d 1167 (Fed. Cir. 1996) (Table). Discovery of new evidence may constitute
good cause for a waiver of the Board’s filing deadline if the evidence was not
readily available before the record closed below and the appellant diligently files
his petition for review after discovering such evidence. See, e.g., Armstrong v.
Department of the Treasury , 591 F.3d 1358, 1362 -63 (Fed. Cir. 2010).
Although the appellant is pro se, the nearly 1-month filing delay is
significant. See Crook v. U.S. Postal Service, 108 M.S.P.R. 553, ¶ 6 (finding a
1 month delay significant, notwithstanding the appellant’s pro se status), aff’d per
curiam, 301 F. App’x 982 (Fed. Cir. 2008). Although the appellant contends that
he did not delay in filing his petition after receiving the OLMER letter, PFR File,4
Tab 3 at 4, he has not shown that he acted with due diligence in discovering the
OLMER letter. The agency issued the letter after the expiration of the filing
deadline. PFR File, Tab 1 at 7; ID at 42; cf. Sachs v. Office of Personnel
Management, 99 M.S.P.R. 521, ¶ 7 (2005) (finding that the Department of
Veterans’ Affair’s letter awarding the appellant service -connected disability
benefits was not new because the appellant was notified of the award prior to the
letter’s issuance and the close of the record below). However, the appellant was
aware of the investigation; was interviewed by the agency in connection with it;
and could have requested the underlying information during discovery, which
began several weeks after the agency initiated its investigation on November 18,
2018. PFR File, Tab 1 at 7; IAF, Tab 2 at 2-3; see Terry v. Equal Employment
Opportunity Commission , 111 M.S.P.R. 258, ¶ 8 (2009) (finding that documents
the appellant could have obtained through discovery cannot be considered
previously unavailable despite due diligence).
Furthermore, there is no indication that the appellant took any proactive
measures before the expiration of the filing deadline to learn the status of the
investigation, which concluded on June 28, 2018, or when to expect the agency’s
findings. He did not request an extension of time from the administrative judge
below or the Clerk of the Board on review to allow him an opportunity to obtain
and file evidence regarding the harassment investigation, which he should have
expected to be forthcoming. See generally Snipes v. Office of Personnel
Management, 32 M.S.P.R. 66, 67 (1987) (finding no good cause for the delay
when the appellant failed to request an extension of time from the Board to obtain
a report known to the appellant before the expiration of the filing period), aff’d,
831 F.2d 306 (Fed. Cir. 1987) (Table); 5 C.F.R. § 1201.114(f). To the extent that
the appellant was merely waiting for the agency’s decision on his October 25,
2019 harassment complaint, which was issued 14 days after the expiration of the
filing deadline, such dilatoriness does not constitute good cause for the
untimeliness of the petition for review. See Dull v. Department of the Navy ,5
76 M.S.P.R. 31, 34 -35 (1997) (finding that the appellant’s apparent decision to
delay filing a petition for review in the hope of procuring additional evidence
demonstrating his “innocence” did not constitute good cause for the untimeliness
of his petition for review). The appellant therefore has not shown good cause to
waive the untimeliness of his petition based on the OLMER letter.
Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the demotion appeal.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
3 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.6
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you7
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 8
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Dphrepaulezz_KareemSF-0432-19-0137-I-1__Final_Order.pdf | 2024-06-28 | KAREEM DPHREPAULEZZ v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. SF-0432-19-0137-I-1, June 28, 2024 | SF-0432-19-0137-I-1 | NP |
1,104 | https://www.mspb.gov/decisions/nonprecedential/Borrell_EricPH-315H-20-0242-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIC BORRELL,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
PH-315H-20-0242-I-1
DATE: June 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Eric Borrell , Washington Township, Michigan, pro se.
Colleen M. Shook and Trudy V. Murphy , Norfolk, Virginia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for failure to prosecute the appeal of his probationary termination. On
petition for review, the appellant argues that his appeal should not have been
dismissed for failure to prosecute. He also argues that the Board has jurisdiction
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
over his appeal, and he challenges the merits of the termination action.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b).
2 In his petition for review, the appellant cites two Supreme Court decisions and a
decision from the U.S. Court of Appeals for the Eleventh Circuit regarding disability
discrimination. Petition for Review File, Tab 1 at 4-6. He does not explain how these
decisions are relevant to the dispositive issue in his appeal, and we do not discern any
relevance. With his petition for review, the appellant submits medical evidence dated
May 1, 2020, but the appellant has not argued that his diagnosed condition had any
bearing on his failure to respond to the administrative judge’s orders. Id. at 9. The
appellant also submits a document regarding the reinstatement of his access privileges
to a Navy facility following a prior denial. Id. at 10. The appellant has not shown how
this document is material to the dispositive issue in this appeal. See Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980).2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board 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.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Borrell_EricPH-315H-20-0242-I-1__Final_Order.pdf | 2024-06-28 | ERIC BORRELL v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-315H-20-0242-I-1, June 28, 2024 | PH-315H-20-0242-I-1 | NP |
1,105 | https://www.mspb.gov/decisions/nonprecedential/Galatioto_ConnieSF-0752-20-0195-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CONNIE GALATIOTO,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-0752-20-0195-I-1
DATE: June 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Connie Galatioto , Henderson, Nevada, pro se.
Leigh K. Bonds , Esquire, Sandy, Utah, for the agency.
Catherine V. Meek , Long Beach, California, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the appeal of her termination for lack of jurisdiction. On petition for
review, the appellant claims that, as a result of the agency action, inaccurate
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
information is in her file, preventing her from obtaining further employment with
the agency. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
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: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Galatioto_ConnieSF-0752-20-0195-I-1__Final_Order.pdf | 2024-06-28 | CONNIE GALATIOTO v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0752-20-0195-I-1, June 28, 2024 | SF-0752-20-0195-I-1 | NP |
1,106 | https://www.mspb.gov/decisions/nonprecedential/Walker_James_T_DC-0845-18-0786-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES THOMAS WALKER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0845-18-0786-I-1
DATE: June 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
James Thomas Walker , Upper Marlboro, Maryland, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
found that the Office of Personnel Management (OPM) proved that the appellant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
had received an overpayment in retirement benefits under the Federal Employees’
Retirement System (FERS). Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
set forth the correct regulatory authority for computing the appellant’s annuity,
we AFFIRM the initial decision.
BACKGROUND
The appellant retired from the Federal service on June 30, 2017, and OPM
initiated interim retirement payments for 9 months, paying the appellant $5,770
per month for 5 months from July to November 2017, and $5,816 per month for 4
months from December 2017 to March 2018, for a total payment of $52,114.2
Initial Appeal File (IAF), Tab 5 at 8, 16, 21-22. By notice dated March 31, 2018,
OPM notified the appellant that it had finalized his retirement annuity calculation
and that his monthly annuity should have been $4,973 per month from July to
November 2017, and $5,012 per month from December 2017 to March 2018,
2 The purpose of interim payments is to initiate payments to a retiree as quickly as
possible while retirement calculations are made. IAF, Tab 5 at 45. Such payments are
generally lower than the amount due to the retiree, but here they exceeded the amount
actually due. Id. 2
which resulted in an overpayment of $7,201. Id. at 12-15. OPM informed the
appellant of its intent to collect the overpayment by deducting monthly
installment payments from his annuity payments. Id. at 13. The appellant
requested reconsideration and OPM affirmed its initial determination. Id. at 6-7.
The appellant timely appealed OPM’s reconsideration decision to the Board
and requested a hearing. IAF, Tab 1 at 2. During the proceedings below, the
administrative judge denied the appellant’s requested hearing as a sanction for the
appellant’s repeated failure to follow the administrative judge’s orders.3 IAF,
Tab 23. Based on the written record, the administrative judge found that OPM
established the existence and amount of the overpayment. IAF, Tab 25, Initial
Decision (ID).
In his petition for review, the appellant asserts that OPM failed to meet its
burden of proof because it did not respond to the administrative judge’s
December 14, 2018 order to submit evidence and/or argument. Petition for
Review (PFR) File, Tab 1 at 2-3. He also argues that, like OPM, the
administrative judge did not identify or apply the specific statutes and regulations
that were used to determine his interim and final annuity payments. Id. at 3-4.
He further argues that OPM and the administrative judge erroneously found that
he qualified for 38.5 years of FERS service credit instead of 38.6 years. Id. at 5.
Finally, the appellant argues that the administrative judge erred in stating that
OPM is not required to show the reason for the discrepancy between the amount
of the interim annuity payments and the final annuity payments. Id. OPM has
3 Specifically, the administrative judge sanctioned the appellant because he failed to
appear for the in-person status conference that the administrative judge had scheduled at
the appellant’s request, IAF, Tab 10, and failed to comply with an order to support his
statement that he could not appear because his flat tire was being repaired, IAF, Tab 17.
The appellant did not object to the denial of his hearing request below or in his petition
for review.3
responded to the petition, and the appellant has replied to the response.4 PFR
File, Tabs 7, 8.
ANALYSIS
The administrative judge correctly determined that OPM established the existence
and amount of the overpayment.
OPM bears the burden of proving by preponderant evidence the existence
and amount of an annuity overpayment. Vojas v. Office of Personnel
Management, 115 M.S.P.R. 502, ¶ 10 (2011); 5 C.F.R. § 845.307(a); 5 C.F.R.
§ 1201.56(b)(ii). As discussed below, the administrative judge correctly found
that OPM met its burden.5
There is no dispute that the appellant is entitled to a FERS annuity as he
meets the requirements set forth in 5 U.S.C. § 8412. The issue here is the
calculation of his annuity and whether and how much OPM overpaid him.
Contrary to the appellant’s assertion, the administrative judge identified the
correct statute used to calculate the appellant’s annuity under FERS, 5 U.S.C.
§ 8415. ID at 5. That statute provides, among other things, that the annuity of an
individual who retires after becoming 62 years of age and completing at least
20 years of service is 1.1% of the individual’s average pay multiplied by the
individual’s total service. 5 U.S.C. § 8415(a), (i). “Average pay” means the
largest annual rate resulting from averaging an employee’s pay in effect over any
three consecutive years of service, 5 U.S.C. § 8401(3), and total service of an
4 After filing his petition for review, the appellant filed a motion to file an additional
pleading. PFR File, Tab 4 at 4. In the motion, the appellant complains that OPM
withheld money from his May 2018 annuity payment despite the fact that he filed a
petition for review contesting the initial decision. Id. Any error by the agency in
withholding funds from the appellant’s annuity prematurely is rendered moot by this
decision finding that OPM established the existence and amount of the overpayment.
5 The appellant’s argument that OPM failed to meet its burden of proof because it did
not respond to the administrative judge’s December 14, 2018 order to submit evidence
and/or argument is unavailing. PFR File, Tab 1 at 2-3. The evidence and argument
submitted by OPM in its September 21, 2018 submission of its agency file is sufficient
to meet its burden of proof. IAF, Tab 5. 4
employee includes the days of unused sick leave to his credit under a formal leave
system, 5 U.S.C. § 8415(m)(2).
Consistent with 5 U.S.C. § 8415, OPM has shown that the appellant’s
annuity was properly calculated by multiplying his average pay by 1.1% and
multiplying the result by the appellant’s total years of service. IAF, Tab 5 at 9.
OPM’s records show that it calculated the appellant’s average salary by adding
his total salary for the 3-year period from July 1, 2014, to July 1, 2017, which
was $422,791.95, and dividing that sum by three. Id. at 17. The result of that
computation, rounded to the nearest dollar, is an average pay of $140,931. Id.
There is no dispute about the appellant’s average pay.
OPM calculated the appellant’s total service as 38 years and 6 months. Id.
at 9, 19-20. Specifically, based on the appellant’s employment history, OPM
determined that the appellant had 38 years, 1 month, and 5 days of civilian and
military service and 5 months and 22 days of unused sick leave, which were
added to the appellant’s actual service. Id. at 19, 42. Thus, the appellant’s total
service was 38 years, 6 months, and 27 days. OPM’s policy is to eliminate the
fractional part of a month in calculating total service for annuity computation
purposes. Office of Personnel Management, Civil Service Retirement System and
Federal Employees Retirement System Handbook, § 20A2.3-1F. Therefore, OPM
properly determined that the appellant’s total service is 38 years and 6 months, or
38.5 years of service.6
In sum, OPM properly calculated the appellant’s annuity at the time of his
retirement by multiplying his average pay of $140,931 by 1.1% and multiplying
the result by his 38.5 years of service ($140,931 x 1.1% x 38.5 years of service =
6 In his petition for review, the appellant argues that the administrative judge
erroneously agreed with OPM that he had 38.5 years of service. PFR File, Tab 1 at 5.
The appellant offers no explanation for his assertion. Id. To the extent that he is
equating 6 months of service with 0.6 years of service, his assertion is erroneous as
OPM calculates annuities based on years and fractions of years of service and not
months of service. 5
$59,684).7 IAF, Tab 5 at 19. The appellant’s annuity of $59,684 yielded a
monthly benefit of $4,973 at the time of the appellant’s retirement. Based on the
Cost of Living Adjustment of .08%, the appellant’s monthly benefit increased to
$5,012 effective December 1, 2017. Id.
As previously stated, OPM submitted evidence showing that it made gross
monthly interim payments of $5,770 for 5 months and payments of $5,816 for 4
months for a total of $52,114. Id. at 8, 15-16, 21-22. As noted above, during the
9-month time period that he received interim payments, the appellant should have
been paid $4,973 for 5 months and $5,012 for 4 months for a total of $44,913. Id.
at 19. The difference between the interim payments to the appellant and the
correctly calculated payments resulted in an overpayment of $7,201. Thus, the
administrative judge properly found that OPM established the existence and
amount of the overpayment.
Addressing the appellant’s assertion below that OPM was obligated to
show why the appellant’s initial interim payment was computed incorrectly, the
administrative judge found that the appellant’s contentions were not relevant to
the material issue in this case. ID at 6. The administrative judge found that OPM
is not obligated to explain or show the reason for any discrepancy between the
interim and actual annuity payments underlying its collection action. Id. Instead,
OPM must simply prove the existence and amount of the overpayment. Id. We
agree. What matters in this appeal is the existence and amount of the
overpayment, which is determined by computing the correct amount of the
appellant’s annuity and subtracting that amount from the interim payments
7 The administrative judge stated that OPM’s calculation sheet demonstrated that the
appellant’s annuity was generated by multiplying his total years of service credit by his
high-3 average salary by 1.1. ID at 5. The administrative judge improperly omitted a
percentage sign from the statement. As the administrative judge reached the correct
final dollar amount, his error did not prejudice the appellant’s substantive rights.
Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (stating that an
adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis
for reversal of an initial decision).6
received by the appellant. How or why the interim payments were incorrectly
calculated is not relevant.
The administrative judge erred in his citation to the regulatory authority regarding
the calculation of the appellant’s annuity.
Although the administrative judge cited the correct statute regarding the
computation of the appellant’s annuity, he cited the incorrect regulatory
authority. Accordingly, we modify the initial decision. Specifically, the
administrative judge cited 5 C.F.R. § 846.304(d) as the regulatory provision that
supports OPM’s calculation of the appellant’s annuity. ID at 5. However,
section 846.304(d) is in the subpart of the regulations addressing the effect of an
election to become subject to FERS and specifically addresses the computation of
a FERS annuity for individuals with Civil Service Retirement System coverage.
OPM determined the appellant’s retirement benefits under FERS and the
appellant has not argued that he is not covered by FERS. IAF, Tab 1 at 4, Tab 5
at 6-7, 19. Thus, we find that this provision is not applicable to the appellant.
The applicable regulation, which addresses the computation of an annuity
under FERS, is 5 C.F.R. § 842.403. This regulation tracks the statutory language
for determining a FERS annuity discussed above. Because he cited and applied
the correct statute, the administrative judge’s reference to the incorrect regulation
did not affect the calculation of the appellant’s proper annuity and the
overpayment. Thus, the error did not prejudice the appellant’s substantive rights
and is not a basis to reverse the initial decision. Panter, 22 M.S.P.R. 281, 282.
NOTICE OF APPEAL RIGHTS8
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
8 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.7
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
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 particular8
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 9
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
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 of10
competent jurisdiction.9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Walker_James_T_DC-0845-18-0786-I-1__Final_Order.pdf | 2024-06-28 | JAMES THOMAS WALKER v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0845-18-0786-I-1, June 28, 2024 | DC-0845-18-0786-I-1 | NP |
1,107 | https://www.mspb.gov/decisions/nonprecedential/Robinson_Rebecca_M_AT-0843-20-0040-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
REBECCA M. ROBINSON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency,
and
CATHLEEN O'REAR,
Intervenor.DOCKET NUMBER
AT-0843-20-0040-I-1
DATE: June 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rebecca M. Robinson , Bath Springs, Tennessee, pro se.
Carla Robinson , Washington, D.C., for the agency.
Cathleen O’Rear , Madison, Mississippi, pro se.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the decision of the Office of Personnel Management (OPM) regarding
the amount of survivor annuity benefit to which she is entitled. On petition for
review, the appellant disputes OPM’s calculations. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
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
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The3
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Robinson_Rebecca_M_AT-0843-20-0040-I-1__Final_Order.pdf | 2024-06-28 | REBECCA M. ROBINSON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0843-20-0040-I-1, June 28, 2024 | AT-0843-20-0040-I-1 | NP |
1,108 | https://www.mspb.gov/decisions/nonprecedential/Ramos_Rosie_A_DA-0843-20-0179-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROSIE A. RAMOS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency,
and
IRMA RAMOS,
Intervenor.DOCKET NUMBER
DA-0843-20-0179-I-1
DATE: June 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rosie A. Ramos , Waco, Texas, pro se.
Alison Pastor , Washington, D.C., for the agency.
Dawn M. Laubach , Esquire, San Antonio, Texas, for the intervenor.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
1A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the Office of Personnel Management’s final decision denying her claim
for death benefits under the Federal Employees’ Retirement System (FERS). On
petition for review, the appellant argues that the administrative judge ignored the
evidence in finding that the intervenor was the decedent’s lawful spouse for
purposes of FERS death benefits, the administrative judge should have taken
equitable considerations into account, and the intent of the law is not to deprive
someone in her position of benefits. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
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).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
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. 3
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
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.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Ramos_Rosie_A_DA-0843-20-0179-I-1__Final_Order.pdf | 2024-06-28 | ROSIE A. RAMOS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0843-20-0179-I-1, June 28, 2024 | DA-0843-20-0179-I-1 | NP |
1,109 | https://www.mspb.gov/decisions/nonprecedential/Miles_Matilda_G_AT-0843-18-0494-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MATILDA G. MILES,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0843-18-0494-I-2
DATE: June 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Matilda G. Miles , Vicksburg, Mississippi, pro se.
Jane Bancroft , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) finding that she was not eligible for survivor annuity benefits under the
Federal Employees’ Retirement System (FERS). Generally, we grant petitions
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant married the decedent, William A. Miles, in Tennessee on
November 14, 2000. Miles v. Office of Personnel Management , MSPB Docket
No. AT-0843-18-0494-I-1, Initial Appeal File (IAF), Tab 9 at 13. The decedent
retired from his Federal civilian position under FERS on or around
November 30, 2004. Id. at 21. At the time of his retirement, he elected a reduced
annuity with maximum survivor annuity for the appellant. Id. He filed for
divorce from the appellant, and the Chancery Court for Lake County, Tennessee,
issued a Final Decree of Divorce on February 17, 2009. Id. at 15-17. The Final
Decree of Divorce did not specifically include a provision regarding the
decedent’s retirement annuity benefits or the appellant’s entitlement to a survivor
annuity. Id.
The decedent passed away on August 31, 2017. Id. at 14.
Shortly thereafter, the appellant filed an application for survivor annuity benefits
with OPM as a widow. Id. at 9-12. In a January 30, 2018 decision, OPM found2
that the appellant was not eligible for survivor annuity benefits as the former
spouse of the decedent because “a review of the court order indicate[d] that [she
was] not awarded a survivor annuity.” Id. at 7. The appellant requested
reconsideration. Id. at 4. In a May 8, 2018 reconsideration decision, OPM
affirmed its initial decision. Id. at 4-6.
The appellant filed an appeal with the Board challenging OPM’s
reconsideration decision, and she requested a hearing. IAF, Tab 1.
The administrative judge dismissed the appeal without prejudice to provide the
appellant an opportunity to petition the court that issued the divorce decree to
modify or quash it based on her claim of mistake and/or fraud. IAF, Tab 10
at 1-3. He gave the appellant up to 6 months to refile the appeal. Id. at 2.
The appellant refiled the appeal less than 2 weeks later. Miles v. Office of
Personnel Management , MSPB Docket No. AT-0843-18-0494-I-2, Appeal File
(I-2 AF), Tab 1 at 1. Following a telephonic hearing, I-2 AF, Tab 8, the
administrative judge issued an initial decision affirming OPM’s reconsideration
decision, I-2 AF, Tab 9, Initial Decision (ID) at 1, 3-5. He found that, although
the appellant claimed that she had not been notified of the divorce and OPM
should honor the decedent’s election of a survivor annuity at the time of his
retirement, an individual’s marital status is determined by state law. ID at 4.
He noted that the appellant acknowledged at the hearing that the divorce decree
was an authentic court order and that the issuing court refused to modify it based
on her recent requests. Id. He determined that the appellant was not entitled to a
survivor annuity as a former spouse because there was no evidence that the
decedent elected to provide her with a survivor annuity under 5 U.S.C. § 8417(b)
at any time after the divorce or that the divorce decree expressly provided her
with a survivor annuity. ID at 4-5 (citing 5 U.S.C. § 8445(a)).
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. OPM has not filed a response. 3
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant does not make any arguments or provide any
evidence to demonstrate error by the administrative judge. Rather, she simply
asserts that she is filing a petition for review because the administrative judge
affirmed the agency’s action. Id. We find that the appellant’s one-sentence
petition for review does not meet the Board’s criteria for review under 5 C.F.R.
§ 1201.115. See Tines v. Department of the Air Force , 56 M.S.P.R. 90, 92 (1992)
(finding that a petition for review must contain sufficient specificity to enable the
Board to ascertain whether there is a serious evidentiary challenge justifying a
complete review of the record); see also Weaver v. Department of the Navy ,
2 M.S.P.R. 129, 133 (1980) (determining that, before the Board will undertake a
complete review of the record, the petitioning party must explain why the
challenged factual determination is incorrect, and identify the specific evidence in
the record which demonstrates the error) , review denied, 669 F.2d 613 (9th Cir.
1982) (per curiam).
Nonetheless, the Board has found that the strict application of the
adversarial model of adjudication is not always appropriate in a case involving
retirement annuity benefits, including survivor annuity benefits. Searcy v. Office
of Personnel Management , 98 M.S.P.R. 598, ¶ 8 (2005). Under the particular
circumstances of this appeal, including the appellant’s pro se status and her
statement that she had “no knowledge” of the divorce decree and that she took4
care of the decedent until his death,2 IAF, Tab 1 at 3, we have conducted a full
review of the record.
The burden of proving entitlement to a survivor annuity is on the applicant
for benefits. Cheeseman v. Office of Personnel Management , 791 F.2d 138,
140-41 (Fed. Cir. 1986). We discern no error with the administrative judge’s
reliance on 5 U.S.C. § 8445(a), which governs the rights of former spouses. As
noted above, the appellant and the decedent divorced in 2009, and the appellant
acknowledged that the divorce decree was an authentic court order. Based on this
evidence, we must view the appellant as a former spouse in our assessment of her
entitlement to a survivor annuity.
Pursuant to 5 U.S.C. § 8445(a), the appellant’s entitlement to a former
spouse survivor annuity can arise “if and to the extent expressly provided for in
an election under [5 U.S.C. §] 8417(b)” or “the terms of any decree of divorce . . .
or any court order or court-approved property settlement agreement incident to
such decree.” The administrative judge found that neither circumstance arises
here, ID at 4-5, and we agree with his analysis. First, an election under 5 U.S.C.
§ 8417(b) must “be made at the time of retirement or, if the marriage is dissolved
2 The administrative judge noted that the appellant indicated below that the decedent
was not mentally competent to sign documents on his own behalf. ID at 4. Indeed, in
her initial appeal form, the appellant asserted, “I were his oversee over his check, taking
care of everything, he were mentally empaired, should been aloud to sign paper or
Anything.” IAF, Tab 1 at 3 (spelling, grammar, capitalization, and punctuation as in
original). Because the appellant clearly does not seek to invalidate any survivor annuity
election made by the decedent, we construe her assertion as referring to the decedent’s
alleged mental incompetence at the time he signed the divorce decree. However, the
Board lacks jurisdiction to address such a claim. See, e.g., Maddox v. Merit Systems
Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985 ) (stating that the Board’s jurisdiction
is not plenary; it is limited to those matters over which it has been given jurisdiction by
law, rule, or regulation); see also Adler v. Office of Personnel Management ,
114 M.S.P.R. 651, ¶ 10 (2010) (explaining that the Board lacks jurisdiction to review
actions by state courts), aff’d, 437 F. App’x 928 (Fed. Cir. 2011). If the appellant
wishes to further pursue this issue, she must do so before the relevant jurisdiction. See,
e.g., Adler, 114 M.S.P.R. 651, ¶¶ 3, 10 (discussing 5 C.F.R. § 838.224 and explaining
that the appellant must return to the local court to obtain a court order to declare an
order regarding a Civil Service Retirement System annuity payment/lump sum
credit/survivor annuity invalid or to set it aside).5
after the date of retirement, within 2 years after the date on which the marriage of
the former spouse to the employee . . . is so dissolved.” It is undisputed that the
decedent made no election of a survivor annuity for the appellant at any time
from the date of the divorce to the date of his death. ID at 5. Second, pursuant to
5 C.F.R. § 838.804(a), a court order awarding a former spouse survivor annuity is
not a court order acceptable for processing unless it expressly awards a former
spouse survivor annuity or expressly directs an employee or retiree to elect to
provide a former spouse survivor annuity as described in subsection (b).
The administrative judge examined the Final Decree of Divorce, and he correctly
concluded that this decree did not expressly provide the appellant a survivor
annuity.3 ID at 5. We therefore discern no basis to disturb the administrative
judge’s determination that OPM’s reconsideration decision must be affirmed.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
3 The Final Decree of Divorce “adopt[ed,] affirm[ed,] and ratifie[d] the property
settlement agreement” and incorporated by reference the agreement into the final
decree. IAF, Tab 9 at 17. However, the record does not contain a copy of any property
settlement agreement.
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. 6
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
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. 7
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
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: 8
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
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).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Miles_Matilda_G_AT-0843-18-0494-I-2__Final_Order.pdf | 2024-06-28 | MATILDA G. MILES v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0843-18-0494-I-2, June 28, 2024 | AT-0843-18-0494-I-2 | NP |
1,110 | https://www.mspb.gov/decisions/nonprecedential/Dreste_ArleneDE-0845-20-0202-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ARLENE DRESTE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DE-0845-20-0202-I-1
DATE: June 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Arlene Dreste , Ajo, Arizona, pro se.
Alison Pastor , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal as untimely filed without a showing of good cause for the
filing delay. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the filing deadline was March 2, 2020, we AFFIRM the initial decision.
Generally, a Board appeal must be filed no later than 30 days after the
effective date, if any, of the action being appealed, or 30 days after the date of
receipt of the agency’s decision, whichever is later. 5 C.F.R. § 1201.22(b)(1).
On review, the appellant clarifies that January 30, 2020, was the date she received
the decision of the Office of Personnel Management (OPM). Petition for Review
File, Tab 1 at 5. Accordingly, the deadline for the appellant to file her appeal
was Monday, March 2, 2020. See 5 C.F.R. § 1201.23 (providing that if the date
that would ordinarily be the last date for filing falls on a weekend or Federal
holiday, the filing deadline will include the first workday after that date). Her
appeal was therefore untimely filed by 24 days.
The Board will dismiss an untimely filed appeal unless the appellant shows
good cause for the delay in filing. 5 C.F.R. § 1201.22(b). To establish good2
cause for the untimely filing of an appeal, an appellant must show that she
exercised due diligence or ordinary prudence under the particular circumstances
of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184 (1980).
To determine whether an appellant has shown good cause, the Board will consider
the length of the delay, the reasonableness of her excuse and her showing of due
diligence, whether she is proceeding pro se, and whether she has presented
evidence of the existence of circumstances beyond her control that affected her
ability to comply with the time limits or of unavoidable casualty or misfortune
which similarly shows a causal relationship to her inability to timely file her
appeal. Moorman v. Department of the Army , 68 M.S.P.R. 60, 62-63 (1995),
aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
Here, the appellant contends that her appeal was untimely filed due to
medical problems. To establish that an untimely filing was the result of an
illness, the party must: (1) identify the time period during which she suffered
from the illness; (2) submit medical evidence showing that she suffered from the
alleged illness during that time period; and (3) explain how the illness prevented
her from timely filing her appeal. Lacy v. Department of the Navy , 78 M.S.P.R.
434, 437 (1998). The proffered medical evidence must address the entire period
of the delay. Perrot v. Department of the Navy , 84 M.S.P.R. 468, ¶ 6 (1999);
Nesby v. Office of Personnel Management , 81 M.S.P.R. 118, ¶ 7 (1999).
The appellant has provided evidence that she was medically incapacitated
during the period from her admission to the hospital for scheduled surgery on
February 11 to her discharge from the rehabilitation facility on February 29.
Initial Appeal File, Tab 4 at 4-12. However, she has not alleged that she was
medically unable to file her appeal during the period between her receipt of the
OPM decision and her admission to the hospital. Nor has she provided evidence
that her outpatient treatment and remaining limitations rendered her incapable of
filing an appeal during the more than 3 weeks that passed between her discharge
from the rehabilitation facility and the filing of her appeal. See Perrot,3
84 M.S.P.R. 468, ¶ 8; Nesby, 81 M.S.P.R. 118, ¶ 7. While it is understandable
that the appellant may have been preoccupied with other matters during the
periods before and after her incapacitation, general personal difficulties do not
constitute good cause for waiver of a filing deadline. Crozier v. Department of
Transportation, 93 M.S.P.R. 438, ¶ 9 (2003). Furthermore, a filing delay of 3
weeks is not minimal. See id., ¶ 7 (finding a delay of 13 days was not minimal).
Although the appellant’s pro se status is a factor weighing in her favor, we agree
with the administrative judge that it is insufficient to establish good cause for her
failure to file a timely appeal. See id., ¶ 11.
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain5
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
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 6
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Dreste_ArleneDE-0845-20-0202-I-1__Final_Order.pdf | 2024-06-28 | ARLENE DRESTE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DE-0845-20-0202-I-1, June 28, 2024 | DE-0845-20-0202-I-1 | NP |
1,111 | https://www.mspb.gov/decisions/nonprecedential/Belger-Adams_Vivian_R_DC-0831-20-0341-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VIVIAN R. BELGER-ADAMS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0831-20-0341-I-1
DATE: June 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Vivian R. Belger-Adams , Charlotte, North Carolina, pro se.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of an Office of Personnel Management (OPM)
reconsideration decision as untimely filed without good cause shown for the
delay. Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On review, the appellant disputes OPM’s determination that she is not
eligible for a former spouse survivor benefit. Petition for Review File, Tab 6
at 2-6. Her argument does not establish a basis to disturb the initial decision
because it is unrelated to the dispositive issue of the timeliness of her appeal. See
Bilbrew v. U.S. Postal Service , 111 M.S.P.R. 34, ¶ 12 (2009) (finding that the
appellant’s assertions concerning the merits of an appeal do not pertain to the
issue of the appeal’s timeliness and do not establish good cause); Minor v.
Department of the Air Force, 109 M.S.P.R. 692, ¶ 7 (2008) (finding that the
appellant’s arguments on the merits of the underlying action are not relevant to
the timeliness issue). Thus, we affirm the administrative judge’s decision to
dismiss the appeal as untimely filed with no showing of good cause for the delay.2
2 Under 5 C.F.R. § 1201.22(b)(3), the appellant constructively received the agency’s
reconsideration decision on December 14, 2020, the date it was delivered to her post
office box. See Little v. U.S. Postal Service , 124 M.S.P.R. 183, ¶ 9 (2017). Under
5 C.F.R. § 1201.22(b)(1), the appellant was required to file her appeal on or before
January 13, 2020, 30 days after her receipt of the decision. Her appeal was filed on
January 31, 2020.2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board 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.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Belger-Adams_Vivian_R_DC-0831-20-0341-I-1__Final_Order.pdf | 2024-06-28 | null | DC-0831-20-0341-I-1 | NP |
1,112 | https://www.mspb.gov/decisions/nonprecedential/Bowen_AlthaDC-315I-20-0805-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALTHA BOWEN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-315I-20-0805-I-1
DATE: June 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Altha Bowen , Concord, North Carolina, pro se.
James Borden , Winston-Salem, North Carolina, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication of
this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal challenging her demotion during a supervisory probationary
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
period. On petition for review, the appellant argues that the agency’s action was
without merit, was done in reprisal for whistleblowing, and was discriminatory.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b). For the reasons discussed below, we
FORWARD the appellant’s whistleblower claim for docketing as a separate
individual right of action (IRA) appeal.
With her petition for review, the appellant has provided a copy of an
automated email from the Office of Special Counsel (OSC) dated August 31,
2020, acknowledging that her complaint had been received on that date. Petition
for Review (PFR) File, Tab 1 at 53. Based on the date identified on OSC’s
automated email response, at the time the appellant filed her response to the
agency’s motion to dismiss the appeal for lack of jurisdiction she had not yet
filed her complaint with OSC. See Initial Appeal File (IAF), Tab 4. She only
filed her OSC complaint after she filed her response, 2 weeks before the
administrative judge issued the initial decision. See IAF, Tab 4; Tab 5, Initial
Decision at 1. Therefore, the administrative judge could not have been aware that
at the time he issued the initial decision, the appellant had a complaint pending2
with OSC. Nevertheless, the Board’s practice is to adjudicate an appeal that was
premature when it was filed but becomes ripe while pending with the Board.
Simnitt v. Department of Veterans Affairs , 113 M.S.P.R. 313, ¶ 9 (2010).
Because 120 days have now passed since the appellant filed her OSC complaint,
her whistleblower retaliation claims are now ripe for adjudication. See 5 U.S.C.
§ 1214(a)(3)(B). Accordingly, we forward the appellant’s whistleblower reprisal
claim to the Washington Regional Office for docketing as an IRA appeal.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
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. 5
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Bowen_AlthaDC-315I-20-0805-I-1__Final_Order.pdf | 2024-06-28 | ALTHA BOWEN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-315I-20-0805-I-1, June 28, 2024 | DC-315I-20-0805-I-1 | NP |
1,113 | https://www.mspb.gov/decisions/nonprecedential/Young_Cynthia_J_DA-0752-17-0315-I-3__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CYNTHIA J. YOUNG,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-0752-17-0315-I-3
DATE: June 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shawn G. Childs , Esquire, Little Rock, Arkansas, for the appellant.
Sean A. Safdi , Esquire, and Daniel Morvant, Denver, Colorado, for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her removal. Generally, we grant petitions such as this one only in the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the appellant was not a qualified individual with a disability, and apply
the correct standard of proof to the appellant’s claim of retaliation under the
Rehabilitation Act, we AFFIRM the initial decision.
BACKGROUND
The appellant was employed by the agency in a Medical Support Assistant
(MSA) position, GS-0679-05. Young v. Department of Veterans Affairs ,
MSPB Docket No. DA-0752-17-0315-I-1, Initial Appeal File (IAF), Tab 8 at 14.
She last reported for duty on September 19, 2016. Id. at 57. She notified the
agency that she was absent due to her medical conditions. Id. at 58. The
appellant remained absent despite the agency’s November 3, 2016 order to return
to duty. Id. at 27, 57-59. On November 15, 2016, the agency notified the
appellant that “[her] position needed to be filled on a full-time basis, and that
[her] continued absence would be subject to disciplinary action up to and
including removal.” Id. at 27, 78. The appellant made several requests for leave
without pay (LWOP) and Family Medical Leave Act (FMLA)-protected leave
during her absence. Id. at 51-77, 79-95, 121. She also submitted a request from2
her treating physician recommending that she be reassigned to another department
and to work a part -time schedule. Id. at 115-23. The agency granted her request
for leave under the FMLA for the period of September 19 to December 11, 2016,
but disapproved her subsequent requests because she had exhausted her FMLA
entitlement. Id. at 96-97. On March 21, 2017, the agency proposed the
appellant’s removal based on one charge of excessive absenteeism based on her
failure to report for duty from December 12, 2016, through March 18, 2017.
Id. at 27-28. After sustaining the charge, the deciding official removed the
appellant from Federal service, effective May 5, 2017. Id. at 36-37.
The appellant filed an appeal, challenging the merits of the charge and
raising affirmative defenses of harmful procedural error, discrimination based on
her race, color, and disability, and reprisal for equal employment opportunity
(EEO) activity. IAF, Tab 1 at 3. After holding a hearing, the administrative
judge issued an initial decision, affirming the appellant’s removal and denying
her affirmative defenses. Young v. Department of Veterans Affairs ,
MSPB Docket No. DA-0752-17-0315-I-3, Appeal File (I -3 AF), Tab 41,
Initial Decision (I-3 ID) at 1-2, 5-8, 12, 15. He also found that there was a nexus
between the appellant’s removal and the efficiency of the service and the penalty
of removal was reasonable. I-3 ID at 18-21.
The appellant has filed a petition for review, challenging the administrative
judge’s decision to sustain the charge and his denial of her affirmative defenses.
Petition for Review (PFR) File, Tab 1. The agency has filed a response.
PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved the charge of excessive absenteeism.
The administrative judge applied the correct three-part test for determining
whether the agency proved the charge of excessive absenteeism. I-3 ID at 2-3.
To prove such a charge when, as here, it is based on approved leave, an agency3
must establish that: (1) the employee was absent for compelling reasons beyond
her control so that agency approval or disapproval of leave was immaterial
because the employee could not be on the job; (2) the absences continued beyond
a reasonable time, and the agency warned the employee that an adverse action
could be taken unless the employee became available for duty on a regular
full-time or part-time basis; and (3) the position needed to be filled by an
employee available for duty on a regular, full-time or part-time basis. Cook v.
Department of the Army , 18 M.S.P.R. 610, 611-12 (1984). The administrative
judge found that the appellant’s over 3 -month absence was beyond her control, as
reflected in her medical documentation and by her own admission, and the period
at issue in her removal was not protected under the FMLA. I-3 ID at 4 & n.3. He
also concluded that the agency warned her about the consequences of her
continued unavailability in its November 3 and 15, 2016 letters. I-3 ID at 4; IAF,
Tab 8 at 27, 57-59, 78. Finally, he concluded that the agency needed the
appellant to perform the duties of her position on a full-time basis. I-3 ID at 4-5.
He therefore sustained the charge. I -3 ID at 5-6.
On review, the appellant has not challenged the administrative judge’s
findings regarding the first two prongs of the Cook analysis, and we discern no
error in those well-reasoned, credibility-based findings. PFR File, Tab 1; I-3
ID at 3-5. Rather, she appears to challenge the administrative judge’s finding
regarding the third prong, reasserting that the agency did not need her to report
for duty on a full -time basis. PFR File, Tab 1 at 2-3. We disagree with the
appellant’s argument.
In finding that the agency met the third prong of the Cook analysis, the
administrative judge relied on the testimony of the proposing and deciding
officials that the agency needed the appellant on a full-time basis, and he credited
their testimony over the contrary testimony of a former MSA. I-3 ID at 5-6. The
administrative judge found that the deciding official testified that the other MSAs
were disadvantaged when an MSA in the call center was consistently absent. I-34
ID at 5. Similarly, according to the administrative judge, the proposing official
explained that excessive absences by MSAs directly affected patient care and the
MSAs would be subject to “burnout” if there were too few MSAs in the call
center. Id. The appellant does not dispute the administrative judge’s
characterization of this testimony. Instead, she argues that the administrative
judge did not consider the testimony of her former coworker, a former MSA in
the call center, which she claims proved that the agency did not need her on a
full-time basis. PFR File, Tab 1 at 2-3.
The Board must give deference to an administrative judge’s
demeanor-based credibility findings. Faucher v. Department of the Air Force ,
96 M.S.P.R. 203, ¶ 8 (2004). It may overturn those findings for sufficiently
sound reasons, such as when the findings are incomplete, inconsistent with the
weight of the evidence, or do not reflect the record as a whole. Id. The appellant
has not offered such reasons. The administrative judge considered the former
MSA’s testimony, but nevertheless credited the testimony of the deciding and
proposing officials. I-3 ID at 5. He observed that the former MSA’s testimony
was not necessarily inconsistent with their testimony, as she also admitted that
service would be negatively impacted if the call center were reduced by even one
MSA. Id. Moreover, the appellant’s contentions on review—that the call center
was understaffed and the call center MSAs were overworked, as a result—are
consistent with the management officials’ testimony. PFR File, Tab 1 at 2.
Therefore, we afford the administrative judge’s explicit and implicit demeanor-
based factual findings deference. See Purifoy v. Department of Veterans Affairs ,
838 F.3d 1367, 1373 (Fed. Cir. 2016) (explaining that the Board generally must
defer to an administrative judge’s implicit and explicit demeanor -based
credibility findings). Accordingly, the appellant has not provided a basis for
overturning the administrative judge’s decision to sustain the charge.5
The appellant did not prove that her removal was based on harmful error.
As the administrative judge correctly explained, harmful error under
5 U.S.C. § 7701(c)(2)(A) cannot be presumed; the appellant must establish that
the agency’s procedural error was likely to have caused it to reach a conclusion
different from the one it would have reached in the absence or cure of the error.
I-3 ID at 6-7; Doe v. Department of Justice , 118 M.S.P.R. 434, ¶ 31 (2012); see
5 C.F.R. § 1201.56(b)(2)(i)(C) (explaining that an appellant has the burden of
proof on her affirmative defenses). The administrative judge found that, even if
the agency mishandled the appellant’s FMLA requests or failed to conduct a
proper investigation into her alleged misconduct, as the appellant claimed, she did
not prove that those errors were harmful. I-3 ID at 7. The appellant has not
challenged that finding on review and we find no basis for revisiting it.
The administrative judge further found that the appellant did not request an
oral reply; therefore, the agency did not commit procedural error by not affording
her one. Id. On review, the appellant asserts that the agency notified her that she
could submit a written reply and that the deciding official considered her written
replies in reaching her removal decision. PFR File, Tab 1 at 2. Thus, she does
not appear to contend that the agency erred in considering her written reply. Id.
To the extent that she is attempting to argue that the agency denied her an
opportunity to submit an oral reply, the record does not support such a finding.
As the administrative judge explained, the proposal notice notified the appellant
of her right to request an oral reply. I -3 ID at 7; IAF, Tab 8 at 27-28. The
appellant does not assert that she made or was prevented from making that
request. PFR File, Tab 1 at 2-3. Accordingly, she has not provided a basis for
disturbing the administrative judge’s finding that she did not prove her harmful
error defense.6
We modify the initial decision as to the appellant’s disability discrimination
claims to find that the appellant did not prove that she was a qualified individual
with a disability.
Because she was not a qualified individual with a disability, the
appellant did not prove her claim that the agency denied her
reasonable accommodation.
The administrative judge found that the appellant failed to prove her denial
of reasonable accommodation and status-based disability discrimination
affirmative defenses. I-3 ID at 8-15. In reaching those findings, the
administrative judge did not expressly determine whether the appellant could
perform the essential duties of her position with or without a reasonable
accommodation. I-3 ID at 11-12, 14 -15. However, for the reasons explained
below, we find that remand is unnecessary because the record on this issue is
fully developed. See, e.g., Forte v. Department of the Navy , 123 M.S.P.R. 124, ¶
27 (2016) (deciding an appellant’s claim of status-based disability discrimination
on review, rather than remanding, when the administrative judge applied an
incorrect standard but the record was fully developed). We therefore modify the
initial decision to address whether the appellant was a qualified individual with a
disability.
Both a claim of disability discrimination based on an individual’s status as
disabled and a claim based on an agency’s failure to reasonably accommodate
that disability require that the individual be “qualified.” Haas v. Department of
Homeland Security , 2022 MSPB 36, ¶ 28. A qualified individual with a disability
is one who can “perform the essential functions of the . . . position that such
individual holds or desires” with or without reasonable accommodation.
42 U.S.C. § 12111(8).
Based on the appellant’s own statements, the medical evidence in the
record,2 and other record evidence relating to the appellant’s leave and reasonable
2 The record includes the appellant’s medical documentation that she submitted to the
agency; however, she did not call her treating physician as a witness. I-3 AF, Tab 33
at 4. 7
accommodation requests, we conclude that the appellant was not a qualified
individual with a disability.3 IAF, Tab 40, Hearing Compact Disc (HCD), Day 2
(testimony of the appellant); IAF, Tab 8 at 51-77, 79-100, 107, 115-23, 185-96,
281-88. The essential job functions of the appellant’s MSA position were to
answer phone calls; make appointments; order x-rays, labs, and
electrocardiographs; and “[t]alk to patients all day on the phone.” IAF, Tab 8
at 117. The appellant admitted that she was absent from work due to medical
conditions that her treating physician believed would last for the duration of her
life. HCD, Day 2 at 1:16:00-1:19:00, 1:26:00-1:30:30 (testimony of the
appellant). This testimony was consistent with the medical documentation from
the appellant’s treating physician. IAF, Tab 8 at 115-20, 188-91.
Upon her request, the agency granted the appellant FMLA -protected LWOP
from September 19 to December 11, 2016. Id. at 57, 96. However, the agency
declined to approve her requests for LWOP to cover the period beginning
December 12, 2016, due to the impact of her absence on patients’ access to care.
Id. at 96-97. The administrative judge found that the appellant was not entitled to
additional FMLA-protected leave beginning December 12, 2016. I-3 ID at 4 n.3.
The appellant does not challenge this finding on review, and we discern no basis
3 After the record closed on review, the appellant filed a motion for leave to submit
documentation, which she claims shows that she became disabled on September 19,
2016. PFR File, Tab 2 at 1-2, Tab 4 at 1; see 5 C.F.R. § 1201.114(k) (explaining that
the record on review closes on expiration of the period for filing the reply to the
response to the petition for review or for filing a response to the cross petition for
review, whichever is later). Once the record closes, no additional evidence or argument
will be accepted unless it is new and material, as defined in 5 C.F.R. § 1201.115(d), and
the moving party shows that the evidence or argument was not readily available before
the record closed. 5 C.F.R. § 1201.114(k). The appellant has not made this necessary
showing. The documentation appears to be dated before the initial decision’s issuance
and the appellant has not explained why she did not submit it below. PFR File, Tab 4 at
1; I-3 ID at 1. Further, given our decision to deny the appellant’s petition for review,
despite finding that she was disabled, she has not shown that this evidence is material.
See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (explaining that the
Board will not grant a petition for review based on new evidence absent a showing that
it is of sufficient weight to warrant an outcome different from that of the initial
decision). Therefore, we deny the appellant’s motion.8
for disturbing it. See 5 U.S.C. § 6382(a)(1)(D) (providing that an employee may
take up to 12 weeks of FMLA -protected leave per year, paid or unpaid, for
various purposes, including her own serious health condition that renders her
unable to perform the duties of her position); Dias v. Department of Veterans
Affairs, 102 M.S.P.R. 53, ¶ 5 (2006) (same), aff’d per curiam , 223 F. App’x 986
(Fed. Cir. 2007); 5 C.F.R. § 630.1203(c) (providing that “[t]he 12 -month [FMLA
period] . . . begins on the date an employee first takes leave for a family or
medical need . . . and continues for 12 months”). The administrative judge
concluded that, because the appellant’s medical providers stated that her
condition was “ongoing” and would persist for “life,” she was essentially
requesting that the agency grant her unlimited LWOP. I-3 ID at 11; IAF, Tab 8 at
117-18, 188-90. Leave may be a form of reasonable accommodation in
appropriate circumstances. Equal Employment Opportunity Commission,
Enforcement Guidance on Reasonable Accommodation and Undue Hardship
under the Americans with Disabilities Act, Types of Reasonable Accommodations
Related to Job Performance, Leave, Notice 915.002 (Oct. 17, 2002). However,
the appellant has not alleged that, with or without leave, she would be able to
return to work. See Bologna v. Department of Defense , 73 M.S.P.R. 110,114
(explaining that, in the context of a leave-related charge, an agency may properly
deny an employee’s LWOP request when there is no foreseeable end in sight to
her absences and those absences are a burden on the agency), aff’d, 135 F.3d 774
(Fed. Cir. 1997). Rather, she seeks indefinite leave, and thus has not shown that
she is a qualified individual with a disability.
The appellant also asserts that the agency improperly denied her request for
a part-time schedule, which would have allowed her to continue working in the
call center. PFR File, Tab 1 at 2-3. A modified or part-time schedule can be a
type of reasonable accommodation. See 42 U.S.C. § 12111(9)(B); 29 C.F.R.
§ 1630.2(o)(2)(ii). As the appellant argues, her treating physician concluded that
she could perform 6 hours of work a day and recommended such a schedule as a9
reasonable accommodation. PFR File, Tab 1 at 3; IAF, Tab 8 at 119.
However, he also opined that the appellant was “unable to perform any of her job
duties” due to her serious and ongoing medical conditions. IAF, Tab 8 at 118,
189. He identified the source of the appellant’s psychiatric condition as
job-related stress created by her supervisor and the patients with whom she spoke
on the phone. Id. at 115-16, 118. The appellant’s medical documentation fails to
explain how working 2 fewer hours per day would enable her to perform the
essential duties of her position. Given her treating physician’s opinion that the
appellant was unable to perform the duties of her position and his failure to
explain his reason for recommending a modified schedule, we find that the
appellant has not shown that a part -time or reduced schedule would have enabled
her to perform the essential duties of her position. See Slater v. Department of
Homeland Security , 108 M.S.P.R. 419, ¶ 15 (2008) (explaining that whether a
medical opinion provided a reasoned explanation for its findings as distinct from
mere conclusory assertions is a factor for determining the probative weight of
medical opinion), overruled on other grounds by Haas , 2022 MSPB 36.
Moreover, although the agency apparently had not made a determination whether
to permanently grant her requested accommodation, it offered the appellant her
requested modified schedule as an interim reasonable accommodation. I-3 AF,
Tab 29 at 19, Tab 30 at 154, 168, 191. The appellant rejected the agency’s offer.
IAF, Tab 30 at 168. She has not challenged the administrative judge’s finding
that she did not identify a vacant funded position to which the agency could have
reassigned her. I-3 ID at 12; see Clemens v. Department of the Army ,
120 M.S.P.R. 616, ¶ 17 (2014) (finding that the appellant did not meet his burden
to prove the agency denied him a reasonable accommodation, in part, because he
did not show that there was a position to which he could have been reassigned).
For the foregoing reasons, the appellant cannot prevail on her claim of
disability discrimination based on the agency’s alleged failure to reasonably
accommodate her. We therefore decline to consider the appellant’s remaining10
challenges to the administrative judge’s findings regarding her denial of
reasonable accommodation claim, and we vacate the administrative judge’s undue
burden analysis and findings.
We modify the initial decision to find that the appellant did not prove
her claim of status-based disability discrimination because she did
not show that she was a qualified individual with a disability.
In denying the appellant’s status-based disability discrimination claim, the
administrative judge applied the standard set forth in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 802 (1973), to find that the appellant did not
present argument and evidence giving rise to an inference that the agency
removed her based on her disability. I-3 ID at 12-15. However, because the
appellant failed to prove that she was a qualified individual with a disability, we
find it unnecessary to address whether her disability was a motivating factor in
the agency’s decision to remove her. See Haas, 2022 MSPB 36, ¶ 28. We
modify the initial decision accordingly.
The appellant did not prove that the agency removed her in retaliation for her
protected equal employment opportunity activity.
The administrative judge also found that the appellant failed to prove that
her protected EEO activity was a motivating factor in her removal.
I-3 ID at 15-18. To prove an affirmative defense of retaliation for EEO activity
protected under Title VII, an appellant must show that the prohibited
consideration was at least a motivating factor in the agency’s decision. Pridgen
v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 21-22, 30. However, to
prove an affirmative defense of retaliation for EEO activity protected under the
Rehabilitation Act, an appellant must prove that the prohibited consideration was
a but-for cause of the agency’s action. Id., ¶¶ 45-47. As discussed below, we
affirm the administrative judge’s factual findings and reach the same conclusion,
while modifying the initial decision to apply the correct standard. 11
The appellant filed EEO complaints on August 24, 2015, and June 15,
2016; she amended those complaints several times. IAF, Tab 8 at 38-50.
She contended that the agency removed her in reprisal for filing those complaints.
IAF, Tab 1 at 3. In her complaints, the appellant alleged that the agency
discriminated against her and harassed her based on her race and color; therefore,
the appellant engaged in activity protected by Title VII. IAF, Tab 8 at 38, 43;
see 42 U.S.C. 2000e-16(a). However, she also alleged that the agency
constructively denied her requests for reasonable accommodation. IAF, Tab 8
at 39. That activity was protected under the Rehabilitation Act.
See Pridgen, 2022 MSPB 31, ¶ 44 (recognizing that requesting a reasonable
accommodation and complaining of disability discrimination are activities
protected by the Rehabilitation Act). Because we agree with the administrative
judge that the appellant failed to meet the lesser burden of proving that her
protected activity was a motivating factor in her removal, she necessarily failed to
meet the more stringent but-for standard that applies to her retaliation claim.
Johnson v. Department of Veterans Affairs , 2023 MSPB 9, ¶ 5 n. 2.
The administrative judge properly considered all of the evidence as a whole
in determining whether the appellant proved that her removal was motivated by
retaliatory animus. I-3 ID at 16; see Gardner v. Department of Veterans Affairs ,
123 M.S.P.R. 647, ¶¶ 30-31 (2016) (finding that an administrative judge properly
considered the evidence as a whole in concluding that an appellant failed to prove
her Title VII affirmative defenses), clarified by Pridgen , 2022 MSPB 31,
¶¶ 23-24. He found that the appellant identified no employees who did not have
prior EEO complaints and were treated more favorably. I-3 ID at 17 n.16. He
further found that, even if the deciding and proposing officials had knowledge of
the appellant’s EEO complaints, the appellant did not show that the alleged
actions taken by management officials leading up to her removal, such as
contacting her regarding her leave balances and subjecting her to general
workplace stress, were motivated by her protected EEO activities. I-3 ID12
at 17-18. He also relied on the demeanor of the deciding official in crediting her
testimony that she did not consider the appellant’s protected statuses in removing
her. I-3 ID at 18. Finally, he concluded that the agency offered “a sound basis”
for removing the appellant. Id.
On review, the appellant contends that the administrative judge failed to
find that the deciding official had knowledge of her EEO activity. PFR File,
Tab 1 at 2. However, the appellant has not shown how that purported failure
affected the outcome of the appeal. The administrative judge correctly concluded
that, even if the deciding official knew of the appellant’s EEO activity, the
appellant did not meet her burden of proving that the deciding official was
motivated by discriminatory animus in removing her . I-3 ID at 17-18;
see Karapinka v. Department of Energy , 6 M.S.P.R. 124, 127 (1981). The
appellant also notes that the deciding official rescinded a December 2016 notice
of proposed removal for absence without leave and failure to follow instructions.
PFR File, Tab 1 at 2; IAF, Tab 8 at 167-77. She contends that the deciding
official was unaware of her prior EEO activity when the deciding official
rescinded the first notice of proposed removal, but learned of it before removing
her in April 2017, for excessive absenteeism. PFR File, Tab 1 at 2. The
appellant therefore surmises that her removal was based on discriminatory animus
for her EEO activity. PFR File, Tab 1 at 2. Her unsupported assertion is
insufficient to prove discriminatory animus, especially considering that the
conduct for which the appellant was removed was different than the conduct that
formed the basis of the rescinded notice of proposed removal. See Gardner, 123
M.S.P.R. 647, ¶ 32 (finding unpersuasive an appellant’s conclusory arguments on
review, in which she sought to reweigh evidence properly considered by the
administrative judge).
Moreover, an administrative judge’s failure to mention all of the evidence
of record does not mean that he did not consider it in reaching his decision.
Mithen v. Department of Veterans Affairs , 122 M.S.P.R. 489, ¶ 14 (2015),13
aff’d per curiam, 652 F. App’x 971 (Fed. Cir. 2016). Not specifically discussing
every evidentiary matter or credibility factor does not mean that an administrative
judge failed to consider them. Id. Further, the appellant’s arguments do not
provide sufficiently sound reasons for overturning the administrative judge’s
credibility findings. Faucher, 96 M.S.P.R. 203, ¶ 8. Therefore, the Board must
give deference to those findings. Purifoy, 838 F.3d at 1372-73.
Accordingly, the appellant did not prove that her Title VII-protected
activities were a motivating factor in the agency’s removal decision. Similarly,
she did prove that her Rehabilitation Act-protected activities were a but-for cause
of her removal.
The appellant did not prove that the agency discriminated against her based on
race or color.
After reviewing the evidence as a whole, the administrative judge
concluded that the appellant did not prove her affirmative defenses of
discrimination based on race and color. I-3 ID at 16, 18. He reasoned that, even
if the four white employees the appellant identified were comparators, the agency
removed them for excessive absenteeism, as it had the appellant. I-3 ID at 16-17.
He observed that the alleged comparator employees’ absentee periods may have
been longer; however, he concluded that was of no consequence because it was
apparent to the agency that, after 3 months, the appellant was medically unable to
perform her job functions and it did not need any additional time before
determining that the appellant could not return to duty. I-3 ID at 17. The
administrative judge also credited the testimony of the deciding official denying
discriminatory animus and concluded that the other evidence the appellant
offered, such as “requiring her to copy supervisors on emails, sending emails to
her regarding her leave balance, and other incidents regarding leave and general
workplace stress,” did not show that the involved management officials removed
her based on a discriminatory motive. I-3 ID at 17-18.14
On review, the appellant reasserts that she proved the agency discriminated
against her based on her race and color because it treated the white comparator
employees more favorably by allowing them to accrue more absences before
removing them. PFR File, Tab 1 at 3. As explained above, the administrative
judge considered that potential difference, but found that it did not constitute
evidence of discriminatory motive, given the agency’s reason for declining to
allow the appellant to accrue additional absences. I-3 ID at 17. In sum, the
administrative judge addressed the appellant’s arguments, considered the
evidence overall, and reached well-reasoned credibility-based findings. The
appellant’s conclusory assertion that the management officials “repeatedly
harassed [her], treated [her] disparately [sic], and treated Caucasian employees
more favorabl[y],” PFR File, Tab 1 at 3, does not provide a basis for disturbing
the administrative judge’s well -supported findings. See Gardner, 123 M.S.P.R.
647, ¶ 32. Accordingly, we affirm the administrative judge’s finding that the
appellant did not prove that the agency discriminated against her based on her
race or color.4
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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
4 The administrative judge found that the agency proved the nexus of the charged
misconduct to the efficiency of the service, and that the penalty of removal was within
the tolerable limits of reasonableness. I-3 ID at 19-20. The appellant has not
challenged these findings on review, and we discern no basis to disturb them.
5 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.15
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at16
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,17
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
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.6 The court of appeals must receive your petition for
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,18
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
132 Stat. 1510. 19
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.20 | Young_Cynthia_J_DA-0752-17-0315-I-3__Final_Order.pdf | 2024-06-28 | CYNTHIA J. YOUNG v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-0752-17-0315-I-3, June 28, 2024 | DA-0752-17-0315-I-3 | NP |
1,114 | https://www.mspb.gov/decisions/nonprecedential/Erickson_JoelDA-0752-19-0271-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOEL ERICKSON,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
DA-0752-19-0271-I-1
DATE: June 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joel Erickson , Oklahoma City, Oklahoma, pro se.
Beau S. Bruhwiler , Esquire, Oklahoma City, Oklahoma, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s removal action. 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was a Flight Inspection Operations Specialist with the
Federal Aviation Administration (FAA). Initial Appeal File (IAF), Tab 6 at 17.
The agency removed him effective March 15, 2019, for the charge of excessive
absence. IAF, Tab 6 at 19-22, 25-28. The agency cited as the basis of its charge
his use of 776 hours of annual and sick leave between April 1, 2018, and
February 6, 2019. Id. at 26.
Following his removal, the appellant filed the instant appeal, alleging that
he had been disabled since May 2018 and unable to walk “due to severe diabetic
neuropathy.” IAF, Tab 1 at 4. He stated that his condition has not improved
since then. Id. He alleged disability discrimination on the basis of the agency’s
failure to accommodate, but confirmed that he was not alleging disability
discrimination on the basis of disparate treatment or disparate impact. IAF,
Tab 13 at 4-6.
After the appellant withdrew his request for a hearing, the administrative
judge issued an initial decision on the written record, affirming the agency’s
action. IAF, Tab 28, Tab 32, Initial Decision (ID) at 1. He found that the agency2
met its burden of proving the charge by preponderant evidence. ID at 4-6. He
also found that the appellant failed to prove his affirmative defense of disability
discrimination based on a failure to accommodate. ID at 6-10. The
administrative judge additionally found a nexus between the charge and the
efficiency of the service and concluded that the penalty of removal was
reasonable. ID at 10-12.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1 at 4. He argues that he can complete his work via teleworking and
that the agency discriminated against him based on his disability. Id. He also
lists his length of service and lack of prior disciplinary or performance problems
as mitigating factors. Id. The agency has responded to his petition for review.
PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The parties do not challenge the administrative judge’s finding that the
agency proved its charge of excessive absence and the nexus of the charge to the
efficiency of the service. Therefore, we decline to disturb these findings on
review. See 5 C.F.R. § 1201.115 (explaining that the Board normally considers
only those issues raised on review). Instead, we will focus on the specific
disability discrimination and penalty issues the appellant has raised. PFR File,
Tab 1 at 4.
The appellant has failed to prove his affirmative defense of disability
discrimination.
The appellant on review repeats his argument that he was discriminated
against because of his disability. PFR File, Tab 1 at 4. The administrative judge
found that the appellant failed to prove his affirmative defense of failure to
accommodate. ID at 6-10. We agree. As the administrative judge observed, the
appellant confirmed he was not asserting a claim of disability discrimination
based on disparate impact or disparate treatment. ID at 6 n.4; IAF, Tab 13 at 6.3
To the extent the appellant is raising a disparate treatment or disparate impact
claim on review, we find that he has waived those arguments. PFR File, Tab 1
at 4; see Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016) (finding
that the Board generally will not consider an argument raised for the first time on
review absent a showing that it is based on new and material evidence not
previously available despite a party’s due diligence). As such, we only address
his argument regarding a failure to accommodate.
An appellant may establish a disability discrimination claim based on
failure to accommodate by showing the following: (1) he is a qualified individual
with a disability; (2) the action appealed was based on his disability; and, to the
extent possible, (3) there was a reasonable accommodation under which the
appellant believes he could perform the essential duties of his position or of a
vacant position to which he could be reassigned. Brown v. Department of the
Interior, 121 M.S.P.R. 205, ¶ 23 (2014) (setting forth this test but omitting the
requirement that an individual prove she is “otherwise qualified”), overruled on
other grounds by Haas v. Department of Homeland Security , 2022 MSPB 36; see
Haas, 2022 MSPB 36, ¶ 29 (clarifying that only a qualified individual with a
disability is entitled to relief for an alleged denial of reasonable accommodation).
The administrative judge did not make a determination as to whether the
appellant was a “qualified” individual with a disability. An individual is
qualified if he can perform, with or without reasonable accommodation, the
essential functions of the position he holds or desires. 29 C.F.R. § 1630.2(m).
There is a question from the record as to whether the appellant could perform the
essential functions of his position, with or without accommodation. The record
reflects that the appellant’s condition often rendered him unable to walk or even
get around his house. IAF, Tab 7 at 4-31. Conversely, the appellant argued both
below and on review that he can perform the essential duties of his position on a
full-time telework schedule. IAF, Tab 13 at 5; PFR File, Tab 1 at 4. We need not
resolve this question on review, however, as we agree with the administrative4
judge that the appellant failed to engage in the interactive process to enable
finding a reasonable accommodation. ID at 9-10.
The appellant here made a reasonable accommodation request when he
disclosed his medical restrictions sufficient to inform the agency that he needed
an adjustment or change at work for a reason related to a medical condition. IAF,
Tab 6 at 39-42, 51-58; see Paris v. Department of the Treasury , 104 M.S.P.R.
331, ¶ 17 (2006) (finding an employee need only let his employer know in
general terms that he needs accommodation for a medical condition). Having
sufficiently informed his employer of this need, the agency was required to
engage in an interactive process to determine an appropriate accommodation.
Simpson v. U.S. Postal Service , 113 M.S.P.R. 346, ¶ 16 (2010). However, the
appellant was also required to cooperate in the interactive process. Id.
The appellant’s supervisor offered to move the appellant’s workstation and
cubicle to the first floor to eliminate the need to climb stairs. IAF, Tab 6 at 34;
Tab 30 at 16. The appellant rejected this offer . IAF, Tab 7 at 11, Tab 30 at 7-8.
The appellant’s supervisor also advised the appellant that he could sit frequently
as recommended by his medical provider. IAF, Tab 30 at 16-17. In addition, he
invited the appellant to request a reasonable accommodation and advised the
appellant of his obligation to participate in the interactive process. IAF, Tab 6
at 45.
The appellant did not engage in the interactive reasonable accommodation
process. At no time before his removal did he explain how he could perform his
assigned position with additional restrictions or modifications.2 IAF, Tab 30
at 8-9. Further, there is no evidence he identified an alternative position that he
desired. Rather, according to his supervisor’s unrebutted sworn declaration, the
appellant indicated he planned to report to work the next day on approximately 20
2 The appellant asserts that a full-time telework schedule is an accommodation that
would allow him to perform the essential functions of his position. IAF, Tab 13 at 5;
PFR File, Tab 1 at 4. However, he admitted below that he did not ask for telework prior
to his removal. IAF, Tab 30 at 14.5
different occasions, but he ultimately requested leave rather than reporting. Id.
at 8; Edwards v. Department of Veterans Affairs , 111 M.S.P.R. 297, ¶¶ 4, 6
(2009) (explaining that if unrebutted, an affidavit or a declaration made under
penalty of perjury proves the facts asserted therein). We therefore agree with the
administrative judge that the agency engaged in the required interactive process
to determine an accommodation, but the appellant failed to appropriately engage.
ID at 9-10; see Simpson, 113 M.S.P.R. 346, ¶ 18 (finding that an appellant did not
show a failure to accommodate when he did not provide requested medical
documentation, articulate a reasonable accommodation, or identify an alternative
position); see also Rosario-Fabregas v. Department of the Army , 122 M.S.P.R.
468, ¶¶ 3-4, 18 (2015) (indicating that the appellant failed to engage in the
interactive process when he did respond to the agency’s request to clarify his
doctor’s suggestion that he could work on a part-time schedule and did not
identify any vacant, funded position to which the agency might have reassigned
him), aff’d, 833 F.3d 1342 (Fed. Cir. 2016); Collins v. U.S. Postal Service ,
100 M.S.P.R. 332, ¶¶ 11-12 (2005) (finding that the agency was not obligated to
continue the interactive reasonable accommodation process when the appellant
failed to cooperate in the process).
The administrative judge correctly found that the penalty was reasonable.
To the extent the appellant is challenging the reasonableness of the penalty,
we find that the administrative judge correctly found that the penalty of removal
was reasonable. ID at 10-12. The FAA has, as required by statute, developed its
own personnel management system. IAF, Tab 8 at 13; see 49 U.S.C.
§ 40122(g)(1). Under this system, supervisors must consider mitigating factors
that are identical to those applicable to other Federal employees before deciding
if corrective action is warranted. Compare IAF, Tab 8 at 15, with Douglas v.
Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981). An agency’s
determination of an appropriate penalty is not entitled to deference when the
deciding official does not consider any of the relevant mitigating circumstances.6
Brown v. U.S. Postal Service , 64 M.S.P.R. 425, 432-33 (1994). Here, the agency
considered the appellant’s 37 years of service and prior performance record. IAF,
Tab 6 at 27. However, there is no discussion of the remaining factors that might
be relevant to the agency’s penalty determination. The administrative judge
found that, even if the agency failed to consider the appropriate mitigating
factors, removal was an appropriate penalty for the appellant’s excessive absence.
ID at 11-12. We agree.
When the Board finds that an agency has failed to weigh the relevant
factors, it may determine how the agency’s decision should be corrected to bring
the penalty within the parameters of reasonableness. Brown, 64 M.S.P.R.
at 432-33. Following the expiration of his FMLA-protected leave in August
2018, the appellant never returned to work. IAF, Tab 7 at 18-31, 33-48, Tab 30
at 17. The appellant’s absence compromised the efficiency of the agency’s
operations, required coworkers to cover his job duties in addition to their own
assigned job, and created a backlog of work. IAF, Tab 30 at 8. As for mitigating
factors, the appellant has roughly 37 years of Federal service with no
performance or disciplinary problems.3 PFR File, Tab 1 at 4. An employee
absence, such as this one, for which no foreseeable end is in sight is a burden that
no employer can efficiently endure, and a prolonged absence is just cause for
removal. Conte v. U.S. Treasury Department , 10 M.S.P.R. 346, 348 (1982), aff’d,
707 F2d 517 (9th Cir. 1983) (Table). Accordingly, we agree with the
administrative judge’s conclusion that the agency’s penalty of removal was
reasonable. ID at 12.
3 The appellant did not assert any other mitigating factors that he believed were
significant, and the Board need not contemplate mitigating factors not identified by the
appellant as significant. Brown, 64 M.S.P.R. at 433 (citing Yeschick v. Department of
Transportation, 801 F.2d 383, 385 (Fed. Cir. 1986)).7
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
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.8
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on9
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or10
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 11
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Erickson_JoelDA-0752-19-0271-I-1__Final_Order.pdf | 2024-06-28 | JOEL ERICKSON v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. DA-0752-19-0271-I-1, June 28, 2024 | DA-0752-19-0271-I-1 | NP |
1,115 | https://www.mspb.gov/decisions/nonprecedential/Gulyas_Christopher_C_SF-0752-18-0637-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTOPHER C. GULYAS,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-0752-18-0637-I-1
DATE: June 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher C. Gulyas , San Diego, California, pro se.
Jennifer Demming , Esquire, Pensacola, Florida, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal. 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
clarify the analysis of the appellant’s affirmative defense of status-based
disability discrimination, we AFFIRM the initial decision.
BACKGROUND
Prior to his removal, the appellant was employed as a GS-5 Administrative
Assistant at the agency’s Naval Reserve Officers Training Corps in San Diego,
California. Initial Appeal File (IAF), Tab 1 at 1, Tab 4 at 13. On June 23, 2017,
the agency issued him a letter of reprimand for failure to follow instructions.
IAF, Tab 7 at 133-34. Four months later, the agency issued a decision to suspend
him for 14 days for failure to meet deadlines, careless workmanship, and
dishonest conduct. Id. at 131-32. He served that suspension from October 24 to
November 6, 2017. Id. at 5.
On May 4, 2018, the agency proposed his removal based on the following
charges: (1) failure to follow instructions when he failed to submit disenrollment
packages for two different individuals to the agency’s Naval Service Training
Command (NSTC) within 30 days of the September 2017 actions by the
Performance Review Board (PRB) and emailed their medical and dental records
on February 9, 2018, the day after the recipient at Student Operations (OD4)
advised him that he could not receive the documents via email; and (2) dishonest2
conduct when he assured his supervisor on February 13, 2018, that “all is well
with the packages,” or words to that effect, when he knew they had not been
properly submitted. Id. at 4-8. On June 4, 2018, the agency issued a decision
letter on its proposed removal, sustaining both charges and finding that removal
was an appropriate penalty. IAF, Tab 4 at 14-16.
The appellant filed this appeal of his removal with the Board. IAF, Tab 1.
Following a hearing, the administrative judge issued an initial decision affirming
the removal action. IAF, Tab 42, Initial Decision (ID) at 1, 21. He found that the
agency proved both charges. ID at 7-8, 11-12. He further found that the agency’s
action promoted the efficiency of the service, and that removal was a reasonable
penalty. ID at 18-20. The administrative judge also concluded that the appellant
did not prove his affirmative defense of disability discrimination. ID at 12-18.
The appellant has timely filed a petition for review challenging the
administrative judge’s finding that the agency proved the charges and that he
failed to meet his burden of proving his affirmative defense of disability
discrimination. Petition for Review (PFR) File, Tab 7 at 4-12. He also disputes
the administrative judge’s decision to deny all of the witnesses he requested
below. Id. at 5. The agency has not responded to the petition.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly found that the agency established the failure to
follow instructions charge.
In his petition for review, the appellant argues that his mistakes were not
intentional but that he had received insufficient training on his job duties, was
behind on his workload due to his 14-day suspension, and was confused about the
timeline for submitting disenrollment packages and the requirement to mail hard
copies of the records. Id. at 6-7. An agency may prove a charge of failure to
follow instructions by establishing that (1) the employee was given proper
instructions and (2) the employee failed to follow the instructions, without regard
to whether the failure was intentional or unintentional. Archerda v. Department3
of Defense, 121 M.S.P.R. 314, ¶ 16 (2014). Failure to follow supervisory
instructions does not turn on proof of intent. Hamilton v. U.S. Postal Service ,
71 M.S.P.R. 547, 555-56 (1996). The administrative judge found that the agency
established the charge. ID at 7-8. For the following reasons, we agree.
Regarding specifications 1 and 2, the administrative judge found that the
appellant did not dispute that the agency’s NSTC Manual M-1533.2B (Manual)
set forth a requirement to forward disenrollment packages to OD4 within 30 days
of the PRB action and that the packages at issue were untimely submitted. ID
at 4, 7. The appellant testified at the hearing that he was in receipt of the Manual,
it was part of the work binder he created, and he believed he consulted this
document when he completed the disenrollment packages. IAF, Tab 36, Hearing
Compact Disc (HCD) (testimony of the appellant). On review, the appellant does
not dispute these findings. Rather, he seeks to excuse his misconduct by claiming
that he did not understand the instructions. PFR File, Tab 7 at 6. As the
appellant observes, the administrative judge improperly characterized his
testimony on this issue. Id. While the administrative judge found that the
appellant did not claim he was confused about the 30-day deadline, the appellant
testified that the Manual set forth a 30-day requirement for completion but that
due to his post-suspension work backlog he could not “think straight” and that he
“never denied that [he] made mistakes but [he] didn’t do them intentionally.”
HCD (testimony of the appellant); ID at 4-5.
The administrative judge’s factual error provides no basis to disturb the
initial decision. See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282
(1984) (finding that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision).
Regardless of how the appellant allegedly interpreted the instruction, the Manual
was clear. It provided that disenrollment packages “shall be forwarded to the
NSTC OD4 within 30 days of the PRB.” IAF, Tab 7 at 123-24. The appellant
had access to the Manual and to OD4’s Guidance, which also required that4
disenrollment packages be submitted within 30 days of the action taken by the
PRB. IAF, Tab 4 at 129-30, 142. In any event, the appellant’s subjective
confusion cannot excuse his misconduct because intent is not an element of a
failure to follow instructions charge. See Archerda, 121 M.S.P.R. 314, ¶ 16.
The appellant also maintains on review that he did not receive proper
training. PFR File, Tab 7 at 5-7, 10-11. The administrative judge addressed this
argument below and observed that the appellant had been in his position since
2009, his job duties were based on written guidance and web-based instructions,
and he had received training. ID at 6, 17. The alleged inadequacy of the
appellant’s training is not relevant to his failure to follow clear instructions that
he admittedly received. The actions taken by the PRB occurred in
September 2017, and the two disenrollment packages were not submitted until
January 22, 2018, well after the 30-day requirement. IAF, Tab 7 at 4, 10. The
appellant did not dispute that he failed to timely process the disenrollment
packages. ID at 6; HCD (testimony of the appellant). Thus, we agree with the
administrative judge that the agency proved specifications 1 and 2.
Regarding specification 3, the administrative judge found that the appellant
did not dispute that he was informed by the recipient at OD4 that he was required
to send hard copies of the disenrollment packages, including the medical and
dental records, rather than email them. ID at 4. On review, the appellant again
maintains that, while he does not dispute that he was told to send hard copies, he
was confused about this requirement, lacked sufficient training, and was trying to
catch up on his backlog at work. PFR File, Tab 7 at 6-7.
The administrative judge addressed these arguments below. He observed
that OD4’s Guidance included in the appellant’s work binder expressly required
that disenrollment packages include medical and dental records and be sent to a
physical address in Pensacola once complete. ID at 5; IAF, Tab 4 at 147.
Further, to the extent the appellant had any confusion regarding this requirement
to send hard copies of the records, the administrative judge noted that the5
recipient at OD4 reminded him of this requirement on February 8, 2018. ID at 5;
IAF, Tab 7 at 10-11, 22. The record contains the February 8, 2018 email in
which the package recipient stated to the appellant that he could not “accept an
emailed copy of the records because the [N]ational [A]rchives does not accept
loose leaf copies.” IAF, Tab 7 at 22. The appellant subsequently emailed the
records on February 9, 2018. Id. at 10-11. Regardless of the appellant’s
reiteration of his arguments that he was confused or lacked training, we agree
with the administrative judge that the agency established both elements, i.e., that
it gave the appellant the instructions at issue and that he failed to follow them.
ID at 7-8; see Archerda, 121 M.S.P.R. 314, ¶ 16. Accordingly, we affirm the
administrative judge’s finding that the agency established specification 3 and the
failure to follow instructions charge.
The administrative judge properly found that the agency established the dishonest
conduct charge.
The administrative judge found, and we agree, that the nature of the act
alleged in support of the agency’s charge in this matter concerns a lack of candor
because the agency alleged that the appellant acted with a level of intent to
knowingly give incomplete or inaccurate information to his supervisor. ID at 8;
IAF, Tab 17 at 20. An agency alleging lack of candor must prove the following
elements: (1) that the employee gave incorrect or incomplete information; and
(2) that he did so knowingly. Fargnoli v. Department of Commerce ,
123 M.S.P.R. 330, ¶ 17 (2016). In finding that the agency established this
charge, the administrative judge credited the appellant’s supervisor, who testified
as to the conduct underlying the appellant’s removal, over the appellant’s denials.
ID at 8-12.
The Board must give deference to an administrative judge’s credibility
determinations when they are based explicitly or implicitly on the observations of
witnesses testifying at a hearing and may overturn such determinations only when
it has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice ,6
288 F.3d 1288, 1301 (Fed. Cir. 2002). Here, the administrative judge correctly
resolved the credibility determinations in accordance with the factors set forth in
Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987).2 He identified
the factual questions in dispute, summarized the agency’s charge, and then
analyzed the evidence and testimony that the parties offered with respect to the
charge. ID at 8-12.
On February 8, 2018, the recipient at OD4 reminded the appellant of the
requirement to send hard copies of the records for the disenrollment packages. ID
at 5; IAF, Tab 7 at 10-11, 22. As discussed above, the package recipient emailed
the appellant that he could not “accept an emailed copy of the records.” IAF,
Tab 7 at 22. The appellant subsequently emailed the records on February 9, 2018.
Id. at 10. The agency alleged that the appellant then engaged in dishonest
conduct when he assured his supervisor on February 13, 2018, that “all is well
with the packages,” or words to that effect, when he knew they had not been
properly submitted. Id. at 4-5.
In sustaining this charge, the administrative judge made explicit
demeanor-based credibility determinations. ID at 9-11. He did not credit the
appellant’s testimony regarding this charge because he had varying denials of the
statements—such as the alleged phrasing being unusual for him because he uses
“beatnick/hippie” phrases, that he does not recall exactly what he said to his
supervisor, that the exact statement cannot be relied upon because there was no
recording of it, and that any inaccurate statements made were the result of
“stuttering under pressure.” ID at 10-11. Instead, the administrative judge
2 To resolve credibility issues, an administrative judge must identify the factual
questions in dispute, summarize the evidence on each disputed question, state which
version he believes, and explain in detail why he found the chosen version more
credible, considering such factors as (1) the witness’s opportunity and capacity to
observe the event or act in question; (2) his character; (3) any prior inconsistent
statement by the witness; (4) his bias, or lack of bias; (5) the contradiction of his
version of events by other evidence or its consistency with other evidence; (6) the
inherent improbability of his version of events; and (7) his demeanor. Hillen,
35 M.S.P.R. at 458. 7
credited the testimony of the appellant’s supervisor, whose consistent testimony
regarding his recollection of the February 13, 2018 conversation was “specific,
detailed . . . and not inherently improbable” and further supported by the record
evidence. Id. According to the administrative judge, the supervisor testified that
the appellant represented it was “all good” with the packages. ID at 9.
In his petition for review, the appellant argues that the administrative judge
incorrectly stated that he uses “hippie” phrases and that, contrary to the
administrative judge’s findings, he never would have used the phrase “all good”
because that is not the way he speaks. PFR File, Tab 7 at 7 -8. He also suggests
that the statement he is charged with making, “all is well with the packages,” is
ambiguous. Id.; IAF, Tab 7 at 4. We decline to disturb the administrative
judge’s demeanor-based credibility findings. ID at 9-11. Regarding the
administrative judge’s characterization of the appellant’s speech patterns as being
“beatnick/hippie,” this exact description of his speaking style was used by the
appellant in his written reply to the agency. ID at 10; IAF, Tab 4 at 28. Further,
we agree that, regardless of the exact phrase used by the appellant, the agency
proved that his suggestion to his supervisor that the packages were “well” or
“good” was inaccurate and incomplete. ID at 11-12. An agency is not required to
prove each factual specification supporting the charge, but only the essence of the
charge. Cole v. Department of the Air Force , 120 M.S.P.R. 640, ¶ 8 (2014). It
has done so here.
We modify the initial decision’s analysis of the appellant’s disability
discrimination affirmative defense, still concluding that he failed to prove this
defense.
On petition for review, the appellant argues that the administrative judge
erred in denying his affirmative defense of disability discrimination. PFR File,8
Tab 7 at 8-11.3 He further alleges that he provided proof of his disability by
providing all of his medical records below. Id. at 8.
An appellant who raises a claim of disability discrimination must first
establish that he is a disabled person entitled to the protection of the disability
discrimination laws. McNab v. Department of the Army , 121 M.S.P.R. 661, ¶ 7
(2014). Here, the administrative judge found that there was “little in the record to
adequately support a conclusion that the appellant was substantially limited in a
major life activity” and thus, the appellant failed to meet his burden of showing
that he was disabled. ID at 17-18. He also found that the appellant did not prove
that the agency perceived him as being disabled. Id. Consequently, he concluded
that the appellant failed to show that the agency discriminated against him on the
basis of his disability. ID at 18. Based on the following, we modify the initial
decision to find that the appellant established that he was an individual with a
disability. Nevertheless, we agree with the administrative judge’s ultimate
conclusion that the appellant failed to establish his claim that the agency treated
him disparately on the basis of his disabilities.
3 The appellant also appears to argue on review that he was subject to “harassment,
hazing, elder abuse, and terrorism.” PFR File, Tab 7 at 11. We decline to address those
arguments. These claims are not properly before us. The appellant made similar claims
in his initial appeal. IAF, Tab 1 at 5. The administrative judge did not identify these
claims as issues for adjudication in the prehearing conference summary and did not
render findings on these claims in the initial decision. IAF, Tab 17 at 2-19; ID
at 12-18. The appellant had the opportunity to object to the administrative judge’s
prehearing conference summary that included the issues to be determined at the hearing;
yet, despite requesting witnesses not identified in the prehearing conference summary,
he did not object to the summary of his affirmative defenses. IAF, Tab 17 at 21, Tabs
19, 25-26, 28, 31. Thus, we find that the appellant has abandoned these affirmative
defenses. See Thurman v. U.S. Postal Service , 2022 MSPB 21, ¶¶ 17-18 (setting forth a
set of factors for consideration when determining whether an appellant will be deemed
to have waived or abandoned a previously raised affirmative defense including, as
relevant here, the thoroughness and clarity with which the appellant raised his
affirmative defense, the degree to which he continued to pursue his affirmative defense,
and whether the appellant objected to a summary of the issues to be decided that failed
to include the potential affirmative defense). 9
The appellant provided evidence that he suffers from, among other
conditions, major depressive disorder, obsessive compulsive personality disorder,
and autism. IAF, Tab 5 at 161-69, Tab 6 at 108-16, 169-74, 271-78. The agency
did not dispute these diagnoses. The Equal Employment Opportunity
Commission (EEOC) has listed these conditions as generally sufficient to
establish a disability. See McNab, 121 M.S.P.R. 661, ¶ 7 (recognizing that, under
the EEOC’s regulation at 29 C.F.R. § 1630.2(j)(3)(iii), major depressive disorder
is considered a condition that substantially limits the major life activity of brain
function); see also 29 C.F.R. § 1630.2(j)(3)(iii) (identifying autism, major
depressive disorder, and obsessive compulsive disorder as impairments that
substantially limit brain function). We find these diagnoses, combined with the
appellant’s well-documented history of these conditions, more than sufficient to
establish that he is an individual with a disability.4
Although the administrative judge found the appellant not to be disabled,
he also found that the appellant provided no evidence that the agency took any of
the actions at issue in this appeal because of his disability and that there was
nothing in the record to suggest that he was treated in a disparate manner.5 ID
at 18. We modify the initial decision to supplement the administrative judge’s
analysis of this claim. In Pridgen v. Office of Management and Budget ,
2022 MSPB 31, ¶¶ 35-42, the Board clarified the proper standard for analyzing a
status-based disability discrimination claim. Under Pridgen, the appellant must
prove that his disability was at least a motivating factor in the removal action.
Pridgen, 2022 MSPB 31, ¶ 40. The administrative judge found that, assuming the
appellant had met his burden that he was a qualified individual with a disability,
4 Because we find below that the appellant did not otherwise prove his disability
discrimination claim, we do not reach the issue of whether he was a “qualified
individual with a disability.” See 42 U.S.C. §§ 12111(8), 12112(a).
5 On review, the appellant raises issues related to his work location. PFR File, Tab 7
at 9. However, his work location is not relevant to his disability discrimination claim,
and therefore we decline to address these arguments. 10
“there [was] nothing in the record to suggest that he was treated in a disparate
manner” and that the decision to remove the appellant was due to his misconduct.
ID at 18. We discern no basis for disturbing the administrative judge’s finding
that the appellant failed to prove his claim that he was subject to disparate
treatment in connection with his major depressive disorder or any other stated
conditions.6
The administrative judge correctly found that the agency met the nexus
requirement, and that the penalty of removal was reasonable.
The administrative judge found that there was a nexus between the
appellant’s misconduct and the efficiency of the service. ID at 18. The appellant
does not challenge this finding, and we discern no basis for disturbing it.
Regarding the penalty, the appellant argues that the administrative judge
failed to consider that he had no adverse performance evaluations from 2010
through 2017 and appears to dispute the prior discipline the deciding official
considered. PFR File, Tab 7 at 5, 11.7 When, as here, the agency’s charges have
been sustained, the Board will review an agency -imposed penalty only to
determine if the agency considered all of the relevant Douglas factors and
exercised management discretion within tolerable limits of reasonableness.8
Portner v. Department of Justice , 119 M.S.P.R. 365, ¶ 10 (2013), overruled on
other grounds by Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 17. In
determining whether the selected penalty is reasonable, the Board gives due
6 Because we affirm the administrative judge’s finding that the appellant failed to prove
that disability discrimination was a motivating factor in the agency’s action, we need
not resolve the issue of whether the appellant proved that discrimination was a “but-for”
cause of the agency’s decision. See Pridgen, 2022 MSPB 31, ¶¶ 20-22, 29-33.
7 He also argues, apparently as a mitigating factor, that the agency forwarded his
negative 2018 mid-year assessment to an employee who was not his supervisor. PFR
File, Tab 7 at 11. The appellant does not explain what, if any, impact this had or why it
constitutes a mitigating factor. Thus, this argument provides no basis for disturbing the
administrative judge’s findings concerning the reasonableness of the penalty.
8 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981 ), the Board
articulated a nonexhaustive list of factors relevant to the penalty determination in
adverse actions.11
deference to the agency’s discretion in exercising its managerial function of
maintaining employee discipline and efficiency. Id. The Board will modify a
penalty only when it finds that the agency failed to weigh the relevant factors or
that the penalty the agency imposed clearly exceeded the bounds of
reasonableness. Id.
As the administrative judge found, the deciding official specifically took
into consideration relevant mitigating factors, such as the appellant’s years of
prior satisfactory performance and his 8 years of service, but determined that his
supervisor had lost confidence in the appellant’s ability to work independently,
which undermined the agency’s ability to efficiently accomplish its mission. ID
at 20; IAF, Tab 4 at 17-18. Further, the administrative judge found that the
deciding official also considered aggravating factors, including the appellant’s
prior letter of reprimand and 14-day suspension. ID at 19-20. The Board’s
review of a prior disciplinary action is limited to determining whether that action
is clearly erroneous, if the employee was informed of the action in writing, the
action is a matter of record, and the employee was permitted to dispute the
charges before a higher level of authority than the one that imposed the
discipline. Bolling v. Department of the Air Force , 9 M.S.P.R. 335, 339 -40
(1981). We find that the letter of reprimand and the 14 -day suspension satisfy the
Bolling criteria because both of them were in writing and in the record, and the
appellant was notified of his right to grieve both of them. IAF, Tab 7 at 131-34.
The appellant argues that he received this prior discipline as a result of mistakes
he made due to his lack of training. PFR File, Tab 7 at 5. We are not convinced
that this assertion rises to the level of clear error. See Lambert v. Department of
the Army, 44 M.S.P.R. 688, 699 (1990) (finding an appellant’s bare allegation
that prior discipline that met the Bolling criteria was contrived was insufficient to
convince the Board that it was clearly erroneous) , aff’d per curiam , 928 F.2d 410
(Fed. Cir. 1991) (Table) . For these reasons, we agree with the administrative12
judge that the deciding official properly considered the appellant’s prior
discipline as an aggravating factor. ID at 19-20.
The Board has regularly held that a lack of candor, particularly when
involved with other misconduct, can support a removal. See Smith v. Department
of the Interior, 112 M.S.P.R. 173, ¶ 26 (2009) (finding the penalty of removal
appropriate for charges of lack of candor and unauthorized absence). Further,
failure to follow instructions may be sufficient cause for removal. Jones v.
Department of Justice , 98 M.S.P.R. 86, ¶ 21 (2004). In light of the above, we
agree with the administrative judge that the deciding official correctly weighed
the relevant Douglas factors, and that the penalty of removal was reasonable.
The appellant’s arguments as to evidentiary matters and the administrative
judge’s ruling regarding witnesses do not provide a basis for disturbing the initial
decision.
On review, the appellant also challenges the administrative judge’s
rejection of witnesses that he requested for his hearing. PFR File, Tab 7 at 5.
However, he fails to specifically identify the witnesses in question. Nor does he
provide any evidence or argument challenging the administrative judge’s rulings
concerning his witnesses. Thus, we are not persuaded.
A review of the record below shows that the appellant was instructed on
how to submit a list of his witnesses and given the opportunity to do so as part of
his prehearing submissions below but did not. IAF, Tab 8 at 2, Tab 17 at 2. At
the prehearing conference, the appellant confirmed that he did not file any
prehearing submissions or witness requests. IAF, Tab 17 at 2. Nonetheless, the
administrative judge approved the appellant, himself, to testify based on his oral
request. Id. The administrative judge advised the parties that any objections to
his order and summary of the prehearing conference, which included his ruling on
witnesses, must be filed within 7 days. Id. at 2, 21.
The appellant did not object. However, within the applicable timeframe, he
requested that two witnesses be added to his witness list and stated that additional13
names would be forthcoming. IAF, Tab 19 at 3. The administrative judge denied
this request for failure to submit any proffer regarding the nature of the
witnesses’ testimony with the submitted names and as untimely filed without
good cause shown. IAF, Tab 23 at 2. After receiving this denial, the appellant
subsequently filed four requests to add additional witnesses. IAF, Tabs 25-26,
28, 31. The administrative judge denied these witness requests for insufficient
proffers, duplicative testimony, or as being untimely filed without good cause
shown. IAF, Tab 32.
We find that the appellant has failed to establish that the administrative
judge abused his discretion by declining to approve additional witnesses to testify
on the appellant’s behalf. See Gardner v. Department of Veterans Affairs ,
123 M.S.P.R. 647, ¶ 18 (2016) (finding that an administrative judge did not abuse
her discretion by limiting the appellant to her own testimony because she did not
submit prehearing submissions), clarified by Pridgen , 2022 MSPB 31, ¶¶ 23-24;
see also Guzman v. Department of Veterans Affairs , 114 M.S.P.R. 566, ¶¶ 5, 19
(2010) (finding that, when the appellant failed to timely request witnesses, the
administrative judge appropriately sanctioned the appellant by denying his
requests for witnesses). Further, the appellant fails to show on review that the
testimony of any of the excluded witnesses would have been material to the
outcome of his appeal. See Nichols v. U.S. Postal Service , 80 M.S.P.R. 229, ¶ 7
(1998) (declining to disturb an initial decision based on the exclusion of
witnesses because the appellant did not explain how he was prejudiced by their
exclusion). Therefore, the appellant has not shown that any error adversely
affected his substantive rights. See Panter, 22 M.S.P.R. at 282.
The appellant also asserts that he submitted evidence below, specifically
his medical records, that was not reviewed by the administrative judge. PFR File,
Tab 7 at 5, 11. However, the administrative judge stated that he made his finding
that the appellant failed to meet his burden of proving disability discrimination
“following a careful review of the entire record and based on the record as a14
whole.” ID at 18. Moreover, the administrative judge’s failure to mention all of
the evidence of record does not mean that he did not consider it in reaching his
decision. See Marques v. Department of Health and Human Services ,
22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
Thus, the appellant’s argument does not provide a basis to disturb the initial
decision.
Accordingly, we deny the petition for review, and affirm, as modified, the
initial decision sustaining the appellant’s removal.9
NOTICE OF APPEAL RIGHTS10
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
9 The appellant also argues that the administrative judge improperly attributed the
quote, “I am the big dog,” to him. PFR File, Tab 7 at 11; ID at 16. He alleges that the
quote is attributable to a coworker who said it to a newly commissioned second
lieutenant. PFR File, Tab 7 at 11. The administrative judge actually attributed that
quote to a janitor who allegedly said it to the appellant. ID at 16. Regardless, because
the administrative judge’s legal conclusions do not rely on this alleged incident, which
pre-dated the misconduct at issue here, we find that any error was harmless. See
Panter, 22 M.S.P.R. at 282.
10 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. 15
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
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. 16
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
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: 17
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.11 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).
11 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 18
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.19 | Gulyas_Christopher_C_SF-0752-18-0637-I-1__Final_Order.pdf | 2024-06-28 | CHRISTOPHER C. GULYAS v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0752-18-0637-I-1, June 28, 2024 | SF-0752-18-0637-I-1 | NP |
1,116 | https://www.mspb.gov/decisions/nonprecedential/Darnell_Jeffery_G_CH-0752-22-0471-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFFERY G. DARNELL,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
CH-0752-22-0471-I-1
DATE: June 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeffery G. Darnell , Waynesville, Missouri, pro se.
Joseph K. Carberry , Esquire, Fort Leonard Wood, Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed his removal. On petition for review, the appellant argues that the
administrative judge improperly denied his request to add new witnesses and that
he presented evidence that his agency removed him in reprisal for his protected
whistleblowing activity. Generally, we grant petitions such as this one only in the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you3
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
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: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Darnell_Jeffery_G_CH-0752-22-0471-I-1__Final_Order.pdf | 2024-06-28 | JEFFERY G. DARNELL v. DEPARTMENT OF THE ARMY, MSPB Docket No. CH-0752-22-0471-I-1, June 28, 2024 | CH-0752-22-0471-I-1 | NP |
1,117 | https://www.mspb.gov/decisions/nonprecedential/Brown_HazelDC-0432-19-0479-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HAZEL BROWN,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DC-0432-19-0479-I-1
DATE: June 28, 2024
THIS ORDER IS NONPRECEDENTIAL1
Carson Bridges and Tyler Sroufe , Dallas, Texas, for the appellant.
Christopher Hawthorne , Joint Base Andrews, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s action removing her for unacceptable performance pursuant
to 5 U.S.C. chapter 43. For the reasons set forth below, we GRANT the petition
for review. We MODIFY the initial decision to: (1) correct misstatements
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
regarding the agency’s burden of proof; (2) clarify the legal standard applicable
to the appellant’s claim of failure to accommodate disability discrimination;
(3) supplement the initial decision to address the appellant’s claim of disparate
treatment disability discrimination; and (4) clarify the legal standard applicable to
the appellant’s claim of retaliation for protected equal opportunity employment
(EEO) activity. We REMAND the matter to the Washington Regional Office for
further adjudication consistent with the U.S. Court of Appeals for the Federal
Circuit’s decision in Santos v. National Aeronautics and Space Administration ,
990 F.3d 1355 (Fed. Cir. 2021).
DISCUSSION OF ARGUMENTS ON REVIEW
We modify the initial decision to correct misstatements regarding the agency’s
burden of proof. 2
¶2Although the administrative judge correctly stated that the agency’s burden
of proof was substantial evidence,3 Initial Appeal File (IAF), Tab 25, Initial
Decision (ID) at 3-5, portions of her initial decision misidentified the applicable
burden as preponderant evidence,4 ID at 14-16, 18, 20, 22, 32. However, a
different outcome is not warranted. Indeed, even assuming the administrative
judge misapplied the burden of proof, the agency was subjected to a higher
standard; thus, the appellant’s substantive rights were not prejudiced. See Salter
v. Department of the Treasury , 92 M.S.P.R. 355, ¶ 12 (2002) (explaining that
actions taken under chapter 43 are subject to the lower substantial evidence
standard rather than the higher preponderant evidence standard); see also Panter
v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (explaining that an
2 We have considered the appellant’s arguments on review; however, we find that none
provide a basis to disturb the initial decision. Petition for Review File, Tab 3 at 5-18.
3 Substantial evidence is the “degree of relevant evidence that a reasonable person,
considering the record as a whole, might accept as adequate to support a conclusion,
even though other reasonable persons might disagree.” 5 C.F.R. § 1201.4(p).
4 Preponderant evidence is the “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. § 1201.4(q). 2
adjudicatory error that is not prejudicial to a party’s substantive rights provides
no basis for reversal of an initial decision).
We modify the initial decision to clarify the legal standard applicable to the
appellant’s affirmative defense of failure to accommodate disability
discrimination.
¶3An agency is required to make reasonable accommodations to the known
physical and mental limitations of an otherwise qualified individual with a
disability unless the agency can show that the accommodation would cause an
undue hardship on its business operations. Miller v. Department of the Army ,
121 M.S.P.R. 189, ¶ 13 (2014); 29 C.F.R. § 1630.9(a). An appellant may
establish a disability discrimination claim based on failure to accommodate by
showing by preponderant evidence that: (1) she is an individual with a disability
as defined by 29 C.F.R. § 1630.2(g); (2) she is a qualified individual with a
disability, as defined by 29 C.F.R. § 1630.2(m); and (3) the agency failed to
provide her a reasonable accommodation. Miller, 121 M.S.P.R. 189, ¶ 13.
¶4Here, in analyzing the appellant’s claim that the agency failed to provide
her with a reasonable accommodation, the administrative judge erroneously
referenced the legal standard set forth in the Board’s decision in Southerland v.
Department of Defense , 119 M.S.P.R. 566, ¶ 23 (2013), overruled by Pridgen v.
Office of Management and Budget , 2022 MSPB 31. ID at 37-38. However,
because the appellant failed to show that she is a qualified individual with a
disability, ID at 38,5 a different outcome is not warranted, see Haas v.
Department of Homeland Security , 2022 MSPB 36, ¶ 28 (explaining that a claim
5 The administrative judge stated, among other things, the following: “[the appellant]
presented no detailed information regarding her conditions nor did she provide any
medical documentation sufficient to conclude that she is a qualified disabled person.”
ID at 38. She also reasoned that the appellant “offered no evidence or argument that
she requested a reasonable accommodation to enable her to complete the essential
duties of her position.” Id. To the extent the administrative judge did not find that the
appellant failed to show by preponderant evidence that she is a qualified individual with
a disability as defined by 29 C.F.R. § 1630.2(m), we supplement her analysis to make
such a finding.3
of disability discrimination based on an agency’s failure to reasonably
accommodate that disability requires that the individual be a qualified individual
with a disability); see also Miller, 121 M.S.P.R. 189, ¶ 13 .
We modify the initial decision to address the appellant’s claim of disparate
treatment disability discrimination.
¶5Although the majority of the appellant’s allegations of disability
discrimination were tethered to her claim that the agency failed to provide her
with a reasonable accommodation, some of her arguments before the
administrative judge could reasonably be construed as claims of disparate
treatment disability discrimination. E.g., IAF, Tab 21 at 28-29. Because the
administrative judge did not explicitly address this theory of discrimination in her
initial decision and the factual record is fully developed on the issue, we
supplement the initial decision to address this claim.
¶6To prevail in a claim of disparate treatment disability discrimination, an
appellant must show that her disability was a motivating factor in the agency’s
decision to take a personnel action against her. Pridgen, 2022 MSPB 31, ¶ 40.
Here, we find that the appellant failed to show by preponderant evidence that her
alleged disability was a motivating factor in the contested personnel action.
Indeed, apart from vague allegations, the record is devoid of evidence suggesting
that the appellant’s alleged disability precipitated her removal. Moreover, insofar
as the appellant failed to show that she is a qualified individual with a disability,
her claim of disparate treatment disability discrimination necessarily fails, see
Haas, 2022 MSPB 36, ¶ 28.
We modify the initial decision to clarify the legal standard applicable to the
appellant’s affirmative defense of EEO retaliation.
¶7In finding that the appellant failed to prove her affirmative defense of
retaliation for engaging in protected EEO activity, i.e., filing an EEO complaint
alleging disability discrimination, the administrative judge referenced the legal
standard set forth in Savage v. Department of the Army , 122 M.S.P.R. 612 (2015),4
overruled in part by Pridgen, 2022 MSPB 31. ID at 40. Relying on this
standard, she found that the appellant had presented “no evidence to support a
finding that the agency had a retaliatory motive in proposing and affirming [her]
removal.” ID at 41. Subsequent to the issuance of the initial decision, the Board
clarified that an appellant alleging retaliation for activity protected under the
Rehabilitation Act must prove that such retaliation was a “but-for” cause of the
agency’s action. Pridgen, 2022 MSPB 31, ¶¶ 44-46. Here, because we agree that
the appellant failed to show that her protected EEO activity was a motivating
factor in her removal, ID at 41, the appellant’s claim necessarily fails under the
more stringent “but-for” framework, see Desjardin v. U.S. Postal Service ,
2023 MSPB 6, ¶ 33.6
Remand is required in light of Santos .
¶8In affirming the agency’s performance-based removal action, the
administrative judge correctly applied the Board’s precedent setting forth the
relevant legal standard for actions under chapter 43 at the time she issued the
initial decision. ID at 3-32. Subsequent to the initial decision, however, the
Federal Circuit held for the first time that, to support an adverse action under
chapter 43, an agency “must justify institution of a PIP” by showing that the
employee’s performance was unacceptable before the PIP. Santos, 990 F.3d
at 1360-61. Therefore, to defend an action under chapter 43, an agency must now
also prove by substantial evidence that the appellant’s performance during the
appraisal period prior to the PIP was unacceptable in one or more critical
elements. See Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 15. The
Federal Circuit’s decision in Santos applies to all pending cases, including this
one, regardless of when the events took place. Id., ¶ 16. The parties here did not
6 Although the administrative judge’s analysis referenced direct evidence and types of
circumstantial evidence, we find no indication that she disregarded any record evidence
because of its direct or circumstantial nature. ID at 38, 40; see Gardner v. Department
of Veterans Affairs , 123 M.S.P.R. 647, ¶ 30 (2016), clarified by Pridgen, 2022 MSPB
31.5
have an opportunity before the administrative judge to address the modified legal
standard in light of Santos. We therefore remand this case for further
adjudication of the appellant’s removal under the standard set forth in Santos.
See Santos, 990 F.3d at 1363-64 (remanding the appeal for further proceedings
under the modified legal standard); see also Lee, 2022 MSPB 11, ¶ 16 (remanding
the appellant’s chapter 43 appeal because the parties were not informed of the
modified standard set forth in Santos).
¶9On remand, the administrative judge shall accept evidence and argument on
whether the agency proved by substantial evidence that the appellant’s pre-PIP
performance was unacceptable. The administrative judge shall hold a
supplemental hearing if appropriate. The administrative judge shall then issue a
new initial decision consistent with Santos. If the agency makes the additional
showing required under Santos on remand, the administrative judge may
incorporate her prior findings on other elements of the agency’s case in the
remand initial decision. However, regardless of whether the agency meets its
burden, if the argument or evidence on remand regarding the appellant’s pre-PIP
performance affects the administrative judge’s analysis of the appellant’s
affirmative defenses, she should address such argument or evidence in the remand
initial decision. See Spithaler v. Office of Personnel Management , 1 M.S.P.R.
587, 589 (1980) (explaining that an initial decision must identify all material
issues of fact and law, summarize the evidence, resolve issues of credibility, and
include the administrative judge’s conclusions of law and his legal reasoning, as
well as the authorities on which that reasoning rests).6
ORDER
¶10For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Brown_HazelDC-0432-19-0479-I-1__Remand_Order.pdf | 2024-06-28 | HAZEL BROWN v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DC-0432-19-0479-I-1, June 28, 2024 | DC-0432-19-0479-I-1 | NP |
1,118 | https://www.mspb.gov/decisions/nonprecedential/Moon_David_T_DE-0752-19-0399-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID MOON,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DE-0752-19-0399-I-1
DATE: June 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence A. Berger , Esquire, Glen Cove, New York, for the appellant.
Harvey Smith , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal. 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The appellant has not disputed that the agency proved its charge, nexus,
and the reasonableness of the penalty; based on the record and the parties’
stipulations, we find that the agency met its burden. Initial Appeal File, Tab 8,
Subtabs 4(b), (e)-(g), Tab 12; see Wentz v. U.S. Postal Service , 91 M.S.P.R. 176,
181 (2002) (finding that the appellant’s stipulations concerning the factual basis
of the agency’s charge were sufficient to prove the charge and nexus); see also
Brown v. Department of the Navy , 229 F.3d 1356, 1361 (Fed. Cir. 2000) (stating
that off-duty conduct that is inconsistent with the agency’s mission and that
undermines confidence in the employee can be sufficient to justify the
employee’s removal); Luongo v. Department of Justice , 95 M.S.P.R. 643, ¶ 13
(2004) (noting that a higher standard of conduct and a higher degree of trust are
required of law enforcement officers as well as supervisors), aff’d, 123 F. App’x
405 (Fed. Cir. 2005). On petition for review, the appellant reiterates his
argument that the agency’s use of the crime provision set forth in 5 U.S.C.
§ 7513(b)(1) to shorten the 30 -day notice period was improper because the
agency did not charge him with a crime, but rather charged him with conduct
unbecoming. Petition for Review File, Tab 1. However, the administrative judge2
considered and rejected such an argument, and the appellant has not demonstrated
any material factual or legal error in his analysis.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
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.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
7 | Moon_David_T_DE-0752-19-0399-I-1__Final_Order.pdf | 2024-06-28 | DAVID MOON v. DEPARTMENT OF JUSTICE, MSPB Docket No. DE-0752-19-0399-I-1, June 28, 2024 | DE-0752-19-0399-I-1 | NP |
1,119 | https://www.mspb.gov/decisions/nonprecedential/Lollar_Clifton_D_DA-1221-14-0324-C-1_DC-1221-14-0324-X-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CLIFTON D. LOLLAR,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DA-1221-14-0324-X-1
DA-1221-14-0324-C-1
DATE: June 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ashok Bail , Esquire, Houston, Texas, for the appellant.
Michelle M. Murray , Washington, D.C., for the agency.
Larry Zieff , Esquire, Irving, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1On August 17, 2023, the Board issued a nonprecedential order affirming the
administrative judge’s October 10, 2017 compliance initial decision, which found
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the agency in noncompliance with the Final Order in the underlying appeal.
Lollar v. Department of Homeland Security , MSPB Docket No. DA-1221-14-
0324-X-1, Compliance Referral File (CRF), Tab 1, Order; Lollar v. Department of
Homeland Security , MSPB Docket No. DA-1221-14-0324-C-1, Compliance File
(CF), Tab 6, Compliance Initial Decision (CID); Lollar v. Department of
Homeland Security , MSPB Docket No. DA-1221-14-0324-W-3, Initial Decision
(ID) (Dec. 13, 2016); W-3 Appeal File, Tab 44. We JOIN MSPB Docket
Nos. DA-1221-14-0324-X-1 and DA-1221-14-0324-C-1, and for the reasons
discussed below, we now find the agency in compliance and DISMISS the
petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
¶2On December 13, 2016, the administrative judge issued an initial decision
granting the appellant’s request for corrective action as to certain prohibited
personnel practices. ID at 30-31. Neither party filed a petition for review, and
thus, the initial decision became the final decision of the Board. ID; see 5 C.F.R.
§ 1201.113.
¶3On May 31, 2017, the appellant filed a petition for enforcement contending
that the agency had miscalculated the performance award it owed him, failed to
award him a quality step increase, and failed to pay him a special act award. CF,
Tab 1 at 7-16. On October 10, 2017, the administrative judge issued a
compliance initial decision granting the petition for enforcement with respect to
the special act award. The agency filed a petition for review, and the appellant
filed a cross-petition for review. Lollar v. Department of Homeland Security ,
MSPB Docket No. DA-1221-14-0324-C-1, Compliance Petition for Review
(CPFR) File, Tabs 1, 3. On August 17, 2023, the Board denied the petition for
review and the cross-petition for review, and affirmed the compliance initial
decision. Order at 2.2
¶4In the August 17, 2023 Order, the Board ordered the agency to submit
satisfactory evidence of compliance to the Clerk of the Board within 60 days of
the Order’s date. Id. at 8. The Order also specifically informed the appellant that
he may respond to the agency’s evidence of compliance within 20 days of the date
of the agency’s submission, and that if he did not respond, the Board might
assume he was satisfied with the agency’s actions and dismiss the petition for
enforcement. Id.
¶5On November 11, 2023, the agency submitted evidence of compliance with
the Board’s August 17, 2023 Order, stating that it had issued the appellant a
special act award of $2,812.00; explaining how it had calculated that amount, by
starting with a previous performance award of $1,000 and adding the monetary
equivalent of a 24-hour time-off award; and attaching evidence of payment. CRF,
Tab 2 at 1-6. The appellant has not responded to the agency’s submission.
ANALYSIS
¶6The agency bears the burden to prove its compliance with a Board order.
Vaughan v. Department of Agriculture , 116 M.S.P.R. 319, ¶ 5 (2011). An
agency’s assertions of compliance must include a clear explanation of its
compliance actions supported by documentary evidence. Id. The appellant may
rebut the agency’s evidence of compliance by making “specific, nonconclusory,
and supported assertions of continued noncompliance.” Brown v. Office of
Personnel Management , 113 M.S.P.R. 325, ¶ 5 (2010).
¶7Here, the agency filed evidence of compliance and a clear explanation of its
calculations, to which the appellant did not respond, despite being apprised that
the Board might construe lack of response as satisfaction with the agency’s
response. Accordingly, in light of the appellant’s failure to respond, we find that
the agency is now in full compliance with the August 17, 2023 Order and dismiss
the petition for enforcement. 3
¶8This is the final decision of the Merit Systems Protection Board in this
compliance proceeding and in the compliance petition for review proceeding.
Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) (5 C.F.R.
§ 1201.183(c)(1)).
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review
of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your
claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
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 6
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Lollar_Clifton_D_DA-1221-14-0324-C-1_DC-1221-14-0324-X-1_Final_Order.pdf | 2024-06-28 | CLIFTON D. LOLLAR v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DA-1221-14-0324-X-1, June 28, 2024 | DA-1221-14-0324-X-1 | NP |
1,120 | https://www.mspb.gov/decisions/nonprecedential/Healy_James_A_DE-1221-18-0037-W-2__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES A. HEALY,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DE-1221-18-0037-W-2
DATE: June 28, 2024
THIS ORDER IS NONPRECEDENTIAL1
James A. Healy , Wickenburg, Arizona, pro se.
Beverlei E. Colston , Esquire, Irving, Texas, for the agency.
Sung Lee , Houston, Texas, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the Denver Field Office
for further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant was employed as a Supervisory Criminal Investigator with
the agency’s Immigration and Customs Enforcement (ICE) department at the
Homeland Security Investigations (HSI) office in Deming, New Mexico
(HSI Deming). Healy v. Department of Homeland Security , MSPB Docket No.
DE-1221-18-0037-W-1, Initial Appeal File (W-1 IAF), Tab 1 at 1; Healy
v. Department of Homeland Security , MSPB Docket No. DE-1221-18-0037-W-2
Appeal File (W-2 AF), Tab 21 at 150. HSI Deming is under the supervision of
the Special Agent in Charge (SAC) of HSI El Paso, Texas. W-2 AF, Tab 22
at 22.
According to the appellant, on April 21, 2015, he attended a meeting with
management officials, including the HSI El Paso SAC, the Deputy Special Agent
in Charge (DSAC), and the Assistant Special Agent in Charge (ASAC). W -1
IAF, Tab 7 at 4. During the meeting, those officials advised, among other things,
that there would be personnel restructuring at HSI Deming that would reduce the
manpower stationed there and reallocate it to nearby offices. Id. The appellant
expressed his concern that, if the restructuring were effected, ICE would have
wasted nearly $3 million to expand HSI Deming just 2 years earlier. W-1 IAF,
Tab 1 at 5, Tab 7 at 4. The appellant reiterated these concerns the next day,
April 22, 2015, with his supervisor, the ASAC. W-1 IAF, Tab 1 at 5, Tab 7 at 4.
On May 13, 2015, the appellant reported these same concerns to the
agency’s Office of Inspector General (OIG). W-1 IAF, Tab 7 at 4, 12, 15.
According to the appellant, the ASAC served him the following day with a letter
of counseling for his behavior during four prior incidents. W-2 AF, Tab 22
at 34-35. On May 19, 2015, the appellant proposed to the ASAC, DSAC, and
SAC that the agency could save expenses by closing HSI Deming entirely. W-12
IAF, Tab 7 at 4, 29-33. The appellant alleges that he subsequently received a
lower performance rating for Fiscal Year (FY) 2015, was demoted to a “fictitious
administrative liaison” position, was denied a reassignment and the possibility for
a promotion, was threatened with disciplinary action, was involuntarily
reassigned to another location, and was subjected to a hostile work environment.2
W-1 IAF, Tab 1 at 5, Tab 7 at 9; W-2 AF, Tab 22 at 11-17.
On May 31, 2016, the appellant filed a complaint with the Office of Special
Counsel (OSC) claiming that the agency took the above-referenced actions in
retaliation for his reporting on the waste and abuse. W-1 IAF, Tab 1 at 13, 18.
On October 6, 2017, OSC informed the appellant that it was closing its inquiry
into his complaint and of his right to seek corrective action from the Board. W -2
AF, Tab 22 at 29. Shortly thereafter, the appellant filed the instant IRA appeal.
W-1 IAF, Tab 1.
After informing the appellant of his jurisdictional burden, the
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction. W-2 AF, Tab 26, Initial Decision (ID) at 3-7. Specifically, he found
that the appellant’s proposal to close HSI Deming did not constitute a
nonfrivolous allegation of a protected disclosure under 5 U.S.C. § 2302(b)(8)(A).3
ID at 4-5. He did not address the appellant’s alleged disclosures on April 21 and
22, 2015. Nor did he address the appellant’s OIG complaint. ID at 4-6.
The appellant has filed a petition for review, arguing that the administrative
judge failed to address his OIG complaint, and that his April 21 and 22, 2015
disclosures were protected because they contained allegations that the agency
violated several statutes and policies, and otherwise constituted allegations of a
2 Although the appellant uses the term “transfer,” the intra-agency position changes that
he describes would more properly be termed “reassignments.” See 5 C.F.R.
§ 210.102(b)(10), (12), (18).
3 The initial decision appears to contain a typographical error in referencing the correct
statutory provision. ID at 5. While the administrative judge referenced “5 U.S.C.
§ 2302(a)(2)(6D),” it appears that he intended to reference 5 U.S.C. § 2302(a)(2)(D),
which defines “disclosure” as contemplated by 5 U.S.C. § 2302(b)(8)(A).3
gross waste of funds beyond a general policy dispute. Petition for Review (PFR)
File, Tab 1 at 6-11. The agency has responded, and the appellant has filed a reply
to the agency’s response. PFR File, Tabs 5, 6.
DISCUSSION OF ARGUMENTS ON REVIEW
An appellant may establish jurisdiction over his IRA appeal if he proves by
preponderant evidence that he exhausted his administrative remedy before OSC
and makes nonfrivolous allegations of the following: (1) he made a protected
whistleblowing disclosure under 5 U.S.C. § 2302(b)(8) or engaged in protected
activity under 5 U.S.C. §2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure
or activity was a contributing factor in the agency’s decision to take or fail to
take, or threaten to take or fail to take, a personnel action as defined by 5 U.S.C.
§ 2302(a)(2)(A). 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Salerno v. Department of
the Interior, 123 M.S.P.R. 230, ¶ 5 (2016); see Yunus v. Department of Veterans
Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001); 5 C.F.R. § 1201.57(a)(1), (b), (c)
(1).4
The appellant exhausted his administrative remedy regarding his alleged
protected disclosures.
To satisfy the exhaustion requirement of 5 U.S.C. § 1214(a)(3), an
appellant must provide to OSC a sufficient basis to pursue an investigation that
might lead to corrective action. Chambers v. Department of Homeland Security ,
2022 MSPB 8, ¶ 10. In order to properly exhaust his administrative remedies
before OSC, the appellant must show either: (1) OSC notified him that an
investigation concerning him has been terminated and no more than 60 days have
4 During the pendency of this appeal, the National Defense 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 Title 5
of the United States Code. Our decision to remand this appeal would be the same under
both pre- and post-NDAA law.4
elapsed since notification was provided to him; or (2) 120 days have elapsed
since the appellant sought corrective action from OSC and he has not been
notified by OSC that it shall seek corrective action on his behalf. 5 U.S.C.
§ 1214(a)(3); Edwards v. Department of the Air Force , 120 M.S.P.R. 307, ¶ 15
(2013).
The administrative judge found that the appellant exhausted his
administrative remedy with OSC regarding the written proposal to close HSI
Deming and the April 21 and 22, 2015 disclosures regarding the alleged gross
waste of funds. ID at 4-5. The record confirms that the appellant’s OSC
complaint includes several references to the written proposal and the April 21 and
22, 2015 disclosures. W -2 AF, Tab 22 at 20-26, 29-30. Accordingly, we agree
with the administrative judge that the appellant exhausted his administrative
remedy in this regard.
The appellant nonfrivolously alleged that he made protected disclosures and
engaged in protected activity.
The appellant alleged that the written proposal to close HSI Deming and his
discussions with management on April 21 and 22, 2015, constituted protected
disclosures. W-1 IAF, Tab 7 at 4; PFR File, Tab 1 at 5-6. A protected disclosure
is a disclosure that an appellant reasonably believes evidences a violation of any
law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public health or safety.
5 U.S.C. § 2302(b)(8)(A); Chambers v. Department of the Interior , 515 F.3d
1362, 1367 (Fed. Cir. 2008); Chavez v. Department of Veterans Affairs ,
120 M.S.P.R. 285, ¶ 18 (2013). A nonfrivolous allegation of a protected
whistleblowing disclosure is an allegation of facts that, if proven, could show that
the appellant disclosed a matter that a reasonable person in his position would
believe evidenced wrongdoing under 5 U.S.C. § 2302(b)(8)(A). Salerno,
123 M.S.P.R. 230, ¶ 6. The appellant also argues that his OIG complaint was a
protected activity under 5 U.S.C. § 2302(b)(9)(C). PFR File, Tab 1 at 9. 5
The written proposal to close HSI Deming
The administrative judge found that the appellant’s proposal to close HSI
Deming did not constitute a nonfrivolous allegation of a protected disclosure
because the appellant could not reasonably believe that his assertions evidenced
any of the situations specified in 5 U.S.C. § 2302(b)(8), specifically, an abuse of
authority, gross mismanagement, or a gross waste of funds.5 ID at 5-6. He
further found that the alleged disclosures were a general philosophical or policy
disagreement with agency decisions or actions, which are not protected. Id.;
5 U.S.C. § 2302(a)(2)(D).
We agree with the administrative judge that the agency’s decision to
restructure HSI Deming was the sort of classic discretionary management
judgment over which there might be subjective differences of opinion. See
Downing v. Department of Labor , 98 M.S.P.R. 64, ¶ 14 (2004)
(considering whether an agency’s decision to close a specific regional office
constituted a policy decision). Further, the administrative judge is correct that
the Board generally will not treat a policy disagreement as a protected disclosure.
See id. The Board has reasoned, however, that such a disclosure can still be
protected if it also constitutes an allegation of wrongdoing listed in section
2302(b)(8)(A). Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶ 8
(2015).
The appellant argues that he “termed his disclosures as a proposal because
the underlying matter of what [he] was reporting . . . potentially implicated
[agency] management for a violation of a Federal policy or law.” PFR File, Tab 1
at 6. However, nowhere in the proposal does he allege that the decisions
regarding HSI Deming’s operating status or staffing level violated any law, rule,
or regulation. W-1 IAF, Tab 7 at 29-33; 5 U.S.C. § 2302(b)(8). Nor did he allege
5 It appears that the administrative judge conflated all of the appellant’s claims
regarding disclosures of waste and instead focused exclusively on their content.
ID at 4-6. Based on our review of the initial decision, it seems that his findings relate
mostly to the written proposal to close HSI Deming. Id. 6
in the proposal that those agency decisions evidenced gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety. W-1 IAF, Tab 7 at 29-33. Rather, the proposal stated
that closing HSI Deming “would result in significant cost savings and a logistical
benefit to the agency.” Id. at 29. The proposal explains how the agency’s
proposed personnel changes would impact the efficiency of operations if HSI
Deming were to remain open, lists the benefits of closing it, and answers potential
questions regarding personnel, general operations, and the ability to carry out the
agency’s mission if HSI Deming were to close. Id. at 29-33. Therefore, we find
that the proposal does not contain any disclosures; the appellant was simply
proposing a solution to what he believed were problems caused by management’s
decisions. Id. Accordingly, we agree with the administrative judge that the
appellant failed to make a nonfrivolous allegation of a protected disclosure
concerning the proposal.
The April 21 and 22, 2015 disclosures
The appellant has alleged that on April 21, 2015, he disclosed that, by
implementing the staffing changes at HSI Deming as proposed by agency
management, the agency would have wasted almost $3 million in expanding HSI
Deming only 2 years earlier. W-1 IAF, Tab 1 at 5, Tab 7 at 4. He also alleges
that he made the same disclosure to the ASAC the following day. W -1 IAF,
Tab 7 at 4. The administrative judge did not address these disclosures, so we will
address them here.
The appellant’s disclosures can be categorized as an alleged gross waste of
funds.6 5 U.S.C. § 2302(b)(8)(A)(ii). A gross waste of funds constitutes a more
than debatable expenditure that is significantly out of proportion to the benefit
6 In his petition for review, the appellant lists several statutes that he believes agency
officials also violated by its actions. PFR File, Tab 1 at 6-9. However, he has not
alleged that his disclosures to management on April 21 and 22, 2015, included
allegations that they violated the law; his alleged disclosures regarding those meetings
appear to be solely allegations of a gross waste of funds. W-1 IAF, Tab 7 at 4. 7
reasonably expected to accrue to the Government. Van Ee v. Environmental
Protection Agency , 64 M.S.P.R. 693, 698 (1994). The appellant need not prove
that the condition disclosed actually established a gross waste of funds.
Peterson v. Department of Veterans Affairs , 116 M.S.P.R. 113, ¶ 11 (2011).
Rather, the test for determining whether the appellant had a reasonable belief that
his disclosure was protected is whether a disinterested observer with knowledge
of the essential facts, known to and readily ascertainable by the appellant, could
reasonably conclude that the actions of the government evidence one of the
categories of wrongdoing noted above. Id.
We find that the appellant has made a nonfrivolous allegation that he
reasonably believed that his disclosures of April 21 and 22, 2015, evinced a gross
waste of funds. In these disclosures, the appellant essentially stated that, in
restructuring HSI Deming, the Government was wasting the nearly $3 million that
it had just spent to expand the facility. See, e.g., Czarkowski v. Department of the
Navy, 87 M.S.P.R. 107, ¶ 11 (2000). Further, we find that a disinterested
observer with knowledge of the essential facts that the appellant knew or could
readily ascertain might reasonably conclude that the agency engaged in a gross
waste of funds.7 We arrive at this finding by considering the appellant’s
knowledge of HSI Deming’s operations and staffing as a Supervisory Criminal
Investigator. W-1 IAF, Tab 1 at 5; W -2 AF, Tab 19 at 8-9.
Additionally, the appellant’s claim is sufficiently specific because he
alleges a relatively precise monetary amount—nearly $3 million—that he believes
to be a gross waste. W-1 IAF, Tab 1 at 5; see Linder v. Department of Justice ,
122 M.S.P.R. 14, ¶ 14 (2014) (stating that disclosures must be specific and
detailed, not vague allegations of wrongdoing); cf. Frederick v. Department of
Veterans Affairs , 63 M.S.P.R. 563, 571 (1994) (finding that the appellant did not
7 In reaching this finding, we rely on the appellant’s arguments and not on the agency’s
potentially conflicting evidence in the record. See Hessami v. Merit Systems Protection
Board, 979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020); Ingram v. Department of the Army ,
114 M.S.P.R. 43, ¶ 10 (2010).8
nonfrivolously allege a gross waste of funds, in part, because his disclosure
contained no indication as to the amount of funds involved). Accordingly, we
find that the appellant made a nonfrivolous allegation that he made protected
disclosures on April 21 and 22, 2015 regarding a gross waste of funds.
The OIG complaint
The appellant alleged below and again on review that he filed a complaint
with the OIG regarding what he believed constituted waste and abuse at HSI
Deming. W-2 AF, Tab 22 at 12, 58; PFR File, Tab 1 at 11. The administrative
judge did not address this complaint. Under 5 U.S.C. § 2302(b)(9)(C),
cooperating with or disclosing information to the OIG is considered protected
activity. Fisher v. Department of the Interior , 2023 MSPB 11, ¶ 8 (finding that
disclosures of information to an agency’s OIG are protected regardless of their
content, as long as such disclosures are made “in accordance with applicable
provisions of law”). Accordingly, we find that the appellant nonfrivolously
alleged that he engaged in a protected activity.
Based on the foregoing, we find that the appellant made a nonfrivolous
allegation that he made protected disclosures under 5 U.S.C. § 2302(b)(8) on
April 21 and 22, 2015, and engaged in protected activity under 5 U.S.C.
§ 2302(b)(9)(C) when he filed an OIG complaint.
The appellant nonfrivolously alleged that his protected disclosures and protected
activity were contributing factors to at least one personnel action.
The appellant nonfrivolously alleged that the agency took several
personnel actions against him.
The appellant claims that, in reprisal for making the above-referenced
protected disclosures and for engaging in protected activity, the agency took the
following actions: (1) issued him a letter of counseling; (2) gave him a lower
performance evaluation for FY 2015; (3) reassigned him to a “fictitious”
administrative liaison position that had significantly different duties than his
supervisory position; (4) denied him a self-funded reassignment; (5) denied him9
the possibility of a promotion; (6) proposed a 3-day suspension; (7) directed his
reassignment to Washington state; and (8) created a hostile work environment.
W-1 IAF, Tab 1 at 5; W-2 AF, Tab 22 at 11-17.
The principles of exhaustion that apply to the allegations of protected
disclosures and activities discussed previously also apply to the purportedly
retaliatory personnel actions raised by the appellant. Schmittling v. Department
of the Army, 92 M.S.P.R. 572, ¶ 26 (2002) (stating that, in general, an appellant
has not exhausted his remedy with OSC when he did not raise before OSC the
personnel action he is appealing to the Board); Roach v. Department of the Army ,
82 M.S.P.R. 464, ¶ 10 (1999) (finding that the Board lacked jurisdiction over a
personnel action that the appellant did not first raise with OSC). The
performance rating, the reassignment resulting in a significant change in duties,
the denial of a reassignment, and the directed reassignment were all exhausted
before OSC, W-1 IAF, Tab 1 at 18, 21-22; W -2 AF, Tab 22 at 29, and constitute
personnel actions under 5 U.S.C. §§ 2302(a)(2)(A)(ii), (iv), (viii), (xii).
The proposed disciplinary action and the denial of the possibility of a promotion
do not appear to have been exhausted with OSC, and we will not consider them
further. W-1 IAF, Tab 1 at 18, 21-22; W-2 AF, Tab 22 at 29.
Regarding the letter of counseling, we find that the appellant exhausted this
claim with OSC. W-2 AF, Tab 22 at 23, 29. The letter of counseling described
instances during which the ASAC believed that the appellant’s behavior was
inappropriate or hostile and cautioned that “another incident of this nature may
lead to formal disciplinary action being taken against [him].” Id. at 35. Thus, the
language was conditional in nature, clearly indicating that, if the appellant
engaged in future misconduct, he could be disciplined. Such a general statement
that future misconduct might result in disciplinary action remains a truism for any
employee, at any time. See Koch v. Securities & Exchange Commission , 48 F.10
App’x 778, 787 (Fed. Cir. 2002) (nonprecedential)8 (“A wide range of agency
rules, directives, and counseling measures contain the message, implicit or
explicit, that failure to follow those directives or to meet expectations may have
adverse consequences . . . . [N]ot all such general statements . . . constitute
actionable ‘threats’ to take adverse action within the meaning of the
Whistleblower Protection Act.”).9 Moreover, there is no indication that the letter
was placed in the appellant’s Official Personnel File. W-2 AF, Tab 22 at 34-35.
To prevent a supervisor from providing a general reminder to an employee
that prospective misconduct could result in disciplinary action would hamper an
agency’s ability to effectively manage its workforce. Cf. Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305 -06 (1981) (including the clarity with which
the employee was on notice of any rules that were violated in committing an
offense, or had been warned about the conduct in question, in the nonexhaustive
list of factors relevant to the penalty determination in adverse action cases).
Accordingly, we find that the letter of counseling does not constitute a personnel
action under 5 U.S.C. § 2302(a)(2)(A).
Regarding the appellant’s claim that he was subjected to a hostile work
environment, we find that the appellant exhausted this claim with OSC. W-1
IAF, Tab 1 at 23, 25, 27. The Board has recently clarified that, while the term
“hostile work environment” has a particular meaning in other contexts,
allegations of a hostile work environment may constitute a personnel action under
the statute only if they meet the statutory criteria, i.e., constitute a significant
change in duties, responsibilities, or working conditions. 5 U.S.C. § 2302(a)(2)
8 The Board may follow a nonprecedential decision of the U.S. Court of Appeals for the
Federal Circuit when, as here, it finds its reasoning persuasive. LeMaster v.
Department of Veterans Affairs , 123 M.S.P.R. 453, ¶ 11 n. 5 (2016).
9 This appeal may be distinguished from the Board’s decision in Campo v. Department
of the Army, 93 M.S.P.R. 1, ¶¶ 7-8 (2002), because in that case the agency issued a
memorandum of warning informing an employee that she would be charged with
insubordination or creating a disturbance if she continued to make purportedly
unfounded allegations, the substance of which comprised her protected disclosures.
Such is not the case here. 11
(A)(xii); Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶¶ 15-16.
Although a “significant change” in working conditions should be interpreted
broadly, only agency actions that, individually or collectively, have practical and
significant effects on the overall nature and quality of an employee’s working
conditions, duties, or responsibilities will be found to constitute a personnel
action covered by section 2302(a)(2)(A)(xii). Id.
Here, the appellant alleged that the ASAC singled him out in meetings,
publicly intimidated and threatened him, poked his finger directly into his face,
yelled at him, and called him names like “cry baby.” W-1 IAF, Tab 7 at 7, 9. He
also alleged that within weeks of being assigned as his supervisor, the ASAC
issued him the letter of counseling. W-2 AF, Tab 22 at 11. He also claimed that
the ASAC issued the FY 2015 performance evaluation and reassigned him to an
administrative liaison position with diminished duties. W-1 IAF, Tab 7 at 6. He
asserted that the environment became so “hostile, untenable, and dangerous” that
he communicated to the agency that he would accept any reassignment, even if it
was to an unrequested location. Id. at 9. Given the broad interpretation afforded
the term “significant change in duties, responsibilities, or working conditions,”
Ingram v. Department of the Army , 116 M.S.P.R. 525, ¶ 4 (2011), we find that the
appellant nonfriovlously alleged that the agency’s actions, individually and
collectively, had an impact on the quality of his working conditions, and
therefore, constituted a hostile work environment under 5 U.S.C. § 2302(a)(2)(A)
(xii).
In sum, we find that the following alleged actions constitute personnel
actions as defined by 5 U.S.C. § 2302(a)(2)(A) and were properly exhausted with
OSC: (1) the FY 2015 performance evaluation; (2) the reassignment resulting in
a significant change in duties; (3) the denial of a reassignment; (4) the directed
reassignment; and (5) the hostile work environment. 12
The appellant nonfrivolously alleged that his protected disclosures
and protected activity were contributing factors in the
above-referenced personnel actions.
We now consider whether the appellant nonfrivolously alleged that his
protected disclosures and protected activity were contributing factors to the
personnel actions discussed above. Salerno, 123 M.S.P.R. 230, ¶ 5. To satisfy
the contributing factor criterion at the jurisdictional stage, an appellant only need
raise a nonfrivolous allegation that the fact of, or the content of, the protected
disclosure or protected activity was one factor that tended to affect the personnel
action in any way. Id., ¶ 13. One way to establish this criterion is the
knowledge/timing test, under which an employee may nonfrivolously allege that
the disclosure or activity was a contributing factor in a personnel action through
circumstantial evidence, such as evidence that the official who took the personnel
action knew of the disclosure or activity and that the personnel action occurred
within a period of time such that a reasonable person could conclude that the
disclosure or activity was a contributing factor in the personnel action. Id.
Here, the appellant alleged that the ASAC was responsible for the
performance rating, the reassignment that resulted in a significant change in
duties, and the hostile work environment. W -1 IAF, Tab 7 at 6, 9. The
performance rating was issued on October 15, 2015, id. at 6, the reassignment
resulting in a significant change of duties was imposed on January 8, 2016, id.,
and the hostile work environment began in April 2015, and culminated during an
altercation between the appellant and the ASAC on May 21, 2016, id. at 9. The
ASAC was present for the April 21 and 22, 2015 disclosures, and the appellant
has alleged that his “chain of command had knowledge of his whistleblower
complaints.” W-2 AF, Tab 22 at 12, 15.
Because the appellant has alleged that the performance rating, the
reassignment resulting in a significant change in duties, and the hostile work
environment all occurred within approximately 1 year of the April 201513
disclosures, and that his chain of command, which included the ASAC as his
first-level supervisor, had knowledge of these disclosures, we find that he
nonfrivolously alleged that the protected disclosures were a contributing factor in
these actions. See Salerno, 123 M.S.P.R. 230, ¶ 13; Mastrullo v. Department of
Labor, 123 M.S.P.R. 110, ¶ 21 (2015) (stating that a personnel action that occurs
within 1 to 2 years of the protected disclosures satisfies the knowledge/timing
test).
The appellant also alleged that the performance rating, reassignment
resulting in a significant change in duties, and hostile work environment occurred
within 1 year of the May 13, 2015 OIG complaint and that his chain of command
had knowledge of it. W -1 IAF, Tab 7 at 6, 9; W-2 AF, Tab 22 at 11. We find
that this also constitutes a nonfrivolous allegation that the OIG complaint was a
contributing factor in the FY 2015 performance rating, the reassignment resulting
in a significant change in duties, and the hostile work environment. See Salerno,
123 M.S.P.R. 230, ¶ 13; Mastrullo, 123 M.S.P.R. 110, ¶ 21.
Regarding the denial of the reassignment, the appellant alleged that another
DSAC10 denied the appellant a self-funded reassignment to Albuquerque, New
Mexico in February 2016. W-1 IAF, Tab 7 at 7. Thus, this personnel action
occurred within 1 year of the appellant’s alleged protected disclosures and
protected activity. Id. Concerning the knowledge prong, the appellant has not
specifically alleged that this DSAC was aware of his April 21 and 22, 2015
disclosures and OIG complaint, but he has alleged that his “chain of command”
and “agency management” were aware of them. W-2 AF, Tab 22 at 13-14. The
agency has confirmed that this DSAC was the appellant’s second-line supervisor.
W-2 AF, Tab 18 at 6. At the jurisdictional stage, we find this allegation
sufficient to meet the nonfrivolous allegation standard. See 5 C.F.R. § 1201.4(s).
Accordingly, we find that the appellant nonfrivolously alleged that his April 21
10 The DSAC whom the appellant alleges denied his reassignment is a different DSAC
than the one present at the April 21, 2015 meeting and through whom he submitted his
proposal to close HSI Deming. W-1 IAF, Tab 7 at 6, 29. 14
and 22, 2015 disclosures and OIG complaint contributed to the agency’s decision
to deny the appellant’s request for reassignment. See Salerno, 123 M.S.P.R. 230,
¶ 13; Mastrullo, 123 M.S.P.R. 110, ¶ 21.
Regarding the effectuated reassignment, the appellant alleges that the
executive associate director (EAD) directed his reassignment to Blaine,
Washington on June 13, 2016. W-1 IAF, Tab 1 at 8. Although this reassignment
occurred within 1 -2 years of the alleged protected disclosures and protected
activity, it is unclear from the pleadings whether the EAD was aware of them.
Again, the appellant has alleged that his “chain of command” and “agency
management” were aware of his April 21 and 22, 2015 disclosures and OIG
complaint. W-2 AF, Tab 22 at 11, 16 -17. Although it is unclear whether this
includes the EAD, we resolve the ambiguity in the appellant’s allegations in his
favor and find his allegations sufficient to establish jurisdiction over this claim.
See Ingram v. Department of the Army , 114 M.S.P.R. 43, ¶ 10 (2010) (stating that
any doubt or ambiguity as to whether the appellant made nonfrivolous
jurisdictional allegations should be resolved in favor or finding jurisdiction).
Because we find that the appellant met the knowledge/timing test at this stage of
the proceedings, we find that he nonfrivolously alleged that his April 21 and 22,
2015 disclosures and OIG complaint were contributing factors in the directed
reassignment. See Salerno, 123 M.S.P.R. 230, ¶ 13; Mastrullo, 123 M.S.P.R.
110, ¶ 21.
In sum, we find that the appellant nonfrivolously alleged that he made
protected disclosures and engaged in protected activity that were contributing
factors in the above-discussed personnel actions, thereby establishing the Board’s
jurisdiction over his IRA appeal. See Salerno, 123 M.S.P.R. 230, ¶ 5. 15
The appellant is entitled to a hearing on the merits.
Because the appellant established jurisdiction over his IRA appeal, we
remand the case for a hearing on the merits.11 Generally, an appellant must
establish a prima facie case of whistleblower retaliation by proving by
preponderant evidence that he made a protected disclosure or engaged in a
protected activity that was a contributing factor in a personnel action taken
against him. 5 U.S.C. § 1221(e)(1); Lu v. Department of Homeland Security ,
122 M.S.P.R. 335, ¶ 7 (2015). If he makes out a prima facie case, then the
agency is given an opportunity to prove, by clear and convincing evidence, that it
would have taken the same personnel action in the absence of the protected
disclosure. 5 U.S.C. § 1221(e)(1)-(2); Lu, 122 M.S.P.R. 335, ¶ 7.
11 In the initial decision, the administrative judge stated that “when an appellant makes
a nonfrivolous allegation of Board jurisdiction, the appellant is entitled to a hearing on
the jurisdictional question.” ID at 2. In the appellant’s petition for review, he asserts
that he is “entitled under the law to a jurisdictional hearing.” PFR File, Tab 1 at 20.
We clarify that when an appellant exhausts his administrative remedy with OSC and
makes a nonfrivolous allegation that he made a protected disclosure or engaged in a
protected activity that was a contributing factor in a personnel action, he is entitled to a
hearing on the merits. Graves v. Department of Veterans Affairs , 123 M.S.P.R. 434,
¶ 22 (2016). 16
ORDER
For the reasons discussed above, we grant the appellant’s petition for
review, vacate the initial decision, and remand this case to the Denver Field
Office for further adjudication in accordance with this Remand Order.12
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
12 In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.17 | Healy_James_A_DE-1221-18-0037-W-2__Remand_Order.pdf | 2024-06-28 | JAMES A. HEALY v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DE-1221-18-0037-W-2, June 28, 2024 | DE-1221-18-0037-W-2 | NP |
1,121 | https://www.mspb.gov/decisions/nonprecedential/Lushnikova_AsyaCH-315H-19-0368-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ASYA LUSHNIKOVA,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
CH-315H-19-0368-I-1
DATE: June 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Asya Lushnikova , Birmingham, Michigan, pro se.
Juliana B. Pierce , Indianapolis, Indiana, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her probationary termination appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
On review, the appellant does not challenge the administrative judge’s
dismissal of her appeal for lack of jurisdiction. Instead, she argues that the
agency terminated her because she raised concerns regarding information
technology security vulnerabilities and the Government laptop auditing process
with her coworkers and her supervisors. Petition for Review (PFR) File, Tab 1
at 4-10. She also generally reiterates her allegations of marital status
discrimination. Id. at 10.
The appellant’s arguments pertaining to the merits of the termination
decision, rather than the Board’s jurisdiction over the appeal, do not provide a
basis to disturb the initial decision.2 See Yakupzack v. Department of Agriculture ,
2 The appellant states on review that she has filed two complaints with the Office of
Special Counsel (OSC) and that “[b]oth complaints are in the review process.” PFR
File, Tab 1 at 5. The Board lacks jurisdiction to hear a claim of reprisal in this
probationary termination appeal. See Wren v. Department of the Army , 2 M.S.P.R. 1, 2
(1980) (stating that prohibited personnel practices under 5 U.S.C. § 2302(b) are not an
independent source of Board jurisdiction), aff’d, 681 F.2d 867, 871 -73 (D.C. Cir. 1982).
If the appellant exhausts her administrative remedy with OSC, she may request review
of her probationary termination in an individual right of action (IRA) appeal under the
Whistleblower Protection Enhancement Act of 2012. The Board takes no position on
the timeliness of an IRA appeal or whether it would have jurisdiction over such an
appeal.2
10 M.S.P.R. 180, 182 (1982) (stating that the Board’s review of probationary
terminations does not include a review of the merits of the termination action);
Kellum v. Veterans Administration , 2 M.S.P.R. 65, 67 (1980) (finding that the
sufficiency and propriety of the agency’s misconduct allegations concern
substantive issues that are immaterial to the appeal, unless the Board has
jurisdiction over the probationary termination).
For the reasons stated in the initial decision, the appellant was not an
“employee” as defined in 5 U.S.C. § 7511(a)(1)(A) with the statutory right to
appeal her termination to the Board. IAF, Tab 8, Initial Decision (ID) at 4-5;
see 10 U.S.C. § 1599e (repealed 2022) (stating that an individual appointed to a
competitive service position within the Department of Defense is subject to a
2-year probationary period).3 As the administrative judge stated, the appellant
did not make a nonfrivolous allegation that her termination was due to marital
status discrimination. ID at 5-6; see 5 C.F.R. § 315.806(b) (providing for Board
jurisdiction over a claim that a competitive service probationary appointee’s
termination was due to, among other things, marital status discrimination).
Therefore, the administrative judge properly found that the appellant’s
termination is outside the Board’s jurisdiction.
NOTICE OF APPEAL RIGHTS4
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).
3 On December 27, 2021, President Biden signed into law the National Defense
Authorization Act for Fiscal Year 2022 (2022 NDAA), Pub. L. No. 117-81, 135 Stat.
1541. The 2022 NDAA repealed the 2-year probationary period for agency
appointments made on or after December 31, 2022, and replaced it with a 1 -year
probationary period. Pub. L. No. 117-81, § 1106, 135 Stat. 1541, 1950. That change
does not affect the outcome 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. 3
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
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. 4
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the5
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
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
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Lushnikova_AsyaCH-315H-19-0368-I-1__Final_Order.pdf | 2024-06-28 | ASYA LUSHNIKOVA v. DEPARTMENT OF DEFENSE, MSPB Docket No. CH-315H-19-0368-I-1, June 28, 2024 | CH-315H-19-0368-I-1 | NP |
1,122 | https://www.mspb.gov/decisions/nonprecedential/Peraza_ErnestoDC-315H-20-0393-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERNESTO PERAZA,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
DC-315H-20-0393-I-1
DATE: June 27, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ernesto Peraza , Abdington, Maryland, pro se.
Josh Hildreth , Alexandria, Virginia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal of his termination from his position
in the competitive service during his probationary period. On petition for review,
the appellant alleges the following: (1) the agency discriminated against him
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
based on his marital status; (2) the agency removed him based on issues that arose
pre-appointment; (3) his termination was impelled by prejudice; (4) the agency
provided negative information regarding his employment history in an attempt to
improperly influence the administrative judge; (5) the administrative judge failed
to rule on his discovery -related requests; and (6) the administrative judge
exhibited bias. Petition for Review (PFR) File, Tab 1 at 4-6. The appellant also
provides an additional document. Id. at 7. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). A probationary employee in
the competitive service who has not completed 1 year of continuous service has
no statutory right of appeal to the Board. See 5 U.S.C. § 7511(a)(1)(A); Harris v.
Department of the Navy , 99 M.S.P.R. 355, ¶ 6 (2005). However, a probationary
employee in the competitive service has a regulatory right of appeal in three
limited circumstances: (1) the employee was discriminated against on account of
his marital status; (2) the employee was discriminated against based on partisan2
political reasons; or (3) the agency action was based (in whole or part) on issues
that arose pre-appointment and the agency did not follow required procedures.
Blount v. Department of the Treasury , 109 M.S.P.R. 174, ¶ 5 (2008); 5 C.F.R.
§§ 315.805-.806. To be entitled to a jurisdictional hearing, an appellant must
make a nonfrivolous allegation2 of Board jurisdiction over his appeal. Ferdon v.
U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994).
We have considered the appellant’s assertions regarding marital status
discrimination, pre-appointment issues, and prejudice, PFR File, Tab 1 at 4-6, but
we find that they do not provide a basis to disturb the administrative judge’s
reasoned conclusion that the appellant failed to make a nonfrivolous allegation of
Board jurisdiction on any of these bases, Initial Appeal File (IAF), Tab 7, Initial
Decision at 7-9.
The appellant asserts that the agency provided the administrative judge
with negative information regarding his employment history, i.e., the fact that he
had previously been terminated from a Federal position during his probationary
period, in an effort to improperly influence the administrative judge. PFR File,
Tab 1 at 5. We find this assertion unavailing. The information that the agency
provided to the administrative judge, IAF, Tab 6 at 5-6, 17, was both responsive
to the administrative judge’s jurisdictional order, IAF, Tab 3 at 5-6, and relevant
to the jurisdictional issue insofar as it clarified that the appellant lacked 1 year of
current continuous service, see 5 U.S.C. § 7511(a)(1)(A); see also McCormick v.
Department of the Air Force , 307 F.3d 1339, 1342-43 (Fed. Cir. 2002).
The appellant alleges that the administrative judge erred by issuing his
initial decision “without explicitly approving or denying” a discovery-related
request that he made in his response to the administrative judge’s jurisdictional
order. PFR File, Tab 1 at 4. Here, although the administrative judge did not
issue a ruling on the appellant’s ostensible discovery request, IAF, Tab 5 at 6, any
2 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).3
error related thereto was not prejudicial insofar as the appellant’s request failed to
comply with the requirements of 5 C.F.R. § 1201.73, see Van Amber v. U.S.
Postal Service, 47 M.S.P.R. 320, 327 (1991) (finding that, although the
administrative judge committed adjudicatory error by not ruling on, among other
things, the appellant’s motion to compel answers to interrogatories, it was not
prejudicial error because the appellant’s motion did not comply with the Board’s
regulatory requirements). Moreover, the appellant has failed to explain either
before the administrative judge or on review how the information he sought in his
request would change the outcome of his appeal. See Davis v. Department of
Defense, 103 M.S.P.R. 516, ¶ 13 (2006) (finding that, when an appeal is
dismissed for lack of jurisdiction, there is no prejudice to an appellant’s
substantive rights based on the absence of discovery that did not seek information
that would establish the Board’s jurisdiction). Thus, a different outcome is not
warranted.
The appellant makes a series of statements that amount to allegations of
bias on the part of the administrative judge. PFR File, Tab 1 at 4-6. To this end,
he seemingly suggests that the administrative judge was not impartial, id. at 4,
and he avers that the administrative judge “misrepresent[ed his] words,” id. at 5.3
The Board has consistently held that, in making a claim of bias against an
administrative judge, the appellant must overcome the presumption of honesty
and integrity that accompanies all administrative adjudicators. Washington v.
Department of the Interior , 81 M.S.P.R. 101, ¶ 7 (1999) (citing In re King,
1 M.S.P.R. 146, 151 (1979)). This presumption can be overcome only by a
substantial showing of personal bias. Williams v. U.S. Postal Service ,
3 He specifically asserts that the initial decision incorrectly indicated that he had alleged
that a supervisor had engaged in “harassing-like behavior” when he had in fact alleged
that two other newly hired employees had so behaved. PFR File, Tab 1 at 5. As we
find this distinction immaterial for purposes of the jurisdictional issue, a different
outcome is not warranted. See Panter v. Department of the Air Force , 22 M.S.P.R. 281,
282 (1984) (explaining that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision).4
87 M.S.P.R. 313, ¶ 12 (2000). Here, as the record is devoid of any indication of
personal bias, the appellant’s allegation is unavailing.
Finally, the appellant provides, for the first time, a document related to his
work productivity, PFR File, Tab 1 at 7, to show, among other things, that he was
“showing signs of improvement” prior to his removal, id. at 6. However, he
provides no explanation as to why he did not provide this document to the
administrative judge. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214
(1980) (finding that the Board generally will not consider evidence submitted for
the first time with the petition for review absent a showing that it was unavailable
before the record was closed despite the party’s due diligence). Moreover, the
document is not material to the jurisdictional issue. See Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980) (stating that the Board will not grant
a petition for review based on new evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the initial
decision).
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
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. 6
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
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: 7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
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).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Peraza_ErnestoDC-315H-20-0393-I-1__Final_Order.pdf | 2024-06-27 | ERNESTO PERAZA v. DEPARTMENT OF COMMERCE, MSPB Docket No. DC-315H-20-0393-I-1, June 27, 2024 | DC-315H-20-0393-I-1 | NP |
1,123 | https://www.mspb.gov/decisions/nonprecedential/Cohen_McCarthy_Robyn_J_AT-0752-18-0742-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBYN J. COHEN MCCARTHY,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
AT-0752-18-0742-I-1
DATE: June 27, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Randy A. Fleischer , Esquire, Plantation, Florida, for the appellant.
Robert L. Thomas , Esquire, Atlanta, Georgia, for the agency.
Laura VanderLaan , Esquire, Kansas City, Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. For the reasons set forth below, the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114(e), (g).
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant filed a petition for review with the Board on July 24, 2019,
but did not reference the docket number for her case. Petition for review (PFR)
File, Tab 1. That same day, the Clerk of the Board attempted to contact the
appellant by phone to clarify the intent of her submission and to determine
whether the appellant intended her filing as a petition for review of the
administrative judge’s November 16, 2018 initial decision in this appeal.
PFR File, Tab 2 at 1 n.1. The appellant contacted the Clerk’s office on
July 26, 2019, and confirmed that she intended her filing as a petition for review
of the initial decision in this appeal. Id. On July 30, 2019, the Clerk of the Board
issued an acknowledgment letter informing the appellant that her petition for
review was untimely and that she must submit a “Motion to Accept Filing as
Timely or to Waive Time Limit” either by an affidavit or a statement signed
under penalty of perjury. Id. at 2-3. A blank sample motion was attached to the
acknowledgment letter. Id. at 6-8. The acknowledgment letter further stated that
the appellant’s motion must be submitted on or before August 13, 2019. Id. at 2.
The acknowledgment letter informed the appellant that she must show good cause
for the Board to waive her untimeliness, and instructed her on how to do so. Id.
at 2, 7. The appellant has not filed a motion to accept her untimely petition for
review or to waive the time limit.
The Board’s regulations provide that a petition for review must be filed
within 35 days after the date of issuance of the initial decision or, if the party
shows she received the initial decision more than 5 days after it was issued,
within 30 days of her receipt of the decision. 5 C.F.R. § 1201.114(e). The Board
will waive the filing deadline for a petition for review only upon a showing of
good cause for the untimely filing. Palermo v. Department of the Navy ,2
120 M.S.P.R. 694, ¶ 4 (2014); 5 C.F.R. § 1201.114(g). The party who submits an
untimely petition for review has the burden of establishing good cause for the
untimely filing by showing that she exercised due diligence or ordinary prudence
under the particular circumstances of the case. Palermo, 120 M.S.P.R. 694, ¶ 4.
To determine whether a party has shown good cause, the Board will consider the
length of the delay, the reasonableness of her excuse and the party’s showing of
due diligence, whether she is proceeding pro se, and whether she has presented
evidence of the existence of circumstances beyond her control that affected her
ability to comply with the time limits or of unavoidable casualty or misfortune
that similarly shows a causal relationship to her inability to timely file her
petition. Id.
As noted in the petition for review acknowledgement letter, the finality
date of the initial decision was December 21, 2018, so the appellant’s petition for
review would have been due that day, at the latest. 5 C.F.R. § 1201.114(e);
see Initial Appeal File, Tab 50, Initial Decision at 6; PFR File, Tab 2 at 2.
Therefore, the appellant’s July 24, 2019 petition for review was filed 214 days
after the filing deadline. The Board has regularly held that such a delay is not
minimal. See Wright v. Department of the Treasury , 113 M.S.P.R. 124, ¶ 8
(2010) (concluding that an 11-day delay is not minimal); Scott v. Social Security
Administration, 110 M.S.P.R. 92, ¶¶ 8, 10 (2008) (finding no good cause for an
unexplained 11-day delay); Allen v. Office of Personnel Management ,
97 M.S.P.R. 665, ¶¶ 8, 10 (2004) (declining to excuse a pro se appellant’s 14-day,
unexplained delay in filing a petition for review); Crozier v. Department of
Transportation, 93 M.S.P.R. 438, ¶ 7 (2003) (noting that a 13-day delay in filing
is not minimal). Additionally, despite being afforded the opportunity to do so,
the appellant has not offered any explanation for her delay in filing.
Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness3
of the petition for review. The initial decision remains the final decision of the
Board regarding the appellant’s constructive suspension appeal.2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
2 In her petition for review, the appellant references a purported whistleblower reprisal
claim and refers to an Office of Special Counsel (OSC) complaint file number.
PFR File, Tab 1 at 2, 5. The appellant’s reprisal for whistleblowing claim may fall
under the purview of OSC to investigate, and the appellant may have the right to file an
individual right of action (IRA) appeal with the Board after exhausting her
administrative remedies before OSC. In this Final Order, the Board makes no
determination regarding the jurisdiction or the merits concerning any potential IRA
appeal.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions to provide a comprehensive
summary of all available review options. As indicated in the notice, the Board cannot
advise which option is most appropriate in any matter. 4
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,5
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 6
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Cohen_McCarthy_Robyn_J_AT-0752-18-0742-I-1__Final_Order.pdf | 2024-06-27 | ROBYN J. COHEN MCCARTHY v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. AT-0752-18-0742-I-1, June 27, 2024 | AT-0752-18-0742-I-1 | NP |
1,124 | https://www.mspb.gov/decisions/nonprecedential/Malgeri_John_R_DC-1221-18-0468-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN R. MALGERI,
Appellant,
v.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT,
Agency.DOCKET NUMBER
DC-1221-18-0468-W-1
DATE: June 27, 2024
THIS ORDER IS NONPRECEDENTIAL1
Terrence O’Donnell , Esquire, Anne M. Rucker , Esquire, and Andrew
Guiang , Esquire, Washington, D.C., for the appellant.
Ryan Donaldson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in this individual right of action (IRA)
appeal. For the reasons discussed below, we GRANT the appellant’s petition for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
review. We AFFIRM the initial decision’s findings that the appellant made
protected disclosures under 5 U.S.C. § 2302(b)(8) and engaged in protected
activity under 5 U.S.C. § 2302(b)(9)(A)(i), and that his protected disclosures and/
or activity were a contributing factor in the contested personnel actions. We
REMAND this case to the Washington Regional Office for the administrative
judge to reassess whether the agency demonstrated by clear and convincing
evidence that it would have taken the same personnel actions in the absence of the
appellant’s whistleblowing.
BACKGROUND
This appeal has an extensive factual history, portions of which are not
material to the issues now before the Board and which we need not repeat herein.
The appellant served as a Senior Level Executive in the agency’s Office of the
Chief Human Capital Officer (OCHCO). Initial Appeal File (IAF), Tab 1 at 22,
36. In this role, the appellant worked as a senior advisor to the Chief Human
Capital Officer, provided technical guidance on OCHCO matters, and researched
and drafted a variety of the agency’s human resources-related policies and plans.
IAF, Tab 1 at 36, Tab 55, Initial Decision (ID) at 2-3; Hearing Compact Disc
(HCD) 1 (testimony of the appellant). Included within these human
resources-related functions was the reviewing of proposed agency reorganization
plans and providing a recommended concurrence or nonoccurrence on the
proposals. HCD 1 (testimony of the appellant); ID at 2-3; Petition for Review
(PFR) File, Tab 1 at 6. In order for the agency to proceed with reorganization, it
needed OCHCO, amongst other offices, to concur with the proposed plan. HCD 1
(testimony of the appellant); ID at 2-3.
In October 2014, the agency’s Office of Housing was working on a
reorganization plan for its Office of Operations. IAF, Tab 34 at 76-90; HCD 1
(testimony of the appellant); ID at 3. Two directors within the Office of Housing
submitted a memorandum to various agency offices, including the OCHCO,2
outlining their nonconcurrence with the proposed reorganization, alleging that
such plan violated a host of statutes and policies. IAF, Tab 34 at 76-90. Within
this nonconcurrence memorandum, the directors also alleged that the agency had
already violated the law by taking steps to effectuate the reorganization before it
received proper approval from Congress. Id. at 87.
The appellant’s first-line supervisor directed him to review this
nonconcurrence and provide feedback. HCD 1 (testimony of the appellant);
ID at 2, 4. The appellant was told to work with the Deputy Chief Human Capital
Officer (DCHCO) involved in coordinating the proposed reorganization. IAF,
Tab 1 at 36; HCD 1 (testimony of the appellant). After reviewing the
nonconcurrence, the appellant emailed the DCHCO on October 27, 2014, attached
the nonconcurrence memorandum from the directors within the Office of
Housing, and stated that he believed the allegations of illegal conduct were
credible and that the agency should stop all actions associated with the
reorganization. IAF, Tab 1 at 37, 61. The appellant forwarded this email to his
first-line supervisor the following day. Id. at 61. The appellant made similar
statements to his supervisors in an email sent on November 2, 2014. Id. at 64.
Then, on November 3 and 13, 2014, the appellant met with his first-line
supervisor and the DCHO to reiterate his concerns with the proposed
reorganization, highlighting the alleged illegalities. Id. at 38, 64, 70. On
November 17, 2014, the appellant met with the agency’s Associate General
Counsel of Ethics, Appeals, and Personnel Law and another agency attorney to
further discuss his concerns with the legality of the proposal. Id. at 38, 74.
On February 1, 2017, the appellant filed a whistleblower complaint with
OSC alleging that, in reprisal for the above-mentioned disclosures that he made in
October and November 2014 to agency management regarding the proposed
reorganization plan within the Office of Housing, the agency took a variety of
personnel actions against him. Id. at 15-199. The appellant amended his OSC
complaint on July 19, 2017 and February 12, 2018, alleging that, in reprisal for3
his February 2017 whistleblower complaint with OSC, the agency took additional
personnel actions against him.2 IAF, Tab 1 at 200-16, Tab 7 at 36-70.
After OSC closed its investigation into the appellant’s whistleblower
complaint with no further action, he timely filed this IRA appeal with the Board.
IAF, Tab 1 at 1, 220. The administrative judge found that the appellant met his
burden of establishing Board jurisdiction over his IRA appeal and held a 3-day
hearing.3 IAF, Tabs 25, 51-53; ID at 1. She issued an initial decision finding that
the appellant proved by preponderant evidence that his October and November
2014 emails and discussions regarding the reorganization proposal were
whistleblowing disclosures and that his filing of a whistleblower complaint with
OSC in February 2017 was protected activity. ID at 15-16. The administrative
judge then found that the appellant proved by preponderant evidence that such
whistleblowing disclosures were a contributing factor in the raised personnel
actions. ID at 16. She further found that the appellant’s protected activity was a
2 In sum, these personnel actions included: (1) from March to April 2015, the
appellant’s supervisor harassed him regarding his work on a succession-planning tool;
(2) in April 2015, the appellant’s supervisor reported to the Office of the Inspector
General that he breached employee data; (3) the agency denied the appellant an
executive pay increase in July 2015; (4) in May 2016, the agency proposed to suspend
the appellant for 3 days; (5) since June 2016, the appellant’s supervisors refused to
provide him guidance on assignments, excluded him from meetings, refused to assign
him significant work, and excluded him from advancement opportunities; (6) in June
2016, the agency suspended the appellant for 3 days; (7) in January 2017, the appellant
received an “Excellent” rating for Fiscal Year 2016; (8) in October 2016 and ongoing,
the appellant’s supervisors failed to provide him with performance standards; (9) in
February 2017, the appellant’s supervisory structure changed; and (10) the appellant’s
supervisors denied his Executive Development Plan request, which prevented him from
receiving rotational details and training. IAF, Tab 1 at 12-13, Tab 25 at 7-8.
3 In the Order Finding Jurisdiction, the administrative judge determined that the
appellant exhausted his administrative remedies with OSC and raised nonfrivolous
allegations that his whistleblowing disclosures and protected activity were contributing
factors in the agency’s decision to take the raised personnel actions. IAF, Tab 25. The
administrative judge found that the appellant did not meet his burden of establishing
Board jurisdiction over his claim that in July 2015 the agency denied him an executive
base pay increase. Id. at 5-6, 8. On review, neither party challenges any of the
jurisdictional findings in this appeal, and we find no reason to disturb them. PFR File,
Tabs 1, 3-4. 4
contributing factor in only one of the personnel actions—the denial of his
Executive Development Plan request in November 2017—as he failed to show
that his supervisors knew of his OSC complaint until August 2017. Id.4 The
administrative judge denied the appellant’s request for corrective action, finding
that the agency proved by clear and convincing evidence that it would have taken
each of the personnel actions in the absence of the appellant’s whistleblowing
disclosures and protected activity. ID at 16-25.
The appellant filed a petition for review of the initial decision. PFR File,
Tab 1. The agency responded to the petition for review, to which the appellant
filed a reply. PFR File, Tabs 3, 4.
ANALYSIS
In order to prevail on the merits of an IRA appeal, an appellant must prove
by preponderant evidence that he made a whistleblowing disclosure as described
under 5 U.S.C. § 2302(b)(8) or engaged in protected activity as described under
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and the disclosure or protected
activity was a contributing factor in the agency’s decision to take or fail to take a
personnel action outlined in 5 U.S.C. § 2302(a). 5 U.S.C. § 1221(e)(1); Salerno
v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016). If an appellant
meets his burden, then the Board shall order corrective action unless the agency
shows by clear and convincing evidence that it would have taken the same
personnel action in the absence of the whistleblowing disclosure and/or protected
activity. 5 U.S.C § 1221(e)(2); Salerno, 123 M.S.P.R. 230, ¶ 5.
Upon review, we affirm the initial decision’s findings that the appellant
made protected disclosures under 5 U.S.C. § 2302(b)(8) and engaged in protected
activity under 5 U.S.C. § 2302(b)(9)(A)(i), and that his protected disclosures and/
or activity were a contributing factor in the contested personnel actions. ID at 16,
4 The record does not demonstrate that the appellant proved contributing factor through
another prescribed method. See Dorney v. Department of the Army , 117 M.S.P.R. 480,
¶ 15 (2012). 5
24-25. The administrative judge’s findings and analysis on these matters
contained in the initial decision, to include credibility determinations, are
detailed, precise, and corroborated throughout the record. Id. The Board must
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; the Board may overturn such determinations
only when it has “sufficiently sound” reasons for doing so. Haebe v. Department
of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). The appellant here has not
presented such sufficiently sound reasons. PFR File, Tabs 1, 4. Therefore, these
portions of the initial decision are affirmed. See Clay v. Department of the Army ,
123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason to disturb the administrative
judge’s findings where she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions) ; Broughton v. Department of Health
& Human Services , 33 M.S.P.R. 357, 359 (1987) (same).
The remaining issue is whether the agency established by clear and
convincing evidence that it would have taken the personnel actions in the absence
of the appellant’s protected disclosures and/or activity. 5 U.S.C § 1221(e)(2);
Salerno, 123 M.S.P.R. 230, ¶ 5. In determining whether an agency has shown by
clear and convincing evidence that it would have taken the personnel action
absent the protected activity, the Board will consider all of the relevant factors,
including the following (known as the “ Carr factors”): (1) the strength of the
agency’s evidence in support of its action; (2) the existence and strength of any
motive to retaliate on the part of the agency officials who were involved in the
decision; and (3) any evidence that the agency takes similar actions against
employees who did not engage in such protected activity, but who are otherwise
similarly situated. Soto v. Department of Veterans Affairs , 2022 MSPB 6, ¶ 11;
see also Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir.6
1999).5 The Board does not view these factors as discrete elements; rather, they
are weighed together, along with all pertinent record evidence, to determine if the
evidence is clear and convincing as a whole. Elder v. Department of the Air
Force, 124 M.S.P.R. 12, ¶ 42 (2016). The Board considers all of the evidence,
including evidence that detracts from the conclusion that the agency met its
burden. Soto, 2022 MSPB 6, ¶ 11; see also Whitmore v. Department of Labor,
680 F.3d 1353, 1368 (Fed. Cir. 2012).
We find that the administrative judge’s analysis of the Carr factors was not
entirely consistent with the principles stated above. Regarding the second Carr
factor, the Board has held that “[t]hose responsible for the agency’s performance
overall may well be motivated to retaliate even if they are not directly implicated
by the disclosures . . . as the criticism reflects on them in their capacities as
managers and employees.” Wilson v. Department of Veterans Affairs ,
2022 MSPB 7, ¶ 65 (quoting Whitmore, 680 F.3d at 1370); Smith v. Department
of the Army, 2022 MSPB 4, ¶¶ 28-29 (same). Here, the administrative judge
appears to have been too dismissive of possible evidence showing that the
appellant’s supervisors had a motive to retaliate against him. ID at 19-21; see
Whitmore, 680 F.3d at 1370 (“To find zero evidence suggesting any retaliatory
motive [on the part of management officials] on this record is to take an unduly
dismissive and restrictive view of Carr factor number two.”). Regarding Carr
factor three, the administrative judge incorrectly placed the burden on the
appellant to present evidence that the agency took similar actions against
employees who are not whistleblowers but who are otherwise similarly situated.
ID at 19. It is the agency’s burden to produce evidence on all Carr factors, and if
5 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on these types of whistleblower issues. However, pursuant to the
All Circuit Review Act (Pub. L. No. 115-195), appellants may file petitions for judicial
review of Board decisions in whistleblower reprisal cases with any circuit court of
appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B). Therefore, we must
consider these issues with the view that the appellant may seek review of this decision
before any appropriate court of appeal.7
the first two factors alone do not support a finding that the agency would have
taken the same personnel action absent the protected disclosure or activity, the
agency’s failure to present evidence of the third Carr factor may prevent it
from carrying its overall burden. Smith, 2022 MSPB 4, ¶¶ 26-30; see also
Miller v. Department of Justice , 842 F.3d 1252, 1259-63 (Fed. Cir. 2016)
(holding that an agency’s failure to produce any evidence concerning the third
Carr factor “tends to cut slightly against [it]”). Additionally, in finding that the
employees identified by the appellant were not appropriate comparators, the
administrative judge appears to have adopted a restrictive view of the standard by
requiring that their situations be nearly identical to those of the appellant. ID
at 20. The Federal Circuit has stressed that the comparison under Carr factor
three to is not to be “highly restrictive” and only requires that the employees be
“similarly situated,” not identically situated. Whitmore, 680 F.3d at 1373.
Accordingly, we find it necessary to reassess whether the agency has
shown by clear and convincing evidence that it would have taken the same
personnel actions in the absence of the appellant’s protected disclosures and/or
activity. The administrative judge is in the best position to conduct the required
analysis, having heard the live testimony. See Shibuya v. Department of
Agriculture, 119 M.S.P.R. 537, ¶ 37 (2013). On remand, the administrative judge
should specifically address the arguments raised in the appellant’s petition for
review concerning the Carr factors. PFR File, Tab 1 at 10-33; see, e.g., Fox v.
U.S. Postal Service , 81 M.S.P.R. 522, ¶ 17 (1999) (directing the administrative
judge to address on remand the arguments raised by the appellant on review).
ORDER
We REMAND this case to the Washington Regional Office for further
adjudication consistent with this Opinion and Order. The administrative judge8
has discretion to reopen the record to take additional argument and evidence on
the issues to be addressed on remand.6
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
6 We need not address on review the appellant’s motion for leave to file additional
evidence. PFR File, Tab 8. The appellant may seek to enter this evidence into the
record on remand in accordance with instructions from the administrative judge and
Board regulations. 9 | Malgeri_John_R_DC-1221-18-0468-W-1__Remand_Order.pdf | 2024-06-27 | JOHN R. MALGERI v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, MSPB Docket No. DC-1221-18-0468-W-1, June 27, 2024 | DC-1221-18-0468-W-1 | NP |
1,125 | https://www.mspb.gov/decisions/nonprecedential/Andrews_Carlos_L_DE-3443-20-0170-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARLOS L. ANDREWS,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.DOCKET NUMBER
DE-3443-20-0170-I-1
DATE: June 27, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carlos L. Andrews , Decatur, Georgia, pro se.
Lydia Tzagoloff , Esquire, Denver, Colorado, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of a decision of the agency’s Employees’ Compensation
Appeals Board (ECAB) for lack of jurisdiction. On petition for review, the
appellant reasserts his claim from below that ECAB retaliated against him and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
further asks the Board to “reframe the issue to be appealed” to consider his
removal from his prior employing agency, the U.S. Postal Service (USPS), and
his claim that USPS engaged in reprisal against him in the adjudication of his
application for Office of Workers’ Compensation Programs (OWCP) benefits.
Petition for Review (PFR) File, Tabs 1-2. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The administrative judge correctly dismissed the appellant’s appeal of
ECAB’s decision regarding the appellant’s OWCP benefits application for lack of
jurisdiction because the Board lacks jurisdiction over such claims. Initial Appeal
File (IAF), Tab 7, Initial Decision (ID) at 3; see 5 U.S.C. § 8128(b); Clavin
v. U.S. Postal Service, 99 M.S.P.R. 619, ¶ 4 (2005). He also correctly declined to
consider the appellant’s claims that either OWCP or ECAB retaliated against him.
ID at 3; see Kerrigan v. Department of Labor, 122 M.S.P.R. 545, ¶ 9 (2015)
(stating that, when an appellant has claimed reprisal in challenging the
Department of Labor’s decision regarding OWCP benefits, a determination on
that claim would necessarily require a type of review that is prohibited under
5 U.S.C. § 8128(b)), aff’d, 833 F.3d 1349 (Fed. Cir. 2016).2
The appellant includes with his petition for review a November 22, 2019
OWCP letter regarding his inquiry into pay rates for compensation, a copy of the
statute concerning pay rates, and a March 11, 2020 OWCP letter regarding his
prior request to change his treating physician. PFR File, Tab 1 at 8-10. Under
5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted for
the first time with a petition for review absent a showing that it was unavailable
before the record closed before the administrative judge despite the party’s due
diligence. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 213 -14 (1980).
Here, the November 22, 2019 OWCP letter predates the close of the record
and is, therefore, not new. IAF, Tab 3 at 2; PFR File, Tab 1 at 8. The appellant
has not explained why he was unable to submit this document below.
Additionally, although the March 11, 2020 OWCP letter appears to be dated after
the record closed below, the appellant has not explained how this letter is relevant
to the question of Board jurisdiction. PFR File, Tab 1. Further, the copy of a
statute submitted by the appellant does not constitute evidence. As such, none of
the documents provided by the appellant on review provides a basis to disturb the
initial decision.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
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: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Andrews_Carlos_L_DE-3443-20-0170-I-1__Final_Order.pdf | 2024-06-27 | CARLOS L. ANDREWS v. DEPARTMENT OF LABOR, MSPB Docket No. DE-3443-20-0170-I-1, June 27, 2024 | DE-3443-20-0170-I-1 | NP |
1,126 | https://www.mspb.gov/decisions/nonprecedential/Diaz_ErickDC-3443-19-0674-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERICK DIAZ,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-3443-19-0674-I-1
DATE: June 27, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Erick Diaz , New York, New York, pro se.
Jeremiah P. Crowley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). We
FORWARD the appellant’s whistleblower reprisal claims raised for the first time
on review to the administrative judge for docketing as an individual right of
action (IRA) appeal, and a determination on jurisdiction, and, if applicable, the
merits.
BACKGROUND
¶2The appellant was employed as a Human Resources Specialist/Case
Examiner, GS-12, step 4, with the agency’s Board for Correction of Naval
Records (BCNR). Initial Appeal File (IAF), Tab 1 at 5, 7. On May 31, 2019, the
agency informed the appellant that he was being temporarily detailed to a GS -10
position, effective June 1, 2019, for a time period not to exceed 60 days. Id. at 9.
The agency’s May 31, 2019 memorandum explained that the detail was the result
of efforts to satisfy the appellant’s reasonable accommodation request and that it
would be conducting “an expanded job search for a funded vacant position” for
which he was qualified, but that if the search did not identify such a position for
which he was qualified, he would be offered a permanent reassignment to the
detailed position. Id.
¶3The appellant appealed the detail to the Board, arguing that he had “been
retaliated against . . . as a result of having reported improper [G]overnmental
activities and for questioning on several instances the illegal bias[] and2
mishandling of cases.” Id. at 5. The administrative judge issued a jurisdictional
order noting that the appellant’s appeal concerning “whistleblowing or other
protected activity” appeared to be an IRA appeal, and she informed him of what
was required to establish Board jurisdiction over his appeal, and, if such a
showing was made, how to prove his claim on the merits. IAF, Tab 3.
She ordered him to file evidence and argument to support a claim of Board
jurisdiction. Id. at 7. The appellant did not respond to the jurisdictional order.
¶4On August 29, 2019, the administrative judge issued an initial decision on
the written record, dismissing the appeal for lack of jurisdiction. IAF, Tab 5,
Initial Decision (ID) at 1. She noted that, although the position to which the
appellant was detailed is at the GS-10 level, “it is unclear whether the appellant
suffered a permanent reduction in grade or pay.”2 ID at 2. She further stated
that, absent a response from the appellant to the jurisdictional order, she was
“unable to find that he has established jurisdiction over this appeal” and,
similarly, that, absent evidence that he exhausted his administrative remedies
with the Office of Special Counsel (OSC), she was unable to find jurisdiction
“over his retaliation or whistleblowing claim or treat this appeal as an [IRA
appeal].” ID at 3.
¶5The appellant has filed a petition for review, claiming that he was unable to
timely respond to the jurisdictional order because he was on medical leave while
undergoing mental health treatment and dealing with mental health issues related
to his post-traumatic stress disorder and traumatic brain injury. Petition for
Review (PFR) File, Tab 2 at 5. He has submitted documents with his petition for
review to support this claim. Id. at 18-31. He also provides detailed background
information for his claims and reasserts that he was detailed to a GS -10 position
2 We recognize that a reduction in grade or pay need not be permanent to constitute an
appealable action under chapter 75. Here, however, the appellant’s appeal appears to
only assert reprisal for whistleblowing activity, IAF, Tab 1 at 5, and on review, he has
not argued that the administrative judge erred by not considering his claim as a
demotion appeal, Petition for Review File, Tab 2. 3
in reprisal for whistleblowing. Id. at 5-8, 10-16. He includes with his petition
for review a January 20, 2019 OSC complaint and an OSC close-out letter dated
July 15, 2019. Id. at 32-41. The appellant also appears to raise new claims for
the first time on review, asserting that the agency engaged in other retaliatory
actions, such as issuing him poor performance evaluations, removing his
reasonable accommodations, and subjecting him to a hostile work environment.
Id. at 6.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6The Board has held that, when an appellant alleges that an agency takes a
personnel action in reprisal for a whistleblowing activity, he has raised a
cognizable IRA claim. See Carson v. Department of Energy , 109 M.S.P.R. 213,
¶ 32 (2008), aff’d, 357 F. App’x 293 (Fed. Cir. 2009). Pursuant to 5 U.S.C.
§ 2302(a)(2)(A)(iv), a detail constitutes a personnel action, and the appellant has
claimed that his detail was taken in reprisal for “reporting improper
[G]overnmental activities.” IAF, Tab 1 at 5. Therefore, the appellant’s claim
should be treated as an IRA appeal.
¶7The Board has jurisdiction over an IRA appeal if the appellant exhausts his
administrative remedy before OSC and makes nonfrivolous allegations that:
(1) he made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or
engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
(C), or (D); and (2) the disclosure or protected activity was a contributing factor
in the agency’s decision to take or fail to take a personnel action as defined by
5 U.S.C. § 2302(a). Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5
(2016).
The appellant has not proven that he exhausted with OSC his claim that the
agency detailed him in reprisal for making protected disclosures or engaging in
protected activity.
¶8In an IRA appeal, the Board may consider only matters that the appellant
first raised before OSC. Mason v. Department of Homeland Security ,4
116 M.S.P.R. 135, ¶ 8 (2011). The purpose of the requirement that an appellant
exhaust his remedies with OSC prior to filing an IRA appeal with the Board is to
give OSC “the opportunity to take corrective action before involving the Board in
the case.” Ward v. Merit Systems Protection Board , 981 F.2d 521, 526 (Fed. Cir.
1992). The Whistleblower Protection Enhancement Act provides that, if OSC
finds that there is a substantial likelihood that the information it received
discloses a violation of the Act, it “shall transmit the information to the head of
the agency involved for investigation and report.” See 5 U.S.C. § 1213(b), (c);
Ward, 981 F.2d at 526 (making this finding based on the same language in the
prior Whistleblower Protection Act). These inquiries by OSC and their
transmittal to agencies for remedial action are a major component of OSC’s work.
Ward, 981 F.2d at 526.
¶9The Board may consider only those disclosures of information and
personnel actions that the appellant raised before OSC. Mason, 116 M.S.P.R.
135, ¶ 8. To satisfy the exhaustion requirement, an appellant must provide to
OSC a sufficient basis to pursue an investigation that might lead to corrective
action. Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 10. An
appellant may demonstrate exhaustion through his initial OSC complaint,
evidence that he amended the original complaint, including but not limited to
OSC’s preliminary determination letter and other letters from OSC referencing
any amended allegations, and the appellant’s written responses to OSC
referencing the amended allegations. Id., ¶ 11; Mason, 116 M.S.P.R. 135, ¶ 8.
To establish Board exhaustion, the appellant must prove exhaustion with OSC by
preponderant evidence, not just present nonfrivolous allegations of exhaustion.
5 C.F.R. § 1201.57(c)(1).
¶10The only evidence in the record of OSC exhaustion of the appellant’s claim
that his detail was taken in reprisal for whistleblowing activity is his OSC5
complaint and the OSC close-out letter submitted with the petition for review.3
PFR File, Tab 2 at 32-41. The complaint was submitted on January 20, 2019, and
appears to have been most recently modified on January 30, 2019. Id. at 32.
Because the appellant was informed of the detail on May 31, 2019, and it became
effective on June 1, 2019, it is not temporally possible for him to have exhausted
this claim in the January 2019 OSC complaint. IAF, Tab 1 at 9; see MacDonald
v. Department of Justice , 105 M.S.P.R. 83, ¶ 10 (2007) (concluding that an
appellant could not have exhausted a claim of a retaliatory agency action with
OSC when that action occurred after he filed his OSC complaint). Indeed, we
have reviewed the OSC complaint, and it makes no reference to the June 1, 2019
detail. PFR File, Tab 2 at 32-40. Additionally, OSC’s July 15, 2019 close-out
letter does not provide any additional information regarding the claims that the
appellant exhausted with OSC, and, therefore, also fails to establish exhaustion.
Id. at 41. Accordingly, we agree with the administrative judge’s decision to
dismiss this appeal for lack of jurisdiction. See Lewis v. Department of
Commerce, 101 M.S.P.R. 6, ¶ 7 (2005) (affirming the administrative judge’s
decision to dismiss an IRA appeal for lack of jurisdiction when the appellant
failed to exhaust her administrative remedies as to specific personnel actions).
3 Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted
for the first time with the petition for review absent a showing that it was unavailable
before the record was closed despite the party’s due diligence. Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980). We recognize the appellant’s documented medical
issues, PFR File, Tab 2 at 18-31, and we note that the issue of jurisdiction is always
before the Board, see Lovoy v. Department of Health & Human Services , 94 M.S.P.R.
571, ¶ 30 (2003). In IRA appeals, the Board will generally accept evidence of OSC
exhaustion presented for the first time on review when it implicates the Board’s
jurisdiction and warrants a different outcome than that of the initial decision. See, e.g.,
Schoenig v. Department of Justice , 120 M.S.P.R. 318, ¶ 7 (2013 ). We have considered
the appellant’s evidence submitted for the first time on review because it goes to the
heart of the jurisdictional issue and he has provided a satisfactory explanation for his
failure to submit it below. 6
The appellant’s whistleblower reprisal claims raised for the first time on review
are forwarded to the administrative judge to be docketed as an IRA appeal.
¶11As noted above, the appellant raises several claims for the first time on
review that appear to constitute claims of whistleblower reprisal. Specifically, he
alleges that after he reported “irregularities,” such as “improper ex parte
communications” involving cases before the BCNR, he began to receive poor
performance evaluations, had his reasonable accommodations removed, and was
subjected to a hostile work environment. PFR File, Tab 2 at 6. Based on our
review of the OSC complaint submitted with the petition for review, we find that
all of these claims have been exhausted. Id. at 35-37. Therefore, we forward
these claims to the Board’s Washington Regional Office for docketing as an IRA
appeal and for a determination on jurisdiction and, if applicable, on the merits.
Additionally, the administrative judge assigned to the appeal should issue a new
jurisdictional order and provide the appellant with a full opportunity to plead and
prove his claims.
¶12Based on the foregoing, we deny the appellant’s petition for review, and
affirm the initial decision. We forward the appellant’s claims that the agency
issued him poor performance evaluations, removed his reasonable
accommodations, and subjected him to a hostile work environment in reprisal for
reporting “ex parte communications” and other “irregularities” involving cases
before the BCNR, which were raised for the first time on review, to the
Washington Regional Office for docketing as an IRA appeal and adjudication.7
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
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.8
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any9
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s10
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).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Diaz_ErickDC-3443-19-0674-I-1__Final_Order.pdf | 2024-06-27 | ERICK DIAZ v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-3443-19-0674-I-1, June 27, 2024 | DC-3443-19-0674-I-1 | NP |
1,127 | https://www.mspb.gov/decisions/nonprecedential/Whitmire_RickSF-0752-19-0524-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICK WHITMIRE,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-0752-19-0524-I-1
DATE: June 27, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Justin Prato , Esquire, San Diego, California, for the appellant.
Harold G. Murray , and Jennifer Eggers , San Diego, California, for the
agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal from Federal service for failure to meet a condition of
employment. On petition for review, the appellant argues that the administrative
judge should have applied a different standard when assessing whether 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
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
removal promoted the efficiency of the service. Petition for Review (PFR) File,
Tab 1 at 5. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The administrative judge found that the agency proved its charge of failure
to meet a condition of employment due to the appellant’s failure to obtain and
maintain a commercial driver’s license (CDL), that the appellant failed to
establish his affirmative defense of reprisal, and that, in removing the appellant
from his position as a Materials Handling Inspector, the deciding official
considered all the relevant factors and exercised his discretion within the
tolerable limits of reasonableness. Initial Appeal File (IAF), Tab 16, Initial
Decision (ID) at 6-14. The appellant does not challenge these findings on review,
and we discern no error in the administrative judge’s findings on these issues.
We also agree with his conclusion that the agency proved that the
appellant’s removal promotes the efficiency of the service. ID at 12. On review,
the appellant argues that the administrative judge failed to consider this
requirement under the standard set forth in Vidal v. U.S. Postal Service ,
79 M.S.P.R. 126, ¶ 4 (1998), which requires an agency to show that, when it2
removes an employee from a job he is skilled in, places him in a job he cannot
handle, and then removes him from employment, there was a legitimate
management reason for the reassignment and that removal from that position
promoted the efficiency of the service more than would his retention in or return
to his former position.2 PFR File, Tab 1 at 5-6.
We have reviewed the record below, and it does not appear that the
appellant asserted to the administrative judge that the standard set forth in Vidal
should be applied here. IAF, Tabs 1, 9. The Board generally will not consider an
argument raised for the first time on review absent a showing that it is based on
new and material evidence that was not previously available despite the party’s
due diligence. Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016).
The appellant has not asserted that this specific argument is based on new and
material evidence, nor has he explained why he could not raise it below.
PFR File, Tab 1 at 5-6. However, even in consideration of this argument, see
e.g., Fiacco v. Office of Personnel Management , 105 M.S.P.R. 193, ¶ 18 (2007)
(examining a newly raised argument on review when the particular circumstances
of the case warrant such an examination), we nonetheless find it does not provide
a basis to disturb the initial decision.
The cases that the appellant cites to support the application of the standard
set forth in Vidal are clear cases of employees being reassigned or promoted from
one position to another. See Vidal, 79 M.S.P.R. 126, ¶ 2; Majors v. U.S. Postal
Service, 3 M.S.P.R. 146, 147 (1980). Here, although the agency referred to the
appellant’s change in position description to account for the requirement that he
2 The agency’s response to the appellant’s petition for review appears to be untimely
filed by 11 days. PFR File, Tab 3 at 4. Included with its response is a request for leave
to file the response, wherein the agency notes that its late submission was caused by
“logistical and connectivity problems caused by [t]he COVID-19 Virus.” Id. We do
not address the timeliness of the agency’s response to the appellant’s petition for review
because we otherwise deny the appellant’s petition for review. Cf. Canoles v.
Department of the Air Force , 50 M.S.P.R. 374, 376 n. (1991) (finding that the Board
need not address the timeliness of the agency’s response to a petition for review when it
dismisses the petition as untimely filed), aff’d, 972 F.2d 1354 (Fed. Cir. 1992) (Table).3
obtain a CDL as a “reassignment,” IAF, Tab 4 at 65, the facts do not support a
finding that the appellant was reassigned or promoted from one position to
another; rather, the position to which the appellant was assigned itself changed
through the addition of a new requirement, and the agency simply reissued a new
position description implementing that change and labeled it a reassignment. See
Grigsby v. Department of Commerce , 729 F.2d 772, 776 (Fed. Cir. 1984) (holding
that a Standard Form 50 is not a legally operative document that controls on its
face an employee’s status). For example, the new position description form
issued by the agency indicated that it was implementing a “redescription.” IAF,
Tab 4 at 69. In a letter to the appellant explaining this “redescription,” the
agency stated that his position description included “changes” related to the CDL
requirement. Id. at 68. Additionally, in an email to the appellant’s union
representative explaining the change, a human resources specialist explained that
the applicable agency employees would have an “updated position” with
“[p]osition description changes” related to the CDL requirement. Id. at 40.
Moreover, the appellant has not asserted that any other aspect of his position
changed, apart from the CDL requirement, nor is there any evidence in the record
that, like the prior positions in Vidal and Majors, his prior position without the
new CDL requirement still existed after his “reassignment.”
Accordingly, we find that the facts in this case are not similar enough to
the facts presented in Vidal and Majors to warrant application of the efficiency of
the service standard set forth in those cases. See, e.g., Lopez v. Department of the
Navy, 108 M.S.P.R. 384, ¶¶ 27-28 (2008) (declining to apply the standard set
forth in Vidal and Majors when the facts are not sufficiently similar to the facts
presented in those cases). As such, we discern no error in the administrative
judge’s discussion of the efficiency of the service requirement. 4
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s7
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Whitmire_RickSF-0752-19-0524-I-1__Final_Order.pdf | 2024-06-27 | RICK WHITMIRE v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0752-19-0524-I-1, June 27, 2024 | SF-0752-19-0524-I-1 | NP |
1,128 | https://www.mspb.gov/decisions/nonprecedential/Considine_Margaret_M_PH-1221-17-0279-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARGARET M. CONSIDINE,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
PH-1221-17-0279-W-1
DATE: June 27, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Richard R. Renner , Esquire, Chapel Hill, North Carolina, for the appellant.
Neil M. Robinson , Esquire, and Amber Melton , Esquire, Washington, D.C.,
for the agency.
Lamine Hendrix , Esquire, Washington, D.C., for amicus curiae, the Office
of Special Counsel.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
FINAL ORDER
The agency has filed a petition for review, and the appellant has filed a
cross petition for review of the initial decision, which granted corrective action in
this individual right of action (IRA) appeal. For the reasons discussed below, we
DENY the appellant’s motion to dismiss the agency’s petition for review for
failure to comply with an interim relief order, GRANT the agency’s petition for
review, DENY the appellant’s cross petition for review, REVERSE the initial
decision, and DENY the appellant’s request for corrective action.
BACKGROUND
By notice dated June 22, 2016, the agency terminated the appellant from
her excepted-service position as a Bank Examiner with the Office of the
Comptroller of the Currency (OCC) in New Jersey during her trial period due to
inadequate performance, effective close of business on June 23, 2016. Initial
Appeal File (IAF), Tab 5 at 27, Tab 6 at 4. Thereafter, the appellant filed a
complaint with the Office of Special Counsel (OSC) alleging that the agency
terminated her in retaliation for whistleblowing disclosures. IAF, Tab 1 at 13-14.
By notice dated March 31, 2017, OSC notified her that it was closing her
complaint without action and summarized her disclosures as follows:
1.In early February 2016, you disclosed to two supervisors that a
bond on a certain bank’s trial balance sheet appeared to violate the
Volcker rule2 and to present a conflict of interest.
2.On several occasions beginning in February 2016, you
complained to management officials that loud conversations and
other commotion in the examination rooms disrupted your efforts to
concentrate on your work assignments.
3.In June 2016, you reported to management officials that the
Functional Examiner-in-Charge [(FEIC)] provided false information
to a bank official by stating that the OCC had consented to a
proposal to backdate a legal document.
2 In relevant part, the Volcker Rule prohibits banks from engaging in certain investment
activity using customer deposits. See 12 U.S.C. § 1851; 12 C.F.R. part 44; IAF, Tab 5
at 11, Tab 11 at 11. 2
4.On two separate occasions in June 2016, you informed the [FEIC]
that commercial real estate loans had been financed without any
evidence that hazardous environmental conditions noted in a phase
one assessment had been addressed or remedied.
Id. at 13.
The appellant timely filed the instant IRA appeal arguing that the agency
terminated her from her position in retaliation for the disclosures identified in
OSC’s closure letter. IAF, Tab 1 at 6, Tab 11 at 23-29. The administrative judge
found that the appellant established jurisdiction over her appeal and held the
hearing she requested. IAF, Tabs 18, 42-43. In the initial decision, the
administrative judge found that disclosure 3, which pertained to the FEIC falsely
informing a bank that the OCC consented to its backdating proposal, was
protected and that the appellant engaged in protected activity by filing a prior
Board appeal. IAF, Tab 46, Initial Decision (ID) at 8-9, 11. He found that
disclosures 2 and 4 were not protected because a reasonable person would not
believe that a noisy workplace or a loan collateralized by real property that may
not have been properly appraised evidenced one of the categories of wrongdoing
covered by the Whistleblower Protection Enhancement Act (WPEA). ID at 8-9.
In addition, he found that disclosures 1 and 4 were not protected because,
pursuant to Aviles v. Merit Systems Protection Board , 799 F.3d 457 (5th Cir.
2015), disclosures of misconduct by non-Governmental entities are not covered
by the WPEA unless there is an allegation of Government complicity in the
private wrongdoing. ID at 7-8. The administrative judge concluded that the
appellant’s third disclosure and prior Board appeal contributed to the agency’s
decision to terminate her, and that the agency failed to show by clear and
convincing evidence that it would have taken the same action in the absence of
her protected activity. ID at 12-14. Accordingly, he granted the appellant’s
request for corrective action and ordered the agency to reinstate her. ID at 14.
The initial decision did not contain a statement on interim relief.3
The agency has filed a petition for review of the initial decision, the
appellant has responded, and the agency has replied. Petition for Review (PFR)
File, Tabs 1, 5, 7. The appellant has filed a motion to dismiss the agency’s
petition for review on the grounds that it did not provide her interim relief, and
the agency has responded in opposition to this motion. PFR File, Tabs 3-4.
The appellant has also filed a cross petition for review, and the agency has
responded.3 PFR File, Tabs 5, 8. OSC has filed an amicus curiae brief in which
it argues that the Board should hold, contrary to Aviles, that the WPEA broadly
protects Federal employee disclosures of wrongdoing by non-Governmental
entities or, in the alternative, that such disclosures are protected if they implicate
the Government’s good name and interests, rather than only when there are
allegations of Government complicity in the private wrongdoing.4 PFR File,
Tab 12. The agency and the appellant have responded to OSC’s amicus brief.5
PFR File, Tabs 14-15.
3 On December 4, 2018, after the record closed on review, the appellant filed a motion
for leave to reply to the agency’s response to her cross petition for review. PFR File,
Tab 10. She argues that this additional pleading is needed to clarify the applicability of
Aviles to this appeal, to respond to the agency’s argument that it had no duty to provide
interim relief, and to explain that her request for additional witnesses is conditional
upon the agency prevailing on its petition for review. PFR File, Tab 1 at 4-5.
However, as the Office of the Clerk of the Board advised her, the Board’s regulations
do not provide for a reply to a response to a cross petition for review and generally
preclude consideration of evidence or argument submitted after the close of the record
absent a showing that it was not readily available before the record closed. PFR File,
Tab 9; 5 C.F.R. § 1201.114(a)(5), (k). Here, the appellant has not shown that the reply
she seeks to file contains evidence or argument that was unavailable before the close of
the record or that it is necessary for our understanding of the case. Moreover, she was
afforded an opportunity to further address Aviles in her response to an amicus curiae
brief filed by OSC. PFR File, Tab 15. Accordingly, we DENY her motion. See Martin
v. U.S. Postal Service , 123 M.S.P.R. 189, ¶ 8 n.1 (2016); Parikh v. Department of
Veterans Affairs, 116 M.S.P.R. 197, ¶ 5 n.1 (2011).
4 We grant OSC’s unopposed motion for leave to file an amicus curiae brief. PFR File,
Tab 12; see 5 C.F.R. § 1201.34(e).
5 To the extent the parties’ responses address matters beyond the scope of OSC’s amicus
brief, PFR File, Tab 14 at 8-10, Tab 15 at 4-8, we do not consider them, see 5 C.F.R.
§ 1201.114(a)(5), (k).4
ANALYSIS
The appellant’s motion to dismiss the agency’s petition for review is denied.
When an administrative judge issues an initial decision in an IRA appeal
and the appellant is the prevailing party, interim relief may be provided under
5 U.S.C. § 7701(b)(2)(A). Costin v. Department of Health & Human Services ,
72 M.S.P.R. 525, 530-32 (1996), modified on other grounds , 75 M.S.P.R. 242
(1997). When an agency fails to satisfy its interim relief obligation, its petition
for review may be subject to dismissal within the Board’s discretion. 5 C.F.R.
§ 1201.116(b)-(e); see Magnusson v. Department of Veterans Affairs , 67 M.S.P.R.
88, 90-91 (1995).
When, as here, the appellant is the prevailing party in the initial decision,
the Board’s regulations require that the initial decision contain a statement on
interim relief, affirmatively stating whether interim relief has been granted.
5 C.F.R. § 1201.111(b)(4). The initial decision in this case contained no such
statement. Because they were uncertain of the administrative judge’s intentions,
the parties sought clarification from him after the initial decision was issued.
PFR File, Tab 4 at 5. In the ensuing teleconference, the administrative judge
informed the parties that the absence of a statement on interim relief was
intentional and that he had decided not to grant interim relief. Id. Therefore, the
agency declined to reinstate or pay the appellant pending the outcome of its
petition for review. Id. at 7. However, after the initial decision was issued, the
Board clarified that, when interim relief is available under the law, an initial
decision’s silence on interim relief has the effect of granting interim relief by
operation of statute. Stewart v. Department of Transportation , 2023 MSPB 18,
¶ 10. Thus, the administrative judge was mistaken about the legal effect of his
silence on interim relief, and for the reasons explained in her motion to dismiss,
we agree with the appellant that the agency had a legal obligation in this case to
grant her interim relief. PFR File, Tab 3 at 4-7.5
Nevertheless, we decline to dismiss the agency’s petition for review for
failure to provide interim relief because the agency engaged in diligent, good
faith efforts to discover its interim relief obligations, even though the conclusion
that it reached was legally incorrect. See Stewart, 2023 MSPB 18, ¶ 12 (holding
that the chief consideration in deciding whether to dismiss an agency’s petition
for review on interim relief grounds will be “whether the agency undertook good
faith, diligent, and competent efforts to satisfy its interim relief obligation”). We
note that the statements that the administrative judge made at the teleconference
were not sufficient to relieve the agency of its interim relief obligations because
they essentially purported to alter the substance of the initial decision after it had
been issued. See id., ¶ 9. Since the Board has clarified the law on this matter in
Stewart, we now consider agencies to be on notice that silence on interim relief
means that interim relief has been granted by default, and that the administrative
judge lacks the authority to revoke such grant of interim relief in a post-initial
decision issuance or statement. If this initial decision had been issued after
Stewart, the result here might be different, but since the agency did not have the
benefit of Stewart and otherwise proceeded diligently and in good faith, we
decline to dismiss the petition for review.
The agency’s failure to timely object to the administrative judge’s decision to
disallow a witness precludes it from doing so on review.
On review, the agency argues that the administrative judge abused his
discretion in excluding one of its requested witnesses, the FEIC, from testifying
at the hearing. PFR File, Tab 1 at 20-25. The agency contends that the
significance of this witness’s testimony is “hard to overstate” because he had
personal knowledge regarding the appellant’s one disclosure found to be
protected, as well as her unsatisfactory work performance. Id. at 20. However,
the agency did not object to the administrative judge’s disallowance of this6
witness below and is thus precluded from doing so on review.6 See Tarpley v.
U.S. Postal Service , 37 M.S.P.R. 579, 581 (1988). Even if the agency had
preserved an objection below, the agency has not shown that this witness’s
hearing testimony would have differed from his deposition testimony, which is
contained in the record, or that such testimony would have altered the outcome in
this appeal. IAF, Tab 35 at 149-66, Tab 37 at 18; PFR File, Tab 1 at 20-25; see
Franco v. U.S. Postal Service , 27 M.S.P.R. 322, 325 (1985) (holding that, under
the Board’s regulations, the presiding official has wide discretion to control the
proceedings, including the authority to exclude witnesses when the requesting
party has not shown that their testimony would be relevant, material, and
nonrepetitious); see also Panter v. Department of the Air Force , 22 M.S.P.R. 281,
282 (1984) (stating that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision); 5 C.F.R.
§ 1201.41(b)(8), (10).
The Board lacks jurisdiction to consider whether the agency terminated the
appellant in retaliation for filing a prior Board appeal.
Although not raised by either party on review, a question exists regarding
the Board’s jurisdiction over the appellant’s claims related to reprisal for filing a
prior Board appeal. See Ney v. Department of Commerce , 115 M.S.P.R. 204, ¶ 7
(2010) (stating that the issue of the Board’s jurisdiction is always before the
Board and may be raised sua sponte by the Board at any time). Under the WPEA,
the Board has jurisdiction over an IRA appeal if the appellant has exhausted her
administrative remedies before OSC and makes nonfrivolous allegations of the
following: (1) she engaged in whistleblowing activity by making a protected
disclosure under 5 U.S.C. § 2302(b)(8), or engaged in protected activity described
under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or
6 The appellant argues that, if the agency is permitted to call the FEIC as a witness, she
must be allowed to call three rebuttal witnesses. PFR File, Tab 5 at 37-38. Because the
agency is not being permitted to call this witness, we need not address the appellant’s
argument. 7
protected activity was a contributing factor in the agency’s decision to take or fail
to take a personnel action as defined by 5 U.S.C. § 2302(a).7
Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016). The Board
may only consider those disclosures, activities, and personnel actions that the
appellant raised before OSC. See Scoggins v. Department of the Army ,
123 M.S.P.R. 592, ¶ 9 (2016) (stating, in a pre-WPEA IRA appeal, that the Board
may only consider those disclosures of information and personnel actions raised
before OSC). The exhaustion requirements are met when an appellant has
provided OSC with a sufficient basis to pursue an investigation. Chambers v.
Department of Homeland Security , 2022 MSPB 8, ¶ 10.
Here, although the appellant exhausted her claim that the agency
terminated her in retaliation for making the four disclosures identified in OSC’s
closure letter, there is no evidence, and she has not alleged, that she informed
OSC that the agency retaliated against her for filing a prior Board appeal.8 IAF,
Tab 1 at 13-14, Tab 11 at 17, Tab 33 at 18. Thus, she failed to exhaust a claim of
reprisal for prior protected activity before OSC, and the Board lacks jurisdiction
to consider it in this IRA appeal.9 See Willis v. Department of Agriculture ,
7 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
8 We note that the appellant has not submitted a copy of her OSC complaint or any
correspondence with OSC.
9 In the initial decision, the administrative judge observed that the appellant “most
certainly would have included” a claim for reprisal for prior protected activity if the
agency had been forthcoming with certain evidence regarding its knowledge of her prior
Board appeal. ID at 5 n.4. Specifically, he pointed to evidence produced by the agency
several days before the hearing showing that, on April 4, 2016, an agency employee
forwarded to the deciding official a copy of the U.S. Court of Appeals for the Federal
Circuit decision affirming the final decision of the Board in the appellant’s prior
removal appeal, Considine v. National Credit Union Administration , 366 F. App’x 157
(Fed. Cir. 2010). ID at 10-11; IAF, Tab 33 at 77-86. Because the exhaustion
requirement is jurisdictional, however, we are precluded from considering unexhausted
claims even when, as here, there may be reasons the appellant could not have previously
raised such claim before OSC. See Yunus v. Department of Veterans Affairs , 242 F.3d
1367, 1371 (Fed. Cir. 2001 ); Scoggins, 123 M.S.P.R. 592, ¶ 9. 8
141 F.3d 1139, 1144 (Fed. Cir. 1998) (finding that the Board correctly declined to
consider allegations of disclosures not clearly raised before OSC), superseded by
statute on other grounds as stated in Day v. Department of Homeland Security ,
119 M.S.P.R. 589, ¶¶ 14-15, 18 (2013) .
The administrative judge correctly found that only the appellant’s third disclosure
was protected.
Although the Board lacks jurisdiction over the appellant’s claim of reprisal
for filing a prior Board appeal, we do not disturb the administrative judge’s
determination that the appellant established jurisdiction over her claim that the
agency terminated her in reprisal for at least one protected disclosure exhausted
before OSC. IAF, Tab 18. When, as here, an appellant has established
jurisdiction over her IRA appeal, she then must establish a prima facie case of
whistleblower retaliation by proving by preponderant evidence that she made a
protected disclosure or engaged in protected activity that was a contributing
factor in a personnel action taken against her.10 Lu v. Department of Homeland
Security, 122 M.S.P.R. 335, ¶ 7 (2015); see 5 U.S.C. § 1221(e)(1).
Under the WPEA, a protected disclosure is “any disclosure of information”
that an appellant reasonably believes evidences any violation of any law, rule, or
regulation, gross mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public health or safety.11 5 U.S.C.
§ 2302(b)(8)(A); Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365, ¶ 5,
n.3 (2013). A reasonable belief exists if a disinterested observer with knowledge
of the essential facts known to and readily ascertainable by the appellant could
reasonably conclude that the actions of the Government evidence one of the
categories of wrongdoing listed in section 2302(b)(8)(A). Chavez v. Department
10 A preponderance of the evidence is the 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. § 1201.4(q).
11 The relevant events occurred after the December 27, 2012 effective date of the
WPEA. Pub. L. No. 122-199, § 202, 126 Stat. 1465, 1476. Therefore, we have applied
the WPEA to this appeal. 9
of Veterans Affairs , 120 M.S.P.R. 285, ¶ 18 (2013). The appellant need not
prove, however, that the matter disclosed actually established one of the covered
types of wrongdoing. Id.
In determining whether the appellant’s disclosures were protected, the
administrative judge applied Aviles, 799 F.3d at 464-66, in which the U.S. Court
of Appeals for the Fifth Circuit found that the WPEA had not expanded the scope
of the Whistleblower Protection Act (WPA) to cover allegations of wrongdoing
by non-Governmental entities and that disclosures of private wrongdoing could
only be protected if there were allegations of Government complicity in the
alleged private wrongdoing. ID at 7-9. Pursuant to Aviles, he found that
disclosure 3 regarding the FEIC informing the bank that the agency consented to
its backdating proposal was protected because, although it involved private
wrongdoing, the FEIC was complicit in the wrongdoing. ID at 9-10; IAF, Tab 1
at 13. On the other hand, also relying on Aviles, he found that disclosure 4
regarding commercial real estate loans that were financed without evidence that
the environmental hazards on the collateralized property had been remedied, as
well as disclosure 1 pertaining to a bank’s violation of the Volcker Rule, were not
protected because they concerned purely private misconduct. ID at 8-9. He also
found that disclosure 2 regarding the loud and disruptive workplace and
disclosure 4 were not protected because a reasonable person could not believe
that these situations evidenced one of the categories of wrongdoing specified in
the WPEA. ID at 8-9.
On review, the parties have not challenged the administrative judge’s
determination that the appellant’s second disclosure regarding the disruptive
workplace was not protected, and we discern no basis to disturb this finding. PFR
File, Tabs 1, 5, 7-8. The appellant argues, however, that the administrative judge
erred in relying on Aviles to find that the first and fourth disclosures were not
protected. PFR File, Tab 5 at 31-36, Tab 15 at 8-10. She argues that Aviles was
wrongly decided and that neither the WPA nor the WPEA exclude disclosures10
regarding violations of law, rule, or regulation by non -Governmental entities from
coverage. PFR File, Tab 5 at 31-37. Likewise, in its amicus brief, OSC asserts
that, pursuant to the plain language of the statute, legislative history, and a
“commonsense understanding of the WPA’s purpose and effect,” the Board
should find that Federal employee disclosures of wrongdoing by
non-Governmental entities are not excluded from protection. PFR File, Tab 12
at 4-10. In response, the agency argues that the court in Aviles thoroughly
addressed and rejected the arguments raised in OSC’s amicus brief and correctly
concluded that the WPEA does not apply to disclosures that do not involve
Government misconduct. PFR File, Tab 14 at 6-8.
As set forth above, an agency may not take a personnel action against an
employee because of “any disclosure of information” by the employee that she
reasonably believes evidences one of the categories of wrongdoing specified in
5 U.S.C. § 2302(b)(8). Despite the statute’s reference to “any disclosure of
information,” the Board has held that, under the WPA, a disclosure of
wrongdoing committed by a non -Federal Government entity may be protected
only when the Government’s interests and good name are implicated in the
alleged wrongdoing, and the employee shows that she reasonably believed that
the information she disclosed evidenced that wrongdoing. Miller v. Department
of Homeland Security , 99 M.S.P.R. 175, ¶ 12 (2005); Arauz v. Department of
Justice, 89 M.S.P.R. 529, ¶ 7 (2001); see Lachance v. White , 174 F.3d 1378,
1381 (Fed. Cir. 1999) (finding a disclosure protected if a disinterested observer
could reasonably conclude that the “actions of the [G]overnment” evidence a kind
of wrongdoing covered under 5 U.S.C. § 2302(b)(8)); see also Willis, 141 F.3d
at 1143 (finding that the purpose of the WPA is to encourage “[G]overnment
personnel to disclose [G]overnment wrongdoing”). Recently, the Board found
that the WPEA did not affect the Board’s holding in Arauz and agreed with the
analysis set forth in Aviles, 799 F.3d at 464-66, that the WPEA did not extend
coverage to disclosures of purely private wrongdoing. Covington v. Department11
of the Interior, 2023 MSPB 5, ¶¶ 16-19. For the reasons set forth in Covington,
we find that the administrative judge properly relied on Aviles to find that the
WPEA did not extend coverage to disclosures of purely private conduct. In
addition, we decline OSC’s invitation to hold that disclosures of purely private
wrongdoing are broadly protected under the WPEA.
In its amicus brief, OSC also argues that, even if the Board declines to find
that the WPEA broadly protects disclosures of private wrongdoing, the
administrative judge erred in applying the standard articulated in Aviles—i.e., that
disclosures of private misconduct are protected if there are allegations of
Government complicity in the private wrongdoing—rather than the standard
previously applied by the Board—i.e., that disclosures of private wrongdoing are
protected if the private wrongdoing implicates the Government’s good name and
interests. PFR File, Tab 12 at 10-12. OSC argues that the Government
complicity standard is more restrictive than the Government good name and
interests standard enunciated in Arauz and Miller and that it is “without any basis
in the whistleblower protection statutes, legislative history, or [Board]
precedent.” Id. For the reasons discussed below, however, we find that the result
in this appeal would be the same regardless of which standard is applied, and we
therefore need not resolve whether the administrative judge erred by applying the
Government complicity standard.
The appellant’s first disclosure that a particular bank may have violated the
Volcker Rule pertains only to misconduct by the private bank and does not
implicate the Government’s good name and interests or involve Government
complicity in the alleged private wrongdoing. IAF, Tab 33 at 11-12; Hearing
Transcript (HT) at 45-48, 134-37 (testimony of the appellant). We note that the
appellant’s allegation below that agency employees discouraged her from
pursuing her concerns regarding the bank’s potential Volcker violation possibly
implicates the Government’s good name and interests or suggests agency
complicity in the private wrongdoing. Id. However, there is no indication that12
she disclosed this potential implication or Government complicity to anyone
before raising it in this appeal.12 See Aviles, 799 F.3d at 466 (stating that
disclosures may be protected if the “disclosure includes allegations of
government complicity in the private wrongdoing”); see also Voorhis v.
Department of Homeland Security , 116 M.S.P.R. 538, ¶ 30 (2011) (stating that
disclosures may be protected if they “implicate the reputation and good name of
the federal government”), aff’d, 474 F. App’x 778 (Fed. Cir. 2012). Accordingly,
the appellant has not shown that her first disclosure was protected.
The appellant’s fourth disclosure that a commercial real estate loan was
improperly collateralized because the borrower withheld information regarding an
environmental hazard on the property used as collateral from the appraiser,
resulting in a higher appraised value, also pertains to purely private misconduct.
IAF, Tab 33 at 17-18, 121, 124; HT at 64, 90, 143 (testimony of the appellant).
The appellant has not shown or alleged that any wrongdoing by the lender,
borrower, or appraiser implicates the Government’s good name or interests or that
any Government official was complicit in the alleged misconduct. Moreover, as
noted above, the administrative judge found, and we agree, that the appellant has
not shown that a reasonable person would believe that an incorrect appraisal of
real property evidences one of the categories of wrongdoing specified in section
2302(b)(8). ID at 9. Thus, the appellant has not shown that her fourth disclosure
was protected.
Finally, as noted above, the administrative judge found that the appellant’s
third disclosure that the FEIC provided false information to a bank official when
he stated that the agency consented to a proposal to backdate a legal document
was protected. ID at 5, 8-9. In so finding, he determined that the appellant
credibly testified that she raised this issue with her supervisor and gave specific
12 Even if the appellant disclosed the agency employees’ conduct in response to her
concerns about the bank’s potential Volcker Rule violation, she has not provided any
evidence reflecting that she exhausted such a disclosure before OSC. IAF, Tab 1
at 13-14; see Willis, 141 F.3d at 1144.13
and detailed information that she reasonably believed this conduct evidenced a
violation of law, rule, or regulation. ID at 8-9. The agency appears to challenge
this finding on review, arguing that the appellant’s disagreement with the bank’s
proposed solution to its documentation error amounted to a policy disagreement,
rather than a disclosure of illegal bank activity. PFR File, Tab 1 at 23.
General philosophical or policy disagreements with agency decisions are
not protected unless the appellant has a reasonable belief that the disclosed
information separately evidences one of the covered categories of wrongdoing.
Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶¶ 8-9, 12 n.6 (2015); see
5 U.S.C. § 2302(a)(2)(D). Here, even if the appellant’s disclosure amounted to a
policy disagreement, we discern no basis to disturb the administrative judge’s
credibility-based determination that the appellant had a reasonable belief that
backdating a legal banking document evidenced a violation of law, rule, or
regulation. See Webb, 122 M.S.P.R. 248, ¶¶ 8-9; Purifoy v. Department of
Veterans Affairs , 838 F.3d 1367, 1373 (Fed. Cir. 2016) (finding that the Board
must defer to an administrative judge’s demeanor-based credibility
determinations “[e]ven if demeanor is not explicitly discussed”); see also Little v.
Department of Transportation , 112 M.S.P.R. 224, ¶ 4 (2009) (noting that when an
administrative judge has heard live testimony, her credibility determinations must
be deemed to be at least implicitly based upon witness demeanor). In addition,
we discern no basis to disturb the administrative judge’s determination that, by
consenting to the proposal, the FEIC was complicit in what the appellant
reasonably believed was a violation of law, rule, or regulation and further find
that this complicity implicates the Government’s interests and good name. ID
at 8; see Miller, 99 M.S.P.R. 175, ¶ 12; Arauz, 89 M.S.P.R. 529, ¶ 7; IAF, Tab 38
at 37. Accordingly, we agree with the administrative judge that the appellant’s
third disclosure was protected. 14
The appellant did not establish that her third disclosure was a contributing factor
in her termination.
As noted above, the appellant must next prove by preponderant evidence
that her disclosure was a contributing factor in a personnel action. Scoggins,
123 M.S.P.R. 592, ¶ 21. Personnel actions include, as relevant here, a
termination during a trial period. See 5 U.S.C. § 2302(a)(2)(A)(iii); Scalera v.
Department of the Navy , 102 M.S.P.R. 43, ¶ 15 (2006) (stating that a probationary
termination is a covered personnel action). The term “contributing factor” means
any disclosure that affects an agency’s decision to threaten, propose, take, or not
take a personnel action regarding the individual making the disclosure. Scoggins,
123 M.S.P.R. 592, ¶ 21. The most common way of proving the contributing
factor element is the “knowledge/timing test.” Id. Under that test, an appellant
can prove that her disclosure was a contributing factor in a personnel action
through evidence that the official taking the personnel action knew of the
whistleblowing disclosure and took the personnel action within a period of time
such that a reasonable person could conclude that the disclosure was a
contributing factor in the personnel action. Id. Once an appellant has satisfied
the knowledge/timing test, she has demonstrated that a protected disclosure was a
contributing factor in a personnel action. Id.
In the initial decision, the administrative judge found that the appellant
established by preponderant evidence that her third disclosure contributed to the
agency’s June 22, 2016 termination decision based on the knowledge/timing test,
explaining that the termination and disclosure were close in time and that the
supervisors were aware of the disclosure. ID at 10. The agency appears to
challenge this finding on review, arguing that the appellant’s supervisor decided
to terminate the appellant before the wrongdoing at issue in her third disclosure
even occurred. PFR File, Tab 1 at 24.
The wrongdoing at issue in the appellant’s third disclosure occurred on
June 16, 2016, when the FEIC emailed the bank official stating that the agency15
did not object to the bank’s backdating proposal, and the appellant’s disclosure of
this wrongdoing therefore necessarily occurred sometime after that date. IAF,
Tab 38 at 37. However, as the agency correctly argues on review, the process to
remove the appellant began before the date of the wrongdoing—specifically, the
appellant’s supervisor requested a termination decision from human resources on
June 9, 2016, and a draft termination notice began circulating on June 14, 2016.
IAF, Tab 33 at 87-90, Tab 34 at 8. Nonetheless, the fact that the appellant’s
supervisor began the process to terminate the appellant before she made her third
disclosure does not necessarily preclude a finding of contributing factor. While
disclosures made after an action has been “initiated,” i.e., the decision to take the
action has been finalized even if not yet implemented, cannot be a contributing
factor in the action, an action that was only “contemplated and in preparation”
prior to a disclosure can serve as the predicate personnel action in an IRA appeal.
Fickie v. Department of the Army , 86 M.S.P.R. 525, ¶ 9 (2000) (citing Horton v.
Department of the Navy , 66 F.3d 279, 284 (Fed. Cir. 1995), superseded by statute
on other grounds as stated in Day , 119 M.S.P.R. 589, ¶¶ 14, 18). Here, the
agency’s decision to terminate the appellant was finalized on June 22, 2016, when
her supervisor issued her the dated and signed termination notice and, therefore,
any disclosures made before June 22, 2016, could have contributed to the
agency’s termination decision even if they were made after her supervisor
requested a termination decision from human resources. IAF, Tab 6 at 4, Tab 33
at 36, Tab 37 at 57, Tab 40 at 56.
It is undisputed that the appellant sent a June 23, 2016 email to the OCC
ethics attorney, with copies to the appellant’s supervisor and the FEIC, clearly
stating her objection to the FEIC’s consent to the bank’s proposal to backdate a
document. IAF, Tab 38 at 36. However, her disclosure in this email cannot serve
as a contributing factor to her termination because the termination decision had
already been finalized. See Horton, 66 F.3d at 284. Although the appellant
testified that, before she was terminated, she expressed her concern about the16
bank’s backdating proposal to the FEIC and her supervisor and told the FEIC that
she would not “be complicit in the backdating of a legal document,” these
concerns pertain only to purely private wrongdoing by the bank. HT at 81-83,
103-04, 114-25, 139-43, 240-45 (testimony of the appellant). There is no
evidence or testimony reflecting that the appellant made her protected disclosure
containing allegations of Government involvement in the alleged private
wrongdoing—i.e., that the FEIC falsely informed the bank that the agency agreed
to its proposal to backdate a legal document—to anyone before June 23, 2016.
Accordingly, the administrative judge erred in finding that the appellant
established contributing factor based on knowledge/timing.13 ID at 10.
The knowledge/timing test, however, is not the only way for an appellant to
satisfy the contributing factor standard . Dorney v. Department of the Army ,
117 M.S.P.R. 480, ¶ 14 (2012). Rather, if the Board determines that an appellant
has failed to meet the knowledge/timing test, it must consider other evidence,
such as evidence pertaining to the strength or weakness of the agency’s reasons
for taking the personnel action, whether the whistleblowing was personally
directed at the official who took the action, and whether the individual had a
desire or motive to retaliate against the appellant. Id., ¶ 15.
In the initial decision, the administrative judge found as part of his clear
and convincing analysis that the agency did not have strong evidence in support
of its decision to terminate the appellant, noting that one of the bank examiners
who reviewed the appellant’s work testified that she had a good work ethic and
good technical skills. ID at 13. However, as the agency notes on review, the
administrative judge appeared to misrepresent the hearing testimony. PFR File,
Tab 1 at 12-19. Although the bank examiner testified that the appellant had a
good work ethic and “some technical skills,” she further testified that the
13 For the reasons discussed above, the appellant’s disclosure that the bank proposed to
backdate a document, without any reference to the FEIC’s involvement in the alleged
wrongdoing, is not a protected disclosure under the WPEA because it pertains to purely
private conduct. See Miller, 99 M.S.P.R. 175, ¶ 12; Arauz, 89 M.S.P.R. 529, ¶ 7. 17
appellant “did not meet expectations,” her “productivity was low,” “the products
that I did get were not fully developed,” and she “struggled with some basic
credit concepts.” HT at 260-63, 299 (testimony of a national bank examiner).
Another bank examiner who reviewed the appellant’s work testified that her
“credit skills were not commensurate with the complexities of this assignment”
and that she spent “an inordinate amount of time reviewing documentation,” and
he further stated in an email that, although “she may be able to work
independently in the future, [] it is going to take some time.” HT at 315
(testimony of a national bank examiner); IAF, Tab 38 at 77-78. In addition,
Assignment Evaluation Forms in the record reflect deficiencies in the appellant’s
technical, analytical, organizational, and communication and interpersonal skills.
IAF, Tab 38 at 30-32, 79-80, Tab 39 at 37-40. Thus, we find that the agency’s
reasons for terminating the appellant for inadequate performance were
sufficiently strong. Moreover, the appellant’s third disclosure was not personally
directed at her supervisor, who took the termination action. Finally, given that
the appellant’s supervisor was unaware of the appellant’s third disclosure at the
time she asked human resources to prepare the termination decision and at the
time she issued the decision, we discern no basis to find that she had a desire or
motive to retaliate against the appellant.
In light of the foregoing, we find that the appellant failed to prove by
preponderant evidence that her third disclosure contributed to the agency’s
decision to terminate her during her trial period and therefore that she failed to
establish a prima facie case of whistleblower reprisal. Accordingly, we deny the
appellant’s request for corrective action.14
14 When, as here, the appellant has not established a prima facie case of whistleblower
reprisal, the Board may not proceed to address whether the agency proved by clear and
convincing evidence that it would have taken the same personnel action in the absence
of the protected disclosure. See Clarke v. Department of Veterans Affairs ,
121 M.S.P.R. 154, ¶ 19 n.10 (2014) (holding that the Board may not proceed to the
clear and convincing test unless it has first made a finding that the appellant established
his prima facie case), aff’d per curiam, 623 F. App’x 1016 (Fed. Cir. 2015). 18
NOTICE OF APPEAL RIGHTS15
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
15 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. 19
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any20
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s21
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.16 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
16 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 22
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.23 | Considine_Margaret_M_PH-1221-17-0279-W-1__Final_Order.pdf | 2024-06-27 | MARGARET M. CONSIDINE v. DEPARTMENT OF THE TREASURY, MSPB Docket No. PH-1221-17-0279-W-1, June 27, 2024 | PH-1221-17-0279-W-1 | NP |
1,129 | https://www.mspb.gov/decisions/nonprecedential/Miller_Jared_D_CH-315H-19-0524-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JARED D. MILLER,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-315H-19-0524-I-1
DATE: June 27, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jared D. Miller , New London, Wisconsin, pro se.
John Jakubiak , Esquire, Milwaukee, Wisconsin, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his probationary termination appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review. Except as expressly MODIFIED to find that the appellant has
not made a nonfrivolous allegation of Board jurisdiction under 5 U.S.C. § 7511(a)
(1)(B), we AFFIRM the initial decision.
BACKGROUND
On October 2, 2016, the appellant, a preference eligible, was appointed
pursuant to a Veterans’ Recruitment Appointment (VRA) to the excepted-service
position of Police Officer. Initial Appeal File (IAF), Tab 12 at 60. He resigned
from that position, effective September 15, 2018. Id. at 53. Effective January 6,
2019, the agency appointed the appellant pursuant to a VRA to an
excepted-service position of Police Officer, subject to the completion of a 2-year
trial period. Id. at 52. On July 15, 2019, the agency terminated him for “failure
to qualify during [his] trial period” and “off duty misconduct.”2 Id. at 15, 18.
The appellant appealed his probationary termination to the Board. IAF,
Tab 1. In a jurisdictional order, the administrative judge set forth the
jurisdictional burdens over a probationary termination appeal for an employee in
2 The agency did not specify what it considered to be “off-duty misconduct” in the
notice of termination; however, the record reflects that the appellant was arrested while
on duty for alleged domestic-related battery during his trial period. IAF, Tab 12 at 21,
24-27, 34-38. 2
the excepted service under 5 U.S.C. § 7511(a)(1)(B)-(C) and informed the
appellant of the limited appeal rights available to an employee in the competitive
service under 5 C.F.R. §§ 315.805-.806. IAF, Tab 9. Without holding the
requested hearing, the administrative judge issued an initial decision dismissing
the appeal for lack of jurisdiction. IAF, Tab 13, Initial Decision (ID) at 4. The
administrative judge found that the appellant had no statutory right of appeal
because he did not serve 2 consecutive years in an other than temporary position
limited to 2 years or less. ID at 3. Because the appellant was appointed under the
VRA, the administrative judge considered the appellant’s contention that the
agency violated 5 C.F.R. §§ 315.805-.806. ID at 3-4. The administrative judge
found that the appellant had no regulatory right of appeal because he did not
nonfrivolously allege that he was terminated for preappointment reasons or that
the agency engaged in marital status discrimination. ID at 4-5.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1.3 The agency has not responded.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has not made a nonfrivolous allegation of Board jurisdiction under
5 U.S.C. § 7511(a)(1)(B).
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. LeMaster v. Department of
Veterans Affairs , 123 M.S.P.R. 453, ¶ 7 (2016). An appellant has the burden of
establishing jurisdiction over his appeal. 5 C.F.R. § 1201.56(b)(2)(i)(A). An
appellant is entitled to a jurisdictional hearing if he raises a nonfrivolous
allegation of Board jurisdiction. Liu v. Department of Agriculture , 106 M.S.P.R.
178, ¶ 8 (2007).
3 With his petition for review, the appellant has provided emails he sent and received
from the office of Senator Ron Johnson regarding his probationary termination. PFR
File, Tab 1 at 6-8. We have not considered this evidence because it is not new. IAF,
Tab 4 at 5-6; see Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980)
(stating that evidence that is already a part of the record is not new). 3
Under 5 U.S.C. chapter 75, subchapter II, an individual who meets the
definition of “employee” at 5 U.S.C. § 7511(a)(1) generally has the right to
challenge his removal from Federal service by filing an appeal with the Board.
See 5 U.S.C. §§ 7512(1), 7513(d). The definition of an “employee” includes a
preference eligible in the excepted service who has completed 1 year of current
continuous service in the same or similar positions. 5 U.S.C. § 7511(a)(1)(B);
Maibaum v. Department of Veterans Affairs , 116 M.S.P.R. 234, ¶ 14 (2011). The
term “current continuous service” means a period of employment, either in the
competitive or excepted service, that immediately precedes an adverse action
without a break in Federal civilian employment of a workday. Maibaum,
116 M.S.P.R. 234, ¶ 14; 5 C.F.R. § 752.402(b).
In the initial decision, the administrative judge acknowledged that the
appellant was a preference eligible. ID at 3. However, she applied the standard
set forth in 5 U.S.C. § 7511(a)(1)(C) for a nonpreference eligible. ID at 3. We
may rule on this jurisdictional issue because the appellant received explicit
jurisdictional notice regarding a preference eligible in the excepted service and
the record on the dispositive facts is fully developed. See Ramirez-Evans v.
Department of Veterans Affairs , 113 M.S.P.R. 297, ¶ 9 (2010). As explained
below, the record reflects that the appellant failed to raise a nonfrivolous
allegation of Board jurisdiction under 5 U.S.C. § 7511(a)(1)(B). We modify the
initial decision accordingly.4
Notably for a preference eligible in the excepted service, the absence or
completion of a probationary or trial period is not determinative of “employee”
status. Maibaum, 116 M.S.P.R. 234, ¶ 9. Rather, the dispositive issue is whether
4 Because of our finding that the appellant failed to nonfrivolously allege that he met
the 1 year of current continuous service requirement, as set forth below, the appellant’s
preference eligibility status does not affect the outcome of this appeal. Thus, the
administrative judge’s failure to apply section 7511(a)(1)(B) to this appeal did not
prejudice the appellant’s substantive rights, and thus does not provide a basis for
reversing the initial decision. See Panter v. Department of the Air Force , 22 M.S.P.R.
281, 282 (1984).4
the appellant satisfied the 1-year current continuous service requirement at the
time of his separation. Because the appellant was terminated during his first year
of service, we must determine whether the appellant’s prior service may be tacked
onto the service at issue.
The appellant’s prior employment as a Police Officer cannot be tacked onto
his civilian service to satisfy the 1-year current continuous service requirement
because it was preceded by a break in service of more than a workday. Maibaum,
116 M.S.P.R. 234, ¶ 14. Moreover, while the appellant had prior military service,
IAF, Tab 1 at 5, Tab 4 at 3, Tab 12 at 52, military service cannot be tacked onto
civilian service to satisfy the 1-year current continuous service requirement,
Bell v. Department of Homeland Security , 95 M.S.P.R. 580, ¶¶ 15-18 (2004). The
appellant has therefore failed to nonfrivolously allege that he completed 1 year of
current continuous service in the same or similar positions under 5 U.S.C.
§ 7511(a)(1)(B). Thus, we agree with the administrative judge that the appellant
has failed to nonfrivolously allege that he is an “employee” who may appeal to
the Board under 5 U.S.C. chapter 75. ID at 3.
The appellant has not made a nonfrivolous allegation of Board jurisdiction under
5 C.F.R. § 315.806.
Individuals in VRA appointments have been granted the same appeal rights
during the first year of their trial periods as competitive service employees.
Maibaum, 116 M.S.P.R. 234, ¶ 18; 5 C.F.R. § 307.105. Under 5 C.F.R.
§ 315.806(b), a probationary employee may appeal a termination taken for
reasons arising after his appointment if he alleges that the termination was based
on partisan political reasons or marital status.5 Maibaum, 116 M.S.P.R. 234,
5 The appellant does not appear to allege that his termination was based on partisan
political reasons. Moreover, the appellant does not challenge on review the
administrative judge’s finding that his allegations, taken as true, do not show that he
was treated differently because of his marital status or constitute facts that go to the
essence of his marital status. ID at 4-5; see Marynowski v. Department of the Navy ,
118 M.S.P.R. 321, ¶ 9 (2012) (stating that, to make a nonfrivolous allegation of marital
status discrimination, an appellant must allege facts which, taken as true, would show
that she was treated differently because of her marital status or facts that go to the5
¶ 18. Under 5 C.F.R. § 315.806(c), a probationer whose termination was based
on preappointment reasons may appeal on the ground that his termination was not
effected in accordance with the procedural requirements of 5 C.F.R. § 315.805.
West v. Department of Health and Human Services , 122 M.S.P.R. 434, ¶ 7 (2015).
We agree with the administrative judge that the appellant did not make a
nonfrivolous allegation in this regard.
On review, the appellant reiterates his contention that the agency’s
investigation of his extramarital affair with an agency employee, which occurred
during his first appointment, constitutes a preappointment reason for his
termination. PFR File, Tab 1 at 4-5. As to this argument, he expresses his belief
that he was denied an opportunity to respond to the charges against him as
required by regulation. Id. at 5. The administrative judge considered this
argument below and determined that the agency terminated the appellant for
postappointment reasons—specifically, for his arrest for alleged domestic-related
battery and based on a subsequent investigation into his misconduct during his
trial period. ID at 4; IAF, Tab 12. The administrative judge concluded therefore
that the appellant was not entitled to the procedural protections of 5 C.F.R.
§ 315.805. ID at 4. We discern no reason to reweigh the evidence or substitute
our assessment of the record evidence for that of the administrative judge. See
Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105 -06 (1997) (finding no reason
to disturb the administrative judge’s findings when the administrative judge
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); Broughton v. Department of Health and Human Service s,
33 M.S.P.R. 357, 359 (1987) (same).
Because the appellant has failed to make a nonfrivolous allegation of Board
jurisdiction under either chapter 75 or 5 C.F.R. part 315, the administrative judge
essence of her status as married, single, or divorced). We agree with the administrative
judge that the appellant did not raise a nonfrivolous allegation of marital status
discrimination. ID at 4-5.6
correctly found that he was not entitled to a jurisdictional hearing.6 Liu,
106 M.S.P.R. 178, ¶ 8. Accordingly, we affirm the initial decision as modified
herein.
NOTICE OF APPEAL RIGHTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
6 On review, the appellant also appears to challenge the merits of the agency’s
termination decision. PFR File, Tab 1 at 4. These arguments do not provide a basis for
disturbing the initial decision. See Yakupzack v. Department of Agriculture ,
10 M.S.P.R. 180, 182 (1982) (stating that the Board’s review of probationary
terminations does not include a review of the merits of the termination action);
Kellum v. Veterans Administration , 2 M.S.P.R. 65, 67 (1980) (finding that, absent
Board jurisdiction over a probationary termination, issues concerning the sufficiency
and propriety of the agency’s misconduct allegations concern are immaterial to an
appeal).
7 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.7
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain8
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
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 9
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 10
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Miller_Jared_D_CH-315H-19-0524-I-1__Final_Order.pdf | 2024-06-27 | JARED D. MILLER v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-315H-19-0524-I-1, June 27, 2024 | CH-315H-19-0524-I-1 | NP |
1,130 | https://www.mspb.gov/decisions/nonprecedential/Mason_JanelleDC-844E-20-0306-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JANELLE MASON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-844E-20-0306-I-1
DATE: June 27, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Janelle Mason , District Heights, Maryland, pro se.
Linnette Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for failure to prosecute her appeal of a decision by the Office of
Personnel Management. On review, she argues that she was unable to attend the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
scheduled telephonic hearing below due to a “pandemic medical emergency.”2
Petition for Review (PFR) File, Tab 1 at 3; Initial Appeal File, Tab 7 at 1.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
If a party fails to prosecute or defend an appeal, the sanction of dismissal
with prejudice may be imposed. Davis v. Department of Commerce ,
120 M.S.P.R. 34, ¶ 17 (2013); Williams v. U.S. Postal Service , 116 M.S.P.R. 377,
¶ 7 (2011) (citing Ahlberg v. Department of Health and Human Services , 804 F.2d
1238, 1242 (Fed. Cir. 1986) and 5 C.F.R. § 1201.43(b) ). Such an extreme
sanction is only appropriate when necessary to serve the ends of justice and
2 The appellant indicates in her petition for review that she is including with her
pleading medical documents surrounding a medical emergency. Petition for Review
(PFR) File, Tab 1 at 2. However, it does not appear that she has included any such
documents. Rather, it seems that the appellant attempted to scan medical
documentation, as one of the pages of the attachments contains the phrase “in 1 -2 days
for reeval,” but this documentation is illegible and incomplete. Id. at 4-5. Recognizing
that certain medical documentation could have an impact on the success of the
appellant’s petition for review, the Office of the Clerk of the Board provided the
appellant with an opportunity to resubmit the attachments, but the appellant did not do
so. PFR File, Tab 4.2
should only be imposed when (1) a party has failed to exercise basic due
diligence in complying with Board orders or (2) a party has exhibited negligence
or bad faith in its efforts to comply. Davis, 120 M.S.P.R. 34, ¶ 18;
Williams, 116 M.S.P.R. 377, ¶ 7. If an appellant repeatedly fails to respond to
multiple Board orders, such inaction reflects a failure to exercise basic due
diligence, and the imposition of the sanction of dismissal for failure to prosecute
is appropriate. Williams, 116 M.S.P.R. 377, ¶ 9; Heckman v. Department of the
Interior, 106 M.S.P.R. 210, ¶ 16 (2007) ; Murdock v. Government Printing Office ,
38 M.S.P.R. 297, 299 (1988) . Absent a showing of abuse of discretion, the Board
will not reverse an administrative judge’s determination regarding the imposition
of sanctions, including the sanction of dismissal with prejudice. Turner v. U.S.
Postal Service, 123 M.S.P.R. 640, 644-45 (2016), aff’d, 681 F. App’x 934
(Fed. Cir. 2017). Based on our review of the record, we find no abuse of
discretion on the part of the administrative judge in this appeal.3
NOTICE OF APPEAL RIGHTS4
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
3 As noted above, the appellant claims in her petition for review that she was unable to
attend a hearing because of a “pandemic medical emergency.” PFR File, Tab 1 at 3.
However, she has not explained why she was unable to respond to the administrative
judge’s orders regarding prehearing submissions, nor has she explained why she failed
to respond to the order to show cause. Id. Moreover, she has not explained how a
medical emergency impacted her ability to respond to any of the administrative judge’s
orders. Id. Importantly, she has not provided any evidence to support her claim of a
“pandemic medical emergency,” despite having multiple opportunities to do so.
PFR File, Tabs 1, 4. The Board typically will not entertain a claim of a medical
emergency absent corroborating evidence. See, e.g., Martin v. Office of Personnel
Management, 51 M.S.P.R. 360, 361 (1991 ) (stating that an appellant’s claim that he was
ill is a “mere assertion” when it is unsupported by medical documentation when
analyzing a timeliness issue and whether an appellant’s assertion of illness constituted
good cause). Accordingly, the appellant’s petition for review does not provide a basis
to disturb the initial decision.
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.3
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
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. 4
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the5
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
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
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Mason_JanelleDC-844E-20-0306-I-1__Final_Order.pdf | 2024-06-27 | JANELLE MASON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-844E-20-0306-I-1, June 27, 2024 | DC-844E-20-0306-I-1 | NP |
1,131 | https://www.mspb.gov/decisions/nonprecedential/Semenza_BryantPH-0845-18-0448-C-1__Non_Closeout_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRYANT SEMENZA,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0845-18-0448-C-1
DATE: June 27, 2024
THIS ORDER IS NONPRECEDENTIAL1
Andrew J. Race , Esquire, Lebanon, Pennsylvania, for the appellant.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A Harris, Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
ORDER
The appellant has filed a petition for review of the compliance initial
decision, which denied his petition for enforcement of the settlement agreement
resolving his underlying overpayment appeal. For the reasons discussed below,
we GRANT the petition for review, REVERSE the compliance initial decision as
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
to the determination that the Office of Personnel Management (OPM) did not
breach the provision concerning reinstatement of the appellant’s annuity
supplement, and ORDER OPM to file evidence of compliance within 45 days.
BACKGROUND
The appellant retired under the Federal Employees’ Retirement System
(FERS) in August 2014, at 56 years of age. Semenza v. Office of Personnel
Management, MSPB Docket No. PH-0845-18-0448-I-1, Initial Appeal File (IAF),
Tab 5 at 6, 34, 46. That same month, he became eligible for a FERS annuity
supplement. Id. at 6. OPM subsequently determined that he had exceeded the
FERS supplement minimum level of earnings for calendar year 2015. Id. at 6, 18.
In August 2018, OPM issued a final decision, concluding that because
he exceeded the minimum level of earnings, his supplement benefit payments
should have been terminated in July 2016. Id. at 6-7. Thus, the appellant had
been overpaid $11,808 in FERS annuity supplement benefits between July 2016
and March 2017, when his payments were not reduced for his excess earnings.
Id. The appellant filed a Board appeal from OPM’s final decision. IAF, Tab 1
at 4-6. He also asserted that OPM should have reinstated his annuity supplement
after he stopped working in October 2016. Id. at 5.
On April 17, 2019, the parties entered into a settlement agreement
resolving the appellant’s overpayment appeal. IAF, Tab 12 at 3. Under the terms
of the agreement, the parties agreed to a collection schedule spanning 42 months.
Id. The appellant also agreed to withdraw his Board appeal. Id. Paragraph 3 of
the agreement further provided that, “If [the appellant] is due any accrued annuity
due to reinstatement of his annuity supplement, the accrued annuity will be
applied to the overpayment.” Id. The administrative judge found that the
agreement was lawful on its face and freely reached, and the parties understood
the terms of the agreement and agreed to have it enforced by the Board.
IAF, Tab 13, Initial Decision (ID) at 2. Accordingly, she accepted the agreement2
into the record for enforcement purposes and issued an initial decision dismissing
the appeal as settled. Id. The initial decision became the final decision of the
Board on May 30, 2019, when neither party filed a petition for review. Id.
The appellant subsequently filed a petition for enforcement seeking to
enforce paragraph 3 of the agreement. Semenza v. Office of Personnel
Management, MSPB Docket No. PH-0845-18-0448-C-1, Compliance File (CF),
Tab 1 at 3-4. Specifically, he alleged that the agency had not reinstated his
annuity supplement and applied it to the overpayment as required under the
settlement agreement. Id. at 3. He requested that the administrative judge find
that the agency violated the settlement agreement and award him costs, interests,
and attorney fees. Id.
OPM responded by arguing that its obligations in paragraph 3 were
conditioned on OPM’s determination that the appellant was eligible for
reinstatement of his annuity supplement. CF, Tab 3 at 4. Because it had not
made a determination regarding reinstatement, OPM asserted it had complied
with the agreement by collecting the overpayment consistent with the collection
schedule set forth therein. Id. The appellant did not respond. The administrative
judge issued a compliance initial decision that denied the appellant’s petition for
enforcement, concluding that the agency had complied with the terms of the
settlement agreement. CF, Tab 6, Compliance Initial Decision (CID) at 1-2.
The appellant has filed a petition for review of the compliance initial
decision. Compliance Petition for Review (CPFR) File, Tab 1. The agency has
submitted an untimely response in opposition to the compliance petition for
review, and the appellant has replied.2 CPFR File, Tabs 4, 7.
2 Any response to a petition for review must be filed within 25 days of service of the
petition for review. 5 C.F.R. § 1201.114(e). On November 23, 2020, the appellant filed
his petition for review using the Board’s e-Appeal system, and the agency, which is
registered as an e-filer, is deemed to have received it the same day. PFR File, Tab 1
at 7; see 5 C.F.R. § 1201.14(m)(2) (stating that registered e-filers are deemed to have
received documents on the date of electronic submission). Thus, any response was due
by December 18, 2020, and the agency’s December 21, 2020 response was 3 days late.
CPFR File, Tab 4. The Clerk offered the agency an opportunity to show good cause for3
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant reasserts on review that the agency breached the agreement
because the agency failed to determine if the appellant is eligible for an annuity
supplement and, if eligible, to apply any unpaid annuity to the overpayment as
required by the settlement agreement. CPFR File, Tab 1 at 4-5.
The administrative judge concluded that the agency complied with this provision
of the agreement without an explanation or analysis. CID at 2. We disagree with
his determination.
As the “‘personnel and payroll office’ for . . . retirees and survivors,” OPM
has primary responsibility for administering FERS. Office of Personnel
Management, Civil Service Retirement System and Federal Employees
Retirement System Handbook for Personnel and Payroll Offices (Handbook),
chapter 1 § 1C2.1(A), (E), http://www.opm.gov/retirement-services/publications-
forms/csrsfers-handbook/ (last visited June 27, 2024). OPM has broad authority
to pay annuity benefits, adjudicate all claims, and issue regulations as necessary
to do so. 5 U.S.C. § 8461(a)-(c), (g). The annuity supplement, such as the one at
issue, is a benefit administered by OPM to qualifying FERS employees who retire
before the age of 62. 5 U.S.C. §§ 8421(a), 8461(a); 5 C.F.R. § 842.503(a)-(b);
Handbook, chapter 51 § 51A1.1-1(A). It provides income equal to the Social
Security old-age benefit a retiree will receive once eligible. 5 U.S.C. § 8421(B)
(2). A retiree remains eligible for the annuity supplement until eligible for the
the delayed filing. CPFR File, Tab 5. The agency responded, stating that it was
operating with limited resources due to the coronavirus pandemic, and the agency
representative was on annual leave from December 14-18, 2020. CPFR File, Tab 6.
However, the agency had 21 days between the date of service of the petition for review
and the start of the agency representative’s annual leave to file its response or request
an extension of time to file. Further, although the agency indicated that transfer of its
retirement file was delayed, apparently due to the pandemic, it did not indicate the
length of the delay. Id. at 6. Thus, we find that the agency has not shown good cause
for its untimeliness. See Wojcicki v. Department of the Air Force , 72 M.S.P.R. 628, 632
n.1 (1996) (declining to excuse an agency’s 1-day delay in filing its response to a
petition for review, allegedly due in part to the press of other work). Nonetheless, we
have considered the agency’s response and find that it does not affect our decision. 4
old-age Social Security benefit or age 62, whichever occurs first. 5 C.F.R. §
842.503(c).
OPM will reduce or eliminate the supplement if a retiree earns above a
certain minimal level in the prior year. 5 C.F.R. § 842.505(a); Handbook,
chapter 51 § 51A3.1-1(C). For this reason, OPM requires retirees receiving the
annuity supplement to report earnings annually. 5 C.F.R. § 842.505(c);
Handbook, chapter 51 § 51A4.1-1(B). Under its regulations, OPM has authority
to determine if an annuitant is eligible to have his annuity supplement reinstated.
See 5 C.F.R. § 842.505(d) (providing that OPM can suspend the payment of the
supplement until the annuitant establishes to its satisfaction that he continues to
be eligible for the supplement). While OPM can reinstate the appellant’s annuity
supplement, the appellant is without authority to do so. See id.
Here, the appellant asserts that the agency breached the agreement by
failing to determine his eligibility for reinstatement. CPFR File, Tab 1 at 4.
We agree. The Board has authority to enforce a settlement agreement that, like
the one at issue here, has been entered into the record in the same manner as any
final Board decision or order. Stasiuk v. Department of the Army , 118 M.S.P.R.
1, ¶ 5 (2012). A settlement agreement is a contract, and the Board will therefore
adjudicate a petition to enforce a settlement agreement in accordance with
contract law. Id.
Paragraph 3 of the settlement agreement states, “If Mr. Semenza is due any
accrued annuity due to his reinstatement of his annuity supplement, this accrued
annuity will be applied to the overpayment.” CF, Tab 1 at 4. The agency
concedes that it has not determined the appellant’s eligibility for reinstatement of
his annuity supplement. CF, Tab 3 at 4. The agency submitted no evidence to
explain or resolve the appellant’s eligibility and has not alleged that the appellant
failed to provide it with information it needs to make such a determination, such
as information regarding his annual earnings. Id. It also did not indicate5
whether, or when, it might make such a determination. Id. Essentially, the
agency argued that there had been no breach because it had taken no action.
It is well-settled that implicit in any settlement agreement, as under other
contracts, is a requirement that the parties fulfill their respective contractual
obligations in good faith. Hernandez v. Department of Defense , 115 M.S.P.R.
445, ¶ 11 (2010), aff’d per curiam , 451 F. App’x 956 (Fed. Cir. 2012).
OPM acknowledged that paragraph 3 of the settlement agreement is a condition
contingent upon the appellant’s eligibility for reinstatement of his annuity
supplement. CF, Tab 3 at 4. As the agency with the exclusive authority to make
a determination regarding reinstatement, it has an obligation to act under the
agreement. See 5 C.F.R. § 842.505(d).
In Williams v. U.S. Postal Service , 95 M.S.P.R. 145, ¶¶ 2-3 (2003),
an appellant and his employing agency entered into an agreement to hold his
demotion in abeyance pending OPM’s processing of his disability retirement
application. According to the appellant, the agency subsequently failed to
forward medical documentation regarding his disability retirement application to
OPM, and his application was denied because he was unable to prove his inability
to continue in his position. Id., ¶¶ 4, 8. The Board remanded the appellant’s
petition for enforcement for a determination of whether the employing agency
breached the implicit covenant of good faith when it failed to forward the
appellant’s medical documentation. Id., ¶¶ 8-9.
Similarly, we find that OPM’s failure to make a determination of the
appellant’s eligibility for reinstatement is a breach of the settlement agreement in
bad faith. Paragraph 3 of the agreement provides that if the appellant is eligible
to have his annuity supplement reinstated, the agency must calculate the amount
owed and apply it to the overpayment. However, only the agency can make this
determination. Therefore, the agency cannot avoid its contractual duty to apply
the appellant’s accrued annuity to his overpayment by failing or refusing to make
an eligibility determination as to the reinstatement of his annuity supplement.6
Previously, OPM advised the appellant to submit an income survey to
determine his eligibility for reinstatement of his supplemental annuity.
IAF, Tab 5 at 11-12. He alleged below that he never received the survey. IAF,
Tab 8 at 15. On review, he claims he has been unable to reach anyone at OPM.
CPFR File, Tab 1 at 4-5. Because OPM has not provided evidence regarding its
attempts to determine the appellant’s eligibility for reinstatement of the annuity
supplement, we find the agency not to be in compliance with the terms of the
settlement agreement and reverse the compliance initial decision.3
Because we have found OPM in noncompliance, it is being directed to file
evidence of compliance with the Clerk of the Board, and the appellant will be
afforded the opportunity to respond to that evidence. The appellant’s petition for
enforcement will be referred to MSPB’s Office of General Counsel, and,
depending on the nature of the submissions, an attorney with the Office of
General Counsel may contact the parties to further discuss the compliance
process. The parties are required to cooperate with that individual in good faith.
Because the purpose of the proceeding is to obtain compliance, when appropriate,
an Office of General Counsel attorney or paralegal may engage in ex parte
communications to, among other things, better understand the evidence of
compliance and/or any objections to that evidence. Thereafter, the Board will
issue a final decision fully addressing the appellant’s petition for review of the
3 An appellant is not required to show that the agency’s breach caused him actual harm
or monetary loss. Burke v. Department of Veterans Affairs , 121 M.S.P.R. 299, ¶ 11
(2014); Mullins v. Department of the Air Force , 79 M.S.P.R. 206, ¶ 11 (1998). Further,
the possibility exists that the appellant may be entitled to meaningful relief in the form
of retroactive reinstatement of his annuity supplement. See Burke, 121 M.S.P.R. 299,
¶ 13 (finding a petition for enforcement moot regarding a matter on which the Board
could no longer provide meaningful relief). Therefore, although the appellant is now
over 62 years of age and, according to the record, he would have finished repaying the
$11,808.00 annuity overpayment around October 2022, IAF, Tab 5 at 34; CF, Tab 1
at 4; CPFR File, Tab 7 at 4, we find it appropriate to order compliance in this matter.7
compliance initial decision and setting forth the appellant’s further appeal rights
and the right to attorney fees, if applicable.
ORDER
We ORDER the OPM to submit to the Clerk of the Board within 45 days of
the date of this decision satisfactory evidence of compliance with this decision.
This evidence shall adhere to the requirements set forth in 5 C.F.R. § 1201.183(a)
(6)(i), including submission of evidence and a narrative statement of compliance.
OPM’s submission must include proof that it properly determined if the appellant
was eligible to have his annuity supplement reinstated, and if eligible, to
recalculate the amount of accrued annuity owed to the appellant. OPM must also
apply any accrued annuity owed to the overpayment. We ORDER the appellant
to cooperate in good faith in OPM’s efforts to calculate the amount of accrued
annuity due, and to provide all necessary information the agency requests to help
it carry out the Board’s Order. OPM must serve all parties with copies of its
submission.
The Board will assign a new docket number to this matter, PH-0845-18-
0448-X-1. All subsequent filings should refer to the new docket number set forth
above and should be faxed to (202) 653-7130 or mailed to the following address:
Clerk of the Board
U.S. Merit Systems Protection Board
1615 M Street, N.W.
Washington, D.C. 20419
Submissions may also be made by electronic filing at the MSPB’s e-Appeal site
(https://e-appeal.mspb.gov) in accordance with the Board’s regulation at 5 C.F.R.
§ 1201.14.
The appellant may respond to OPM’s evidence of compliance within
20 days of the date of service of the agency’s submission. 5 C.F.R. § 1201.183(a)
(8). If the appellant does not respond to OPM’s evidence of compliance, the8
Board may assume that he is satisfied with OPM’s actions and dismiss the
petition for enforcement.
OPM is reminded that, if it fails to provide adequate evidence of
compliance, the responsible agency official and OPM’s representative may be
required to appear before the General Counsel of the Merit Systems Protection
Board to show cause why the Board should not impose sanctions for the agency’s
noncompliance in this case. 5 C.F.R. § 1201.183(c). The Board’s authority to
impose sanctions includes the authority to order that the responsible agency
official “shall not be entitled to receive payment for service as an employee
during any period that the order has not been complied with.” 5 U.S.C. § 1204(e)
(2)(A).
This Order does not constitute a final order and is therefore not subject to
judicial review under 5 U.S.C. 7703(a)(1). Upon final resolution of the remaining
issues in this petition for enforcement by the Board, a final order shall be issued
which shall be subject to judicial review.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Semenza_BryantPH-0845-18-0448-C-1__Non_Closeout_Order.pdf | 2024-06-27 | BRYANT SEMENZA v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0845-18-0448-C-1, June 27, 2024 | PH-0845-18-0448-C-1 | NP |
1,132 | https://www.mspb.gov/decisions/nonprecedential/Andrews_Carlos_L_DE-0752-20-0249-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARLOS L. ANDREWS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DE-0752-20-0249-I-1
DATE: June 27, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carlos L. Andrews , Decatur, Georgia, pro se.
Leigh K. Bonds , Esquire, Sandy, Utah, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of his termination from the U.S. Postal Service for lack of
jurisdiction. On petition for review, the appellant reiterates his arguments from
below that the agency abused its power when it relied upon a “false justification”
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
for his termination based on an absence without leave charge, and he reasserts his
affirmative defenses of disability discrimination and reprisal for prior equal
employment opportunity activity. Petition for Review (PFR) File, Tab 1 at 2-3.
He also argues that pleadings he submitted below, which the administrative judge
deemed untimely filed but ultimately considered in issuing the initial decision,
were not untimely filed, and he resubmits a response to the agency’s motion to
strike certain pleadings, filed below, which the Denver Field Office rejected
because he filed it after the issuance of the initial decision. Id. at 2, 5-11.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The administrative judge correctly found that the Board lacks jurisdiction
over the appellant’s appeal of his removal action because the appellant failed to
nonfrivolously allege or otherwise establish that he fits within the limited
categories of U.S. Postal Service employees with adverse action appeal rights
with the Board. Initial Appeal File (IAF), Tab 10, Initial Decision (ID) at 4;
see 39 U.S.C. § 1005(a)(4)(A) (providing for Board jurisdiction over an adverse
action appeal by U.S. Postal Service employees only when such an employee is2
either a preference eligible or in the position of a supervisor or a management
employee, or an employee engaged in personnel work in other than a purely
nonconfidential clerical capacity); see also McCandless v. Merit Systems
Protection Board, 996 F.2d 1193, 1198-99 (Fed. Cir. 1993); Jackson v. U.S.
Postal Service, 74 M.S.P.R. 20, 22-23 (1997). Similarly, we also agree with the
administrative judge’s conclusion that the Board also lacks jurisdiction over the
appellant’s discrimination and reprisal claims because there is no action before
the Board over which it has jurisdiction.2 ID at 5; see Wren v. Department of the
Army, 2 M.S.P.R. 1, 2 (1980) (concluding that, absent an otherwise appealable
action, the Board lacks jurisdiction over discrimination and prohibited personnel
practice claims), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).
As briefly noted above, the appellant also argues on review that the
administrative judge incorrectly stated that his June 10 and June 11, 2020
pleadings below were untimely filed. PFR File, Tab 1 at 2; ID at 3. Regardless
of the timeliness of these pleadings, however, the administrative judge stated in
the initial decision that she considered the pleadings. ID at 3. Thus, the
appellant’s substantive rights were not harmed even if his argument on review is
correct. Additionally, the appellant challenges the Denver Field Office’s
rejection of his response to the agency’s motion to strike his June 10 and June 11,
2020 pleadings. PFR File, Tab 1 at 2. We have reviewed the record, however,
and the substance of the agency’s motion to strike relates directly to the
appellant’s June 10 and June 11, 2020 pleadings, and requests that they be
stricken from the record because they were untimely filed. IAF, Tab 8. Because
the administrative judge ultimately considered those pleadings, the agency’s
motion to strike, and subsequently, the appellant’s response to the agency’s
2 The appellant’s petition for review in Andrews v. Department of Labor, MSPB Docket
No. DE-3443-20-0170-I-1, which involves the appellant’s challenge to an
administrative judge’s decision dismissing the appellant’s appeal of a decision issued
by the Department of Labor concerning Office of Workers’ Compensation Programs
benefits, has been addressed in a separate Board decision. 3
motion to strike are both moot. Accordingly, the appellant’s arguments on review
concerning consideration of certain pleadings in this case do not provide a basis
to disturb the initial decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
3 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
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on5
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 6
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
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/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Andrews_Carlos_L_DE-0752-20-0249-I-1__Final_Order.pdf | 2024-06-27 | CARLOS L. ANDREWS v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DE-0752-20-0249-I-1, June 27, 2024 | DE-0752-20-0249-I-1 | NP |
1,133 | https://www.mspb.gov/decisions/nonprecedential/Sanderson_Selwyn_D_SF-0752-19-0470-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SELWYN D. SANDERSON,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-0752-19-0470-I-1
DATE: June 27, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Selwyn D. Sanderson , Houston, Texas, pro se.
Michael R. Tita , Esquire, and Roderick Eves , St. Louis, Missouri, for the
agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal as untimely filed without good cause shown.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
consider the length of the filing delay in determining whether the appellant has
shown good cause for the untimely filing of his appeal and to consider the
potential effect of the Servicemembers Civil Relief Act of 2003 (SCRA), we
AFFIRM the initial decision.
We affirm the administrative judge’s findings that the appellant’s appeal was
untimely filed and that he has failed to show good cause for the untimely filing,
as modified to consider the length of the filing delay.
An appellant bears the burden of proving by preponderant evidence2 the
timeliness of his Board appeal. 5 C.F.R. § 1201.56(b)(2)(i)(B). In cases such as
this removal appeal, when the appellant has filed a formal complaint of
discrimination with the agency in connection with a matter otherwise appealable
to the Board, the appeal must be filed within 30 days after he receives the agency
resolution or final decision on the discrimination issue. Brown v. U.S. Postal
Service, 106 M.S.P.R. 12, ¶ 8 (2007); 5 C.F.R. § 1201.154(b)(1).
For the reasons discussed in the initial decision, we agree with the
administrative judge’s finding that the appellant’s removal appeal was untimely
2 A preponderance of the evidence is the 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. § 1201.4(q).2
filed. Initial Appeal File (IAF), Tab 12, Initial Decision (ID) at 5-6.
Specifically, the administrative judge found that the undisputed record reflects
that the appellant filed a formal equal employment opportunity (EEO) complaint
concerning his January 2016 removal and that he received the agency’s final
agency decision (FAD) on April 6, 2019.3 ID at 6; IAF, Tab 6 at 14-25, 106-10.
The administrative judge further found that this removal appeal was due on or
before May 6, 2019, which was the 30th day after April 6, 2019. ID at 6; see
5 C.F.R. §§ 1201.23, 1201.154(b)(1). In addition, the administrative judge found
that the undisputed record reflects that the appellant electronically filed this
appeal on June 4, 2019. ID at 6; IAF, Tab 1; see 5 C.F.R. § 1201.4( l). Therefore,
the administrative judge found that this appeal was “untimely filed by at least
one day.” ID at 6.
The time limit for appealing an agency action to the Board may be waived
by the Board if the appellant demonstrates good cause for such waiver by
preponderant evidence. Walls v. Merit Systems Protection Board , 29 F.3d 1578,
1581 (Fed. Cir. 1994); see 5 C.F.R. §§ 1201.12 (providing that an administrative
judge may waive a Board regulation for good cause shown), 1201.22(c)
(providing that the Board will dismiss an untimely filed appeal unless a good
reason for the delay is shown). Although the administrative judge here correctly
discussed the factors set forth in Moorman v. Department of the Army ,
68 M.S.P.R. 60, 62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table), that
the Board considers in making a good cause determination, he erroneously failed
to consider the length of the filing delay. ID at 6; see Walls, 29 F.3d at 1582
(instructing the Board to consider the length of the delay in every good cause
determination). Therefore, we modify the initial decision as follows to consider
3 We defer to the agency’s implicit finding that the appellant’s EEO complaint was
timely filed. IAF, Tab 6 at 15 n.1; see Cloutier v. U.S. Postal Service , 89 M.S.P.R. 411,
¶ 6 (2001) (observing that the Board defers to the employing agency and the Equal
Employment Opportunity Commission’s determinations regarding the timeliness of
discrimination complaints).3
the length of the filing delay in determining whether the appellant has shown
good cause for the untimely filing of his appeal.
For the reasons explained above and in the initial decision, we agree with
the administrative judge’s findings that the deadline for filing this removal appeal
was May 6, 2019, and the appellant filed this appeal on June 4, 2019. ID at 6.
Thus, we find that the length of the filing delay is 29 calendar days. We further
find that the length of the appellant’s 29-day filing delay does not weigh in his
favor because it is significant. See Summerset v. Department of the Navy ,
100 M.S.P.R. 292, ¶ 7 (2005) (finding a 33-day filing delay significant).
Considering the significant length of the delay together with the other relevant
factors addressed in the initial decision, such as the appellant’s pro se status, we
agree with the administrative judge’s finding that the appellant has failed to show
good cause for the untimely filing of his appeal. ID at 6-8; see, e.g., Allen v.
Office of Personnel Management , 97 M.S.P.R. 665, ¶¶ 8, 10 (2004) (finding that,
although the appellant’s pro se status was a factor weighing in his favor, it was
insufficient to excuse his unexplained, 14-day filing delay). In particular, the
administrative judge noted that the agency’s FAD expressly informed the
appellant that he had to file a Board appeal “no later than thirty (30) days of the
date of receipt of this decision.” ID at 7; IAF, Tab 6 at 24-25. Further, the
administrative judge found that the appellant did not adequately set forth any
factors addressing his ability to timely file this appeal. ID at 7.
The appellant has failed to provide a basis to disturb the initial decision.
For the first time on review, the appellant argues that he “tried to reach out
for help on this MSPB filing” from several attorneys, but they responded, “it was
too expensive, time consuming and they had a high case load.” Petition for
Review (PFR) File, Tab 1 at 4. Further, he claims that he was on a military
assignment on a “grand scale,” providing logistical support and serving as an
instructor for the Global Medic exercise. Id. at 4, 10-12. In particular, he asserts
that he was responsible for over 3 million dollars in medical supplies needed for4
this exercise and that he collaborated with other members of his unit to create
real-world combat scenarios. Id. at 4. He argues that, after preparing for this
time-consuming exercise and while getting ready to travel, he “realized this
MSPB document” and “sent [his] response even if it was past due.” Id. In
addition, he states that he received an achievement award for the exercise and a
promotion. Id.
To support his arguments, the appellant has included the following
documentation for the first time on review: (1) a September 17, 2018 Army
memorandum contemplating revised Battle Assembly dates for fiscal year 2019;
(2) a February 20, 2019 Army order to report for 20 duty days on June 8, 2019;
(3) a March 13, 2019 Army order amending a prior order to reflect a 2-day duty
period beginning January 28, 2019; (4) a March 27, 2019 Army order to report for
13 duty days on April 14, 2019; (5) a March 29, 2019 Army order to report for
6 duty days on March 31, 2019; (6) an undated article about the June 2019 Global
Medic exercise; (7) a June 22, 2019 certificate of achievement for providing
training during the 2019 Global Medic exercise; and (8) a June 27, 2019 Army
order documenting his promotion to a higher rank effective July 1, 2019.4
PFR File, Tab 1 at 5-15, Tab 4 at 5, Tab 5 at 9-10.
The appellant has not explained why, despite his due diligence, he was
unable to provide the arguments or evidence described above prior to when the
record before the administrative judge closed. See Banks v. Department of the
Air Force, 4 M.S.P.R. 268, 271 (1980) (finding that the Board generally will not
consider an argument raised for the first time in a petition for review absent a
showing that it is based on new and material evidence not previously available
despite the party’s due diligence); Avansino v. U.S. Postal Service , 3 M.S.P.R.
211, 214 (1980) (finding that the Board generally will not consider evidence
submitted for the first time with the petition for review absent a showing that it
4 The appellant also has included a copy of the Office of the Clerk of the Board’s
September 12, 2019 letter acknowledging his petition for review. PFR File, Tab 2,
Tab 5 at 4-8.5
was unavailable before the record was closed despite the party’s due diligence).
Nevertheless, even considering such arguments and evidence, we find they do not
change the outcome of this appeal for the following reasons. Cf. Brown,
106 M.S.P.R. 12, ¶¶ 3, 10, 12 (reopening the appellant’s removal appeal to
consider the SCRA’s effect on the timeliness issue when he presented for the first
time on review evidence and argument that his appeal was timely filed as a result
of his military duty).
The SCRA applies to active-duty servicemembers as well as to reserve
members of the uniformed services who are “ordered to report for military
service.” 50 U.S.C. § 3917(a); Brown, 106 M.S.P.R. 12, ¶ 13. The tolling
provision of the SCRA provides:
The period of a servicemember’s military service may not be
included in computing any period limited by law, regulation, or order
for the bringing of any action or proceeding in a court, or in any
board, bureau, commission, department, or other agency of a State
(or political subdivision of a State) or the United States by or against
the servicemember or the servicemember’s heirs, executors,
administrators, or assigns.
50 U.S.C. § 3936(a); see Neighoff v. Department of Homeland Security ,
122 M.S.P.R. 86, ¶¶ 6-10 (2015) (applying the SCRA tolling provision to Board
proceedings); Brown, 106 M.S.P.R. 12, ¶¶ 12-16 (same ). The Board has held that
a showing of military service under the SCRA and its predecessor the Soldiers’
and Sailors’ Civil Relief Act of 1940 (SSCRA) automatically tolls the filing
period. Neighoff, 122 M.S.P.R. 86, ¶ 10; see Brown, 106 M.S.P.R. 12, ¶ 13. The
SCRA defines “military service” in the case of a servicemember as “active duty,”
as defined at 10 U.S.C. § 101(d)(1). 50 U.S.C. § 3911(2)(A)(i); Brown,
106 M.S.P.R. 12, ¶ 13. In turn, title 10 defines “active duty” as “full-time duty in
the active military service of the United States” and includes “full-time training
duty, annual training duty, and attendance, while in the active military service, at
a school designated as a service school by law or by the Secretary of the military
department concerned.” 10 U.S.C. § 101(d)(1); Brown, 106 M.S.P.R. 12, ¶ 13 .6
Here, the Army’s March 27, 2019 order for the appellant to report for
active-duty training school for 13 duty days on April 14, 2019, suggests he
performed “active duty” service under 10 U.S.C. § 101(d)(1).5 PFR File, Tab 4
at 5, Tab 5 at 9-10 (ordering him to “active duty training school”); cf. Brown,
106 M.S.P.R. 12, ¶ 15 (observing that the fact that “inactive-duty training” is
defined separately from “active duty” in title 10 and is not otherwise referenced
in or by the SCRA makes it likely that it does not constitute “military service”
under the SCRA). Even assuming, without deciding, that the appellant’s
attendance at active-duty training school constitutes “military service” under the
SCRA that tolled the relevant 30-day filing period for 13 days, from April 14
through 26, 2019, his Board appeal still would be 15 days untimely. Specifically,
because the 43rd day after the April 6, 2019 date on which the appellant received
the agency’s FAD fell on Sunday, May 19, 2019, the filing deadline would have
been Monday, May 20, 2019. See 5 C.F.R. §§ 1201.23, 1201.154(b)(1). Thus,
the appellant’s June 4, 2019 appeal would have been filed 15 days past the
May 20, 2019 deadline.
The appellant’s remaining Army orders concern the following duty periods:
January 28 through 29, 2019; March 31 through April 5, 2019; and June 8
through 27, 2019. PFR File, Tab 1 at 5-9. These potential periods of “military
service” under the SCRA cannot serve to toll the filing period for this Board
appeal because they did not occur during the relevant period discussed above,
from April 6 through May 20, 2019. Moreover, the appellant does not argue, and
the record does not establish, that he performed “military service” under the
5 The record before the administrative judge reflects that the appellant is a member of
the Army Reserve. IAF, Tab 6 at 84, 87, 103, 115, 120. The appellant’s claimed
periods of active-duty military service from May 2014 through March 2018 occurred
more than 1 year before he received the agency’s April 2019 FAD. ID at 7; IAF, Tab 9
at 40-41. Thus, they are not relevant to the dispositive issue of whether the appellant
timely filed this removal appeal with the Board after receiving the agency’s FAD.
Moreover, the administrative judge properly informed the appellant that he could file a
separate Board appeal under the Uniformed Services Employment and Reemployment
Rights Act of 1994. ID at 4-5.7
SCRA on any of the monthly “Battle Assembly” dates for fiscal year 2019
contemplated in the September 17, 2018 Army memorandum. Id. at 14-15; cf.
Brown, 106 M.S.P.R. 12, ¶ 15 n.3 (noting that at least one court has determined
under the former SSCRA that regular, weekend reserve duty did not qualify as
“active duty” within the meaning of the SSCRA’s tolling provision).
In addition, we find that the appellant’s arguments and evidence submitted
on review do not show good cause for the untimely filing of his Board appeal.
Although the appellant’s pro se status is a factor weighing in his favor, see Allen,
97 M.S.P.R. 665, ¶ 8 , we find that it is outweighed by the other relevant factors,
see Moorman, 68 M.S.P.R. at 62-63. In particular, a 15-day filing delay is not
minimal. See Allen, 97 M.S.P.R. 665, ¶ 8 (finding a 14-day delay not minimal).
As discussed in the initial decision, the agency’s FAD expressly informed the
appellant of the 30-day filing deadline. ID at 7; IAF, Tab 6 at 24-25. Further, the
appellant’s claims that he sought help from attorneys and was busy preparing for
the June 2019 Global Medic exercise do not establish good cause for the filing
delay. PFR File, Tab 1 at 4, 10-12; see Huskins v. U.S. Postal Service ,
100 M.S.P.R. 664, ¶ 6 (2006) (stating that an appellant’s inability to retain or
afford an attorney does not establish good cause for a filing delay); see also
Crozier v. Department of Transportation , 93 M.S.P.R. 438, ¶ 9 (2003) (observing
that the Board has held that general personal difficulties do not constitute good
cause for waiving a filing deadline). Moreover, the appellant has not presented
any evidence of circumstances beyond his control or of unavoidable casualty or
misfortune that prevented him from timely filing his appeal. See Moorman,
68 M.S.P.R. at 63.
Accordingly, we affirm the dismissal of this removal appeal as untimely
filed without good cause shown.6
6 The appellant’s argument on review that his case has merit and he was discriminated
against is immaterial to the dispositive timeliness issue. PFR File, Tab 1 at 4; see Dow
v. Department of Homeland Security , 109 M.S.P.R. 633, ¶ 8 (2008) (finding that the
appellant’s assertions and submissions concerning the merits of his appeal did not8
NOTICE OF APPEAL RIGHTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
establish good cause for waiving the filing deadline because they did not pertain to the
timeliness issue).
7 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.9
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on10
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or11
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 12
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Sanderson_Selwyn_D_SF-0752-19-0470-I-1__Final_Order.pdf | 2024-06-27 | SELWYN D. SANDERSON v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0752-19-0470-I-1, June 27, 2024 | SF-0752-19-0470-I-1 | NP |
1,134 | https://www.mspb.gov/decisions/nonprecedential/Chatman_Nadine_M_DC-1221-18-0809-W-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NADINE M. CHATMAN,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
DC-1221-18-0809-W-2
DATE: June 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Nadine M. Chatman , Atlanta, Georgia, pro se.
Martin A. Gold , Esquire, and Stephanie Ramjohn Moore , Esquire,
Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication
of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in connection with her individual right of
action appeal. On petition for review, the appellant challenges the administrative
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
judge’s analysis and findings on the merits of her appeal, argues that the
administrative judge abused her discretion in rulings she made during
adjudication, and exhibited bias. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to further examine whether the appellant met her burden to show
contributing factor regarding her 2014 performance rating, we AFFIRM the initial
decision.
Below, the administrative judge properly found that the appellant failed to
establish the contributing factor element of her burden of proof regarding her
2014 rating by means of the knowledge/timing test. Mason v. Department of
Homeland Security , 116 M.S.P.R. 135, ¶ 26 (2011); ID at 16-20. The Board has
held, however, that, if an administrative judge determines that an appellant has
failed to satisfy the knowledge/timing test, he shall consider other evidence, such
as evidence pertaining to the strength or weakness of the agency’s reasons for
taking the personnel action, whether the whistleblowing was personally directed
at the official taking the action, or whether these individuals had a desire or
motive to retaliate against the appellant. Dorney v. Department of the Army ,2
117 M.S.P.R. 480, ¶ 15 (2012). Because the administrative judge did not
consider such evidence, we do so now.
Regarding the strength of the agency’s reasons for the appellant’s Superior
rating, there is scant evidence in the record, except for the final rating itself.
Chatman v. Department of Agriculture , MSPB Docket No. DC-1221-18-0809-
W-2, W-2 Appeal File (AF), Tab 39 at 44. The appellant has not otherwise
submitted evidence to show that she was entitled to an Outstanding rating. It is
the burden of the appellant to establish that her protected disclosures/activity was
a contributing factor to the personnel action, and we do not find that the appellant
has presented any evidence that would lead us to second-guess the appellant’s
supervisor’s rating the appellant as Superior. Mithen v. Department of Veterans
Affairs, 119 M.S.P.R. 215, ¶ 11 (2013). Thus, the evidence in support of the
appellant’s rating is strong.
While the appellant’s disclosures to the Office of Special Counsel (OSC)
implicated her first-line supervisor, we believe that, in order for the supervisor to
be motivated to retaliate, she must have had knowledge of the protected
disclosures/activity. In other words, in order for an official to have motive or
desire to retaliate against an employee because she made protected disclosures or
engaged in protected activity, we believe it necessary first for that official to have
knowledge of that employee’s protected disclosure or activity. See Dorney,
117 M.S.P.R. 480, ¶ 14 (stating that a disclosure is a contributing factor if it
affects an agency’s decision to threaten, propose, take, or fail to take a personnel
action). The administrative judge found, and we agree, that the appellant’s first-
line supervisor did not have actual or constructive knowledge of the appellant’s
disclosures to OSC. Thus, we find it unlikely that the supervisor had a motive to
retaliate against the appellant based on a protected disclosure or activity of which
she was unaware. See Sherman v. Department of Homeland Security ,
122 M.S.P.R. 644, ¶ 9 (2015) (explaining that a disclosure could only have been a3
contributing factor in a performance evaluation if the official learned of it before
making the decision).
In sum, considering these other factors, we do not find that the appellant
established that her protected disclosures/activity was a contributing factor in her
2014 performance rating, and that the administrative judge’s failure to conduct
such an alternative analysis did not prejudice the appellant’s substantive rights.
Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (finding that
an adjudicatory error that is not prejudicial to a party's substantive rights provides
no basis for reversal of an initial decision).
The appellant raises a number of issues challenging the administrative
judge’s adjudication of this appeal. First, the appellant argues that the
administrative judge did not allow a particular witness to testify regarding the
inner workings of her office. Petition for Review (PFR) File, Tab 2 at 27.
Although the appellant did not request any witnesses in her prehearing
submission, the administrative judge allowed her to make requests during the
prehearing conference, and the witness at issue was one such request. Based on
the appellant’s proffer, the administrative judge determined that the witness’s
testimony would be similar to that of another witness whom the administrative
judge had approved as the sole witness who would be allowed to testify regarding
the climate within the office. Because the appellant did not seek to substitute the
witness at issue for that witness, the administrative judge did not approve the
proffered witness to testify. W-2 AF, Tab 35. The appellant’s failure to object to
that ruling below precludes her doing so on review. Tarpley v. U.S. Postal
Service, 37 M.S.P.R. 579, 581 (1988) .
The appellant also argues that the administrative judge erred when she
limited the appellant’s cross-examination of the selecting official for the 2016
vacancy. PFR File, Tab 2 at 27. The administrative judge, in fact, afforded the
appellant wide latitude in her cross-examination of the witness, only cautioning
her once when her questions exceeded the scope of direct, a ruling the appellant4
did not challenge. Hearing Compact Disc (testimony of selecting official).
Administrative judges have wide discretion to regulate the course of a hearing.
5 C.F.R. § 1201.41(b)(6). The appellant has not, by her claim, shown that the
administrative judge abused her discretion in this regard.
The appellant also argues on review that the administrative judge erred in
not compelling the agency to present a list of the equal employment opportunity
complaints that had allegedly been filed against one of the selecting officials.
PFR File, Tab 2 at 27. The administrative judge ruled that the evidence sought by
the appellant was beyond the scope of the appeal and irrelevant. W-2 AF, Tab
28. The appellant did not challenge the administrative judge’s ruling and we
discern no error in it. Again, by her claim, the appellant has not shown that the
administrative judge abused her broad discretion regarding this discovery ruling.
Key v. General Services Administration , 60 M.S.P.R. 66, 68 (1993) (stating that
an administrative judge has broad discretion in ruling on discovery matters and,
absent a showing of an abuse of discretion, the Board will not find reversible
error in such rulings); 5 C.F.R. § 1201.41(b)(4).
In addition, the appellant raises various claims on review of bias by the
administrative judge. For example, the appellant alleges that the administrative
judge inappropriately construed a particular phrase that the selecting official used
to describe the appellant, W-2 AF, Tab 39 at 40, so as to hide what was really a
racial slur. PFR File, Tab 2 at 13. The appellant further alleges that the
administrative judge exhibited bias when she blamed the appellant for the agency
representative’s “ineptness” in attempting to stall the discovery process, id. at 26,
and when she assessed the details surrounding a discovery issue. Id. at 25. The
appellant’s claims of bias do not overcome the presumption of honesty and
integrity that accompanies administrative adjudicators . Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980). Nor is there any showing that the
appellant timely raised her claim of bias directly to the administrative judge. Lee
v. U.S. Postal Service , 48 M.S.P.R. 274, 280 -82 (1991). Further, the appellant5
has failed to show that the administrative judge’s comments or actions evidence
“a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Bieber v. Department of the Army , 287 F.3d 1358, 1362-63 (Fed.
Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540, 555 (1994)).
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file7
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 8
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
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/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Chatman_Nadine_M_DC-1221-18-0809-W-2__Final_Order.pdf | 2024-06-26 | NADINE M. CHATMAN v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DC-1221-18-0809-W-2, June 26, 2024 | DC-1221-18-0809-W-2 | NP |
1,135 | https://www.mspb.gov/decisions/nonprecedential/McMillan_Nicholas_S_DC-0752-18-0458-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NICHOLAS SENTELL MCMILLAN,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
DC-0752-18-0458-I-1
DATE: June 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ronica Scales , Esquire, and Shaun C. Southworth , Esquire, Atlanta,
Georgia, for the appellant.
Valerie Neris and Joshua N. Rose , Esquire, Washington, D.C., for the
agency.
Gretchen M. McMullen , Mount Rainier, Maryland, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only in the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
supplement the administrative judge’s analysis of one of the charges, address the
appellant’s affirmative defenses, and amend the nexus analysis, we AFFIRM the
initial decision.
BACKGROUND
The appellant was employed by the agency as a GS-9 Lead Consumer
Safety Inspector (CSI) at Sanderson Farms in North Carolina. Initial Appeal File
(IAF), Tab 6 at 18, 41. The agency asserts that, while off duty on June 23, 2017,
he carried a pistol into the parking lot of Smithfield Packing,2 another
agency-inspected facility in the area of the appellant’s duty station, and that he
used his agency credentials to gain access to the parking lot. Id. at 26. It asserts
that the appellant went to the parking lot to meet his ex-fiancée, who also worked
for the agency and was assigned to Smithfield Packing, and ultimately decided to
follow her home. Id. At the appellant’s ex-fiancée’s apartment complex, the
appellant encountered his ex-fiancée and her male friend, who was also an agency
2 The record reflects an inconsistency regarding the name of the Smithfield
establishment. In some instances, it is referred to as “Smithfield Packing,” and in other
instances, it is referred to as “Smithfield Foods.” IAF, Tab 6 at 20, 26. For clarity, we
refer to the establishment as Smithfield Packing in this Final Order. 2
employee assigned to Smithfield Packing.3 Id. While there, the agency asserts
that the appellant was involved in an altercation during which he brandished a
weapon. Id.
Thereafter, the male coworker filed a report of workplace violence with the
agency. Id. at 45. The agency investigated the matter, id. at 35-39, and
ultimately proposed the appellant’s removal based on one charge of inappropriate
conduct (two specifications) and one charge of conduct unbecoming a Federal
employee (one specification), id. at 25-30. Following an oral and written
response, IAF, Tab 1 at 52, Tab 6 at 19, 24, the deciding official issued a final
decision removing the appellant from Federal service, effective March 30, 2018.
IAF, Tab 6 at 19-23.
The appellant appealed his removal to the Board, arguing that he was
wrongfully removed and that the agency action was due to discrimination on the
basis of sex and race. IAF, Tab 1 at 5. After he withdrew his request for a
hearing, the administrative judge issued an initial decision on the written record.
IAF, Tab 31, Tab 34, Initial Decision (ID). The administrative judge found that
the agency proved both specifications of the inappropriate conduct charge and the
single specification of the conduct unbecoming a Federal employee charge. ID
at 8-10. He also found a nexus between the sustained charges and the efficiency
of the service and that the penalty of removal was reasonable. ID at 10-15. He
did not address the appellant’s affirmative defenses.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved both charges by preponderant evidence.
Charges of inappropriate conduct and conduct unbecoming a Federal
employee have no specific elements of proof; they are established by proving that
the appellant committed the acts alleged in support of the broad label. See
3 There appears to be some debate as to whether, at the time of the incident, the
appellant and his ex-fiancée had already broken off their engagement, or if that
occurred after the incident. IAF, Tab 6 at 42, 49. 3
Canada v. Department of Homeland Security , 113 M.S.P.R. 509, ¶ 9 (2010)
(considering the charge of “conduct unbecoming a Federal employee”);
Alvarado v. Department of the Air Force , 103 M.S.P.R. 1, ¶ 22 (2006)
(considering the charge of “improper conduct”), aff’d, 626 F. Supp. 2d 1140
(D.N.M. 2009), aff’d, 490 F. App’x 932 (10th Cir. 2012); Otero v. U.S. Postal
Service, 73 M.S.P.R. 198, 202 (1997) (stating that an agency need not affix any
label to its charges and can instead describe actions that constitute misbehavior in
narrative form and have its discipline sustained if the efficiency of the service
suffers because of the misconduct). As discussed below, we agree with the
administrative judge that the agency proved these charges by preponderant
evidence.
The agency proved specification 1 under the inappropriate conduct
charge, alleging that the appellant brandished a weapon.
The first specification of the inappropriate conduct charge alleged that on
June 23, 2017, the appellant brandished a weapon during the altercation outside
of his ex-fiancée’s home. IAF, Tab 6 at 26. The specification is preceded by a
more detailed narrative, which summarizes the appellant’s, his ex-fiancée’s, and
the male coworker’s accounts of the incident. Id. at 25-26.
In a statement provided during the agency investigation, the appellant
claimed that, on the night in question, he went to the Smithfield Packing facility
and waited for his ex-fiancée to leave work, intending to surprise her, but that he
changed his mind and decided to follow her home and speak with her there
instead. Id. at 42. He stated that when he arrived at her apartment, she and the
male coworker were standing outside of their cars and that he exited his car with
a pistol in his pocket. Id. at 43. He stated that he addressed the male coworker
by name, but that the male coworker denied that the name the appellant called
him by was his, so the appellant asked him to take out his wallet and show him
identification. Id. He asserted that the male coworker told him that he did not
have any identification and that he was at the apartment complex to visit his4
sister. Id. The appellant claimed that the male coworker got back in his car and
“backed up real fast.” Id. He claimed that he believed the male coworker was
going to hit him with his car, so he pulled the pistol from his pocket and pointed
it at the male coworker because he “felt threatened.” Id. The appellant denied
pointing a weapon at his ex-fiancée because he “still love[d] her.” Id.
In the male coworker’s statement, he stated that he was involved in the
altercation on June 23, 2017. Id. at 46. He asserted that the appellant’s
ex-fiancée expressed concern for her own safety going home in the early hours of
the morning and asked him as a friend and coworker to follow her home. Id. He
claims that he followed her to the parking lot of her apartment complex and that
when he got out of his car, the appellant approached him with a pistol, demanding
that he tell the appellant who he was and that he turn over his wallet and
identification. Id. at 46-47. The male coworker stated that he believed the
appellant was “drunk or high on something.” Id. at 47. He stated that he
provided the appellant with a name that was not his own and that the appellant
then turned and pointed the pistol at his ex-fiancée, asking who the male
coworker was. Id. at 46-47. The male coworker then claimed he left the scene,
called 911, and reported that an altercation occurred at a BP gas station. Id.
at 47. His statement acknowledged that his report to the police was inaccurate
regarding the location of the incident, but explained that he “wanted to shield
[his] own family from becoming involved in this dangerous situation.” Id. He
also stated that he had marital issues at the time and did not want his wife to learn
of the incident. Id.
In the appellant’s ex-fiancée’s statement, she claimed that she had begun to
fear the appellant because he drank a lot and had shown her that he owned at least
two guns. Id. at 49. She stated that, on the night of the incident, she asked her
male coworker to follow her home to ensure that she arrived safely. Id. at 50.
She claimed that, before she exited her vehicle, the appellant “stuck the gun in
[her] face and asked [her] why he shouldn’t just shoot [her] then.” Id. She stated5
that the appellant was talking and acting drunk. Id. She further stated that, at
some point during the altercation, the male coworker got out of his car and the
appellant pointed the pistol at him. Id. She also stated that the appellant and the
male coworker were arguing over the male coworker’s identification. Id.
The administrative judge considered these three statements, as well as a
compact disc (CD) of the appellant’s separate statements to agency investigators
and a police detective in July 2017. ID at 2-8; IAF, Tab 29, CD. On the CD, the
appellant admitted that he had the pistol out of his pocket when he approached his
ex-fiancée and the male coworker, and he explained that he had drawn the
weapon because he was emotional, upset, and fearful that his ex-fiancée was
seeing another man. CD. Based on all of these statements, the administrative
judge found that the agency proved by preponderant evidence that the appellant
brandished a pistol on June 23, 2017 in the presence of his ex-fiancée and the
male coworker. ID at 8. He further found that the appellant had no justification
for displaying a drawn weapon, and he sustained the charge. Id.
On review, the appellant argues that North Carolina is an “open carry” state
where guns may be carried even when they are plainly visible. PFR File, Tab 1
at 4. He further argues that the “criminal offense for brandishing” requires that
one arm himself with an unusually dangerous weapon for the purpose of
terrorizing others. Id. He asserts that the administrative judge’s findings that he
pulled the gun out of his pocket because he was “emotional, upset, and fearful
that his ex-fiancée was seeing another man” are insufficient to meet North
Carolina’s criminal standard. Id. at 4-5.
The appellant’s argument is without merit. The agency did not charge him
with a violation of North Carolina criminal law, but rather, with inappropriate
conduct. IAF, Tab 6 at 25-26. Thus, the agency was not required to prove the
elements of the criminal statute; as discussed above, it was only required to prove
that the appellant committed the acts alleged in support of the broad
“inappropriate conduct” label. See Canada, 113 M.S.P.R. 509, ¶ 9. We have6
reviewed the evidence, and, as explained below, we agree with the administrative
judge that the agency proved that the appellant engaged in the conduct laid out in
the narrative. See Otero, 73 M.S.P.R. at 202.
The appellant’s statement conflicts with the material portions of his
ex-fiancée’s and the male coworker’s statements, which are largely consistent
with each other. IAF, Tab 6 at 41-52. When, as here, there are conflicting
statements concerning the appellant’s conduct, and it is impossible to believe
both sides, an administrative judge must make credibility determinations to
properly resolve the case. Vicente v. Department of the Army , 87 M.S.P.R.
80, ¶ 7 (2000). Although the administrative judge considered all of the
statements, he did not make any explicit credibility findings. ID at 2-8. Rather,
by relying on the written record due to the absence of a hearing and finding that
the agency proved the specification, he implicitly credited the appellant’s
ex-fiancée’s and the male coworker’s statements. ID at 8. Generally, the Board
does not owe deference to such incomplete findings. See Faucher v. Department
of the Air Force , 96 M.S.P.R. 203, ¶ 8 (2004) (explaining that the Board does not
owe deference to an administrative judge’s credibility determinations when they
are incomplete, inconsistent with the weight of evidence, and do not reflect the
record as a whole). As such, we assess the witnesses’ credibility below. See
Deskin v. U.S. Postal Service , 76 M.S.P.R. 505, 510 (1997) (stating that the
Board may substitute its own credibility determinations for an administrative
judge’s explicit or implicit credibility findings when those findings are not based
on witness demeanor).
Here, both the appellant’s ex-fiancée’s and male coworker’s statements are
consistent with each other in claiming that the appellant brandished a weapon
during the altercation. IAF, Tab 6 at 46-47, 50. Although the male coworker
admits to making a prior inconsistent statement regarding the location of the
incident, id. at 47, his reason for doing so—that he did not want his wife to learn
of the altercation—seems inherently probable. Regarding the appellant’s7
statement, we note that he previously made an inconsistent statement wherein he
admitted to initially having the pistol out of his pocket. Id. at 43; CD. Further,
the appellant’s explanation that he felt threatened when the male coworker
returned to his car and backed up quickly is inherently improbable, as there is no
evidence that he was in close proximity to the coworker’s vehicle or that the male
coworker had a weapon that would lead the appellant to justifiably feel
threatened. Accordingly, we supplement the initial decision to find the
appellant’s statement to be less credible than his ex-fiancée’s and the male
coworker’s statements, see Hillen v. Department of the Army , 35 M.S.P.R. 453,
458 (1987) (stating that prior inconsistent statements, consistency with other
record evidence, inherent improbability of a statement, and possibility of bias are
relevant factors in assessing credibility); White v. Department of Housing &
Urban Development , 95 M.S.P.R. 299, ¶¶ 27, 31 (2003) (applying the Hillen
factors, which are generally used for assessing witness credibility at a hearing, to
an appeal decided on the written record with no hearing), and we agree with the
administrative judge that the agency proved this specification.
The agency proved specification 2 under the inappropriate conduct
charge, alleging that the appellant improperly presented his agency
credentials.
The second specification of the inappropriate conduct charge alleged that
the appellant improperly presented his agency credentials to gain access to an
agency-inspected facility while off duty. IAF, Tab 6 at 26. The administrative
judge considered the appellant’s statement admitting that he used his agency
credentials to access the facility while off duty and the agency’s investigatory
report. ID at 8-9. He found that the charged conduct was undisputed, and he
sustained the specification. Id.
On review, the appellant argues that he did not know that he was not
permitted to use his credentials to access an agency-inspected facility while off
duty and that the agency failed to reference any law, rule, or regulation that he8
violated. PFR File, Tab 1 at 5-6. The appellant’s argument is unconvincing, as
there was no intent element included in the specification. IAF, Tab 6 at 25-26;
see Otero, 73 M.S.P.R. at 202 (stating that a charge is viewed in light of the
accompanying specifications and should not be technically construed). Even if
the appellant was unaware of any relevant policy, it is undisputed that he
displayed his credentials to gain access to an agency-inspected facility while not
on official duty.4 We agree with the administrative judge that the agency proved
this specification, and we discern no reason to disturb the initial decision in this
regard.
The agency proved the conduct unbecoming a Federal employee
charge, alleging that the appellant carried a pistol onto an
agency-inspected facility.
The conduct unbecoming a Federal employee charge alleged that the
appellant carried a pistol onto the premises of an agency-inspected facility and
that his position did not require that he carry a weapon while on duty. IAF, Tab 6
at 26. The agency noted that its regulation 4070-735-001, Paragraph 20(e) states
that, in accordance with 18 U.S.C. § 930 and its exceptions, “every employee is
prohibited from knowingly possessing or causing the presence of a firearm or
other danger weapons in a Federal facility (i.e. a building or part thereof, owned,
or leased by the Federal [G]overnment, where Federal employees are regularly
present for the purpose of performing their official duties).” Id. at 67-68. In a
sworn statement, the appellant admitted that he had his pistol in his pocket when
4 The apparent lack of any direct policy regarding the appropriate use of agency-issued
credentials is not dispositive. The Board has found that an agency is not required to
describe in detail all potentially prohibited employee conduct. Goldstein v. Department
of the Treasury, 62 M.S.P.R. 622, 627 (1994 ), vacated and remanded on other grounds ,
62 F.3d 1430 (Fed. Cir. 1995) (Table). The creation of such all-encompassing policies
would not be feasible. See Brown v. Federal Aviation Administration , 15 M.S.P.R. 224,
233 (1983), rev’d in part on other grounds , 735 F.2d 543 (Fed. Cir. 1984) (Table).
Rather, an agency may reasonably require Federal employees to exercise good
judgment, notwithstanding a lack of literal guidance from an agency rule, regulation, or
other statement of agency policy. Boyer v. Department of the Navy , 56 F.3d 84, *2
(Fed. Cir. 1995) (Table). 9
he was in the Smithfield Packing parking lot. Id. at 42. The administrative judge
found that it was undisputed that the appellant carried a pistol onto an
agency-inspected facility, and he sustained the charge. ID at 10.
The appellant does not appear to dispute this charge on review. PFR File,
Tab 1. We have reviewed the record, and the conduct at issue is not in dispute.5
Therefore, we discern no reason to disturb the initial decision in this regard. See
Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105-06 (1997) (finding no reason
to disturb the administrative judge’s findings when she considered the evidence
as a whole, drew appropriate inferences, and reached well-reasoned conclusions).
The appellant failed to prove his affirmative defenses.
On his initial appeal form, the appellant asserted that his removal was the
result of race and sex discrimination. IAF, Tab 1 at 5. The administrative judge
notified the appellant of his burden of proving this affirmative defense, IAF,
Tab 25 at 2-3, but the appellant did not present any evidence on the issue, and the
administrative judge did not address it in his initial decision. Nor does the
appellant raise the matter on review. We find that the appellant has not shown
that race or sex discrimination was a motivating factor in his removal. See
Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 20-22 (holding
that, to prove a claim of discrimination under Title VII, the appellant must prove
that discrimination was at least a motivating factor in the agency’s action).
The agency established a nexus between the charged misconduct and the
efficiency of the service.
An agency may subject an employee to an adverse action only for such
cause as will promote the efficiency of the service. 5 U.S.C. § 7513(a). The
5 We recognize that, strictly speaking, the Smithfield Packing facility and its adjoining
parking lot is not a Federally owned or leased facility and thus the agency regulation
does not precisely apply. We also recognize, however, that the agency did not charge
the appellant with violating this regulation, but rather alleged that he carried a pistol
onto the premises of an agency-inspected facility. IAF, Tab 6 at 26. The appellant does
not deny that allegation and does not argue that the agency was required to prove a
violation of the agency regulation. 10
issue under this standard is whether there is a nexus between the charge and the
efficiency of the service. Scheffler v. Department of the Army , 117 M.S.P.R. 499,
¶ 9 (2012), aff’d, 522 F. App’x 913 (Fed. Cir. 2013). This means that there must
be a clear and direct relationship between the articulated grounds for an adverse
action and either the employee’s ability to accomplish his duties satisfactorily or
some other legitimate government interest. Id.
Regarding the specification concerning the brandishing of a weapon, the
administrative judge concluded that “the appellant’s unjustified display of a pistol
is a criminal act” and that “[s]uch misconduct creates a nexus with the efficiency
of the service.” ID at 11. Regarding the specification concerning the appellant’s
use of his agency credentials and the charge concerning his possession of a pistol
on the premises of an agency-inspected facility, the administrative judge
concluded that because both occurred “at the appellant’s duty location,” the
agency established that the misconduct affected the efficiency of the service. Id.
On review, the appellant argues that the administrative judge is incorrect
because he “did not violate any law.” PFR File, Tab 1 at 6. He also claims that
because the agency failed to prove the second specification of the inappropriate
conduct charge, there was no other basis to find that a nexus existed. Id. We find
that the administrative judge’s analysis is flawed; the record does not reflect that
the appellant was charged with or convicted of a crime, nor does it reflect that he
misused his agency credentials or possessed a pistol at his duty location. IAF,
Tab 6 at 26. Rather, these incidents occurred at another agency-inspected facility
at which he was not stationed. Id. at 26, 41. Nevertheless, we agree with the
administrative judge’s ultimate finding that the agency proved that there was a
nexus between the appellant’s misconduct and the efficiency of the service.
An agency may show a nexus between off-duty misconduct and the
efficiency of the service by three means: (1) a rebuttable presumption in certain
egregious circumstances; (2) preponderant evidence that the misconduct
adversely affects the appellant’s job performance or the agency’s trust and11
confidence in the appellant’s job performance; or (3) preponderant evidence that
the misconduct interfered with or adversely affected the agency’s mission.
Kruger v. Department of Justice , 32 M.S.P.R. 71, 74 (1987).
Here, the deciding official stated that the appellant’s “supervisor’s
confidence in [the appellant’s] ability to be effective in [his] job and to follow the
rules consistently has suffered because of [his] conduct.” IAF, Tab 6 at 21.
Regarding the appellant’s use of his agency credentials, the deciding official also
stated that a nexus existed between the conduct and the efficiency of the service
because, although off duty, he showed his credentials to a guard at the Smithfield
Packing facility, an agency-inspected facility, “to gain access to an establishment
to which the general public may not have such access.” Id. at 20. Regarding the
charge of conduct unbecoming a Federal employee, the deciding official found
that the appellant’s action of bringing a pistol to an agency -inspected facility was
a “direct violation” of an agency directive, which prohibited him from possessing
a pistol at the Smithfield Packing facility. Id. Although the appellant argues on
review that he did not possess a pistol inside the facility because he only entered
the parking lot of the facility, PFR File, Tab 1 at 6, we find no basis to
differentiate between an agency-inspected facility and its parking lot.
Accordingly, we find that, because the incident regarding the misuse of the
appellant’s agency-issued credentials and the possession of a pistol at the
Smithfield facility both occurred on agency-inspected premises, the agency has
established nexus. See Franks v. Department of the Air Force , 22 M.S.P.R. 502,
504-05 (1984) (finding nexus when an incident involving off-duty misconduct
occurred on the premises of the employer, presented a possible danger to the
appellant and others, and involved the use of agency personnel for the purpose of
dealing with the appellant’s conduct).
Regarding the specification concerning the brandishing of a weapon, even
though the incident occurred off agency premises and while the appellant was off
duty, it nonetheless involved two other agency employees. IAF, Tab 6 at 26. We12
find that this, in addition to the general nature of the misconduct and the deciding
official’s statement that the appellant’s supervisor lost confidence in the
appellant’s ability to be effective in his job and to follow the rules consistently, is
sufficient to establish nexus. See Kruger, 32 M.S.P.R. at 74. We modify the
initial decision to reflect this analysis.
The penalty of removal is reasonable.
When, as here, all of the charges are sustained, the Board will review the
agency-imposed penalty only to determine if the agency considered all the
relevant factors and exercised management discretion within the tolerable limits
of reasonableness. Ellis v. Department of Defense , 114 M.S.P.R. 407, ¶ 11
(2010). The Board’s function is not to displace management’s responsibility or to
decide what penalty it would impose, but to assure that management’s judgment
has been properly exercised and that the penalty selected by the agency does not
exceed the maximum limits of reasonableness. Stuhlmacher v. U.S. Postal
Service, 89 M.S.P.R. 272, ¶ 20 (2001); Douglas v. Veterans Administration ,
5 M.S.P.R. 280, 306 (1981). Thus, the Board will modify a penalty only when it
finds that the agency failed to weigh the relevant factors or that the penalty the
agency imposed clearly exceeds the bounds of reasonableness.
Stuhlmacher, 89 M.S.P.R. 272, ¶ 20.
Here, the deciding official included in the removal decision a full analysis
of the Douglas factors. IAF, Tab 6 at 20-21. She considered the nature and
seriousness of the charges, stating that the appellant demonstrated a “total
disregard for agency directives, policies[,] and regulations” and that his actions
were “egregious and contradictory to what is expected of a Federal employee.”
Id. at 20. She also considered that the appellant’s position as a Lead CSI was
“one of prominence and position of public trust” and that the appellant’s
supervisor’s confidence in his ability to be effective in his job and follow agency
rules had suffered because of the misconduct. Id. at 20-21. She considered that
the appellant knew or should have known that he was prohibited from having a13
pistol at agency-inspected facilities and that it was “unethical and improper to use
[G]overnment credentials for unofficial business related reasons.” Id. at 21. She
also did not believe that the appellant had a potential for rehabilitation and
considered that the penalty of removal was consistent with those imposed on
other employees for the same or similar offenses and with the agency’s table of
penalties. Id. She considered potential mitigating factors, id. at 20-21, but
determined that removal was the appropriate penalty, id. at 21. In the initial
decision, the administrative judge found that the deciding official properly
considered the relevant Douglas factors. ID at 15.
On review, the appellant argues that the penalty of removal was too
“extreme” given that his actions “were not intentional.” PFR File, Tab 1 at 6. He
again asserts that there is no evidence that the parking lot of the facility was
owned or leased by the agency or even restricted to agency employees. Id. He
further asserts that he had no past disciplinary record, had been employed for
more than 11 years as a Federal employee, and had “above fully successful”
performance ratings. Id. at 7. The deciding official considered these factors, but
nonetheless found removal to be the appropriate penalty. IAF, Tab 6 at 20-21.
The appellant’s mere disagreement with the weight the deciding official afforded
to each Douglas factor provides no basis to disturb the initial decision. See
Kirkland v. Department of Homeland Security , 119 M.S.P.R. 74, ¶ 25 (2013)
(explaining that the issue in determining whether the Board should exercise its
mitigation authority is not whether the Douglas factors could have been weighed
differently but whether the agency considered the relevant Douglas factors and
reasonably exercised management discretion in making its penalty determination).
Because the deciding official properly considered the Douglas factors, we
only review the penalty to determine whether it is reasonable. See
Stuhlmacher, 89 M.S.P.R. 272, ¶ 20. We find that, due to the seriousness of the
appellant’s misconduct, the nature of his position as one of prominence and
public trust, the fact that the appellant’s supervisor lost confidence in his ability14
to be effective in his duties, and the consistency of the penalty with the agency’s
table of penalties, IAF, Tab 6 at 70, the penalty of removal is reasonable.
Martin v. Department of Transportation , 103 M.S.P.R. 153, 157 (2006), aff’d,
224 F. App’x 974 (Fed. Cir. 2007) (stating that, in assessing whether the agency’s
selected penalty is within the tolerable limits of reasonableness, the most
important factor is the nature and seriousness of the misconduct and its relation to
the employee’s duties, position, and responsibilities); Douglas, 5 M.S.P.R. at 305.
Accordingly, we will not disturb the agency’s selected penalty of removal.
We have considered all of the appellant’s arguments on review but have
concluded that a different outcome is not warranted. Accordingly, we DENY the
appellant’s petition for review and AFFIRM the initial decision except as
modified herein.
NOTICE OF APPEAL RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
6 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.15
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
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. 16
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
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: 17
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 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).
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 18
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.19 | McMillan_Nicholas_S_DC-0752-18-0458-I-1__Final_Order.pdf | 2024-06-26 | NICHOLAS SENTELL MCMILLAN v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DC-0752-18-0458-I-1, June 26, 2024 | DC-0752-18-0458-I-1 | NP |
1,136 | https://www.mspb.gov/decisions/nonprecedential/Jones_William_D_DC-0752-20-0273-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM DAVID JONES,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-0752-20-0273-I-1
DATE: June 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
William David Jones , Rockville, Virginia, pro se.
Katherine Yourth and Tiffany Higuchi , Richmond, Virginia,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his alleged involuntary resignation appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
address the appellant’s claim that he resigned as a result of agency
misinformation, we AFFIRM the initial decision.
BACKGROUND
The appellant was an Operations Research Analyst with the Defense
Logistics Agency (DLA). Initial Appeal File (IAF), Tab 1 at 7. On
September 13, 2018, a coworker of the appellant’s, coworker A, filed a complaint
with the DLA police department against the appellant alleging assault, sexual
harassment, and a hostile work environment. IAF, Tab 22 at 19-20. Coworker A
alleged that the appellant grabbed her by the arm and exhibited unpredictable and
violent behavior. Id. According to coworker A, the appellant’s actions were
related to the end of an “adulterous relationship” between the appellant and
another coworker, coworker B. Id. Coworker B gave a statement to the DLA
police department the same day, indicating that she broke off contact with the
appellant approximately 6 months earlier. Id. Coworker B alleged that since that
time the appellant had subjected her to unwelcome advances and spread rumors
about her at work. Id.2
The following day, the appellant’s supervisor required him to telework full
time. IAF, Tab 10 at 44-45. Shortly thereafter, on September 20, 2018, the
agency issued the appellant a “no -contact order,” instructing him to have no
contact with coworkers A and B. IAF, Tab 13 at 6-7. Around this same time, the
agency initiated an investigation into the allegations against the appellant. Id.
at 81. The appellant was allowed to return to work on October 29, 2018, but was
separated from his colleagues and work environment. IAF, Tab 4 at 3, Tab 20
at 6-7. According to the appellant, during this period, he could not work on any
of his normal projects and was only allowed to work on learning management
system courses. IAF, Tab 4 at 3.
On November 14, 2018, the agency placed the appellant in an
administrative leave status “pending the completion of an investigation being
conducted related to [his] alleged misconduct.” IAF, Tab 10 at 102. According
to the appellant, upon being placed in an administrative leave status, he had to
surrender his common access card, after-hours access card, Government
computer, and keys. IAF, Tab 4 at 3. The appellant alleged that during a phone
call, his supervisor told him that the investigation was “wrapping up and not
looking good” for the appellant, and that he was facing being fired and losing his
security clearance. IAF, Tab 24 at 9. Thereafter, on November 17, 2018, the
appellant resigned from his position. IAF, Tab 1 at 7, Tab 11 at 11.
Following his resignation, the agency barred him from reentering the
facility based on his exhibiting “threatening behavior towards other DLA
employees and [violating] a no-contact order established between [him] and a
DLA employee.” IAF, Tab 10 at 43. In February 2019, the agency concluded its
investigation into the appellant’s behavior towards coworkers A and B. IAF,
Tab 13 at 81-89. The Investigating Officer found that the appellant engaged in
harassment, misconduct, and the creation of a hostile work environment. Id.
at 87-88. Based on this, the Investigating Officer concluded that “disciplinary3
action [against the appellant] would have been appropriate” had he not resigned.
Id. at 88.
Following his resignation, the appellant filed an Equal Employment
Opportunity (EEO) complaint on March 12, 2019, regarding agency actions
beginning with the DLA police department investigation in September 2018,
through the agency’s continued refusal to lift its no contact orders in March 2019.
IAF, Tab 21 at 13-14, 15-21, Tab 24 at 10. The actions included his alleged
involuntary resignation. IAF, Tab 21 at 16.2 The appellant subsequently filed a
Board appeal alleging his resignation was involuntary based on the agency
violating various rights and procedures, and creating a hostile work environment.
IAF, Tab 1 at 5.
The administrative judge issued an initial decision, dismissing the appeal
for lack of jurisdiction without holding the appellant’s requested hearing. Id.
at 2; IAF, Tab 30, Initial Decision (ID) at 1. The administrative judge found that,
as alleged by the appellant, the working conditions and actions taken by the
agency were not so intolerable that a reasonable person would have felt
compelled to resign. ID at 13-14. The administrative judge additionally found
that, even if the agency had proposed discipline against the appellant, he
nonetheless could have chosen to challenge the merits of that action. ID at 14.
She further observed several of the appellant’s alleged actions took place after he
resigned and thus could not have factored into his resignation. ID at 12-13, 15.
She ultimately found that the totality of the circumstances as alleged by the
appellant failed to amount to a nonfrivolous allegation that the agency coerced
2 The Board has explained that, when an appellant files a timely formal discrimination
complaint prior to appealing to the Board, the right to pursue an appeal with the Board
does not vest until the agency issues a final decision on the discrimination claim or
120 days have passed since the filing of the complaint. Miranne v. Department of the
Navy, 121 M.S.P.R. 235, ¶ 9 (2014). The appellant met these requirements. At the time
he filed his Board appeal, more than 120 days had passed since he filed his EEO
complaint, and no final agency decision had been issued. IAF, Tab 5 at 7, Tab 21 at 11,
13, Tab 24 at 10.4
him to resign or created a hostile work environment such that it deprived him of a
choice. ID at 16.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He largely repeats his arguments from below that the agency coerced
him to resign and violated various regulations and guidelines. Id. at 4-6, 12-17.
He asserts that his supervisor manipulated coworkers A and B to contact the DLA
police department in September 2019 and provides text message in support of this
claim. Id. at 6-12, 16-17. He also argues that the administrative judge
erroneously did not consider various events that took place after his resignation.
Id. at 4, 17. He repeats his claim that the agency representative lied in her
pleadings by asserting that she had no personal knowledge of the events and
suggests, without evidence, that the agency’s original representative was replaced
due to ethical violations. Id. at 18-20. He also challenges the suggestion that his
statement in his letter of resignation belies his claim of involuntariness before the
Board. Id. at 15-16. Finally, he challenges the administrative judge’s use of
various prior Board cases and attempts to distinguish the facts of those cases from
his. Id. at 20-21. After the record closed on review, the appellant filed a motion
to submit additional evidence in support of his claim. PFR File, Tab 7. The
agency has not responded to the appellant’s petition for review or his motion to
submit new evidence.
DISCUSSION OF ARGUMENTS ON REVIEW
An employee-initiated action, such as a resignation, is presumed to be
voluntary and thus outside the Board’s jurisdiction, unless the employee presents
sufficient evidence to establish that the action was obtained through duress or
coercion or shows that a reasonable person would have been misled by the
agency. Gibeault v. Department of the Treasury , 114 M.S.P.R. 664, ¶ 6 (2010).
An appellant is entitled to a hearing on the issue of Board jurisdiction over an
appeal of an alleged involuntary resignation only if he makes a nonfrivolous5
allegation casting doubt on the presumption of voluntariness. Id. A nonfrivolous
allegation is an allegation of fact that, if proven, could establish a prima facie
case that the Board has jurisdiction over the appeal. Id. The appellant ultimately
bears the burden of establishing jurisdiction over his appeal by a preponderance
of the evidence. Vitale v. Department of Veterans Affairs , 107 M.S.P.R. 501,
¶ 17 (2007); 5 C.F.R. § 1201.56(b)(2)(i)(A).
The administrative judge correctly found that the appellant failed to
nonfrivolously allege that his resignation was the result of coercion.
The appellant’s arguments involve an allegation that he was subjected to a
hostile work environment that coerced him into resigning. IAF, Tab 1 at 5; PFR
File, Tab 1 at 5-18. The administrative judge found that the appellant failed to
nonfrivolously allege that the agency’s action and conduct was so intolerable that
he had no choice but to resign when he did. ID at 12-16. We agree with the
administrative judge.
“[T]he doctrine of coercive involuntariness is a narrow one.” Brown v.
U.S. Postal Service , 115 M.S.P.R. 609, ¶ 10 (quoting Staats v. U.S. Postal
Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996)), aff’d per curiam , 469 F. App’x
852 (Fed. Cir. 2011). To establish involuntariness on the basis of coercion, an
employee must show that the agency effectively imposed the terms of his
resignation, he had no realistic alternative but to resign, and his resignation was
the result of improper acts by the agency. Vitale, 107 M.S.P.R. 501, ¶ 19. The
touchstone of the voluntariness analysis is whether, considering the totality of the
circumstances, factors operated on the employee’s decision-making process that
deprived him of freedom of choice. Id. When alleging involuntary resignation
due to harassment or a hostile work environment, the appellant must demonstrate
that the employer engaged in a course of action that made working conditions so
difficult or unpleasant that a reasonable person in his position would have felt
compelled to resign. Id., ¶ 20. The Board addresses allegations of discrimination
and reprisal for EEO activity in connection with an alleged involuntary retirement6
only insofar as those allegations relate to the issue of voluntariness. Id.
Generally, dissatisfaction with work assignments, a feeling of being unfairly
criticized, and difficult or unpleasant working conditions are not so intolerable as
to compel a reasonable person to retire or resign. Miller v. Department of
Defense, 85 M.S.P.R. 310, ¶ 32 (2000).
The appellant, in essence, disagrees with the administrative judge’s finding
that the following alleged agency actions were not coercive, ID at 13-15:
requiring the appellant to telework for 47 days despite not having a recurring
telework agreement, PFR File, Tab 1 at 5-6; IAF, Tab 1 at 5, refusing to meet
with him or discuss the reasoning behind his teleworking, PFR File, Tab 1
at 12-13; IAF, Tab 24 at 11, placing him on administrative leave and requiring
him to hand in his access cards and Government computer, PFR File, Tab 1
at 14-15, IAF, Tab 24 at 9, and informing him that the investigation “was
wrapping up and not looking good for [him]” and that he faced being fired and
losing his security clearance, PFR File, Tab 1 at 5, 13; IAF, Tab 24 at 9.3 We are
not persuaded by the appellant’s arguments.
An employee is not guaranteed a stress-free working environment. Brown,
115 M.S.P.R. 609, ¶ 15; see Miller, 85 M.S.P.R. 310, ¶ 32 (observing that
difficult or unpleasant working conditions are generally not so intolerable as to
compel a reasonable person to resign). Furthermore, the appellant’s altered work
3 The appellant below claimed that the agency’s coercive acts included the
September 20, 2018 no-contact order involving coworkers A and B. IAF, Tab 4 at 3.
He also alleged that, although the agency returned him to work on October 29, 2018, the
conditions were intolerable, including his work assignments, separation from his
colleagues, and inability to access agency resources. IAF, Tab 24 at 8-9. Finally, he
questioned the completeness and neutrality of the agency’s investigation into his
alleged misconduct, which culminated in an investigator concluding in February 2019
that the appellant engaged in improper conduct. Id. at 11, 13. The appellant does not
re-raise these allegations on review. The administrative judge considered them in the
context of the appellant’s other allegations, but she found that, even if true, a
reasonable person in his position would not have felt compelled to retire. ID at 13-14.
We decline to revisit this finding as it concerns these alleged agency actions. See
5 C.F.R. § 1201.115 (reflecting that the Board will normally only consider those issues
raised by the parties on review). 7
assignments, separation from other employees, and subjection to investigation
and a threat of discipline do not amount to a nonfrivolous allegation of
involuntary resignation. See Baldwin v. Department of Veterans Affairs ,
109 M.S.P.R. 392, ¶¶ 19-20 (2008) (finding that an appellant who alleged he was
assigned to perform a difficult cleaning task without assistance, unjustifiably
threatened with discipline, subjected to unwarranted investigations, and
accompanied by agency police at his worksite failed to nonfrivolously allege that
a reasonable person in his position would have been compelled to resign).
The appellant further argues that, after his supervisor told him, “things
were not looking god [sic] and that [he was] facing being fired,” his only choice
was to resign. PFR File, Tab 1 at 13, 15. The administrative judge found that, if
the appellant believed the agency’s investigation was insufficient or improper, he
could have awaited the results and challenged any ensuing disciplinary action. ID
at 14. There is nothing in the record to suggest that any disciplinary action was
actually proposed against the appellant prior to his resignation. Nonetheless, it is
well established that the fact that an employee is faced with the unpleasant choice
of either resigning or opposing a potential adverse action does not rebut the
presumed voluntariness of his ultimate choice of resignation. Baldwin,
109 M.S.P.R. 392, ¶ 12.
The appellant asserts that the agency’s actions were wrongful. PFR File,
Tab 1 at 5-6, 10-13. The administrative judge recognized the appellant’s similar
claims below but did not make a determination on the appropriateness of the
agency’s actions.4 ID at 7-9, 12-14. All constructive adverse action claims have
two things in common: (1) the employee lacked a meaningful choice in the
matter; and (2) it was the agency’s wrongful actions that deprived him of that
choice. Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶ 8 (2013). We agree
with the administrative judge’s implicit finding that it is unnecessary to reach the
4 One possible exception is the administrative judge’s finding that statements by the
appellant’s supervisor regarding the appellant’s situation were not improper. ID at 14.
For the reasons stated below, we find it unnecessary to reach this finding.8
issue of whether the appellant nonfrivolously alleged that the agency’s actions
were wrongful, and we are unpersuaded by the new evidence the appellant offers
on review allegedly evidencing the improper motives of his supervisor. PFR File,
Tab 1 at 6-12.5 Instead, we discern no reason to disturb the administrative
judge’s finding that the appellant failed to nonfrivolously allege that the agency’s
allegedly wrongful actions would have coerced a reasonable person in the
appellant’s position to resign. ID at 13-15. Thus, the appellant failed to
nonfrivolously allege that he lacked a meaningful choice in the matter and did not
meet the first prong of the test for proving he was constructively removed. Bean,
120 M.S.P.R. 397, ¶ 8.
The appellant challenges other actions taken by the agency, arguing that it
mishandled his EEO complaint, interfered with his potential hiring at another job,
inappropriately barred him from entering the facility, and continued its
investigation into his alleged actions even after he resigned.6 IAF, Tab 1 at 5;
PFR File, Tab 1 at 17. The administrative judge here observed that actions such
as these, which took place after the appellant’s resignation, could not have
affected his decision to resign. ID at 12-13, 15; IAF, Tab 1 at 5, Tab 4 at 71,
Tab 10 at 43, Tab 11 at 11. We agree and accordingly decline to address them.
5 The appellant submits some text messages for the first time on review, as well as
resubmitting others that are contained in the record below. PFR File, Tab 1 at 6-11;
IAF, Tab 26 at 5-6. Under 5 C.F.R. § 1201.115, the Board generally will not consider
evidence submitted for the first time with a petition for review absent a showing that it
was unavailable before the record was closed before the administrative judge despite the
party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980).
However, because they are submitted to support the appellant’s argument of
jurisdiction, and because the issue of jurisdiction is always before the Board, we have
considered these texts to the extent they are relevant to our jurisdictional determination.
Poole v. Department of the Army , 117 M.S.P.R. 516, ¶ 9 (2012).
6 We summarize here the claims the appellant raised both below and on review that
concerned agency actions post-dating his removal. His claim that the agency should
have ceased its investigation when he resigned is raised for the first time on review.
PFR File, Tab 1 at 17. He does not re-raise on review his claim regarding interference
with his application for another position, which he raised below. IAF, Tab 1 at 5.
Nonetheless, because jurisdiction may be raised at any time, we consider these actions
as a whole. See Poole, 117 M.S.P.R. 516, ¶ 9.9
Finally, the appellant claims that the agency violated his due process rights,
as well as various regulations and guidelines, and engaged in prohibited personnel
practices. IAF, Tab 1 at 5; PFR File, Tab 1 at 12. The administrative judge
found that the Board lacked jurisdiction over these claims absent an otherwise
appealable action. ID at 15. We agree.7 See Morrison v. Department of the
Navy, 122 M.S.P.R. 205, ¶ 11 (2015) (declining to reach issues of due process,
disparate penalty, harmful error, and prohibited personnel practices absent a
finding on the threshold issue of jurisdiction); Penna v. U.S. Postal Service ,
118 M.S.P.R. 355, ¶ 13 (2012) (finding that, absent an otherwise appealable
action, the Board lacked jurisdiction to review claims of discrimination, harmful
error, prohibited personnel practices, and regulatory violations).
We modify the initial decision to find that the appellant failed to nonfrivolously
allege that his resignation was the result of misinformation.
The appellant, both below and on review, suggests that he was misinformed
by his supervisor about the likelihood and immediacy of discipline. IAF, Tab 24
at 9; PFR File, Tab 1 at 5. The administrative judge addressed the alleged
comments but did not specifically address them as an allegation of
misinformation. ID at 14. Nonetheless, we find that the appellant has failed to
sufficiently allege that his retirement was involuntary due to misinformation. We
modify the initial decision accordingly.
7 The appellant has filed a motion to submit “new evidence” after the close of record on
review. PFR File, Tab 7. Once the record closes on review, no additional evidence or
argument will be accepted unless it is new and material and was not readily available
before the record closed. Maloney v. Executive Office of the President, Office of
Administration, 2022 MSPB 26, ¶ 4 n.4; 5 C.F.R. § 1201.114(k). According to the
appellant, his new evidence will demonstrate that the agency effectively “fire[d]” him
“without due process” or notice of the charges against him and committed unidentified
prohibited personnel practices, and “DLA employees made false statements” in
connection with the agency investigations into his misconduct. PFR File, Tab 7 at 6.
He states, without identifying the nature of this evidence, that it will change the
outcome of his appeal. Id. at 8. The appellant has not explained why this evidence was
not readily available before the record closed below, and as noted here, his due process,
procedural error, and prohibited personnel practice claims do not provide a basis to find
jurisdiction over his resignation. Therefore, we deny his motion.10
An appellant may rebut the presumption of voluntariness by presenting
sufficient evidence to show that his resignation was based on agency-supplied
misinformation. Baldwin, 109 M.S.P.R. 392, ¶ 26. In particular, a resignation is
involuntary if the agency made misleading statements upon which the employee
reasonably relied to his detriment. Id. Indeed, information provided by the
agency must be correct in nature and adequate in scope to allow an employee to
make an informed choice. Powers v. Department of Veterans Affairs ,
43 M.S.P.R. 626, 630, aff’d per curiam , 918 F.2d 187 (Fed. Cir. 1990). However,
the fact that an employee is faced with a choice between two unpleasant
alternatives does not make the decision to resign any less voluntary. Id.;
Baldwin, 109 M.S.P.R. 392, ¶ 12.
The appellant here alleges that his supervisor informed him that the
agency’s investigation was “wrapping up and not looking good” for him. IAF,
Tab 24 at 9; PFR File, Tab 1 at 5. He further alleges that his supervisor stated
that DLA was “considering [your] removal from government service” and that his
security clearance was in jeopardy. IAF, Tab 24 at 9; PFR File, Tab 1 at 5, 13.
At the outset, we note that the information allegedly provided by his
supervisor does not appear to be incorrect. The investigation was completed less
than 3 months after the conversation allegedly took place. IAF, Tab 13 at 81,
Tab 24 at 9. Additionally, the investigator concluded that the appellant engaged
in harassment, misconduct, and created a hostile work environment, and that the
agency could have pursued disciplinary action against the appellant. IAF, Tab 13
at 87-88.
The agency’s investigation reflects that it gathered evidence that, for
example, the appellant repeatedly attempted to contact coworker B despite her
unresponsiveness, told colleagues that coworker B “was sleeping around with
coworkers” and “had given him AIDS,” and grabbed coworker A’s arm when she
refused to pass a note to coworker B. IAF, Tab 13 at 84-85. The appellant does
not contend that the agency lacked a reasonable basis to believe he engaged in11
such behavior or that, if true, it amounted to misconduct. Instead, he argues that
he did not engage in “willful and illegal (criminal) acts,” such as “absence from
work without leave and actual assaults on persons.” PFR File, Tab 1 at 21. The
appellant misunderstands the agency’s burden to prove misconduct. Depending
on how an agency charges misconduct, an employee’s intent or the criminal
nature of his conduct may not even be at issue. See Otero v. U.S. Postal Service ,
73 M.S.P.R. 198, 202 (1997) (explaining that an agency is not required to affix a
label to a charge of misconduct; it may simply describe actions that constitute
misbehavior in a narrative form and have its discipline sustained if the efficiency
of the service suffers because of the misconduct). Accordingly, we find that the
agency did not provide misinformation upon which the appellant relied to his
detriment but rather that the appellant made an informed choice to resign.
The appellant attempts to draw comparisons between himself and the
appellant in Gibeault v. Department of the Treasury , wherein the Board found
that the appellant sufficiently raised a nonfrivolous allegation of involuntary
resignation based on misleading statements. PFR File, Tab 1 at 5; see Gibeault,
114 M.S.P.R. 664, ¶¶ 8-9. The appellant in Gibeault alleged that his supervisor
falsely told him that if he challenged an impending disciplinary action, he would
be ineligible for future employment with the Government. Gibeault,
114 M.S.P.R. 664, ¶ 8. He further alleged that his supervisor stated that he only
had 24 hours to decide whether to resign and did not inform him that he would
have the right to challenge any removal decision before the Board. Id., ¶¶ 3, 8.
By comparison, the appellant here alleges his supervisor told him that the agency
was “considering [his] removal.” PFR File, Tab 1 at 13. He does not allege that
he was given a 24-hour deadline or was improperly told that such an action, if
proposed, would result in his permanent ban from Federal service. Id.
Accordingly, we find the facts of Gibeault and the case at hand are
distinguishable. 12
The appellant’s remaining arguments are unpersuasive.
The appellant on review argues that the agency’s representative perjured
herself by asserting that she had no personal knowledge of the matters involved in
this appeal, despite being included on various emails discussing the underlying
investigation. PFR File, Tab 1 at 18-20. He further suggests, without evidence,
that the agency replaced its former representative on the appeal based on a
violation of the rules of ethical conduct. Id. at 19. The administrative judge
considered these allegations and was not persuaded. ID at 14. We agree.
The agency’s representative checked “no” when asked whether pleadings
filed asserted facts of which she had personal knowledge. E.g., IAF, Tab 10 at 3.
The agency’s representative appears to be copied on a singular email, sent to
seven recipients, discussing a response to an email from the appellant. Id. at 46.
There is no suggestion that she responded to or otherwise was involved in those
matters. Her inclusion on an email as a member of the agency’s legal team does
not suggest that she was “very heavily involved in the investigation,” as stated by
the appellant. PFR File, Tab 1 at 18. It furthermore does not demonstrate that
the pleading asserted facts from her personal knowledge or that she in any way
acted inappropriately. We also agree with the administrative judge that the
post-resignation actions of the agency’s representative could not have affected the
appellant’s decision to resign. ID at 14-15.
Finally, the appellant challenges the administrative judge’s citation to
various cases in the initial decision. PFR File, Tab 1 at 20-21. He seemingly
claims the administrative judge erred in relying on said cases and attempts to
distinguish their facts from the case at hand. Id. The appellant’s argument is
misplaced. The cases cited therein merely represent the general legal standards
for determining the voluntariness of a resignation. Id.; ID at 16. Regardless of
whether the facts of those cases are distinguishable from the appellant’s, the
administrative judge did not err in citing to precedential Board cases for the legal
propositions contained within. The burden ultimately falls upon the appellant to13
present a nonfrivolous allegation that his resignation was involuntary. We agree
with the administrative judge that he failed to do so. Accordingly, we affirm the
initial decision as modified by this Final Order.
NOTICE OF APPEAL RIGHTS8
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
8 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.14
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on15
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or16
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.9 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 17
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
WASHINGTON, D.C.18 | Jones_William_D_DC-0752-20-0273-I-1__Final_Order.pdf | 2024-06-26 | WILLIAM DAVID JONES v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-0752-20-0273-I-1, June 26, 2024 | DC-0752-20-0273-I-1 | NP |
1,137 | https://www.mspb.gov/decisions/nonprecedential/Harris_PortiaCH-0752-20-0349-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PORTIA HARRIS,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
CH-0752-20-0349-I-1
DATE: June 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carlina Wilkes , Indianapolis, Indiana, for the appellant.
Mickey J. Lee , Indianapolis, Indiana, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The agency has filed a petition for review of the initial decision, which
sustained the agency’s charges and mitigated the appellant’s removal to a 60-day
suspension. For the reasons discussed below, we GRANT the agency’s petition
for review, AFFIRM the initial decision insofar as it found that the agency proved
its charges and established nexus, and REVERSE the initial decision insofar as it
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
mitigated the penalty of removal to a 60-day suspension, reinstating the
appellant’s removal.
BACKGROUND
The appellant was employed as a GS-11 Accountant with the Defense
Finance Accounting Service in Indianapolis, Indiana. Initial Appeal File (IAF),
Tab 7 at 22. The agency proposed the appellant’s suspension for 3 days based on
three charges: absence without leave (AWOL) for 1 hour on November 8, 2019,
failure to request leave in accordance with established procedures on
November 8, 2019, and delay in carrying out supervisory instructions (five
specifications). Id. at 203-08. With her December 19, 2019 response to the
proposed suspension, the appellant’s union representative argued that the
proposed penalty was excessive and submitted an Indianapolis Metropolitan
Police Department (IMPD) case report showing that the appellant had been the
victim of a carjacking on the evening of November 7, 2019. Id. at 78-84.
Agency Personnel Security employees reviewed public records and discovered
that no calls to either the IMPD or the local county sheriff’s office matched the
description on the case report included with the appellant’s submission. IAF,
Tab 7 at 67, 70-73, 82-84, Tab 22 at 6. Further, the case report number the
appellant provided matched a drug/narcotic violation as opposed to a carjacking.
IAF, Tab 7 at 70, 82, Tab 22 at 6.
The proposing official for the suspension informed the appellant and her
representative on December 20, 2019, that the police report she submitted was
inconsistent with public records and permitted her 10 workdays to respond. IAF,
Tab 7 at 67. Neither the appellant nor her representative responded. Id. at 63.
The agency then rescinded the proposed suspension and instead proposed
the appellant’s removal based on the same charges as in the proposed suspension
with the additional charge of conduct unbecoming a Federal employee. Id.
at 55-62, 203-08. Regarding the conduct unbecoming charge, the notice of2
proposed removal explained the basis of the charge as being that, in response to
the proposed suspension, the appellant submitted a police report alleging that she
was the victim of a carjacking on November 7, 2019, but the report was “not the
actual public report that the appellant portrayed it to be.” Id. at 56. After the
appellant replied orally and in writing, the deciding official sustained the charges,
and the agency removed the appellant effective March 12, 2020. Id. at 23-54.
The deciding official considered the appellant’s various explanations before
ultimately concluding that “there is no police report available that matches the
incident as you originally described it, with a case report number that matches
public records.” Id. at 25-26.
The appellant filed a Board appeal alleging that the agency removed her
based on false evidence. IAF, Tab 1 at 6. She did not request a hearing. Id. at 2.
After affording the parties the opportunity to submit evidence and argument,2 the
administrative judge issued an initial decision based on the written record,
finding that the agency proved its charges by preponderant evidence and that the
agency’s action was taken for such cause as promotes the efficiency of the
service. IAF, Tab 27, Initial Decision (ID) at 6-13. However, the administrative
judge found that the agency failed to prove that removal was within the bounds of
reasonableness and mitigated the penalty to a 60-day suspension. ID at 15-19.
She ordered the agency to provide interim relief to the appellant if a petition for
review was filed by either party. ID at 20.
The agency has filed a petition for review of the initial decision
challenging the administrative judge’s decision to mitigate the penalty to a 60 -day
suspension. Petition for Review (PFR) File, Tab 1 at 13-23. With its petition for
review, the agency certifies its compliance with the administrative judge’s interim
relief order and submits a Standard Form (SF) 50 showing that it appointed the
appellant, on an interim basis, to her GS-11 position. Id. at 24, 26. The appellant
2 The parties reached extensive stipulations regarding the facts underlying the agency’s
charges. IAF, Tab 22. 3
has responded to the petition for review and asserts that the facts stated by the
agency are not valid.3 PFR File, Tab 3 at 7. The appellant does not contest the
agency’s compliance with the administrative judge’s interim relief order.4 PFR
File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved its charges and nexus.
Relying extensively on the parties’ stipulations when appropriate and on
detailed factual findings when necessary, the administrative judge sustained the
specifications and charges brought by the agency. ID at 7-12; IAF, Tab 22. The
appellant does not identify any specific error in the administrative judge’s
findings, and we discern no reason to disturb them. PFR File, Tab 3 at 7; see
Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997) (stating that the Board
3 The appellant’s response to the petition for review consists of one sentence and does
not point to a specific agency document or factual finding by the administrative judge
that she believes was erroneous. PFR File, Tab 3 at 7. She states that she wants to
produce additional facts which were not made available below, but does not set forth
the facts or provide documentary evidence, state what facts she wishes to provide,
articulate how they would be relevant to her appeal, or explain why she was unable to
provide them below. Id. To the extent that the appellant intended her submission as a
cross petition for review, challenging the administrative judge’s decision on the
charges, if we were to consider it as a cross petition for review, we would deny it
because the pleading contains no specifics. Tines v. Department of the Air Force ,
56 M.S.P.R. 90, 92 (1992) (stating that a petition for review must contain sufficient
specificity to enable the Board to ascertain whether there is a serious evidentiary
challenge justifying a complete review of the record) .
4 In addition to an SF-50 documenting the appellant’s interim appointment, the agency
states that the appellant was placed on administrative leave for “three days[,] effective
September 22, 2020,” and that she was placed in such status because it believed that her
presence in the workplace would be unduly disruptive. PFR File, Tab 1 at 24, 26.
Although this evidence is unclear as to whether the appellant was returned to duty or
placed on administrative leave pursuant to an undue disruption determination,
resolution of this question is not necessary as both statuses constitute compliance with
the interim relief order. 5 C.F.R. § 1201.116(a); see 5 U.S.C. § 7701(b)(2). The
appellant does not challenge the agency’s compliance with the interim relief order.
PFR File, Tab 3. Thus, we need not discuss the matter further. Batara v. Department
of the Navy, 123 M.S.P.R. 278, ¶ 8 n.1 (2016) (finding that the Board need not discuss
the provision of interim relief further when the agency certifies its compliance and the
appellant does not contest the provision of interim relief).4
will not disturb an administrative judge’s findings when she considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (same); see also Tines, 56 M.S.P.R. at 92 (stating
that a petition for review must contain sufficient specificity to enable the Board
to ascertain whether there is a serious evidentiary challenge justifying a complete
review of the record). The administrative judge also found a nexus between the
sustained charges and the efficiency of the service, and the appellant does not
contest that finding on review. ID at 13; PFR File, Tab 3 at 7. We discern no
reason to disturb the administrative judge’s finding regarding nexus. Parker v.
U.S. Postal Service , 819 F.2d 1113, 1116 (Fed. Cir. 1987) (finding that there is
sufficient nexus between an employee’s conduct and the efficiency of the service
when the conduct occurred in part at work).
Thus, the only issue that remains on review is whether the penalty of
removal was reasonable. As discussed below, we find that the penalty of removal
was reasonable and that the administrative judge erred in mitigating the removal
to a 60-day suspension.
The administrative judge erred in mitigating the agency’s penalty selection.
When, as here, all of the agency’s charges have been sustained, the Board
will review an agency-imposed penalty only to determine if the agency
considered all of the relevant factors and exercised management discretion within
the tolerable limits of reasonableness. Powell v. U.S. Postal Service ,
122 M.S.P.R. 60, ¶ 12 (2014); Stuhlmacher v. U.S. Postal Service , 89 M.S.P.R.
272, ¶ 20 (2001). In doing so, the Board must give due weight to the agency’s
primary discretion in maintaining employee discipline and efficiency, recognizing
that the Board’s function is not to displace management’s responsibility, but to
ensure that managerial judgment has been properly exercised. Powell,
122 M.S.P.R. 60, ¶ 12; Stuhlmacher, 89 M.S.P.R. 272, ¶ 20. Thus, the Board will
modify an agency -imposed penalty only when the Board finds that the penalty5
clearly exceeded the bounds of reasonableness or the agency failed to weigh the
relevant factors. Powell, 122 M.S.P.R. 60, ¶ 12; Stuhlmacher, 89 M.S.P.R. 272,
¶ 20. If the agency’s penalty is beyond the bounds of reasonableness, the Board
will mitigate it only to the extent necessary to bring it within the parameters of
reasonableness. Chavez v. Small Business Administration , 121 M.S.P.R. 168, ¶ 8
(2014); Stuhlmacher, 89 M.S.P.R. 272, ¶ 20. However, if the agency deciding
official failed to appropriately consider the relevant Douglas factors,5 the Board
need not defer to the agency’s penalty determination. Davis v. U.S. Postal
Service, 120 M.S.P.R. 457, ¶ 6 (2013); Stuhlmacher, 89 M.S.P.R. 272, ¶ 20 .
Here, the administrative judge found that the agency failed to properly
weigh the relevant Douglas factors, reweighed them herself, and concluded that a
60-day suspension was the maximum reasonable penalty. ID at 16-19. The
agency argues on review that it correctly applied the Douglas factors and that the
administrative judge made erroneous findings of fact regarding the deciding
official’s penalty determination and that she improperly substituted her judgment
for that of the agency. PFR File, Tab 1 at 14-22. After reviewing the record, we
agree with the agency and find that the administrative judge erred by mitigating
the penalty to a 60-day suspension.
As noted above, the agency initially proposed to suspend the appellant for
3 days based on the charges of absence without leave (AWOL) for 1 hour, failure
to request leave in accordance with established procedures, and delay in carrying
out supervisory instructions (five specifications). IAF, Tab 7 at 203-08. After
the appellant replied to that proposal, the agency rescinded the proposal, added
the additional charge of conduct unbecoming a Federal employee to the original
charges, and ultimately removed the appellant. Id. at 25-31, 55-62. Thus, it is
clear that the agency considered the conduct unbecoming charge as far more
serious than the initial charges and that the additional charge justified the
5 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board set
forth a nonexhaustive list of factors that are relevant in determining the appropriateness
of the penalty for an act of misconduct. 6
increased penalty of removal. Therefore, we must decide whether the conduct
unbecoming charge, largely by itself, supports the appellant’s removal, and as the
administrative judge did, we focus our analysis on that charge.
Contrary to the administrative judge’s finding, the deciding official
correctly applied the table of penalties.
In reviewing the agency’s penalty selection, the administrative judge first
observed that the deciding official incorrectly applied the table of penalties to the
conduct unbecoming charge. ID at 17. The administrative judge explained that
the deciding official cited to a provision of the agency’s table of penalties which
provides for the penalty of removal for a first offense of “falsification or
misrepresentation of an employment application, appointment affidavit or
security background” and also cited to a provision that provides for removal for a
first offense of “knowingly providing false testimony in connection with an
official investigation, proceeding, or inquiry,” and that “[t]he record clearly
shows” that the appellant did not offer the carjacking explanation in regards to an
employment application or one of the other activities set forth in the table of
penalties. Id.; IAF, Tab 7 at 27, 336. The administrative judge further explained
that the agency did not charge the appellant with making false statements or
submitting false documents. ID at 17. On review, the agency argues that the
deciding official did not misapply the agency’s table of penalties. PFR File,
Tab 1 at 15-16.
The deciding official stated in the decision notice that the table of penalties
“serves as a guide in determining penalties,” a statement fully supported by the
language in the table of penalties, which states that it “provides penalty
guidelines for [agency] supervisors when a disciplinary action is taken against an
employee,” and that the “actual penalty determination is within the discretion of
the supervisor, depending on the facts and circumstances of each situation.” IAF,
Tab 7 at 27, 331. The deciding official also specifically stated in his Douglas
Factor Worksheet that the table of penalties did not include conduct unbecoming7
and therefore he analogized to “comparator charges that most closely resemble
the charge of conduct unbecoming a Federal employee” in the appellant’s case.
IAF, Tab 7 at 33. In his decision letter, the deciding official described the two
charges listed on the table of penalties that he referenced as “most closely
relate[d] to [the appellant’s] specified conduct under the charge of conduct
unbecoming a Federal employee.” Id. at 27.
When an agency describes the table of penalties as a “guide,” it is not
mandatory. Taylor v. Department of Veterans Affairs , 112 M.S.P.R. 423, ¶ 10
(2009); see Farrell v. Department of the Interior , 314 F.3d 584, 590-593 (Fed.
Cir. 2002). In addition, when an employee’s specific misconduct is not
delineated in an agency’s table of penalties, it is within the deciding official’s
discretion to apply the listed misconduct that most nearly resembles the
circumstances in the appellant’s case. Phillips v. Department of the Interior ,
95 M.S.P.R. 21, ¶ 17 (2003), aff’d, 131 F. App’x 709 (Fed. Cir. 2005); see
Farrell, 314 F.3d at 592-93.
Here, we find that the table of penalties was only a guide and thus the
deciding official was free to deviate from it. In addition, because the table of
penalties did not include the specific offense of conduct unbecoming, the
deciding official properly analogized it to delineated misconduct that closely
resembled the appellant’s misconduct. The agency charged the appellant with
conduct unbecoming a Federal employee for submitting, as part of her reply to
the proposed suspension, a police report showing that she was the victim of a
carjacking, which did not comport with the public records. IAF, Tab 7 at 25, 56.
Thus, the gravamen of the agency’s charge was essentially that the appellant
provided incorrect information to the deciding official in response to the notice of
proposed suspension. We discern no error in the deciding official relying on the
comparable offenses as he did.6
6 The administrative judge observed that the appellant presented evidence that her car
was stolen and was in an accident on the day of the purported carjacking, which,
according to the administrative judge, the agency did not dispute. ID at 18. Contrary to8
The administrative judge erred by finding that the agency’s failure to show
that other employees have been removed for similar misconduct supports
mitigation of the penalty .
In her initial decision, the administrative judge found that the agency did
not provide evidence that other employees were removed for offenses similar to
those committed by the appellant. ID at 18. The agency argues on review that
the absence of evidence of comparator employees cannot be a basis to find that
the penalty is not reasonable. PFR File, Tab 1 at 19-20.
The consistency of the penalty with those imposed upon other employees
for the same or similar offenses is simply one of a nonexhaustive list of 12 factors
that are relevant for consideration in determining the appropriateness of a
penalty. Singh v. U.S. Postal Service, 2022 MSPB 15, ¶ 18. Because not every
Douglas factor is relevant in every adverse action, Chatman v. Department of the
Army, 73 M.S.P.R. 582, 586 (1997), before the consistency of the penalty is at
issue in an appeal, the appellant must first identify a comparator employee who
was treated differently, McNab v. Department of the Army , 121 M.S.P.R. 661,
¶ 11 (2014). In Batara, 123 M.S.P.R. 278, ¶ 14, the Board addressed a situation
in which neither party identified a valid comparator employee and there was no
evidence as to the consistency of the penalty, and it found that the lack of such
evidence was not a basis to conclude that the penalty of removal exceeded the
bounds of reasonableness.
In this appeal, the appellant did not raise the issue of the consistency of the
penalty levied against similarly situated employees below or on review and has
not identified a comparator employee. Thus, it was error for the administrative
judge to rely on the agency’s failure to provide evidence of comparator
the administrative judge’s finding, the agency noted various inconsistencies with the
appellant’s claims about the accident and vehicle theft, including the time and location
of the purported accident and theft. IAF, Tab 7 at 26, Tab 25 at 30-34. Regardless,
even if the appellant’s vehicle was stolen and was in an accident, the fact remains that
the appellant, over a significant period of time, continued to stand behind the police
report purportedly showing that she was the victim of a carjacking, which was
inconsistent with the public records.9
employees to support her decision to mitigate the penalty. The absence of
evidence of comparator employees does not cause us to find that the agency’s
penalty determination was not entitled to deference or that the penalty of removal
was unreasonable.7
The administrative judge erred by finding that the agency’s failure to
specifically inform the appellant that she could be disciplined for her
misconduct supports mitigation of the penalty.
In support of her decision to mitigate the penalty, the administrative judge
observed that the appellant was not on notice that her assertions and submissions
while replying to the proposed suspension would be the basis for discipline. ID
at 18. The agency asserts on review that the administrative judge’s finding is
belied by the evidence. PFR File, Tab 1 at 21.
The appellant was provided with an opportunity to provide an explanation
as to why the police report she submitted was inconsistent with public records,
and she did not do so. IAF, Tab 7 at 56, 63. The notice of proposed removal also
specifically informed her that the agency was relying on her submission of a
police report that was not the actual public record she portrayed it to be. Id.
at 56. Thus, the agency provided the appellant advanced notice that it considered
her actions to constitute misconduct.
Further, an agency may reasonably require Federal employees to exercise
good judgment, notwithstanding a lack of literal guidance from an agency rule,
regulation, or other statement of agency policy. See Boyer v. Department of the
Navy, No. 94-3032 *2 (Fed. Cir. May 26, 1995).8 An agency therefore is not
7 As the agency notes in its petition for review, the fact that the appellant engaged in
misconduct that was novel is not a basis to restrict the agency’s ability to discipline her.
PFR File, Tab 1 at 20. Our reviewing court has held that the fact that there may be no
direct precedent for the action taken in a particular case does not, however, prohibit the
agency from taking an adverse action if it is consistent with general principles of
Federal employment law. Brown v. Department of the Navy , 229 F.3d 1356, 1363 (Fed.
Cir. 2000).
8 The Board may rely on nonprecedential decisions of the U.S. Court of Appeals for the
Federal Circuit if it finds the court’s reasoning persuasive, as we do here. Graves v.10
required to specifically prohibit every type of possible misconduct. See Brown v.
Department of Transportation , 735 F.2d 543, 548 (Fed. Cir. 1984) (observing that
the employee’s “common sense should have forewarned him” of the possibility of
discipline for his actions even though they were not specifically prohibited).
The lack of a specific rule that submission of a police report that does not
comport with public records during a formal agency process can result in
discipline is not a mitigating factor under the circumstances of this case. The
appellant knew or should have known that it was improper to provide such a
police report. Even if the agency did not provide an express warning to the
appellant regarding the adverse consequences of the actions described in the
charge of conduct unbecoming, common sense should have forewarned her.
Brown, 229 F.3d at 1363. Thus, we find that the administrative judge erred in
considering the lack of specific notice as a mitigating factor.
The administrative judge erred in finding that the appellant showed
rehabilitative potential .
In her initial decision, the administrative judge found that the appellant
took responsibility for some of the charges and specifications against her and thus
showed that she had a potential for rehabilitation. ID at 18. In its petition for
review, the agency disagrees with the administrative judge’s finding and argues
that the deciding official was in the most appropriate position to determine the
appellant’s rehabilitative potential and that he correctly concluded that the
appellant did not have such potential based on her extended pattern of providing
false and/or inconsistent information. PFR File, Tab 1 at 17-18.
The Board may abandon its deference to an agency’s penalty determination
if the deciding official misjudged the appellant’s rehabilitative potential.
Von Muller v. Department of Energy , 101 M.S.P.R. 91, ¶ 21 (2005), aff’d, 204 F.
App’x 17 (Fed. Cir. 2006); see Wentz v. U.S. Postal Service , 91 M.S.P.R. 176,
¶ 24-25 (mitigating the agency-imposed penalty based, in part, on the Board’s
Department of Veterans Affairs , 123 M.S.P.R. 434, ¶ 10 n.1 (2016).11
disagreement with the deciding official’s assessment of the employee’s potential
for rehabilitation). Here, the deciding official stated that he had lost faith and
confidence in the appellant’s trustworthiness as a Federal employee and her
willingness to take the necessary actions to correct her conduct. IAF, Tab 7
at 27. The deciding official further stated that he believed that the appellant did
not have rehabilitative potential because he could not rely on her to perform her
duties in a timely manner, to comply with agency rules governing time and
attendance, and to be honest and forthcoming. Id. The deciding official did not
misjudge the appellant’s rehabilitative potential.
An employee’s rationalizations and lack of remorse for proven misconduct
indicate that she has little rehabilitative potential. Neuman v. U.S. Postal Service ,
108 M.S.P.R. 200, ¶ 26 (2008). Although, as the administrative judge noted, the
appellant admitted to some of the charges and specifications, the appellant did not
apologize or acknowledge any wrongdoing for the police report she provided that
was inconsistent with the public records. In fact, in her response to the proposed
removal, the appellant continued to deflect responsibility and appeared to be
avoiding responsibility for her actions. IAF, Tab 7 at 35-36. Thus, under the
circumstances, we find that the administrative judge erred in disturbing the
agency deciding official’s assessment of the appellant’s potential for
rehabilitation.9
9 The agency argues that the administrative judge diminished the significance of the
appellant’s misconduct when she stated that the “disputed false documents and
explanations involved an off-duty carjacking and off-duty car accident” and cited Kelly
v. Department of Health and Human Services , 46 M.S.P.R. 358 (1990), a case in which
the Board mitigated a removal to a 90-day suspension when an appellant’s off -duty
misconduct did not affect the performance of her job functions. PFR File, Tab 1 at 16;
ID at 18. The agency notes, in particular, that it did not remove the appellant for
off-duty conduct but for providing an inaccurate document in response to her proposed
suspension. PFR File, Tab 1 at 19. To the extent the administrative judge considered
the appellant’s misconduct as involving off-duty misconduct, she erred. The agency did
not discipline the appellant for off-duty misconduct.12
The agency deciding official properly weighed the Douglas factors, and the
penalty of removal is within the tolerable limits of reasonableness.
Having found that the administrative judge erred in her assessment of the
agency’s penalty determination, we now consider whether the penalty of removal
is within the tolerable limits of reasonableness. We consider, first and foremost,
the nature and seriousness of the appellant’s misconduct, its relation to her job
duties, and whether the misconduct was intentional or frequently repeated. Saiz
v. Department of the Navy , 122 M.S.P.R. 521, ¶ 11 (2015). We find that
providing an inaccurate document to the agency as part of an official process—a
response to a proposed suspension—is a serious offense that strikes at the very
core of the employee-employer relationship. See Jackson v. Department of the
Army, 99 M.S.P.R. 604, ¶ 6 (2005) (stating that lack of candor is a serious
offense); Wheeler v. Department of the Army , 47 M.S.P.R. 240, 246-47 (1991)
(finding that falsification is a very serious offense). Moreover, the appellant’s
misconduct was intentional and was conducted over a period of time, which adds
to its seriousness. See Honeyman v. Department of the Navy , 46 M.S.P.R. 136,
143 (1990) (noting the intentional and repeated nature of the appellant’s
misconduct supported a finding that removal was a reasonable penalty). In
addition, as discussed above, w e understand the agency’s loss of trust and
confidence in the appellant, her lack of rehabilitative potential, and that, while the
appellant’s precise misconduct is not listed on the table of penalties, the
suggested discipline for similar acts of misconduct is removal.
Weighed against these factors, we note the appellant’s over 12 years of
Federal civilian service, her satisfactory past work record, and her lack of prior
discipline. All of these are mitigating factors.10 See Jackson v. Veterans
Administration, 14 M.S.P.R. 61, 64 (1982) (finding that the employee’s length of
10 The agency deciding official noted that the appellant had recently sought assistance
through the Employee Assistance Program and that was a mitigating factor. IAF, Tab 7
at 27. While the circumstances surrounding the appellant seeking assistance are not in
the record, we have also considered it as a mitigating factor. 13
service and satisfactory employment record were mitigating factors). They are,
however, insufficient to outweigh the sustained misconduct of AWOL, failure to
request leave in accordance with establish procedures, delay in carrying out
supervisory instructions, and most importantly, the charge of conduct unbecoming
a Federal employee and its attendant circumstances.
Based on the foregoing, we find that the penalty of removal is within the
tolerable limits of reasonableness. We grant the agency’s petition for review,
affirm the initial decision insofar as it found that the agency proved its charges
and the existence of a nexus, and reverse the initial decision insofar as it
mitigated the penalty of removal to a 60-day suspension. The agency’s removal
action is affirmed.
NOTICE OF APPEAL RIGHTS11
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
11 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.14
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you15
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
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. 16
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.12 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).
12 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 17
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.18 | Harris_PortiaCH-0752-20-0349-I-1__Final_Order.pdf | 2024-06-26 | PORTIA HARRIS v. DEPARTMENT OF DEFENSE, MSPB Docket No. CH-0752-20-0349-I-1, June 26, 2024 | CH-0752-20-0349-I-1 | NP |
1,138 | https://www.mspb.gov/decisions/nonprecedential/Christian_Bermudez_Astria_L_AT-315H-19-0655-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ASTRIA LATOYA CHRISTIAN
BERMUDEZ,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
AT-315H-19-0655-I-1
DATE: June 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Astria Latoya Christian Bermudez , Lake Worth, Florida, pro se.
Sylvia N. Caballero-Nieves , Miami, Florida, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of her termination during her probationary period. On
petition for review, the appellant argues that she was not given a fair chance to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
defend herself and that her termination was the result of discrimination and
retaliation. Petition for Review (PFR) File, Tab 1 at 3. She also argues the
merits of her termination. Id. Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
of material fact; the initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After
fully considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The administrative judge correctly found that the appellant failed to
establish that, as an individual serving in her probationary period, she was an
“employee” with Board appeal rights under chapter 75 as defined by 5 U.S.C.
§ 7511(a)(1)(A). Initial Appeal File (IAF), Tab 7, Initial Decision at 3. Although
the appellant failed to establish a statutory right to appeal, she may also have a
regulatory right to appeal, wherein she must establish that her termination was
based on pre-appointment reasons and the agency did not follow proper
procedures, partisan political reasons, or marital status discrimination.
See Walker v. Department of the Army, 119 M.S.P.R. 391, ¶ 5 (2013); 5 C.F.R.
§§ 315.805-806 (providing limited grounds for a regulatory right to appeal).
The appellant was informed of these potential bases for jurisdiction. IAF, Tab 3
at 2-3. We have reviewed the record, and we find that the appellant has not
alleged that her termination was based on any of these categories. IAF, Tab 1;2
PFR File, Tab 1. Accordingly, we agree with the administrative judge that the
appeal must be dismissed for lack of jurisdiction.
Regarding the appellant’s arguments on review concerning discrimination,
retaliation,2 and the merits of her termination, we cannot consider these claims
absent jurisdiction over an otherwise appealable action. See Penna v. U.S. Postal
Service, 118 M.S.P.R. 355, ¶ 13 (2012) (stating that, absent an otherwise
appealable action, the Board lacked jurisdiction to consider the appellant’s claims
of discrimination on the bases of his disability and age); Sapla v. Department of
the Navy, 118 M.S.P.R. 551, ¶ 7 (2012) (finding that the appellant’s arguments
concerning the merits of her appeal were not relevant to the question of
jurisdiction).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 To the extent the appellant is asserting that her termination was in reprisal for
whistleblowing, there is no evidence that she brought this claim to the Office of Special
Counsel (OSC), and we, therefore, do not have jurisdiction over it. See 5 U.S.C.
§ 1214(a)(3) (requiring an employee to seek corrective action from OSC before seeking
corrective action from the Board). However, the appellant may wish to contact OSC if
she believes that her termination was in reprisal for whistleblowing activity.
3 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.3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment Opportunity
Commission (EEOC) of your discrimination claims only, excluding all other
issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s
Office of Federal Operations within 30 calendar days after you receive this
decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 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: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection Enhancement
Act of 2012 . This option applies to you only if you have raised claims of reprisal
for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected
activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your
judicial petition for review “raises no challenge to the Board’s disposition of
allegations of a prohibited personnel practice described in section 2302(b) other
than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or
(D),” then you may file a petition for judicial review either with the U.S. Court of
Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4
The court of appeals must receive your petition for review within 60 days of the
date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Christian_Bermudez_Astria_L_AT-315H-19-0655-I-1__Final_Order.pdf | 2024-06-26 | ASTRIA LATOYA CHRISTIAN BERMUDEZ v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. AT-315H-19-0655-I-1, June 26, 2024 | AT-315H-19-0655-I-1 | NP |
1,139 | https://www.mspb.gov/decisions/nonprecedential/Duran_Theresa_M_DE-531D-16-0329-P-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THERESA M DURAN,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DE-531D-16-0329-P-1
DATE: June 26, 2024
THIS ORDER IS NONPRECEDENTIAL1
Stephen Goldenzweig , Esquire, Bellaire, Texas, for the appellant.
Jennifer A. Weger , Esquire, Washington, District of Columbia, for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
¶1The appellant has filed a petition for review of the addendum initial
decision, which denied her motion for compensatory damages. For the reasons
discussed below, we GRANT the appellant's petition for review, VACATE the
initial decision, and REMAND the case to the field office for further adjudication
in accordance with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
¶2The appellant filed an appeal of the agency’s final decision to deny her a
within-grade increase. Duran v. Department of Justice , MSPB Docket No. DE-
531D-16-0329-I-1, Initial Appeal File, Tab 1. After a hearing, the administrative
judge reversed the agency’s decision and found that the agency had retaliated
against the appellant for activity protected under Title VII and the Rehabilitation
Act. Duran v. Department of Justice , MSPB Docket No. DE-531D-16-0329-I-2,
Appeal File, Tab 75, Initial Decision. On October 31, 2017, the initial decision
became the Board’s final decision when neither party petitioned for review. See
5 C.F.R. § 1201.113.
¶3On January 2, 2018, the appellant filed a motion for compensatory damages.
Duran v. Department of Justice , MSPB Docket No. DE-531D-16-0329-P-1 (P-1)
File, Tab 1. The administrative judge issued an addendum initial decision
denying the appellant’s motion as untimely. P-1 File, Tab 10, Addendum Initial
Decision (AID). The appellant has filed a petition for review, the agency has
filed a response in opposition, and the appellant has filed a reply. Addendum
Petition for Review (APFR) File, Tabs 1, 3-4.
ANALYSIS
¶4An appellant who prevails in an appeal before the Board based on a finding
of intentional discrimination or retaliation prohibited under Title VII or the
Rehabilitation Act may recover compensatory damages from an agency pursuant
to the Civil Rights Act of 1991. 42 U.S.C. § 1981a; Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 106-06 (1997); Hocker v. Department of Transportation ,
63 M.S.P.R. 497, 504-05 (1994); 5 C.F.R. § 1201.202(c). The issue of
compensatory damages is generally addressed in an addendum proceeding after
the merits of the appeal have been decided. 5 C.F.R. § 1201.204(d).
Nevertheless, the Board’s regulations require that a request for compensatory
damages be made during the proceeding on the merits, no later than that end of2
the conference held to define the issues in the case. 5 C.F.R. § 1201.204(a)(1).
This time limit may be waived for good cause shown, provided the waiver would
not result in undue prejudice to the agency. 5 C.F.R. § 1201.204(a)(2).
¶5In this case, it is undisputed that the appellant’s request for damages was
untimely. 5 C.F.R. § 1201.204(a)(1). AID at 3. The administrative judge found
that there was not good cause to waive the filing deadline, chiefly because the
appellant was represented at all times by attorneys who should be familiar with
the procedures for requesting compensatory damages. AID at 4-5. On petition
for review, the appellant disputes the administrative judge’s good cause analysis.
¶6We agree with the administrative judge that the 7-month delay in filing the
damages motion weighs against a finding of good cause. See Dizon v. Office of
Personnel Management , 77 M.S.P.R. 118, 119 (1997) (7-month delay in filing a
petition for review “significant and not minimal”). We also agree that the fact
that the appellant was not acting pro se, but instead had attorney representation,
does not weigh in her favor. See Thomas v. Department of the Interior ,
92 M.S.P.R. 165, ¶ 6 (2020).
¶7Nevertheless we find that good cause exists because at no time during the
course of the merits proceedings did the appellant receive notice of the time limit
for requesting compensatory damages.2 Given the lack of notice and considering
the circumstances of the case, including that the appellant pursued her appeal
diligently throughout, meeting all of the relevant deadlines, including the
deadline for filing her motion for compensatory damages under 5 C.F.R.
§ 1201.204(e), we find good cause to waive the deadline set forth in 5 C.F.R.
§ 1201.204(a). See Calhoon v. Department of the Treasury , 90 M.S.P.R. 375,
¶ 14 n.7 (2001).3 We find that the agency will not be prejudiced by this waiver.
2 The administrative judge found that such notice is not required by statute. AID at 4.
We agree. However, we find that the absence of a statutory or regulatory notice
requirement is not dispositive. See Hawkes v. Department of Agriculture ,
103 M.S.P.R. 345, ¶ 9 (2006).3
ORDER
¶8For the reasons discussed above, we waive the deadline for filing a request
for compensatory damages and remand this case to the field office for further
adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
3 The administrative judge considered Calhoon but distinguished it on the basis that the
appellant in that case was pro se. AID at 4. However, even if the equities in Calhoon
were stronger in that regard, the equities in the instant appeal, particularly the lack of
notice, are still sufficient to warrant a waiver. The status of an appellant’s
representation is just one factor among many that the Board will consider in a good
cause analysis. See Moorman v. Department of the Army , 68 M.S.P.R. 60, 62 -63
(1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).4 | Duran_Theresa_M_DE-531D-16-0329-P-1__Remand_Order.pdf | 2024-06-26 | THERESA M DURAN v. DEPARTMENT OF JUSTICE, MSPB Docket No. DE-531D-16-0329-P-1, June 26, 2024 | DE-531D-16-0329-P-1 | NP |
1,140 | https://www.mspb.gov/decisions/nonprecedential/Vazquez_PedroDC-315H-19-0466-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PEDRO VAZQUEZ,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DC-315H-19-0466-I-1
DATE: June 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Captain James J. Woodruff, II , Esquire, Joint Base Andrews, Maryland, for
the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his termination appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to address the appellant’s argument that he was not
required to serve a probationary period under his appointment to the agency
because he already completed one during his prior service with the Department of
the Navy (Navy), we AFFIRM the initial decision.
As properly set forth in the initial decision, the Board’s jurisdiction is
limited to those matters over which it has been given jurisdiction by law, rule, or
regulation. Initial Appeal File (IAF), Tab 9, Initial Decision (ID) at 2; Maddox v.
Merit Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). An appellant
bears the burden of proving the Board’s jurisdiction by preponderant evidence.
ID at 2-3; 5 C.F.R. § 1201.56(b)(2)(i)(A). Generally, if an appellant makes a
nonfrivolous allegation2 that the Board has jurisdiction over his appeal, he is
entitled to a hearing on the jurisdictional question. ID at 3; Hurston v.
Department of the Army , 113 M.S.P.R. 34, ¶ 5 (2010).
The appellant has failed to make a nonfrivolous allegation that he completed
1 year of current continuous service at the time of his termination.
To establish Board jurisdiction under 5 U.S.C. chapter 75 over an adverse
action, an individual must, among other things, show that he satisfies one of the
2 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).2
definitions of “employee” in 5 U.S.C. § 7511(a)(1). 5 U.S.C. § 7513(d); Walker
v. Department of the Army , 119 M.S.P.R. 391, ¶ 5 (2013). Under 5 U.S.C.
§ 7511(a)(1)(A), an “employee” means “an individual in the competitive service
—(i) who is not serving a probationary or trial period under an initial
appointment; or (ii) except as provided in section 1599e of title 10, who has
completed 1 year of current continuous service under other than a temporary
appointment limited to 1 year or less.”
Section 1105 of the National Defense Authorization Act for Fiscal
Year 2016, Pub. L. No. 114-92 (enacted on November 25, 2015), amended the
definition of “employee” set forth at 5 U.S.C. § 7511(a)(1)(A)(ii) by adding an
exception codified at 10 U.S.C. § 1599e. Bryant v. Department of the Army ,
2022 MSPB 1, ¶ 8. Section 1599e provides, among other things, that individuals
appointed to a permanent, competitive-service position at the Department of
Defense (DOD) are subject to a 2-year probationary period and only qualify as an
“employee” under 5 U.S.C. § 7511(a)(1)(A)(ii) if they have completed 2 years of
current continuous service. Bryant, 2022 MSPB 1, ¶ 8.
Here, although the administrative judge did not address the effect of
10 U.S.C. § 1599e in the initial decision, we discern no harm to the appellant’s
substantive rights. See Panter v. Department of the Air Force , 22 M.S.P.R. 281,
282 (1984) (finding that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision). The
Standard Form (SF) 50 documenting the appellant’s appointment to the agency
reflects that his appointment was temporary because it was not to exceed 1 year.
IAF, Tab 6 at 10; see 5 C.F.R. § 316.401(c)(1) (providing that an agency may
make a temporary appointment for a specified period not to exceed 1 year). Thus,
we find that the 2-year probationary period and amendment provided by
10 U.S.C. § 1599e do not apply to his agency appointment.
For the reasons discussed in the initial decision, we agree with the
administrative judge’s finding that, regardless of the temporary nature of the3
appellant’s appointment, he failed to make a nonfrivolous allegation that he
completed 1 year of current continuous service at the time of his termination by
the agency. ID at 3-5; see Ellefson v. Department of the Army , 98 M.S.P.R. 191,
¶ 14 (2005); 5 C.F.R. § 752.402 (defining “current continuous employment”).
Thus, he cannot meet the definition of “employee” under 5 U.S.C. § 7511(a)(1)
(A)(ii). We further agree with the administrative judge’s alternative finding that,
even if the appellant was an individual in the excepted service (subject to the
definition of “employee” under 5 U.S.C. § 7511(a)(1)(B)),3 the outcome would
not change because he still would have to establish that he completed 1 year of
current continuous service.4 ID at 5 n.3; see Winns v. U.S. Postal Service,
124 M.S.P.R. 113, ¶¶ 10, 13, 16 (2017) (deferring to the definition of “current
continuous employment” set forth at 5 C.F.R. § 752.402, as a reasonable
3 It is unclear based on the record whether the appellant was an individual in the
competitive or excepted service. For example, the SF-50 documenting his appointment
reflects that the agency used the Schedule A hiring authority set forth at 5 C.F.R.
§ 213.3102(u), which suggests he was in the excepted service. IAF, Tab 6 at 10; see
Van Wersch v. Department of Health & Human Services , 72 M.S.P.R. 662, 665-66
(1996) (explaining that excepted-service appointments under 5 C.F.R. § 213.3102(u) are
made to a particular class of individuals). However, the agency’s SF-50s documenting
his appointment and termination reflect that his position was in the competitive service.
IAF, Tab 6 at 10-11. Further, the agency’s termination memorandum stated that he was
reinstated to a career-conditional appointment and it provided him with appeal rights on
the bases set forth at 5 C.F.R. § 315.806, which only applies to individuals in the
competitive service. IAF, Tab 1 at 8-9; Barrand v. Department of Veterans Affairs ,
112 M.S.P.R. 210, ¶ 13 (2009).
4 The administrative judge’s Acknowledgment Order only informed the appellant of the
definition of “employee” set forth at 5 U.S.C. § 7511(a)(1)(A), which applies to
individuals in the competitive service. IAF, Tab 2 at 4 n.5; see Burgess v. Merit
Systems Protection Board , 758 F.2d 641, 643-44 (Fed. Cir. 1985) (holding that an
appellant must receive explicit information on what is required to establish an
appealable jurisdictional issue). However, the agency’s jurisdictional response placed
the appellant on notice regarding the definition of “employee” set forth at 5 U.S.C.
§ 7511(a)(1)(B), which applies to preference eligibles in the excepted service. IAF, Tab
6 at 5; see Nichols v. Department of the Interior , 69 M.S.P.R. 386, 388-89 (1996)
(finding that the agency’s pleading provided the appellant with adequate jurisdictional
notice). It is undisputed that the appellant is a preference eligible. IAF, Tab 3 at 10-16.4
interpretation of 5 U.S.C. § 7511(a)(1)(B)), aff’d sub nom. Williams v. Merit
Systems Protection Board , 892 F.3d 1156 (Fed. Cir. 2018).
The appellant has failed to make a nonfrivolous allegation that he was not serving
a probationary period under his appointment to the agency.
For the reasons provided in the initial decision, we agree with the
administrative judge’s finding that the appellant failed to make a nonfrivolous
allegation that he completed a 1-year probationary period under his appointment
to the agency. ID at 2-5; see Hurston, 113 M.S.P.R. 34, ¶ 9; 5 C.F.R.
§ 315.802(b). Thus, he cannot meet the definition of “employee” under 5 U.S.C.
§ 7511(a)(1)(A)(i).
On petition for review, the appellant argues that the administrative judge
failed to consider his argument that he was not required to serve a probationary
period under his appointment to the agency because he already completed one
during his prior Navy service. Petition for Review (PFR) File, Tab 1 at 4-6; ID
at 5. We modify the initial decision to address his argument, as follows.
Pursuant to 5 U.S.C. § 3321(a), an individual generally is required to
complete a probationary period upon initial appointment to a competitive service
position and upon initial appointment to a supervisory or managerial position.
See 5 C.F.R. §§ 315.801, 315.901, 315.904(a). Under certain circumstances, an
individual who has completed these types of probationary periods may not be
required to serve another one in a new appointment. See 5 C.F.R. §§ 315.801(a)
(2), 315.904(b). However, the probationary periods contemplated by 5 U.S.C.
§ 3321(a), do not apply to individuals covered by 10 U.S.C. § 1599e. 5 U.S.C.
§ 3321(c). As discussed above, under 10 U.S.C. § 1599e, individuals appointed
to a permanent position within the competitive service at the DOD are required to
serve a 2-year probationary period.
Here, the SF-50s documenting the appellant’s initial appointment and
subsequent reinstatement to the Navy reflect that he held competitive-service5
positions that were not time-limited.5 IAF, Tab 5 at 6, Tab 6 at 8. Accordingly,
we find that his Navy appointments were subject to the completion of a 2-year
probationary period under 10 U.S.C. § 1599e. Even considering the appellant’s
total length of Navy service, he did not complete 2 years of service with the Navy
that could satisfy the requisite 2-year probationary period. IAF, Tab 5 at 6-7,
Tab 6 at 7-9. Although the SF-50s documenting his Navy appointments do not
reflect that he was subject to a 2-year probationary period, IAF, Tab 5 at 6, Tab 6
at 8, an SF-50 is not a legally operative document controlling on its face an
employee’s status and rights, Scott v. Department of the Air Force , 113 M.S.P.R.
434, ¶ 8 (2010). For example, in Bryant, 2022 MSPB 1, ¶¶ 9-10, the Board found
that 10 U.S.C. § 1599e and the aforementioned amendment to 5 U.S.C. § 7511(a)
(1)(A)(ii), controlled the Board’s jurisdiction in the termination appeal—not the
agency’s misstatements in the vacancy announcement and SF-50 reflecting that
the appellant’s position required only a 1-year probationary period. Therefore,
we find that the appellant’s argument that he was not required to serve a
probationary period under his appointment to the agency because he already
completed one during his prior Navy service is unavailing.
The appellant has failed to make a nonfrivolous allegation that the Board has
jurisdiction under 5 C.F.R. § 315.806.
The appellant does not dispute, and we discern no reason to disturb, the
administrative judge’s finding that he has not alleged that he was terminated for
pre-appointment reasons or based on partisan political reasons or marital status.
PFR File, Tab 1; ID at 6. Thus, the appellant has failed to make a nonfrivolous
allegation that the Board has jurisdiction under 5 C.F.R. § 315.806. ID at 6.
5 Contrary to the appellant’s assertion on review that he initially was hired under
“Veterans Readjustment Appointment” authority, PFR File, Tab 1 at 4, the SF-50
indicates that he was appointed pursuant to the Veterans Employment Opportunities Act
of 1998, as amended by section 511 of the Veterans Millennium Health Care and
Benefits Act, Pub. L. No. 106-117, 113 Stat. 1545 (1999), IAF, Tab 5 at 6; see
LeMaster v. Department of Veterans Affairs , 123 M.S.P.R. 453, ¶ 2 n.1 (2016).
Appointees under this authority receive career or career-conditional appointments in the
competitive service. 5 U.S.C. § 3304(f)(2); see LeMaster, 123 M.S.P.R. 453, ¶ 2 n.1.6
The appellant’s new argument on review provides no reason to disturb the initial
decision.
For the first time on review, the appellant argues that this appeal could be
affected by a pending complaint that he filed with the Office of Special Counsel
(OSC) regarding his prior termination by the Navy. PFR File, Tab 1 at 5 & n.1,
6. He speculates that, if his OSC complaint is successful, it could result in him
having current continuous service from April 17, 2017, to March 29, 2019. Id.
at 6. The appellant has failed to explain why he was unable to raise this argument
before the administrative judge. See Banks v. Department of the Air Force ,
4 M.S.P.R. 268, 271 (1980) (holding that the Board generally will not consider an
argument raised for the first time in a petition for review absent a showing that it
is based on new and material evidence not previously available despite the party’s
due diligence). Nevertheless, we discern no reason to disturb the initial decision
based on the appellant’s speculation on the potential impact of his pending OSC
complaint.
Accordingly, we affirm the dismissal of this termination appeal for lack of
jurisdiction.
NOTICE OF APPEAL RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions to provide a comprehensive
summary of all available review options. As indicated in the notice, the Board cannot
advise which option is most appropriate in any matter. 7
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The8
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file9
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address: 10
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Vazquez_PedroDC-315H-19-0466-I-1__Final_Order.pdf | 2024-06-26 | null | DC-315H-19-0466-I-1 | NP |
1,141 | https://www.mspb.gov/decisions/nonprecedential/Vu_Trang_T_DA-315H-23-0433-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRANG T. VU,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DA-315H-23-0433-I-1
DATE: June 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Curtis Mitchell Jr. , Midwest City, Oklahoma, for the appellant.
Petria Pennington , Esquire, Mary Rahimi-Ahrabi , Esquire, and S. Maggie
Lanier , Esquire, Tinker AFB, Oklahoma, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her probationary termination appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
¶2In her petition for review, the appellant continues to contest the merits of
her termination. Petition for Review (PFR) File, Tab 1. The merits of the
appellant’s termination, however, do not pertain to the jurisdictional issue, and
we agree with the administrative judge that the appellant did not make a
nonfrivolous allegation of jurisdiction entitling her to a hearing. Initial Appeal
File (IAF), Tab 10, Initial Decision (ID) at 1-4.
¶3Only an “employee,” as that term is defined in 5 U.S.C. § 7511(a)(1), may
appeal an adverse action, like a removal from Federal service, to the Board
pursuant to 5 U.S.C. chapter 75. 5 U.S.C. §§ 7512, 7513(d); see, e.g., Bryant v.
Department of the Army , 2022 MSPB 1, ¶ 8. At the time of the appellant’s
appointment to her competitive-service position in August 2021, an individual
appointed to a permanent competitive-service position at the Department of
Defense (DOD) was subject to a 2-year probationary period and only qualified as
an “employee” under 5 U.S.C. § 7511(a)(1)(A)(ii) (2016) and 10 U.S.C. § 1599e
(2016) if she was not serving a probationary or trial period under an initial
appointment, or if she had completed 2 years of current continuous service under
other than a temporary appointment limited to 1 year or less. IAF, Tab 1 at 2,
Tab 8 at 30; see Bryant, 2022 MSPB 1, ¶ 8. In December 2021, while the2
appellant was serving her probationary period, Congress repealed 10 U.S.C.
§ 1599e and the 2-year probationary period for such DOD appointments. Bryant
2022 MSPB 1, ¶ 8. However, this repeal was made effective December 31, 2022,
and only applied to individuals appointed on or after that date. 10 U.S.C. § 1599e
note; Bryant 2022 MSPB 1, ¶ 8. The repeal of 10 U.S.C. § 1599e does not affect
the outcome of this appeal. Because the appellant was appointed in August 2021,
before the effective date of the repeal, the administrative judge properly
concluded that the appellant was serving a 2-year probationary period and lacked
the required 2 years of current continuous service at the time of her termination,
and therefore that she was not an “employee” with adverse action appeal rights
under 5 U.S.C. chapter 75. ID at 2-3; IAF, Tab 1 at 2, Tab 8 at 30; see Bryant,
2022 MSPB 1, ¶¶ 8-9.
¶4We further find that the administrative judge properly concluded that the
appellant failed to make a nonfrivolous allegation of jurisdiction pursuant to
5 C.F.R. § 315.806 or any other basis. ID at 3-4. She has not made a
nonfrivolous allegation that she was terminated due to discrimination based on
marital status or for partisan political reasons, or because of conditions arising
before her appointment to the position in question. ID at 3; see Blount v.
Department of the Treasury , 109 M.S.P.R. 174, ¶ 5 (2008). Absent an allegation
that she was terminated for preappointment reasons, she has not made a
nonfrivolous allegation that she was entitled to the notice and response
procedures afforded under 5 C.F.R. § 315.805, and there is no basis for Board
jurisdiction pursuant to 5 C.F.R. § 315.806(c). To the extent that the appellant
argues that sources other than 5 C.F.R. § 315.805, such as Air Force Instructions
and a collective bargaining agreement, provide her with advanced notice and
response rights, we find that these allegations provide no basis for Board
jurisdiction. PFR File, Tab 1; IAF, Tab 7.3
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s6
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.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Vu_Trang_T_DA-315H-23-0433-I-1__Final_Order.pdf | 2024-06-26 | TRANG T. VU v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DA-315H-23-0433-I-1, June 26, 2024 | DA-315H-23-0433-I-1 | NP |
1,142 | https://www.mspb.gov/decisions/nonprecedential/Epler_Scott_K_DA-1221-18-0104-W-3__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SCOTT K. EPLER,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DA-1221-18-0104-W-3
DATE: June 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ricardo J.A. Pitts-Wiley , Esquire, Washington, D.C., for the appellant.
Casey Keppler , Joint Base Andrews, Maryland, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in connection with his individual right of
action appeal. On petition for review, the appellant argues that the administrative
judge erred in finding that the agency met its clear and convincing evidence
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
burden to prove that it would have terminated the appellant during probation
absent his protected disclosure and activities. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).2
2 In analyzing whether the agency met its burden to prove by clear and convincing
evidence that it would have taken the same personnel action absent the appellant’s
protected disclosure and activities, the administrative judge properly applied the first
two so-called Carr factors. Carr v. Social Security Administration , 185 F.3d 1318,
1323 (Fed. Cir. 1999). The administrative judge’s analysis of Carr factor three,
evidence that the agency takes similar actions against employees who are not
whistleblowers but who are otherwise similarly situated to the appellant, was limited to
a consideration of whether the proposing or deciding official had previously terminated
an employee. MSPB Docket No. DA-1221-18-0104-W-3, Appeal File, Tab 21, Initial
Decision at 24 n.9. The appellant does not challenge the administrative judge’s analysis
of the third Carr factor on review. To the extent that the administrative judge should
have found that the agency’s failure to produce evidence regarding how similarly
situated nonwhistleblowers were treated cuts against the agency, see Miller v.
Department of Justice , 842 F.3d 1252, 1262 (Fed. Cir. 2016), the outcome of this appeal
would be the same, as the other two Carr factors favor the agency. 2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board 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.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Epler_Scott_K_DA-1221-18-0104-W-3__Final_Order.pdf | 2024-06-26 | SCOTT K. EPLER v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DA-1221-18-0104-W-3, June 26, 2024 | DA-1221-18-0104-W-3 | NP |
1,143 | https://www.mspb.gov/decisions/nonprecedential/Proa_Frank_C_CH-0752-18-0504-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FRANK PROA,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
CH-0752-18-0504-I-1
DATE: June 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Frank Proa , Claremore, Oklahoma, pro se.
Madonna Graham , Esquire, Albuquerque, New Mexico, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal. 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the appellant’s claim that the agency failed to properly credit his
military service when he was initially hired is barred by the doctrine of collateral
estoppel and to find that the appellant’s November 17, 2017 complaint that he
filed with the Office of Special Counsel (OSC) was protected activity, we
AFFIRM the initial decision.
BACKGROUND
Prior to his removal, the appellant was employed with the agency’s U.S.
Geological Survey’s Columbia Environmental Research Center in Missouri as a
GS-11 Chemist. Initial Appeal File (IAF), Tab 1 at 1, Tab 15 at 19-20. He was
responsible for the “transfer of waste solvents into collection drums” and for their
shipping and hauling, and for leading, implementing, and evaluating a personal
protective equipment plan. IAF, Tab 15 at 135, 137. On April 24, 2018,
the agency proposed his removal based on conduct in January and February 2018,
which the agency charged as: (1) seven instances of failure to carry out
instructions given by his supervisors; (2) failure to comply with safety
instructions or prescribed practices when he failed to properly cap collection
drums and allowed his hazmat employee training to expire; (3) improper use of
Government property when he failed to turn in his Government cell phone and2
computer prior to serving a 14-day suspension, improperly used both during the
suspension period, and deleted computer files upon his return; (4) absence
without leave on February 2, 2018; and (5) providing inaccurate information on
his time and attendance records for that date. Id. at 35-45. On July 17, 2018,
the agency issued a decision letter on its proposed removal, sustaining the charges
and finding that removal was an appropriate penalty. Id. at 21-29.
The appellant filed this appeal of his removal with the Board. IAF, Tab 1.
During the Board proceedings below, the administrative judge issued sanctions
against the appellant, denying his request for an in-person hearing due to his
uncivil behavior, drawing inferences in favor of the agency regarding information
sought during discovery due to the appellant’s failure to comply with an order to
produce the information, and denying the appellant’s witnesses due to his failure
to submit prehearing submissions. IAF, Tab 47 at 3, Tab 52 at 4-5, Tab 56.
The administrative judge issued an initial decision on the written record,
affirming the removal. IAF, Tab 61, Initial Decision (ID) at 2, 22. She found
that the agency proved all five charges. ID at 6-13. She further found that the
agency proved a nexus between the sustained charges and its ability to
accomplish its mission. ID at 13. She also deferred to the agency’s penalty
determination and found that removal was within the bounds of reasonableness.
ID at 14-16. She concluded that the appellant did not prove his affirmative
defenses of reprisal for whistleblowing or discrimination on the basis of his prior
military service. ID at 16-21.
The appellant has timely filed a petition for review. Petition for Review
(PFR) File, Tab 1. The agency has responded to the petition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant does not challenge the administrative judge’s
determination that the agency proved the charges or nexus. PFR File, Tab 1
at 3-6. We discern no basis to disturb these findings. Rather, the appellant3
contends that the administrative judge erred in sanctioning him and finding that
he failed to prove his affirmative defenses, and he disagrees regarding the length
of his Federal civilian service. Id. We consider these contentions below.
The administrative judge did not abuse her discretion when she cancelled the
scheduled hearing as a sanction against the appellant.
In his petition for review, the appellant argues that the administrative judge
unfairly denied him his requested hearing. PFR File, Tab 1 at 3; IAF, Tab 1 at 2.2
An administrative judge may impose sanctions as necessary to serve the ends of
justice. 5 C.F.R. § 1201.43. That authority includes the right to sanction a party
for failure to comply with an order. 5 C.F.R. § 1201.43(a). That authority also
includes the right to cancel a scheduled hearing for “contumacious conduct or
conduct prejudicial to the administration of justice on the part of the appellant.”
5 C.F.R. § 1201.43(e). Absent an abuse of discretion, the Board will not reverse
an administrative judge’s determination regarding sanctions. Leseman v.
Department of the Army , 122 M.S.P.R. 139, ¶ 6 (2015); Davis v. Department of
Commerce, 120 M.S.P.R. 34, ¶ 18 (2013). The abuse of discretion standard is a
very high standard and allows for great deference. Pecard v. Department of
Agriculture, 115 M.S.P.R. 31, ¶ 15 (2010) (citing Lipscomb v. Department of
Defense, 69 M.S.P.R. 484, 487 (1996)). An appellant’s right to a hearing,
however, should not be denied as a sanction absent extraordinary circumstances.
Heckman v. Department of the Interior , 106 M.S.P.R. 210, ¶ 8 (2007). We find
that the administrative judge did not abuse her discretion by cancelling the
scheduled hearing. IAF, Tab 56.
Here, the regional office docketed the appeal in August 2018. IAF, Tab 2.
The agency initially filed a motion for sanctions and requested a security
presence at the hearing due to “inappropriate, aggressive, and threatening” emails
2 The appellant also argues that the administrative judge denied him his right to call
witnesses. PFR File, Tab 1 at 3. Because the administrative judge did not hold a
hearing at which the parties could have presented witnesses, we find it unnecessary to
address the appellant’s argument on review that he was improperly denied witnesses. 4
the appellant sent to agency counsel during September and October 2018.
IAF, Tab 36. The agency attached copies of the emails, which the appellant did
not deny sending. Id. at 14-15; IAF, Tab 40 at 3. In those emails, he suggested
agency counsel would suffer unspecified “harm” for representing the agency, her
“time [was] up,” and she would be “bound in chains of darkness,” and “pay the
price.” IAF, Tab 36 at 15, 23, 41, 47. The appellant did not change the tone of
his emails even after agency counsel asked him to “stop sending these types of
emails to [her],” explaining that they were “very disturbing.” Id. at 50. Nor did
he stop when she requested he keep his communications to discovery and other
case-related matters, asserting his correspondence was “extremely troubling” and
raised “safety concerns.” Id. at 22.
The administrative judge granted the agency’s motion requesting a security
presence at the hearing and warned the appellant that if he continued to display
“threatening and disruptive behavior towards agency counsel and a total lack of
decorum” his hearing request would be denied. IAF, Tab 47 at 3. She ordered
the appellant to “only communicate with agency counsel regarding discovery,
motions, or regarding a matter ordered by the Board.” Id. During the prehearing
conference on November 8, 2018, the administrative judge again advised the
appellant that he must “conduct himself with civility” towards agency counsel
and the Board during the proceedings. IAF, Tab 52 at 1.
On December 12, 2018, the appellant sent another unsolicited email to
agency counsel and stated, “if you insist on continuing the devil’s work, the start
of your witness will be from jail,” describing her as a “cold, calculating, proud,
stubborn, deceitful, ambitious, jealous, angry, hateful person,” and asserting that
he refused “to negotiate or collude with a group of terrorist lawyers.”
IAF, Tab 55 at 15. In response to the appellant’s “uncivil threatening behavior”
and his continued failure to comply with her orders, the administrative
judge granted the agency’s motion for sanctions and denied the appellant’s
request for an in -person hearing. IAF, Tab 56 at 2. We find that, in light of the5
egregious and persistent nature of the appellant’s conduct, the administrative
judge appropriately exercised her discretion in sanctioning him by canceling his
requested hearing. See Heckman, 106 M.S.P.R. 210, ¶¶ 8-12 (determining that an
administrative judge did not abuse her discretion in sanctioning an appellant by
cancelling his requested hearing when the appellant failed to comply with three
orders directing him to submit evidence or argument regarding his claims); see
also Morris v. Department of the Navy , 123 M.S.P.R. 662, ¶¶ 10-17 (2016)
(dismissing an appellant’s petition for review for repeatedly failing to comply
with the Board’s orders and regulations while at the same time using misogynistic
invective in describing his dealings with the Board’s female staff in the Clerk’s
Office).
The appellant’s arguments as to discovery and evidentiary matters do not provide
a basis for disturbing the initial decision.
On review, the appellant alleges that the administrative judge denied him
the “right to . . . receive and include evidence into the case file” and deleted key
documents from the record. PFR File, Tab 1 at 3-4. Absent an abuse of
discretion, the Board will not find reversible error in an administrative judge’s
rulings regarding discovery or evidentiary matters. See Vaughn v. Department of
the Treasury, 119 M.S.P.R. 605, ¶ 15 (2013); Sanders v. Social Security
Administration, 114 M.S.P.R. 487, ¶ 10 (2010). Further, to obtain reversal of an
initial decision on the ground that the administrative judge abused her discretion
in excluding evidence, the petitioning party must show on review that relevant
evidence, which could have affected the outcome, was disallowed.
Sanders, 114 M.S.P.R. 487, ¶ 10. Here, the appellant fails to identify the
evidence that was improperly excluded, other than to instruct the Board to review
“all the records and pleadings that were removed from the record.” PFR File,
Tab 1 at 4. He generally alleges the administrative judge’s conduct “prejudices
the employee” in presenting his case, but does not explain how the outcome was6
affected and fails to assert any reversible error by the administrative judge.
Id. at 3. Thus, we are not persuaded.
Regarding the documents the appellant alleges were improperly excluded
below, a review of the record shows that the appellant repeatedly attempted to file
motions to compel discovery before serving the discovery requests on the agency
first, as he was instructed to do by the administrative judge. IAF, Tab 2 at 3,
Tab 13. In response, the administrative judge rejected and struck from the record
the appellant’s first two motions, including the “225 pages of document dump”
he had attached to his first motion to compel. IAF, Tabs 9-10. She denied his
third motion to compel for the same reason. IAF, Tab 11 at 3-4, Tab 13.
We agree with the administrative judge that the appellant’s motions to compel did
not meet the requirements of 5 C.F.R. § 1201.73(c)(1).
A motion to compel is appropriate if a party fails or refuses to respond in
full to a discovery request. 5 C.F.R. § 1201.73(c)(1). Here, it appears that the
appellant did not follow the instructions set out in the administrative judge’s
order and the regulations governing discovery, but instead filed motions to
compel with the Board before sending the discovery requests to the agency. IAF,
Tab 2 at 3, Tabs 9-11, 13. Therefore, we find that the appellant has not
demonstrated that the administrative judge abused her discretion in her rulings on
these motions or in striking the 225 pages of documents he submitted with his
first motion. See 5 C.F.R. §§ 1201.41(b)(3), (8) (recognizing an administrative
judge’s authority to rule on evidentiary matters), 1201.74(a) (stating that an
administrative judge may deny a motion to compel discovery if a party fails to
comply with the requirements of 5 C.F.R. § 1201.73).3
3 The appellant also alleges that the administrative judge “failed to respond to and/or
enforce the request for OPM, HR, and employee records.” PFR File, Tab 1 at 3.
It appears the appellant is referring to his third motion to compel. IAF, Tab 11 at 3.
As discussed above, the appellant has not demonstrated that the administrative judge
abused her discretion in denying this motion to compel. 7
Additionally, it appears that the appellant repeatedly failed to follow the
administrative judge’s orders prohibiting “document dumping,” her instructions
on how to properly file his exhibits, and her instructions on the discovery process.
IAF, Tab 5 at 3-4, Tabs 13, 28, Tab 47 at 3-4, Tab 51. As such,
the administrative judge sanctioned the appellant by deleting pleadings that failed
to comply with her orders. IAF, Tabs 22, 26, Tab 47 at 2-3; see 5 C.F.R.
§ 1201.43(a)(4) (providing that an administrative judge may eliminate from
consideration submissions that do not comply with her orders). In at least one
instance, she accepted a noncompliant pleading despite the “appellant appear[ing]
unwilling or unable to follow the directions” in her orders. IAF, Tab 28.
As indicated above, the appellant has failed to identify the relevant evidence that
he alleges was improperly excluded below. PFR File, Tab 1 at 3-4. While the
appellant submits evidence on review, the majority of the documents he submits
are part of the record below, and thus are not new. Compare PFR File, Tab 1
at 8-40, with IAF, Tab 11 at 5-37; see Meier v. Department of the Interior ,
3 M.S.P.R. 247, 256 (1980) (finding that evidence that is already part of the
record is not new).
In addition to the documents that are already part of the record,
the appellant submits a July 2014 decision regarding the classification of his
position. PFR File, Tab 1 at 41-57. However, he has not explained why this
document, which predates the initial decision by over 4 years, was previously
unavailable despite due diligence, or is relevant to the outcome of his appeal.
See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (finding that
the Board will not grant a petition for review based on new evidence absent a
showing that it is of sufficient weight to warrant an outcome different from that
of the initial decision); see also Avansino v. U.S. Postal Service , 3 M.S.P.R. 211,
214 (1980) (finding that the Board generally will not consider evidence submitted
for the first time on review absent a showing that it was unavailable before the
record closed despite due diligence). Nor does the appellant make it clear8
whether this is one of the documents that he believes was improperly excluded
below. PFR File, Tab 1 at 4. Therefore, we have not considered the documents
that the appellant submits on review.
We modify the initial decision to find that the appellant’s claim that the agency
failed to give him service credit for time in college is barred by the doctrine of
collateral estoppel.
In his petition for review, the appellant reasserts his Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA) claim that, when
he was initially hired, the agency did not properly credit his military service and
that he was denied “the right to seniority based on veterans status.” PFR File,
Tab 1 at 3; IAF, Tab 19 at 3-4. The administrative judge observed that the
appellant had raised this claim in a prior Board appeal that was then pending
before the Board on petition for review, i.e., Proa v. Department of the Interior ,
MSPB Docket No. CH-4324-18-0185-I-1, and did not address it further. ID at 20.
We modify this analysis to clarify that the doctrine of collateral estoppel now
applies as a final decision has since been issued in the prior appeal. Proa v.
Department of the Interior , MSPB Docket Nos. CH-4324-18-0185-I-1, CH-752S-
18-0188-I-1, CH-1221-18-0363-W-1, Final Order, ¶¶ 1-3, 8-10 (Sept. 7, 2023).
Collateral estoppel, or issue preclusion, is appropriate when (1) an issue is
identical to that involved in the prior action; (2) the issue was actually litigated in
the prior action; (3) the determination on the issue in the prior action was
necessary to the resulting judgment; and (4) the party precluded had a full and
fair opportunity to litigate the issue in the prior action. Hau v. Department of
Homeland Security , 123 M.S.P.R. 620, ¶ 13 (2016), aff’d sub nom. Bryant v.
Merit Systems Protection Board , 878 F.3d 1320 (Fed. Cir. 2017).
Collateral estoppel may be grounds for dismissing an appeal for lack of
jurisdiction if a jurisdictional determination in a prior decision is afforded
collateral estoppel effect and the appellant provides no other valid basis for Board
jurisdiction. Id.9
In the instant appeal, the appellant again argues that the agency did not
properly credit his military service when he was initially hired, in violation of
USERRA. PFR File, Tab 1 at 5-6. The administrative judge found, in the
appellant’s prior appeal, that he was actually seeking employment service credit
for the period of time he was attending college, that he made no allegations that
his military status was a factor in the agency’s action of denying him eligibility
under USERRA for employment service credit for that period of time, and that he
thus failed to make a nonfrivolous allegation of Board jurisdiction over his
appeal. Proa v. Department of the Interior , MSPB Docket No. 4324-18-0185-I-1,
Initial Decision at 2, 4 (April 2, 2018). On review, the Board issued a final
decision on this matter, affirming the dismissal of the appellant’s USERRA claim
for lack of jurisdiction. Proa v. Department of the Interior , MSPB Docket Nos.
CH-4324-18-0185-I-1, CH-752S-18-0188-I-1, CH-1221-18-0363-W-1, Final
Order, ¶¶ 8-10 (Sept. 7, 2023). Thus, this identical jurisdictional issue was
litigated in this prior appeal.
Further, the administrative judge’s jurisdictional findings were necessary
for the dismissal of the appeal on that basis, the appellant was a party, and he had
a full and fair opportunity to litigate his claims. The appellant is therefore
precluded from litigating this issue again. Thus, we dismiss his USERRA claim
regarding his initial appointment for lack of jurisdiction. We modify the
administrative judge’s finding in this regard, which was based on a pending
appeal for which a final decision has since been issued.
The administrative judge properly denied the appellant’s affirmative defense of
discrimination based on his prior military service.
The appellant also re-raises his claim that he was discriminated against
based on his military service when he was removed, the adverse action at issue in
the instant appeal. PFR File, Tab 1 at 5; IAF, Tab 19 at 3-4. An employee
making a USERRA discrimination claim bears the initial burden of showing by a
preponderance of the evidence that his military service was “a substantial or10
motivating factor” in the contested agency decision. Sheehan v. Department of
the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001). An appellant may meet his
burden by using direct or circumstantial evidence. Id. at 1014. If an appellant
meets his burden, then the burden shifts to the agency to prove that it would have
made the same decision absent the improper motive. Id.
The administrative judge found that the appellant failed to prove that his
military status was a substantial or motivating factor in the agency’s decision to
remove him. ID at 21. Rather, the administrative judge found that the appellant’s
allegations amounted to general statements that the agency discriminated against
veterans and that he failed to provide any direct or circumstantial evidence that
his military service played a role in his removal. Id. She found that the decision
to remove the appellant was based on the sustained charges against him. Id.
While the appellant argues that he was discriminated against on review, he has
not pointed to any evidence that supports his claim. Thus, the appellant has not
stated a basis for granting review. 5 C.F.R. § 1201.115(a)-(d).
We modify the initial decision’s analysis of the appellant’s whistleblower reprisal
affirmative defense, but still conclude that he failed to prove this defense.
On review, the appellant re-raises his whistleblower reprisal claim but does
not allege any particular error by the administrative judge. PFR File, Tab 1 at 3.
In addressing this claim, the administrative judge found that the appellant failed
to prove by preponderant evidence that he reasonably believed that his
disclosures evidenced a violation of law, rule, or regulation. ID at 16-19. She
therefore found that the appellant failed to prove his affirmative defense. Id. We
discern no basis to disturb this finding.
In a removal appeal, an appellant’s claim of whistleblower reprisal is
treated as an affirmative defense. Ayers v. Department of the Army , 123 M.S.P.R.
11, ¶ 12 (2015); 5 U.S.C. § 1221(e)(1). In such an appeal, once the agency
proves its initial case by a preponderance of the evidence, the appellant must
show by a preponderance of the evidence that he made a protected whistleblower11
disclosure under 5 U.S.C. § 2302(b)(8) or participated in protected whistleblower
activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and that the
disclosure or activity was a contributing factor in the agency’s personnel action.
5 U.S.C. § 1221(e)(1); Ayers, 123 M.S.P.R. 11, ¶ 12. If the appellant establishes
a prima facie case of whistleblower reprisal, then the burden shifts to the agency
to show by clear and convincing evidence that it would have taken the same
personnel action absent any protected disclosures or activity. 5 U.S.C. § 1221(e)
(2); Ayers, 123 M.S.P.R. 11, ¶ 12.
A protected disclosure is a disclosure of information that the appellant
reasonably believes evidenced a violation of any law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8)(A);
Shannon v. Department of Veterans Affairs , 121 M.S.P.R. 221, ¶ 22 (2014). The
proper test for assessing whether a protected disclosure occurred is an objective
one: could a disinterested observer with knowledge of the essential facts known
to and readily ascertainable by the employee reasonably conclude that the actions
of the agency evidence one of the categories of wrongdoing identified in 5 U.S.C.
§ 2302(b)(8)(A)? Shannon, 121 M.S.P.R. 221, ¶ 22. General philosophical or
policy disagreements with agency decisions or actions are not protected unless
they separately constitute a protected disclosure of one of those categories of
wrongdoing. See 5 U.S.C. § 2302(a)(2)(D); Webb v. Department of the Interior ,
122 M.S.P.R. 248, ¶ 8 (2015).
As noted in the initial decision, at issue in this appeal is the appellant’s
disclosure that “agency officials refused to allow [him] to dispose of some acids/
mixed waste in the manner [he] deemed least hazardous” and that he was
instructed to dispose of the materials per agency approved policy/guidelines but
he did not agree that this was the “best or safest method available for disposal.”
ID at 17; IAF, Tab 15 at 30-31, 47, Tab 19 at 110. The administrative judge
interpreted the appellant’s allegations as a claim of reprisal for a protected12
disclosure. ID at 18. However, it appears that the appellant was also raising a
claim that he made his disclosures to the Board, OSC, the Federal Labor
Relations Authority, and the Department of Labor. IAF, Tab 19 at 130.
In assessing whether this disclosure to his supervisor was protected,
the administrative judge considered the relevant documentary evidence, such as
the closure email sent to the appellant by OSC, which detailed his disclosure to
his supervisor, and noted that the appellant did not provide a statement or
declaration in support of his whistleblower reprisal allegations prior to the close
of the record.4 ID at 18.
Based on the documentary evidence, the administrative judge found that the
appellant’s disclosure that he disagreed with the agency’s method of disposal of
acid/mixed waste materials constituted a disagreement with his supervisor’s
instructions to him regarding the agency’s established guidelines and regulations
for waste disposal, and that the appellant did not reasonably believe that he had
disclosed a violation of law, rule, or regulation. ID at 18-19. The administrative
judge also considered whether the appellant’s alleged disclosure constituted a
disclosure of a substantial and specific danger to public health or safety, but
determined that “revealing a negligible, remote, or ill -defined period that does not
involve any particular person, place, or thing is not protected.” ID at 18-19;
see Chambers v. Department of the Interior , 515 F.3d 1362, 1369 (Fed. Cir.
2008) (identifying factors that the Board might consider in determining whether
an alleged disclosure of a danger to public health or safety is sufficiently
substantial and specific to warrant protection). The administrative judge
therefore found that this disclosure was not protected. ID at 18-19.
We agree with the administrative judge that the appellant failed to prove
that he made a protected disclosure because he failed to articulate a reasonable
4 The appellant was apprised of his burden of proving his whistleblower reprisal claim
and, despite receiving an extension to do so, did not respond to the administrative
judge’s orders to provide the requested information below. IAF, Tab 4 at 2, Tab 31
at 1-2. 13
belief that he disclosed wrongdoing under Federal whistleblowing statutes.
Moreover, the appellant’s allegations of wrongdoing were vague. While the
appellant submitted an email to his supervisor in which he alleged that he was
being retaliated against because he told his supervisor, “the forced interpretation
of policy to hinder me in the performance of duties to which I was hired was
wasteful, burdensome, potentially dangerous with respect to mixed -waste,
had explicit compliance problems, was illegal, and . . . the memo-policy that gave
itself authority was a lesser authority than rules, regulations, and law,” he did not
explain specifically what the purported violations of law and regulation were but
only made conclusory allegations about the agency’s alleged wrongdoing.
IAF, Tab 19 at 110; see Rzucidlo v. Department of the Army , 101 M.S.P.R. 616,
¶ 17 (2006) (finding that the Board requires an appellant to provide more than
vague and conclusory allegations of wrongdoing by others). In his response to
the proposed removal, the appellant again alleged categories of wrongdoing, such
as stating, “[r]egarding shipping, they did whatever they wanted and there were
violations of law.” IAF, Tab 15 at 30-31. However, he provided no specifics.
We modify the initial decision to find that the appellant participated
in protected activity when he filed his November 17, 2017 OSC
complaint.
The administrative judge only analyzed whether the appellant made the
above protected disclosure and did not address whether the appellant’s
November 17, 2017 OSC complaint constituted protected activity. ID at 18-19.
Although not challenged by the appellant on review, we address this claim.
Under 5 U.S.C. § 2302(b)(9)(C), an employee engages in protected activity when
he discloses information to OSC. The appellant’s OSC complaint thus constitutes
protected activity. IAF, Tab 15 at 47, 126-27. We therefore modify the initial
decision accordingly. As explained below, the administrative judge’s error is not
a basis for review because it does not affect the outcome of the appeal.
See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (finding14
that an adjudicatory error that is not prejudicial to a party’s substantive rights
provides no basis for reversal of an initial decision).
The appellant has not met his burden of proving that his November 17,
2017 OSC complaint was a contributing factor in the agency’s decision to remove
him. To prove that his activity was a contributing factor in a personnel action,
the appellant need only demonstrate that the fact of, or the content of, the activity
was one of the factors that tended to affect the personnel action in any way.
Covington v. Department of the Interior , 2023 MSPB 5, ¶ 43. One way to
establish contributing factor is the knowledge/timing test. Smith v. Department of
the Army, 2022 MSPB 4, ¶ 19. The appellant can satisfy the test by proving that
the official taking the action had knowledge of the activity, and the action
occurred within a period of time such that a reasonable person could conclude
that the activity was a contributing factor in the personnel action. Id.
The appellant filed his OSC complaint in November 2017. IAF, Tab 15
at 47-48, 126-27. His removal was proposed in April 2018 by the Center Director
and the proposed removal was sustained by the Associate Director in July 2018.
Id. at 21-29, 35-45. This personnel action occurred within approximately
8 months of the appellant’s protected activity.5 The Board has held that personnel
actions taken within 1 to 2 years of a protected disclosure satisfy the timing prong
of the knowledge/timing test, but those that take place more than 2 years after the
disclosure are too remote to satisfy this test. Pridgen v. Office of Management
and Budget, 2022 MSPB 31, ¶ 63; Agoranos v. Department of Justice ,
119 M.S.P.R. 498, ¶ 21 (2013). We therefore find that the appellant has satisfied
the timing portion of the knowledge/timing test.
Regarding the knowledge prong of the test, the appellant failed to establish
by preponderant evidence that the proposing and deciding officials knew of his
protected activity, i.e., the filing of his OSC complaint in November 2017.
5 It is undisputed that the decision to remove the appellant constitutes a personnel
action. See 5 U.S.C. § 2302(a)(2)(A)(iii). 15
The appellant did not specifically allege that either the proposing or deciding
official had actual or constructive knowledge of his OSC complaint. Instead, the
record evidence shows, through the appellant’s emails and oral reply to his
proposed removal, that these officials only knew of his disclosures to his
supervisor. IAF, Tab 15 at 30-31, Tab 19 at 110, 151.
To the extent the appellant speculates that the agency found out about his
protected activity when it confiscated his Government computer upon his return
from his 14-day suspension in February 2018, we are not persuaded. IAF, Tab 19
at 130. He alleges that the agency proposed his removal once it found out he had
disclosed information to OSC but does not provide any additional information to
support or substantiate such an allegation. Id. Ultimately, we find that the
appellant failed to prove by preponderant evidence that the responsible officials
had any knowledge of the November 2017 OSC complaint. See Jones v.
Department of the Treasury , 99 M.S.P.R. 479, ¶ 8 (2005) (finding that an
appellant’s unsubstantiated speculation that an agency official might have known
of protected disclosures was insufficient to meet her burden to make a
nonfrivolous allegation of jurisdiction); see also Easterbrook v. Department of
Justice, 85 M.S.P.R. 60, ¶ 11 (2000) (concluding that the record failed to
demonstrate that the official responsible for the personnel action at issue had
actual or constructive knowledge of the appellant’s disclosure).
The Board has held that, if an administrative judge determines that an
appellant has failed to satisfy the knowledge/timing test, she shall consider other
evidence, such as (1) evidence pertaining to the strength or weakness of the
agency’s reasons for taking the personnel action; (2) whether the whistleblowing
was personally directed at the proposing or deciding officials; and (3) whether
these individuals had a desire or motive to retaliate against the appellant. Dorney
v. Department of the Army , 117 M.S.P.R. 480, ¶¶ 15-17 (2012) (finding that the
appellant did not demonstrate that her protected disclosure was a contributing16
factor in her nonselection through the knowledge/timing test, but that she
nonfrivolously alleged contributing factor through other evidence).
However, consideration of the Dorney factors also does not support a
finding of contributing factor. The first factor does not weigh in the appellant’s
favor, given that the agency proved its charges by a preponderance of the
evidence. ID at 6-12. Regarding the second factor, the appellant does not claim
that the content of his OSC complaint was personally directed at the proposing or
deciding officials. As to the third factor, in light of the lack of evidence that the
proposing or deciding official knew of the appellant’s OSC complaint, we cannot
assume that they had a motive or desire to retaliate against the appellant for filing
his OSC complaint.
In sum, we find that the appellant has not met his burden of establishing
that his protected activity was a contributing factor in the agency’s decision to
remove him. Accordingly, we affirm, as modified, the administrative judge’s
finding that the appellant is not entitled to corrective action.
The appellant’s other arguments on review do not provide a basis to disturb the
initial decision.
The appellant alleges that the administrative judge denied him the right to
receive pay. PFR File, Tab 1 at 3. The appellant had requested he be returned to
pay status while working on his Board appeal, such as while engaging in
discovery with the agency. IAF, Tab 6 at 3, Tab 31 at 2, Tab 39 at 3, Tab 47 at 3.
The administrative judge denied the appellant’s motions to restore him to pay
status and informed the appellant that she had no authority to grant such a motion.
IAF, Tab 7 at 1, Tab 47 at 3. There is no provision of law or regulation that
would require the agency to permit the appellant to use official time for the
purpose of pursuing his Board appeal, thus the administrative judge correctly
denied the appellant’s request. See White v. Social Security Administration ,
76 M.S.P.R. 447, 465-67 & n.12 (1997) (finding that, with the exception of time
spent providing sworn statements or testimony, no authority exists for requiring17
an agency to grant its employees official time in which to pursue their Board
appeals), aff’d per curiam , 152 F.3d 948 (Fed. Cir. 1998) (Table).
The appellant also appears to allege that the proposing and deciding
officials had a “conflict of interest” and were predisposed to remove him.
PFR File, Tab 1 at 4. With his initial appeal, the appellant included an email he
sent to the deciding official, alleging that the deciding official had a conflict of
interest because he was involved in designating the appellant’s grade level upon
his initial hiring. IAF, Tab 1 at 10. The administrative judge did not identify this
claim as an issue for adjudication in the prehearing conference summary and did
not render findings on this claim in the initial decision. IAF, Tab 52 at 2-3. The
appellant had the opportunity to object to the administrative judge’s prehearing
conference summary but did not. Id. at 2. Thus, we find that the appellant
abandoned this affirmative defense, and it is not properly before us. See Thurman
v. U.S. Postal Service , 2022 MSPB 21, ¶¶ 17-18 (setting forth a nonexhaustive
list of factors relevant to determining whether an appellant will be deemed to
have waived or abandoned a previously raised affirmative defense including, as
relevant here, the thoroughness and clarity with which the appellant raised his
affirmative defense, the degree to which he continued to pursue his affirmative
defense, and whether the appellant objected to a summary of the issues to be
decided that failed to include the potential affirmative defense).
On review, the appellant also appears to challenge his penalty of removal
by claiming that the agency and the administrative judge improperly viewed him
as having 4, rather than 5, years of Federal service. PFR File, Tab 1 at 5. Based
on the record below, the appellant’s position was converted to a career
conditional appointment after completion of an initial probationary period
effective October 19, 2014. IAF, Tab 15 at 151. His Standard Form 50 indicated
that his service computation date was October 19, 2014. Id. He was
subsequently removed effective July 18, 2018. Id. at 19-20. Thus, he had
approximately 4 years of tenured Federal service. Even assuming the agency18
should have considered the appellant’s probationary service in evaluating the
overall length of his service, the appellant has not shown how any error impacted
the evaluation of his penalty. See Panter, 22 M.S.P.R. at 282; see also Douglas
v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981) (articulating a
nonexhaustive list of factors relevant to the penalty determination in adverse
actions). The appellant does not otherwise challenge the penalty and we see no
reason to disturb it.
Accordingly, we deny the petition for review and affirm, as modified, the
initial decision sustaining the appellant’s removal.
NOTICE OF APPEAL RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
6 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.19
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain20
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
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 21
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 22
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.23 | Proa_Frank_C_CH-0752-18-0504-I-1__Final_Order.pdf | 2024-06-26 | FRANK PROA v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. CH-0752-18-0504-I-1, June 26, 2024 | CH-0752-18-0504-I-1 | NP |
1,144 | https://www.mspb.gov/decisions/nonprecedential/Middleton_LowellDC-1221-19-0135-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LOWELL MIDDLETON,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-1221-19-0135-W-1
DATE: June 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lowell Middleton , Manassas, Virginia, pro se.
Gabriela Coronado , Esquire, Quantico, Virginia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal with prejudice for failure to
prosecute. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant filed an IRA appeal with the Board using the Board’s
e-Appeal system. Initial Appeal File (IAF), Tab 1 at 2, 5. On
November 26, 2018, the administrative judge issued an order to show cause to the
appellant to provide evidence and argument that the Board has jurisdiction over
his appeal. IAF, Tab 3 at 4. The administrative judge ordered the appellant to
respond within 10 calendar days. Id. at 4. The administrative judge received no
response. On December 19, 2018, the administrative judge ordered the appellant
to respond to the jurisdictional order within 7 calendar days. IAF, Tab 4 at 1-2.
The administrative judge again received no response.
The deadline to respond to the administrative judge’s second order fell
during the partial Government shutdown of 2018-19 during which the Merit
Systems Protection Board was closed. After the Merit Systems Protection Board
reopened, the administrative judge issued another order to respond on January 30,
2019, providing the appellant until February 4, 2019, to respond to the previous
jurisdictional order. IAF, Tab 5 at 1. Again, the administrative judge received no2
response. Both the December 19, 2018 and January 30, 2019 orders warned the
appellant that his failure to respond would result in a dismissal of his case with
prejudice. IAF, Tab 4 at 1-2, Tab 5 at 1.
The administrative judge issued an initial decision dismissing the appeal
with prejudice for failure to prosecute. IAF, Tab 6, Initial Decision (ID) at 1. He
found that the appellant had failed to demonstrate basic due diligence in
prosecuting the appeal by failing to respond to his orders. ID at 3. In reaching
this conclusion, the administrative judge found that, despite the appeal being
pending for over 2 months, there had been “no indicia from the appellant [that] he
intends to pursue his claim.” Id.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He asserts that he responded to all three of the administrative judge’s
orders: on December 21, 2018, February 1, 2019, and February 4, 2019. Id. at 1.
The appellant states that, because he “did not see any contact information or a
mechanism to respond on the site,” he sent his response to agency counsel, whose
mailing address was listed on the certificates of service. Id. He argues that
agency counsel failed in her professional duty to forward his responses to the
administrative judge or advise him on filing procedures.
DISCUSSION OF ARGUMENTS ON REVIEW
Dismissal for failure to prosecute is an extreme sanction that may be
imposed if a party fails to prosecute or defend and appeal. Chandler v.
Department of the Navy , 87 M.S.P.R. 369, ¶ 6 (2000). The imposition of such a
severe sanction, however, must be used only when necessary to serve the ends of
justice, such as when a party has failed to exercise basic due diligence in
complying with an order or has exhibited negligence or bad faith in his efforts to
comply. Id. Ordinarily, the Board will not reverse an administrative judge’s
determination regarding sanctions absent a showing of abuse of discretion.
Holland v. Department of Labor , 108 M.S.P.R. 599, ¶ 9 (2008).3
In this case, it appears that the appellant did not file responses to the
administrative judge’s orders because he did not understand how to make an
electronic submission, and he did not know the mailing address for the regional
office. PFR File, Tab 1 at 1. Instead, he served these documents on the agency in
hopes that agency counsel would forward them to the Board for docketing.2 Id.
We find that this course of action did not manifest basic due diligence. The
Board expects agency counsel to deal fairly and professionally with appellants,
particularly pro se appellants. However, we find no indication that agency
counsel in this case engaged in any sort of procedural gamesmanship or
intentionally hid anything from the Board in hopes of taking advantage of the
appellant. Although the appellant contacted agency counsel by email on the dates
that he indicated, nothing in that correspondence resembles a customary response
to a jurisdictional or show cause order. Nor did the appellant ask agency counsel
for help or inform her that he was experiencing difficulties until after the initial
decision had already been issued. PFR File, Tab 7 at 21. We therefore doubt that
it would have occurred to agency counsel to forward this correspondence to the
administrative judge or otherwise provide the appellant with appropriate
nonsubstantive assistance. Id. at 14-40.
Furthermore, the appellant could have located the mailing address for the
regional office by referring to either the acknowledgment order or the initial
appeal form, but he did not. IAF, Tab 1 at 8, Tab 2 at 8. The initial appeal form
and acknowledgment order also contained the telephone and fax numbers for the
regional office, IAF, Tab 1 at 8, Tab 2 at 8, but the appellant does not allege that
he attempted to file his responses by facsimile or to call the regional office and
ask for assistance. All of this contact information is also available publicly, and
2 The agency did not file any submissions during the proceedings below, and it did not
respond to the petition for review. In light of this, the Clerk of the Board issued an
order to show cause, directing the agency to give an account of its version of events and
file any relevant evidence in its possession, including copies of any documents that the
appellant sent to agency counsel. PFR File, Tab 5. The agency responded to this order.
PFR File, Tab 7.4
we find that, if the appellant had proceeded with basic due diligence, he could
have resolved his problem sometime during the 73 days that the administrative
judge was waiting for his response.
The record shows that the appellant failed to file responses to three
consecutive orders (and for that matter filed no submissions at all) over a 73-day
period. The appellant was also warned repeatedly by the administrative judge
that failure to respond to his orders could be grounds for dismissal. Under these
circumstances, we find that the sanction imposed did not constitute an abuse of
discretion. See Williams v. U.S. Postal Service , 116 M.S.P.R. 377,
¶¶ 9-12 (2011).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you6
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 7
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Middleton_LowellDC-1221-19-0135-W-1__Final_Order.pdf | 2024-06-26 | LOWELL MIDDLETON v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-1221-19-0135-W-1, June 26, 2024 | DC-1221-19-0135-W-1 | NP |
1,145 | https://www.mspb.gov/decisions/nonprecedential/Benson_MarkAT-0752-18-0072-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARK BENSON,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
AT-0752-18-0072-I-1
DATE: June 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mark Benson , Metairie, Louisiana, pro se.
Trevor Davies , Esquire, Bremerton, Washington, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal as settled. For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown for the delay. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The agency removed the appellant from his position as a GS-11 Quality
Assurance Specialist (Shipbuilding). Initial Appeal File (IAF), Tab 4 at 26-34.
He appealed his removal to the Board, and the parties subsequently reached an
agreement to settle the appeal. IAF, Tabs 1, 19. In a February 20, 2018 initial
decision, the administrative judge entered the settlement agreement into the
record for purposes of enforcement by the Board, and she dismissed the appeal as
settled. IAF, Tab 20, Initial Decision (ID) at 1-2. The administrative judge
notified the appellant that the initial decision would become final on
March 27, 2018, unless a petition for review was filed by that date. ID at 3.
On August 23, 2019, the appellant electronically filed a pleading with the
Board. Petition for Review (PFR) File, Tab 1. During a telephone call with the
Office of the Clerk of the Board on this same day, the appellant confirmed that
his submission constituted a petition for review of the initial decision, not a
petition for enforcement. PFR File, Tab 2 at 1 n.*. The Acting Clerk of the
Board then notified the appellant that his petition for review was untimely filed
and she explained that, as a result, he must file a motion asking the Board to
accept the petition for review as timely and/or to waive the time limit for good
cause. Id. at 1-2. The appellant did not respond. The agency has responded in
opposition to the appellant’s petition for review, arguing that it is untimely filed
with no good cause shown for the delay and that the appellant has not shown a
basis for disturbing the initial decision. PFR File, Tab 4 at 4-15.
DISCUSSION OF ARGUMENTS ON REVIEW
A petition for review must be filed within 35 days after the issuance of the
initial decision, or, if the petitioner shows that he received the initial decision
more than 5 days after the date of the issuance, within 30 days after the date he
received the initial decision. 5 C.F.R. § 1201.114(e). Here, the initial decision
was issued on February 20, 2018, and sent to the appellant via U.S. mail the same2
day. ID at 1; IAF, Tab 21 at 1. The appellant does not allege that he did not
receive the initial decision within 5 days of its issuance; thus, his petition for
review was untimely filed by approximately 17 months. ID at 3; PFR File, Tab 1
at 9.
The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g). To
establish good cause for an untimely filing, the appellant must show that he
exercised due diligence or ordinary prudence under the particular circumstances
of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184 (1980).
In determining whether there is good cause, the Board considers the length of the
delay, the reasonableness of the excuse and showing of due diligence, whether the
appellant is proceeding pro se, and whether he has presented evidence of the
existence of circumstances beyond his control that affected his ability to comply
with the time limits or of unavoidable casualty or misfortune that similarly
shows a causal relationship to his inability to file a timely petition. See
Wyeroski v. Department of Transportation , 106 M.S.P.R. 7, ¶ 7, aff’d,
253 F. App’x 950 (Fed. Cir. 2007).
Here, we find that the appellant fails to show good cause for his delay in
filing. The appellant’s failure to address the timeliness of his petition for review
and the lack of evidence of circumstances beyond his control or of unavoidable
casualty or misfortune that prevented him from filing a timely petition for review
weigh against finding good cause. See Cabarloc v. Department of Veterans
Affairs, 112 M.S.P.R. 453, ¶¶ 9-10 (2009) (finding no good cause for the pro se
appellant’s 10-day delay in filing a petition for review when he failed to respond
to the Clerk’s notice regarding timeliness). Moreover, his 17-month delay in
filing is significant. See Smith v. Department of the Army , 110 M.S.P.R. 50, ¶ 10
(2008) (finding a 15-month delay significant); Dean v. U.S. Postal Service ,
100 M.S.P.R. 556, ¶ 5 (2005) (finding a 6 -month delay not minimal). 3
In his petition for review, the appellant alleges that he did not understand
the terms of the parties’ settlement agreement because “the union lawyer” failed
to explain the agreement to him. PFR File, Tab 1 at 3. To this end, it appears
that he thought he would receive “[m]edical [d]isability” payments pursuant to
the agreement. Id. The appellant’s allegations in this regard relate to information
of which he was aware, or could have been aware, at the time he entered into the
agreement; his apparent misunderstanding does not constitute good cause for his
delay. See Ford v. Department of Veterans Affairs , 99 M.S.P.R. 338, ¶ 7 (2005)
(explaining that the appellant’s claimed misunderstanding of, or dissatisfaction
with, the terms of a settlement agreement did not constitute good cause for her
filing delay).
The appellant also provides a copy of a supervisor’s statement and a copy
of the agency’s certification of reassignment and accommodation efforts, which
are dated June 22 and July 11, 2018, respectively. PFR File, Tab 1 at 5-8. These
documents suggest that, after the parties executed the settlement agreement, the
appellant unsuccessfully applied for disability retirement benefits. Id. However,
the appellant provides no explanation for the delay between the date of these
documents and his August 23, 2019 petition for review. Thus, we find that he
failed to show that he exercised due diligence in pursuing this matter. See Harjo
v. U.S. Postal Service , 43 M.S.P.R. 336, 338 (1990) (finding that the appellant
failed to exercise due diligence when he submitted documents dated 21 days4
before he filed his petition for review, and he provided no explanation for the
delay apart from stating that the documents were previously unavailable).2
Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the dismissal of his removal appeal as settled.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 In its response, the agency indicates that the appellant may not have learned that his
application for disability benefits was denied until April 2019. PFR File, Tab 4 at 8.
However, even assuming that the appellant did not receive the proffered documents or
was unaware of the denial of his application for disability retirement until April 2019,
we nonetheless find that he failed to exercise due diligence by waiting until
August 2019 to file his petition for review. See Graves v. Department of Veterans
Affairs, 82 M.S.P.R. 38, ¶ 12 (1999) (finding that the appellant failed to show good
cause for the late filing of his petition for review when he waited over 1 month after his
discovery of alleged evidence of fraud in the settlement before filing a pleading with
the Board).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain6
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
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 7
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Benson_MarkAT-0752-18-0072-I-1__Final_Order.pdf | 2024-06-26 | MARK BENSON v. DEPARTMENT OF THE NAVY, MSPB Docket No. AT-0752-18-0072-I-1, June 26, 2024 | AT-0752-18-0072-I-1 | NP |
1,146 | https://www.mspb.gov/decisions/nonprecedential/Prohaska_Keith_A_DC-0752-19-0747-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEITH ALLEN PROHASKA,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
DC-0752-19-0747-I-1
DATE: June 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Keith Allen Prohaska , Alexandria, Virginia, pro se.
Byron D. Smalley and Mary D. Antley , Esquire, Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his alleged involuntary resignation appeal for lack of jurisdiction and,
in the alternative, pursuant to the doctrine of laches. On petition for review, the
appellant disputes the administrative judge’s findings and conclusions regarding
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the involuntariness of his resignation and application of the doctrine of laches.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
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: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Prohaska_Keith_A_DC-0752-19-0747-I-1__Final_Order.pdf | 2024-06-26 | KEITH ALLEN PROHASKA v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DC-0752-19-0747-I-1, June 26, 2024 | DC-0752-19-0747-I-1 | NP |
1,147 | https://www.mspb.gov/decisions/nonprecedential/Seymour_Sharon_A_CH-0752-20-0425-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHARON A. SEYMOUR,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-0752-20-0425-I-1
DATE: June 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sharon A. Seymour , Chicago, Illinois, pro se.
Jason Rudie , Minneapolis, Minnesota, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her mixed-case appeal as untimely filed. 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to clarify the length of the filing delay, we AFFIRM the initial
decision.
BACKGROUND
Effective October 4, 2018, the appellant resigned from the position of
Accounts Receivable Technician. Initial Appeal File (IAF), Tab 10 at 25.
Thereafter, she filed a formal equal employment opportunity (EEO) complaint,
alleging that she had been subjected to a hostile work environment based on race
(Black) and retaliation for prior EEO activity, and that she had been forced to
resign due to the discrimination and reprisal. Id. at 13-24. The agency issued a
final agency decision (FAD) dated February 26, 2020, finding that the appellant
had not shown that she was subjected to the alleged harassment, retaliation, or
constructive discharge. Id. at 18-20. The FAD clearly notified the appellant of
her right to appeal her mixed-case constructive discharge complaint to the Board
within 30 days of her receipt of the decision. Id. at 21. The certificate of service
indicated that the agency transmitted the FAD via first class mail to the appellant
at the address she later provided to the Board in her initial appeal form. IAF,
Tab 1 at 3, Tab 10 at 24. 2
On June 12, 2020, the appellant filed the present appeal alleging that she
had been subjected to a constructive discharge. IAF, Tab 1 at 4. She
acknowledged that her appeal “should have been submitted prior to April 1,
2020,” but she “ask[ed] that [her] late request be considered because all the
resources [she] needed to submit the documents were closed due to the pandemic
of COVID-19.” Id. at 1. The appellant submitted a copy of the FAD and stated
that she had received it on February 26, 2020. Id. at 4, 10-21. She requested
“legal assistance” from the Board “due to the unavailability of legal
representation and [her] inability to complete this case alone.” Id. at 2. The
appellant maintained that she lacked legal counsel regarding her EEO complaint
and “as a result dates were incorrectly entered” and she was unaware that she
needed to submit proof of her claims until she received the FAD. Id. at 4.
The administrative judge issued an order on timeliness, notifying the
appellant that her mixed-case appeal appeared to be untimely filed by 66 days and
ordering her to submit evidence and argument showing that the appeal was timely
filed or that good cause existed for the delay. IAF, Tab 3 at 1-4. In her response,
the appellant maintained that she had “no idea” that the Board was operating
during the pandemic. IAF, Tab 6 at 4. She also claimed that she “had no way of
obtaining needed information and printing that info without the use of libraries
and other office service facilities that were also closed due to Covid.” Id. The
appellant asserted that she has been “declared disabled” by the Social Security
Administration in November 2018 for certain mental and physical conditions. Id.
She also set forth circumstances related to the pandemic from March to April
2020, including quarantining and obtaining testing for COVID-19, but maintained
that she had been given no medical evidence for her virtual medical appointment
and drive-up testing. Id. The appellant submitted various documents concerning
her purported disability status, related to Medicare, unemployment insurance, and
student loan forgiveness. IAF, Tab 6 at 6-16, Tab 9 at 4-6. She also submitted
documents related to her EEO complaint and evidence in support of her3
allegations. IAF, Tab 7 at 1-6; Tab 11 at 4-14; Tab 12 at 4-12; Tab 13 at 4-5.
The agency’s narrative response did not address the issue of timeliness. IAF,
Tab 10 at 4-5.
Without holding the requested hearing, the administrative judge dismissed
the appeal as untimely filed. IAF, Tab 15, Initial Decision (ID) at 1, 6. She
found that, applying the Board’s presumption that documents placed in the U.S.
mail are received within 5 days, the appellant received the FAD on March 2,
2020. ID at 4. Therefore, the June 10, 2020 initial appeal was filed more than
3 months after the 30-day deadline. Id. The administrative judge found that the
appellant failed to establish good cause for her untimely filing. ID at 4-6. She
found that the appellant’s lack of legal counsel did not excuse her untimeliness
and that the appellant presented no basis for her claims that she was unaware that
the Board was operational during the pandemic. ID at 5. Finally, the
administrative judge found that the appellant did not demonstrate how her
unspecified disability impaired her ability to timely file an appeal, particularly as
the appellant had filed her appeal “promptly” after finding out that the Board was
operational. Id.
The appellant has filed a petition for review, arguing that the administrative
judge did not take into consideration the unique circumstances surrounding her
appeal, specifically her high-risk medical condition during the pandemic.
Petition for Review (PFR) File, Tab 1 at 5-6. She also maintains that the agency
should not have sent out the FAD during the pandemic. Id. at 6. The appellant
requests that the Board waive the timeliness issue due to her high-risk medical
condition during the pandemic and submits for the first time on review a letter
from her medical provider. Id. at 8, 10. The agency has not filed a response to
the petition for review.4
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant bears the burden of proving by preponderant evidence2 that
she timely filed her appeal. 5 C.F.R. § 1201.56(b)(2)(i)(B). When, as here, an
employee timely files a mixed-case formal complaint of discrimination with her
employing agency regarding a matter that is within the Board’s jurisdiction, she
may file an appeal with the Board after receiving the FAD. See Miranne v.
Department of the Navy , 121 M.S.P.R. 235, ¶ 9 (2014). For an appeal to be
considered timely, it must be filed within 30 days after the employee receives the
agency’s resolution or final decision on the discrimination issue. 5 C.F.R.
§ 1201.154(b)(1). If any appellant fails to timely file her appeal, it will be
dismissed as untimely filed absent a showing of good cause for the filing delay.
5 C.F.R. § 1201.22(c). To establish good cause, a party must show that she
exercised due diligence or ordinary prudence under the particular circumstances
of the case. Marcantel v. Department of Energy , 121 M.S.P.R. 330, ¶ 10 (2014).
Here, the certificate of service on the FAD states that the agency served the
document on the appellant via first class mail on February 26, 2020. IAF, Tab 6
at 24. The agency served the appellant at the same address that she provided as
her address of record in the present appeal. IAF, Tab 1 at 3, Tab 6 at 24. The
administrative judge correctly found that the appellant received the FAD on
March 2, 2020, for purposes of the filing deadline. ID at 4; see Butler v.
Department of Veterans Affairs , 119 M.S.P.R. 112, ¶ 5 (2013) (stating that the
Board has recognized a presumption that documents placed in the mail are
received within 5 days when there is direct evidence, such as a certificate of
service, establishing when a document was deposited in the mail). Therefore, the
deadline for filing her initial appeal was April 1, 2020. See 5 C.F.R.
§ 1201.154(b)(1). The appellant acknowledged this filing deadline and her
receipt of the FAD in her initial appeal. IAF, Tab 1 at 1, 4. Because the
2 A preponderance of the 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. § 1201.4(q). 5
appellant did not file her appeal until June 10, 2020, her appeal was untimely
filed by 70 days. However, the administrative judge erroneously found that the
appellant filed her appeal “more than three months late” and “more than 90 days
after the deadline.” ID at 4. Regardless of the specific length of the filing delay,
the initial appeal was untimely filed by at least 2 months. Thus, we discern no
basis to disturb the administrative judge’s determination that the appeal was
untimely filed, and the appellant has not contested this finding on review. PFR
File, Tab 1 at 5-8.
On petition for review, the appellant challenges the administrative judge’s
finding that there was not good cause for her filing delay, and she argues that the
administrative judge did not appropriately consider her high-risk medical
condition during the COVID-19 pandemic. PFR File, Tab 1 at 5-8. Although the
appellant generally raised her purported disabling conditions in response to the
timeliness order, during the pendency of her appeal she attributed her filing delay
to her inability to access needed resources due to the pandemic and claimed that
she had “no idea” that the Board was operating at the time. IAF, Tab 1 at 1,
Tab 6 at 4. She also submits for the first time on review a letter from a physician
dated August 12, 2020, three days prior to the issuance of the initial decision. Id.
at 10. The letter states that, due to unspecified “chronic medical conditions,” the
appellant is considered high-risk in relation to the COVID-19 and that from “the
period of February 15th through April 15th, it would’ve been unadvisable for her
to patronize any public facilities unless absolutely necessary or alternative
options unavailable.” Id.
Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence
submitted for the first time with a petition for review absent a showing that it was
unavailable before the close of the record below despite the party’s due diligence.
See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980); see also Clay v.
Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016) (stating that the Board
generally will not consider a new argument raised for the first time on review6
absent a showing that it is based on new and material evidence). The medical
letter submitted by the appellant for the first time on review was written after the
close of the record and shortly before the issuance of the initial decision. PFR
File, Tab 1 at 10; IAF, Tab 3 at 3-5. Regarding the new evidence, the appellant
also states that she was only given 10 days by the administrative judge to obtain
evidence from her medical provider, who had cancelled her appointment in early
March 2020. PFR File, Tab 1 at 6. Although we do not find that the appellant
has adequately explained why it took her approximately 2 months to obtain the
letter from her physician, we have considered it, as it was unavailable before the
close of the record below.
Even considering the medical opinion, we find that the appellant has not
provided good cause for her filing delay. The appellant’s own statements and
evidence in response to the timeliness order below contradict her claim on review
that she was unable to timely file her appeal due to disabling medical conditions.
Despite the physician’s statement that it was “unadvisable for her to patronize
any public facilities” for the 2-month period beginning February 15, 2020, PFR
File, Tab 1 at 10, the unemployment insurance letter stated that the appellant’s
last day worked was March 1, 2020, and identified the reason she was
unemployed as “Laid-Off (Lack of Work),” IAF, Tab 9 at 6. Moreover, as noted
by the administrative judge, the appellant maintained that she submitted her
appeal “[a]s soon as [she] learned things were in operation.” ID at 5; IAF, Tab 6
at 4. Finally, the appellant provides no explanation why her medical conditions
prevented her from timely filing her appeal but allowed her to do so at a later date
during the continuing pandemic. Therefore, we agree with the administrative
judge that the appellant failed to show good cause for her filing delay. ID at 4-6;
see Marcantel, 121 M.S.P.R. 330, ¶ 10.
Accordingly, we deny the petition for review and affirm as modified the
initial decision.7
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
3 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.8
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on9
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or10
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
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FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Seymour_Sharon_A_CH-0752-20-0425-I-1__Final_Order.pdf | 2024-06-26 | SHARON A. SEYMOUR v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-0752-20-0425-I-1, June 26, 2024 | CH-0752-20-0425-I-1 | NP |
1,148 | https://www.mspb.gov/decisions/nonprecedential/Williams_Patricia_E_DC-0752-18-0841-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PATRICIA E.J. WILLIAMS,
Appellant,
v.
NATIONAL AERONAUTICS AND
SPACE ADMIN,
Agency.DOCKET NUMBER
DC-0752-18-0841-I-1
DATE: June 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Kenneth H. Goetzke, Jr. , and Rob Ayers , Hampton, Virginia, for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
sustained her removal for the misuse of Government resources and misuse of
official Government time. Generally, we grant petitions such as this one only in
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
supplement the administrative judge’s analysis of Charge 1, VACATE the
administrative judge’s findings on Charge 2, and FIND that the agency did not
prove Charge 2, misuse of official Government time, we AFFIRM the initial
decision.
¶2The appellant was a Management Support Assistant with the National
Aeronautics and Space Administration (NASA) at the Langley Research Center.
Initial Appeal File (IAF), Tab 5 at 47. Due to concerns that she was spending
excessive time looking at non-work-related emails on her Government computer
during work hours, the agency requested monitoring of her computer by the
Office of the Chief Information Officer (OCIO).2 Id. at 47, 77. The monitoring,
which occurred between March 6 and April 6, 2018, utilized software to take
screenshots of the appellant’s computer activity every 30 seconds. Id. An OCIO
report following a review of the screenshots found that “time was consistently
2 The specific team within OCIO that conducted the monitoring was the Center Incident
Response Team, or CIRT. IAF, Tab 5 at 77. Throughout the record below, the parties
typically refer to the monitoring and the subsequent reports produced by CIRT as
coming from the OCIO. These acronyms appear to be synonymous and thus, for
purposes of this appeal, we adopt the OCIO nomenclature. 2
being spent reviewing non-NASA related solicitations in e-mail.” Id. at 77. The
OCIO report noted that a majority of these emails, which included solicitations
and advertisements for online shopping sites, restaurants, coupons, and various
other newsletters, were being moved and categorized into various folders on her
Government email. Id. The OCIO report further noted that there were “also
observations of coupons and newsletters being printed to an [agency] printer.”
Id. In addition to the appellant’s use of her Government email, the OCIO report
found various images and conversations on the appellant’s hard drive that
appeared to be sexually explicit. Id. at 78.
¶3Upon review of the OCIO findings, the proposing official met with the
appellant on June 27, 2018, to discuss the results and provide her with an
opportunity to explain. Id. at 47. Two days later, a second OCIO monitoring was
requested and opened for a monitoring period retroactive from June 17 to July 20,
2018. Id. at 58. The second OCIO report again utilized software to take
screenshots of the appellant’s Government computer every 30 seconds. Id. The
second OCIO report found that, during the monitoring period, the appellant
visited over 60 different websites to unsubscribe from non-work-related email
newsletters. Id. It additionally found that the appellant printed seven
non-work-related documents to an agency printer. Id.
¶4On August 2, 2018, the agency proposed to remove the appellant based on
the following two charges: (1) misuse of Government resources, and (2) misuse
of official Government time. Id. at 47-55. In support of Charge 1, which had
four underlying specifications, the agency charged the appellant with exceeding
the limited personal use of her Government computer and with storing sexually
explicit content on her Government computer. Id. at 47-49. Under Charge 2, the
agency alleged that the appellant spent a minimal amount of time on work-related
tasks, and that she instead spent a substantial amount of time either reviewing
non-work-related items or being idle. Id. at 49-52. The appellant, through her
attorney, provided both an oral and a written response to the proposed removal.3
Id. at 34-36. Subsequently, the deciding official issued a notice of decision
sustaining the charged misconduct and the penalty of removal. Id. at 24-30.
¶5The appellant timely filed an appeal with the Board, claiming that the
agency did not prove all of its charges and, in the alternative, that the penalty of
removal was excessive. IAF, Tab 1 at 6. Thereafter, the administrative judge
issued an initial decision on the written record affirming the agency’s action.3
IAF, Tab 31, Initial Decision (ID). He sustained three of the four specifications
underlying Charge 1, and thus sustained the charge. ID at 29. He additionally
sustained Charge 2, misuse of official Government time. ID at 29-35 . The
administrative judge found a nexus between the adverse action and the efficiency
of the service. Id. He additionally found that the deciding official properly
considered the relevant mitigating and aggravating factors and that the penalty of
removal was within the tolerable bounds of reasonableness. ID at 41.
Accordingly, he sustained the removal action. ID at 42.
¶6The appellant has filed a petition for review, and the agency has responded.
Petition for Review (PFR) File, Tabs 1, 4. The appellant argues that the agency
failed to demonstrate why she received a more severe penalty than similarly
situated comparators. PFR File, Tab 1 at 5-7. She additionally argues that the
penalty of removal is excessive, and that the agency failed to properly consider
and weigh all of the relevant mitigating factors. Id. at 6-8. Finally, the appellant
argues that the agency denied her minimum due process when the deciding
official relied on material ex parte communications in sustaining her removal.4
Id. at 8-12.
3 During a pre-hearing conference, the appellant notified the parties that she wished to
waive her right to a hearing. IAF, Tab 25 at 1.
4 The parties do not challenge the administrative judge’s finding that the agency
established a nexus between the adverse action and the efficiency of the service, and we
see no reason to disturb that finding on review.4
DISCUSSION OF ARGUMENTS ON REVIEW
We modify the administrative judge’s analysis concerning the four specifications
underlying Charge 1, but still conclude that the agency met its burden of proof
regarding this charge.
¶7The agency’s proposed removal listed four specifications under its first
charge, misuse of Government resources. IAF, Tab 5 at 47-49. Having sustained
specifications 1, 2, and 3, the administrative judge sustained the first charge.
ID at 29. While we agree that the agency proved this charge, we modify the
administrative judge’s analysis as set forth below.
The agency proved specification 1 by preponderant evidence.
¶8Specification 1 charged the appellant with consistently receiving non -NASA
email solicitations to her Government email address, organizing them into various
Outlook folders labeled by topic, and printing numerous non -work-related
documents on an agency printer. IAF, Tab 5 at 47-48. According to the agency,
this exceeded the limited personal use afforded to employees as set forth in the
agency’s policies. Id. Although the agency referenced the amount of time the
appellant spent performing non-NASA related work, we construe the essence of
specification 1 to be the appellant’s excessive receipt of non-NASA emails and
excessive printing. The amount of time she allegedly spent performing
non-NASA work is the subject of Charge 2. Id. at 49. An agency must prove
only the essence of a specification, and need not prove each factual element
contained within the specification. See Prather v. Department of Justice ,
117 M.S.P.R. 137, ¶ 29 (2011) (finding an agency met its burden by proving the
essence of a specification without requiring it prove each fact set forth in the
specification).
¶9Under this construction, the administrative judge erred in relying on the
amount of time the appellant spent reviewing non-NASA emails to sustain
specification 1. Despite correctly sustaining the specification, the administrative
judge cited the OCIO report for the notion that reviewing the non-NASA emails5
filled “multiple hours of her work day” and “became an overwhelming obsession
that eclipsed her other duties.” ID at 18. Nonetheless, the agency proved that the
appellant’s receipt of non-NASA emails exceeded the limited personal use
warranted for a Government employee.
¶10The first OCIO report noted that the appellant received a large amount of
non-NASA emails sent to her NASA email account, including receiving upwards
of 50 non-NASA emails on one of the days monitored. IAF, Tab 5 at 79. The
agency’s policy directive LAPD 2810.1G(5) states that limited personal use of
Government email is authorized, but “extensive personal use of Government
resources is not appropriate.” IAF, Tab 7 at 30-31. Although the policy does not
further define “extensive personal use,” we find that the appellant’s consistent
receipt of a large number of non-NASA emails, which had no official use, to her
work email exceeded the limited personal use afforded to Government employees.
As such, the agency proved by preponderant evidence that the appellant’s conduct
violated the policy and thus, specification 1 is sustained.
The agency failed to prove specification 2.
¶11The agency’s second specification charged the appellant with misusing
Government resources by storing sexually explicit pictures on her Government
laptop. IAF, Tab 5 at 48. The pictures in question are images of the appellant
with her shirt open and breasts exposed. Id., IAF, Tab 7 at 62-63. However, in
sustaining specification 2, the administrative judge relied on other images and
conversations that are the subject of specifications 3 and 4. ID at 22-23.
¶12According to the appellant, the pictures described in specification 2 were
not pornographic in nature but rather reflected concerns she had following breast
surgery. IAF, Tab 5 at 38-39. In refuting this explanation, the administrative
judge incorrectly referred to Skype conversations, which were the subject of
specification 3, and other pictures on her computer not of the appellant, which6
were the subject of specification 4.5 ID at 22-23. It was error for the
administrative judge to consider conversations and pictures beyond those relevant
to specification 2.
¶13Reviewing only the relevant pictures, the agency failed to prove
specification 2 by preponderant evidence. In support of this specification, the
agency cited to agency policy NPD 2540.1H at attachment C.2.6, which defines
the misuse of Government equipment as the storing of materials that depict
sexually explicit conduct, as defined by 18 U.S.C. § 2256, “or other sexually
explicit or sexually oriented materials.” IAF, Tab 5 at 48, Tab 7 at 27. Under
section 2256, sexually explicit conduct includes sexual intercourse, bestiality,
masturbation, sadistic or masochistic abuse, or the lascivious exhibition of the
anus, genitals, or pubic area of any person. 18 U.S.C. § 2256(2)(A). The images
in question are four nearly identical pictures depicting the appellant’s breasts in a
straight-forward manner, with no overtly sexually suggestive features or posing.
IAF, Tab 7 at 62-63. They do not depict any of the statutorily-defined categories
of sexually explicit conduct. Nor do we find, given the appellant’s reasonable
explanation that the pictures followed concerns from her breast surgery, that these
pictures constituted sexually explicit or oriented materials as contemplated under
the agency’s policy. Accordingly, the agency has failed to prove that the storing
of these particular pictures on her Government computer constituted misuse of
Government resources, as charged under the specification. Therefore,
specification 2 is not sustained.
The agency proved specification 3 by preponderant evidence.
¶14Specification 3 involved Skype conversations from 2011 which were
sexually explicit and suggestive. IAF, Tab 5 at 48-49. This specification
5 The administrative judge incorrectly identified the woman featured in the pictures at
IAF, Tab 7 at 42 as the appellant, and referenced her “pursed lips, as if sending a kiss,”
to conclude that the picture was not medical in nature but rather sexual. ID at 23.
However, these are not the pictures referenced in specification 2 and this woman is not
the appellant. 7
similarly charged the appellant with violating NPD 2540.H at attachment C.2.6 by
storing materials depicting sexually explicit conduct that were contained within
the Skype conversations. Id. An agency is required to prove only the essence of
a specification, and need not prove each of the facts supporting the specification.
Prather, 117 M.S.P.R. 137, ¶ 29.
¶15The essence of specification 3 is the appellant’s storing of sexually explicit
materials on her Government computer. She admitted to having the sexually
explicit images on her computer, but noted that it was unintentional, that she did
not know they were there until the OCIO report, and that the storage of these
materials was an inadvertent result of her transferring data from her phone,
through her Government computer, onto the cloud. IAF, Tab 5 at 34, 38, Tab 27
at 24-25. The administrative judge appeared to have construed the specification
to constitute an allegation of inappropriately plugging the appellant’s personal
cell phone into her Government computer. ID at 24-27. Noting that the data
transfer’s inclusion of inappropriate content was an “unfortunate consequence,”
the administrative judge nonetheless sustained the specification because he found
that the appellant connected her personal phone to her Government computer. Id.
While the administrative judge misconstrued the specification, any such error was
harmless because it did not prejudice the appellant’s substantive rights. See
Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (finding
adjudicatory error which is not prejudicial to a party’s substantive rights provides
no basis for reversal of the initial decision). The Skype conversations referenced
in this specification clearly describe sexually explicit conduct as defined by
18 U.S.C. § 2256, and thus, the agency proved the appellant to be in violation of
the policy. IAF, Tab 7 at 64-73. Accordingly, specification 3 is sustained.6
6 Even if the agency charged the appellant with inappropriately plugging her personal
cell phone into her Government computer, it failed to cite to, and we cannot find, any
agency policy which explicitly prohibits this conduct. This is also true for
specifications 2 and 4, which similarly reference the appellant plugging her personal
cell phone into her Government computer. 8
The agency proved specification 4 by preponderant evidence.
¶16Specification 4 involved sexually explicit images and personal
conversations over Twitter and Facebook Messenger from an individual identified
as the appellant’s son, which were created between 2013 and 2014. IAF, Tab 5
at 49. This specification similarly charged the appellant with violating agency
policy by storing sexually explicit materials on her Government computer from
when she plugged in her personal device. Id. The administrative judge again
misconstrued this specification when he determined it to constitute an allegation
of inappropriately plugging her personal cell phone into her Government
computer. ID at 29. He did not sustain the specification however, because he
found that the appellant was unaware of the data that was transferred to her
Government computer when the unauthorized device was plugged in. Id. This
was erroneous, as knowledge is not a requisite element of the charge, and the
administrative judge failed to consider whether the storing of sexually explicit
materials violated agency policy.
¶17The essence of specification 4 is that the appellant misused Government
resources by storing sexually explicit materials on her computer when she
plugged her personal device into her Government computer. IAF, Tab 5 at 49.
The pictures referenced in specification 4 clearly depict sexually explicit conduct
as defined by 18 U.S.C. § 2256. IAF, Tab 7 at 42-43. The storing of such
sexually explicit materials violated agency policy NPD 2540.H at attachment
C.2.6. Id. at 27. As such, the agency proved by preponderant evidence that the
appellant’s conduct violated the policy and thus, specification 4 is sustained.
¶18As set forth above, the agency proved specifications 1, 3, and 4 by
preponderant evidence. An agency’s proof of one or more, but not all, of the
supporting specifications is sufficient to sustain the charge as a whole. Alvarado
v. Department of the Air Force , 103 M.S.P.R. 1, ¶ 16 (2006), aff’d, 626 F. Supp.
2d 1140 (D.N.M. 2009), aff’d, 490 F. App’x 932 (10th Cir. 2012). Accordingly,
Charge 1 is sustained. 9
The agency failed to meet its burden of proof regarding Charge 2, misuse of
official Government time.
¶19Under Charge 2, the agency charged the appellant with spending a minimal
amount of time on work-related tasks, and instead spending a substantial amount
of time either reviewing non-work-related items or otherwise being idle. IAF,
Tab 5 at 49-50. As evidence for the lack of work the appellant allegedly
performed, the agency cited to the first OCIO report, which compiled screenshots
of every 30 seconds of the appellant’s monitor to review what work she was
performing. Id. at 49, 77. In order to quantify the amount of time spent
performing non-work-related tasks, the agency tasked the Office of Human
Capital Management (OHCM) with reviewing the thousands of screenshots
captured by the OCIO report. IAF, Tab 26 at 22-23. OHCM created a
minute-by-minute spreadsheet that labeled the type of work performed by the
appellant in a given minute. IAF, Tab 8 at 4-35. The agency relied on this
spreadsheet in charging the appellant with spending between 1 and 4 hours each
day during the monitoring period performing non-work-related tasks. IAF, Tab 5
at 50-52. The record below contains only a select handful of the actual
screenshots gathered by the OCIO report. IAF, Tab 6.
¶20The administrative judge found that the appellant’s arguments failed to
rebut the findings of the OHCM spreadsheet analyzing the OCIO report. ID
at 34. Specifically, the appellant argued that the OCIO report failed to accurately
capture how long she spent reviewing various non-work-related items, when other
work-related items were simultaneously open on her computer. IAF, Tab 27 at 8.
The administrative judge provided limited reasoning for his decision to reject the
appellant’s argument. ID at 34-35. Rather, he merely deemed the OHCM
spreadsheet as valid and concluded that the appellant spent “literally hours of
computer time engaged in non-productive, non -official activity.” ID at 35. As
set forth below, the minute-by-minute labeling of the spreadsheet is inaccurate.
Thus, it was an error to rely on the OHCM spreadsheet as evidence of Charge 2.10
In the absence of OHCM’s spreadsheet, the agency’s proffered evidence in
support of Charge 2 is insufficient to meet its burden. As such, we disagree with
the administrative judge’s decision to sustain this charge.
¶21The individual within OHCM who created the spreadsheet stated that she
established criteria for distinguishing a particular minute as work-related or
non-work-related. IAF, Tab 26 at 24. She explicitly stated that “if both work and
non-work related images were engaged then [she] reflected the activity as work
related.” Id. However, a cross-referencing between the limited screenshot
images provided and the spreadsheet categorizing each minute shows inaccurate
labeling of particular minutes based on this OHCM employee’s criteria. For
example, on March 8, 2018, at 8:59 a.m., the spreadsheet lists the appellant as
performing non-work-related tasks. IAF, Tab 8 at 6. However, the actual
screenshot of the appellant’s dual monitor clearly shows her having open a P Card
Request Form and a Supply Request Form, which are work-related items. IAF,
Tab 6 at 7. According to the OHCM individual’s criteria, this minute, containing
both work-related and non-work-related images, should have been reflected as
work-related activity. It was not. A review of other screenshots provided showed
similarly inaccurate labeling. Compare IAF, Tab 7 at 5, with Tab 8 at 31. Given
the limited screenshots in the record and the inaccuracy of the spreadsheet
compared to the screenshots available, we find that the spreadsheet is of little
probative value. Thus, the only remaining evidence provided by the agency in
support of Charge 2 are the OCIO reports themselves.
¶22The first OCIO report found that the appellant’s time “was consistently
being spent reviewing non-NASA related solicitations in e-mail,” but it did not
quantify the total amount of time spent reviewing non-work-related items.
IAF, Tab 5 at 77. A review of 4 days specifically found the appellant’s viewing
of non-work-related emails to be consistent. Id. at 79. However, as the
previously discussed screenshots demonstrate, the appellant could and did have
open both non-work-related emails while simultaneously performing work-related11
tasks. Because the first OCIO report does not quantify the amount of time the
appellant spent performing non-work-related tasks, it does not prove the amount
of time the appellant spent performing such non-work-related tasks. The second
OCIO report similarly does not support Charge 2. In fact, it supports an opposite
conclusion, finding that the appellant performed “[c]onsistent NASA-related work
involving p-card purchasing, documentation, booking of NASA employee
conferences and e-mail correspondence.” Id. at 59. Accordingly, we vacate the
administrative judge’s determination that the agency proved Charge 2 and find
that the agency failed to meet its burden of proof on this charge.
Based on the sustained charge, the penalty of removal is within the maximum
reasonable penalty.
¶23When not all of an agency’s charges are sustained, as here, the Board will
consider carefully whether the sustained charges merit the penalty imposed by the
agency. Suggs v. Department of Veterans Affairs , 113 M.S.P.R. 671, ¶ 6 (2010)
aff’d, 415 F. App’x 240 (Fed. Cir. 2011). Indeed, the Board may mitigate the
agency’s penalty to the maximum reasonable penalty so long as the agency has
not indicated in either its final decision or in proceedings before the Board that it
desires that a lesser penalty be imposed on fewer charges. Id. However, in doing
so, the Board may not disconnect its penalty determination from the agency’s
managerial will and primary discretion in disciplining employees. Id. The Board
has articulated factors to be considered in determining the propriety of a penalty,
including the nature and seriousness of the offense, consistency of the penalty
with those imposed upon other employees for the same or similar offenses, and
the consistency of the penalty with any applicable agency table of penalties.
Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981).
The appellant has failed to establish that other employees were
similarly situated to her for purposes of the penalty.
¶24On review, the appellant alleges that, when an appellant shows that
similarly situated employees are charged with similar behavior, the agency must12
prove a legitimate reason for the difference in their penalties, which it did not do
here. PFR File, Tab 1 at 5-7. She contends that, because the agency failed to
provide a legitimate reason for the difference in penalties, her penalty should be
mitigated. Id. at 7.
¶25It is well-settled that among the factors an agency should consider in setting
the penalty for misconduct is the “consistency of the penalty imposed with those
imposed upon other employees for the same or similar offenses.” Douglas,
5 M.S.P.R. at 305. Here, the other employees cited by the appellant are not
proper comparators. As the Board held in Singh v. U.S. Postal Service , in most
cases, the universe of potential comparators should be limited to those employees
whose misconduct and/or other circumstances closely resemble those of the
appellant. Singh, 2022 MSPB 15, ¶ 13. There must be a close connection
between the misconduct or some other factor in order for an employee from
another work unit or supervisory chain to be a proper comparator for purposes of
considering the consistency of the penalty. Id.
¶26Here, the agency listed several comparator employees in determining the
appropriate penalty. IAF, Tab 8 at 36-42. The employees listed span numerous
work units, supervisory levels, and General Schedule levels. Id. Although
charged with similar offenses, there is nothing about the charged misconduct
amongst the employees to make them proper comparators. Cf. Williams v. Social
Security Administration , 586 F.3d 1365, 1368-69 (Fed. Cir. 2009) (finding the
employees comparators when, despite their different supervisors, the agency’s
discipline stemmed from both employees’ involvement in the same tax fraud
scheme). As such, the agency was not required to provide any reasoning for the
difference in treatment between the appellant and these alleged comparators.
Weighing the relevant Douglas factors, the penalty of removal is
reasonable.
¶27In evaluating whether a penalty is reasonable, the Board will consider, first
and foremost, the nature and seriousness of the misconduct and its relation to the13
employee’s duties, position, and responsibilities, including whether the offense
was intentional or frequently repeated. Von Muller v. Department of Energy ,
101 M.S.P.R. 91, ¶ 23, aff’d, 204 F. App’x 17 (Fed. Cir. 2006), and modified on
other grounds by Lewis v. Department of Veterans Affairs , 113 M.S.P.R. 657
(2010), overruled on other grounds by Singh , 2022 MSPB 15.
¶28Here, the sustained offense is the misuse of Government resources. This is
undoubtedly a serious offense. See Martin v. Department of Transportation ,
103 M.S.P.R. 153, ¶ 13 (2006) aff’d, 224 F. App’x 974 (Fed. Cir. 2007)
(upholding agency’s penalty for misuse of Government resources when the
appellant used his Government computer for personal use and had sexually
explicit material on his hard drive); Cobb v. Department of the Air Force ,
57 M.S.P.R. 47, 53 (1993) (upholding removal for misuse of Government
resources based on excessive use of Government computer and printer). Indeed,
the excessive receipt of non-work-related emails was intentional, frequently
repeated, and occurred while the appellant was on duty.7 IAF, Tab 5 at 47-48.
Although the appellant’s performance rating remained satisfactory, as noted by
the proposing official, her most recent evaluation included notations of negative
customer feedback regarding completion of tasks just at or past deadlines. Id.
at 52, 74. Furthermore, the penalty of removal is within the range of penalties for
a first offense of this type in the agency’s table of penalties. IAF, Tab 7 at 84-85;
see Phillips v. Department of the Interior , 95 M.S.P.R. 21, ¶ 17 (2003)
(recognizing that an agency’s table of penalties is a factor to be considered in
7 The appellant alleges that some of the sustained misconduct underlying Charge 1 was
unintentional; specifically, she contends that the storage of the sexually explicit
materials on her Government computer was the inadvertent result of her transferring
data from her phone, through her Government computer, onto the cloud. IAF, Tab 5
at 34, 38, Tab 27 at 24-25. We have considered the appellant’s contention as it relates
to the reasonableness of the penalty. See Von Muller, 101 M.S.P.R. 91, ¶ 23 (stating
that, in evaluating whether a penalty is reasonable, the Board will consider whether the
offense was intentional). We nonetheless find that removal is reasonable under the
circumstances. Among other things, and as described above, the appellant’s misconduct
under another sustained specification was frequent and intentional.14
assessing the reasonableness of a penalty), aff’d, 131 F. App’x 709 (Fed. Cir.
2005). In assessing the appellant’s potential for rehabilitation, we find that it
does not constitute a mitigating factor under the circumstances in this case.
While the second monitoring report noted that the appellant was observed
unsubscribing from non-work-related newsletters, she also continued to print
personal items to an agency printer and typed mocking messages to the
monitoring staff during the second monitoring period, thus cutting against her
rehabilitation potential. IAF, Tab 5 at 27-28, 58. Despite the presence of some
mitigating factors, including the appellant’s 32 years of satisfactory service as a
nonsupervisor and her lack of prior discipline, we find that the seriousness of the
offense outweighs these factors. Thus, we find that the penalty of removal is
within the tolerable bounds of reasonableness.
The appellant has failed to establish that her due process rights were violated.
¶29On review, the appellant argues that the agency violated her due process
rights when the deciding official considered ex parte communications in deciding
on the appropriate penalty. PFR File, Tab 1 at 8-12. Specifically, the appellant
alleges that the deciding official considered her declining relationship with her
supervisor in reaching the conclusion to remove the appellant. Id. at 10-11. The
appellant raised this argument below, but the administrative judge failed to
address it. IAF, Tab 27 at 17-20. Although his failure to address the argument
was an error, it was harmless, as the appellant’s due process rights were not
violated. See Panter, 22 M.S.P.R. at 282 (finding adjudicatory error which is not
prejudicial to a party’s substantive rights provides no basis for reversal of the
initial decision).
¶30Pursuant to Ward v. U.S. Postal Service , 634 F.3d 1274, 1279-80 (Fed. Cir.
2011), and Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368,
1376-77 (Fed. Cir. 1999), a deciding official violates an employee’s due process
rights when she relies upon new and material ex parte information as a basis for
her decision on the merits of a proposed charge or the penalty to be imposed. An15
employee’s due process right to notice extends to both ex parte information
provided to a deciding official and to information known personally to the
deciding official if she considered it in reaching her decision without previously
disclosing it to the appellant. Mathis v. Department of State , 122 M.S.P.R. 507,
¶ 6 (2015). However, Ward, Stone, and their progeny recognize that not all ex
parte communications rise to the level of due process violations; rather, only ex
parte communications that introduce new and material information to the deciding
official are constitutionally infirm. Id. In Stone, the Federal Circuit identified
the following factors to be used to determine if ex parte information is new and
material: (1) whether the ex parte information introduced cumulative, as opposed
to new, information; (2) whether the employee knew of the information and had
an opportunity to respond; and (3) whether the communication was “of the type
likely to result in undue pressure on the deciding official to rule in a particular
manner.” Stone, 179 F.3d at 1377.
¶31Here, in the reply meeting to the notice of proposed removal, the deciding
official asked the appellant if it would be a challenge to return to the same job
with the same supervisor if her removal was not sustained. IAF, Tab 5 at 36. The
appellant responded “honestly, yes,” and continued to say that while she is able to
work in that environment, she does not want to, and that she would keep
enduring. Id. The deciding official, in her written declaration, referenced this
line of questioning for the notion that the appellant did not sufficiently express
remorse because her apology was based on a qualifier: “that she would tolerate
the work environment until she found another opportunity instead of
acknowledging her role in repairing the relationship [with her supervisor] and
changing her behavior.” IAF, Tab 26 at 19.
¶32The Board has held that a deciding official does not violate an employee’s
rights when she considers matters the employee raised in her response to the
proposed action and then rejects those arguments in reaching a decision. Mathis,
122 M.S.P.R. 507, ¶ 9. We find that the deciding official did not consider any16
“new” information in assessing whether the appellant expressed remorse for her
conduct, rather she properly drew conclusions based on the information presented
to her. Thus, the appellant’s due process rights were not violated.
NOTICE OF APPEAL RIGHTS8
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
8 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.17
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on18
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or19
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 20
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.21 | Williams_Patricia_E_DC-0752-18-0841-I-1__Final_Order.pdf | 2024-06-26 | PATRICIA E.J. WILLIAMS v. NATIONAL AERONAUTICS AND SPACE ADMIN, MSPB Docket No. DC-0752-18-0841-I-1, June 26, 2024 | DC-0752-18-0841-I-1 | NP |
1,149 | https://www.mspb.gov/decisions/nonprecedential/Baba_Derek_Y_SF-0831-20-0157-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEREK Y. BABA,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0831-20-0157-I-1
DATE: June 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Derek Y. Baba , Honolulu, Hawaii, pro se.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction following the Office of Personnel
Management (OPM)’s rescission of its reconsideration decision. On petition for
review, the appellant argues that OPM has treated him unfairly with regard to 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
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
retirement annuity. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
It is well settled that if OPM completely rescinds a reconsideration
decision, its rescission divests the Board of jurisdiction over an appeal of the
reconsideration decision at issue and the appeal must be dismissed. Frank v.
Office of Personnel Management , 113 M.S.P.R. 164, ¶ 7 (2010); Rorick v. Office
of Personnel Management , 109 M.S.P.R. 597, ¶ 5 (2008). Here, OPM asserts that
it has rescinded its reconsideration decision and will issue a new decision “with
all the rights of due process.” Initial Appeal File, Tab 10 at 4-5. The appellant
has not disputed the accuracy of OPM’s statements, nor has he identified any
other basis for finding that the Board retains jurisdiction.
If the appellant is dissatisfied with a subsequent OPM reconsideration
decision regarding his retirement benefits, he may file an appeal of that decision
to the Board. See 5 U.S.C. § 8347(d)(1); 5 C.F.R. § 831.110. Any future appeal
must be filed within the time limits set forth in the Board’s regulations. See
5 C.F.R. § 1201.22.2
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
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.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Baba_Derek_Y_SF-0831-20-0157-I-1__Final_Order.pdf | 2024-06-26 | DEREK Y. BABA v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0831-20-0157-I-1, June 26, 2024 | SF-0831-20-0157-I-1 | NP |
1,150 | https://www.mspb.gov/decisions/nonprecedential/Lewis_Stephen_A_DC-0731-20-0119-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEPHEN ANTHONY LEWIS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0731-20-0119-I-1
DATE: June 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stephen Anthony Lewis , Hampton, Virginia, pro se.
Darlene M. Carr , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained the agency’s suitability action. 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review.2 Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 We have considered the appellant’s contention that the administrative judge erred in
stating that he filed taxes “in 2014.” Petition for Review File, Tab 1 at 3; Initial Appeal
File (IAF), Tab 15, Initial Decision at 6. While the appellant himself has stated that he
filed taxes for 2014, IAF, Tab 9 at 167, his point seems to be that he did not file taxes
in 2014, but instead filed his 2014 taxes retroactively in 2018, id. at 147. To the extent
the administrative judge erred on this point, his error is not material to the outcome of
the appeal. See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984 )
(holding that an adjudicatory error that is not prejudicial to a party’s substantive rights
provides no basis for reversal of an initial decision) .
3 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.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
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: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Lewis_Stephen_A_DC-0731-20-0119-I-1__Final_Order.pdf | 2024-06-26 | STEPHEN ANTHONY LEWIS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0731-20-0119-I-1, June 26, 2024 | DC-0731-20-0119-I-1 | NP |
1,151 | https://www.mspb.gov/decisions/nonprecedential/Searcy_AndrewAT-4324-21-0238-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW SEARCY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-4324-21-0238-I-1
DATE: June 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew Searcy , Peachtree City, Georgia, pro se.
Appeals Officer , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his appeal under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C.
§§ 4301-4335) (USERRA) as barred by collateral estoppel. For the reasons set
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
forth below, the appellant’s petition for review is DISMISSED for lack of a
substitute party. 5 C.F.R. § 1201.35.
¶2On January 22, 2021, the appellant filed a Board appeal, alleging that the
Board has jurisdiction under USERRA to adjudicate his due process violation
claim. Initial Appeal File (IAF), Tab 6 at 5, 7, 10-11. The administrative judge
issued an initial decision dismissing the appeal as barred by collateral estoppel.
IAF, Tab 9, Initial Decision (ID) at 2-3. The appellant filed a petition for review
on March 12, 2021. Petition for Review (PFR) File, Tab 1. While the petition for
review was pending before the Board, the appellant’s spouse advised that the
appellant died on December 27, 2023.
¶3Pursuant to 5 C.F.R. § 1201.35(a), if an appellant dies during the pendency
of his appeal, the processing of his appeal will only be completed upon the
substitution of a proper party. See, e.g., Estate of Kravitz v. Department of the
Navy, 110 M.S.P.R. 97, ¶ 2 n.1 (2008) (finding that substitution was proper where
an appellant passed away while his appeal was pending and the appellant’s
counsel submitted a motion for the widow to be a substitute party); Cole v.
Department of Veterans Affairs , 77 M.S.P.R. 434, 434 n.1 (1998) (granting a
motion to substitute the administrator of an appellant’s estate, where the appellant
died as his petition for review was pending). The regulatory deadline to file a
motion to substitute is 90 days after the death of an appellant and can be waived
with a showing of good cause. 5 C.F.R. § 1201.35(b).
¶4On April 9, 2024, the Office of the Clerk of the Board issued an order to the
parties advising that the appellant’s petition for review may be dismissed if a
proper substitution of party is not made. PFR File, Tab 9. The order, which the
Board served via U.S. mail to the appellant’s address of record, directed any party
seeking to substitute for the appellant to provide argument and evidence on
(1) how the filer is a proper substitute; (2) how the interests of the appellant did
not terminate with his death. Id. at 1-2. No party responded to the order.2
¶5In accordance with 5 C.F.R. § 1201.35(a), we dismiss the instant petition
for review for lack of a substitute party. This is the Board’s final decision
regarding the appellant’s petition for review. The initial decision remains the
final decision of the Board concerning the appellant’s USERRA appeal.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on4
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Searcy_AndrewAT-4324-21-0238-I-1__Final_Order.pdf | 2024-06-26 | ANDREW SEARCY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-4324-21-0238-I-1, June 26, 2024 | AT-4324-21-0238-I-1 | NP |
1,152 | https://www.mspb.gov/decisions/nonprecedential/Searcy_AndrewAT-3443-21-0202-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW SEARCY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-3443-21-0202-I-1
DATE: June 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew Searcy , Peachtree City, Georgia, pro se.
Appeals Officer , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of the Office of Personnel Management (OPM)’s
October 1, 2020 letter declining to file an amicus brief on his behalf. For the
reasons set forth below, the appellant’s petition for review is DISMISSED for
lack of a substitute party. 5 C.F.R. § 1201.35.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
¶2On January 22, 2021, the appellant filed a Board appeal indicating that
OPM’s October 1, 2020 letter declining to file an amicus brief on his behalf was
the matter he was appealing. Initial Appeal File (IAF), Tab 1 at 5-6, Tab 3 at 4,
Tab 4 at 5. The administrative judge issued an initial decision dismissing the
appeal for lack of jurisdiction. IAF, Tab 5, Initial Decision (ID) at 1-2. The
appellant filed a petition for review on February 22, 2021. Petition for Review
(PFR) File, Tab 1. While the petition for review was pending before the Board,
the appellant’s spouse advised that the appellant died on December 27, 2023.
¶3Pursuant to 5 C.F.R. § 1201.35(a), if an appellant dies during the pendency
of his appeal, the processing of his appeal will only be completed upon the
substitution of a proper party. See, e.g., Estate of Kravitz v. Department of the
Navy, 110 M.S.P.R. 97, ¶ 2 n.1 (2008) (finding that substitution was proper where
an appellant passed away while his appeal was pending and the appellant’s
counsel submitted a motion for the widow to be a substitute party); Cole v.
Department of Veterans Affairs , 77 M.S.P.R. 434, 434 n.1 (1998) (granting a
motion to substitute the administrator of an appellant’s estate, where the appellant
died as his petition for review was pending). The regulatory deadline to file a
motion to substitute is 90 days after the death of an appellant and can be waived
with a showing of good cause. 5 C.F.R. § 1201.35(b).
¶4On April 9, 2024, the Office of the Clerk of the Board issued an order to the
parties advising that the appellant’s petition for review may be dismissed if a
proper substitution of party is not made. PFR File, Tab 12. The order, which the
Board served via U.S. mail to the appellant’s address of record, directed any party
seeking to substitute for the appellant to provide argument and evidence on
(1) how the filer is a proper substitute; (2) how the interests of the appellant did
not terminate with his death. Id. at 1-2. No party responded to the order.
¶5In accordance with 5 C.F.R. § 1201.35(a), we dismiss the instant petition
for review for lack of a substitute party. This is the Board’s final decision2
regarding the appellant’s petition for review. The initial decision remains the
final decision of the Board concerning the appellant’s appeal.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
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.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Searcy_AndrewAT-3443-21-0202-I-1__Final_Order.pdf | 2024-06-26 | ANDREW SEARCY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-3443-21-0202-I-1, June 26, 2024 | AT-3443-21-0202-I-1 | NP |
1,153 | https://www.mspb.gov/decisions/nonprecedential/Searcy_AndrewAT-3330-21-0237-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW SEARCY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-3330-21-0237-I-1
DATE: June 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew Searcy , Peachtree City, Georgia, pro se.
Appeals Officer , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his appeal under the Veterans Employment Opportunities Act of 1998
(VEOA) for lack of jurisdiction. For the reasons set forth below, the appellant’s
petition for review is DISMISSED for lack of a substitute party. 5 C.F.R.
§ 1201.35.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
¶2On January 22, 2021, the appellant filed a Board appeal, alleging that a due
process violation resulted in his termination and the depletion of his Civil Service
Retirement System account in 1977. Initial Appeal File (IAF), Tab 1 at 3, Tab 6
at 5, 7. The administrative judge noted that the appellant appeared to be raising a
VEOA claim and issued an initial decision dismissing the appeal for lack of
jurisdiction. IAF, Tab 7, Initial Decision (ID) at 1-2. The appellant filed a
petition for review on March 13, 2021. Petition for Review (PFR) File, Tab 2.
While the petition for review was pending before the Board, the appellant’s
spouse advised that the appellant died on December 27, 2023.
¶3Pursuant to 5 C.F.R. § 1201.35(a), if an appellant dies during the pendency
of his appeal, the processing of his appeal will only be completed upon the
substitution of a proper party. See, e.g., Estate of Kravitz v. Department of the
Navy, 110 M.S.P.R. 97, ¶ 2 n.1 (2008) (finding that substitution was proper where
an appellant passed away while his appeal was pending and the appellant’s
counsel submitted a motion for the widow to be a substitute party); Cole v.
Department of Veterans Affairs , 77 M.S.P.R. 434, 434 n.1 (1998) (granting a
motion to substitute the administrator of an appellant’s estate, where the appellant
died as his petition for review was pending). The regulatory deadline to file a
motion to substitute is 90 days after the death of an appellant and can be waived
with a showing of good cause. 5 C.F.R. § 1201.35(b).
¶4On April 9, 2024, the Office of the Clerk of the Board issued an order to the
parties advising that the appellant’s petition for review may be dismissed if a
proper substitution of party is not made. PFR File, Tab 9. The order, which the
Board served via U.S. mail to the appellant’s address of record, directed any party
seeking to substitute for the appellant to provide argument and evidence on
(1) how the filer is a proper substitute; (2) how the interests of the appellant did
not terminate with his death. Id. at 1-2. No party responded to the order.
¶5In accordance with 5 C.F.R. § 1201.35(a), we dismiss the instant petition
for review for lack of a substitute party. This is the Board’s final decision2
regarding the appellant’s petition for review. The initial decision remains the
final decision of the Board concerning the appellant’s VEOA appeal.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
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.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Searcy_AndrewAT-3330-21-0237-I-1__Final_Order.pdf | 2024-06-26 | ANDREW SEARCY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-3330-21-0237-I-1, June 26, 2024 | AT-3330-21-0237-I-1 | NP |
1,154 | https://www.mspb.gov/decisions/nonprecedential/Mooney_BrianSF-0752-19-0189-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRIAN MOONEY,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
SF-0752-19-0189-I-1
DATE: June 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shaun Yancey , Atlanta, Georgia, for the appellant.
Henry Chi and Matthew Miller , Baltimore, Maryland, for the agency.
Esther Kim , San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s 30-day suspension action. Generally, we grant petitions
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to supplement the administrative judge’s analysis of the second
factor in Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir.
1999), we AFFIRM the initial decision.
BACKGROUND
The agency employs the appellant as a GS-14 District Manager for the
District Office in Lancaster, California. Initial Appeal File (IAF), Tab 5 at 39,
Tab 38 at 5. His position is the most senior of the management officials in the
Lancaster District Office (LDO). IAF, Tab 54 at 64. Effective January 28, 2019,
the agency suspended the appellant for 30 days based on charges of conduct
unbecoming a Federal employee (four specifications) and failure to follow
instructions (five specifications). IAF, Tab 5 at 39-45.
The appellant appealed his suspension to the Board and he raised a claim of
whistleblower reprisal. IAF, Tab 1. After the appellant withdrew his request for
a hearing, the administrative judge issued an initial decision based on the written
record that affirmed the agency’s action. IAF, Tab 49, Tab 62, Initial Decision
(ID) at 1. The administrative judge sustained all four specifications of the charge2
of conduct unbecoming a Federal employee and specifications 2-5 of the charge
of failure to follow instructions. ID at 4-25. Regarding the appellant’s
affirmative defense of whistleblower reprisal, the administrative judge found that
the appellant did not prove his claim. ID at 26-31. The administrative judge also
found that the agency proved nexus and the reasonableness of the penalty.2
ID at 31-34.
The appellant has filed a petition for review and a supplement.3 Petition
for Review (PFR) File, Tabs 1-2. The agency has responded in opposition to the
petition for review, to which the appellant has replied. PFR File, Tabs 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved its charge of conduct unbecoming a Federal employee by
preponderant evidence.
A charge of conduct unbecoming has no specific elements of proof; the
agency establishes the charge by proving the appellant committed the acts alleged
under this broad label. Canada v. Department of Homeland Security ,
113 M.S.P.R. 509, ¶ 9 (2010). Moreover, such a charge typically involves
2 The appellant does not challenge the administrative judge’s finding that the agency
established a nexus between the charged misconduct and the efficiency of the service,
and we discern no basis for disturbing this finding on review. ID at 31.
3 Along with his petition for review, the appellant submits numerous exhibits. Petition
for Review (PFR) File, Tab 1 at 32-70, Tab 2 at 4-48. The Board may grant a petition
for review based on new and material evidence that, despite the appellant’s due
diligence, was not available when the record closed. 5 C.F.R. § 1201.115(d). Here, the
appellant has not shown that the information contained in the majority of these exhibits
was unavailable before the record closed despite his due diligence. See Avansino v.
U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980) (stating that the Board generally will
not consider evidence submitted for the first time with a petition for review absent a
showing that it was unavailable before the record was closed despite the party’s due
diligence). Moreover, the appellant has failed to show that any of the evidence he
submits on review is of sufficient weight to warrant an outcome different from that of
the initial decision. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980)
(explaining that the Board will not grant a petition for review based on new evidence
absent a showing that it is of sufficient weight to warrant an outcome different from
that of the initial decision). Thus, the evidence the appellant submits on review does
not provide a basis for granting review.3
conduct that is improper, unsuitable, or otherwise detracts from one’s character or
reputation. See Social Security Administration v. Long , 113 M.S.P.R. 190, ¶ 42
(2010), aff’d, 635 F.3d 526 (Fed. Cir. 2011), and overruled on other grounds by
Department of Health and Human Services v. Jarboe , 2023 MSPB 22. For the
reasons stated below, we agree with the administrative judge that the agency
proved by preponderant evidence its charge of conduct unbecoming a Federal
employee. ID at 4-16.
On review, the appellant challenges the administrative judge’s findings
regarding all four specifications of the charge. PFR File, Tab 1 at 18-22. He
argues that the administrative judge incorrectly sustained these specifications
because the administrative judge failed to resolve credibility issues and provide
adequate support for his credibility findings in the initial decision. Id. at 16, 18.
As previously noted, the appellant withdrew his hearing request; thus, the
administrative judge made non-demeanor-based credibility determinations.
In reaching these determinations, the administrative judge assessed the relevant
hearsay evidence under the factors set forth in Borninkhof v. Department of
Justice, 5 M.S.P.R. 77, 83-87 (1981). ID at 6-7. The Board evaluates the
probative value of hearsay evidence under the following factors, among others:
the availability of persons with firsthand knowledge to testify at the
hearing; whether the out-of-court statements were sworn; the consistency of the
out-of-court statements with other statements and evidence; the consistency of
declarants’ accounts with other information in the case, internal consistency, and
their consistency with each other; and whether corroboration for the statements
can otherwise be found in the agency record.4 Borninkhof, 5 M.S.P.R. at 87.
4 The appellant asserts that the administrative judge should have applied the factors set
forth in Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987). PFR File,
Tab 1 at 16. These factors include (1) the witness’s opportunity and capacity to observe
the event or act in question, (2) the witness’s character, (3) any prior inconsistent
statement by the witness, (4) a witness’s bias, or lack of bias, (5) the contradiction of
the witness’s version of events by other evidence or its consistency with other evidence,
(6) the inherent improbability of the witness’s version of events, and (7) the witness’s
demeanor. Hillen, 35 M.S.P.R. at 458. Even if the Board were to assess the credibility4
Under specification 1, the agency stated that the appellant permitted
Operations Supervisor E.G. to exercise supervisory functions related to the work
of his spouse, violating an agency policy and a recusal agreement. IAF, Tab 5
at 103. The appellant argues that the administrative judge erred in discrediting
his allegation that he never knowingly engaged in such conduct and in relying on
a statement from Operations Supervisor A.G.5 that he was the supervisor of
E.G.’s spouse in name only and that the appellant provided direction to A.G. to
have E.G. actively supervise his spouse. PFR File, Tab 1 at 17-18.
Significantly, the administrative judge noted that, in a February 22, 2016 email,
the appellant asked E.G. to assist him in editing a write-up for E.G.’s wife as part
of her nomination for an award, that E.G. responded that the appellant
should “let [A.G.] know” in case it “comes back that [A.G.] wrote [the attached
write-up] for her,” and that the appellant did not show that he was troubled by the
attempt to cover up the appearance of nepotism. ID at 8; IAF, Tab 36 at 15.
The appellant does not dispute that he asked E.G. to assist him in editing a
write-up for his spouse; rather, he stresses that he had no part in getting E.G.’s
spouse the award, it was not a performance-based award, and E.G.’s spouse was
not selected even after being nominated. PFR File, Tab 1 at 17, 19-20.
The appellant’s allegation provides no basis to disturb the administrative judge’s
determination that the record evidence supports specification 1 and that A.G. was
more credible than the appellant in this regard. See Borninkhof, 5 M.S.P.R. at 87.
We find that the administrative judge properly sustained specification 1. ID at 9.
Under the second specification, the agency stated that the appellant
permitted E.G. to prepare the Fiscal Year (FY) 2016 Final Performance
Assessment Communications System (PACS) appraisal for his spouse.
of the appellant and relevant agency witnesses under Hillen, it would reach the same
conclusions for reasons similar to those that diminish the value of the hearsay evidence
under Borninkhof.
5 As the administrative judge noted, A.G. was tasked with acting for E.G. whenever
E.G. had to recuse himself. ID at 6; IAF, Tab 38 at 41.5
IAF, Tab 5 at 103. The appellant asserts that the administrative judge’s finding
that he engaged in such misconduct is not supported by the record evidence.6
PFR File, Tab 1 at 20. However, as the administrative judge noted, in an
October 31, 2016 email, A.G. informed the appellant that E.G.’s spouse’s
appraisal was in PACS for his review and that he used information that he
received from E.G. to write it. ID at 10; IAF, Tab 11 at 95. The appellant
responded that he would “review [it].” ID at 10; IAF, Tab 11 at 95.
The administrative judge properly concluded that the appellant was aware of
E.G.’s role in drafting his spouse’s appraisal and permitted it. ID at 10. Because
the record evidence supports specification 2, we find that the administrative judge
properly sustained it. ID at 11.
Under specification 3, the agency stated that, when the LA Metro Area
Director’s Office (ADO) staff had a meeting with the LDO management team on
March 7, 2018, the appellant “sat away from the group, with [his] arms crossed,
and . . . rolled [his] eyes and sighed out loud.” IAF, Tab 5 at 104. The agency
specified that the appellant also made the following comments: “[s]o you want us
to send you an email every month?”; “[o]h come on”; and “[g]ot it, conversation
over.” Id. The appellant asserts that the third specification was erroneously
sustained and exaggerated by the agency. PFR File, Tab 1 at 21. He maintains
that he asked relevant and appropriate questions and that his tone was
mischaracterized as excessively rude or inappropriate. Id. at 22. However, the
appellant admitted to making the aforementioned comments to senior-level
6 Among other things, the appellant asserted that he notified the LA Metro Area
Director’s Office (ADO) when he became aware that A.G. relied on E.G.’s input to
draft an appraisal for E.G.’s spouse. PFR File, Tab 1 at 20. The administrative judge
considered this assertion and found that the record evidence nonetheless established that
the appellant had a working relationship with both E.G. and A.G. that led E.G. to
provide input on his wife’s appraisal, and that the appellant put both E.G. and A.G. in a
position of violating agency policy. ID at 10. Moreover, the record reflects that the
appellant’s argument that he notified the ADO of E.G.’s involvement in his spouse’s
appraisal was considered by the proposing and deciding officials as a factor in
mitigating the penalty. IAF, Tab 5 at 42, 109.6
agency managers. ID at 11-12; IAF, Tab 47 at 6, Tab 53 at 56-57. Moreover, the
administrative judge credited the declarations under penalty of perjury of LDO
Operations Supervisor R.H. and ADO Operations Supervisor S.S., both of whom
attended the March 7, 2018 meeting, in which they stated that they perceived the
appellant’s behavior during the meeting to be impolite and unprofessional.
ID at 12-13. The administrative judge observed that their declarations were
consistent each other, that S.S.’s statements mirrored his contemporaneous notes,
and that it was potentially contrary to R.H.’s self-interest to provide information
that may reflect negatively on the appellant, his second -line supervisor.
ID at 12-13; IAF, Tab 54 at 57-58, 69 -70; see Borninkhof, 5 M.S.P.R. at 87.
Based on the foregoing, we find that the administrative judge properly sustained
specification 3. ID at 13.
Under specification 4, the agency stated that, on September 11, 2018, the
appellant raised his left hand and continued walking when Area Director J.L.
attempted to ask him to meet in his office to talk. IAF, Tab 5 at 104.
The appellant asserts that the fourth specification was erroneously sustained and
exaggerated by the agency. PFR File, Tab 1 at 22. The administrative judge
credited J.L.’s description of the September 11, 2018 encounter (as set forth in
specification 4) because J.L. provided a declaration under penalty of perjury and
contemporaneous notes that were consistent with those of Assistant District
Manager G.F., who witnessed the incident. ID at 13-15;
see Borninkhof, 5 M.S.P.R. at 87. The administrative judge also noted that it was
potentially contrary to G.F.’s self -interest to corroborate J.L.’s version of events
because the appellant was her first-line supervisor. ID at 15. We agree with the
administrative judge’s assessment of the Borninkhof factors and we find that the
administrative judge properly sustained specification 4.
Based on our review of the record, we agree with the administrative judge
that the agency proved by preponderant evidence the charge of conduct
unbecoming a Federal employee.7
The agency proved its charge of failure to follow instructions by
preponderant evidence.
To prove a charge of failure to follow instructions, an agency must
establish that the employee: (1) was given proper instructions; and (2) failed to
follow the instructions, regardless of the employee’s intent. Powell v. U.S. Postal
Service, 122 M.S.P.R. 60, ¶ 5 (2014). For the reasons stated below, we agree
with the administrative judge that the agency proved by preponderant evidence
the charge of failure to follow instructions. ID at 16-25.
On review, the appellant asserts that the administrative judge incorrectly
sustained specifications 2-5.7 PFR File, Tab 1 at 22. Under specifications 2
and 3, the agency stated that the appellant was instructed to send a designated
number of Continuing Disability Reviews (CDRs) to the ADO in October 2017
and February 2018, or otherwise notify the ADO that he anticipated that the LDO
could not meet that goal, and that the appellant failed to follow those instructions.
IAF, Tab 5 at 104. The administrative judge noted that the parties stipulated to
the facts underlying specifications 2 and 3, and he found the parties’ factual
stipulations sufficient to prove that the appellant failed to follow instructions as
set forth in these specifications. ID at 20 -23; IAF, Tab 47 at 6.
The appellant reiterates on review that he informed the ADO by the
designated deadline that challenges with mail delivery as a result of office
relocation adversely impacted the ability of the LDO to gauge the number of
CDRs that would be completed in a given month. PFR File, Tab 1 at 22-24.
In analyzing specification 3, the administrative judge considered this explanation
but found it was unpersuasive because it was vague and uncorroborated. ID at
22. The administrative judge instead credited the declarations under penalty of
perjury of two ADO employees, both of whom denied that the LDO management
team contacted them to notify them by the designated deadline that the LDO
could not meet its CDR goal. ID at 21-23; see Borninkhof, 5 M.S.P.R. at 87.
7 As previously noted, the administrative judge only sustained specifications 2-5 under
this charge.8
We discern no basis for disturbing the administrative judge’s credibility
determination and find that the administrative judge properly sustained
specifications 2 and 3. ID at 20-23.
Under specifications 4 and 5, the agency stated that, in March 2018, J.L.
suspended telework for the LDO management team and instructed the appellant to
stop assigning clerical and front-end reception duties to a Staff Assistant due to
insufficient management resources, and that the appellant failed to follow those
instructions. IAF, Tab 5 at 104. The administrative judge noted that the parties
stipulated to the fact that J.L. suspended telework for the LDO management team
in March 2018. ID at 23-25; IAF, Tab 47 at 7. The appellant reiterates on review
that, in a June 2018 conversation, J.L. provided him with unclear instructions as
to the suspension of management telework. PFR File, Tab 1 at 24-25.
The administrative judge considered this explanation below but found it was not
persuasive because the appellant’s description of his June 2018 conversation with
J.L. was internally inconsistent and unsupported by corroborating evidence.
ID at 24. The administrative judge noted, among other things, that an
October 25, 2018 email authored by J.L. evidenced that the appellant resumed
telework “without [J.L.’s] concurrence.” ID at 24-25. We discern no reason to
disturb the administrative judge’s credibility determinations regarding this
specification and his conclusion that the agency proved specification 4. ID at 25.
Concerning specification 5, the administrative judge noted that the parties
stipulated to the facts as set forth in the specification, and he found the parties’
stipulations sufficient to prove that the appellant failed to follow instructions as
set forth under this specification. ID at 25. The appellant alleges on review that
the LDO had no choice but to assign the Staff Assistant clerical and front-end
reception duties due to temporary staffing vacancies and an initiative to improve
wait-time goals. PFR File, Tab 1 at 25-26. The administrative judge considered
this explanation below but noted that the appellant did not allege, nor does the
record show, that J.L. had rescinded his March 2018 instruction at the time the9
appellant assigned the Staff Assistant such duties. ID at 25. We discern no
reason to disturb the administrative judge’s finding that the agency proved
specification 5. ID at 25.
Based on our review of the record, we agree with the administrative judge’s
finding that the agency proved by preponderant evidence the charge of failure to
follow instructions. See Hicks v. Department of the Treasury , 62 M.S.P.R. 71,
74 (1994), aff’d, 48 F.3d 1235 (Fed. Cir. 1995) (Table) (stating that an agency is
required to prove only the essence of its charge, and that it need not prove each
factual specification supporting the charge).
We modify the initial decision to supplement the administrative judge’s analysis
of the second Carr factor, still finding that the appellant failed to prove his
affirmative defense of whistleblower reprisal.
On review, the appellant disagrees with the administrative judge’s
assessment of his affirmative defense of whistleblower reprisal. PFR File, Tab 5
at 8-10. In particular, he asserts that the facts of this case are similar to
Whitmore v. Department of Labor , 680 F.3d 1353 (Fed. Cir. 2012), in that he had
been a “stellar employee” for 15 years until he made the disclosure and then he
had increasingly poor performance. Id. at 10. As discussed below, the appellant
has not articulated a basis to disturb the administrative judge’s findings regarding
his whistleblower reprisal claim.
In an adverse action appeal, an appellant’s claim of whistleblower reprisal
is treated as an affirmative defense. Campbell v. Department of the Army ,
123 M.S.P.R. 674, ¶ 11 (2016). In such appeals, once the agency proves its
adverse action case by preponderant evidence,8 the appellant must show by
preponderant evidence that he engaged in whistleblowing activity by making a
protected disclosure under 5 U.S.C. § 2302(b)(8) and that the disclosure was a
8 Preponderance of the evidence is defined by regulation as that degree of relevant
evidence which 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. § 1201.4(q). 10
contributing factor in the agency’s personnel action. Id.; 5 C.F.R. § 1201.56(b)
(2)(i)(C). When, as here, the appellant makes such a showing, the Board will
order corrective action unless the agency shows by clear and convincing
evidence9 that it would have taken the personnel action in the absence of the
protected disclosure. Campbell, 123 M.S.P.R. 674, ¶ 12.
In determining whether an agency has shown by clear and convincing
evidence that it would have taken the personnel action in the absence of the
whistleblowing, the Board will consider the following factors: (1) the strength of
the agency’s evidence in support of its action; (2) the existence and strength of
any motive to retaliate on the part of the agency officials who were involved in
the decision; and (3) any evidence that the agency takes similar actions against
employees who are not whistleblowers but who are otherwise similarly situated.
Carr, 185 F.3d at 1323. The Board does not view these factors as discrete
elements, each of which the agency must prove by clear and convincing evidence,
but rather weighs these factors together to determine whether the evidence is
clear and convincing as a whole. Campbell, 123 M.S.P.R. 674, ¶ 12. The Board
must consider all of the evidence, including evidence that detracts from the
conclusion that the agency met its burden. Whitmore, 680 F.3d at 1368.
Here, the administrative judge correctly determined that the appellant
established that he made a whistleblowing disclosure on or about October 2016
when he reported a potential anti-nepotism violation to the ADO, and that, based
on the knowledge-timing test, the appellant proved that his disclosure was a
contributing factor in the agency’s decision to suspend him for 30 days.
ID at 27-29. The parties do not dispute the administrative judge’s findings in this
regard. The only issue before us is whether the agency has shown by clear and
convincing evidence that it would have suspended the appellant for 30 days in the
absence of his whistleblowing disclosure.
9 Clear and convincing evidence is that measure or degree of proof that produces in the
mind of the trier of fact a firm belief as to the allegations sought to be established.
5 C.F.R. § 1209.4(e). 11
Regarding the first Carr factor, the administrative judge found that the
agency’s evidence in support of its action was quite strong because the appellant
engaged in multiple incidents of misconduct, and because the misconduct was
especially serious given the appellant’s position as a high-level manager.
ID at 29. The administrative judge stated that the agency established by
preponderant evidence that the appellant played a direct role in allowing his own
subordinates to engage in the nepotism that he subsequently reported to the
agency. ID at 29. The appellant does not challenge this finding on review, and
we discern no basis to disturb it. See Crosby v. U.S. Postal Service , 74 M.S.P.R.
98, 105-06 (1997) (finding no reason to disturb the administrative judge’s
findings when she considered the evidence as a whole, drew appropriate
inferences and reached well-reasoned conclusions).
Regarding the second Carr factor, the administrative judge found that,
based on the record evidence, the agency had little motivation to retaliate against
the appellant. ID at 29-30. In reaching this finding, the administrative judge
observed that the proposing official considered the appellant’s disclosure to the
ADO as a mitigating factor in his penalty analysis and stated that, but for this
disclosure, he would have proposed the appellant’s removal for the misconduct at
issue. ID at 30. The administrative judge also observed that there is no
indication in the record that the proposing official had any role in enabling the
nepotism to occur, or that the appellant’s disclosure otherwise implicated him.
ID at 30. In addition, the administrative judge noted that the deciding official
was not even in the appellant’s chain of command, which meant that he would not
have been subject to any adverse consequences. ID at 30.
In Whitmore, 680 F.3d at 1370, the U.S. Court of Appeals for the Federal
Circuit cautioned the Board against taking an unduly and restrictive view of
retaliatory motive, stating that, “[t]hose responsible for the agency’s performance
overall may well be motivated to retaliate even if they are not directly implicated
by the disclosures, and even if they do not know the whistleblower personally, as12
the criticism reflects on them in their capacities as managers and employees.”
Here, the appellant’s disclosure reflected poorly on the agency and thus, by
implication, on the proposing and deciding official as well. We therefore find
that the proposing and deciding officials could have had some motive to retaliate
against the appellant and we modify the initial decision accordingly.
The administrative judge considered the appellant’s allegation that his
relatively poor FY 2018 PACS performance appraisal reflected that the proposing
official had a motivation to retaliate against him. The administrative judge
found, however, that the trend of the appellant’s performance ratings supported
the agency’s position rather than undermined it because his ratings for FY 2017
were higher than his ratings for FY 2016.10 ID at 30. We discern no basis for
disturbing this finding. In light of the agency’s consideration of the appellant’s
disclosure as a mitigating factor in the decision to suspend him, and the trend of
the appellant’s performance ratings, we find that, even if the appellant’s
disclosure evidenced a retaliatory motive on the part of the proposing and
deciding officials, any such motive was not strong.
Regarding the third Carr factor, the administrative judge found that it
weighed in favor of the agency because the agency provided evidence that it took
similar actions against similarly situated nonwhistleblowers, i.e., it proposed a
7-day suspension for A.G.11 based on charges of conduct unbecoming and lack of
candor. ID at 30-31. The administrative judge recognized that A.G. received
lesser discipline than the appellant but noted that A.G. was a lower-level manager
and that the appellant was also charged with numerous other incidents of
misconduct, including repeated failures to follow the instructions of his
supervisor. ID at 30. The appellant does not challenge this finding on review,
and we discern no basis to disturb it.
10 While the appellant received a lower performance rating in FY 2018, his FY 2018
PACS performance appraisal was nonetheless successful. IAF, Tab 40 at 10-17.
11 There is no indication in the record that A.G. was a whistleblower.13
After carefully balancing the Carr factors, we find that the agency has
shown by clear and convincing evidence that it would have suspended the
appellant in the absence of his whistleblowing disclosure. We therefore agree
with the administrative judge that the appellant failed to prove his affirmative
defense of whistleblower reprisal.
The agency proved the penalty was reasonable.
When all of the agency’s charges are sustained, but not all of the
underlying specifications are sustained, the agency’s penalty determination is
entitled to deference and should be reviewed only to determine whether it is
within the parameters of reasonableness. Parker v. U.S. Postal Service ,
111 M.S.P.R. 510, ¶ 8 (2009), aff’d, 355 F. App’x. 410 (Fed. Cir. 2009). In
applying this standard, the Board must take into consideration the failure of the
agency to sustain all of its supporting specifications. Id. An agency’s failure to
sustain all of its supporting specifications, however, may contribute to a finding
that the agency’s penalty is not reasonable. Id. In such a case, the Board will
look for evidence showing that the agency would have imposed the same penalty
for the sustained specification. Id.
Nevertheless, the Board’s function is not to displace management’s
responsibility or to decide what penalty it would impose, but to assure that
management’s judgment has been properly exercised and that the penalty selected
by the agency does not exceed the maximum limits of reasonableness. Id., ¶ 9.
Thus, the Board will modify a penalty only when it finds that the agency failed to
weigh the relevant factors or that the penalty the agency imposed clearly
exceeded the bounds of reasonableness. Id.
The appellant argues that the administrative judge erroneously applied the
Douglas factors. PFR File, Tab 1 at 26. He asserts that he should have received
a lesser penalty due to the mitigating factors in his case. Id. We agree with the
administrative judge that the deciding official properly weighed the Douglas
factors in making her penalty determination. ID at 33-34. The deciding official14
recognized the numerous strong mitigating factors, including the appellant’s lack
of prior discipline during his 15 years of Federal service and his successful
performance appraisals, but she concluded that these factors were insufficient to
outweigh the seriousness of the appellant’s misconduct. IAF, Tab 5 at 106.
We agree with the administrative judge that a 30-day suspension is a
reasonable penalty for the sustained misconduct. ID at 34; see Guzman-Muelling
v. Social Security Administration , 91 M.S.P.R. 601, ¶¶ 2, 16-17 (2002)
(finding that a suspension of 30 days was within the parameters of reasonableness
for, among other things, discourteous and disruptive conduct). This is especially
so considering that the appellant holds a supervisory position and is held to a
higher standard of conduct. See Gebhardt v. Department of the Air Force ,
99 M.S.P.R. 49, ¶ 21 (2005), aff’d, 180 F. App’x 951 (Fed. Cir. 2006).
Accordingly, we affirm the agency’s suspension action.
NOTICE OF APPEAL RIGHTS12
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
12 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.15
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
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. 16
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
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: 17
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.13 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).
13 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 18
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.19 | Mooney_BrianSF-0752-19-0189-I-1__Final_Order.pdf | 2024-06-26 | BRIAN MOONEY v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. SF-0752-19-0189-I-1, June 26, 2024 | SF-0752-19-0189-I-1 | NP |
1,155 | https://www.mspb.gov/decisions/nonprecedential/Davis_Sean_M_SF-0752-20-0032-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SEAN M. DAVIS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-0752-20-0032-I-1
DATE: June 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Terrie L. Collins , Los Angeles, California, for the appellant.
W. Jason Jackson , Esquire, Long Beach, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his constructive suspension appeal as moot. 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
1A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to address the appellant’s claim of harmful error and the
issue of compensatory damages, we AFFIRM the initial decision, which is now
the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant is employed by the agency as a Mail Handler Equipment
Operator. Initial Appeal File (IAF), Tab 8 at 33. He was driving an agency
powered industrial truck (PIT) down a ramp at the worksite when, in his words,
he “lost control and fell off the [vehicle] landing on [his] back and hitting [his]
head on the concrete.” IAF, Tab 10 at 2, Tab 16 at 7-8. During the incident, the
PIT crashed into, and damaged, an agency forklift. IAF, Tab 16 at 7-8.
Following the incident, a Supervisor of Distribution Operations (SDO)
conducted an investigation. IAF, Tab 8 at 25. During that investigation, the
appellant tested positive for alcohol beyond the legal limit immediately following
the accident. Id. at 21-23. Two days later, on September 3, 2019, a Manager of
Distribution Operations (MDO) placed the appellant in an emergency off-duty
non-paid status based on the nature of the incident. Id. at 24. He remained in this
status until September 21, 2019, when the agency changed his status to
administrative leave. Id. at 18. The agency asserted below that it subsequently
changed the appellant’s status from unpaid leave to administrative leave for the2
period from September 3 to 20, 2019. IAF, Tab 8 at 14-16, Tab 9 at 7-8.
The appellant does not dispute this assertion. IAF, Tab 12 at 2.
The appellant subsequently filed a Board appeal challenging his placement
in an off-duty non-paid status. IAF, Tab 2. Without holding the appellant’s
requested hearing, the administrative judge issued an initial decision dismissing
the appeal as moot. IAF, Tab 2 at 1, Tab 17, Initial Decision (ID) at 1.
The administrative judge held that the agency took an appealable adverse action
against the appellant by constructively suspending him for more than 14 days.
ID at 2-3. He found that, in doing so, the agency violated the appellant’s due
process rights. ID at 3. He concluded, however, that the agency returned the
appellant to status quo ante when it removed all references to the suspension from
his personnel file, placed him on administrative leave, and provided him back pay
for his time in an off-duty non-paid status. ID at 3-6.
The appellant has filed a petition for review of the initial decision.
Petition for Review (PFR) File, Tab 1. He argues that the agency’s investigation
into the incident in question was not fair and objective.2 Id. The agency has not
responded to the petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly determined that the appeal was moot.
The administrative judge found that the Board has jurisdiction over the
appellant’s 18-day constructive suspension, which the agency effectuated without
due process. ID at 1-3; IAF, Tab 8 at 18. The parties do not dispute this finding
on review, and we see no reason to disturb it.
For an appeal to be deemed moot, the agency’s rescission of the appealed
action must be complete, and the employee must be returned to the status quo
ante. Hess v. U.S. Postal Service , 123 M.S.P.R. 183, ¶ 5 (2016); see Murphy v.
Department of Justice , 107 M.S.P.R. 154, ¶ 6 (2007) (explaining that for an
2 It is unclear whether the appellant is referring to the investigation before or after his
placement in a non-pay status, or both.3
appeal to be rendered moot, an appellant must receive all of the relief that he
could have received if the matter had been adjudicated and he had prevailed).
Status quo ante relief generally requires that the appellant be placed back in his
former position or in one substantially equivalent in scope and status to his
former position. Hess, 123 M.S.P.R. 183, ¶ 5. Status quo ante relief also requires
that the agency remove all references to the rescinded action and restore to the
appellant any lost back pay or benefits. Id.
The administrative judge correctly held that the agency proved it
provided the requisite back pay and benefits sufficient to render the
appeal moot.
The administrative judge found that the agency provided the appellant with
the requisite back pay and benefits and sufficiently removed any reference to the
constructive suspension from his personnel file. ID at 4, 6; IAF, Tab 13 at 9.
The appellant does not challenge these findings on review, and we see no reason
to disturb them.
The administrative judge further found that the appellant failed to
demonstrate that status quo ante relief included any overtime or holiday pay
during his constructive suspension. ID at 6. The undisputed declaration of the
MDO stated that the appellant does not regularly work overtime or holidays.
IAF, Tab 16 at 8. The MDO acknowledged that the appellant worked 8 minutes
of overtime in the 2 weeks preceding his constructive suspension, but stated his
doing so was accidental and not an “actual overtime assignment.” Id.
The appellant has not reasserted his claim for overtime and holiday pay on
review, and we see no reason to disturb the administrative judge’s determination
on this issue.
The administrative judge correctly held that the agency proved it had
a compelling reason to place the appellant in an administrative leave
status.
The administrative judge held that the agency presented a “compelling
reason” for placing the appellant on administrative leave following the4
cancellation of his non-paid status. ID at 5. The appellant does not challenge
this finding on review, and we agree with the administrative judge.
The placement of an appellant on administrative leave following the
cancellation of an adverse action generally does not constitute complete
rescission of the agency action. Sredzinski v. U.S. Postal Service , 105 M.S.P.R.
571, ¶ 8 (2007). However, if the agency can establish it had a strong overriding
or compelling interest in placing the appellant on administrative leave following
the suspension, its decision to do so will not prevent the Board from dismissing
the appeal as moot. See Gamel v. Department of the Navy , 43 M.S.P.R. 168,
170-72 (1989) (explaining that an agency may not be required to return an
employee to his former position despite the Board’s reversal of his removal if the
agency has a strong overriding interest for not doing so); Deas v. Department of
Transportation, 108 M.S.P.R. 637, ¶ 14 (2008) (finding an agency had not
completely rescinded an adverse action because it did not establish a strong
overriding interest for placing an appellant on administrative leave as opposed to
returning him to duty status), overruled on other grounds by Abbott v. U.S. Postal
Service, 121 M.S.P.R. 294, ¶ 10 (2014); Joos v. Department of the Treasury ,
79 M.S.P.R. 342, 347 (1998) (finding that an agency ordered to rescind a removal
may reinstate an appellant to a substantially similar position if it has a compelling
reason not to return him to his former position).
Here, the status occupied by the appellant prior to the cancelled suspension
was active duty. IAF, Tab 8 at 24. The agency placed him on administrative
leave following the suspension. Id. at 18. The administrative judge specifically
informed the agency that its placement of the appellant on administrative leave
was generally not status quo ante relief. IAF, Tab 14 at 1-2. The agency
responded with a declaration of the MDO, who explained the risk and
consequence of accidents while operating the agency’s machinery under the
influence of alcohol. IAF, Tab 16 at 7-8. For example, she indicated that a fully
loaded PIT weighed up to 7,500 pounds, and an accident could cause serious5
injury or death to nearby employees, some of whom are on foot. Id. at 7.
She further explained that the agency placed the appellant on administrative leave
after the cancellation of his non-paid status to continue its investigation into the
matter and to “avoid any other preventable accidents.” Id. at 8. We agree with
the administrative judge that the agency’s proffered reasons are sufficiently
compelling to warrant placement of the appellant on administrative leave.
See Dalton v. Department of Justice , 66 M.S.P.R. 429, 434 (1995) (finding an
agency’s concern over an appellant’s alleged improper sexual contacts with
inmates and the presence of an ongoing investigation established compelling
reasons for not returning him to status quo ante).
The appellant’s claim of harmful error does not state a basis to find
the appeal not moot.
The administrative judge below ordered the appellant to explain why he
believed the agency had not completely rescinded the constructive suspension.
IAF, Tab 11 at 3. The appellant responded that, following the constructive
suspension at issue in this appeal, the MDO and SDO subsequently issued him a
notice of removal that “is discriminatory and retaliatory and . . . is a conflict of
interest because [he had] past and present EEO proceedings against [the MDO
and SDO].” IAF, Tab 12 at 2. On review, he again refers to “a pending EEO
case” against these individuals. PFR File, Tab 1 at 4. The administrative judge
did not address this claim. Accordingly, we modify the initial decision to do so.
If an appellant has a claim for compensatory damages based on
discrimination, the agency’s complete rescission of the underlying adverse action
cannot render the appeal moot because the employee may be entitled to additional
damages. Hess v. U.S. Postal Service , 124 M.S.P.R. 40, ¶¶ 8-9, 11-19 (2016).
Although the appellant referenced discrimination when discussing his subsequent
proposed removal, while discussing his constructive suspension, which is the
subject of this appeal, he states that he “was not treated fairly” by the MDO and
the SDO, who “both were allowed to issue [him] disciplinary action.” PFR File,6
Tab 1 at 4. It therefore does not appear that the appellant raises a discrimination
claim regarding his constructive suspension. Rather, the appellant re-alleges that
the investigation that led to his suspension was improperly conducted. PFR File,
Tab 1 at 4; IAF, Tab 10 at 2-3. We interpret this as a claim of harmful error.
See, e.g., Leftridge v. U.S. Postal Service , 56 M.S.P.R. 340, 344-45 (1993)
(treating a claim that an agency’s investigation was deficient as a claim of
harmful error).
If proven, this harmful error claim could warrant reversal of the appellant’s
constructive suspension. 5 U.S.C. § 7701(c)(2)(A); Leftridge, 56 M.S.P.R.
at 345. However, the agency here already reversed the appellant’s constructive
suspension. IAF, Tab 8 at 14-16, Tab 9 at 7-8, Tab 12 at 2. An affirmative
defense on which the Board can grant no additional relief, such as this one, is
properly dismissed as moot without a hearing. Hess, 123 M.S.P.R. 183, ¶ 8.
Because the Board could grant no additional relief if the appellant proved harmful
error, his claim is moot. See Panter v. Department of the Air Force , 22 M.S.P.R.
281, 282 (1984) (explaining that an adjudicatory error that is not prejudicial to a
party’s substantive rights provides no basis for reversal of an initial decision).
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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
3 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.7
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The8
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file9
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 10
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Davis_Sean_M_SF-0752-20-0032-I-1__Final_Order.pdf | 2024-06-25 | SEAN M. DAVIS v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0752-20-0032-I-1, June 25, 2024 | SF-0752-20-0032-I-1 | NP |
1,156 | https://www.mspb.gov/decisions/nonprecedential/Odparlik_NicholasDA-0752-21-0128-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NICHOLAS ODPARLIK,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DA-0752-21-0128-I-1
DATE: June 25, 2024
THIS ORDER IS NONPRECEDENTIAL1
Koquise Edwards and Rosalinn Giang , Oklahoma City, Oklahoma, for the
appellant.
Yvette K. Bradley , Esquire, Dallas, Texas, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal as untimely filed without good cause shown for the
delay. For the reasons discussed below, we GRANT the appellant’s petition for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
review, VACATE the initial decision, and REMAND the case to the regional
office for further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant was employed as a Mail Processing Clerk with the U.S.
Postal Service’s Oklahoma City Processing and Distribution Center (P&DC).
Initial Appeal File (IAF), Tab 1 at 1; Tab 6 at 48. On April 7, 2017, the agency
proposed to remove the appellant from his position based on a violation of the
agency’s standards of conduct. IAF, Tab 6 at 70-73. On May 3, 2017, the agency
issued a decision letter removing the appellant effective May 8, 2017. Id.
at 65-68. The decision letter informed the appellant that he could challenge his
removal through the following processes: (1) by filing an appeal with the Board,
because he was an employee with veterans’ preference rights; (2) by filing a
grievance pursuant to the agency’s negotiated grievance procedure; or (3) if the
appellant believed the action was based in whole or in part on discrimination, by
filing a discrimination complaint through the agency’s equal employment
opportunity (EEO) office, which would be processed pursuant to the agency’s
mixed-case complaint procedures. Id. at 66-68 (citing 29 C.F.R.
§§ 1614.302-310). The appellant grieved the removal decision, and on February
27, 2018, an arbitrator issued an award denying the grievance, concluding that the
agency had just cause to remove him. Id. at 49-64.
On December 1, 2020, the appellant filed the instant Board appeal
challenging his removal.2 IAF, Tab 1. Because it appeared that the appeal may
be untimely, the administrative judge issued a timeliness order instructing the
appellant to file evidence and argument demonstrating that his appeal was timely
filed, or that good cause existed for the delay. IAF, Tab 3. The administrative
2 As the administrative judge noted in the initial decision, the appellant’s appeal was
not received until January 11, 2021, but was postmark-dated December 1, 2020. IAF,
Tab 7, Initial Decision (ID) at 1 n.1. Consequently, December 1, 2020, was correctly
identified as the filing date of the appeal. ID at 1 n.1; see 5 C.F.R. § 1201.4(l). 2
judge ordered the appellant to submit his response within 10 calendar days of the
date of the order, and ordered the agency to file any evidence and argument on
the issue of timelines within 20 days of the date of the order. Id. at 4.
Additionally, the order noted that the record on the issue of timeliness would
close as of the date the agency’s response was due. Id.
The appellant did not respond to the timeliness order by the identified
deadline, and on February 2, 2021, the agency filed a narrative response arguing
that the appeal was untimely filed without good cause shown for the delay and
should be dismissed, or alternatively, that the agency action was substantiated and
the removal should be sustained. IAF, Tab 6 at 4-8. On February 10, 2021, the
administrative judge issued an initial decision dismissing the appeal as untimely
filed without good cause shown for the delay. IAF, Tab 7, Initial Decision (ID) at
2, 5. Specifically, the administrative judge concluded that the appellant’s
removal was effectuated on February 27, 2018, following the arbitrator’s award
concluding that the agency had just cause to remove the appellant, and so the
appeal was due within 30 calendar days after that date. ID at 3. He further
concluded that the appellant did not file his Board appeal until December 1, 2020,
so the appeal was filed 978 days late. ID at 3. Regarding the issue of good cause
for the appellant’s untimeliness, the administrative judge determined that because
the appellant failed to respond to the order on timeliness, he failed to show good
cause for the untimely filing of his Board appeal. ID at 4 -5.
The appellant has filed a petition for review challenging the administrative
judge’s timeliness determination. Petition for Review (PFR) File, Tab 1. The
appellant asserts that he and both of his representatives never received the
timeliness order and provides a sworn declaration with his petition for review
attesting that he never received the timeliness order, as well as sworn declarations
from both of his representatives attesting that they also never received the
timeliness order. Id. at 4-5, 76-78. Further, he argues that he timely submitted a
response to the agency’s motion to dismiss the appeal as untimely filed on3
February 11, 2021, and that the administrative judge erred by prematurely
dismissing the appeal before his deadline to respond to the motion had elapsed.
Id. at 5. He also provides a copy of his purported response to the agency’s
motion. See id. at 38-69. Additionally, the appellant asserts that because he is a
preference-eligible veteran, the Board has jurisdiction over his appeal. Id. at 6.
Finally, he argues that he was misled by the agency concerning his Board appeal
rights and alleges that he first learned of his Board appeal rights on December 1,
2020, when his representative informed him of his right to challenge the agency
action as a mixed-case appeal to the Board, so his appeal was timely filed within
30 days of learning of his Board appeal rights. Id. at 6-14.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has rebutted the presumption that he or his representatives received
the timeliness order.
The appellant argues that neither he nor his representatives ever received
the timeliness order, and that although they received the acknowledgement order,
that order did not contain any information regarding the timeliness of the appeal.
PFR File, Tab 1 at 4-5. Consequently, the appellant argues that he was not aware
of his obligation to establish the timeliness of his appeal.3 Id.
The administrative judge mailed the timeliness order to the appellant and
his representative at their identified addresses of record on January 13, 2021.4
Tab 3 at 6; see IAF, Tab 1 at 5. The Board will presume that documents placed in
the mail are received in 5 days. Cabarloc v. Department of Veterans Affairs ,
110 M.S.P.R. 695, ¶ 7 (2009); see Santos v. U.S. Postal Service , 77 M.S.P.R.,
3 It is undisputed that the appellant received the agency’s narrative response and motion
to dismiss the appeal as untimely. PFR File, Tab 1 at 5; IAF, Tab 6. However, the
administrative judge dismissed the appeal before the time for responding to the motion
had expired.
4 At the time the timeliness order was issued, the appellant had only designated one
representative. See IAF, Tab 1 at 5; Tab 3 at 6. After the timeliness order was issued
but before the initial decision was issued, the appellant designated an additional
representative. See IAF, Tabs 5, 8; ID at 1. 4
573, 577 (1998) (“When a certificate of service indicates that a copy of a
document was mailed to the appellant’s address of record, a presumption is raised
that it was duly delivered to, and received by, the appellant.”); 5 C.F.R.
§§ 1201.22(b)(3), 1201.23 . However, a party may rebut this presumption with a
statement denying receipt and certifying to the truth of the party’s statement. See
Carbaloc, 110 M.S.P.R. 695, ¶¶ 7, 11 (finding that the appellant’s statement on
his appeal form as to the date of receipt of the agency’s removal decision,
coupled with supporting circumstantial evidence, was sufficient to rebut the
presumption of receipt in the due course of the mail); see also Woodall v. Federal
Energy Regulatory Commission , 30 M.S.P.R. 271, 273 (1986) (noting that a
declaration subscribed as true under penalty of perjury, if uncontested, proves the
facts it asserts).
Here, the sworn declarations provided by the appellant and both of his
representatives, made under penalty of perjury, state that they did not receive the
timeliness order at any time after its January 13, 2021 issuance. PFR File, Tab 1
at 76-78. In light of the lack of any contradictory evidence indicating that the
appellant or his representatives did, in fact, receive the timeliness order, we find
that the appellant has proven, through his sworn statement and those of his
representatives, that he was not notified of the timeliness order and thus of his
burden to establish the timeliness of his appeal until he received the initial
decision dismissing the appeal as untimely filed.
We remand the appeal for the parties to develop the record regarding the issue of
timeliness and of Board jurisdiction over the appeal.
Before an appeal can be dismissed on timeliness grounds, the appellant
must receive notice of the specific timeliness issue presented by
the circumstances of his case. Farooq v. Corporation for National & Community
Service, 109 M.S.P.R. 73, ¶ 12 (2008). Because the administrative judge
dismissed the appeal on timeliness grounds before the appellant was availed of
the opportunity to address the timeliness issue, we must now consider the5
evidence and argument addressing the timeliness of his appeal that the appellant
included for the first time with his petition for review. See Hamilton v. Merit
Systems Protection Board , 75 F.3d 639,642, 646-47 (Fed. Cir. 1996) (considering
evidence related to timeliness that the appellant submitted for the first time on
review when the initial decision was the first notice she had of the delivery
presumptions on which the administrative judge relied in finding her appeal
untimely).
An appeal of an agency action must generally be filed no later than 30 days
after the effective date of the action being appealed, or 30 days after the date of
the receipt of the agency’s decision, whichever is later. Miranne v. Department
of the Navy, 121 M.S.P.R. 235, ¶ 8 (2014); 5 C.F.R. § 1201.22(b). If an appellant
fails to timely submit his appeal, it will be dismissed as untimely filed unless
good reason for the delay is demonstrated. 5 C.F.R. § 1201.22(c). The appellant
bears the burden of proof with regard to timeliness, which must be established by
the preponderance of the evidence. Perry v. Office of Personnel Management,
111 M.S.P.R. 337, ¶ 5 (2009); 5 C.F.R. § 1201.56(b)(2)(i)(B).
The procedures and filing deadlines for mixed cases, however, are
somewhat different. Miranne, 121 M.S.P.R. 235, ¶ 8. A mixed case arises when
an appellant has been subject to an action that is appealable to the Board and he
alleges that the action was effected, in whole or in part, because of
discrimination. Id. An appellant has two options when filing a mixed case: he
may initially file a mixed-case complaint with the agency, followed by an appeal
to the Board, or he may file a mixed-case appeal with the Board and raise his
discrimination claim in connection with his appeal. Id.; 29 C.F.R. § 1614.302(b),
(d). An employee may file either a mixed-case complaint or a mixed-case appeal,
but not both, and whichever is filed first is deemed to be the employee’s election
to proceed in that forum. Miranne, 121 M.S.P.R. 235, ¶ 8; 29 C.F.R.
§ 1614.302(b).6
Based on the evidence the appellant provided with his petition for review,
it appears that he initially filed a formal EEO complaint alleging that the agency
discriminated against him on the bases of race, color, national origin, and sex
when it subjected him to a hostile work environment by, among other things,
issuing a decision letter upholding his removal on May 8, 2017, and his formal
EEO complaint was accepted by the agency on July 17, 2017.5 PFR File, Tab 1
at 80-84. Although the appellant initially requested a hearing before an EEOC
administrative judge, he withdrew his hearing request on November 6, 2019, and
the complaint was returned to the agency to issue a final agency decision (FAD)
on the contested issues. Id. at 87-89. The agency subsequently issued a FAD on
December 11, 2019, concluding that the appellant had failed to prove his
discrimination-based claims. Id. at 91-119. The FAD explained that the
appellant had the right to appeal the agency’s decision to either the EEOC’s
Office of Field Operations (OFO) or as a civil action. Id. at 118-119. On January
12, 2020, the appellant appealed the FAD to the EEOC-OFO, and on October 21,
2020, the EEOC-OFO issued a decision affirming the FAD’s finding of no
discrimination. Id. at 120-21, 137-46.
What is unclear based on the existing record, however, is whether the
appellant’s July 17, 2017 formal EEO complaint was processed as a mixed-case
complaint challenging his removal, or as a non-mixed claim of discrimination
based on a hostile work environment. See PFR File, Tab 1 at 80-84. The U.S.
Court of Appeals for the Federal Circuit (Federal Circuit) has held that when
mixed-case provisions are implicated on the face of an appellant’s Appeal Form,
albeit ambiguously, the administrative judge should address the issue by asking
both parties to submit evidence relevant to the timeliness of the appeal before
dismissing it as untimely filed. Montalvo v. U.S. Postal Service , 91 M.S.P.R.
5 Although the record is not fully developed on the issue, the agency has not disputed
that the appellant timely initiated contact with the agency’s EEO office prior to filing
his formal EEO complaint, and the agency acknowledged that the appellant filed a
formal complaint of discrimination in its timeliness pleading. See IAF, Tab 6 at 10. 7
671, ¶ 8 (citing Whittington v. Merit Systems Protection Board , 80 F.3d 471, 475
(Fed. Cir. 1996)). Attached to his initial appeal, the appellant provided what
appears to be a copy of a declaration he submitted in connection with his EEOC
appeal, in which he identifies that he was “improperly terminated on May 8,
2017,” that the agency discriminated against him on the bases of his national
origin, race, color, sex, and that he was “wrongfully discharge[d].” IAF, Tab 1
at 15. Although the administrative judge identified the attached declaration and
its apparent connection to an EEOC case in the initial decision, he determined
that the nature of that EEOC decision and its relevance to the instant appeal was
not apparent from the record. ID at 5. Additionally, although the formal EEO
complaint acceptance letter, the FAD, and the EEOC-OFO decision that the
appellant provided with his petition for review all include references to the
removal decision, none of the documents identify that the appellant’s complaint
had been processed under the agency’s mixed-case complaint procedures, or state
that the appellant may appeal the matter to the Board. PFR File, Tab 1 at 80-84,
91-119, 137-46.
Consequently, based on the existing record, we cannot discern whether the
appellant’s formal EEO complaint was processed under the agency’s mixed-case
complaint procedures, which could give rise to the appellant’s entitlement to file
a Board appeal of his mixed-case complaint. See 29 C.F.R. § 1614.302(a), (b),
(d). Because the appellant’s entitlement to a Board appeal of a mixed-case
complaint, and the related issue of the timeliness of that Board appeal, ultimately
turn on whether the appellant’s EEO complaint was processed as a mixed-case
complaint, we must remand the appeal to allow the parties to supplement the
record on the timeliness and jurisdictional issues. Additionally, because the
appellant had not received specific notice of the precise timeliness issue in his
case at the time his appeal was dismissed, and he has not yet had a full and fair
opportunity to litigate it, we decline to make any findings on the timeliness issue
at this time. See Wright v. Department of Transportation , 99 M.S.P.R. 112, ¶ 138
(2005) (remanding an appeal for the administrative judge to give clear notice to
an appellant of the precise timeliness issue involved in his appeal). Under these
circumstances, we find it most appropriate to remand the appeal for the
administrative judge to make these findings in the first instance after affording
the parties an additional opportunity to file evidence and argument relevant to the
specific issues of timeliness presented in this case.6
6 We also note that there is a question concerning the appellant’s preference-eligible
status, and thus whether the Board has jurisdiction over his appeal. In order to have
appeal rights before the Board, a Postal Service employee: (1) must be an
excepted-service, preference-eligible employee, a management or supervisory employee
or an employee engaged in personnel work in other than a purely nonconfidential
clerical capacity; and (2) must have completed 1 year of current continuous service in
the same or similar positions. 5 U.S.C. § 7511(a)(1)(B)(ii); 39 U.S.C. § 1005(a)(4)(A)
(ii); see Trabue v. U.S. Postal Service , 102 M.S.P.R. 14, ¶ 5 (2006). The record
contains conflicting information concerning whether the appellant was a preference-
eligible Postal Service employee or otherwise met any of the criteria under 39 U.S.C.
§1005(a)(4)(A). See e.g., IAF, Tab 1 at 1 (initial appeal alleging entitlement to
veterans’ preference); Tab 6 at 48 (Postal Service (PS) 50 form identifying the
appellant’s veterans’ preference status as “1,” indicating no preference-eligibility), 50
(grievance arbitration decision indicating that the appellant was not a
preference-eligible veteran based on his National Guard service), 66 (removal decision
identifying appellant as “an employee with veteran preference rights”); ID at 2 n.3
(identifying the numerous apparent discrepancies regarding the appellant’s
preference-eligibility); PFR File, Tab 1 at 6 (asserting his entitlement to veterans’
preference based on his prior active-duty military service), 53 (disciplinary request
form identifying appellant’s entitlement to veterans’ preference), 58 (disciplinary
request form identifying that the appellant was not entitled to veterans’ preference), 80
(formal EEO complaint acceptance identifying appellant’s allegation that management
had revoked his veterans’ preference status). Accordingly on remand, the
administrative judge should also permit the parties to supplement the record regarding
the appellant’s preference-eligibility, and if necessary, address this jurisdictional issue.
See Maddox v. Merit Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985)
(recognizing that the Board’s jurisdiction is limited to those matters over which it has
been given jurisdiction by law, rule, or regulation); see also Barrand v. Department of
Veterans Affairs, 112 M.S.P.R. 210, ¶ 13 (2009) (explaining that an agency’s erroneous
notification of appeal rights cannot expand the Board’s limited jurisdiction).9
ORDER
For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Odparlik_NicholasDA-0752-21-0128-I-1__Remand_Order.pdf | 2024-06-25 | NICHOLAS ODPARLIK v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DA-0752-21-0128-I-1, June 25, 2024 | DA-0752-21-0128-I-1 | NP |
1,157 | https://www.mspb.gov/decisions/nonprecedential/Pantoja_Aida_L_CH-0353-19-0458-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AIDA L. PANTOJA,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
CH-0353-19-0458-I-1
DATE: June 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Aida L. Pantoja , Cudahy, Wisconsin, pro se.
Deborah L. Lisy , Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her restoration appeal for lack of jurisdiction. On petition for review,
the appellant again challenges the processing of her equal employment
opportunity (EEO) complaint, argues that the agency failed to provide all of the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
information necessary to adjudicate her case, and asserts that the administrative
judge erred by concluding that the agency did not act arbitrarily and capriciously
in failing to return the appellant to duty, and therefore, she failed to establish
Board jurisdiction over her claim that she was denied restoration. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to clarify the burden of proof that an appellant must meet
to establish jurisdiction over her restoration appeal, we AFFIRM the initial
decision.
The Board has jurisdiction to review whether an agency’s denial of
restoration to a partially recovered employee was arbitrary and capricious.
Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097, 1103-04 (Fed. Cir.
2011), superseded in part by regulation on other grounds as stated in Kingsley v.
U.S. Postal Service, 123 M.S.P.R. 365, ¶ 10 (2016); 5 C.F.R. § 353.304(c).
Thus, to establish jurisdiction over a claim of denial of restoration as a partially
recovered employee, an appellant is required to make nonfrivolous allegations of
the following: (1) she was absent from her position due to a compensable injury;
(2) she recovered sufficiently to return to duty on a part-time basis or to return to
work in a position with less demanding physical requirements than those2
previously required of her; (3) the agency denied her request for restoration;
and (4) the denial was arbitrary and capricious. See Hamilton v. U.S. Postal
Service, 123 M.S.P.R. 404, ¶ 12 (2016); Kingsley, 123 M.S.P.R. 365, ¶ 11;
5 C.F.R. § 1201.57(a)(4), (b). Once an appellant establishes jurisdiction, she is
entitled to a hearing at which she must prove the merits of her restoration appeal
by a preponderance of the evidence. Kingsley, 123 M.S.P.R. 365, ¶ 12; 5 C.F.R.
§ 1201.57(c)(4).
In the initial decision, the administrative judge stated that the appellant had
to establish jurisdiction over her appeal by preponderant evidence. Initial Appeal
File (IAF), Tab 20, Initial Decision (ID) at 2-3. This was in error. Effective
March 30, 2015, the Board issued regulations that adopted a nonfrivolous
allegation standard for establishing jurisdiction in restoration appeals. 5 C.F.R.
§ 1201.57(a)(4), (b); see Hamilton, 123 M.S.P.R. 404, ¶¶ 11-12. Nevertheless,
we conclude that the administrative judge’s error is of no legal consequence
because it did not adversely affect the appellant’s substantive rights.
Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981); see Clark v.
U.S. Postal Service, 123 M.S.P.R. 466, ¶ 5 n.2 (2016) (finding an administrative
judge’s error in citing to the preponderant evidence standard harmless in a
restoration appeal because he properly determined that the appellant failed to
present nonfrivolous allegations of jurisdiction), aff’d per curiam, 679 F. App’x
1006 (Fed. Cir. 2017).
On review, the appellant has not disputed the administrative judge’s
findings that she failed to identify any available work within her restrictions or
provide any evidence that there was work to be performed that the agency failed
to offer her, or denied that the agency eventually offered her a modified job offer
after completing its search for available work duties. ID at 7-8; IAF, Tab 17
at 187-89. Consequently, we agree with the administrative judge’s finding that
the agency’s failure to provide the appellant with a work assignment until after
her July 30, 2018 medical release did not constitute an arbitrary and capricious3
denial of the appellant’s restoration rights, and conclude that the appellant failed
to establish jurisdiction over her appeal even under the lower nonfrivolous
allegation standard.2 ID at 6-8.
Finally, in the absence of an otherwise appealable action, we lack
jurisdiction to address the appellant’s claim that the agency erred in processing
her EEO complaint.3 Petition for Review File, Tab 1 at 4-5; see Penna v. U.S.
Postal Service, 118 M.S.P.R. 355, ¶ 13 (2012) (concluding that, absent an
2 After the initial decision in this appeal was issued, the Board issued a decision in
Cronin v. U.S. Postal Service, 2022 MSPB 13, which clarified when a denial of
restoration may be arbitrary and capricious. The Board in Cronin held that, although
agencies may undertake restoration efforts beyond the minimum effort required by OPM
under 5 C.F.R. § 353.301(d), an agency’s failure to comply with self-imposed
obligations cannot itself constitute a violation of 5 C.F.R. § 353.301(d) such that a
resulting denial of restoration would be rendered arbitrary and capricious for purposes
of establishing Board jurisdiction under 5 C.F.R. § 353.304(c). Cronin, 2022 MSPB 13,
¶ 20. Rather, as explained in Cronin, the issue before the Board is limited to whether
the agency failed to comply with the minimum requirement of 5 C.F.R. § 353.301(d),
i.e., to search within the local commuting area for vacant positions to which it can
restore a partially recovered employee and to consider her for any such vacancies.
See Cronin, 2022 MSPB 13, ¶ 20. Here, the administrative judge concluded that the
appellant had not alleged that the agency violated its own internal restoration
regulations. ID at 7. The appellant has not challenged that finding on review. The
Board in Cronin also clarified that claims of prohibited discrimination or reprisal
cannot serve as an “alternative means” of showing that a denial of restoration was
arbitrary and capricious. Cronin, 2022 MSPB 13, ¶ 21. The Board acknowledged that
an agency’s failure to comply with section 353.301(d) may well be the result of
prohibited discrimination or reprisal for protected activity; however, whether that is so
is immaterial to the question of whether a denial of restoration is arbitrary and
capricious for purposes of section 353.304(c). Cronin, 2022 MSPB 13, ¶ 21. In the
initial decision in this case, the administrative judge considered the appellant’s claim of
disability discrimination in the context of her denial of restoration claim, but concluded
that the appellant offered no evidence of discriminatory animus. ID at 7. In light of the
Board’s finding in Cronin, we agree with the administrative judge’s conclusion that the
appellant’s claim of disability discrimination similarly does not provide evidence that
the agency’s denial of the appellant’s restoration right was arbitrary and capricious.
3 Because the appellant raised a claim of disability discrimination in this appeal, and the
Board has now issued a Final Order dismissing the appeal for lack of jurisdiction, the
agency is required, under Equal Employment Opportunity Commission (EEOC)
regulations, to reissue a notice under 29 C.F.R. § 1614.108(f) giving the appellant the
right to elect between a hearing before an EEOC administrative judge and an immediate
final decision. See 29 C.F.R. § 1614.302(b).4
otherwise appealable action, the Board lacks jurisdiction over claims of harmful
error, prohibited personnel practices, or that an agency’s action failed to comply
with various provisions of law); Wren v. Department of the Army, 2 M.S.P.R. 1, 2
(1980) (holding that prohibited personnel practices under 5 U.S.C. § 2302(b) are
not an independent source of Board jurisdiction), aff’d, 681 F.2d 867, 871-73
(D.C. Cir. 1982).
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,6
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 7
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the 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
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
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/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Pantoja_Aida_L_CH-0353-19-0458-I-1__Final_Order.pdf | 2024-06-25 | AIDA L. PANTOJA v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-0353-19-0458-I-1, June 25, 2024 | CH-0353-19-0458-I-1 | NP |
1,158 | https://www.mspb.gov/decisions/nonprecedential/Foster_MelekAT-844E-19-0079-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MELEK FOSTER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-844E-19-0079-I-1
DATE: June 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Melek Foster , Centerville, Georgia, pro se.
Shaquita Stockes , Heather Dowie , and Linnette Scott , Washington, D.C.,
for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) denying her application for disability retirement under the Federal
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Employees’ Retirement System (FERS). Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant, a GS-07 Executive Secretary at Robins Air Force Base,
Georgia, stopped working in October 2016. Initial Appeal File (IAF), Tab 1 at 1;
Tab 9 at 198. Approximately 1 year later, she applied for a FERS disability
retirement annuity. IAF, Tab 11 at 69-72. In a January 22, 2018 initial decision,
OPM denied the appellant’s application, concluding that she did not meet the
criteria for entitlement because she was not disabled within the meaning of the
law. IAF, Tab 10 at 4-9.
Generally, OPM concluded that the appellant had no current, pertinent,
objective medical documentation to show how her asserted medical conditions or
symptoms interfered with the performance of her duties, attendance, or conduct,
or were of a severity to be disabling for at least a year from the date of her
disability retirement application. Id. at 7. OPM further found that the appellant’s
medical conditions or symptoms did not warrant accommodation or reassignment.2
Id. It also observed that the file did not contain a decision from the Social
Security Administration. Id. Thus, because the record did not show that her
medical conditions rendered her occupationally disabled, OPM denied the
appellant’s application for disability retirement. Id. The appellant requested
reconsideration and submitted further documentation in support of her request.
IAF, Tab 9 at 13, 18-197. In a September 21, 2018 final decision, OPM affirmed
its initial decision denying the appellant’s application for disability retirement.
Id. at 6-11.
The appellant filed a timely appeal of OPM’s reconsideration decision and
she did not request a hearing. IAF, Tab 1, Tab 12 at 1. She did not file a
response to the administrative judge’s close of record order. IAF, Tab 12.
The administrative judge reviewed the written record and found that the medical
evidence concerning the appellant’s hearing impairment, work-related stress and
anxiety, Post-Traumatic Stress Disorder (PTSD), insomnia, cervical pain,
malaise, and fatigue did not establish by preponderant evidence that she met the
criteria for a disability retirement under FERS. IAF, Tab 18, Initial Decision (ID)
at 5-11. He further found that the appellant’s subjective evidence also failed to
meet the criteria. ID at 12. Thus, the administrative judge found that the
appellant failed to demonstrate by preponderant evidence that she suffered from a
disabling medical condition which precluded her from performing specific work
requirements or which was inconsistent with working in general, in a particular
line of work, or in a particular work setting. Id.
The appellant filed a copy of the initial decision as her petition for review.
Petition for Review (PFR) File, Tab 1. The Acting Clerk of the Board contacted
the appellant, who confirmed that she intended her June 3, 2019 filing to be
processed as a petition for review of the April 30, 2019 initial decision in this
matter. PFR File, Tab 2 at 1. OPM has filed a response to the appellant’s
petition for review, and the appellant has filed a reply to OPM’s response.
PFR File, Tabs 3-4. 3
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s petition for review does not meet the Board’s criteria for review.
As noted above, the appellant simply submitted a copy of the initial
decision as her petition for review. PFR File, Tab 1, Tab 2 at 1. The Board has
long held that, before it will undertake a complete review of the record, the
petitioning party must explain why the challenged factual determination is
incorrect and identify the specific evidence in the record which demonstrates the
error. Weaver v. Department of the Navy , 2 M.S.P.R. 129, 133 (1980),
review denied, 669 F.2d 613 (9th Cir. 1982) (per curiam); see Tines v.
Department of the Air Force , 56 M.S.P.R. 90, 92 (1992) (finding that a petition
for review must contain sufficient specificity to enable the Board to ascertain
whether there is a serious evidentiary challenge justifying a complete review of
the record).
The appellant’s petition for review plainly fails to meet these requirements.
Additionally, as set forth in the letter acknowledging her petition for review, a
reply is limited to the factual and legal issues raised in the response to the
petition for review and may not raise new allegations of error. PFR File, Tab 2
at 5; 5 C.F.R. § 1201.114(a)(4). OPM’s response to the appellant’s petition for
review simply states that the petition fails to meet the Board’s requirements for
review. PFR File, Tab 3 at 4-5. The appellant’s reply improperly addresses
several issues that were not raised in OPM’s response to her petition for review.
PFR File, Tab 4 at 4-5. Thus, we need not consider her reply to OPM’s response.
Nevertheless, as set forth below, we have considered her arguments and they do
not show that the administrative judge erred in affirming OPM’s final decision.
The appellant failed to establish her entitlement to a disability retirement annuity.
In an appeal from an OPM decision denying a voluntary disability
retirement application, the appellant bears the burden of proof by preponderant
evidence. Christopherson v. Office of Personnel Management , 119 M.S.P.R. 635,
¶ 6 (2013). To qualify for disability retirement benefits under FERS, an4
employee must establish that: (1) she has completed at least 18 months of
civilian service creditable under FERS; (2) while employed in a position subject
to FERS, she became disabled because of a medical condition, resulting in a
service deficiency in performance, conduct, or attendance, or, if there is no such
actual service deficiency, the disabling medical condition is incompatible with
either useful and efficient service or retention in the position; (3) the disabling
medical condition is expected to continue for at least 1 year from the date the
disability retirement application is filed; (4) accommodation of the disabling
medical condition in the position held must be unreasonable; and (5) she must not
have declined a reasonable offer of reassignment to a vacant position. 5 U.S.C.
§ 8451(a); Angel v. Office of Personnel Management , 122 M.S.P.R. 424, ¶ 5
(2015); 5 C.F.R. § 844.103(a). The administrative judge found, and the parties do
not dispute, that the first and fifth requirements set forth above are met; the
appellant has more than 18 months of creditable civilian service and she did not
decline an offer of reassignment to a vacant position. ID at 8. We discern no
reason to upset those findings. We also decline to disturb his findings that the
appellant failed to show that accommodation of her hearing loss was unreasonable
or that her other conditions were disabling. ID at 8-12.2
Hearing loss
The administrative judge found that the appellant presented medical
evidence in support of her claimed hearing loss. ID at 5. He did not make a
determination as to whether this condition was disabling. ID at 10. Instead, he
appears to have found insufficient evidence to conclude that accommodation was
unreasonable. Id.; see Angel, 122 M.S.P.R. 424, ¶ 5; 5 C.F.R. § 844.103(a)(4).
The appellant’s evidence concerning her hearing impairment mentions her
difficulty hearing in meetings. IAF, Tab 9 at 53. The appellant claimed that she
was tasked with taking notes at staff meetings and that the agency denied her
2 The administrative judge did not address whether the appellant proved the remaining
elements of her burden. Similarly, we do not reach those elements. 5
request for a tape recorder to help her do so. IAF, Tab 9 at 57, Tab 10 at 32. Her
physician also mentions the use of a tape recorder as an accommodation. IAF,
Tab 1 at 18. Nevertheless, both OPM and the administrative judge credited the
agency’s assertion that it tried to provide the appellant a listening device but the
appellant’s failure to return to work after October 24, 2016 precluded the agency
from doing so. ID at 5, 10; IAF, Tab 9 at 8, 60, 202. Although the appellant
generally challenges the agency’s accommodation efforts on review, asserting
that it failed to engage in the process, PFR File, Tab 4 at 5, she does not reiterate
her specific allegation concerning the tape recorder or challenge the
administrative judge’s finding that her failure to return to work stymied the
agency’s efforts. Thus, the appellant failed to offer any evidence or argument
that accommodation of her alleged disabling medical condition in her position
was unreasonable. ID at 5, 10; see Orosco v. Office of Personnel Management ,
100 M.S.P.R. 668, ¶ 12 (2006) (finding that an appellant who did not offer
evidence or argument that accommodation in his former position was
unreasonable did not meet his burden to prove this criterion) ;
5 C.F.R. § 844.103(a)(4).
Work-related stress, anxiety, panic attacks, PTSD, and insomnia
As to the appellant’s claims of work-related stress and anxiety, panic
attacks, PTSD, and insomnia, the administrative judge appears to have found that
the medical evidence submitted by the appellant proved that she suffered from
these conditions. ID at 5-7, 10. However, he found that she failed to prove that
they were disabling. ID at 9-10. We discern no basis to disturb this finding.
The administrative judge found that these medical conditions related to the
appellant’s specific work environment. ID at 9. Her medical providers made
several recommendations that she receive a new supervisor or a position
elsewhere to alleviate her stress. IAF, Tab 1 at 6, 8 -10, 12. An applicant is not
entitled to a disability retirement annuity when her medical condition is based on
a single work environment because, for example, it grew out of a personal6
conflict with a supervisor, see Cosby v. Office of Personnel Management ,
106 M.S.P.R. 487, ¶¶ 7-10 (2007), or resulted from a perceived hostile work
environment, see Tan-Gatue v. Office of Personnel Management , 90 M.S.P.R.
116, ¶ 15 (2001), aff’d per curiam , 52 F. App’x 511 (Fed. Cir. 2002).
Nothing in the record explains how the appellant’s medical conditions of
stress, anxiety, panic attacks, PTSD, and insomnia affected her performance of
her job duties in anything but the most general terms. The medical evidence that
she provided from a Licensed Clinical Social Worker reflected that the symptoms
associated with her PTSD, i.e., panic attacks, physical manifestations of anxiety,
avoidance, difficulty concentrating, and hypervigilance, were exacerbated by her
job stress. IAF, Tab 9 at 9. He opined that she would not recover while working
under that stress. Id. Her physician wrote that her work stress affected her
ability to concentrate. Id. at 52; IAF, Tab 10 at 30. A Nurse Practitioner with a
long history treating the appellant opined that she would only recover, or be able
to return to work, if she received a position outside of her organization.
IAF, Tab 9 at 21, 185. The appellant asserted that work-related stress and anxiety
caused her to have panic attacks and experience trouble concentrating on her job.
Id. at 198. She similarly asserted that the hostile work environment she
experienced prevented her from concentrating on her job. Id. Thus, both the
appellant and her health care providers indicated that she was unable to work in
the context of what she viewed as a hostile work environment, but that she could
work elsewhere.
Cervical pain, malaise, and fatigue
As to the appellant’s claims of cervical pain, malaise, and fatigue, the
administrative judge acknowledged that the appellant’s medical evidence
supported her claim that she suffered from these conditions, although he
described the evidence as “scant.” ID at 8. We agree. The record contains two
letters from the appellant’s treating physician, dated November and
December 2016. IAF, Tab 9 at 85, 159. The doctor reported that the appellant’s7
2-week history of stress headaches had worsened the identified conditions and her
chronic anxiety. Id. The doctor stated that he adjusted the appellant’s
medications and recommended that she “be moved from her current building or
from her current supervisor” for 3 months. Id. at 159. He did not indicate that
the appellant was unable to work in general or in her particular position, how long
the conditions were expected to last, or how the recommended changes were
related to the conditions. Id. at 85, 159. The administrative judge found that the
appellant’s documentation and subjective evidence was insufficient to establish a
disabling medical condition. ID at 10. We decline to disturb this finding.
The administrative judge did not deny the appellant a hearing.
Lastly, to the extent that the appellant alleges on review that the
administrative judge erred in not holding a hearing, the appellant did not request
one. PFR File, Tab 4 at 5; IAF, Tabs 1, 3, 14, 16. An appellant’s failure to
request a hearing, after being specifically placed on notice that a hearing request
was necessary, constitutes a waiver of her hearing right. Uresti v. Office of
Personnel Management , 108 M.S.P.R. 262, ¶ 12 (2008). In acknowledging the
appeal, the administrative judge advised the appellant that she could request a
hearing if she had not already done so. IAF, Tab 2 at 1. The appellant still did
not request a hearing. In his order closing the record, the administrative judge
stated that the appellant had not requested a hearing. IAF, Tab 12 at 1.
He subsequently held a telephonic prehearing conference in which he set forth the
date for the parties’ final submissions, did not set a hearing date, and,
importantly, notified the parties that any objection to the summary must be filed
by April 15, 2019. IAF, Tab 15 at 3. The record does not reflect that the
appellant lodged any objections to the administrative judge’s orders. Thus, the
appellant waived her right to a hearing.
Accordingly, we affirm the initial decision that affirmed OPM’s
reconsideration decision denying the appellant’s application for a disability
retirement annuity. 8
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board 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.9
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any10
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s11
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 12
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Foster_MelekAT-844E-19-0079-I-1__Final_Order.pdf | 2024-06-25 | MELEK FOSTER v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-844E-19-0079-I-1, June 25, 2024 | AT-844E-19-0079-I-1 | NP |
1,159 | https://www.mspb.gov/decisions/nonprecedential/Gonzalez_Carmen_M_DA-0845-19-0248-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARMEN M. GONZALEZ,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-0845-19-0248-I-1
DATE: June 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carmen M. Gonzalez , El Paso, Texas, pro se.
Karla W. Yeakle , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed in part and modified in part a reconsideration decision issued by the
Office of Personnel Management (OPM) regarding an overpayment of Federal
Employees’ Retirement System (FERS) disability benefits made to the appellant.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Specifically, the administrative judge affirmed OPM’s determination that the
appellant received an overpayment of FERS disability benefits in the amount of
$56,089, and that she is not entitled to a waiver of the overpayment. However,
the administrative judge modified the appellant’s repayment amount to $5 per
month due to her financial hardship. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The factual findings made by the administrative judge in the initial decision
remain generally undisputed on review. Initial Appeal File (IAF), Tab 16, Initial
Decision (ID) at 2-4; Petition for Review (PFR) File, Tabs 1, 4. In a letter dated
August 2, 2012, OPM approved the appellant’s application for disability
retirement under FERS, which became effective on August 10, 2012. IAF,
Tab 10 at 104, 112-15. In the decision letter that OPM sent to the appellant, she
was told, inter alia, that she must apply for Social Security Disability Insurance
(SSDI) benefits and notify OPM of the specifics if she was awarded SSDI
benefits. Id. at 112-13. OPM further outlined to the appellant the requirement2
that for annuitants, any monthly FERS disability benefit must be reduced by the
amount of any monthly SSDI benefit,2 and to not negotiate any awarded SSDI
benefit check or payment until her FERS benefit has been properly reduced. Id.
at 113; see 5 U.S.C. § 8452(a)(2) (explaining the requirement for FERS disability
benefits to be reduced by the amount of SSDI benefits). In or around November
2015, the appellant’s application for SSDI benefits was approved, and she was
awarded SSDI benefits retroactive to December 1, 2011. IAF, Tab 5 at 24-25,
Tab 9 at 19, Tab 10 at 6. There is no evidence in the record that the appellant
contacted OPM to advise of her SSDI benefit award. See IAF, Tab 13 at 8-9 (call
logs from OPM showing that the appellant did not call to inquire about her
benefits from August 2015 through April 2018); ID at 6 n.4.
In December 2016, OPM notified the appellant of the overpayment of her
FERS disability benefits after factoring in the amount of SSDI benefits that she
received during the covered period. IAF, Tab 10 at 49-50. In total, from the
December 1, 2011 effective date of her SSDI disability benefits through
December 2016, the appellant received an overpayment of $56,089 in FERS
disability benefits. Id.; see ID at 3 n.1 (explaining that even though the
appellant’s SSDI benefits were retroactive to December 1, 2011, her FERS
disability benefit payments did not begin until August 2012, and OPM accurately
calculated the overpayment for the correct period). To recoup the overpayment,
OPM set a repayment schedule of 140 monthly installments in the amount of
$398.78 and 1 monthly installment of $259.80, to be deducted from the
appellant’s monthly FERS disability benefit payment. IAF, Tab 10 at 49-50. On
January 10, 2017, the appellant filed a request for reconsideration with OPM,
seeking to have the overpayment amount waived. IAF, Tab 5 at 22-23.
OPM issued its reconsideration decision on March 26, 2019, affirming its
determination of the existence and amount of the overpayment and finding that
2 The amount of reduction varies—for example, in the first 12 months of collection of
FERS disability benefits, payments are reduced by 100% of the SSDI monthly amount,
followed by a reduction of 60% of the SSDI monthly amount. 5 U.S.C. § 8452(a)(2). 3
the appellant was not entitled to a waiver of the overpayment. Id. at 7-11. After
taking the appellant’s Financial Resources Questionnaire (FRQ) and
accompanying documentation into account, OPM lowered her repayment amount
to 224 monthly installments of $250 and 1 monthly installment of $89. Id. at 10.
The appellant then filed this instant Board appeal contesting OPM’s
reconsideration decision. IAF, Tab 1.
During the adjudication of this Board appeal, the appellant submitted an
updated FRQ. IAF, Tab 13 at 4-6. After the appellant withdrew her hearing
request, the administrative judge issued an initial decision on the written record,
affirming in part and modifying in part OPM’s reconsideration decision. IAF,
Tab 11 at 2; ID at 1-11. Specifically, the administrative judge affirmed OPM’s
determination that after factoring in the amount of SSDI benefits that the
appellant was awarded, she received an overpayment of FERS disability benefits
in the amount of $56,089. ID at 3-5. While the appellant was not entitled to a
waiver of the overpayment, the administrative judge modified her repayment
amount to $5 per month due to her financial hardship, as her monthly expenses
exceeded her income by $56.46.3 ID at 5-11.
The appellant filed a petition for review, contesting only the administrative
judge’s findings related to her FRQ, which he used as a basis to find a financial
hardship and to calculate the modified repayment amount of $5 per month.4 ID
at 7-11; PFR File, Tab 1 at 3. OPM filed a response to the appellant’s petition for
review, in which it seeks affirmance of the initial decision. PFR File, Tab 4
at 4-5. OPM does not dispute the modified repayment amount on review. Id.
3 The appellant’s monthly income is $3,132 and her monthly expenses are $3,188.46.
IAF, Tab 13 at 4; ID at 9.
4 At no juncture during the adjudication of this appeal before the administrative judge,
or on review, has the appellant disputed the existence and amount of the overpayment.
ID at 4; PFR File, Tab 1. 4
ANALYSIS
OPM bears the burden of proving, by preponderant evidence, the existence
and amount of an overpayment of benefits. Sansom v. Office of Personnel
Management, 62 M.S.P.R. 560, 563 (1994); 5 C.F.R. § 845.307(a). If OPM meets
this burden, the appellant must establish by substantial evidence that she is
entitled to a waiver or adjustment of the overpayment. Stewart v. Office of
Personnel Management , 102 M.S.P.R. 272, ¶ 5 (2006); 5 C.F.R. § 845.307(b).
We agree with the administrative judge’s findings in the initial decision
that the agency proved by preponderant evidence the existence of an overpayment
of FERS disability benefits to the appellant in the amount of $56,089. ID at 3-5.
This overpayment occurred because the appellant received monthly FERS
disability benefit payments from August 2012 through December 2016 without an
adjustment for the amount of SSDI benefits she was awarded for this same time
period. IAF, Tab 10 at 49-50; ID at 2-5; see 5 U.S.C. § 8452(a)(2). As the
administrative judge also determined, while the appellant failed to show by
substantial evidence that she is entitled to a waiver of this overpayment, the
evidentiary record, to include the appellant’s updated FRQ, demonstrated a
financial hardship warranting a lower repayment amount, as the appellant’s
monthly expenses exceed her monthly income. IAF, Tab 13 at 4-6; ID at 5-11;
see 5 C.F.R. § 845.301 (outlining that an individual is entitled to an adjustment in
the recovery schedule for an overpayment from OPM when she shows a financial
hardship).
While in her petition for review the appellant takes issue with the manner
in which the administrative judge assessed her FRQ, our review of the record
demonstrates that the administrative judge accepted, without any reduction, the
full amount of average monthly expenses that the appellant listed on her updated
FRQ, and even added an additional $50 in emergency expenses in his calculation.
Ewing v. Office of Personnel Management , 100 M.S.P.R. 224, ¶ 7 (2005); IAF,
Tab 13 at 4-6; ID at 8-10; PFR File, Tab 1 at 3. The modified repayment amount5
of $5 per month as set by the administrative judge, which is not contested by
OPM on review, falls in line with Board decisions in similar circumstances when
annuitants had to repay OPM to cover an overpayment of benefits. PFR File,
Tab 4 at 4-5; see, e.g., Dorrello v. Office of Personnel Management , 91 M.S.P.R.
535, ¶¶ 9-10 (2002) (reducing the appellant’s repayment to OPM to $5 per month
due to his negative monthly income/expense margin); Matthews v. Office of
Personnel Management , 85 M.S.P.R. 531, ¶ 11 (2000) (same). As a result, we
find no reason to disturb the well -reasoned and substantiated initial decision.
ORDER
We ORDER OPM to reduce the appellant’s repayment schedule to a rate of
$5.00 per month. OPM must complete this action no later than 20 days after the
date of this decision.
We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and of the actions it has taken
to carry out the Board’s Order. We ORDER the appellant to provide all necessary
information OPM requests to help it carry out the Board’s Order. The appellant,
if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after OPM tells the appellant it has fully carried out
the Board’s Order, the appellant may file a petition for enforcement with the
office that issued the initial decision on this appeal if the appellant believes that
OPM did not fully carry out the Board’s Order. The petition should contain
specific reasons why the appellant believes OPM has not fully carried out the
Board’s Order, and should include the dates and results of any communications
with OPM. See 5 C.F.R. § 1201.182(a).6
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
5 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.7
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any8
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s9
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.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 10
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Gonzalez_Carmen_M_DA-0845-19-0248-I-1__Final_Order.pdf | 2024-06-25 | CARMEN M. GONZALEZ v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0845-19-0248-I-1, June 25, 2024 | DA-0845-19-0248-I-1 | NP |
1,160 | https://www.mspb.gov/decisions/nonprecedential/Klebs_OksanaDC-0845-19-0285-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
OKSANA KLEBS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0845-19-0285-I-1
DATE: June 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Oksana Klebs , North Potomac, Maryland, pro se.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her appeal of a reconsideration decision by the
Office of Personnel Management (OPM) because OPM indicated that it had
rescinded its reconsideration decision. Generally, we grant petitions such as this
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant filed this appeal challenging the January 28, 2019 OPM
reconsideration decision, in which OPM determined that the appellant had been
overpaid $8,090.80 in Federal Employees Retirement System survivor annuity
benefits. Initial Appeal File (IAF), Tab 1, Tab 7 at 10-11. While this appeal was
pending before the administrative judge, OPM indicated that it was rescinding its
reconsideration decision, and it therefore moved to dismiss the appeal for lack of
jurisdiction. IAF, Tab 9 at 4. On April 9, 2019, the administrative judge granted
OPM’s motion and dismissed the appeal for lack of jurisdiction. IAF, Tab 11,
Initial Decision at 1-2.
On petition for review, the appellant asserts that she received a Notice of
Annuity Adjustment from OPM, which stated that, starting on May 1, 2019, OPM
began withdrawing money from her survivor annuity. Petition for Review (PFR)
File, Tab 1 at 1. The appellant includes on review, among other things, the OPM2
notice which indicated that an additional $264.80 was being withheld from her
monthly annuity payment “because [OPM] paid [her] too much annuity.” Id. at 6.
In its response, OPM stated that it prematurely commenced collection of
the overpayment with the appellant’s May 1, 2019 survivor annuity payment.
PFR File, Tab 4 at 4. OPM added that it completed action to cease the collection,
and it had authorized a refund of $264.80. Id. OPM provided no evidence in
support of its assertions. Although the appellant was informed that she had the
opportunity to reply to OPM’s response, PFR File, Tab 2 at 1, she did not do so.
On July 2, 2019, the Office of the Clerk of the Board ordered OPM to file
additional evidence and argument establishing that it had restored the appellant to
the status quo ante, and it provided the appellant the opportunity to reply to
OPM’s response. PFR File, Tab 5. In its response, OPM states that it had
refunded the appellant $264.80, and OPM includes a May 10, 2019 payment
history screen printout documenting the refund and documentation identifying the
appellant’s financial institution. PFR File, Tab 6 at 4-7. The appellant did not
file a reply to OPM’s response.
DISCUSSION OF ARGUMENTS ON REVIEW
When OPM completely rescinds a reconsideration decision, the rescission
divests the Board of jurisdiction over the appeal in which the reconsideration
decision has been issued, and the appeal must be dismissed. Martin v. Office of
Personnel Management , 119 M.S.P.R. 188, ¶ 8 (2013). However, if OPM does
not restore the appellant to the status quo ante, the reconsideration decision has
not been rescinded, and the appeal remains within the Board’s jurisdiction. Id.,
¶ 10. To rescind an overpayment decision, OPM must, among other things,
refund any money that it already collected from the appellant to recoup the
alleged overpayment. Campbell v. Office of Personnel Management ,
123 M.S.P.R. 240, ¶ 8 (2016).3
Here, the record reflects on review that OPM began withholding money
from the appellant’s survivor annuity benefits based on a reconsideration decision
that it rescinded below. PFR File, Tab 1 at 1, 6; IAF, Tab 9 at 4. As noted
above, OPM has since provided unrebutted evidence and argument reflecting that
its collection efforts have ceased and the appellant has been refunded all the
money that was wrongly withheld from her survivor annuity benefits. PFR File,
Tabs 4, 6. Accordingly, we find that the undisputed record reflects that OPM has
fully restored the appellant to the status quo ante and rescinded the
reconsideration decision upon which this appeal is based. The appeal must
therefore be dismissed for lack of jurisdiction. Rorick v. Office of Personnel
Management, 109 M.S.P.R. 597, ¶ 5 (2008).
However, OPM’s rescission of its January 28, 2019 reconsideration
decision does not render moot the existence or amount of the alleged
overpayment or the appellant’s possible entitlement to a waiver. Id., ¶ 6. We
therefore dismiss the appeal without prejudice to the appellant filing a new appeal
with the appropriate regional office concerning any future reconsideration
decision by OPM on the same matter. Id., ¶ 7. Any future appeal must be filed
within the time limits set forth in the Board’s regulations. 5 C.F.R. § 1201.22.
NOTICE OF APPEAL RIGHTS2
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
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The5
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file6
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Klebs_OksanaDC-0845-19-0285-I-1__Final_Order.pdf | 2024-06-25 | OKSANA KLEBS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0845-19-0285-I-1, June 25, 2024 | DC-0845-19-0285-I-1 | NP |
1,161 | https://www.mspb.gov/decisions/nonprecedential/Demery_LibbyPH-3330-19-0292-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LIBBY A. DEMERY,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
PH-3330-19-0292-I-1
DATE: June 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Libby A. Demery , Clinton, Maryland, pro se.
Bernard E. Doyle , Arlington, Virginia, for the agency.
Mary Bradley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her appeal under the Veterans Employment
Opportunities Act of 1998 (VEOA). Generally, we grant petitions such as this
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. For the reasons set forth
below, we REVERSE the administrative judge’s finding that the Board lacks
jurisdiction over this VEOA appeal, and we AFFIRM the initial decision as
MODIFIED to deny the appellant’s request for corrective action under VEOA for
a failure to meet the 60-day time limit for filing a complaint with the Department
of Labor (DOL) under 5 U.S.C. § 3330a(a)(2)(A). Except as expressly indicated
in this Final Order, the initial decision of the administrative judge is the Board’s
final decision.
The Board has jurisdiction over this appeal under VEOA.
To establish the Board’s jurisdiction over a VEOA appeal based on an
alleged violation of veterans’ preference rights, an appellant must show that she
exhausted her remedy with DOL and make nonfrivolous allegations2 that she is a
preference eligible within the meaning of VEOA, the action at issue took place on
or after the October 30, 1998 enactment of VEOA, and the agency violated her
rights under a statute or regulation relating to veterans’ preference. Lis v.
U.S. Postal Service, 113 M.S.P.R. 415, ¶ 8 (2010); see 5 U.S.C. § 3330a(a)(1)(A).
2 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).2
To satisfy the exhaustion requirement, the appellant must prove by preponderant
evidence3 that (1) she filed a DOL complaint and (2) DOL was unable to resolve
the complaint within 60 days or has issued a written notification that DOL’s
efforts have not resulted in resolution of the complaint. Bent v. Department of
State, 123 M.S.P.R. 304, ¶ 5 (2016); see 5 C.F.R. § 1201.57(c)(1).
Here, the administrative judge dismissed this appeal for lack of jurisdiction
based on his findings that the appellant failed to file her DOL complaint within
60 days after the date of the alleged VEOA violation or to show that equitable
tolling should apply. Initial Appeal File (IAF), Tab 33, Initial Decision (ID)
at 4-5. The appellant challenges these findings on review. Petition for Review
(PFR) File, Tab 1.
It is well established that a failure to meet the 60-day time limit for filing a
DOL complaint under 5 U.S.C. § 3330a(a)(2)(A) is not a failure to exhaust
administrative remedies that deprives the Board of jurisdiction over a
VEOA claim. Kirkendall v. Department of the Army , 479 F.3d 830, 835 & n.2
(Fed. Cir. 2007) (en banc); Garcia v. Department of Agriculture , 110 M.S.P.R.
371, ¶¶ 8-13 (2009). Thus, the administrative judge here erroneously based his
jurisdictional determination on the apparent untimeliness of the DOL complaint.
Accordingly, we will conduct our own jurisdictional analysis, as follows. See,
e.g., Garcia, 110 M.S.P.R. 371, ¶ 8 & n.2.
Regarding exhaustion, the appellant alleged that she filed a DOL complaint
on May 7, 2019, when she requested DOL to reopen her prior DOL complaint
based on new evidence obtained during a prior Board appeal. IAF, Tab 23
at 9-10. She provided a copy of her written request for DOL to reopen a VEOA
complaint that she allegedly sent to DOL. Id. at 22-23. She further provided a
copy of a May 20, 2019 letter from DOL informing her that DOL would be unable
to investigate her veterans’ preference complaint because she applied for
3 A preponderance of the evidence is the 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. § 1201.4(q).3
assistance after the statutory deadline of 60 days from the date of the alleged
violation. IAF, Tab 1 at 7-8.4 Thus, we find that she submitted preponderant
evidence proving that she satisfied the exhaustion requirement.
Further, we find that the appellant satisfied the remaining jurisdictional
elements by raising nonfrivolous allegations that she is a 10-point preference
eligible (30% compensated veteran) and that the agency violated her veterans’
preference rights under 5 U.S.C. §§ 3317-3318 when it failed to select her for a
Management Analyst position in 2010-2011. IAF, Tab 23 at 2 & n.1, 8-9; see
Garcia, 110 M.S.P.R. 371, ¶ 8 n.2 (observing that 5 U.S.C. § 3318(b)(1) qualifies
as a statute relating to veterans’ preference). Based on the foregoing, we find that
the Board has jurisdiction over this appeal under VEOA, and we reverse the
administrative judge’s contrary finding. We next address whether the appellant
timely filed her DOL complaint.
We deny the appellant’s request for corrective action under VEOA for failing to
file a DOL complaint within the 60-day statutory deadline.
Under VEOA, a DOL complaint must be filed within 60 days after the date
of the alleged VEOA violation. 5 U.S.C. § 3330a(a)(2)(A); see Gingery v. Office
of Personnel Management , 119 M.S.P.R. 43, ¶ 16 (2012). The 60-day filing
deadline set forth at 5 U.S.C. § 3330a(a)(2)(A), however, is subject to equitable
tolling. Kirkendall, 479 F.3d at 835-44; Gingery, 119 M.S.P.R. 43, ¶ 17. The
U.S. Supreme Court explained in Irwin v. Department of Veterans Affairs ,
498 U.S. 89, 96 (1990), that Federal courts have “typically extended equitable
relief only sparingly” and that the Court had allowed equitable tolling when the
complainant “has actively pursued [her] judicial remedies by filing a defective
pleading during the statutory period” or when she has been “induced or tricked by
[her] adversary’s misconduct into allowing the filing deadline to pass.” See
Gingery, 119 M.S.P.R. 43, ¶ 17.
4 The DOL letter is dated May 20, 2018, which is a typographical error. ID at 3 & n.3;
IAF, Tab 6 at 3, Tab 7 at 4, 6-7.4
For the reasons explained in the initial decision, we agree with the
administrative judge’s findings that the appellant’s DOL complaint was untimely
and that she failed to show that equitable tolling should apply. ID at 4-5.
Specifically, he found it undisputed that her DOL complaint, which concerned her
nonselection in 2010-2011, was untimely. ID at 4; IAF, Tab 23 at 22-23. In
considering the appellant’s argument that she discovered new evidence of
“fraudulent concealment” at a June 12, 2018 hearing held in her prior Board
appeal, the administrative judge noted that she did not file her DOL complaint
until May 7, 2019, almost 11 months after that hearing. ID at 4; Demery v.
Department of the Army , MSPB Docket No. PH-1221-18-0105-W-1. He
concluded that the appellant’s claims of the agency’s purported fraud and that she
filed a defective pleading in 2011 were unavailing because they did not address
the relevant time period after the June 12, 2018 hearing. ID at 4.
On petition for review, the appellant reasserts her arguments regarding the
agency’s purported fraud and that she filed a timely DOL complaint in 2011.
PFR File, Tab 1; IAF, Tab 31 at 4-6, 11. Because such arguments do not explain
why she was unable to file a new DOL complaint within 60 days after the
June 12, 2018 hearing, we find that she has not established any of the limited
bases for applying equitable tolling in this matter. See Gingery, 119 M.S.P.R. 43,
¶ 17.
The appellant’s remaining arguments do not provide a reason to disturb the
initial decision. In particular, her claim that she requested to transfer this appeal
to the Board’s Washington, D.C. Regional Office is not supported by the record.
PFR File, Tab 1 at 3. Further, she has not alleged any harm to her substantive
rights. See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984)
(holding that an adjudicatory error that is not prejudicial to a party’s substantive
rights provides no basis for reversal of an initial decision). Moreover, her
assertion of adjudicatory bias based on the administrative judge’s case-related
rulings in the instant and her prior Board appeals is an insufficient basis to rebut5
the presumption of his honesty and integrity. PFR File, Tab 1 at 3 ; see Oliver v.
Department of Transportation , 1 M.S.P.R. 382, 386 (1980); see also Vaughn v.
Department of the Treasury , 119 M.S.P.R. 605, ¶ 18 (2013) (observing that the
Board will not infer bias based on an administrative judge’s case-related rulings).
Thus, we discern no error in the administrative judge’s denial of the appellant’s
motions to recuse himself. PFR File, Tab 1 at 3; ID at 1; IAF, Tabs 3, 26, Tab 31
at 4; see King v. Department of the Army , 84 M.S.P.R. 235, ¶ 6 (1999)
(explaining that an administrative judge’s case-related rulings, even if erroneous,
are insufficient to establish bias warranting recusal and that claims of perceived
adjudicatory errors do not provide a basis for recusal). Finally, the appellant’s
arguments on the merits of her VEOA claim are inapposite to the relevant
timeliness issue. PFR File, Tab 1 at 5.
Accordingly, we affirm the initial decision as modified to deny the
appellant’s request for corrective action under VEOA because she has failed to
meet the statutory 60-day time limit for filing a DOL complaint under 5 U.S.C.
§ 3330a(a)(2)(A). See, e.g., Garcia, 110 M.S.P.R. 371, ¶ 13.
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
5 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.6
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file8
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 10
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Demery_LibbyPH-3330-19-0292-I-1__Final_Order.pdf | 2024-06-25 | LIBBY A. DEMERY v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-3330-19-0292-I-1, June 25, 2024 | PH-3330-19-0292-I-1 | NP |
1,162 | https://www.mspb.gov/decisions/nonprecedential/Sparks_Michael_L_DA-1221-21-0206-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL L. SPARKS,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DA-1221-21-0206-W-1
DATE: June 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Elchonon Reizes , Esquire, Houston, Texas, for the appellant.
Linda K. Webster , Esquire, Fort Hood, Texas, for the agency.
Nora E. Hinojosa , Esquire, Fort Cavazos, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in this individual right of action appeal.
He argues that the administrative judge exhibited bias and that some of this
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
occurred during a small portion of the hearing recording that is lost. Petition for
Review (PFR) File, Tab 1 at 4-5. The appellant also challenges the administrative
judge’s findings on the merits. Id. at 6-19. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2Although the appellant alleged that the administrative judge exhibited bias,
he has not shown that the administrative judge’s conduct during the proceedings
below requires remand. See Oliver v. Department of Transportation , 1 M.S.P.R.
382, 386 (1980); Bieber v. Department of the Army , 287 F.3d 1358, 1362-63 (Fed.
Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540, 555 (1994)). We
acknowledge that a roughly 2-hour portion of the 2-day hearing is irretrievably
lost, but we do not find that this requires a different result under the
circumstances. See, e.g., Harp v. Department of the Army , 791 F.2d 161, 163
(Fed. Cir. 1986); Smith v. Office of Personnel Management , 100 M.S.P.R. 500,
¶ 6 (2005).
¶3Regarding the merits of his reprisal claims, the appellant disagrees with the
administrative judge’s conclusion that the agency proved that it would have taken
the same personnel actions involving telework and a 5-day suspension in the2
absence of the appellant’s protected whistleblowing. PFR File, Tab 1 at 6-19.
But we discern no basis for disturbing the administrative judge’s well-reasoned
findings, which are based in part upon credibility determinations that are entitled
to deference.2 See Purifoy v. Department of Veterans Affairs , 838 F.3d 1367,
1372-73 (Fed. Cir. 2016); Haebe v. Department of Justice , 288 F.3d 1288, 1301
(Fed. Cir. 2002); Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997).
Lastly, the appellant asserts that the agency denied him due process when it took
the 5-day suspension, but that claimed impropriety is beyond the scope of this
IRA appeal. PFR File, Tab 1 at 19; see Hugenberg v. Department of Commerce ,
120 M.S.P.R. 381, ¶ 24 (2013).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 The appellant has suggested that an agency cannot be found to have rebutted a prima
facie case of reprisal when, as occurred here, the administrative judge found some
motive to retaliate and no evidence of similarly situated nonwhistleblowers. PFR File,
Tab 1 at 8. However, he has not cited any support for this idea, and Board precedent
reflects otherwise. See, e.g., Scoggins v. Department of the Army , 123 M.S.P.R. 592,
¶ 31 (2016) (finding that an agency rebutted a prima facie case of reprisal even though
there was some motive to retaliate and no comparator evidence because the evidence in
support of the agency’s personnel action was very strong and outweighed the motive to
retaliate).
3 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.3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
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. 5
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Sparks_Michael_L_DA-1221-21-0206-W-1__Final_Order.pdf | 2024-06-25 | MICHAEL L. SPARKS v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-1221-21-0206-W-1, June 25, 2024 | DA-1221-21-0206-W-1 | NP |
1,163 | https://www.mspb.gov/decisions/nonprecedential/Echeverria_Eugene_A_DE-0752-19-0116-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EUGENE A. ECHEVERRIA,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DE-0752-19-0116-I-1
DATE: June 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David J. Holdsworth , Esquire, Sandy, Utah, for the appellant.
Jason D. Marsh , Esquire, and Darrin K. Johns , Esquire, Hill Air Force
Base, Utah, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal as settled. 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was employed by the agency as a Logistics Management
Specialist in the Air Force Life Cycle Management Center. Initial Appeal File
(IAF), Tab 10 at 10. On December 11, 2018, the agency proposed his removal for
conduct unbecoming a Federal employee based on two incidents regarding drug
and drug paraphernalia possession. Id. at 26-28. Following an oral and written
response to the proposed removal, the agency removed the appellant, effective
January 23, 2019. Id. at 13-22.
The appellant appealed the removal action to the Board, and a hearing was
held on April 26, 2019. IAF, Tabs 1, 25, Hearing Compact Disc (HCD). During
the hearing, the parties indicated that they had reached a settlement agreement but
needed additional time to finalize the terms. HCD. Thereafter, the agency filed a
motion to dismiss the appeal as settled, attaching the settlement agreement, which
was executed on May 23, 2019, by the appellant, his attorney, and the agency
representative. IAF, Tab 27. As a part of the agreement, the appellant agreed to
withdraw any Board appeals and to release the agency from any claims. Id. at 4.
The administrative judge issued an initial decision dismissing the appeal as
settled. IAF, Tab 28, Initial Decision (ID). He stated that he reviewed the2
agreement and found that the parties understood and freely agreed to the terms of
the agreement, that the parties wanted the agreement entered into the record so
that the Board will retain jurisdiction to enforce its terms, and that the agreement
is lawful on its face. ID at 1-2. The administrative judge accepted the settlement
agreement into the record and dismissed the appeal. ID at 2.
The appellant has filed a petition for review claiming that he involuntarily
entered into the settlement agreement. Petition for Review (PFR) File, Tab 1
at 4-5. He also argues that the underlying charge is based on improperly obtained
evidence and false information, and that the agency violated the terms of the
applicable collective bargaining agreement (CBA). Id. at 6-10. He has also
submitted a character statement from a coworker, a printout from an incident
report from the Sheriff’s Office for the county where the agency facility is
located, and a printout from the Administrative Office of the United States
Courts. PFR File, Tabs 2-4. The agency has filed a response. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The parties’ settlement agreement is valid.
A party may challenge the validity of a settlement agreement if he believes
that it is unlawful, involuntary, or the result of fraud or mutual mistake.
Hinton v. Department of Veterans Affairs , 119 M.S.P.R. 129, ¶ 4 (2013).
To establish that a settlement was fraudulent as a result of coercion or duress, a
party must prove that he involuntarily accepted the other party’s terms, that the
circumstances permitted no other alternative, and that such circumstances were
the result of the other party’s coercive acts. Id. The party challenging the
validity of a settlement agreement bears a heavy burden of showing a basis for
invalidating the agreement. Id.
Here, the appellant claims that the settlement was involuntary because the
administrative judge only heard the agency’s side of the case and pressured him
to settle without providing him a chance to present his side of the case. PFR File,3
Tab 1 at 4-5. Specifically, the appellant asserts that the administrative judge told
him that he “might as well settle . . . because . . . he was not going to believe a
word [the appellant] said in [his] defense anyway.” Id. at 5. The Board has held
that when an appellant alleges that an administrative judge put so much pressure
on him to vitiate his consent, he must present the same sort of evidence that he
would otherwise be required to put forth if the allegation was against another
party to the litigation. Compare Lee v. U.S. Postal Service , 48 M.S.P.R. 274, 280
(1991), with Hinton, 119 M.S.P.R. 129, ¶ 4.
We find that the appellant’s allegations are insufficient to establish that he
involuntarily entered into the agreement as a result of the administrative judge’s
actions. First, the appellant has offered no evidence on review beyond his bare
assertions to support his claim that the administrative judge pressured him into
entering the agreement, nor has he claimed that he lacked any meaningful
alternative. PFR File, Tab 1 at 4-5. Further, looking to the terms of the
agreement, the beginning paragraph and closing paragraph include language
stating that the parties entered into the agreement freely and voluntarily. IAF,
Tab 27 at 4, 6. Moreover, the appellant was represented by counsel when he
signed the settlement agreement, id. at 6, and the Board has considered that as a
factor weighing against a finding of involuntariness, see Coker v. Department of
Commerce, 111 M.S.P.R. 523, ¶ 9 (2009) (considering the fact that the appellant
was represented by counsel in negotiating a settlement agreement as a factor in
finding that he could not collaterally challenge the settlement agreement).
Accordingly, we find the appellant’s argument that he entered into the settlement
agreement involuntarily to be unconvincing.2
2 To the extent the appellant’s allegations amount to claims that the administrative
judge was biased, we similarly find the appellant’s claims insufficient. An
administrative judge’s conduct during the course of a Board proceeding warrants a new
adjudication only if the administrative judge’s comments or actions evidence “a
deep-seated favoritism or antagonism that would make fair judgment impossible.”
Bieber v. Department of the Army , 287 F.3d 1358, 1362-63 (Fed. Cir. 2002 )
(quoting Liteky v. United States, 510 U.S. 540, 555 (1994 )). The appellant’s assertions
here do not meet this rigorous standard.4
The appellant’s remaining arguments on review do not provide a basis to disturb
the initial decision.
As stated above, the appellant also argues that the underlying charge is
based on improperly obtained evidence and false information.3 PFR File, Tab 1
at 6-7. He also renews his argument from below, made prior to the settlement
agreement, IAF, Tab 9, that the agency engaged in harmful procedural error when
it failed to comply with certain terms of the CBA, PFR File, Tab 1 at 7-10.
We need not consider either claim, however, because the appellant chose not to
pursue them when he agreed to settle his appeal with a term in the settlement
agreement that he would not pursue the issues raised in the appeal. IAF, Tab 27
at 4; see Young v. Department of the Interior , 76 M.S.P.R. 501, 504 (1997)
(finding that an appellant chose not to pursue his affirmative defense when he
agreed to settle his appeal).
Based on the foregoing, we deny the appellant’s petition for review and
affirm the initial decision dismissing the appellant’s appeal as settled.4
3 In his petition for review, the appellant claims that the agency’s actions regarding the
underlying action constitute “fraud.” PFR File, Tab 1 at 6-7. We clarify that these
allegations do not amount to allegations of fraud in the inducement of the settlement
agreement because they do not address the parties’ negotiation process and only
concern the merits of the underlying action, thereby making them irrelevant to our
consideration of the validity of the settlement agreement. See Wofford v. Department of
Justice, 115 M.S.P.R. 468, ¶ 7 (2010 ) (defining “fraud in the inducement” as a
misrepresentation that leads another to enter into a transaction with a false impression
of the risks, duties, or obligations involved).
4 As discussed above, the appellant also submitted three additional documents on
review. PFR File, Tabs 2-4. Under 5 C.F.R. § 1201.115, the Board generally will not
consider evidence submitted for the first time with the petition for review absent a
showing that it was unavailable before the record was closed despite the party’s due
diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980 ). Additionally,
the Board will not grant a petition for review based on new evidence absent a showing
that it is of sufficient weight to warrant an outcome different from that of the initial
decision. Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980 ). The appellant
has not shown that any of the three documents submitted on review were unavailable
before the record closed despite his due diligence, nor has he shown that they concern
the settlement agreement at issue here, thereby failing to demonstrate that they are of
sufficient weight to warrant an outcome different from that of the initial decision.5
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
5 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.6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any7
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s8
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.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Echeverria_Eugene_A_DE-0752-19-0116-I-1__Final_Order.pdf | 2024-06-25 | EUGENE A. ECHEVERRIA v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DE-0752-19-0116-I-1, June 25, 2024 | DE-0752-19-0116-I-1 | NP |
1,164 | https://www.mspb.gov/decisions/nonprecedential/Gobin_CorriSF-0752-18-0567-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CORRI GOBIN,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
SF-0752-18-0567-I-1
DATE: June 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ronica Scales , Esquire, and Shaun C. Southworth , Esquire, Atlanta,
Georgia, for the appellant.
Andrew Joseph Romey , Joint Base Andrews, Maryland, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her removal from Federal service. 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The agency removed the appellant from her position based on a single
charge of falsification of a medical note. Initial Appeal File (IAF), Tab 1 at 33,
Tab 4 at 31, 95-97. The appellant filed an appeal in which she challenged her
removal and contended that it constituted disability discrimination and retaliation.
The administrative judge found that the agency proved its charge, the appellant
failed to prove her affirmative defenses, and the penalty of removal was
reasonable.
To prove a charge of falsification, the agency must show by preponderant
evidence that the appellant supplied wrong information and knowingly did so
with the intention of defrauding, deceiving, or misleading the agency for her own
private material gain. Gardner v. Department of Veterans Affairs , 123 M.S.P.R.
647, ¶ 11 (2016), clarified by Pridgen v. Office of Management and Budget ,
2022 MSPB 31, ¶¶ 23-24. The appellant admitted that she altered the medical
note, but she denied that she had the intent to deceive the agency. Hearing
Recording (HR), Track 4, testimony of the appellant. She alleged that every
statement she inserted into the forged note was something that one of her doctors
had told her except for the statement that she should not take any tests. Id. She
admitted that she fabricated that statement. Id. The appellant altered a medical2
note, included in the alteration a statement that she should not take tests, a
statement which she invented on her own, and she submitted it the day before the
day she was supposed to take a test she had already failed twice and needed to
pass to stay in her position.2 We find that the administrative judge correctly
found that the agency proved its falsification charge.
The administrative judge found that the appellant failed to show that her
removal constituted disability discrimination. Initial Appeal File (IAF), Tab 22,
Initial Decision (ID) at 12-16. Although the appellant claims that she was
entitled to reasonable accommodation, we agree with the administrative judge
that the appellant has not shown that she was entitled to reasonable
accommodation. This is a misconduct case. The appellant is not entitled to an
accommodation that would have prevented her from falsifying the medical note.
Cf. Wilber v. Brady , 780 F. Supp. 837, 840 (D.D.C. 1992) (stating that the
Rehabilitation Act is not designed to insulate disabled individuals from
disciplinary actions that would be taken against any employee regardless of her
status); Walsh v. U.S. Postal Service , 74 M.S.P.R. 627, 634-35 (1997) (finding
that Congress intended in the Americans with Disabilities Act (ADA) to require
agencies to treat disabled employees the same as non-disabled employees with
respect to discipline). Whether the appellant may have been entitled to a
reasonable accommodation relating to testing conditions is a matter beyond the
Board’s purview because the agency’s testing schedule and conditions are not
adverse actions otherwise appealable to the Board.
We also agree with the administrative judge that the appellant failed to
show, based on evidence that was available to the agency at the time it removed
her, that she was disabled. To prove disability discrimination, the appellant must
2 The record is unclear as to any deadline for the appellant to have passed the test. It is
not clear whether she would have been offered another opportunity to take the test if
she had taken it as scheduled and failed. The appellant’s supervisor testified that, if she
did not eventually get her certification, he did not intend to remove her; he intended to
reassign her to a position that did not require the certification. HR, Track 1, testimony
of V; IAF, Tab 17 at 16.3
first establish that she is an individual with a disability as that term is defined in
the ADA Amendments Act and the Equal Employment Opportunity Commission’s
(EEOC) regulations. Thome v. Department of Homeland Security, 122 M.S.P.R.
315, ¶ 24 (2015). The appellant may prove that she has a disability by showing
that she has a physical or mental impairment that substantially limits one or more
major life activities, has a record of such an impairment, or is regarded as having
such an impairment. 42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(g)(1). An
impairment is considered to be a disability if it substantially limits an individual’s
ability to perform a major life activity as compared to most people in the general
population. 29 C.F.R. § 1630.2(j)(1)(ii). The term “substantially limits” is
construed broadly in favor of expansive coverage, to the maximum extent
permitted under the ADA, and is not meant to be a demanding standard.
29 C.F.R. § 1630.2(j)(1)(i).
At the time of her removal, the appellant was being treated by unnamed
specialists for an unknown condition that manifested in skin lesions, visible on
her arms and legs. HR, Track 1, testimony of V. After her removal, the
appellant, according to her testimony, was diagnosed with a condition we will
refer to as “V” due to disease in a major organ. HR, Track 4, testimony of the
appellant. There is not a single piece of medical documentation in the record.
The appellant has not identified any of the doctors who treated her, nor has she
identified their specializations. She has not claimed that she was limited in any
major life activity. In fact, she appears to have continued with her normal life as
she always had, including maintaining an active practice of scuba diving.
The only limitations the appellant has ever claimed are a sense of mental
fogginess and memory problems (in the form of difficulty in retaining new
information) as a side effect of medication “P” she took off and on to manage
whatever was causing the skin lesions (now known to be V). HR, Track 4,
testimony of the appellant. The appellant did not take P consistently; she testified
that she stopped taking it several days before the scheduled February 28, 20184
test date. Id. There is, again, no medical documentation to substantiate the
nature and severity of the side effects she may have been experiencing but,
whatever they may have been, she felt alert enough to continue scuba diving even
while she was taking her medication. Id.
We find that the appellant’s condition, as it was known at the time of her
removal, i.e., skin lesions, was not a “disability” as defined in the EEOC’s
regulations at 29 C.F.R. § 1630.2(g)(1)(a) because the appellant did not proffer
any medical or anecdotal evidence showing that the lesions substantially limited
one or more major life activity. Indeed, she never made such a claim. The
appellant’s post-removal diagnosis, for which there is no medical documentation,
does not establish that the appellant was disabled at the time of her removal. Cf.
Brown v. Department of Health and Human Services , EEOC Request No.
05921024, 1992 WL 1370708, *8 (1993) (“ [T]he agency’s accommodation
obligation arises only when the disability is known. . . . [T]he Commission must
focus on the information available to the decision-maker at the time of her
decision, as opposed to any information submitted into the record during the
processing of this complaint.” ). Thus, the appellant’s evidence of disability as of
the date of the hearing is insufficient to show that she was disabled and that her
disability was known to the agency as of the date of her removal.
The appellant’s condition, limited solely to the mental fogginess and
memory issues she suffered as a side effect of the P as opposed to the condition
the P was designed to treat, could arguably constitute a “disability” for
purposes of the ADA, even if the underlying condition is not a “disability.”
Sulima v. Tobyhanna Army Depot , 602 F.3d 177, 186-87 (3rd Cir. 2010);
Christian v. St. Anthony Medical Center, Inc. , 117 F.3d 1051, 1052 (7th Cir.
1997). We agree with the administrative judge that the appellant failed to show
that the side effects of her medication were disabling because there was no
medical evidence to substantiate her claims that the medication caused
impairments that made it difficult for her to focus, learn, and maintain alertness.5
In addition, the weight of the evidence shows that these alleged impairments did
not manifest in other areas of her job performance, and she did not limit any of
her other activities, even those requiring a high degree of alertness and
concentration, in particular, scuba diving. HR, Track 1, testimony of V, Track 4,
testimony of the appellant. The appellant’s supervisor was also a scuba diver and
had personal knowledge of the risks and dangers involved in scuba diving and the
mental requirements for safe diving, and he personally witnessed the appellant
diving. HR, Track 1, testimony of V . In other words, the appellant’s claim that
she was impaired was uncorroborated by medical evidence or by any other
observable indicia.
Regarding the appellant’s allegation of retaliation for having engaged in
protected activity, a request of reasonable accommodation is protected activity
under 42 U.S.C. § 12203(a). See Southerland v. Department of Defense ,
119 M.S.P.R. 566, ¶ 21 (2013), overruled on other grounds by Pridgen ,
2022 MSPB 31. In Pridgen, 2022 MSPB 31, ¶¶ 46-47, the Board found that the
“but-for” standard is applicable to retaliation claims under the Rehabilitation Act,
overruling the Board’s finding in Southerland.
Here, the appellant never used the term “reasonable accommodation” or
invoked the agency’s reasonable accommodation process, and the agency did not
deem her to have requested reasonable accommodation. However, the appellant’s
supervisor prepared a memorandum for the record in which he stated, “[The
appellant] was asked multiple times about how her studies were going and she
mentioned that she needed more time due to some new meds that she was taking,
which, according to her, did not allow her to concentrate very well.” IAF, Tab 13
at 19. This general request for assistance for alleged medical reasons is sufficient
to at least trigger the agency’s obligation to engage in the interactive process, and
as such, it constitutes activity protected under the Rehabilitation Act. The
administrative judge correctly found that both the deciding and proposing
officials denied that they were aware of any such protected activity. ID at 20.6
The proposing official’s testimony on this point is incorrect in light of the email
message quoted above. He knew about the appellant’s protected activity,
although he may not have recognized it as such. There is no evidence, however,
that the deciding official had any knowledge of any protected activity and, thus,
no evidence that his decision was motivated even in part by retaliatory animus.
The appellant contends that the agency’s action constitutes reprisal because
she refused to comply with her supervisor’s instructions to sign a letter. Under
5 U.S.C. § 2302(b)(9)(D), it is a violation of the Whistleblower Protection Act, as
amended, to retaliate against an employee for refusing to obey an order that
would require the individual to violate a law, rule, or regulation. There is one
email on this issue, from the supervisor to the appellant asking her to “please sign
the attachment so we can get pass [sic] this.” IAF Tab 15 at 58. The name of the
attachment, according to the email, is “ITAM Appt Letter 074”; the attachment
itself is not in the record. Id. The appellant’s position, according to her
testimony, was that her supervisor was ordering her to sign off on an inventory of
computer equipment that had not yet been performed and in the process
bestowing on her legal responsibility for any missing equipment as a fiduciary.
HR, Track 4, testimony of the appellant. She further testified that doing this
would violate an “Air Force Instruction,” although she did not know which one,
and there is neither any reference to one nor a copy of one in the record.3 Id. The
appellant’s supervisor testified that the document was merely a letter of
appointment which authorized her to conduct an inventory in the first place—as
an alternate—and which was required before the inventory could begin. HR,
3 The appellant contends for the first time on review that the pertinent rule is Air Force
Instruction 33-112, but she does not provide a copy and she does not explain why she
could not have identified this rule before the record closed below. PFR File, Tab 1
at 15. She further contends that the Inspector General (IG) told her not to sign the
letter, but her documentation for this statement is her own reply to the notice of
proposed removal, not any independent corroboration. Id. She has not claimed reprisal
for disclosing information to or cooperating with the IG under 5 U.S.C. § 2302(b)(9)
(C).7
Track 1, testimony of V. The supervisor’s testimony on this detail is
corroborated by the name of the attachment on the email, as noted above.
The administrative judge found, in any event, that that appellant failed to
show that complying with the instruction to sign the letter would have violated a
law, rule, or regulation. ID at 23. We agree. The appellant has not provided a
copy of the document she was required to sign, she does not provide a citation or
copy of the rule she was asked to violate, and she cannot tell the Board what the
rule says. The administrative judge correctly found that the appellant did not
prove that the agency reprised against her for activity protected under 5 U.S.C.
§ 2302(b)(9)(D).
Finally, the appellant contends that the penalty of removal was excessive.
When all of the agency’s charges are sustained, the Board will review the
agency-imposed penalty only to determine if the agency considered all the
relevant factors and exercised management discretion within tolerable limits of
reasonableness. Adam v. U.S. Postal Service , 96 M.S.P.R. 492, ¶ 5 (2004). In
doing so, the Board must give due weight to the agency’s primary discretion in
maintaining employee discipline and efficiency, recognizing that the Board’s
function is not to displace management’s responsibility, but to ensure that
managerial judgment has been properly exercised. Id. The Board will modify a
penalty only when it finds that the agency failed to weigh the relevant factors or
that it clearly exceeded the bounds of reasonableness in determining the penalty.
Id.
The deciding official testified that he considered the appellant’s 6 years of
satisfactory service with no prior disciplinary record and the fact that she was
going through a period of personal stress at the time she committed her
misconduct. HR, Track 3, testimony of S. He testified that these mitigating
factors were outweighed by the seriousness of the offense, which was dishonest
and deliberate. Id. He testified that the appellant had access to sensitive
information in her position and that the loss of trust in her integrity was8
particularly important. Id. He also testified that the appellant had limited
potential for rehabilitation and, while she expressed remorse for her misconduct,
she did not really accept responsibility for what she did but instead offered
excuses. Id.
On review, the appellant argues that the penalty of removal is excessive
because the deciding official applied a zero-tolerance policy. Petition for Review
(PFR) File, Tab 1 at 16-17. This is simply not true. The deciding official
testified that he found the appellant’s misconduct to be extremely serious and that
he would likely be inclined to remove anyone who committed similar misconduct,
but that it would depend on the circumstances of the case. HR, Track 3,
testimony of S.
The appellant asserts that the deciding official failed to adequately consider
her medical condition as a mitigating circumstance. PFR File, Tab 1 at 17. The
deciding official considered the appellant’s medical condition and found it to be a
neutral factor because the appellant provided very little information about it.
IAF, Tab 4 at 36.
The appellant avers that the deciding official improperly considered the
fact that she failed to complete a form relating to off-duty employment. PFR
File, Tab 1 at 17. The record shows that the deciding official found this to be a
neutral factor, which means it was not material to his deliberations. IAF, Tab 4
at 36.
Finally, the appellant claims that her misconduct was not intentional. PFR
File, Tab 1 at 18. We fail to see any scenario in which the appellant’s misconduct
could be characterized as accidental or even inadvertent. The appellant’s
misconduct was clearly deliberate and was committed for the purpose of delaying
the test date, likely because she did not expect to pass if she took the test as
scheduled.
The foregoing demonstrates that the deciding official considered the factors
most relevant to this case enumerated in Douglas v. Veterans Administration ,9
5 M.S.P.R. 280, 305-06 (1981), and reasonably exercised his management
discretion. That the appellant wishes that the agency had weighed the Douglas
factors differently provides no basis for mitigating the penalty.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
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.10
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on11
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or12
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 13
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.14 | Gobin_CorriSF-0752-18-0567-I-1__Final_Order.pdf | 2024-06-25 | CORRI GOBIN v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. SF-0752-18-0567-I-1, June 25, 2024 | SF-0752-18-0567-I-1 | NP |
1,165 | https://www.mspb.gov/decisions/nonprecedential/Clemente_JesusSF-3443-20-0600-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JESUS CLEMENTE,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
SF-3443-20-0600-I-1
DATE: June 25, 2024
THIS ORDER IS NONPRECEDENTIAL*
Jesus Clemente , San Diego, California, pro se.
Gregory Patrick , Esquire, Falls Church, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his nonselection appeal for lack of jurisdiction. For the reasons
discussed below, we GRANT the appellant’s petition for review. We AFFIRM
the initial decision’s findings that the Board lacks jurisdiction over the matter as
an adverse action, employment practices, or suitability action appeal. We FIND
* A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
that his prohibited personnel practices claims are not an independent source of
jurisdiction. However, we REMAND the case to the Western Regional Office for
further adjudication of his claims pursuant to the Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA) (codified at
38 U.S.C. §§ 4301-4333) and the Veterans Employment Opportunity Act of 1998
(VEOA).
BACKGROUND
The appellant is an Immigration Judge in San Diego, California. Initial
Appeal File (IAF), Tab 1 at 1. He applied for an Appellate Immigration Judge
position, and the agency interviewed him but later notified him that he was not
selected. Id. at 3-5. He appealed his nonselection, asserting that he was not
selected for the position because “I am not a known Republican or Conservative
and not involved in cronyism” and the agency discriminated against him “because
of political reasons and cronyism.” Id. at 5. In an acknowledgment order, the
administrative judge notified the appellant that the Board generally lacks
jurisdiction over nonselection claims, and she instructed him how to meet his
jurisdictional burden. IAF, Tab 2. The appellant filed a response and addendum
asserting that the Board has jurisdiction over his nonselection claim because the
agency, through the Office of Personnel Management (OPM), violated basic
requirements of 5 C.F.R. § 300.103(a) and because the agency engaged in a
prohibited personnel practice under 5 U.S.C. § 2302(b)(1) by discriminating
against him based on his race, national origin, color, age, disability, and political
affiliation. IAF, Tabs 4-5. The agency filed a response, and the appellant filed a
reply. IAF, Tabs 6-7. After considering the submissions, the administrative
judge dismissed the appeal for lack of jurisdiction, finding that the appellant
failed to nonfrivolously allege jurisdiction over his nonselection claim. IAF,
Tab 19, Initial Decision (ID) at 5. The appellant has filed a petition for review,
and the agency has filed a response. Petition for Review (PFR) File, Tabs 1, 3. 2
DISCUSSION OF ARGUMENTS ON REVIEW
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). The Board generally lacks
jurisdiction to consider an appeal regarding a nonselection for a position.
Nakshin v. Department of Justice , 98 M.S.P.R. 524, ¶ 9 (2005). Claims of
unlawful conduct in the selection process ordinarily must be brought before other
forums. Prewitt v. Merit Systems Protection Board , 133 F.3d 885, 886 (Fed. Cir.
1998).
On review, the appellant asserts that the administrative judge erred when
she found that the appellant failed to nonfrivolously allege jurisdiction over his
nonselection. Specifically, he argues that the Board has jurisdiction over his
nonselection because (1) he was subjected to a suitability action, (2) he was
subjected to an appealable unlawful employment practice pursuant to 5 C.F.R.
§ 300.103 and 5 C.F.R. § 300.104(a), and (3) he was subjected to a prohibited
personnel practice pursuant to 5 U.S.C. § 2302(b)(1) when the agency
discriminated against him based on his race, national origin, color, age, disability,
and political affiliation. PFR File, Tab 1. Additionally, it appears that the
appellant is seeking to assert a USERRA and/or VEOA claim. Id. at 5.
We affirm the administrative judge’s finding that the appellant failed to
nonfrivolously allege that he was subjected to a suitability determination. ID at
4-5. The administrative judge issued an acknowledgment order explaining the
appellant’s burden to nonfrivolously allege jurisdiction if he believed he was
subjected to a suitability determination. IAF, Tab 2 at 3-4. The appellant
submitted a response and addendum totaling over 300 pages, but he did not allege
that he was subjected to a cancellation of eligibility, a removal, a cancellation of
reinstatement eligibility, or a debarment. Id.; 5 C.F.R. § 731.203(a). In his
petition for review, the appellant makes a conclusory allegation that the
administrative judge “incorrectly concluded OPM did not engage in a suitability3
determination,” but he did not allege any facts in support of his assertion. PFR
File, Tab 1 at 5. The appellant also states on review that the administrative judge
incorrectly set forth the legal standard. We disagree and find that the
administrative judge correctly set forth the standard for an appealable suitability
action.
We likewise affirm the administrative judge’s finding that the appellant
failed to nonfrivolously allege that an employment practice applied to him by
OPM violated a basic requirement in 5 C.F.R. § 300.103. ID at 4-5. The Board
has jurisdiction over an employment practice claim under 5 C.F.R. § 300.104(a)
when the following two conditions are met: (1) the appeal must concern an
employment practice that OPM is involved in administering; and (2) the appellant
must make a nonfrivolous allegation that the employment practice violated one of
the “basic requirements” for employment practices set forth in 5 C.F.R.
§ 300.103. Burroughs v. Department of the Army , 116 M.S.P.R. 292, ¶ 15,
appeal dismissed , 446 F. App’x 293 (Fed. Cir. 2011). “An individual agency
action or decision that is not made pursuant to or as part of a rule or practice of
some kind does not qualify as an ‘employment practice.’” Prewitt, 133 F.3d at
887; see also Dowd v. Office of Personnel Management , 745 F.2d 650, 651 (Fed.
Cir. 1984) (affirming the Board’s dismissal for lack of jurisdiction because “OPM
played no part in the ineligible rating given to [the] petitioner” and thus “ OPM
had not applied any employment practice to [the] petitioner”) (emphasis added).
On review, the appellant alleges that the agency asked interview questions that
were unrelated to the basic job duties and responsibilities of the position and that
the questions were “designed specifically to find the [a]ppellant unqualified for
the position.” PFR File, Tab 1 at 5-6. He further alleges, “the agency failed to
provide in the announcement ‘the factors that are important in evaluating
candidates,’ as required under 5 C.F.R. § 300.103(a)(3),” though he later
acknowledged that the announcement did contain the factors important in
evaluating candidates, and he argues instead that the agency “unfairly and4
maliciously shifted the narrative during the interview” to ask questions that he
contends are unrelated to the basic responsibilities of the position. PFR File,
Tab 1 at 6-7 (emphasis added). The appellant has failed to identify OPM’s
involvement, if any, in the development of interview questions. The fact that
OPM may have been involved in posting the job announcement and forwarding
qualified candidates to the agency does not transform the appellant’s complaint
about an individual agency action or decision into an appealable employment
practice. E.g., IAF, Tab 7 at 8; PFR File, Tab 1 at 5. We therefore agree with the
administrative judge that the appellant has failed to nonfrivolously allege an
appealable employment practice.
The appellant also argues that the administrative judge failed to consider
his claim that the Board has jurisdiction over his allegation of a prohibited
personnel action pursuant to 5 U.S.C. § 2302. Specifically, he alleges that the
agency discriminated against him based on his race, national origin, color, age,
disability, and political affiliation. PFR File, Tab 1 at 7-8. The Board can
consider claims of prohibited personnel practices in conjunction with an
otherwise appealable matter or if the claim is brought as an independent right of
action under 5 U.S.C. § 1221. See 5 U.S.C. § 2302(b)(8); Brodt v. Merit Systems
Protection Board , 11 F.3d 1060, 1061 (Fed. Cir. 1993) (“Prohibited personnel
practices are cognizable by the Board only when they motivate an otherwise
appealable personnel action.”). However, section 2302(b) does not provide an
independent ground for Board jurisdiction. Fair v. Department of the Navy ,
66 M.S.P.R. 485, 488 (1995). Because the appellant’s allegation of a prohibited
personnel practice was not coupled with an otherwise appealable personnel action
or brought as an independent right of action under section 1221, the Board lacks
jurisdiction over the appeal.
In his petition for review, the appellant states that he is “a 90% disabled
veteran, part of the ‘uniform service,’ and entitled to ‘veterans’ preference.’”
PFR File, Tab 1 at 5. Although the appellant did not specifically invoke5
USERRA or VEOA by name, his filings before the administrative judge
referenced the agency’s “knowledge of his military and disability status ,”
alleged he was denied the position “due to his military standing,” and referenced
his veterans’ preference. IAF, Tab 7 at 4-5 (emphasis in original). The
administrative judge’s acknowledgment order did not provide explicit notice on
how the appellant could establish jurisdiction over his claim as a USERRA
appeal, and the issue is not addressed in the initial decision. Under the
circumstances, we find it appropriate to remand for consideration of the potential
USERRA claim. On remand, the administrative judge shall notify the appellant
of the USERRA burdens and methods of proof.
The appellant may also have attempted to raise a claim under VEOA.
Although his actual allegations do not suggest that the agency failed to observe
veterans’ preference laws and he does not allege that he timely filed a complaint
with the Secretary of Labor, as required under 5 U.S.C. § 3330a, we note that the
appellant checked the box on the initial appeal form noting he was entitled to
veterans’ preference and his submissions have made reference to his entitlement
to veterans’ preference. IAF, Tab 1, 4, Tab 7 at 5; PFR File, Tab 1 at 5. VEOA
claims must be liberally construed. Loggins v. U.S. Postal Service , 112 M.S.P.R.
471, ¶ 14 (2009). We likewise remand this appeal for adjudication of any VEOA
claim that the appellant might have raised. On remand, the administrative judge
shall provide the appellant with a complete statement of the jurisdictional
elements for a VEOA claim. 6
ORDER
Accordingly, we remand this case to the Western Regional Office for
further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Clemente_JesusSF-3443-20-0600-I-1__Remand_Order.pdf | 2024-06-25 | JESUS CLEMENTE v. DEPARTMENT OF JUSTICE, MSPB Docket No. SF-3443-20-0600-I-1, June 25, 2024 | SF-3443-20-0600-I-1 | NP |
1,166 | https://www.mspb.gov/decisions/nonprecedential/Doe_JohnDA-0752-19-0105-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN DOE,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DA-0752-19-0105-I-1
DATE: June 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence Berger , Esquire, Glen Cove, New York, for the appellant.
Kaymi Y. Ross , Springfield, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision that
sustained his removal for misconduct. On petition for review, the appellant
argues that the administrative judge erred in construing the charge. Generally, we
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for
granting the petition for review. Therefore, we DENY the petition for review
and AFFIRM the initial decision, which is now the Board’s final decision.
5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you3
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
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: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Doe_JohnDA-0752-19-0105-I-1__Final_Order.pdf | 2024-06-25 | JOHN DOE v. DEPARTMENT OF JUSTICE, MSPB Docket No. DA-0752-19-0105-I-1, June 25, 2024 | DA-0752-19-0105-I-1 | NP |
1,167 | https://www.mspb.gov/decisions/nonprecedential/Uddin_MariumDA-0752-23-0266-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARIUM UDDIN,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DA-0752-23-0266-I-1
DATE: June 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rebecca Fisher , Esquire, San Antonio, Texas, for the appellant.
Karey Hart , Esquire, Falls Church, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction, finding that the agency’s termination
of her time-limited appointment on the appointment’s expiration date is not an
appealable action. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2The administrative judge found that, effective April 14, 2019, the agency
appointed the appellant as an Immigration Judge in the excepted service for a
period not to exceed April 13, 2021. Initial Appeal File (IAF), Tab 29, Initial
Decision (ID) at 2-5. The administrative judge further found that the appellant’s
appointment terminated upon its expiration date, April 13, 2021, and,
consequently, the separation from service was not an appealable action per
5 C.F.R. § 752.401(b)(11). Id. She also found that the appellant’s claims of
discrimination or prohibited personnel practices were not an independent source
of jurisdiction. ID at 5. The administrative judge concluded that the appellant
had not made a nonfrivolous allegation of jurisdiction and dismissed the appeal
without a hearing. ID at 4-6 & n.*.
¶3On petition for review, the appellant contests certain terminology the
administrative judge used concerning her appointment, asserting that the
appointment was neither a “term” nor “temporary” appointment. Petition for
Review (PFR) File, Tab 1 at 4-5. She asserts that the appointment documentation2
and context clearly indicated an expectation that her employment would continue
beyond 24 months. Id. at 7-8. She argues that the agency failed to take the
necessary steps prior to 4:00 p.m. on April 13, 2021, to effect her separation. Id.
at 6, 8. She argues that she is entitled to a hearing. Id. at 8. The agency has filed
a substantive opposition to which the appellant has replied. PFR File, Tabs 4, 6.
¶4We agree with the administrative judge that the appellant has not made a
nonfrivolous allegation that she was subject to an appealable adverse action under
chapter 75 of title 5 of the U.S. Code because she was terminated pursuant to the
expiration of a time-limited appointment. ID at 4-5; IAF, Tab 7 at 16, Tab 9
at 35-39, Tab 24 at 7, Tab 26 at 4-5; see 5 C.F.R. § 752.401(b)(11). The
appellant has given no reasons to disturb the administrative judge’s analysis on
that issue.
¶5The appellant’s arguments about the terminology the administrative judge
used when labelling her time-limited appointment are immaterial to the outcome
of the case. PFR File, Tab 1 at 4-5. The material issue is whether the agency
terminated her “appointment on the expiration date specified as a basic condition
of employment at the time the appointment was made.” See 5 C.F.R.
§ 752.401(b)(11). We agree with the administrative judge’s findings that that is
what occurred here, the appellant has not made a nonfrivolous allegation to the
contrary, and therefore the appellant was not subjected to an appealable action
under 5 U.S.C. chapter 75. ID at 2-6.
¶6Furthermore, the fact that the appellant may have satisfied the definition of
an “employee” under 5 U.S.C. § 7511(a)(1)(C) and/or had completed an asserted
probationary or trial period prior to her termination is immaterial to the outcome
of the case. PFR File, Tab 1 at 5-8. Rather, when an appointment is subject to a
definite expiration date, the termination of the appointment on that date is not an
adverse action appealable to the Board. Leonard v. Department of the Army ,
78 M.S.P.R. 492, 494 (1998); 5 C.F.R. § 752.401(b)(11). Her appointment had
simply lapsed in accordance with the terms of the appointment. See Berger v.3
Department of Commerce , 3 M.S.P.R. 198, 199-200 (1980). Because this case
does not turn on whether the appellant is an “employee” under 5 U.S.C. § 7511,
we find that the appellant’s reliance on Berryman v. Department of Veterans
Affairs, 115 M.S.P.R. 558 (2010), is misplaced. PFR File, Tab 1 at 6-7. In
Berryman, the agency terminated the appellant because she did not meet the
regulatory requirements of her appointment. 115 M.S.P.R. 558, ¶ 2. Here, in
contrast, the appellant was terminated upon the expiration of her time-limited
appointment, which is not an appealable action.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,5
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 6
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Uddin_MariumDA-0752-23-0266-I-1__Final_Order.pdf | 2024-06-25 | MARIUM UDDIN v. DEPARTMENT OF JUSTICE, MSPB Docket No. DA-0752-23-0266-I-1, June 25, 2024 | DA-0752-23-0266-I-1 | NP |
1,168 | https://www.mspb.gov/decisions/nonprecedential/Jimenez_CarloDA-315I-23-0199-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARLO JIMENEZ,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DA-315I-23-0199-I-1
DATE: June 25, 2024
THIS ORDER IS NONPRECEDENTIAL1
Elizabeth Matta , Esquire, and Amanda Moreno , Esquire, Houston, Texas,
for the appellant.
J. Douglas Whitaker , Esquire, Omaha, Nebraska, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
¶1The appellant has filed a petition for review and the agency has filed a cross
petition for review of the initial decision, which dismissed for lack of jurisdiction
this appeal of the agency’s decision to return the appellant to his previous
position during his supervisory probationary period. For the reasons discussed
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
below, we GRANT the petition for review, DENY the cross petition for review,
REVERSE the initial decision and the appellant’s demotion, and REMAND the
case to the regional office for further adjudication of the appellant’s
whistleblower reprisal claim in accordance with this Remand Order.
BACKGROUND
¶2Effective February 27, 2022, the agency promoted the appellant from his
Deportation Officer (DO) position, GS-1801-12, Step 05, to a Supervisory
Detention and Deportation Officer position, GS-1801-13, Step 02. Initial Appeal
File (IAF), Tab 15 at 66. The Standard Form 50 (SF-50) documenting the
appellant’s promotion indicated that it was subject to the successful completion of
a 1-year supervisory probationary period beginning on the same date. Id. Both
positions were in the competitive service. Id. at 17, 66. On February 22, 2023,
the agency advised the appellant that he had failed to successfully complete his
supervisory probationary period due to unsatisfactory performance. Id. at 20-21.
The agency further informed him that he would be reassigned to his former
position, effective close of business February 24, 2023. Id. at 20.
¶3The appellant filed a timely appeal of his demotion, arguing that his return
to his lower-graded DO position did not occur prior to the end of his tour of duty
on the last day before his anniversary date and, therefore, that he had completed
his supervisory probationary period, and the Board has jurisdiction over this
action as an appealable reduction in grade and pay. IAF, Tab 13 at 4, Tab 17
at 4-5. He also indicated that he was subjected to “disparate treatment” and that
his demotion constituted whistleblower reprisal. IAF, Tab 1 at 3.
¶4The administrative judge notified the appellant that the Board may lack
jurisdiction over his demotion during his supervisory probationary period,
apprised the appellant of his burdens to establish jurisdiction over the agency’s
action as an adverse action appeal, individual right of action (IRA) appeal, or by
nonfrivolously alleging that the termination of his promotion was based on his
3
marital status or partisan politics, and afforded him an opportunity to submit
further argument and evidence on jurisdiction. IAF, Tab 2 at 2-3, Tabs 3, 16.
After both parties submitted responses, the administrative judge issued an initial
decision, without holding the appellant’s requested hearing, dismissing the appeal
for lack of jurisdiction. IAF, Tabs 8-9, 11-15, 17-19, 21; Tab 1 at 2, Tab 23,
Initial Decision (ID) at 1, 8. She found that the agency took all required steps
necessary to end the supervisory appointment by February 25, 2023, before the
appellant’s 1-year anniversary. ID at 6-7. Therefore, she concluded that the
appellant was not subjected to an appealable demotion under chapter 75, but,
rather, was reassigned pursuant to 5 C.F.R. part 315, subpart I, before his initial
appointment as a supervisor became final. ID at 7. She concluded that the Board
lacks jurisdiction to review the appellant’s reassignment under 5 C.F.R.
§ 315.908(b) because he did not allege that it was based on his marital status or
partisan politics. Id. She further found that the Board lacks jurisdiction over the
appellant’s demotion as an IRA appeal because he did not prove that he exhausted
his administrative remedies with the Office of Special Counsel (OSC). ID at 7-8.
¶5The appellant has filed a petition for review, reasserting that the termination
of his supervisor appointment was effective at 11:59 on February 25, 2023, after
his 2:00 a.m. tour of duty. Petition for Review (PFR) File, Tab 1 at 7-8, 10-12.
He asserts that he has now filed a whistleblower claim with OSC but does not
claim he exhausted it. Id. at 13. The agency has filed a response and a cross
petition for review, rearguing that the appellant’s probationary period ended on
February 26, 2023. PFR File, Tab 3 at 6-7. The appellant has filed an untimely
response to the cross petition for review. PFR File, Tab 6. The Clerk’s Office
issued an untimeliness notice, to which the appellant responded. PFR File,
Tabs 7-8.
4
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge erred in finding that the appellant failed to
nonfrivolously allege that he had completed his supervisory probationary period
prior to his reassignment.
¶6Under 5 U.S.C. § 3321(a)(2) and 5 C.F.R. § 315.904(a), an employee in an
initial appointment as a supervisor or manager in the competitive service is
required to serve a probationary period as prescribed by the agency. See Burton
v. Department of the Air Force , 118 M.S.P.R. 210, ¶ 7 (2012). An employee who
does not satisfactorily complete the supervisory probationary period shall be
reassigned to a position of no lower grade and pay than the one he left to accept
the supervisory position. 5 U.S.C. § 3321(b); Burton, 118 M.S.P.R. 210, ¶ 7;
5 C.F.R. § 315.907(a). A return to a lower-graded position under such
circumstances is not appealable as a reduction-in-grade adverse action under
chapter 75. Levy v. Department of Labor , 118 M.S.P.R. 619, ¶ 11 (2012). Under
these circumstances, an employee has Board appeal rights only if he claims that
the agency’s action was based on partisan political or marital status
discrimination. Burton, 118 M.S.P.R. 210, ¶ 7; 5 C.F.R. § 315.908.
¶7When the facts suggest that an appellant would have been a probationary
supervisor at the time of the alleged reduction in grade or pay, to establish
chapter 75 jurisdiction, he must show that either (1) he was not required to serve
a supervisory probationary period, or (2) he completed his probationary period
before the reduction in grade. See Levy, 118 M.S.P.R. 619, ¶ 11. Here, the
appellant does not allege that his reassignment was based on partisan political
reasons or marital status. He also does not dispute that he was required to serve a
supervisory probationary period. Instead, he reargues that he completed the
probationary period before his reduction in grade and, therefore, that the Board
has jurisdiction over his demotion. PFR File, Tab 1 at 4; IAF, Tab 13 at 4,
Tab 17 at 4-5, 8. For the following reasons, we agree with the appellant that his
5
demotion was effected after he completed his probationary period and, thus, that
the Board has jurisdiction over his appeal.
¶8A probationary period ends at the completion of the last day of the
employee’s tour of duty before his anniversary date. Herring v. Department of
Veterans Affairs , 72 M.S.P.R. 96, 100 (1996); 5 C.F.R. § 315.804(b). A “tour of
duty” is an employee’s regularly scheduled hours and days of duty. Hardy v.
Merit Systems Protection Board , 13 F.3d 1571, 1573 (Fed. Cir. 1994). For
example, when the last workday is a Friday and the anniversary date is the
following Monday, the agency must effectuate the personnel action before the end
of the employee’s tour of duty on Friday. 5 C.F.R. § 315.804(b). Separations
from Federal employment are generally effective at the end of the day (midnight)
on the effective date unless another time is specified. Stewart v. Department of
Transportation, 2023 MSPB 18, ¶ 15; Office of Personnel Management, The
Guide to Processing Personnel Actions , chapter 31, section 5,
https://www.opm.gov/policy-data-oversight/data-analysis-documentation/
personnel-documentation/processing-personnel-actions/gppa31.pdf (last visited
June 25, 2024).
¶9Here, the agency appointed the appellant to his position on February 27,
2022. IAF, Tab 15 at 66. Thus, his anniversary date was Monday, February 27,
2023. The record shows that the appellant’s regular tour of duty was Monday
through Friday, from 6:00 p.m., to 2:00 a.m. IAF, Tab 21 at 22. Accordingly, the
administrative judge correctly found that to effect his demotion during his
probationary period, the agency was required to demote him before the end of his
last scheduled tour of duty, which was from 6:00 p.m. on Friday, February 24,
2023, until 2:00 a.m., Saturday, February 25, 2023. ID at 4.
¶10In its cross petition for review, the agency reasserts that the administrative
judge should have found that the appellant’s supervisory probationary period
ended at midnight on February 26, 2023 because there is no “weekend rule” in the
plain reading of 5 C.F.R. § 315.905 in contrast to 5 C.F.R. § 315.804(b). PFR
6
File, Tab 3 at 6-7. It argues that the plain reading of 5 C.F.R. § 315.905
specifically delegates to the head of each agency the authority to determine the
length of the supervisory probationary period. Id. at 7. We find this argument
unpersuasive. As the administrative judge explained below, the Board held in
Bishop v. Department of Commerce , 62 M.S.P.R. 138, 140 (1994), that the same
rule for completion of an initial appointment in the competitive service applies to
an initial appointment to a supervisory position. IAF, Tab 16 at 2-3. In so
holding, the Board specifically rejected the agency’s assertion “that 5 C.F.R.
§§ 315.904 and .905 allow agencies to determine the length of probationary
periods for supervisors and managers, and therefore that because it set one year as
the applicable period, it is entitled to find that service of notice on the
anniversary date suffices.” Bishop, 62 M.S.P.R. at 140. Moreover, as mentioned
above, OPM’s guidance on processing personnel actions provides that an initial
appointment probationary period ends at the end of the employee’s tour of duty
on the last work day of the probationary period. Office of Personnel
Management, The Guide to Processing Personnel Actions , chapter 31, section 5,
https://www.opm.gov/policy-data-oversight/data-analysis-documentation/
personnel-documentation/processing-personnel-actions/gppa31.pdf (last visited
June 25, 2024); see Stewart, 2023 MSPB 18, ¶ 15. Therefore, we decline to
disturb the administrative judge’s finding that the agency was required to demote
the appellant before the end of his last scheduled tour of duty, which was from
6:00 p.m. on Friday, February 24, 2023, until 2:00 a.m., Saturday, February 25,
2023. ID at 4.
¶11On review, the appellant reasserts that the termination of his supervisory
appointment was effective at 11:59 p.m. on February 25, 2023, after the end of
his last tour of duty at 2:00 a.m. on February 25, 2023. PFR File, Tab 1 at 10;
IAF, Tab 19 at 6. The administrative judge found that the agency’s February 22,
2023 notice of demotion, which occurred prior to the end of the appellant’s last
tour of duty, was sufficient to meet the requirements of 5 C.F.R. § 315.907(c).
7
ID at 6. Looking at the documentation surrounding the demotion action, the
SF-50 specifies February 25, 2023, as the effective date, but it does not specify a
time of day. IAF, Tab 17 at 14. However, the demotion notice itself states that
the demotion would be “effective close of business February 24, 2023.” IAF,
Tab 15 at 20. Putting aside the issue of whether “close of business” can
reasonably be interpreted as coinciding with the end of the appellant’s scheduled
tour of duty at 2:00 a.m. on February 25, 2023, we find that a demotion at the end
of a probationer’s final tour of duty does not satisfy the regulatory requirement
that a demotion be effected before the end of his final tour of duty. See 5 C.F.R.
§ 315.804(b); see Stewart, 2023 MSPB 18, ¶ 17 (finding that a termination action
effective at the “close of business” on the last day of the appellant’s probationary
period occurred at the same time that the appellant completed his final tour of
duty and was therefore not completed prior to the end of the probationary period
as required); see Johnston v. Small Business Administration , 15 M.S.P.R. 709,
710-11 (1983) (same), modified on other grounds by Stephen v. Department of the
Air Force, 47 M.S.P.R. 672 (1991). Therefore, we find that even though the
appellant received the demotion notice prior to the effective date and time stated
in the notice, the appellant’s demotion was not effected before he completed his
probationary period.2
We must reverse the agency’s action because the appellant filed a timely appeal
and the agency violated his due process rights by failing to comply with the
procedures outlined in 5 U.S.C. § 7701.
¶12Because the appellant was subjected to an appealable demotion action
pursuant to 5 U.S.C. § 7512(3) and (4), he was required to file his Board appeal
no later than 30 days after the effective date, if any, of the action being appealed,
2 On review, the appellant resubmits a copy of the SF-50 documenting his demotion.
IAF, Tab 17 at 14; PFR File, Tab 1 at 16. Evidence submitted on review that was
included in the record below and considered by the administrative judge is not new.
Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980). In any event, we have
considered the SF-50 that is contained in the record below to the extent that it is
relevant to our findings here.
8
or 30 days after the date of his receipt of the agency’s decision, whichever is
later. 5 C.F.R. § 1201.22(b)(1). Here, the appellant received the agency’s
decision on February 22, 2023, and filed his appeal on March 1, 2023. IAF,
Tab 1, Tab 15 at 25. Thus, he timely filed his appeal fewer than 30 days after
receiving the agency’s decision.
¶13Further, the agency failed to provide the appellant minimum due process,
thus requiring reversal of the action. An agency’s failure to provide a tenured
public employee with an opportunity to present a response, either in person or in
writing, to an appealable agency action that deprives him of his property right in
his employment constitutes an abridgement of his constitutional right to minimum
due process of law, i.e., prior notice and an opportunity to respond. Cleveland
Board of Education v. Loudermill , 470 U.S. 532, 546 (1985). Here, the agency
issued the demotion notice, effective close of business February 24, 2023, and did
not provide the appellant an opportunity to respond. IAF, Tab 15 at 20-21. These
procedures for effecting the separation did not comport with a tenured employee’s
constitutional right to minimum due process of law. See Claiborne v. Department
of Veterans Affairs , 118 M.S.P.R. 491, ¶ 8 (2012). Accordingly, the agency’s
removal action must be reversed. See Samble v. Department of Defense , 98
M.S.P.R. 502, ¶ 14 (2005).
We remand the appeal for adjudication of the appellant’s claim of
whistleblower reprisal.
¶14Below and on review, the appellant asserts that the agency was retaliating
against him for reporting that his direct report “opened [a] knife inches from [the]
[a]ppellant’s face and pressed it against his computer monitor . . . at the
Montgomery Processing Center (MPC), a weapon free environment.” IAF, Tab 8
at 5; PFR File, Tab 1 at 5, 12-13. Because he has asserted a claim of
whistleblower reprisal, he may be entitled to relief in addition to reversal of the
agency’s decision. 5 U.S.C. § 1221(g); see Samble, 98 M.S.P.R. 502, ¶ 15.
Accordingly, this claim is not moot, and he is entitled to its adjudication.
9
5 U.S.C. § 7701; see Samble, 98 M.S.P.R. 502, ¶ 16. Thus, we remand the appeal
for a hearing and adjudication on the merits of his affirmative defense of
whistleblower reprisal. See Samble, 98 M.S.P.R. 502, ¶ 16.3 Because the
reduction in pay and grade must be reversed regardless of the outcome on
remand, we will not delay in ordering the agency to reverse the action and
provide appropriate back pay and benefits. See Martin v. U.S. Postal Service ,
123 M.S.P.R. 189, ¶ 14 (2016).
ORDER
¶15For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
¶16We ORDER the agency to restore the appellant to his GS -13 Supervisory
Detention and Deportation Officer position, effective close of business
February 24, 2023. See Kerr v. National Endowment for the Arts , 726 F.2d 730
(Fed. Cir. 1984). The agency must complete this action no later than 20 days
after the date of this decision.
¶17We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
3 The appellant’s counsel has filed a motion to accept the appellant’s response to the
agency’s cross petition for review, asserting that she timely served the response on the
agency on October 24, 2023, ahead of the November 3, 2023 deadline, but was unable
to upload the submission due to “rollout difficulties” she experienced with the Board’s
new e-Appeal system. PFR File, Tab 8 at 4. However, the appellant’s counsel did not
explain why she did not attempt to file the submission or contact the Board regarding
any difficulties she was experiencing, prior to submitting the response to the Board via
fax on November 27, 2023. Accordingly, we have not considered the appellant’s
response.
10
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶18We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶19No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
11
For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx .
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐2) Settlement agreement, administrative determination, arbitrator award, or order.
☐3) Signed and completed “Employee Statement Relative to Back Pay”.
☐4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2.The following information must be included on AD-343 for Restoration:
a.Employee name and social security number.
b.Detailed explanation of request.
c.Valid agency accounting.
d.Authorized signature (Table 63).
e.If interest is to be included.
f.Check mailing address.
g.Indicate if case is prior to conversion. Computations must be attached.
h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3.Outside earnings documentation statement from agency.
4.If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5.Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6.If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a.Must provide same data as in 2, a-g above.
b.Prior to conversion computation must be provided.
c.Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.
2 | Jimenez_CarloDA-315I-23-0199-I-1__Remand_Order.pdf | 2024-06-25 | CARLO JIMENEZ v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DA-315I-23-0199-I-1, June 25, 2024 | DA-315I-23-0199-I-1 | NP |
1,169 | https://www.mspb.gov/decisions/nonprecedential/Thomas_Michael_B_DC-0752-19-0672-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL BERNARD THOMAS,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-0752-19-0672-I-1
DATE: June 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael Bernard Thomas , Woodbridge, Virginia, pro se.
Stephanie Sneed , Esquire, Bethesda, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for failure to prosecute. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
The agency removed the appellant for medical inability to perform his
duties. Initial Appeal File (IAF), Tab 4 at 13-15. He filed the instant appeal of
his removal and registered as an e-filer. IAF, Tab 1 at 2-3. The Board’s regional
office received no further submissions from him before the issuance of the initial
decision.
In an acknowledgment order, the administrative judge notified the parties
that failure to follow her orders or the Board’s regulations could result in
unspecified sanctions. IAF, Tab 2 at 2. The administrative judge instructed the
parties that they could seek clarification with her via telephone regarding any of
the case processing instructions set forth in the acknowledgment order. Id. In
compliance with the administrative judge’s instructions, the agency submitted its
agency file. IAF, Tab 2 at 7, 9-10, Tab 4. Thereafter, the administrative judge
issued an order scheduling a preliminary status conference with the parties. IAF,
Tab 5 at 1.2
Neither party appeared for the scheduled telephonic status conference.
IAF, Tab 6 at 1. On August 29, 2019, the administrative judge informed the
appellant that his failure to appear for the conference constituted a violation of a
Board order and she ordered the appellant to show cause why he failed to appear
at the telephonic status conference. Id. The administrative judge explicitly
notified the appellant that, if he failed to submit a written explanation for his
failure to appear at the conference by September 3, 2019, she would find that he
had violated two Board orders and dismiss the appeal for failure to prosecute. Id.
at 1-2. The appellant did not respond to the order to show cause. On September
5, 2019, the administrative judge issued an initial decision dismissing the appeal
for failure to prosecute. IAF, Tab 7, Initial Decision (ID) at 1, 3. The
administrative judge found that the appellant’s lack of responsiveness to her
orders was tantamount to the abandonment of his appeal. ID at 2.
The appellant has filed a petition for review and a supplement to his
petition, and the agency has filed a response. Petition for Review (PFR) File,
Tabs 1, 3, 5.
DISCUSSION OF ARGUMENTS ON REVIEW
The sanction of dismissal with prejudice may be imposed if a party fails to
prosecute or defend an appeal. Leseman v. Department of the Army ,
122 M.S.P.R. 139, ¶ 6 (2015); 5 C.F.R. § 1201.43(b). Such a sanction should be
imposed only when a party has failed to exercise basic due diligence in
complying with Board orders, or has exhibited negligence or bad faith in its
efforts to comply. Leseman, 122 M.S.P.R. 139, ¶ 6. Repeated failure to respond
to multiple Board orders can reflect a failure to exercise basic due diligence.
Williams v. U.S. Postal Service , 116 M.S.P.R. 377, ¶ 9 (2011). Absent an abuse
of discretion, the Board will not reverse an administrative judge’s determination
regarding sanctions. Leseman, 122 M.S.P.R. 139, ¶ 6. 3
As observed above, the appellant failed to appear for the status conference
and failed to respond to the order to show cause. ID at 1 -2; IAF, Tab 6 at 1. On
petition for review, he has not addressed or explained these failures. PFR File,
Tabs 1, 3. He reiterates his claims, from below, that his removal was the result of
prohibited personnel practices. PFR File, Tab 1 at 5; IAF, Tab 1 at 5. He also
submits documents concerning his equal employment opportunity (EEO)
complaint against the agency, most of which he filed with his initial appeal.2 PFR
File, Tab 3 at 4 -14, 25-36; IAF, Tab 1 at 12-22. This evidence concerning the
merits of his appeal is not determinative of the propriety of the dismissal for
failure to prosecute. See Leseman, 122 M.S.P.R. 139, ¶ 7 (finding an appellant’s
arguments regarding the merits of the agency’s action was not determinative of
whether the administrative judge properly dismissed the appeal for failure to
prosecute).
The appellant has made no statements on review disputing his receipt of
any of the administrative judge’s orders. PFR File, Tabs 1, 3. The regional
office notified him of each of the administrative judge’s orders by electronic
mail, in accordance with his status as an e -filer. IAF, Tab 1 at 2, Tab 2 at 18,
Tab 5 at 2, Tab 6 at 3. As an e -filer, the appellant was responsible for monitoring
his case activity at the Repository at e-Appeal Online to ensure that he received
all of the case-related documents. Mills v. U.S. Postal Service, 119 M.S.P.R. 482,
¶ 6 (2013); 5 C.F.R. § 1201.14(j)(3). He is deemed to have received the
administrative judge’s orders on the date of electronic submission. Mills,
119 M.S.P.R. 482, ¶ 6; 5 C.F.R. § 1201.14(m)(2).
Because there is no evidence that the appellant took any steps to pursue his
appeal until he filed his petition for review, and because the administrative judge
explicitly warned him that failure to respond to the show cause order would result
in the dismissal of his appeal for lack of prosecution, we find that the appellant
2 He also attaches what appears to be a letter in which he sought representation. PFR
File, Tab 1 at 7-8.4
failed to exercise basic due diligence in prosecuting his appeal. See Leseman,
122 M.S.P.R. 139, ¶ 7 (finding that, by failing to take any steps to pursue her
appeal until her filed her petition for review, despite being warned that her
failure to participate may result in dismissal of the appeal with prejudice,
the appellant failed to exercise due diligence in pursuing her appeal); cf.
Wiggins v. Department of the Air Force , 113 M.S.P.R. 443, ¶¶ 12-14 (2010)
(finding the sanction of dismissal too severe when the administrative judge never
specifically warned the appellant of his intent to dismissal the appeal for lack of
prosecution and the appellant had previously taken affirmative steps in pursuing
his appeal, including participating in a telephonic status conference and filing
responsive pleadings). Accordingly, we conclude that the administrative judge
did not abuse her discretion in imposing the severe sanction of dismissal with
prejudice and affirm the initial decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you6
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
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: 7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Thomas_Michael_B_DC-0752-19-0672-I-1__Final_Order.pdf | 2024-06-25 | MICHAEL BERNARD THOMAS v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-0752-19-0672-I-1, June 25, 2024 | DC-0752-19-0672-I-1 | NP |
1,170 | https://www.mspb.gov/decisions/nonprecedential/Blount_Gladys_S_DC-1221-20-0448-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GLADYS S. BLOUNT,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-1221-20-0448-W-1
DATE: June 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gladys S. Blount , Fayetteville, North Carolina, pro se.
John S. Chamblee , Esquire, Peachtree City, Georgia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal on the grounds of
adjudicatory efficiency. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED
with respect to the legal bases for dismissal, we AFFIRM the initial decision.
On petition for review, the appellant essentially resubmits the jurisdictional
statement that she provided in response to the administrative judge’s Order on
Jurisdiction and Proof Requirements. Compare Petition for Review (PFR) File,
Tab 1 at 1-11, with Initial Appeal File (IAF), Tab 7 at 1-11. She does not
discernably challenge the administrative judge’s dismissal of the instant IRA
appeal on the grounds of adjudicatory efficiency. PFR File, Tab 1; IAF, Tab 8,
Initial Decision (ID) at 6; see Bean v. U.S. Postal Service , 120 M.S.P.R. 447, ¶ 5
(2013) (explaining that adjudicatory efficiency is appropriate when an identity of
issues exists and the controlling issues in the appeal will be determined in a prior
appeal); Zgonc v. Department of Defense , 103 M.S.P.R. 666, ¶ 6 (2006), aff’d,
230 F. App’x 967 (Fed. Cir. 2007).
At the time the administrative judge issued her initial decision, both of the
appellant’s two prior IRA appeals were pending before the Board on petition for
review and, therefore, dismissal on the basis of adjudicatory efficiency was
appropriate at the time. See Zgonc, 103 M.S.P.R. 666, ¶ 6. We agree with the
administrative judge that the first of these two appeals concerned the appellant’s
reassignment. ID at 1-2, 6. However, because the Board has since issued a final2
decision on the merits in that appeal, the appellant’s claim regarding her
reassignment is now appropriately dismissed on the grounds of res judicata.
Blount v. Department of Defense , MSPB Docket No. DC-1221-18-0765-W-1,
Final Order (May 9, 2024); see Davis v. U.S. Postal Service , 119 M.S.P.R. 22,
¶ 17 (2012), overruled on other grounds by Cronin v. U.S. Postal Service ,
2022 MSPB 13.
Regarding the appellant’s remaining claims, we agree with the
administrative judge that they were the subject of her other previous IRA appeal,
which the administrative judge had already dismissed for lack of jurisdiction.
Blount v. Department of Defense , MSPB Docket No. DC-1221-19-0766-W-1,
Initial Decision; ID at 2-3, 6. After the initial decision in the instant appeal was
issued, the appellant withdrew the petition for review that she had filed in that
IRA appeal and elected to seek review before the U.S. Court of Appeals for the
Federal Circuit. Blount v. Department of Defense , MSPB Docket No. DC-1221-
19-0766-W-1, Petition for Review File, Tab 7 at 1. On August 3, 2021, the court
issued a final decision affirming the dismissal for lack of jurisdiction. Blount v.
Merit Systems Protection Board , 855 F. App’x 764 (Fed. Cir. 2021). Therefore,
the appropriate basis for the dismissal of those claims is now collateral estoppel.
See Killeen v. Office of Personnel Management , 558 F.3d 1318, 1323 (Fed. Cir.
2009); McNeil v. Department of Defense , 100 M.S.P.R. 146, ¶ 15 (2005).
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
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. 4
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the5
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
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 of6
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Blount_Gladys_S_DC-1221-20-0448-W-1__Final_Order.pdf | 2024-06-24 | GLADYS S. BLOUNT v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-1221-20-0448-W-1, June 24, 2024 | DC-1221-20-0448-W-1 | NP |
1,171 | https://www.mspb.gov/decisions/nonprecedential/Hamilton_EricDE-0752-19-0255-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIC HAMILTON,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DE-0752-19-0255-I-1
DATE: June 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
A. Brian Henson , Decatur, Georgia, for the appellant.
Andrew Joseph Romey , Joint Base Andrews, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his 25-day suspension. 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you3
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 4
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Hamilton_EricDE-0752-19-0255-I-1__Final_Order.pdf | 2024-06-24 | ERIC HAMILTON v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DE-0752-19-0255-I-1, June 24, 2024 | DE-0752-19-0255-I-1 | NP |
1,172 | https://www.mspb.gov/decisions/nonprecedential/Barnhart_Brett_A_DA-0752-23-0282-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRETT A. BARNHART,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DA-0752-23-0282-I-1
DATE: June 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carl Eric Owen , Rupert, Idaho, for the appellant.
Craig A. Cowart , Esquire, and John Holton , Esquire, Memphis, Tennessee,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his involuntary retirement appeal for lack of jurisdiction. On petition
for review, the appellant reasserts that his decision to retire was involuntary and
coerced; argues that the administrative judge failed to consider his sworn affidavit
in reaching her decision; challenges the agency’s decision to detail him; alleges
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
that the administrative judge improperly considered his claim that the agency
previously attempted to remove him as a part of his involuntary retirement appeal;
challenges the administrative judge’s finding that he had the option to “stand and
fight” any proposed adverse action instead of retiring; and argues that the
administrative judge improperly stayed discovery deadlines until after resolution
of the jurisdictional question. Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
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
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The3
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 6
Contact information for the courts of appeals can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Barnhart_Brett_A_DA-0752-23-0282-I-1__Final_Order.pdf | 2024-06-24 | BRETT A. BARNHART v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-0752-23-0282-I-1, June 24, 2024 | DA-0752-23-0282-I-1 | NP |
1,173 | https://www.mspb.gov/decisions/nonprecedential/Thompson_GregoryDA-0752-22-0341-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GREGORY THOMPSON SR.,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DA-0752-22-0341-I-1
DATE: June 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gregory Thompson Sr. , Broken Arrow, Oklahoma, pro se.
Lauren Williams, Esquire, and Matthew R. Watson , Esquire, Tulsa,
Oklahoma, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his constructive suspension appeal for lack of jurisdiction. On petition
for review, the appellant reraises his arguments that his supervisor acted in bad
faith by delaying a decision on his reasonable accommodation request and,
ultimately, improperly denied his request. Generally, we grant petitions such as
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
2 The appellant has filed two motions on review. We deny both. First, the appellant
moved to strike the agency’s response to his petition for review, arguing that it was
untimely. Petition for Review (PFR) File, Tab 7 at 4. We agree with the agency that its
response was timely filed in accordance with the Board’s regulations at 5 C.F.R.
§§ 1201.22(b)(1), 1201.23. PFR File, Tab 8 at 5-6. Therefore, we deny the appellant’s
motion to strike. Second, the appellant submitted a motion for leave to file the
deposition transcript of his supervisor who denied his reasonable accommodation
request, which he argues was not available below because it was taken after the
issuance of the initial decision. PFR File, Tab 12 at 4. Under 5 C.F.R. § 1201.115, the
Board generally will not consider evidence submitted for the first time with the petition
for review absent a showing that it was unavailable before the record was closed despite
the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980).
Here, as the appellant has not provided any explanation for why he could not obtain and
submit a deposition from his supervisor prior to the close of the record below, we
decline his motion to submit one now. See LaPre v. Department of Justice , 62 M.S.P.R.
329, 334 n.2 (1994).
3 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.2
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
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. 3
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Thompson_GregoryDA-0752-22-0341-I-1__Final_Order.pdf | 2024-06-24 | GREGORY THOMPSON SR. v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-0752-22-0341-I-1, June 24, 2024 | DA-0752-22-0341-I-1 | NP |
1,174 | https://www.mspb.gov/decisions/nonprecedential/Washington_Craig_C_DE-1221-19-0449-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CRAIG C. WASHINGTON,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
DE-1221-19-0449-W-1
DATE: June 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Craig C. Washington , Albuquerque, New Mexico, pro se.
Nanette Gonzales , Lakewood, Colorado, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in this individual right of action (IRA)
appeal. On petition for review, the appellant makes the following arguments: the
administrative judge relied on “hearsay” and made erroneous credibility findings
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
and factual determinations; the supervisor that testified at the hearing was not
apprised of the appellant’s prior complaints regarding his purported protected
disclosure, and instead, he made his purported disclosures to his former first-line
supervisor; the agency action terminating him was unsupported; and he was
improperly classified as a probationary employee. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review.
As the administrative judge correctly concluded, the appellant’s reference
to “ventilation from these chemicals” in a May 3, 2019 email requesting that
maintenance personnel “repair the screens on the office windows and make sure
the windows are in working condition,” without more, is not sufficient to
establish that he had a reasonable belief that he was disclosing a violation of a
law, rule, or regulation, or a substantial and specific danger to public health and
safety, and so the appellant did not meet his burden of proving that he made a
protected disclosure. Initial Appeal File, Tab 28, Initial Decision (ID) at 7-8; see
Linder v. Department of Justice , 122 M.S.P.R. 14, ¶ 14 (2014) (concluding that,
to establish IRA jurisdiction, an appellant must make a specific and detailed
allegation of wrongdoing, rather than a vague one); Chavez v. Department of
Veterans Affairs , 120 M.S.P.R. 285, ¶ 24 (2013) (finding that the appellant’s2
disclosure of a violation of agency policy or practice, as opposed to a law, rule, or
regulation, is not protected under section 2302(b)(8); Smart v. Department of the
Army, 98 M.S.P.R. 566, ¶ 17 (stating that a revelation of a negligible, remote, or
ill-defined peril that does not involve any particular person, place, or thing is not
a protected disclosure of a substantial and specific danger to public health or
safety), aff’d, 157 F. App’x 260 (Fed. Cir. 2005); cf. Wojcicki v. Department of
the Air Force, 72 M.S.P.R. 628, 634 (1996) (concluding that an appellant’s report
that employees were coughing up blood as a result of improper sandblasting
procedures was a disclosure of a substantial and specific danger).
Regarding the appellant’s challenge to the administrative judge’s factual
findings and credibility determinations, we see no reason to disturb those findings
on review. Petition for Review File, Tab 1 at 2-3. The administrative judge
based her decision to credit the Construction Supervisor’s account of events over
the appellant’s on her demeanor-based credibility determination of each witness’s
testimony. ID at 4, 7-8 (citing Hillen v. Department of the Army , 35 M.S.P.R.
453, 458 (1987)). The appellant’s arguments on review are not sufficient to
disturb the administrative judge’s finding. See Haebe v. Department of Justice ,
288 F.3d 1288, 1301 (Fed. Cir. 2002) (observing that the Board generally must
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); Faucher v. Department of the Air Force ,
96 M.S.P.R. 203, ¶ 8 (2004) (stating that “sufficiently sound” reasons for
overturning an administrative judge’s demeanor-based credibility determinations
include circumstances when the administrative judge’s findings are incomplete,
inconsistent with the weight of evidence, and do not reflect the record as a
whole); Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105-06 (1997) (finding no
reason to disturb the administrative judge’s findings when she considered the
evidence as a whole, drew appropriate inferences, and made reasoned conclusions
on issues of credibility). 3
Regarding the appellant’s challenge to the merits of the agency’s
termination determination and his status as a probationer, the Board does not have
jurisdiction to consider such claims in the context of an IRA appeal. See Geyer v.
Department of Justice , 70 M.S.P.R. 682, 687 (1996) (stating that the Board lacks
the authority in an IRA appeal to adjudicate the merits of an underlying personnel
action and is limited to adjudicating the whistleblower allegations),
aff’d, 116 F.3d 1497 (Fed. Cir. 1997) (Table). Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you5
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 6
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Washington_Craig_C_DE-1221-19-0449-W-1__Final_Order.pdf | 2024-06-24 | CRAIG C. WASHINGTON v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. DE-1221-19-0449-W-1, June 24, 2024 | DE-1221-19-0449-W-1 | NP |
1,175 | https://www.mspb.gov/decisions/nonprecedential/Donahue_Robert_A_PH-0752-18-0352-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT ALOYSIUS DONAHUE,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
PH-0752-18-0352-I-1
DATE: June 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert Aloysius Donahue , Ridge, Maryland, pro se.
Leigh Gill , Patuxent River, Maryland, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal from a noncritical sensitive position for failing to maintain
a condition of employment, i.e., eligibility for access to classified information
and assignment to duties designated as national security sensitive. On petition for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
review, the appellant makes no discernable allegations of error and he provides a
copy of the Judiciary Act of 1789.2 Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 The appellant’s petition for review was untimely filed approximately 2 minutes after
the filing deadline. Petition for Review File, Tab 1. We do not reach the issue of the
timeliness of the appellant’s petition for review, however, because the appellant’s
petition does not meet the Board’s criteria for review.
3 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.2
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
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: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Donahue_Robert_A_PH-0752-18-0352-I-1__Final_Order.pdf | 2024-06-24 | ROBERT ALOYSIUS DONAHUE v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-0752-18-0352-I-1, June 24, 2024 | PH-0752-18-0352-I-1 | NP |
1,176 | https://www.mspb.gov/decisions/nonprecedential/Demps_Andrea_K_AT-0752-23-0345-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREA K. DEMPS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0752-23-0345-I-1
DATE: June 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrea K. Demps , Alachua, Florida, pro se.
Benjamin Reynolds , Esquire, Tampa, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to find that the Board lacks chapter 75 jurisdiction over the
appellant’s September 14, 2022 detail and the reassignment that accompanied her
February 19, 2023 suspension, we AFFIRM the initial decision.
¶2Below, the appellant challenged either her September 14, 2022 detail or the
February 19, 2023 reassignment that accompanied her unpaid 14 -day suspension,
or both. Initial Appeal File (IAF), Tab 1 at 3, 6. The administrative judge did
not address whether the Board has chapter 75 jurisdiction over either of these
actions. IAF, Tab 6, Initial Decision (ID). On review the appellant challenges at
least one, and possibly both, of these actions. Petition for Review (PFR) File,
Tab 1 at 5, 7, 16. We modify the initial decision to find that we lack jurisdiction
over the appellant’s detail and reassignment.2
¶3The Board generally does not have chapter 75 jurisdiction over lateral
details or reassignments that, like the ones at issue here, are unaccompanied by a
removal, suspension of more than 14 days, reduction in pay or grade, or furlough
of 30 days or less. IAF, Tab 5 at 15, 46, 79; 5 U.S.C. §§ 7512(1)-(5), 7513(d);
see Stewart v. Department of Defense , 82 M.S.P.R. 649, ¶ 15 (1999) (explaining
2 A detail is generally considered a temporary assignment, with the employee returning
to the original position at the end of the detail, Rogers v. Department of the Army ,
88 M.S.P.R. 610, ¶ 8 (2001); see 5 U.S.C. § 3341, while a reassignment means a change
of an employee, while serving continuously within the same agency, from one position
to another without promotion or demotion, 5 C.F.R. § 210.102(b)(12)..2
that the Board only had jurisdiction over an appellant’s combined 14 -day
suspension, reassignment, and reduction in pay if one of those actions constituted
an appealable adverse action (citing Brewer v. American Battle Monuments
Commission, 779 F.2d 663, 663-65 (Fed. Cir. 1985) (remanding to the Board the
issue of whether a petitioner’s transfer was reasonable as an “inseparable part” of
the same “unified penalty” that included the petitioner’s reduction in grade)).
Here, because we lack chapter 75 jurisdiction over the appellant’s 14-day
suspension, we also lack jurisdiction over her detail and reassignment.
¶4The appellant raises a claim of whistleblower reprisal for the first time on
review. PFR File, Tab 1 at 5. The Board has jurisdiction over an individual right
of action appeal if the appellant has exhausted her administrative remedies before
the Office of Special Counsel (OSC) and makes nonfrivolous allegations that
(1) she made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or
engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
(C), or (D), and (2) the disclosure or protected activity was a contributing factor
in the agency’s decision to take or fail to take a personnel action as defined by
5 U.S.C. § 2302(a). Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5
(2016). If the appellant satisfies each of these jurisdictional requirements, she
has the right to a hearing on the merits of her claim. Id.
¶5The appellant indicated both below and on review that she has not filed a
complaint with OSC. IAF, Tab 1 at 4. PFR File, Tab 1 at 4. If the appellant
believes that she has exhausted her administrative remedies with OSC and can
satisfy the remaining jurisdictional requirements, she may wish to file a new
appeal with the Atlanta Regional Office. We express no opinion regarding the
timeliness of, or the Board’s jurisdiction over, such an appeal. 3
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review
of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your
claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board 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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Demps_Andrea_K_AT-0752-23-0345-I-1__Final_Order.pdf | 2024-06-24 | ANDREA K. DEMPS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-23-0345-I-1, June 24, 2024 | AT-0752-23-0345-I-1 | NP |
1,177 | https://www.mspb.gov/decisions/nonprecedential/Hayes_Christina_D_CH-0752-17-0038-C-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTINA DIANE HAYES,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-0752-17-0038-C-1
DATE: June 24, 2024
THIS ORDER IS NONPRECEDENTIAL1
Christina Diane Hayes , Gahanna, Ohio, pro se.
Demetrious A. Harris , Esquire, Dayton, Ohio, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
The appellant has filed a petition for review of the compliance initial
decision, which denied her petition for enforcement of the May 17, 2017
settlement agreement resolving her removal appeal. For the reasons discussed
below, we GRANT the appellant’s petition for review, VACATE the compliance
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
initial decision, and REMAND the case to the regional office for further
adjudication in accordance with this Remand Order.
The agency removed the appellant from her Nursing Assistant position
effective September 16, 2016, for refusing a reasonable suspicion drug test.
Hayes v. Department of Veterans Affairs , MSPB Docket No.
CH-0752-17-0038-I-1, Initial Appeal File (IAF), Tab 1 at 8-16. She timely
appealed her removal to the Board. IAF, Tab 1. On May 16, 2017, the parties
entered into a settlement agreement resolving the appeal. IAF, Tab 16. In
relevant part, the settlement agreement provided that the appellant would
withdraw her appeal and other pending actions against the agency and that the
agency would take the following actions: (1) convert the basis for the appellant’s
removal to “Medical Inability to Perform” and process the applicable Standard
Form (SF) 50 reflecting this change within 20 business days of the execution of
the settlement; (2) rescind any previous SF -50 or SF-52 referencing the previous
basis for the removal; and (3) assist the appellant with applying for disability
retirement, defining “assist” as advising her about the disability retirement
process and completing the agency portion of any forms needed to apply for this
type of retirement. Id. On June 23, 2017, the administrative judge issued an
initial decision accepting the settlement agreement into the record for purposes of
enforcement and dismissing the appeal as settled. Hayes v. Department of
Veterans Affairs , MSPB Docket No. CH-0752-17-0038-I-1, Initial Decision
(June 23, 2017); IAF, Tab 21.
On March 5, 2019, the appellant filed a petition for enforcement of the
settlement agreement but did not specify how she believed the agency breached
the agreement. Hayes v. Department of Veterans Affairs , MSPB Docket No.
CH-0752-17-0038-C-1, Compliance File (CF), Tab 1. The administrative judge
issued a compliance acknowledgment order informing the appellant that it was
her burden to prove by preponderant evidence that the agency breached the
settlement agreement, ordering the agency to submit proof of compliance within2
15 days, and allowing the appellant 15 additional days to respond to the agency’s
submission. CF, Tab 2. In response, the agency argued that it had complied with
the settlement agreement and submitted two SF-50s dated within 20 days of the
settlement agreement reflecting that the agency cancelled the appellant’s prior
removal and replaced it with one for medical inability to perform, both effective
September 16, 2016. CF, Tab 3. The appellant did not respond.
Approximately 1 month later, the administrative judge issued an order
scheduling a preliminary status conference and instructing the parties to dial the
provided call-in number and enter a particular participant code to participate in
the teleconference. CF, Tab 4. The agency moved to reschedule the status
conference due to a conflict and provided three alternate dates, along with
evidence showing that the agency representative consulted the appellant by email
about her availability and that she stated she was available on April 24, 2019.
CF, Tab 5. The administrative judge rescheduled the preliminary status
conference to April 24, 2019, at 2 p.m., and again provided the call-in number
and participant code for the parties to join the teleconference. CF, Tab 6. The
appellant did not appear for the status conference. CF, Tab 7, Compliance Initial
Decision (CID) at 3. The administrative judge indicated that she called the
appellant at the number provided to the Board but that she received a message
stating that the number was not in service. Id.
In a compliance initial decision dated April 25, 2019, the administrative
judge found that the agency produced relevant, material, and credible evidence of
its compliance with the settlement agreement. Id. On the other hand, she found
that the appellant failed to meet her burden to show breach, explaining that she
offered “nothing, not even a statement as to which, if any, terms she contends the
agency breached.” Id. Accordingly, she denied the appellant’s petition for
enforcement. CID at 4.
The appellant has timely filed a petition for review of the compliance
initial decision, asserting that she was ready and available on the dates and times3
proposed by the agency representative for the rescheduled status conference but
that she did not receive a call. Hayes v. Department of Veterans Affairs , MSPB
Docket No. CH-0752-17-0038-C-1, Compliance Petition for Review (CPFR) File,
Tab 1. The agency has not responded.
As noted in the July 12, 2019 order issued by the Acting Clerk of the
Board, it appears that the pleadings and issuances from the compliance
proceeding below were not electronically served on the appellant at the new email
address she provided in her petition for enforcement. CPFR File, Tab 4. On
review, the Office of the Clerk of the Board served the appellant with all
issuances and pleadings in this compliance matter at her new designated email
address and informed her that she could also access all pleadings and issuances
via e-Appeal. Id. Because it appears that the appellant did not receive any
pleadings or issuances in the compliance proceeding below or the phone call from
the administrative judge, we find it appropriate to vacate the compliance initial
decision and to remand this compliance appeal for further adjudication. On
remand, the administrative judge shall reissue the order setting forth the
applicable law and the appellant’s burden of proof and afford her another
opportunity to respond to that order and to the agency’s evidence of compliance
before issuing a new compliance initial decision. 4
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.5 | Hayes_Christina_D_CH-0752-17-0038-C-1__Remand_Order.pdf | 2024-06-24 | CHRISTINA DIANE HAYES v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-0752-17-0038-C-1, June 24, 2024 | CH-0752-17-0038-C-1 | NP |
1,178 | https://www.mspb.gov/decisions/nonprecedential/Ash_Rocklin_J_CH-0845-20-0557-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROCKLIN J. ASH,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-0845-20-0557-I-1
DATE: June 24, 2024
THIS ORDER IS NONPRECEDENTIAL1
Rocklin J. Ash , Hanover, Indiana, pro se.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his Federal Employees’ Retirement System (FERS) disability annuity
overpayment appeal for lack of jurisdiction after the Office of Personnel
Management (OPM) rescinded its final decision. On petition for review, the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
appellant argues that the Board retains jurisdiction because OPM has not restored
him to the status quo ante. For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision, and REMAND the
case to the regional office for further adjudication in accordance with this
Remand Order.
BACKGROUND
The appellant separated from Federal employment effective April 30, 2018.
Initial Appeal File (IAF), Tab 3 at 1. According to OPM, the Social Security
Administration approved the appellant for Social Security Disability Insurance
(SSDI) benefits, effective June 1, 2017. Id. OPM approved the appellant’s
application for FERS disability retirement on September 18, 2018, with his
annuity commencing January 10, 2018. Id. Subsequently, OPM notified the
appellant that, because his annuity payments had not been adjusted to account for
the offset of his SSDI benefits, he had received an overpayment of his disability
retirement annuity in the amount of $37,583.90 from January 10, 2018, through
January 30, 2020. Id. OPM further informed the appellant that it had already
collected $533.10 and, therefore, his remaining balance was $37,050.80. Id. at 2.
The appellant requested reconsideration. IAF, Tab 1 at 25-26, Tab 3 at 2.
He argued that the overpayment was offset by “8 months of retirement pay” he
believed he was owed, and requested waiver of the overpayment due to financial
hardship. IAF, Tab 1 at 25-26. He also offered a compromise payment of
$3,784.00. Id. at 26-27. In June 2020, OPM denied the appellant’s offer of a
compromise. Id. at 27. In July 2020, OPM issued a final decision affirming its
initial decision, denying his waiver request, and adjusting the repayment schedule
to installments of $160.00. IAF, Tab 3 at 1, 3-4. The decision informed the
appellant that he must file his appeal with the Board within 30 calendar days from
the date of the letter, or from receipt of the letter, whichever was later. Id. at 4.2
The appellant filed the instant Board appeal challenging the final decision
and again requesting a compromise on the overpayment. IAF, Tab 1 at 3. OPM
did not file its response to the appeal as ordered by the administrative judge and
required by Board regulations. IAF, Tab 2 at 7, Tabs 4-5, 10; see 5 C.F.R.
§ 1201.22(a)-(b)(1) (requiring an agency’s response to an appeal to be filed
within 20 days of the date of the acknowledgment order). Instead it rescinded its
July 2020 final decision and moved to dismiss the appeal. IAF, Tab 12 at 4. Five
days later, before the appellant responded to OPM’s motion, the administrative
judge issued an initial decision, dismissing the appeal for lack of jurisdiction
based on OPM’s rescission of its final decision. IAF, Tab 13, Initial Decision
(ID) at 1, 3.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. In his petition for review, he argues that OPM did
not fully rescind its final decision because they continue to collect the
overpayment debt. Id. at 4. OPM has responded acknowledging that it
prematurely collected $480.00 of the overpayment from November 2020 through
January 2021. PFR File, Tab 4 at 4-5. It argues that, nevertheless, the appellant
has been restored to the status quo ante and submits evidence demonstrating that
it has ceased collection of the overpayment and completed action to refund
$480.00 to the appellant by February 1, 2021. Id. at 5-6. The appellant has not
replied.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge erred in determining that the Board lacks jurisdiction
over this retirement appeal.
On review, the appellant argues that OPM did not fully rescind the final
decision because OPM continues to collect the overpayment debt and, therefore,
he has not been restored to the status quo ante. PFR File, Tab 1 at 5. The
administrative judge found that OPM’s rescission of its final decision divested the
Board of jurisdiction over the appeal. ID at 1, 3.3
The administrative judge did not provide the appellant with an opportunity
to show cause why his appeal should not be dismissed. Specifically, as discussed
below, he did not provide the pro se appellant with notice that he could prove the
Board retained jurisdiction over OPM’s rescinded final decision based on its
failure to place him in status quo ante. An appellant must receive explicit
information on what is required to establish an appealable jurisdictional issue.
Burgess v. Merit Systems Protection Board , 758 F.2d 641, 643-44 (Fed.Cir.1985).
This information also did not appear in OPM’s motion to dismiss or the initial
decision. IAF, Tabs 2, 12; ID. Here, OPM acknowledged in its final decision
that it had already withheld $533.10 towards the overpayment debt.1 IAF, Tab 3
at 2. Despite OPM’s statements below, the administrative judge dismissed the
appeal without providing the appellant the full 10 days to respond to the agency’s
motion to dismiss, as he stated he would in the acknowledgment and order.2 IAF,
Tab 2 at 4. This was error.
The Board has held that, if OPM completely rescinds a reconsideration
decision, the rescission divests the Board of jurisdiction over the appeal in which
the reconsideration decision is at issue, and the appeal must be dismissed. Martin
v. Office of Personnel Management , 119 M.S.P.R. 188, ¶ 8 (2013). However, if
OPM does not restore the appellant to the status quo ante, the reconsideration
decision has not been rescinded, and the appeal remains within the Board’s
jurisdiction. Id., ¶ 10. Status quo ante means placing the injured party, as nearly
as possible, in the position he would have held had the agency not taken its
action. Campbell v. Office of Personnel Management , 123 M.S.P.R. 240, ¶ 7
1 Further, on review, OPM concedes that it continued to withhold money from the
appellant during the pendency of the appeal. PFR File, Tab 4 at 4-5. Although the
agency indicates it has taken steps to refund the money, it has not followed up with
certification that the appellant received this refund. Id. at 5-6.
2 The case was reassigned to the administrative judge in November 2017. IAF, Tab 9.
For the sake of clarity, we have not distinguished between those actions taken by the
originally assigned administrative judge and the administrative judge who issued the
initial decision.4
(2016). Thus, to rescind a final overpayment decision, OPM must, among other
things, refund any money that it already collected from the appellant to recoup
the alleged overpayment. Id., ¶ 8.
We disagree with the administrative judge that OPM’s rescission of the
final decision divests the Board of jurisdiction here because OPM has not
returned the appellant to the status quo ante. According to OPM, prior to issuing
the final decision, OPM collected $533.10 from the appellant towards the
overpayment debt. IAF, Tab 3 at 2. Additionally, in OPM’s reply to the petition
for review, it acknowledges that it continued to collect $480.00 between
November 2020 and January 2021, including after OPM had purportedly
rescinded the final decision. PFR File, Tab 4 at 4-5. Although OPM has
presented evidence that it has ceased collection and completed actions to refund
$480.00 to the appellant, it has not indicated if it will also refund the $533.10 it
collected prior to issuance of the final decision in order to fully restore the
appellant to the status quo ante. Id. at 5-6; see Campbell, 123 M.S.P.R. 240, ¶ 10
(finding complete rescission of the final decision and a return to the status quo
ante requires OPM to refund the money withheld from an annuity to repay an
overpayment). Because the appellant has not been restored to the status quo ante,
we find that OPM has not rescinded its final decision, and that the appeal remains
within the Board’s jurisdiction.
In his petition for review, the appellant attached a December 2020 letter
from the Department of the Treasury stating that it collected payment from the
appellant and applied it to a debt that he owed the Defense Finance and
Accounting Services. PFR File, Tab 1 at 6. The appellant has not provided any
explanations as to the document’s relevance to the instant appeal involving an
annuity overpayment debt owed to OPM. This evidence is not relevant to the
jurisdictional issue before us. It is not from OPM, does not involve a debt to
OPM, and does not contain the OPM retirement claim number associated with the5
annuity at issue in this appeal ( i.e., CSA 8897686). Id. Therefore, we have not
considered it further here.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Ash_Rocklin_J_CH-0845-20-0557-I-1__Remand_Order.pdf | 2024-06-24 | ROCKLIN J. ASH v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0845-20-0557-I-1, June 24, 2024 | CH-0845-20-0557-I-1 | NP |
1,179 | https://www.mspb.gov/decisions/nonprecedential/Shuffield_Marilyn_A_DA-0831-23-0039-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARILYN A. SHUFFIELD,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-0831-23-0039-I-1
DATE: June 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Marilyn A. Shuffield , Amity, Arkansas, pro se.
Jane Bancroft and Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
sustained an Office of Personnel Management (OPM) reconsideration decision
denying her application for survivor annuity benefits under the Civil Service
Retirement System. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal,2 we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2On petition for review, the appellant disputes the administrative judge’s
findings regarding the method of calculating the 9-month period of marriage
required in 5 U.S.C. § 8341(a)(1). Petition for Review (PFR) File, Tabs 1, 4. She
further renews her argument that, because the COVID-19 pandemic postponed her
marriage, she should be deemed to have meet the 9-month marriage requirement
and be granted the survivor annuity. PFR File, Tab 1 at 3. We find no basis to
disturb the administrative judge’s explained findings on these issues. Initial
Appeal File (IAF), Tab 25, Initial Decision (ID) at 3-8. We sympathize with the
appellant’s circumstances, but the law does not provide for a survivor annuity in
her situation for the reasons set forth in the initial decision.
¶3However, as the initial decision explained, although the appellant is not
entitled to a survivor annuity, she may be entitled to lump sum death benefits. ID
at 2 n.2. Because OPM has not issued a decision on that issue, we find that the
2 In doing so, we have fully considered, among other things, the appellant’s petition for
review and her reply to the agency’s response to the petition for review. Petition for
Review (PFR) File, Tabs 1, 4. The appellant has filed a motion for leave to file an
additional pleading. PFR File, Tab 6. We deny her motion because she has not
established the nature of or need for any additional pleading. See 5 C.F.R.
§ 1201.114(a)(5).2
Board lacks the authority to decide that issue at this time. Id. OPM has indicated
that it will decide that issue after the conclusion of this litigation regarding any
entitlement to a survivor annuity. IAF, Tab 23 at 4. Our decision in the current
appeal is without prejudice to the appellant’s right to file a timely new appeal on
the lump sum death benefit issue if OPM issues a final or reconsideration decision
denying her the lump sum death benefit, or OPM fails to issue a reconsideration
decision. See Okello v. Office of Personnel Management , 120 M.S.P.R. 498, ¶ 14
(2014); McNeese v. Office of Personnel Management , 61 M.S.P.R. 70, 73-74,
aff’d, 40 F.3d 1250 (Fed. Cir. 1994).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
3 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.3
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you4
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 5
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Shuffield_Marilyn_A_DA-0831-23-0039-I-1__Final_Order.pdf | 2024-06-24 | MARILYN A. SHUFFIELD v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0831-23-0039-I-1, June 24, 2024 | DA-0831-23-0039-I-1 | NP |
1,180 | https://www.mspb.gov/decisions/nonprecedential/Williams-Huntley_Mellody_E_CH-0752-19-0568-B-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MELLODY WILLIAMS-HUNTLEY,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
CH-0752-19-0568-B-1
DATE: June 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mellody Estella Maria Williams-Huntley , Carol Stream, Illinois, pro se.
Amy Baines and Joshua P. Dehnke , Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed her misconduct-based removal. On petition for review, the appellant,
among other things, attempts to justify the behavior underlying some of the
charged misconduct. She also moves to disqualify or exclude the agency
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
representatives from her appeal. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2In support of her motion to disqualify or exclude the agency’s
representatives, the appellant argues, among other things, that the representatives
committed errors in judgment and that a conflict of interest exists.
Williams-Huntley v. Social Security Administration , MSPB Docket No. CH-0752-
19-0568-B-1, Petition for Review (PFR) File, Tab 3 at 3. The Board’s regulations
provide for the disqualification of a representative based on a conflict of interest,
as well as for the exclusion of a representative for contumacious conduct or
conduct prejudicial to the administration of justice. 5 C.F.R.
§§ 1201.31(b)-(c), 1201.43(d). The appellant, however, has not identified any
conflict of interest involving the agency’s representatives, and we discern none.
The appellant has also not specified the error in judgment to which she refers, nor
how any such error forms a basis to disqualify or exclude the agency’s
representatives. Further, though she repeats vague allegations of threats of bodily
harm and identity theft she raised below, she previously explained that she had
3
not faced threats of bodily harm and that her concerns of identity theft did not
relate to this appeal. PFR File, Tab 3 at 3; Williams-Huntley v. Social Security
Administration, MSPB Docket No. CH-0752-19-0568-B-1, Remand File (RF),
Tab 39 at 2. Accordingly, her motion is denied.2
¶3On review, the appellant makes two arguments which she did not raise
below. Because she does not show these arguments are based on new and
material evidence not previously available despite due diligence, we need not
consider them. Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016).
In any event, they would not afford any basis to grant the petition for review.
¶4The appellant’s first new argument is that she was allowed to wear a hat at
work as long as it did not obstruct her view of agency computers, and thus the
agency failed to prove one of its specifications under the conduct unbecoming a
Federal employee charge. PFR File, Tab 1 at 6. The specification did not just
allege that the appellant wore a hat but that she wore a hat with paper notes
attached, along with a garbage bag. RF, Tab 56 at 6. The appellant’s supervisor
—whose declaration the administrative judge credited in sustaining the
specification regarding the appellant’s headwear—explained that the appellant
wore those items on a day she was assigned as a back-up receptionist and that he
was concerned about interactions she would have with the public. RF, Tab 45
at 5, Tab 57, Remand Initial Decision (ID) at 8. The appellant’s claim that she
was allowed to wear a hat at work thus fails to counter the gravamen of the
specification.
¶5The appellant’s second new argument is that her approval for the agency’s
identity protection program (IPP)—a program designed to preserve the anonymity
2 To the extent the appellant suggests that the agency’s representatives were improperly
designated because they were not members of a bargaining unit while she was in a
bargaining unit, PFR File, Tab 3 at 3, she has not explained the legal basis for her
claim. Similarly, she has not explained how it was improper for the agency to rely on
non-bargaining unit members and even non-Federal employees to prove its case. Id.
Thus, her claims form no basis to grant her motion or disturb the initial decision.
4
of agency employees who believe disclosure of their work location or phone
number would risk harm—explains her belief that “impersonators were hired
under [her] credentials.” PFR File, Tab 1 at 6, Tab 3 at 5-6. But the approval of
the appellant for the IPP does not mean that her claims regarding
“impersonators,” relevant to several of the charged specifications, were credible
or not concerning. RF, Tab 56 at 6-7. The administrative judge credited the
appellant’s supervisor’s declaration to find that the appellant’s claims that she
was being impersonated by another employee were distracting and hampered the
supervisor’s ability to perform his duties. ID at 8-12. In light of the
implausibility of the appellant’s impersonation claims, her IPP argument provides
no reason to determine the contrary.3
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
3 The appellant’s reply to the agency’s response to her petition for review is not limited
to the factual and legal issues raised in the agency’s response, and thus, we will not
consider evidence or arguments first raised in the reply. PFR File, Tab 6; 5 C.F.R.
§ 1201.114(a)(4); see Lin v. Department of the Air Force , 2023 MSPB 2, ¶ 8 n.4. Even
if we did consider such evidence or arguments, they are either inaccurate, irrelevant, or,
like the claim she raises that the deciding official lacked authority to remove her,
unsupported.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
7
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
8
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Williams-Huntley_Mellody_E_CH-0752-19-0568-B-1__Final_Order.pdf | 2024-06-24 | null | CH-0752-19-0568-B-1 | NP |
1,181 | https://www.mspb.gov/decisions/nonprecedential/Conway_PatrickSF-3443-19-0132-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PATRICK CONWAY,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-3443-19-0132-I-1
DATE: June 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Patrick Conway , Rosamond, California, pro se.
Catherine V. Meek and Mariana Aguilar , Esquire, Long Beach, California,
for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal of his nonselection for an excepted
service position as a Postal Support Employee Sales & Services Distribution
Associate in Rosamond, California. Generally, we grant petitions such as this
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
For the reasons set forth in the initial decision, the administrative judge
properly concluded that a nonselection for a position is generally not appealable
to the Board and that the appellant could not challenge his nonselection as an
individual right of action appeal, suitability appeal, or employment practices
appeal. Initial Appeal File (IAF), Tab 20, Initial Decision (ID) at 6-8. The
administrative judge also properly concluded that the appellant was not raising a
claim under the Uniformed Services Employment and Reemployment Rights Act
of 1994 or the Veterans Employment Opportunities Act of 1998 based on the
appellant’s unequivocal statements that his appeal had nothing to do with his
veteran status or military service.2 ID at 8-9.
On petition for review, the appellant reiterates his arguments that his
nonselection was unfair and due to false statements by a former supervisor
concerning his performance in his prior position. Petition for Review (PFR) File,
Tab 1 at 4. Such arguments, however, do not alter the administrative judge’s
2 The appellant reiterates on review that he is not alleging that his nonselection was
based on his veteran status. Petition for Review (PFR) File, Tab 1 at 5.2
finding that the Board lacks jurisdiction over the appellant’s nonselection. For
the first time on review, the appellant also submits photographs of a car. Id.
at 7-9. The Board need not consider such evidence because the appellant has not
shown that it is based on new and material evidence that was previously
unavailable despite his due diligence. Banks v. Department of the Air Force ,
4 M.S.P.R. 268, 271 (1980). In any event, such evidence does not raise
nonfrivolous allegations of Board jurisdiction and, thus, would not alter the
outcome of the appeal.
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
3 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.3
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you4
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 5
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Conway_PatrickSF-3443-19-0132-I-1__Final_Order.pdf | 2024-06-24 | PATRICK CONWAY v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-3443-19-0132-I-1, June 24, 2024 | SF-3443-19-0132-I-1 | NP |
1,182 | https://www.mspb.gov/decisions/nonprecedential/Shimoda_Dwight_S_SF-0845-20-0258-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DWIGHT S. SHIMODA,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0845-20-0258-I-1
DATE: June 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dwight S. Shimoda , Las Vegas, Nevada, pro se.
Trina Janifer , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed as modified the reconsideration decision issued by the Office of
Personnel Management (OPM) that determined (1) that he had received an
overpayment of $32,665.00 in disability retirement annuity benefits under the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Federal Employees’ Retirement System (FERS) and (2) that he was not entitled to
a waiver of the same. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The appellant does not challenge, and we discern no basis to disturb, the
administrative judge’s reasoned conclusion that OPM proved the existence of the
overpayment at issue, which occurred as a result of his concurrent receipt of
disability insurance benefits from the Social Security Administration (SSA)
during the period of May 1, 2014, through May 30, 2017. Initial Appeal File
(IAF), Tab 51, Initial Decision (ID) at 5-6; see 5 U.S.C. § 8452(a); Maxwell v.
Office of Personnel Management , 78 M.S.P.R. 350, 355 (1998), overruled on
other grounds by Conner v. Office of Personnel Management , 120 M.S.P.R. 670
(2014); Johnston v. Office of Personnel Management , 70 M.S.P.R. 109, 112-17,
aff’d, 99 F.3d 1160 (Fed. Cir. 1996) (Table); 5 C.F.R. § 844.302. Similarly, the
appellant does not challenge, and we discern no basis to disturb, the
administrative judge’s finding that the appellant was not without fault in creating
the overpayment insofar as he failed to report his receipt of SSA benefits to OPM
despite the agency’s repeated instructions to do so . IAF, Tab 6 at 86, 109;2
ID at 7-9; see Ewing v. Office of Personnel Management , 100 M.S.P.R. 224, ¶ 5
(2005) (finding the appellant at fault for an overpayment of FERS disability
retirement annuity benefits when he failed to report his receipt of SSA benefits to
OPM despite being instructed to do so); see also 5 C.F.R. § 845.302(a) (setting
forth pertinent considerations in finding fault) .
Instead, the appellant seemingly asserts that the administrative judge erred
in her modification of OPM’s reconsideration decision, i.e., in her adjustment of
his repayment schedule from $42.00 per month to $5.00 per month. Petition for
Review (PFR) File, Tab 2 at 4-5, Tab 3 at 4-5; ID at 9-14. To this end, the
appellant provides additional bills/financial statements, ostensibly to show that he
is unable to repay the debt at the rate of $5.00 per month. PFR File, Tab 2
at 6-14. Neither the appellant’s arguments nor the documents that he provides
warrant a different outcome. Indeed, all of the financial information that the
appellant submits predates the initial decision, and he offers no explanation as to
why he could not submit this information prior to the close of the record.2
See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980) (finding that the
Board generally will not consider evidence submitted for the first time with the
petition for review absent a showing that it was unavailable before the record was
closed despite the party’s due diligence). Moreover, insofar as none of these
documents constitute new evidence, a different outcome is not warranted.
See 5 C.F.R. § 1201.115(d) (“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.”).
Accordingly, we affirm the initial decision.
2 Three of the bills indicate a due date subsequent to the issuance of the initial decision,
PFR File, Tab 2 at 8-10; ID at 1; however, the statements themselves predate the initial
decision, see 5 C.F.R. § 1201.115(d). Similarly, although the appellant provides a
financial statement regarding automobile insurance for a period of time subsequent to
the initial decision, PFR File, Tab 2 at 12; ID at 1, the statement itself indicates that it
was prepared prior to the issuance of the initial decision, see 5 C.F.R. § 1201.115(d). 3
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board 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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or6
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Shimoda_Dwight_S_SF-0845-20-0258-I-1__Final_Order.pdf | 2024-06-21 | DWIGHT S. SHIMODA v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0845-20-0258-I-1, June 21, 2024 | SF-0845-20-0258-I-1 | NP |
1,183 | https://www.mspb.gov/decisions/nonprecedential/Washburn_Clyde_B_DC-0831-19-0283-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CLYDE B. WASHBURN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0831-19-0283-I-1
DATE: June 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Clyde B. Washburn , South Hill, Virginia, pro se.
Tanisha Elliott Evans , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as barred by res judicata. On petition for review, the
appellant does not challenge the administrative judge’s finding that his appeal is
barred by the doctrine of res judicata; rather, he asserts that he is entitled to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
additional credit for his post-1956 military service. This claim was the subject of
a Board appeal that the appellant filed in 2005. See Washburn v. Office of
Personnel Management , MSPB Docket No. DC-0831-05-0557-I-1, Final Order
(Jan. 19, 2006). Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter. 2
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
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: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Washburn_Clyde_B_DC-0831-19-0283-I-1__Final_Order.pdf | 2024-06-21 | CLYDE B. WASHBURN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0831-19-0283-I-1, June 21, 2024 | DC-0831-19-0283-I-1 | NP |
1,184 | https://www.mspb.gov/decisions/nonprecedential/Gordon_AntonioDC-315H-19-0433-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTONIO GORDON,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-315H-19-0433-I-1
DATE: June 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Antonio Gordon , Washington, D.C., pro se.
Alice Bishop , Bedford, Massachusetts, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his termination appeal for lack of jurisdiction. For the reasons set forth
below, the appellant’s petition for review is DISMISSED as untimely filed
without good cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
In the May 6, 2019 initial decision, the administrative judge instructed the
appellant that the initial decision would become final on June 10, 2019, unless a
petition for review was filed by that date. Initial Appeal File (IAF), Tab 10,
Initial Decision (ID). On June 11, 2019, one day after the finality date, the
appellant filed his petition for review. Petition for Review (PFR) File, Tab 1.2
A petition for review generally must be filed within 35 days after the date
of the issuance of the initial decision or, if the party filing the petition shows that
he received the initial decision more than 5 days after it was issued, within
30 days after he received the initial decision. Palermo v. Department of the Navy ,
120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R. § 1201.114(e). Here, the appellant has
not alleged that he received the initial decision more than 5 days after it was
issued. PFR File, Tab 1. Further, because he was a registered e-filer, he is
deemed to have received the initial decision on the date of its electronic
submission, May 6, 2019. IAF, Tabs 5, 11; see Palermo, 120 M.S.P.R. 694, ¶ 3;
5 C.F.R. § 1201.14(m)(2). Therefore, his petition for review of the initial
decision was due no later than June 10, 2019, and his June 11, 2019 petition for
review was untimely filed by 1 day. ID at 1, 6; PFR File, Tab 1.
The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the delay in filing. Palermo, 120 M.S.P.R.
694, ¶ 4; 5 C.F.R. §§ 1201.113(d), 1201.114(f). The party who submits an
untimely petition for review has the burden of establishing good cause for the
untimely filing by showing that he exercised due diligence or ordinary prudence
under the particular circumstances of the case. Palermo, 120 M.S.P.R. 694, ¶ 4.
2 Pursuant to the Board’s regulations, the date of a filing by mail is the postmark date
on the appellant’s submission. 5 C.F.R. § 1201.4(l). In addition, a misdirected filing is
normally deemed filed on the date that it was filed with the wrong Board office. See
Branch v. Department of the Army , 110 M.S.P.R. 663, ¶ 6 (2009 ); Simpson v. U.S.
Postal Service, 83 M.S.P.R. 253, ¶ 6 (1999 ). Accordingly, the date of filing here is
June 11, 2019—the date of the postmark on the envelope containing the appellant’s
petition for review, even though he incorrectly directed it to the regional office, which
then forwarded the petition to the Office of the Clerk of the Board. PFR File, Tabs 1-2.2
To determine whether a party has shown good cause, the Board will consider the
length of the delay, the reasonableness of his excuse and showing of due
diligence, whether he is proceeding pro se, and whether he has presented evidence
of the existence of circumstances beyond his control that affected his ability to
comply with the time limits or of unavoidable casualty or misfortune that shows a
causal relationship to his inability to timely file his petition. Id.
In his petition for review, the appellant addressed the merits of his
termination but did not offer any explanation for why he failed to submit his
petition on or by the June 10, 2019 filing deadline. PFR File, Tab 1. In an
acknowledgment letter dated June 18, 2019, the Acting Clerk of the Board
informed him that his petition for review was untimely filed and that an untimely
petition for review must be accompanied by a motion to either accept the filing as
timely and/or waive the time limit for good cause. PFR File, Tab 2 at 1-2. The
Acting Clerk provided specific instructions regarding the requirements for such a
motion, as well as a form “Motion to Accept Filing as Timely or to Waive Time
Limit,” and allowed him until July 3, 2019, to submit the motion. Id. at 2, 7-8.
Furthermore, the Acting Clerk expressly informed the appellant that, if he did not
timely submit the motion, “the Board may issue an order dismissing your petition
for review as untimely, which would result in the initial decision becoming the
Board’s final decision.” Id. at 2. The appellant did not respond to the Acting
Clerk’s letter.
We recognize that the 1-day delay in this case is minimal and that the
appellant is pro se; however, he has not provided any excuse whatsoever to
excuse his late filing, despite being afforded an opportunity to do so and
explicitly warned that his failure to establish good cause for his untimely filing
would result in dismissal of his petition for review. Under similar circumstances,
the Board has consistently found that the interests of judicial efficiency and
fairness do not permit waiver of the filing deadline . See Gaetos v. Department of
Veterans Affairs , 121 M.S.P.R. 201, ¶ 6 (2014) (dismissing as untimely filed a3
petition for review submitted 3.5 hours late when the appellant did not respond to
the Clerk’s order regarding timeliness or show that she acted with due diligence
in filing her petition); Pangelinan v. Department of Homeland Security ,
104 M.S.P.R. 108, ¶ 9 (2006) (dismissing as untimely filed the pro se appellant’s
1 day late petition for review when she failed to respond to the order on
timeliness or otherwise demonstrate good cause for the delay); Stromfeld v.
Department of Justice , 25 M.S.P.R. 240, 241 (1984) (concluding that a petition
for review filed 1 day late was not excused where the appellant offered no
reasonable excuse for the delay). Accordingly, because the appellant has not
shown that he exercised due diligence or ordinary prudence under the particular
circumstances of the case, his petition for review must be dismissed as untimely
filed without good cause shown.
In light of the foregoing, we dismiss the petition for review as untimely
filed. This is the final decision of the Merit Systems Protection Board regarding
the timeliness of the petition for review. The initial decision remains the final
decision of the Board regarding the appellant’s termination.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
3 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
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
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. 5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
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: 6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Gordon_AntonioDC-315H-19-0433-I-1__Final_Order.pdf | 2024-06-21 | ANTONIO GORDON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-315H-19-0433-I-1, June 21, 2024 | DC-315H-19-0433-I-1 | NP |
1,185 | https://www.mspb.gov/decisions/nonprecedential/Scott_William_B_SF-0752-20-0058-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM B. SCOTT,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
SF-0752-20-0058-I-1
DATE: June 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Malcolm E. Gettmann , San Diego, California, for the appellant.
Richard I. Anstruther , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for failure to prosecute his appeal of the agency action removing him
from his position. 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
If a party fails to prosecute or defend an appeal, the sanction of dismissal
with prejudice may be imposed. Davis v. Department of Commerce ,
120 M.S.P.R. 34, ¶ 17 (2013); Williams v. U.S. Postal Service , 116 M.S.P.R. 377,
¶ 7 (2011) (citing Ahlberg v. Department of Health and Human Services , 804 F.2d
1238, 1242 (Fed. Cir. 1986) and 5 C.F.R. § 1201.43(b) ). Such an extreme
sanction is only appropriate when necessary to serve the ends of justice and
should only be imposed when (1) a party has failed to exercise basic due
diligence in complying with Board orders; or (2) a party has exhibited negligence
or bad faith in its efforts to comply. Davis, 120 M.S.P.R. 34, ¶ 18; Williams,
116 M.S.P.R. 377, ¶ 7. If an appellant repeatedly fails to respond to multiple
Board orders, such inaction reflects a failure to exercise basic due diligence, and
the imposition of the sanction of dismissal for failure to prosecute is appropriate.
Williams, 116 M.S.P.R. 377, ¶ 9; Heckman v. Department of the Interior ,
106 M.S.P.R. 210, ¶ 16 (2007) ; Murdock v. Government Printing Office ,
38 M.S.P.R. 297 (1988) . Absent a showing of abuse of discretion, the Board will
not reverse an administrative judge’s determination regarding the imposition of
sanctions, including the sanction of dismissal with prejudice. Turner v. U.S.
Postal Service, 123 M.S.P.R. 640, 644-45 (2016), aff’d, 681 F. App’x 934 (Fed.2
Cir. 2017). Based on our review of the record, we find no abuse of discretion on
the part of the administrative judge in this appeal.2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
2 With his petition for review, the appellant has submitted an undated, unsigned memo
from a coworker describing her own issues with management. Petition for Review File,
Tab 2 at 6-7. We have not considered this document because it is neither new nor
material to the dispositive issue in this appeal. Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211, 214 (1980); Russo v. Veterans Administration , 3 M.S.P.R. 345, 349
(1980).
3 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.3
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
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/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Scott_William_B_SF-0752-20-0058-I-1__Final_Order.pdf | 2024-06-21 | WILLIAM B. SCOTT v. DEPARTMENT OF THE TREASURY, MSPB Docket No. SF-0752-20-0058-I-1, June 21, 2024 | SF-0752-20-0058-I-1 | NP |
1,186 | https://www.mspb.gov/decisions/nonprecedential/Cruse_EricSF-0752-20-0346-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIC CRUSE,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-0752-20-0346-I-1
DATE: June 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lenard Johnson , Twentynine Palms, California, for the appellant.
Douglas T. Frydenlund , Portsmouth, Virginia, for the agency.
Leslie Rosson , Twentynine Palms, California, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his 90-day suspension. 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant is a GS-05 Medical Support Assistant (MSA) at the agency’s
Twentynine Palms Naval Hospital. Initial Appeal File (IAF), Tab 4 at 5. The
major duties of this position involve acting as a liaison between patients and
medical staff. These duties include, among other things, booking medical
appointments, receiving and directing patients to the appropriate point of care,
and using “critical thinking skills to refer urgent patient callers to the Nurse
assigned as directed by the Clinic [Medical Support Assistant Standard Operation
Procedures (MSA SOP)] manual.” IAF, Tab 12 at 28-29.
On November 22, 2019, the agency proposed to suspend the appellant for
90 days based on a charge of “Failure to Follow Proper Work Procedures,” with
five specifications. IAF, Tab 10 at 16. Each specification referred to a telephone
call that the appellant received, alleging that the actions that the appellant took
pursuant to the call were not in accordance with agency procedures. Id. at 12-13.
After the appellant responded to the proposal, the agency amended the proposal to
notify the appellant of some additional penalty considerations. Id. at 5-10. The
appellant did not offer any further reply, and the deciding official issued a2
decision sustaining the charge and all specifications and imposing the 90-day
suspension. Id. at 7-10.
The appellant filed a Board appeal, contesting the merits of the action and
raising affirmative defenses of violation of due process and harmful procedural
error. IAF, Tab 1 at 4, Tab 14 at 2-5, Tab 15 at 4-23. He waived his right to a
hearing. IAF, Tab 1 at 2, Tab 13 at 1. After the close of the record, the
administrative judge issued an initial decision sustaining the suspension. IAF,
Tab 17, Initial Decision (ID). He did not sustain specification 1, but he sustained
the other four specifications, and therefore, the charge as a whole. ID at 4-15.
The administrative judge found that the appellant failed to prove his affirmative
defenses, and that the agency met its burden of proof on the issues of nexus and
penalty. ID at 15-23.
The appellant has filed a petition for review, arguing that the administrative
judge failed to consider his arguments, particularly with regard to ambiguities in
the MSA SOP manual and the agency’s use of lack of remorse as an aggravating
factor.2 Petition for Review (PFR) File, Tab 1 at 3-5. The agency has not filed a
response.
ANALYSIS
In an appeal of an adverse action under 5 U.S.C. chapter 75, the agency
bears the burden of proving by preponderant evidence that its action was taken
for such cause as would promote the efficiency of the service. MacDonald v.
Department of the Navy , 4 M.S.P.R. 403, 404 (1980); 5 C.F.R. § 1201.56(b)(1)
(ii). To meet this burden, the agency must prove its charge, establish a nexus
between the charge and the efficiency of the service, and demonstrate that the
penalty imposed was reasonable. Pope v. U.S. Postal Service , 114 F.3d 1144,
1147 (Fed. Cir. 1997). However, even if the agency carries this burden, the
2 The appellant has attached to his petition copies of the initial decision and his close of
the record submission. Petition for Review File, Tab 1 at 6-59. We cite to these
documents based on their location in the initial appeal file. IAF, Tabs 15, 17.3
action may not be sustained if the appellant shows that it was the product of a due
process violation or harmful procedural error. 5 U.S.C. § 7701(c)(2)(A); Stephen
v. Department of the Air Force , 47 M.S.P.R. 672, 681 (1991); see 5 C.F.R.
§ 1201.56(b)(2)(i)(C).
In this case, neither party disputes the administrative judge’s finding that
the agency failed to prove specification 1. ID at 4-5. We will therefore not
revisit this issue on review. See 5 C.F.R. § 1201.115 (“The Board normally will
consider only issues raised in a timely filed petition or cross petition for
review.”). However, the appellant argues that the administrative judge
misinterpreted the MSA SOP in applying it to specification 2. PFR File, Tab 1
at 4. He contends that the language of the MSA SOP is ambiguous and that it
could be interpreted so that his actions were in compliance. Id.
Under specification 2, the agency alleged as follows:
On 2 July 2019, patient W called with shortness of breath and
chest pain symptoms. Per [the MSA SOP], these types of symptoms
require an Urgent (Red) T-CON and to provide a warm handoff to an
RN.[3] You did not create an Urgent (Red) T-CON for the patient.
You attempted to do a warm hand-off to an RN, however the call was
dropped prior to the hand off. As a result, since you did not create a
T-CON, the RN was unable to call the patient back. When the RN
spoke to you about the lost call, you hit the recall number on your
phone. You failed to follow the proper procedure as outlined in [the
MSA SOP].
IAF, Tab 10 at 12.
In his initial decision, the administrative judge found that, when a patient
calls reporting chest pain or shortness of breath, the MSA SOP requires that the
MSA both create a T-CON and perform the warm handoff while the patient is on
the phone with him. ID at 8. In this case, the administrative judge found that the
appellant attempted a warm handoff but the call dropped. ID at 8. He also found
that the appellant did not create a T-CON for this consult until afterwards, when
3 “T-CON” is an abbreviation for “Telephone Consult,” a computer entry created in
relation to a telephone call to or from a patient. IAF, Tab 11 at 24-25. “Warm handoff”
refers to connecting a patient’s telephone call directly to a nurse. IAF, Tab 8 at 7.4
the individual who was supposed have received the handoff informed him that the
call had dropped and there was no T-CON in the system that would enable her to
call the patient back. Id.
On petition for review, the appellant argues that the language of the MSA
SOP is ambiguous as to whether the warm handoff should be attempted before the
T-CON is created. PFR File, Tab 1 at 4; IAF, Tab 15 at 19. If we were to restrict
our analysis to the single sentence of the MSA SOP that the appellant cites, we
would agree. That sentence provides that, when a patient presents with an
emergency (as defined elsewhere), the MSA should “[w]arm transfer to RN
immediately . . . create an Urgent (Red) T-Con for nurse and provide warm
hand-off.” IAF, Tab 11 at 25. This rather confusing sentence seems to give a
sequence of first providing a warm handoff, second creating an Urgent (Red)
T-CON, and third providing a warm handoff. However, the confusion and any
resulting ambiguity is resolved by reading the relevant provisions as a whole.
The sentence that the appellant cites is located in the T-CON section of the MSA
SOP, which sets forth the steps for creating a T-CON in various situations. Id.
at 24-28. More specifically, this sentence is located under the heading “Inform
the patient call-back protocol,” in which callback procedures for various types of
T-CONs are addressed. Id. at 25. In context, we find that the most natural way
to read this provision is that the T-CON is created first, and then callback
procedures are addressed, or in the case of an Urgent (Red) T-CON, a warm
handoff instead of a callback. Id. In other words, we find that this sentence
begins with reference to a warm handoff because it presupposes that a T-CON has
already been created, but it then repeats this sequence of events – the creation of
a T-CON first, and a warm handoff second. Id. Our reading of this provision is
bolstered by a nearly identical provision that appears in the MSA SOP
Appointment Scheduling section: “If patient calls or presents for an appointment
for the following reasons [including chest pain and shortness of breath], create an5
Urgent (Red) T-Con for nurse and provide warm hand-off.”4 IAF, Tab 25 at 10.
This provision is arguably redundant of the similar one contained in the T-CON
section, but it provides a clearer picture of the sequence of events because it does
not proceed from a presumption that a T-CON has already been created.
Furthermore, we find that this interpretation makes the most sense because the
prompt creation of a T-CON would prevent the very problem that occurred in
specification 2, i.e., disconnection of an urgent call with no reliable way to call
the patient back.
Therefore, having fully considered and thoroughly addressed the
appellant’s argument regarding the sequence of operations required by the MSA
SOP, we agree with the administrative judge that, in an emergency situation such
as the one at issue in specification 2, the MSA SOP provides that a T-CON should
be created first, and a warm handoff should be conducted second. ID at 8. We
also agree with the administrative judge that, because the appellant attempted the
handoff before he created a T-CON, he failed to follow procedures, and that the
agency therefore proved specification 2. Id.
The appellant does not specifically dispute the administrative judge’s
findings on the remaining three specifications. Instead, he argues that the
administrative judge failed to consider his close of the record submission, and he
requests that the Board review that submission and issue a new decision in light
of it. PFR File, Tab 1 at 5. As an initial matter, an administrative judge’s failure
to cite to a particular brief or argument does not mean that he failed to consider it
in reaching his decision. Schindler v. General Services Administration ,
53 M.S.P.R. 171, 173 (1992); Wilson v. Department of Agriculture , 28 M.S.P.R.
472, 476 (1985). In any event, we find that the administrative judge did, in fact,
consider the appellant’s close of the record submission because he cited to it
several times and discussed it substantively in his initial decision. ID at 4-5, 7, 9,
4 This is the provision that the administrative judge cited in his initial decision. ID
at 6-7.6
12, 17-19. Furthermore, under 5 C.F.R. § 1201.114(b), a petition for review must
state a party’s objections to the initial decision and be supported by specific
references to the record. The Board has long held that a petition for review that
merely incorporates by reference a brief that was filed with the administrative
judge does not satisfy this standard. Hulett v. Department of the Navy ,
120 M.S.P.R. 54, ¶ 5 n.2 (2013); Cole v. Department of Transportation ,
18 M.S.P.R. 102, 104 (1983). We therefore find that the appellant has not
provided a basis to disturb the administrative judge’s findings on specifications 3
through 5.
The appellant also renews his argument that the agency considered lack of
remorse as an aggravating penalty factor without providing him with advance
notice that it would do so. PFR File, Tab 1 at 5. However, as the administrative
judge correctly found, the proposing official’s Douglas factor worksheet
explicitly stated that the appellant’s “failure to recognize and acknowledge his
repeated misconduct along with his failure to demonstrate remorse for his
behaviors” was being considered as an aggravating penalty factor. ID at 17; IAF,
Tab 10 at 18, 23. The agency provided the appellant with a copy of this
worksheet as an enclosure with the notice of proposed suspension. Id. at 12. We
find that this was sufficient to inform the appellant that the deciding official
would consider his lack of remorse in arriving at a penalty determination. See
Alvarado v. Department of the Air Force , 97 M.S.P.R. 389, ¶ 15 (2004) (finding
that the due process notice requirement is satisfied when the proposal and any
attachments to it, taken together, provide the employee with sufficient
information to make a meaningful reply).
The appellant has not explicitly challenged the administrative judge’s other
findings on his affirmative defenses. Nor has he challenged the administrative
judge’s findings on the issues of nexus and penalty. For the reasons explained in
the initial decision we agree with the administrative judge’s findings on these
issues. ID at 15-23.7
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
5 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.8
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any9
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s10
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.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Cruse_EricSF-0752-20-0346-I-1__Final_Order.pdf | 2024-06-21 | ERIC CRUSE v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0752-20-0346-I-1, June 21, 2024 | SF-0752-20-0346-I-1 | NP |
1,187 | https://www.mspb.gov/decisions/nonprecedential/Shingledecker_AuroraDA-315H-20-0104-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AURORA SHINGLEDECKER,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DA-315H-20-0104-I-1
DATE: June 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Russell J. Amsberry , Esquire, San Antonio, Texas, for the appellant.
Alana Kitchen , Wright-Patterson Air Force Base, Ohio, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her termination appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
On petition for review,2 the appellant does not challenge the administrative
judge’s finding that she failed to make a nonfrivolous allegation3 that she was an
“employee” for purposes of 5 U.S.C. chapter 75 appeal rights or that there was a
regulatory basis for her appeal under the provisions set forth in 5 C.F.R. part 315,
subpart H. Petition for Review (PFR) File, Tab 1 at 5-7; Initial Appeal File
(IAF), Tab 7, Initial Decision at 2-6; see Ferdon v. U.S. Postal Service ,
60 M.S.P.R. 325, 329 (1994) (holding that an appellant is entitled to a
jurisdictional hearing if she presents nonfrivolous allegations of Board
jurisdiction). She also does not allege that the agency failed to meet the “broad
stroke language” of 5 C.F.R. § 315.804(a) in providing her notice of the reason
for, and effective date of, her termination. PFR File, Tab 1 at 5-7. Rather, the
2 Although the appellant’s petition was date and time stamped with Eastern Time, the
Office of the Clerk of the Board considered the petition to have been timely filed
because her representative filed it by e-Appeal from the Central Time Zone and the
timeliness of a pleading is assessed based on the time zone from which it is filed.
Petition for Review File, Tab 2 at 1; see 5 C.F.R. § 1201.14(m)(1).
3 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).2
appellant repeats her arguments regarding the merits of her termination for
performance deficiencies. Id.; IAF, Tab 1 at 12.
The appellant argues for the first time on review that her termination
violated Executive Order 13892, § 3, 84 Fed. Reg. 55239 (Oct. 9, 2019), because
the order states that “when an agency . . . makes a determination that has legal
consequences for a person, it must establish a violation of law by applying statues
and regulations.” PFR File, Tab 6-7. The Board will not consider an argument
raised for the first time in a petition for review absent a showing that it is based
on new and material evidence not previously available despite the party’s due
diligence. Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980).
The appellant has made no such showing regarding this executive order, which
was issued prior to the appellant’s termination and filing of her initial appeal.
She offers no explanation for why she did not make this argument during the
pendency of her appeal or respond to the jurisdiction order at all. PFR File,
Tab 1 at 5-7.4 In any event, the section of this Executive Order cited by the
appellant, entitled “Proper Reliance on Guidance Documents,” prohibits an
agency from “treat[ing] noncompliance with a standard of conduct announced
solely in a guidance document as itself a violation of applicable statutes or
regulations.” Executive Order 13892, § 3. She offers no argument as to how this
Executive Order alters either chapter 75 appeal rights or the Office of Personnel
Management regulations applicable to her probationary termination. See Maddox
v. Merit Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985) (holding that
the Board’s jurisdiction is limited to those matters over which it has been given
jurisdiction by law, rule, or regulation).
Accordingly, we affirm the initial decision.
4 In a statement regarding the timeliness of the petition for review, the appellant’s
representative asserts that he was hospitalized for a period of 2 weeks ending
February 10, 2020. PFR File, Tab 1 at 4. He makes no contention in this statement that
he was medically incapacitated during the response period for the jurisdiction order. Id.3
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
5 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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s6
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.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Shingledecker_AuroraDA-315H-20-0104-I-1__Final_Order.pdf | 2024-06-21 | AURORA SHINGLEDECKER v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DA-315H-20-0104-I-1, June 21, 2024 | DA-315H-20-0104-I-1 | NP |
1,188 | https://www.mspb.gov/decisions/nonprecedential/Estevez_OrlandoDE-0752-19-0256-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ORLANDO ESTEVEZ,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DE-0752-19-0256-I-1
DATE: June 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael R. Goldstein , Esquire, Washington, D.C., for the appellant.
Judith Homich , Esquire, Tampa, Florida, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal pursuant to 5 U.S.C. chapter 75 for improper conduct and
failure to follow instructions and/or procedures. On petition for review, the
appellant argues that (1) the agency committed harmful procedural error and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
violated his due process rights by denying him the opportunity to submit an oral
reply and (2) his removal was excessive under the circumstances. Petition for
Review File, Tab 1 at 10-25. Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
of material fact; the initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After
fully considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
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: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Estevez_OrlandoDE-0752-19-0256-I-1__Final_Order.pdf | 2024-06-21 | ORLANDO ESTEVEZ v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DE-0752-19-0256-I-1, June 21, 2024 | DE-0752-19-0256-I-1 | NP |
1,189 | https://www.mspb.gov/decisions/nonprecedential/Smith_Wayne_D_DC-0752-19-0612-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WAYNE DARNELL SMITH,
Appellant,
v.
DEPARTMENT OF ENERGY,
Agency.DOCKET NUMBER
DC-0752-19-0612-I-1
DATE: June 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Wayne Darnell Smith , Fort Washington, Maryland, pro se.
Jocelyn E. Richards , Esquire, and Jenny Knopinski , Esquire, Washington,
D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the appeal for lack of jurisdiction. For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed by 59 days
without good cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
On October 2, 2019, the administrative judge issued an initial decision
dismissing the appellant’s termination appeal for lack of jurisdiction. Initial
Appeal File (IAF), Tab 15, Initial Decision (ID). On January 4, 2020, the
appellant filed a petition for review. Petition for Review (PFR) File, Tab 1. The
agency has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has failed to show good cause for the 59-day delay in filing his
petition for review.
A petition for review must be filed within 35 days after the issuance of the
initial decision, or, if the petitioner shows that he received the initial decision
more than 5 days after the date of the issuance, within 30 days after the date he
received the initial decision. 5 C.F.R. § 1201.114(e). Here, the administrative
judge advised the appellant that the initial decision would become final on
November 6, 2019, unless a petition for review was filed by that date. ID at 8.
The administrative judge further informed the appellant that, if he proved that he
received the initial decision more than 5 days after the date of issuance, he could
file a petition for review within 30 days after the date of receipt. Id.
The record reflects that the appellant, a registered e-filer, received the
initial decision on October 2, 2019, the date of issuance, via electronic mail.
IAF, Tab 1 at 2, Tab 16; see 5 C.F.R. § 1201.14(m)(2) (providing that Board
documents served electronically on registered e-filers are deemed received on the
date of electronic submission). On the online interview form, the appellant states,
without explanation, that he received the initial decision on “November 6, 2009 at
12:00:00 AM.” PFR File, Tab 1 at 3. Construing his pleading liberally, we
conclude that the appellant asserts that he received the initial decision on
November 6, 2019, which was 35 days after its issuance. See Melnick v.
Department of Housing & Urban Development , 42 M.S.P.R. 93, 97 (1989)
(holding that pro se pleadings are to be liberally construed), aff’d, 899 F.2d 12282
(Fed. Cir. 1990) (Table). The appellant has not presented any factual allegations
or evidence to explain or corroborate his bare assertion that he did not receive the
initial decision until this date. To the contrary, we find that the record reflects
that the appellant received the initial decision on October 2, 2019. IAF, Tab 1
at 2, Tab 16. Thus, the deadline for filing a petition for review was November 6,
2019. See 5 C.F.R. § 1201.114(e). Accordingly, the appellant’s petition for
review filed on January 4, 2020, is untimely by 59 days. Id.2
The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g). To
establish good cause for an untimely filing, the appellant must show that he
exercised due diligence or ordinary prudence under the particular circumstances
of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184 (1980).
In determining whether there is good cause, the Board considers the length of the
delay, the reasonableness of the excuse and showing of due diligence, whether the
appellant is proceeding pro se, and whether he has presented evidence of the
existence of circumstances beyond his control that affected his ability to comply
with the time limits or of unavoidable casualty or misfortune that similarly shows
a causal relationship to his inability to file a timely petition. Moorman v.
Department of the Army , 68 M.S.P.R. 60, 62-63 (1995), aff’d, 79 F.3d 1167 (Fed.
Cir. 1996) (Table).
We find that the appellant has not demonstrated good cause for the
untimely filing of his petition for review. The Acting Clerk of the Board notified
the appellant that his petition for review was untimely and gave him an
opportunity to demonstrate good cause for his untimely filed petition. PFR File,
Tab 2 at 1-2, 7-8. Although the appellant is pro se, a 59-day delay is lengthy and
2 Even assuming that the appellant received the initial decision on November 6, 2019,
the deadline for filing a petition for review would have been 30 days later on
December 6, 2019. See 5 C.F.R. § 1201.114(e). Thus, at a minimum, the appellant’s
petition for review is untimely by 29 days, which is a significant delay. We would still
dismiss the petition for review because the appellant has not established good cause for
such a delay as explained below.3
the appellant provides no explanation for his late filing despite being given an
opportunity to do so. Instead, he challenges the merits of the agency’s removal
action, stating, “I respectfully request the entire MSPB review of this decision by
filing a petition for review.” PFR File, Tab 1 at 3-4. The Board has consistently
denied a waiver of the filing deadline if a good reason for the delay is not shown,
even when the appellant is pro se. See Cabarloc v. Department of Veterans
Affairs, 112 M.S.P.R. 453, ¶¶ 9-10 (2009) (finding no good cause for the pro se
appellant’s 10-day delay in filing a petition for review when he failed to respond
to the Clerk’s notice regarding timeliness). Moreover, merely challenging the
merits of the agency’s removal action does not establish good cause for waiving
the filing deadline. See Guevara v. Department of the Navy , 112 M.S.P.R. 39, ¶ 7
(2009) (finding that the appellant failed to establish good cause for his untimely
filed petition for review when he merely argued the merits of the agency’s
removal action). The appellant’s failure to address the timeliness of his petition
for review and the lack of evidence of circumstances beyond his control or of
unavoidable casualty or misfortune that prevented him from filing a timely
petition for review weigh against finding good cause.
Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the Board’s jurisdiction over this appeal. 4
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s7
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Smith_Wayne_D_DC-0752-19-0612-I-1__Final_Order.pdf | 2024-06-21 | WAYNE DARNELL SMITH v. DEPARTMENT OF ENERGY, MSPB Docket No. DC-0752-19-0612-I-1, June 21, 2024 | DC-0752-19-0612-I-1 | NP |
1,190 | https://www.mspb.gov/decisions/nonprecedential/Shimoda_Dwight_S_SF-315H-20-0687-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DWIGHT S. SHIMODA,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
SF-315H-20-0687-I-1
DATE: June 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dwight S. Shimoda , Las Vegas, Nevada, pro se.
Nicole E. Rapone , Esquire, Fort Lee, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal of his termination from his position
during his probationary period and, alternatively, concluded that the appeal was
untimely filed by 6 years. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
A probationary employee in the competitive service who has not completed
1 year of continuous service has no statutory right of appeal to the Board.
See 5 U.S.C. § 7511(a)(1)(A); Harris v. Department of the Navy, 99 M.S.P.R.
355, ¶ 6 (2005). However, a probationary employee in the competitive service
has a regulatory right of appeal in three limited circumstances: (1) the employee
was discriminated against on account of his marital status; (2) the employee was
discriminated against based on partisan political reasons; or (3) the agency action
was based (in whole or part) on issues that arose preappointment and the agency
did not follow required procedures. Blount v. Department of the Treasury,
109 M.S.P.R. 174, ¶ 5 (2008); 5 C.F.R. §§ 315.805-.806. To be entitled to a
jurisdictional hearing, an appellant must make a nonfrivolous allegation that the
Board has jurisdiction over his appeal. Ferdon v. U.S. Postal Service,
60 M.S.P.R. 325, 329 (1994).
Here, the appellant, who was terminated during his 1-year probationary
period because he was unable to perform the essential functions of his position,
contends that the agency (1) was aware of his back injury/disabled status at the
time it hired him and (2) failed to follow “protocol” in removing him from his2
position. Initial Appeal File, Tab 16 at 11-12; Petition for Review File, Tab 1
at 4-5, Tab 3 at 4-5, Tab 6 at 4-5. We interpret these contentions as an argument
that the agency terminated the appellant for preappointment reasons and,
therefore, was obliged to comply with the procedural requirements of 5 C.F.R.
§ 315.805 but failed to do so. See Blount, 109 M.S.P.R. 174, ¶ 5 (explaining that,
if an agency terminates an employee for reasons arising preappointment, then the
agency is obliged to comply with the procedural requirements set forth in
5 C.F.R. § 315.805). We find this argument unavailing. Indeed, the Board
distinguishes between a preexisting condition and the effect that the condition has
on an employee’s performance during his probationary period. West v.
Department of Health & Human Services, 122 M.S.P.R. 434, ¶ 10 (2015).
Thus, the appellant’s inability to perform his job duties because of a medical
condition that existed preappointment, and of which they agency may have been
aware, is nonetheless a postappointment reason for termination. See Cunningham
v. Department of the Army, 119 M.S.P.R. 147, ¶ 8 (2013). Accordingly, we
discern no basis to disturb the initial decision.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
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: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Shimoda_Dwight_S_SF-315H-20-0687-I-1__Final_Order.pdf | 2024-06-21 | DWIGHT S. SHIMODA v. DEPARTMENT OF DEFENSE, MSPB Docket No. SF-315H-20-0687-I-1, June 21, 2024 | SF-315H-20-0687-I-1 | NP |
1,191 | https://www.mspb.gov/decisions/nonprecedential/Evans_Margaret_Z_SF-315H-20-0084-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARGARET Z. EVANS,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
SF-315H-20-0084-I-1
DATE: June 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Margaret Z. Evans , Boise, Idaho, pro se.
Cliff Lockett , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant makes arguments unrelated to the issue of
jurisdiction, to include asking whether her trainers were contacted and asserting
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
that the agency committed libel or slander by portraying her as an unfit employee.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
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: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Evans_Margaret_Z_SF-315H-20-0084-I-1__Final_Order.pdf | 2024-06-20 | MARGARET Z. EVANS v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. SF-315H-20-0084-I-1, June 20, 2024 | SF-315H-20-0084-I-1 | NP |
1,192 | https://www.mspb.gov/decisions/nonprecedential/Bassett_AnthonyDC-0752-20-0125-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY BASSETT,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-0752-20-0125-I-1
DATE: June 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carolyn Ann Dragseth , Esquire, Baton Rouge, Louisiana, for the appellant.
Jonathan Beyer , APO/FPO Europe, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his involuntary resignation appeal for lack of jurisdiction. On petition
for review, the appellant reiterates his argument that the agency violated
regulations regarding his teaching load and that it discriminated against him on
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the bases of race and color. He asserts that his colleagues engineered situations
that could have resulted in a physical altercation and that he provided a mildly
written resignation to avoid undue harassment for the remainder of his
employment. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).2
2 Regarding the appellant’s claims of discrimination, when such allegations are made in
an involuntary resignation appeal, the evidence of discrimination may be considered
only in terms of the standard for voluntariness in a particular situation—not whether
such evidence meets the test for proof of discrimination established under Title VII.
Markon v. Department of State, 71 M.S.P.R. 574, 578 (1996). Thus, evidence of
discrimination goes to the ultimate question of coercion—“whether under all of the
circumstances working conditions were made so difficult by the agency, that a
reasonable person in the employee's position would have felt compelled to resign [or
retire].” Id., (quoting Heining v. General Services Administration, 68 M.S.P.R. 513, 520
(1995)).
However, because the appellant raised a claim of disability discrimination in this
constructive removal appeal, and the Board has issued a final order dismissing the
appeal for lack of jurisdiction, the appellant has the right to pursue his disability
discrimination claim before the agency in accordance with the Equal Employment
Opportunity Commission’s Management Directive 110: App. D § B.3: “ When a mixed
case complaint is “unmixed” by a finding by the MSPB of no jurisdiction, the individual
has a right to elect between a hearing before a Commission Administrative Judge or an
immediate final decision. See 29 C.F.R. § 1614.302(b).”2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board 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.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Bassett_AnthonyDC-0752-20-0125-I-1__Final_Order.pdf | 2024-06-20 | ANTHONY BASSETT v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-0752-20-0125-I-1, June 20, 2024 | DC-0752-20-0125-I-1 | NP |
1,193 | https://www.mspb.gov/decisions/nonprecedential/Kuhlmann_Kerri_S_DC-1221-19-0793-W-1_DC-1221-20-0190-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KERRI S. KUHLMANN,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.DOCKET NUMBER
DC-1221-19-0793-W-1
DC-1221-20-0190-W-1
DATE: June 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kerri S. Kuhlmann , Arlington, Virginia, pro se.
Carolyn Cheung , Esquire, and Rolando Valdez , Esquire, Washington, D.C.,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication of
this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in her joined individual right of action
(IRA) appeals. Generally, we grant petitions such as this one only in the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED as
to the administrative judge’s analysis of the appellant’s prima facie case and the
agency’s evidence that it would have taken the same actions absent the
appellant’s protected disclosures and activity, we AFFIRM the initial decision.
BACKGROUND
¶2The appellant was formerly employed by the agency as a GS-14 Employee
Benefits Law Specialist in the Employee Benefits Security Administration’s
(EBSA) Office of Regulations and Interpretations (ORI), Division of Coverage,
Reporting, and Disclosure (DCRD) in Washington, D.C. Kuhlmann v.
Department of Labor, MSPB Docket No. DC-1221-19-0793-W-1 (0793 appeal),
Initial Appeal File (0793 IAF), Tab 1 at 71, Tab 96 at 84. While employed in this
position, the appellant had difficulty working with her first-level supervisor, who
at the time was the Chief of the DCRD, and whom she alleges harassed her, by,
among other things, committing battery by touching the appellant’s arm during a
meeting in February 2016. 0793 IAF, Tab 1 at 15. Following the February 2016
incident, the appellant was assigned to report to another interim supervisor.
0793 IAF, Tab 7 at 11. The appellant alleges that on June 21, 2017, her former2
first-level supervisor again harassed and intimidated her in the copy room, after
which the appellant contacted the Federal Protective Service (FPS). 0793 IAF,
Tab 1 at 21. On July 27, 2017, the agency directed the appellant’s reassignment
from her position in ORI to the position of GS-14 Senior Technical Advisor in the
Office of Enforcement (OE), Division of Financial Investigations (DFI).
0793 IAF, Tab 1 at 71, Tab 96 at 84.
¶3The appellant filed two IRA appeals alleging that, in reprisal for making
numerous alleged protected disclosures and engaging in protected activities, she
was subjected to a variety of personnel actions. 0793 IAF, Tab 1; Kuhlmann v.
Department of Labor , MSPB Docket No. DC-1221-20-0190-W-1 (0190 appeal),
Initial Appeal File (0190 IAF), Tab 1. In the 0793 appeal, the appellant alleged
that she made 18 alleged disclosures.2 0793 IAF, Tab 1. These alleged
disclosures, which we address in detail below, span from December 2016 to July
2019 and include, among numerous others, an alleged obstruction of justice by
agency officials when they falsely denied during an investigation of the alleged
February 2016 battery that the appellant’s former supervisor had touched her.
0793 IAF, Tab 1. As another example, according to the appellant, she disclosed
an abuse of authority by her former supervisor based on the supervisor’s alleged
harassing conduct in the copy room on June 21, 2017. Id. The appellant also
alleged that she engaged in the following protected activities: (1) in December
2016, she filed a complaint with the Office of the Inspector General (IG)
regarding improper hiring practices; and (2) on March 26, 2017, she filed a Board
appeal, Kuhlmann v. Department of Labor , MSPB Docket No. DC-1221-17-0437-
W-1 (0437 appeal), id. at 18, 20. In reprisal, the appellant contends that she was
subjected to 12 personnel actions, including, among others, the following: the
July 23, 2017 directed reassignment to OE, various changes in duties,
responsibilities, and working conditions, denial of several requests for
2 The appellant originally alleged 19 disclosures in the 0793 appeal, but she withdrew
disclosure 19. 0793 IAF, Tab 73 at 46. 3
reassignment, exclusion from acting details and assignments, and a threat of a
lowered performance appraisal. 0793 IAF, Tab 1.
¶4In the 0190 appeal, the appellant alleged that she made three disclosures
relating to the validity of her tentative fiscal year 2018 performance rating, her
fiscal year 2019 performance standards, and her fiscal year 2019 performance
rating. 0190 IAF, Tab 1. She also alleged that she engaged in protected activities
by filing the 0437 and 0793 appeals and meeting with and making various
disclosures to Office of Special Counsel (OSC). 0190 IAF, Tab 1 at 13. In
reprisal, the appellant asserted that the agency lowered her fiscal year 2019
performance evaluation and denied her official time.3 0190 IAF, Tab 1 at 13.
¶5Upon motion by the appellant, the administrative judge joined the 0793 and
0190 appeals. 0793 IAF, Tabs 58-60. After the appellant withdrew her request
for a hearing, 0793 IAF, Tab 88, the administrative judge issued an initial
decision based on the written record, 0793 IAF, Tab 105, Initial Decision (ID).
He found that the appellant established jurisdiction, but he denied her request for
corrective action on the merits. ID at 2, 10. The administrative judge found that
the appellant proved that disclosures 2, 5, 8, and 14 in the 0793 appeal were
protected and that she engaged in protected activity by filing Board appeals;
filing a complaint with the agency’s IG; making disclosures to OSC; and
notifying agency officials of her intent to do so. ID at 16-17, 21, 24-28, 51-52.
The administrative judge further found that the appellant failed to prove by
preponderant evidence that her remaining alleged disclosures were protected. The
administrative judge found that the appellant’s protected disclosures and
protected activity were a contributing factor in several personnel actions, ID
at 57-58, but that the agency proved by clear and convincing evidence that it
would have taken the same actions absent such disclosures and activity, ID
at 59-87.
3 The appellant also raised additional personnel actions in the 0190 appeal, which she
subsequently withdrew. 0793 IAF, Tab 73 at 78. Therefore, we do not address those
additional actions here.4
¶6The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 9.4 The agency has opposed the appellant’s petition, and the appellant
has filed a reply. PFR File, Tabs 21, 27.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7After establishing the Board’s jurisdiction in an IRA appeal, the appellant
must establish a prima facie case of whistleblower retaliation by proving by
preponderant evidence that she made a protected disclosure described under
5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity
was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a). 5 U.S.C. § 1221(e)(1);
Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016); Lu v.
Department of Homeland Security , 122 M.S.P.R. 335, ¶ 7 (2015). A protected
disclosure is a disclosure of information that the appellant reasonably believes
evidences any violation of any law, rule, or regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety. 5 U.S.C. § 2302(b)(8); Bradley v. Department of
Homeland Security , 123 M.S.P.R. 547, ¶ 7 (2016). The proper test for
determining whether an employee had a reasonable belief that her disclosures
were protected is whether a disinterested observer with knowledge of the essential
facts known to and readily ascertainable by the employee could reasonably
conclude that the disclosure evidenced one of the circumstances described in
5 U.S.C. § 2302(b)(8). Bradley, 123 M.S.P.R. 547, ¶ 7.
4 The appellant also filed a motion for leave to submit an additional pleading to object
to the Clerk of the Board’s decision to grant the agency an extension of time to respond
to the appellant’s petition and to demonstrate bias. PFR File, Tab 15. The appellant’s
motion is denied because she already had ample opportunity to present her arguments.
See Sabio v. Department of Veterans Affairs , 124 M.S.P.R. 161, ¶ 13 (2017). Indeed,
the appellant filed an objection to the agency’s motion for an extension, PFR File,
Tab 11, and raised claims of bias in her petition for review, for which she was granted
extensions of time and a waiver of the page limit, PFR File, Tabs 2, 4, 6, 9.5
We discern no basis to disturb the administrative judge’s determination that
disclosures 2, 5, 8, and 14 in the 0793 appeal were protected.
¶8The administrative judge addressed 18 alleged disclosures in the
0793 appeal and found that the appellant met her burden of proof for
disclosures 2, in part, and disclosures 5, 8, and 14, but not the remaining
disclosures 1, 3-4, 6, 7, 9-13, and 15-18. ID at 13-39. The parties do not dispute
the administrative judge’s findings as to disclosures 5, 8, and 14, and we discern
no basis to disturb those findings.
¶9The appellant disagrees with the administrative judge’s determination that
only a portion of disclosure 2 was protected. PFR File, Tab 9 at 25. The
appellant alleged that she disclosed to U.S. Senate staff and FPS that various
EBSA officials falsely denied in sworn statements to FPS that her former
first-level supervisor had touched her on February 26, 2016. 0793 IAF, Tab 1
at 19, Tab 8 at 29-33. The administrative judge found the disclosure protected
only as to the appellant’s statement that her former first-level supervisor falsely
denied touching her. ID at 16-17. On review, the appellant argues that the
administrative judge should also have found that the appellant reasonably
believed that her second-level supervisor and EBSA’s Chief Human Capital
Officer in the Office of Program Planning and Evaluation Management (OPPEM)
submitted false statements, relying on various arguments she submitted below.
PFR File, Tab 9 at 25. We have examined the cited documents but are not
persuaded that they cast doubt on the administrative judge’s determination that
the appellant proved only her reasonable belief as to her former first-level
supervisor.
¶10As to the Chief Human Capital Officer, the appellant asserted below that
she reasonably believed that he lied when he denied to FPS that staff that he
interviewed in connection with the incident stated that they witnessed an
“assault.” She reasoned that the Chief Human Capital Officer had previously
stated to the appellant that two employees had observed her former first-level6
supervisor “physically touch[ing] [the appellant’s] body.” 0793 IAF, Tab 8 at 31,
Tab 72 at 48. We see nothing inconsistent in these two statements, as the Chief
Human Capital Officer may not have interpreted the alleged touching as an
assault.
¶11Regarding the alleged false statement by her second-level supervisor, the
appellant asserts that, because this supervisor was seated opposite the appellant at
a table and speaking with her when the appellant’s former first-level supervisor
touched the appellant, she must have witnessed the touching. IAF, Tab 8 at 32,
Tab 97 at 169. However, the appellant’s speculation as to what her second-level
supervisor may have seen is not sufficient to establish that the appellant
reasonably believed that the supervisor saw the touching or that she later lied
about it. Therefore, we discern no error in the administrative judge’s findings.
However, on July 12, 2016, the appellant also disclosed her claims that the
“witnesses lied and/or obstructed justice” to OSC. 0793 IAF, Tab 8 at 30.
“[C]ooperating with or disclosing information to the Inspector General . . . of an
agency, or the Special Counsel” is protected activity under 5 U.S.C.
§ 2302(b)(9)(C)—irrespective of whether an individual had a reasonable belief
that she was disclosing wrongdoing. Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶ 62 (quoting 5 U.S.C. § 2302(b)(9)(C)). Thus, we find
that the appellant engaged in protected activity.
The administrative judge properly found that the appellant did not prove that
disclosures 4, 6-7, 9-13, and 15-18 raised in the 0793 appeal were protected under
section 2302(b)(8), but should have found that disclosures 1 and 3 were protected.
¶12On review, the appellant challenges the administrative judge’s findings that
she failed to prove disclosures 1, 3-4, 6, 10-11, 13, and 15-18 in the 0793 appeal
were protected.5 PFR File, Tab 9; ID at 39-51. As an initial matter, the appellant
asserts that the administrative judge erred generally in finding that her alleged
5 The appellant’s petition for review contains no arguments about disclosures 7, 9, or 12
in the 0793 appeal, which the administrative judge found did not amount to protected
disclosures but did amount to protected activity. ID at 24, 52.7
disclosures were not protected because they amounted to personal workplace
grievances about how agency managers were treating her and improperly relied
on Mc Corcle v. Department of Agriculture , 98 M.S.P.R. 363 (2005), in finding
that such disclosures were not protected. PFR File, Tab 9 at 12-15. The appellant
contends that Mc Corcle relied on Willis v. Department of Agriculture , 141 F.3d
1139 (Fed. Cir. 1998), which was abrogated by the Whistleblower Protection
Enhancement Act of 2012 (WPEA). We agree.
¶13The Senate report on the proposed legislation that later was enacted as the
WPEA expressed concerns over decisions, including Willis, that narrowed the
scope of the definition of a protected disclosure. S. Rep. No. 112-155 at 4-6
(2012). The report concluded that the strong national interest in protecting good
faith whistleblowing required broad protection of whistleblower disclosures,
notwithstanding any concern that management of the Federal workforce could be
“unduly burdened if employees [could] successfully claim whistleblower status in
ordinary employment disputes.” Id. at 6. The committee concluded that the focus
of the whistleblower analysis therefore should be whether the employee
reasonably believed that she disclosed a category of wrongdoing under 5 U.S.C.
§ 2302(b)(8), rather than whether her disclosure of information met the statutory
definition of “disclosure.” Id. at 6-7. Notwithstanding the administrative judge’s
reliance on Mc Corcle, we agree with the administrative judge’s findings
regarding the appellant’s disclosures, as more fully discussed below.
Disclosures 10, 13, 15, and 18
¶14We agree with the administrative judge that a disinterested person would
not have believed that alleged disclosures 10, 13, 15, and 18 evidenced
wrongdoing under section 2302(b)(8). Alleged disclosure 10 amounts to the
appellant’s disagreement with the agency’s denial of her request for a private
office, alleged disclosure 15 relates to the appellant’s contention that she was
improperly required to arrange her own travel when a travel coordinator should
have been available to do so, and alleged disclosures 13 and 18 concerned the8
appellant’s report that she was being mistreated, including the denial of a private
office and denial of her transfer request.6 0793 IAF, Tab 1 at 49-54, 56, 58,
62-63. Although the appellant disagreed with these decisions and felt she should
have been provided with the details concerning the agency’s justification for its
decisions, she has not alleged facts sufficient to establish that a reasonable person
would have believed that she was disclosing a violation of law, rule, or
regulation, an abuse of authority, or any other category of wrongdoing. For
example, regarding disclosure 15, the administrative judge found, and we agree,
that the appellant could not reasonably have concluded it was an abuse of
authority for the agency to ask her to make her own travel arrangements.
Disclosure 1
¶15The appellant alleges that in December 2016 she disclosed a violation of
Office of Personnel Management and agency hiring rules as well as an abuse of
authority when two GS-14 employees were placed in higher-graded acting
positions for more than 120 days without competition. 0793 IAF, Tab 73 at 21.
According to the appellant, the individuals continued in the acting positions for
6 months until the agency permanently promoted them. 0793 IAF, Tab 1 at 17.
The appellant contends that she reasonably believed that the agency’s actions
violated 5 C.F.R. § 335.103(c)(1)(ii) and the agency’s internal placement plan,
which mandate that details over 120 days are subject to competitive hiring
procedures. 0793 IAF, Tab 1 at 16-17, Tab 9 at 23-25. The administrative judge
found that the appellant failed to show she reasonably believed she was disclosing
wrongdoing because the agency had informed the appellant that the two
employees were never officially detailed and were merely acting until the
positions were filled and the appellant speculated that the practice was illegal
6 In disclosure 13, the appellant alleged that the agency’s actions constituted reprisal for
her whistleblowing and that she intended to file a complaint with OSC. We agree with
the administrative judge that such email amounts to protected activity. ID at 24 n.12.9
because she could not find an explicit authorization for the practice. ID at 14-15;
0793 IAF, Tab 9 at 7.
¶16We disagree with the administrative judge that the appellant’s belief was
not reasonable because she failed to rely on input from staffing experts and
assumed a violation occurred because she could not satisfy herself that the
“situation was entirely above board.” ID at 15. The appellant sought information
from human resources, which could not provide any authority to support the
decision to place the individuals in acting positions because they concluded there
was no official rule. 0793 IAF, Tab 9 at 20, Tab 74 at 35. Under the
circumstances, we find that a disinterested observer in the appellant’s position
could have reasonably believed that the agency failed to comply with the
requirement to use “competitive procedures” to detail two individuals to
higher-graded positions for “more than 120 days.” 5 C.F.R. § 335.103(c)(1)(ii).
Disclosure 3
¶17Disclosure 3 consisted of an email that the appellant sent to an official in
the agency’s Office of Solicitor of Labor (SOL) on June 14, 2017. 0793 IAF,
Tab 10 at 14. In her email, the appellant stated, among other concerns, that the
agency had failed for 5 months to respond to a request for records she made under
the Privacy Act. Id. The Privacy Act requires an agency to make available to an
individual, upon her request, records that the agency maintains pertaining to that
individual in a system of records retrieved by her name or other personal
identifier. 5 U.S.C. § 552a(a)(5), (d)(1). Under agency regulations implementing
the Privacy Act, an individual seeking her records first requests them from the
appropriate agency component. 29 C.F.R. § 71.2(a). The component is required
to respond to the request in writing within 30 days by either granting or denying it
“in whole or in part,” or explaining that no responsive records were located.
29 C.F.R. § 71.4(a)-(c). If an individual is dissatisfied with the component’s
response, she may appeal to the SOL. 29 C.F.R. § 71.7(a). 10
¶18The appellant made a request to EBSA for records relating to her
employment maintained in six systems of records. 0793 IAF, Tab 10 at 23, 26.
According to the agency, she “perfected [her request] on February 9, 2017.” Id.
at 26. On June 2, 2017, the agency provided the appellant with an interim
response to her request. Id. It provided 286 pages of documents in response and
indicated EBSA was continuing to search its records. Id. On June 5, 2017, the
appellant appealed this response to the SOL. Id. at 14-16. In the June 14, 2017
email that constitutes disclosure 3, the appellant complained that the SOL had
failed to acknowledge her appeal, suggested the agency’s alleged failure to
properly process her request was whistleblower reprisal, and asserted SOL staff
had committed perjury. Id. at 14. The SOL acknowledged the appellant’s
Privacy Act appeal on June 16, 2017. Id. at 20-21.
¶19The administrative judge determined that this disclosure was not protected
because the appellant could not have reasonably believed the agency had refused
to process her Privacy Act request given that the agency did, in fact, process her
request. ID at 18-19. The appellant asserted in her email that the agency was
“refus[ing] to allow [her] to view her personnel records.” 0793 IAF, Tab 10
at 14. However, as indicated above, 2 weeks earlier, EBSA had provided her with
286 pages of documents, and stated it was continuing to search for more.
0793 IAF, Tab 10 at 26. On review, the appellant claims the documents produced
were her “nonresponsive sign-in/sign-out emails.” PFR File, Tab 9 at 23.
However, documents regarding the appellant’s presence at work concern her, and
the appellant has not otherwise explained why she believed these documents were
nonresponsive. Therefore, we discern no basis to disturb the administrative
judge’s determination that the appellant could not have reasonably believed the
agency was refusing to process her Privacy Act request.
¶20Although not addressed by the administrative judge, we also find that the
appellant could not reasonably have believed, as stated in her June 14, 2017
email, that the agency was ignoring her appeal from EBSA’s June 2, 201711
response. 0793 IAF, Tab 10 at 14. At the time she made this statement, only
9 calendar days, and even fewer working days, had passed since her June 5, 2017
appeal. Id. Further, while the appellant argues that the administrative judge
ignored her accusation, in her June 14, 2017 email, regarding “SOL lawyers’ false
statements/suborning perjury,” we discern no error. PFR File, Tab 9 at 22-23. To
constitute protected whistleblowing, disclosures must be specific and detailed, not
vague allegations of wrongdoing. Salerno, 123 M.S.P.R. 230, ¶ 6. While the
administrative judge did not directly address whether the appellant’s accusation
of perjury was protected, neither the appellant’s disclosure nor her petition for
review provide information regarding the basis of her perjury claim. PFR File,
Tab 9 at 22-23; 0793 IAF, Tab 10 at 14. Therefore, we find that the appellant
failed to show that her perjury allegation was protected.
¶21For the same reason, to the extent the appellant suggests on review that she
also disclosed whistleblower reprisal in her June 14, 2017 email, we are not
persuaded. PFR File, Tab 9 at 22. She reflected in her email that “[i]t is ironic”
that the agency violated her Privacy Act rights in reprisal for unspecified
whistleblowing. 0793 IAF, Tab 10 at 14. However, she did not explain in her
email, and does not indicate on review, what disclosures she believed led to the
agency’s Privacy Act violation. PFR File, Tab 9 at 22; 0793 IAF, Tab 10 at 14.
Thus, it is unclear what information served as the basis for her whistleblower
reprisal claim. See Gryder v. Department of Transportation , 100 M.S.P.R. 564,
¶ 13 (2005) (concluding that an appellant failed to nonfrivolously allege he made
a protected disclosure because, in pertinent part, he made no allegation of facts
that explained what led him to conclude the agency had engaged in the specified
wrongdoing).
¶22Further, to the extent the appellant suggests that her disclosure constituted
protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), we are not persuaded. PFR
File, Tab 9 at 22-23. The Board has IRA jurisdiction over claims of reprisal for
activity protected under section 2302(b)(9)(A)(i), which includes “the exercise of12
any appeal, complaint or grievance right . . . with regard to remedying”
whistleblower reprisal. McCray v. Department of the Army , 2023 MSPB 10, ¶ 12.
The appellant’s June 14, 2017 email was an appeal from the agency’s response to
her Privacy Act request. The administrative judge indirectly addressed whether
the appellant’s email constituted protected activity under section 2302(b)(9)(A)(i)
by observing that the appellant could remedy a violation of her Privacy Act rights
through the Federal courts. ID at 18. The general absence or presence of an
alternative remedy is not relevant to the Board’s jurisdiction in this instance. See
generally McCray , 2023 MSPB 10, ¶ 12 (recognizing that the Board could have
IRA jurisdiction over a claim of reprisal for filing a grievance seeking to remedy
whistleblower reprisal); Gabel v. Department of Veterans Affairs , 2023 MSPB 4,
¶ 8 (stating that the Board has IRA jurisdiction over claims of reprisal for equal
employment opportunity (EEO) activity seeking to remedy whistleblower
reprisal). Nonetheless, we find that the appellant’s June 14, 2017 activity was not
protected under section 2302(b)(9)(A)(i) on other grounds.
¶23Although the appellant vaguely claimed in her email that she was the victim
of whistleblower reprisal, she did not seek a remedy. 0793 IAF, Tab 10 at 14.
Rather, she sought to resolve the alleged denial of her Privacy Act rights. Id.; see
Gabel, 2023 MSPB 4, ¶ 8 (concluding that an EEO complaint that did not seek to
remedy whistleblower reprisal did not fall within the scope of
section 2302(b)(9)(A)(i)). Therefore, her Privacy Act appeal was not protected
activity within the scope of the Board’s IRA jurisdiction.
¶24However, we disagree with the administrative judge that the appellant did
not prove that she reasonably believed that information she disclosed in her
June 14, 2017 email evidenced a violation a law, rule, or regulation. ID at 17-19.
An employee must identify the “specific law, rule, or regulation that was
violated,” but she is not required to identify the “statutory or regulatory provision
by title or number, when [her] statements and the circumstances surrounding the
making of those statements clearly implicate an identifiable violation of law, rule,13
or regulation.” Langer v. Department of the Treasury , 265 F.3d 1259, 1266 (Fed.
Cir. 2001) (internal citations and quotations omitted).
¶25In her email, the appellant complained that the agency had failed to provide
her with records she “first requested . . . five months ago .” 0793 IAF, Tab 10
at 14 (emphasis in original). As indicated above, the agency deemed the
appellant’s Privacy Act request “perfected” in February 2017. Pursuant to its
own regulations, the agency was required to “make a determination within
30 days to grant or deny a request for access in whole or in part.” 29 C.F.R.
§ 71.4(a). Even assuming the appellant did not have knowledge of this specific
regulation, a reasonable person in her position could have believed that the
agency’s 4-month delay between February 2017, when she perfected her request,
and June 2017, when she received the agency’s partial response, violated the
Privacy Act or the agency’s regulations. The Board has found that revelations
concerning violations of the Privacy Act may constitute protected whistleblowing
activities under 5 U.S.C. § 2302(b)(8). See, e.g., Herman v. Department of
Justice, 115 M.S.P.R. 386, ¶ 10 (2011); Hupka v. Department of Defense ,
74 M.S.P.R. 406, 411 (1997). Further, here the appellant demonstrated that she
believed the agency improperly delayed its response by emphasizing its delay in
her June 14, 2017 email. 0793 IAF, Tab 10 at 14. Accordingly, we find that this
disclosure is protected.
Disclosure 4
¶26In disclosure 4, on June 21, 2017, the appellant reported that the DCRD
Chief provoked, intimidated, and harassed her in the copy room earlier that day.7
0793 IAF, Tab 1 at 21, Tab 97 at 171. According to the appellant, the DCRD
Chief entered the copy room while the appellant was alone preparing documents,
walked behind her, stood between her and the copier, and told her she was taking
7 This individual, whom we have also identified as the appellant’s former first-level
supervisor, was no longer supervising the appellant as of February 26, 2016. 0793 IAF,
Tab 7 at 11.14
up too much room and that she could not remain in the copy room. 0793 IAF,
Tab 1 at 21, Tab 97 at 171. The appellant maintains that she reasonably believed
this amounted to an abuse of authority because this incident followed a course of
harassment by the DCRD Chief over nearly 5 years, and the DCRD Chief had
previously engaged in a series of other alleged retaliatory behavior against her
and had also committed a battery on the appellant by touching her arm in a
February 2016 meeting. Id.
¶27As an initial matter, we agree with the appellant that the administrative
judge erred in concluding that the appellant could not have disclosed an abuse of
authority because the DCRD Chief was not the appellant’s supervisor at the time.
ID at 20; PFR File, Tab 9 at 27. An abuse of authority occurs when there is an
arbitrary or capricious exercise of power by a Federal official or employee that
adversely affects the rights of any person or results in personal gain or advantage
to himself or preferred other persons. Pasley v. Department of the Treasury ,
109 M.S.P.R. 105, ¶ 18 (2008). There is no requirement that the individual be in
the appellant’s chain of command.
¶28Further, the Board has recognized that harassment or intimidation of other
employees may constitute an abuse of authority. E.g., Ayers v. Department of the
Army, 123 M.S.P.R. 11, ¶ 14 (2015); Pasley, 109 M.S.P.R. 105, ¶ 18. A
supervisor’s use of influence to denigrate other staff members in an abusive
manner and to threaten the careers of staff members with whom he disagrees
constitutes abuse of authority. Pasley, 109 M.S.P.R. 105, ¶ 18. On review, the
appellant asserts that the administrative judge viewed her disclosures and
allegations of harassment out of context, while also erroneously applying a de
minimis standard. PFR File, Tab 9 at 25-28.
¶29We disagree. Although the appellant may have subjectively felt harassed or
intimidated, and therefore believed that she was disclosing an abuse of authority,
she has not proven that a disinterested person with knowledge of the facts known
to her would have believed that the DCRD Chief’s actions amounted to15
harassment, even considering the prior acts described, including touching her on
the arm during a meeting and following her down a hallway. Moreover,
notwithstanding the prior alleged events, the appellant acknowledges that she had
virtually no interaction with the DCRD Chief for 16 months prior to the incident.
0793 IAF, Tab 97 at 47. Similarly, we find that a disinterested observer could not
reasonably conclude that the DCRD Chief’s actions amounted to a violation of the
workplace violence policy.
Disclosure 6
¶30This alleged disclosure pertains to the appellant’s findings after conducting
a quality control review of a National Bonding Review Project.8 The appellant
identified inconsistencies and inaccuracies that she concluded may have adversely
affected the statistical data rates in a contractor’s draft report. 0793 IAF, Tab 1
at 44; Tab 16 at 6. The appellant contends that this amounted to a disclosure of
gross mismanagement. 0793 IAF, Tab 1 at 44. According to the appellant, the
data was unusable, and her second-level supervisor admitted as much. Id. at 45.
Finally, the appellant asserted that the project was irredeemable such that she
reasonably believed the report was a gross waste of taxpayer funds. Id.
¶31The administrative judge found that the appellant failed to prove that she
reasonably believed that she was disclosing gross mismanagement because she
merely identified possible errors and invited discussion of such errors, which did
not rise to the level of gross mismanagement. ID at 23. He further found that she
failed to prove that she reasonably believed that she disclosed a gross waste of
funds given there was no discussion of any waste of funds. ID at 23. On review,
8 Section 2302(f)(2) of Title 5 imposes a heightened burden for disclosures made during
the normal course of duties of an employee whose principal job functions are to
regularly investigate and disclose wrongdoing. See Salazar v. Department of Veterans
Affairs, 2022 MSPB 42, ¶¶ 10-14. We find that the appellant’s alleged disclosure falls
under 5 U.S.C. § 2302(b)(8) rather than 5 U.S.C. § 2302(f)(2) because her principal job
function as a Senior Technical Advisor was not to regularly investigate and disclose
wrongdoing. Rather, her primary job duties included providing technical and policy
guidance on investigations of violations arising under the provisions of the Employee
Retirement Income Security Act of 1974. 0793 IAF, Tab 1 at 73; 0190 Tab 6 at 12-19.16
the appellant asserts that the administrative judge narrowly construed her
disclosure and only considered the email and not the attached memorandum
outlining the inconsistencies and errors in the project. PFR File, Tab 9 at 44;
0793 IAF, Tab 16 at 8-10. The record reflects that the appellant’s memorandum
did raise substantial problems with the project, such that the project was not
included for submission in a report to the Employee Retirement Income Security
Act of 1974 (ERISA) Advisory Council as originally intended. 0793 IAF, Tab 96
at 87-88, 92.
¶32“Gross mismanagement” is more than de minimis wrongdoing or
negligence; it means a management action or inaction that creates a substantial
risk of significant adverse impact on the agency’s ability to accomplish its
mission. See Salazar v. Department of Veterans Affairs , 2022 MSPB 42, ¶ 24.
The appellant has not identified the basis for any belief at the time she made her
alleged disclosure that certain actions or inactions by management created a
substantial risk of significant adverse impact on the agency’s ability to
accomplish its mission. Additionally, although the appellant’s alleged disclosure
identified errors in the report, it did not disclose anything related to the
expenditure of funds. 0793 IAF, Tab 16 at 6-10. Thus, we agree with the
administrative judge that the appellant did not prove that she reasonably believed
she disclosed gross waste or gross mismanagement. ID at 23.
Disclosure 11
¶33The administrative judge found that the appellant’s statement that she
intended to disclose information to OSC constituted protected activity, but not a
protected disclosure. ID at 24. On review, the appellant asserts that the
administrative judge construed this disclosure too narrowly and failed to address
her alleged disclosure that staff was hostile toward her due to her whistleblowing
and that management was abusing its authority by excluding her from
communications and work product that directly impacted her duties. PFR File,
Tab 9 at 45, Tab 17 at 33.17
¶34On March 8, 2019, the appellant’s first-level supervisor instructed the
appellant not to copy a certain employee on emails about a project. 0793 IAF,
Tab 17 at 34. The supervisor explained that he hoped to avoid future
communication issues. Id. In an email response the appellant sent the same day,
she expressed to her supervisor her belief that she was being further “isolate[d]
[her] from communications with colleagues,” resulting in her colleagues viewing
her as a “problem.” Id. at 33. This email constitutes disclosure 11. 0793 IAF,
Tab 1 at 54-55.
¶35The appellant argues on review that her contentious relationship with the
employee that was the subject of her supervisor’s March 8, 2019 instruction arose
out of disclosure 8. PFR File, Tab 9 at 45. As relevant here, the administrative
judge found that the appellant proved that disclosure 8, which revealed problems
with the agency’s National Bonding Review Project, was protected. ID at 25-26.
To the extent that the appellant argues on review that she disclosed in her
March 8, 2019 email that other employees were hostile to her due to disclosure 8,
her email contains no such allegation. PFR File, Tab 9 at 45-46. The appellant
generally asserted that her “views, analyses, and findings” on the project led to
hostility, but she did not identify any specific statements as causing disagreement
or claim that her statements to her colleagues constituted protected
whistleblowing. 0793 IAF, Tab 17 at 33; see Salerno, 123 M.S.P.R. 230, ¶ 6.
¶36The appellant also argues on review that the administrative judge should
have found that her March 8, 2019 email disclosed that “management was abusing
their authority [by] excluding [her] from communication and work product that
directly impacted [her] duties.” PFR File, Tab 9 at 45. The appellant stated in
her email that her colleagues’ hostility “impede[d] the information gathering
necessary to complete this project,” that a particular employee’s “behavior and
lack of cooperation continues to make this project more difficult than it needs to
be,” and that the decision to exclude her from communications “cost [her]
unnecessary time and effort.” 0793 IAF, Tab 17 at 33. These allegations fall18
short of a claim that her supervisor acted arbitrarily or capriciously in a manner
that adversely affects the appellant’s rights or led to personal gain or advantage
for himself or others. See Pasley, 109 M.S.P.R. 105, ¶ 18. Therefore, we discern
no basis to disturb the administrative judge’s determination that disclosure 11,
while constituting a protected activity, was not a protected disclosure.
¶37To the extent the appellant disclosed that she planned to report to OSC that
she was being isolated from communication with colleagues, we find that the
administrative judge properly considered this statement to be protected activity.
0793 IAF, Tab 17 at 33; ID at 24 n.12. The parties do not dispute this finding.
“[C]ooperating with or disclosing information to the Inspector General . . . of an
agency, or the Special Counsel” is protected activity under 5 U.S.C.
§ 2302(b)(9)(C)—irrespective of whether an individual had a reasonable belief
that she was disclosing wrongdoing. Pridgen, 2022 MSPB 31, ¶ 62. Moreover,
the Board has found that such protection extends to the appellant’s notification of
her intent to file a complaint. See, e.g., Special Counsel v. Zimmerman ,
36 M.S.P.R. 274, 290-91 (1988) (holding that an employee who communicates to
his supervisor his intention to file a grievance or an appeal is protected from
subsequent reprisal based on the announcement of that intent under the umbrella
of 5 U.S.C. § 2302(b)(9)), reasoning corrected on other grounds by Hasler v.
Department of the Air Force , 79 M.S.P.R. 415 (1998). Thus, the appellant’s
statement to her supervisor regarding her intent to present her concerns to OSC
was protected.
Disclosure 16
¶38The appellant alleges that she disclosed an abuse of authority related to her
supervisor’s restriction of her situational telework. 0793 IAF, Tab 1 at 59-60,
Tab 17 at 133. The record reflects that this disclosure came about after the
appellant requested to switch a telework day, which her supervisor approved,
stating “Ok, but going forward, let’s try to stick to your telework days.”
0793 IAF, Tab 17 at 131. The administrative judge found that no actual19
restriction to her telework occurred or was even suggested. ID at 36. On review,
the appellant asserts that it was a legal error to demand proof that a restriction
occurred and that the proper standard is whether she reasonably believed she was
disclosing an abuse of authority. PFR File, Tab 9 at 43. Notwithstanding such an
argument, we agree with the administrative judge that a disinterested observer
would not have construed the exchanged communications as imposing any new
restrictions on the appellant’s ability to telework.
Disclosure 17
¶39Regarding this alleged disclosure, the appellant contends that she informed
a coworker, referred to here as employee A, that it was improper for him, as a
bargaining unit employee, to accept authority as Acting Division Chief, including
the authority to grant or deny leave requests and to be privy to sensitive personnel
information such as medical information or requests for official time. 0793 IAF,
Tab 1 at 61. She alleged that this amounted to a disclosure of an abuse of
authority and the appearance of impropriety in violation of 5 C.F.R.
§ 2635.101(b)(14).9 0793 IAF, Tab 1 at 62. The administrative judge found that
the appellant failed to show that she reasonably believed she was disclosing
wrongdoing because supervisors and managers have discretion to delegate
authority as they see fit. ID at 38.
¶40The record reflects that the appellant requested that her coworker “identify
the law, rule, regulation, or written Agency policy that authorizes [the
appellant’s] peers to act as [her] ‘supervisor’ for two or three days at a time” and
to approve her use of sick leave. 0793 IAF, Tab 15 at 125-27. To the extent the
appellant claimed below, and realleges on review, that she disclosed to
9 The administrative judge’s failure to address the appellant’s claim that employee A
was violating 5 C.F.R. § 2635.101(b)(14) does not impact the outcome of this appeal.
0793 IAF, Tab 1 at 62. That provision states that, “[e]mployees shall endeavor to avoid
any actions creating the appearance that they are violating the law or the ethical
standards set forth in this part.” 5 C.F.R. § 2635.101(b)(14). The appellant has not
explained how or why the delegated authority would create the appearance of violating
any ethics standards. 20
employee A that he lacked delegated supervisory authority, we are not persuaded.
PFR File, Tab 9 at 56; 0793 IAF, Tab 97 at 148. The appellant told employee A
that she was “not at this point challenging the delegation of authority” to approve
her leave as Acting Division Chief. 0793 IAF, Tab 15 at 125-26. Even assuming
the appellant was attempting to disclose that the delegation was improper, a
Federal officer is generally presumed to have the authority to redelegate his
statutory authority to a subordinate. See Cronin v. U.S. Postal Service ,
2022 MSPB 13, ¶ 18 (citing United States Telecom Association v. Federal
Communications Commission , 359 F.3d 554, 565 (D.C. Cir. 2004)). The
appellant, who has the burden of proof, has not explained why she reasonably
believed otherwise.10
¶41The appellant further argues on review that the applicable collective
bargaining agreement (CBA) provides that an employee in the bargaining unit,
like employee A, could not accept delegated authority. PFR File, Tab 9 at 56.
Her disclosure itself did not allege a CBA violation, and the administrative judge
did not address such a claim. 0793 IAF, Tab 15 at 125-27. However, he
acknowledged that, in her complaint to OSC, the appellant asserted, regarding her
disclosure, that one bargaining unit employee could not accept authority to grant
or deny a benefit to another such employee. ID at 37; 0793 IAF, Tab 1 at 61.
The CBA provision she relies on cannot reasonably be read to contain such a
prohibition. PFR File, Tab 9 at 56 (citing 0793 IAF, Tab 38 at 22-23). It does
not prescribe the actions of individuals, but rather excludes supervisor and
managers from the bargaining unit. 0793 IAF, Tab 38 at 22. Thus, we agree with
10 The appellant disputes the administrative judge’s finding that employee A did not
actually have the authority to approve leave requests but merely to memorialize them
for later approval. PFR File, Tab 9 at 56; ID at 37-38; 0793 IAF, Tab 15 at 126, Tab 96
at 92-93. This argument fails for the same reason. Whether the appellant believed
employee A could approve versus memorialize her leave requests concerns the extent of
his authority, which the administrative judge properly found a reasonable person in the
appellant’s position could not have doubted. 21
the administrative judge that the appellant failed to establish that she reasonably
believed that this disclosure amounted to wrongdoing under section 2302(b)(8).
The administrative judge properly found that the appellant did not prove that
disclosures 1 and 2 in the 0190 appeal were protected but should have found that
disclosure 3 constituted protected activity.
¶42The administrative further found that the appellant failed to meet her burden
regarding disclosures 1-3 raised in the 0190 appeal. ID at 39-51. On review, the
appellant asserts that such findings were erroneous. PFR File, Tab 9 at 58-63.
Disclosure 1
¶43Regarding disclosure 1, in October 2018, after the appellant’s first-level
supervisor tentatively rated her as “Meet” on her fiscal year 2018 performance
appraisal, the appellant advised her first- and second-level supervisors that she
“was not assigned sufficient work under rating Element #3 to justify being rated
in that element.” 0190 IAF, Tab 1 at 6, Tab 6 at 4-5. The appellant’s
performance standards reflect that she could be rated at any one of four
performance levels, of which “Meet” was the second highest, and “Exceed” was
the highest. 0190 IAF, Tab 6 at 12. Subsequently, on November 1, 2018, the
agency finalized her performance appraisal, stating she was receiving “No
Rating” in Element #3. Id. at 12, 19. This resulted in the appellant’s summary
rating increasing from the prior tentative rating of “Highly Effective” to
“Exemplary.” 0793 IAF, Tab 96 at 93-94; 0190 IAF, Tab 1 at 6, Tab 6 at 12.
¶44The administrative judge described 0190 disclosure 1 as a difference of
opinion regarding what amount of work constituted sufficient work to be rated in
a particular performance element, and he concluded that the appellant’s disclosure
was a personal grievance that did not rise to the level of a protected disclosure
under Mc Corcle. ID at 40-41. Notwithstanding his reliance on Mc Corcle, the
administrative judge further concluded that the appellant did not reasonably
believe that she disclosed an abuse of authority or a violation of law, rule, or
regulation. Id. On review, the appellant does not provide any specific argument22
disputing the administrative judge’s finding. PFR File, Tab 9 at 58. Instead, she
argues that the administrative judge “omitted the fact that [the agency] raised” her
rating. Id. However, the administrative judge referenced the increased rating in
the initial decision. ID at 40. We agree with the administrative judge that the
appellant failed to show that a reasonable person in her position would have
believed that rating her on Element #3 was an abuse of authority or a violation of
law.
Disclosure 2
¶45In an email to her first-level supervisor on November 1, 2018, and in a
follow-up discussion with her second-level supervisor on November 5, 2018, the
appellant asserted that her proposed fiscal year 2019 standards violated various
laws, regulations, and the CBA because the standards were unmeasurable,
subjective, and conduct based. 0190 IAF, Tab 1 at 6, Tab 6 at 56-60. The focus
of her alleged disclosure was proposed “Result #5.” 0190 IAF, Tab 6 at 59-60.
Result #5 concerned “coalition building and communication,” and measured
achievement in terms of interpersonal skills such as maintaining “effective
communication and cooperative working relationships.” 0190 IAF, Tab 7 at 13.
The administrative judge found that no disinterested observer would reasonably
believe that the appellant disclosed wrongdoing. ID at 47. To the contrary, he
found that issues of misconduct and performance overlap and a reasonable person
would expect that interpersonal skills would be part of a performance rating. ID
at 50.
¶46On review, the appellant reiterates her belief that her performance standards
were “illegal because they rate[d] ‘behavior verses performance.’” PFR File,
Tab 9 at 58; 0190 IAF, Tab 7 at 50; Tab 6 at 56-60. According to the appellant,
the administrative judge did not consider a grievance of her fiscal year 2014
performance evaluation, in which she alleged that Result #5 was illegal and the
agency admitted as much. PFR File, Tab 9 at 58; 0793 IAF, Tab 79 at 10-11, 41.
In support of this claimed admission, the appellant cites to communications23
between agency officials in spring 2015 discussing settlement of a grievance the
appellant filed over her fiscal year 2014 performance rating. PFR File, Tab 9
at 58; 0793 IAF, Tab 99 at 99. The Director of ORI acknowledged in one of these
emails that he had been advised by human resources staff that it was probably
true, as asserted by the appellant’s union, that at least one of her performance
elements, specifically Result #5, was “flawed.” 0793 IAF, Tab 79 at 37. In a
second email, he stated that a Human Resources Specialist “ha[d] concerns about
the element inviting a challenge of rating based on ‘behavior versus
performance.’”11 Id. at 36. We find that the agency’s stated concern that a rating
on Result #5 could be challenged does not amount to an admission by the agency
that the standard violated a law, rule, or regulation.
¶47We also agree with the administrative judge that interpersonal skills are a
common aspect of a performance rating and a disinterested observer could not
reasonably believe this evidenced wrongdoing. Neither the CBA nor agency
regulations prohibit rating performance based on interpersonal relationships.
0190 IAF, Tab 6 at 25, 52. Nor does chapter 43 of Title 5 or its implementing
regulations. 5 U.S.C. § 4302; 5 C.F.R. § 430.102; see 5 C.F.R. § 430.203 (stating
that “[a] performance standard may include . . . manner of performance”).
Indeed, as the appellant noted in making her disclosure, Congress explicitly
recognized “courtesy demonstrated to the public,” which is evidently
behavior-based, as a valid basis for a performance standard. 0190 IAF, Tab 6
at 59; 5 U.S.C. § 4302(c)(1). Further, although the appellant argues that
standards must be “objective,” such objectivity is required only “to the maximum
extent feasible.” 0190 IAF, Tab 6 at 52, 57; see 5 U.S.C. § 4302(c)(1).
Accordingly, we decline to disturb the administrative judge’s determination that
disclosure 2 is not protected.
11 While Results #5 was not the same on the appellant’s fiscal year 2014 and 2019
standards, both versions concerned interpersonal communications. 0793 IAF, Tab 79
at 25; 0190 IAF, Tab 7 at 13.24
Disclosure 3
¶48For fiscal year 2019, the appellant’s first-level supervisor tentatively rated
the appellant as “Fully Successful” on Results #1 and #5 of her performance plan.
0190 IAF, Tab 7 at 8-10, 13; 0793 IAF, Tab 96 at 94. Her fiscal year 2019
performance plan again contained four potential rating levels for each result.
0190 IAF, Tab 7 at 9. The highest performance level was “Outstanding,” and the
next highest performance level was “Fully Successful.” Id. In an email the
appellant sent on October 28, 2019, to her second-level supervisor, which
constitutes disclosure 3, the appellant disagreed with her tentative ratings on
Results #1 and #5. Id. at 47. She asserted that her performance standards
improperly relied on “subjective personality-based elements to falsely rate [her]
work performance .” Id. (emphasis in original). These allegedly improper
performance components including “work[ing] cooperatively and in coordination”
with others, and “coalition building.” Id. The administrative judge found that the
appellant could not reasonably believe that the agency could not rate her on her
interpersonal relations or that her performance warranted a higher rating
concerning such relations. ID at 50-51. On review, the appellant challenges this
finding. PFR File, Tab 9 at 59-60.
¶49Although we agree with the administrative judge that the appellant did not
prove that she reasonably believed she was disclosing wrongdoing under
section 2302(b)(8), we nonetheless find that the appellant’s email constituted
protected activity. In the subject line of her October 28, 2019 email, the appellant
wrote, “New OSC Complaint – Retaliatory Performance Appraisal.” 0190 IAF,
Tab 7 at 47. She concluded her email by stating that she intended to raise her
performance appraisal to OSC “so that [she could] include this personnel action in
the pending MSPB proceeding.” Id. Filing an OSC complaint is a protected
activity under 5 U.S.C. § 2302(b)(9)(C). Pridgen, 2022 MSPB 31, ¶¶ 61-62.
Moreover, the Board has found that such protection extends to the appellant’s
notification of her intent to file a complaint. See Zimmerman , 36 M.S.P.R.25
at 290-91. Therefore, we conclude that the appellant’s October 28, 2019 email
constituted protected activity, and we modify the initial decision accordingly.
The administrative judge correctly identified the personnel actions at issue,
except the denial of official time, which we find amounted to a threat to take a
personnel action.
¶50The appellant raised 12 alleged personnel actions in the 0793 appeal and
four alleged personnel actions in the 0190 appeal. ID at 2-4, 8. The
administrative judge found that the appellant proved that the following
constituted personnel actions under 5 U.S.C. § 2302(a)(2)(A): a July 23, 2017
directed reassignment to OE; the denial of requests for reassignment to the
Division of Health Investigations (DHI) on three occasions from August 18 to
September 2017, January to November 2018, and August 2018 to January 2019;
the denial of an opportunity to serve as an Acting Division Chief via a short - or
long-term detail; a May 20, 2019 threat to lower her performance evaluation; and
a lowered fiscal year 2019 performance evaluation.12 ID at 61-87.
¶51The administrative judge found that the appellant failed to prove the
remaining matters amounted to personnel actions. ID at 53-56. On review, the
appellant reasserts that she was subjected to additional personnel actions.
¶52Regarding the appellant’s claim that the agency’s failure to process her
Privacy Act requests (0793 personnel action 4) amounted to a significant change
in working conditions, the administrative judge found that there was no evidence
that the agency refused to process her request. ID at 55. As set forth above in
our analysis of disclosure 3 regarding this matter, we agree with the
administrative judge because the record reflects that the agency was processing
the appellant’s request. Regarding the appellant’s claim that in January 2019 she
was denied a request for reassignment to DHI (0793 personnel action 10), the
12 The appellant withdrew what the administrative judge referenced as personnel actions
2.5, 2.7, 3, and 11 in the 0793 appeal and 2 and 3 in the 0190 appeal. ID at 8 n.6, 53
n.16. The administrative judge did not make findings on these personnel actions, and
the appellant does not reraise them on review. Therefore, we decline to consider them
further.26
administrative judge found that although the appellant may have felt she
requested a reassignment, the agency witnesses did not perceive a statement the
appellant made about being reassigned as making a specific request for
reassignment. ID at 55. The record supports this finding. 0793 IAF, Tab 96
at 98, 100; PFR File, Tab 21 at 58, 60.
¶53Regarding the appellant’s claim that she was subjected to a personnel action
when the agency denied her request for official time in November 2019 (0190
personnel action 4), the administrative judge found that the denial of official time
does not amount to a personnel action, and in any event, the agency granted all of
the appellant’s official time requests. ID at 56. On review, the appellant disputes
the administrative judge’s reasoning that no actual denial of an official time
request occurred after a November 2019 email advised her that the agency could
no longer approve future requests for official time. PFR File, Tab 9 at 39; 0190
IAF, Tab 8 at 18-20. The appellant asserts that the email amounts to, at a
minimum, the threat to deny her subsequent requests. PFR File, Tab 9 at 39. We
disagree with the administrative judge that the denial of official time could never
amount to a personnel action.
¶54The Board generally has held that the denial of official time to pursue a
Board appeal is not a personnel action because it is not a decision concerning
benefits. Marren v. Department of Justice , 50 M.S.P.R. 369, 372 (1991).
However, the Board has held that the denial of administrative leave may amount
to a denial of a benefit if the agency denied such a request when it had a general
practice of granting such leave. See Arauz v. Department of Justice , 89 M.S.P.R.
529, ¶ 19 (2001). Although Arauz concerned administrative leave, the Board
noted that official time and administrative leave are similar in that they do not
accrue automatically like annual and sick leave. Id., ¶ 18. Nonetheless, we agree
with the administrative judge that the agency did not deny the appellant official
time. ID at 56. Notwithstanding the November 22, 2019 email informing the
appellant that the agency would no longer grant official time, on December 4,27
2019, the agency clarified that it would continue to grant a reasonable amount of
official time after considering the activities/reasoning specified by the appellant.
0190 IAF, Tab 9 at 12-13. The appellant acknowledges as much and that she was
not denied any official time. 0793 IAF, Tab 83 at 51-52.
¶55Although the agency did not deny her any official time, we agree with the
appellant that the agency’s November email amounted to a threat to deny her
official time because it had provided her with official time in the past. 0190 IAF,
Tab 9 at 20; see 5 U.S.C. § 2302(b)(8) (stating that an employee “shall not . . .
take . . . or threaten to take . . . a personnel action . . . because of” disclosures of
the identified categories of wrongdoing) (emphasis added); Spivey v. Department
of Justice, 2022 MSPB 24, ¶ 7 (acknowledging that the mere threat of disciplinary
action can amount to a personnel action). Accordingly, we modify the initial
decision to find that she was subjected to a threat to deny her official time.
¶56Regarding the appellant’s claim that she was subjected to a significant
change in working conditions based on numerous agency actions, the
administrative judge found that the relevant actions were not significant within
the meaning of 5 U.S.C. § 2302(a)(2)(A)(xii). ID at 54. Pursuant to
section 2302(a)(2)(A)(xii), a personal action includes “any . . . significant change
in duties, responsibilities, or working conditions.” In determining whether an
appellant has suffered a “significant change” in her duties, responsibilities, or
working conditions, the Board must consider the alleged agency actions both
collectively and individually. Skarada v. Department of Veterans Affairs ,
2022 MSPB 17, ¶ 16. The administrative judge found that, even if true, the
appellant’s claims that she was excluded from meetings and had her work
reviewed, alone or cumulatively, did not amount to a significant change. ID
at 54-55. On review, the appellant contends that the administrative judge
improperly considered her allegations individually instead of cumulatively. PFR
File, Tab 9 at 37. We disagree. 28
¶57The administrative judge properly considered the claims cumulatively,
excluding claims that pertained to the appellant’s July 23, 2017 directed
reassignment, which he found was a distinct personnel action. To the extent the
appellant alleges that her second-level supervisor denied her request for a private
office in 2018, her first -level supervisor also denied her request for a private
office in 2019, and that her first-level supervisor restricted her use of situational
telework by requesting that she try to stick to her regular telework days,
0793 IAF, Tab 1 at 59-61, Tab 16 at 84, Tab 17 at 133-34, we modify the initial
decision to find that, even considering such claims, the appellant has not shown
that the agency’s actions had a significant impact on the overall nature or quality
of her working conditions. Cf. Skarada, 2022 MSPB 17, ¶¶ 16, 26-29 (finding
that the appellant failed to prove by preponderant evidence that his allegations of
a hostile work environment significantly and practically impacted his working
conditions when he alleged that his supervisor failed to communicate with him,
avoided him or walked away from him, was unresponsive to his requests for
guidance, did not support his request for a position upgrade, and yelled at him and
excluded him from meetings).
¶58Moreover, the appellant has not explained how her duties were significantly
changed outside of the July 23, 2017 directed reassignment to the OE, which the
administrative judge agreed was a personal action. See Skarada, 2022 MSPB 17,
¶ 23 (stating that to prove that the agency subjected him to a “significant change”
in duties, responsibilities, or working conditions, the appellant must provide
sufficient information and evidence to allow the Board to determine whether the
agency’s alleged action or actions were “significant”).
¶59In sum, we agree with the administrative judge that the appellant proved the
following incidents amounted to personnel actions: a July 23, 2017 directed
reassignment to OE; the denial of requests for reassignment to DHI on three
occasions from August 18 to September 2017, January to November 2018, and
August 2018 to January 2019; the January to October 2018 denial of an29
opportunity to serve as an Acting Division Chief via a short- or long-term detail;
a May 20, 2019 threat to lower her performance evaluation; and an October 28,
2019 lowered fiscal year 2019 performance evaluation. We further find that the
appellant proved that the November 22, 2019 threat to deny her official time was
a personnel action.
The appellant proved contributing factor as to matters we have now found
protected, i.e., disclosures 1-3 in the 0793 appeal, disclosure 3 in the 0190 appeal,
and the personnel action of threatening to deny official time.
¶60As noted above, to establish her prima facie case of whistleblower reprisal,
the appellant must prove that a protected disclosure or activity was a contributing
factor in a personnel action taken against her. Skarada, 2022 MSPB 17, ¶ 6. One
way to prove contributing factor is by the knowledge/timing test under which an
appellant may show that her protected disclosure or activity was a contributing
factor in a personnel action through circumstantial evidence, such as evidence
that (1) the official taking the personnel action knew of the disclosure or activity;
and (2) the personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosure or activity was a
contributing factor in the personnel action. 5 U.S.C. § 1221(e)(1); Smith v.
Department of the Army , 2022 MSPB 4, ¶ 19. The Board has held that personnel
actions taken within 1 to 2 years of the protected disclosure or activity satisfy the
timing prong of the knowledge/timing test, but those that take place more than
2 years after the disclosure or activity are too remote to satisfy this test. Pridgen,
2022 MSPB 31, ¶ 63.
¶61The administrative judge found that disclosures 1 and 3 in the 0793 appeal
and disclosure 3 in the 0190 appeal were not protected and therefore did not
consider whether they were a contributing factor in a personnel action.
Additionally, regarding disclosure 2 in the 0793 appeal, the appellant’s July 12,
2016 email to OSC regarding obstruction of the FPS investigation, we have
concluded it was a protected activity under section 2302(b)(9)(C). Because we30
have found these matters were protected, we now address whether the appellant
proved contributing factor.
¶62Disclosure 3 in the 0190 appeal occurred on October 28, 2019, after all of
the alleged personnel actions occurred except for the agency’s November 22,
2019 threat to deny the appellant official time. Thus, we only address
contributing factor regarding this personnel action. See Sherman v. Department
of Homeland Security , 122 M.S.P.R. 644, ¶ 8 (2015) (finding that a disclosure
that occurs after the personnel action at issue was taken cannot be considered a
contributing factor in that personnel action). We find that the appellant has met
the knowledge/timing test because the November 22, 2019 threat to deny official
time occurred within a month of the October 28, 2019 disclosure to her
second-level supervisor that she intended to file an OSC complaint regarding her
performance appraisal. Regarding knowledge, although the disclosure was made
to the appellant’s second-level supervisor, we find that the appellant’s first-level
supervisor, who threatened to deny the appellant’s official time, would have been
aware of the appellant’s dissatisfaction with the rating and intent to file with OSC
because he issued the rating at issue. Further, that rating was approved by the
appellant’s second-level supervisor, to whom the disclosure was made.
¶63Disclosure 1 in the 0793 appeal was made to, among others, the Chief
Human Capital Officer, OPPEM, who was involved in the appellant’s directed
reassignment and the threat to deny her official time. The directed reassignment
occurred within 1 year and thus satisfies the knowledge/timing test. The threat to
deny the appellant official time, however, occurred close to 3 years later, which is
too remote to satisfy the knowledge/timing test. See Salinas v. Department of the
Army, 94 M.S.P.R. 54, ¶ 10 (2003) (finding that a reasonable person could not
conclude that a disclosure was a contributing factor in agency actions
commencing 2 1/2 years later).
¶64In addition to the knowledge/timing test, however, there are other possible
ways for an appellant to satisfy the contributing factor standard. See Dorney v.31
Department of the Army , 117 M.S.P.R. 480, ¶ 14 (2012). The Board will consider
any relevant evidence on the contributing factor question, including the strength
or weakness of the agency’s reasons for taking the personnel action, whether the
whistleblowing was personally directed at the officials involved in the personnel
action, and whether such individuals had a desire or motive to retaliate against the
appellant. Id., ¶ 15. Regarding the strength of the evidence, as discussed below
in our clear and convincing analysis, we find that the agency, with guidance from
the Chief Human Capital Officer, granted the appellant extensive official time
following December 2016, when the appellant made disclosure 1. The agency
presented strong evidence that the reason it threatened not to approve further
official time in November 2019 was that it legitimately questioned whether it was
appropriate to provide indefinite official time “on a full -time basis” until the end
of a hearing without further details. 0793 IAF, Tab 73 at 21; 0190 IAF, Tab 9
at 18. Regarding motive to retaliate, the appellant’s disclosure 1 was largely
directed at the Director of the Office of Health Plan Standards and Compliance
Assistance, who made the decision to appoint the two individuals as acting deputy
directors. 0793 IAF, Tab 74 at 32. It is not clear whether, prior to making such a
decision, the Director consulted with human resources individuals, or the Chief
Human Capital Officer, such that he would have had a motive to retaliate.
Accordingly, we find that the appellant has not established that disclosure 1 was a
contributing factor in the threat to deny her official time.
¶65Regarding disclosure 2 in the 0793 appeal, the appellant’s July 12, 2016
disclosure to OSC that certain witnesses had obstructed justice during the FPS
investigation, the appellant has not shown that any of the officials involved in the
subsequent personnel actions had knowledge of this protected activity. However,
the relevant officials were aware of the disclosures also made to FPS in
disclosure 2, which the administrative judge found protected, because FPS
conducted a second investigation and interviewed many of the relevant officials,
including the appellant’s second- and third-level supervisors and the Chief32
Human Capital Officer, who thereafter took personnel actions against the
appellant. 0793 IAF, Tab 74 at 63. Thus, the appellant established that
disclosure 2 to FPS was a contributing factor in the agency’s personnel actions.
¶66Disclosure 3 in the 0793 appeal, which the appellant made on June 14,
2017, concerned an alleged Privacy Act violation. The appellant repeated this
disclosure, which she made to SOL, to the Deputy Assistant Secretary of EBSA,
the official who decided to reassign the appellant approximately 1 month later.
0793 IAF, Tab 10 at 14; Tab 1 at 71. Thus, the appellant established that this
disclosure was a contributing factor in her directed reassignment. There is no
evidence that the individuals involved in the remaining personnel actions were
aware of disclosure 3. Moreover, as described below, there is strong evidence in
support of such personnel actions, and the relevant agency officials lacked a
motive to retaliate based on disclosure 3, which did not personally name them.
Thus, the appellant did not establish that disclosure 3 was a contributing factor in
the remaining personnel actions.
¶67Finally, we find that the appellant proved contributing factor as to the
agency’s threat to deny her official time on November 22, 2019, which, as
discussed above, we have found was a personnel action. The appellant made
many of her prior disclosures directly to her first-level supervisor and the Chief
Human Capital Officer, OPPEM, within 2 years of their questioning of her
entitlement to official time on November 22, 2019.
We modify the initial decision to find that the appellant proved that her December
2016 IG report was a contributing factor in her directed reassignment.
¶68The administrative judge generally found that the appellant proved that her
protected disclosures and activities were a contributing factor in a personnel
action. ID at 56-58. However, he observed that disclosures or activities that
occurred after a personnel action could not serve as a contributing factor for those
actions. ID at 58-59. As an example, he concluded that the only protected
activity that could serve as a contributing factor for the appellant’s July 23, 201733
directed reassignment was her prior 0437 Board appeal. ID at 59. The appellant
does not challenge this finding except as it concerns her directed reassignment.
Therefore, our discussion will be similarly focused. See 5 C.F.R. § 1201.115
(stating that the Board normally will consider only issues raised in a timely filed
petition for review or in a timely filed cross petition for review).
¶69As to her reassignment, the appellant argues that the administrative judge
erred because 0793 disclosures 1 through 4 preceded her reassignment. PFR File,
Tab 9 at 19. However, the administrative judge did not conclude that such
disclosures did not contribute to her reassignment. Rather, he concluded that, of
the appellant’s protected activities under section 2302(b)(9), the only one that
preceded the appellant’s directed reassignment, and thus could be a contributing
factor, was her prior 0437 Board appeal.13 ID at 59. However, we modify the
initial decision to find that the appellant also proved that her December 2016 IG
report was a contributing factor to her directed reassignment because her
third-level supervisor was aware of her IG complaint, which occurred
approximately 7 months prior to her reassignment. 0793 IAF, Tab 96 at 83.
The administrative judge properly found that the agency proved by clear and
convincing evidence that it would have taken the same actions absent the
appellant’s protected disclosures and activity.
¶70Even if an appellant establishes that she made a protected disclosure or
engaged in protected activity that was a contributing factor to a personnel action,
the Board will not order corrective action if the agency can show by clear and
convincing evidence that it would have taken the action absent the protected
disclosures or activity. 5 U.S.C. § 1221(e)(2); Karnes v. Department of Justice ,
2023 MSPB 12, ¶ 23. Clear and convincing evidence is that measure or degree of
proof that produces in the mind of the trier of fact a firm belief as to the
13 The administrative judge found that the appellant’s alleged disclosures 7, 9, 11, 12,
and 13 in the 0793 appeal constituted protected activities, but that they could not have
been a contributing factor in her directed reassignment because they took place after the
reassignment. 0793 IAF, Tab 1 at 47, 54-56; see Sherman, 122 M.S.P.R. 644, ¶ 8. We
discern no basis to disturb this finding. 34
allegations sought to be established; it is a higher standard than the
“preponderance of the evidence” standard. Sutton v. Department of Justice ,
94 M.S.P.R. 4, ¶ 18 (2003), aff’d per curiam , 97 F. App’x 322 (Fed. Cir. 2004);
5 C.F.R. § 1209.4(e).
¶71In determining whether an agency has met this burden, the Board will
consider all of the relevant factors, including the following (“ Carr factors”):
(1) the strength of the agency’s evidence in support of the action; (2) the
existence and strength of any motive to retaliate on the part of the agency
officials who were involved in the decision; and (3) any evidence that the agency
takes similar actions against employees who are not whistleblowers but who are
otherwise similarly situated. Karnes, 2023 MSPB 12, ¶ 24 (citing Carr v. Social
Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999)). In considering
the second Carr factor, in addition to any individual motive to retaliate by the
agency managers involved in the decision, the Board must fully consider whether
a motive to retaliate can be imputed to the agency officials involved and whether
those officials possessed a professional or institutional motive to retaliate because
the protected disclosures and activities implicated agency officials and employees
in general. Soto v. Department of Veterans Affairs , 2022 MSPB 6, ¶¶ 14-15; see
Whitmore v. Department of Labor , 680 F.3d 1353, 1370 (Fed. Cir. 2012).
Regarding the third Carr factor, the absence of evidence concerning the agency’s
treatment of similarly situated nonwhistleblowers, while not necessarily “fatal to
the agency,” cannot weigh in its favor. Rickel v. Department of the Navy ,
31 F.4th 1358, 1365-66 (Fed. Cir. 2022) (citing Whitmore, 680 F.3d at 1374);
Soto, 2022 MSPB 6, ¶ 18 (citations omitted) . The agency’s failure to produce
existing relevant evidence “may be at [its] peril.” Soto, 2022 MSPB 6, ¶ 18
(quoting Whitmore, 680 F.3d at 1374).
¶72The Board does not view the Carr factors as discrete elements, each of
which the agency must prove by clear and convincing evidence. Karnes,
2023 MSPB 12, ¶ 24. Rather, the Board will weigh the factors together to35
determine whether the evidence is clear and convincing as a whole. Id. The
Board must consider all of the evidence presented, including evidence that
detracts from the conclusion that the agency met its burden. Whitmore, 680 F.3d
at 1368.
Directed Reassignment
¶73On July 23, 2017, the Deputy Assistant Secretary of EBSA, the appellant’s
third-level supervisor, directed the appellant’s reassignment to OE after receiving
advice from the Chief Human Capital Officer, OPPEM, and the Director of
OPPEM. 0793 IAF, Tab 1 at 71, Tab 96 at 81. The administrative judge found
that the agency had strong evidence supporting its decision to reassign the
appellant following her continued friction with others in the office and the
conflict with the DCRD Chief, specifically the June 21, 2017 incident in which
the appellant alleged that the DCRD Chief harassed her in the copy room and
called FPS.14 ID at 68. The administrative judge found the record replete with
evidence that the appellant had difficulty working with other managers and
employees. ID at 68. The administrative judge further found that the Deputy
Assistant Secretary of EBSA could have had an institutional or professional
motive to retaliate, but the record otherwise contained no strong evidence of any
such retaliatory motive. ID at 69. Finally, he found that, to the extent the
appellant’s former first-level supervisor was a proper similarly situated
nonwhistleblower comparator, the agency was justified in exercising its discretion
to reassign the appellant rather than a supervisor to avoid the impact of a vacant
supervisory position and because the Deputy Assistant Secretary and the Chief
Human Capital Officer feared reassigning the supervisor would not have ended
the appellant’s ongoing workplace disruptions with other employees. ID at 69.
14 In so finding, the administrative judge credited the explanation provided by the
Deputy Assistant Secretary of EBSA concerning the reasons for his decision to reassign
the appellant. ID at 68. On review, the appellant repeatedly asserts that this declaration
was an unsigned “faux” declaration drafted by an agency attorney. PFR File, Tab 9
at 15-17, 29. We address such an argument below and find it unavailing. 36
¶74On review, the appellant asserts that the administrative judge erred in
applying an improper standard when he concluded that the reasons for the
directed reassignment were a reasonable and plausible exercise of managerial
discretion instead of applying a clear and convincing analysis.15 PFR File, Tab 9
at 29. We construe the administrative judge’s findings as tantamount to
concluding that the agency had legitimate reasons for the directed reassignment.
See Smith, 2022 MSPB 4, ¶ 23 (acknowledging that when the personnel action at
issue is not disciplinary in nature, the first Carr factor does not apply
straightforwardly and it is appropriate to consider the broader question of whether
the agency had legitimate reasons for its action). We discern no error in such a
finding.
¶75The record reflects that the agency was concerned that the appellant had
called FPS four times and needed to do something to address the appellant’s
concern that she did not feel safe working with the DCRD Chief. 0793 IAF,
Tab 82 at 5. After the June 21, 2017 incident, the agency attempted to
temporarily keep the two individuals separated but needed a long-term solution,
which involved moving either the appellant or the DCRD Chief. Id. As the
administrative judge found, the agency did consider moving the DCRD Chief but
found it less appealing because it would have left a vacant Division Chief position
and it was unlikely to improve the situation given that the appellant had
complained about other employees in addition to the DCRD Chief. 0793 IAF,
Tab 82 at 5; ID at 69. The administrative judge acknowledged that the appellant
disagreed with her new assignment and, in his words, found “many of her new
co-workers as intolerable as the ones she left behind.” ID at 67-68.
15 The appellant also recounts various evidence the administrative judge did not
mention. PFR File, Tab 9 at 30. However, an administrative judge’s failure to mention
all of the evidence of record does not mean that he did not consider it in reaching his
decision. Mithen v. Department of Veterans Affairs , 122 M.S.P.R. 489, ¶ 14 (2015),
aff’d per curiam, 652 F. App’x 971 (Fed. Cir. 2016).37
¶76On review, the appellant disputes that she continued to have friction in the
workplace following her reassignment, arguing that any problems with her new
coworkers were due to their resentment caused by her continued whistleblowing.
PFR File, Tab 9 at 32. To the extent the appellant argues that incidents occurring
after her reassignment cannot serve as a basis for that action, we agree. However,
we do not interpret the administrative judge’s observation as reliance on these
later events, and we therefore discern no error.
¶77We acknowledge the appellant’s argument that the DCRD Chief also had
conflicts with employees, id. at 34; however, the agency presented evidence that
it considered significant that the appellant had contacted FPS four times in a little
over a year, 0793 IAF, Tab 82 at 5. The appellant also disputes the administrative
judge’s findings that the agency’s actions were taken to address the urgent
deteriorating situation and asserts there is “ zero evidence supporting” such a
finding. PFR File, Tab 9 at 34 (emphasis in original). However, the record
reflects that the agency’s actions were taken in part in response to the appellant’s
email to her supervisor following the incident stating she did “not feel physically
safe” coming to work in the office with the DCRD Chief. 0793 IAF, Tab 82 at 5,
99. Therefore, we discern no error in the administrative judge’s observation that
the situation required swift resolution.
¶78Finally, the appellant raises various arguments concerning the merits of the
agency’s decision to reassign her, including that she could have been reassigned
to another more desirable or more suitable office. PFR File, Tab 9 at 31-32.
However, in an IRA appeal, the Board lacks jurisdiction to adjudicate the merits
of or the procedures used to effect the agency’s underlying personnel action;
rather, the relevant inquiry is whether the agency had strong evidence to support
its personnel actions. See, e.g., Phillips v. Department of Transportation ,
113 M.S.P.R. 73, ¶ 15 (2010) (observing, in an IRA appeal, that an agency may
direct an employee’s reassignment, without a reduction in pay or grade, in a
manner consistent with its rules and regulations and any applicable CBA, as long38
as the reassignment is based on legitimate management reasons); Ramos v.
Department of the Treasury , 72 M.S.P.R. 235, 240 (1996) (stating that the Board
lacks the authority in an IRA appeal to adjudicate the merits of the underlying
personnel action; rather, it is limited to adjudicating the whistleblower
allegations). Thus, such arguments fail to establish error in the administrative
judge’s analysis.
¶79On review, the appellant asserts that the administrative judge improperly
found that the Deputy Assistant Secretary had no personal motive to retaliate.
PFR File, Tab 9 at 29; ID at 68. We agree. The record reflects that the Deputy
Assistant Secretary was the subject of several of the appellant’s alleged
disclosures and protected activities, and thus, he could have had a personal
motive to retaliate. Thus, we modify the initial decision to find that the Deputy
Assistant Secretary had a motive to retaliate. Moreover, the Chief Human Capital
Officer, who advised the Deputy Assistant Secretary regarding his decision to
reassign the appellant, also could have had a motive to retaliate because he was
personally implicated by the appellant’s disclosure 2. 0793 IAF, Tab 8 at 6.
Moreover, both could have had an institutional motive to retaliate. Nonetheless,
considering the agency’s concerns regarding the inability of the appellant and the
DCRD Chief to work together following the July 21, 2017 incident, we find that
the agency’s legitimate reasons for its action outweigh any motive to retaliate.
Threat to deny the appellant official time
¶80Next, we modify the initial decision to find that the agency proved by clear
and convincing evidence that it would have questioned continuing to provide the
amounts of official time it had been providing absent the appellant’s
whistleblowing. We acknowledge that the official time the appellant was
requesting was, at least in part, to pursue her protected activity of pursuing her
claims in the 0793 Board appeal, of which the agency was aware. Therefore, the
agency could have had a motive to retaliate based on such protected activity.
Additionally, the appellant’s first-level supervisor and the Chief Human Capital39
Officer could have had a motive to retaliate based on the appellant’s other prior
disclosures, of which they were aware and of which they were the subjects. For
example, many of the appellant’s protected disclosures in late 2018 and 2019
expressed dissatisfaction with her first-level supervisor’s actions and notified him
that she intended to file OSC complaints regarding such actions, including
denying her a private office, isolating her from communications with colleagues,
and issuing her a low performance appraisal rating. Additionally, the Chief
Human Capital Officer could have had a motive to retaliate based on the
appellant’s disclosure that her directed reassignment was a violation of law.
¶81However, throughout 2019, the appellant’s first-level supervisor, upon
guidance from the Chief Human Capital Officer, had been granting the appellant
extensive official time, including after he learned in September 2019 that the
appellant had filed her 0793 appeal, which named him.16 0793 IAF, Tab 1,
Tab 96 at 90-91; 0190 IAF, Tab 43 at 55-86; PFR File, Tab 21 at 50-51. This
provides strong evidence that the agency’s actions were not motivated by reprisal
for the appellant’s disclosures or prior protected activities. Rather, the agency
questioned the appellant’s request for official time on a full-time basis without
any details or accounting as to how the time was being used. 0190 IAF, Tab 9
at 18. Thus, although the agency appeared to have a practice of granting the
appellant official time with few questions asked, the fact that it granted all of the
appellant’s requests for official time both before and after the November email
suggests that the agency questioned whether the extensive official time requested
was proper and simply realized it would need to, and did, put some parameters on
the appellant’s requests to ensure the amount of, and bases for, the time requested
were reasonable. 0190 IAF, Tab 9 at 12; 0793 IAF, Tab 38 at 8-9. The agency’s
conclusion that the appellant needed to specify how much leave and the purpose
for which she was requesting it is consistent with the CBA. 0793 IAF, Tab 38
16 The appellant was also granted official time in 2017 and 2018. 0793 IAF, Tab 15
at 51-61, 69.40
at 137. Thus, we find that the agency met its burden of proving it would have
taken the same actions absent the appellant’s whistleblowing.
The administrative judge properly found that the agency met its burden regarding
the remaining personnel actions.
¶82The remaining personnel actions include: the denial of the appellant’s
requests for reassignment to DHI; the denial of detail assignments to the position
of DFI Acting Division Chief or to act on an ad hoc basis for her supervisors; a
threat to lower her performance evaluation during a mid-year review in May
2019; and a lowered fiscal year 2019 performance evaluation. The administrative
judge found that the agency had legitimate reasons for these actions that
outweighed any motive to retaliate and its lack of evidence concerning how it
treated similarly situated nonwhistleblowers. ID at 70-87. Therefore, he
concluded that the agency met its burden to prove by clear and convincing
evidence that it would have taken the same actions absent the appellant’s
protected disclosures and activity. Id.
¶83Regarding the denial of the appellant’s requests for reassignment to DHI,
the administrative judge credited the appellant’s second-level supervisor’s
explanation that she denied the requests because the appellant lacked a
background in ERISA. ID at 75. The administrative judge found that the
appellant also made a request for reassignment to her first-level supervisor, but he
denied it because he lacked the requisite authority to grant a reassignment. ID
at 71, 75. Regarding the denial of acting job duties, the administrative judge
credited the appellant’s second-level supervisor’s explanation that she offered 3 -
to 4-month rotating Acting Division Chief details to the GS-14 employees and
that the order of rotation was based on time in the office and experience. ID
at 79-80. The appellant, who had just been assigned to the office, was last in line
for an acting detail, but before she could start her detail, the office received
authority to hire a permanent employee to fill the position. ID at 76-77, 79.
Similarly, regarding the denial of the ability to act for her first-level supervisor in41
an ad hoc manner, the administrative judge credited the appellant’s first-level
supervisor’s explanation that he chose others to act for him because the appellant
was the most junior member of his staff and, unlike her peers, was only physically
present in the office three afternoons per week under her telework agreement. ID
at 77-78, 80.
¶84Regarding the alleged threat to lower the appellant’s performance
evaluation, the administrative judge found that the agency provided strong
evidence that the appellant’s first-level supervisor provided legitimate workplace
feedback during his mid-year meeting with the appellant when he advised her that
she should be able to work on more than one project at a time. ID at 83. Finally,
regarding the appellant’s fiscal year 2019 performance evaluation, the
administrative judge found that the appellant’s supervisors had legitimate reasons
for rating the appellant exceeds on two elements, specifically the appellant’s
interactions with her supervisor and others. ID at 86. In particular, the
administrative judge credited the appellant’s first- and second-level supervisors’
statements that the appellant’s rating was based in large part on the appellant’s
abrasive interactions with her first-level supervisor, the DFI Chief, which
included raising her voice to him throughout the year. ID at 85-86; 0793 IAF,
Tab 96 at 87, 94. Her first-level supervisor explained to the appellant during a
meeting regarding her rating that her behavior in raising her voice was
“disrespectful and unprofessional, differing from ordinary professional
disagreements.” 0793 IAF, Tab 96 at 94.
¶85The administrative judge acknowledged that the relevant management
officials could have had an institutional motive to retaliate, but he found that the
strength of the evidence outweighed any possible motive. ID at 75, 80, 83, 86.
We modify the initial decision to find that the appellant’s second-level supervisor
could also have had a personal motive to retaliate because she was named in the
appellant’s protected disclosure 2 in the 0793 appeal. Moreover, the errors
identified in the appellant’s report that formed the basis of disclosures 8 and 1442
could have reflected poorly on the appellant’s second-level supervisor.
Additionally, the appellant’s first- and second-level supervisors could have had a
motive to retaliate based on the appellant’s protected activities, which included
the appellant’s stated intent to file OSC complaints regarding their various
actions, including denying her a private office and isolating her from
communications with colleagues.
¶86Regarding the third Carr factor, the administrative judge found that there
was a lack of proper comparators and/or that the record was not developed as to
whether proper comparators existed. ID at 75, 80, 83, 86. On review, the
appellant makes various arguments challenging the administrative judge’s
findings concerning Carr factor three, which we find unpersuasive. For example,
regarding the denial of reassignment to DHI, she asserts that she identified
multiple comparators who were transferred to DHI and which her second-level
supervisor approved. PFR File, Tab 9 at 52. However, the record includes
vacancy announcements evidencing that such individuals applied and competed
for the positions as opposed to requesting a reassignment. PFR File, Tab 9 at 52,
0793 IAF, Tab 16 at 63-73, Tab 18 at 55-59. Thus, we agree with the
administrative judge that such individuals were not proper comparators.
¶87The appellant also disputes the administrative judge’s finding that another
comparator who was reassigned involved different management actors than the
appellant’s first- and second-level supervisors who denied her requests for
reassignments. ID at 75; PFR File, Tab 9 at 52. But the appellant’s argument
itself acknowledges that the individual who agreed to the reassignment was her
third-level supervisor, not her first or second. Additionally, regarding the denial
of appointment as Acting Division Chief of DFI, the appellant makes arguments
concerning another employee who was appointed as DHI’s acting chief, which we
find not relevant to the acting DFI position. PFR File, Tab 9 at 54.
¶88Finally, the appellant asserts that the agency rated a GS-15 supervisory
investigator more favorably than her despite the “hostility” of this employee43
toward the appellant. PFR File, Tab 9 at 62. The administrative judge
erroneously stated in the initial decision that there was no evidence of the alleged
comparators’ ratings, as the rating for this particular alleged comparator is in the
record. ID at 86; 0793 IAF, Tab 55 at 96. Nonetheless, we find that his error was
harmless. See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282
(1984) (explaining that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision ). We find
that the GS-15 supervisory employee was not a proper comparator because she
was a supervisor who was rated on different elements than the appellant, who
held a non-supervisory GS-14 position. 0793 IAF, Tab 55 at 96; 0190, Tab 7
at 8-13.
The administrative judge did not abuse his discretion in his rulings on discovery,
admissibility of evidence, sanctions, or the appellant’s motion to disqualify
agency counsel.
¶89On review, the appellant repeatedly asserts that the administrative judge
improperly relied on agency witnesses’ unsigned “faux declarations.” PFR File,
Tab 9 at 10-11, 15-17, 29, 33, 37, 49, 61. This argument is disingenuous as the
agency submitted signed sworn declarations that it contemporaneously provided
to the appellant due to issues uploading documents containing digital signatures
into the Board’s e-Appeal system.17 0793 IAF, Tab 96 at 78-79 n.16; PFR File,
Tab 21 at 40. The appellant further contends that the administrative judge
generally did not make proper credibility findings because he credited the agency
officials’ statements in their declarations and failed to mention the appellant’s
evidence. PFR File, Tab 9 at 15. We find such arguments unavailing. The
administrative judge considered the record evidence and made reasoned
17 The agency has submitted signed copies of the declarations on review. PFR File,
Tab 21 at 41-63. The appellant has requested leave to file a motion to strike these
signed declarations as untimely filed. PFR File, Tab 26. Her motion is denied. Under
the circumstances, including the agency’s asserted problems uploading the digitally
signed versions of the declarations, and the agency’s evidence that it submitted the
signed copies via email prior to the close of the record below and requested that the
administrative judge include them in the record, we deny the appellant’s motion. 44
conclusions in his comprehensive initial decision. See Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 104-05 (1997); Broughton v. Department of Health and
Human Services , 33 M.S.P.R. 357, 359 (1987). His failure to mention all of the
evidence in the record does not mean he did not consider it. Mithen v.
Department of Veterans Affairs , 122 M.S.P.R. 489, ¶ 14 (2015), aff’d per curiam ,
652 F. App’x 971 (Fed. Cir. 2016).
¶90Next, the appellant asserts that the agency’s file was deficient and devoid of
documentation supporting its personnel actions such that she was forced on the
eve of close of record to guess the agency’s defenses. PFR File, Tab 9 at 10.
Notwithstanding the appellant’s arguments, we find that the agency’s response
sufficiently put the appellant on notice regarding the reasons for its actions.
0793 IAF, Tab 26 at 5-11. Moreover, the appellant was afforded an opportunity
to respond to the agency’s close of record submission. 0793 IAF, Tab 93. She
filed such a response. 0793 IAF, Tab 99.
¶91Next, the appellant asserts that the administrative judge repeatedly refused
to sanction the agency for its alleged unethical procedural abuses. PFR File,
Tab 9 at 8. The record reflects that the appellant moved to sanction the agency
for failing to provide complete responses to her discovery requests as ordered by
the administrative judge. 0793 IAF, Tab 55. The administrative judge denied the
appellant’s motion for sanctions, but he ordered the agency to supplement
portions of its discovery responses. 0793 IAF, Tab 60. Thereafter, the appellant
filed a request for reconsideration of the rulings and the agency filed a
cross-motion for reconsideration. 0793 IAF, Tabs 63, 66. The administrative
judge granted, in part, the appellant’s request for reconsideration and sanctioned
the agency by drawing an inference that had certain documents been produced
they would have shown a particular employee was invited to meetings to which
the appellant was not invited. 0793 IAF, Tab 70. The Board has held that an
administrative judge has significant discretion in ruling on discovery-related
matters, and the Board will not find reversible error in an administrative judge’s45
discovery rulings absent an abuse of discretion that prejudiced the appellant’s
substantive rights. White v. Government Printing Office , 108 M.S.P.R. 355, ¶ 9
(2008). We find that the administrative judge did not abuse his discretion.
¶92The appellant also asserts that the administrative judge was biased against
her and ridiculed her by his use of certain language in the initial decision which
characterized her as demanding, disgruntled, and having dark suspicions and
feelings of persecution. PFR File, Tab 9 at 6-7, 63-64. Considering the language
used, such as “the appellant’s apparent feelings of persecution notwithstanding,”
ID at 36, we find no evidence of bias, see Bieber v. Department of the Army ,
287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (recognizing that an administrative
judge’s conduct during the course of a Board proceeding warrants a new
adjudication only if the administrative judge’s comments or actions evidence “a
deep-seated favoritism or antagonism that would make fair judgment impossible”
(quoting Liteky v. United States , 510 U.S. 540, 555 (1994))).
¶93Next, the appellant asserts that the administrative judge improperly denied
her May 6, 2022 motion to admit new evidence that was filed close to 2 years
after the record closed. PFR File, Tab 9 at 10; 0793 IAF, Tab 100. In her
motion, the appellant asserted that approximately 3 years after her allegations that
she was denied a private office, the agency assigned another GS-14 bargaining
unit employee a private office. PFR File, Tab 9 at 10-11. However, even if we
consider this evidence, we find that it is not of sufficient weight to warrant a
different outcome given it occurred long after the events at issue. See Russo v.
Veterans Administration , 3 M.S.P.R. 345, 349 (1980). On review, the appellant
also submits alleged new evidence, including, among other things,
communications in 2022 regarding official time and her mid-year performance
review in May 2022. PFR File, Tab 9 at 10-11, 70 -79. For the same reason, we
find that such evidence is not of sufficient weight to warrant a different outcome.
¶94Finally, the appellant asserts that the administrative judge erred in denying
her motion to disqualify the agency’s counsel. PFR File, Tab 9 at 9. The record46
reflects that the appellant filed a timely motion to disqualify agency counsel,
asserting that he was a fact witness concerning her claim that agency officials
unlawfully targeted her by monitoring and surveilling her because of her Board
activity and he had knowledge of the agency official’s decision not to allow her
detail and transfer opportunities.18 0793 IAF, Tab 6. In response, agency counsel
argued that his knowledge of any information stemmed from defending the
agency in the appellant’s prior Board appeal and settlement discussions, and the
appellant’s motion failed to establish a conflict of interest under 5 C.F.R.
§ 1201.31(b). 0793 IAF, Tab 21. The administrative judge denied the appellant’s
motion, finding that insufficient grounds existed to support it. 0793 IAF, Tab 35.
We agree. The appellant did not allege facts that would demonstrate that agency
counsel’s representation of the agency again in a subsequent IRA appeal would
create an impermissible conflict of interest under the District of Columbia Rules
of Professional Conduct. See Collins v. Department of Justice , 94 M.S.P.R. 62,
¶ 17 & n.3 (2003) (holding that an attorney appearing before the Board is
expected to conform to applicable rules governing attorney conduct of the state in
which the hearing is to be held or in the state with the closest relationship to the
proceedings); see also D.C. Rules of Pro. Conduct R. 1.7, Conflict of Interest.
¶95Based on the foregoing, we affirm the initial decision as modified.
NOTICE OF APPEAL RIGHTS19
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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
18 The appellant subsequently withdrew her claim that she was subjected to monitoring
and surveillance. ID at 3, 53, n. 16.
19 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.47
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
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. 48
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the49
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
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.20 The court of appeals must receive your
20 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of50
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 51
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.52 | Kuhlmann_Kerri_S_DC-1221-19-0793-W-1_DC-1221-20-0190-W-1_Final_Order.pdf | 2024-06-20 | KERRI S. KUHLMANN v. DEPARTMENT OF LABOR, MSPB Docket No. DC-1221-19-0793-W-1, June 20, 2024 | DC-1221-19-0793-W-1 | NP |
1,194 | https://www.mspb.gov/decisions/nonprecedential/Gause_Harold_K_DA-3330-19-0276-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HAROLD K. GAUSE,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.DOCKET NUMBER
DA-3330-19-0276-I-1
DATE: June 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rueben Cartwright , Esquire, Humble, Texas, for the appellant.
Kristina T. Brooks , Esquire, Dallas, Texas, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA). On petition for review, the appellant
challenges the agency’s simultaneous use of competitive hiring procedures and its
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
direct hire authority, asserts that the administrative judge failed to consider all the
evidence, including his prior VEOA appeals, and argues that the administrative
judge abused her discretion in denying his motion to compel discovery.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The administrative judge found that the appellant failed to show a violation
of a statute or regulation relating to veterans’ preference and failed to show that
he was denied the right to compete for a position. We agree with those findings
and see no reason to disturb the initial decision. We also find that the
administrative judge properly considered the record evidence relevant to the
issues before her in this appeal.
The appellant filed several motions to compel discovery below, each
making largely the same arguments concerning the parties’ efforts to discuss their
problems conducting discovery. Initial Appeal File (IAF), Tabs 13, 15, 18-19.
The administrative judge denied the first two of those motions for failure to
comply with the Board’s discovery procedures, specifically 5 C.F.R.
§ 1201.73(c). IAF, Tab 17 at 1-2. Although the administrative judge did not2
describe the appellant’s exact failure to comply with Board regulations, her
citation of 5 C.F.R. § 1201.73(c) indicates that the appellant’s failure concerned
the substantive contents of his motions rather than their timing, which would
instead be addressed under 5 C.F.R. § 1201.73(d)(3). Id. In the initial decision,
the administrative judge denied the appellant’s remaining two motions to compel,
without explaining why. IAF, Tab 31, Initial Decision (ID) at 4 n.2.
In his petition for review, the appellant contends that the administrative
judge abused her discretion when she denied his motion to compel discovery “for
a late filing.” Petition for Review (PFR) File, Tab 1 at 6. However, he
mischaracterizes the administrative judge’s ruling.2 The administrative judge
denied the appellant’s third and fourth motions to compel, but not because either
was untimely filed. ID at 4 n.2. Although the appellant’s fourth motion to
compel, as well as his exhibits H through R, were filed one day after the close of
the record, the administrative judge denied the agency’s motion to strike them on
that basis, finding that the agency demonstrated no prejudice by the delay. Id.;
IAF, Tab 17 at 1, Tabs 19-28.
The appellant essentially claimed below that the agency’s representative
refused to discuss the relevant objections and discovery issues with him. IAF,
Tab 13 at 4-5. Citing the administrative judge’s admonition to the appellant that,
because he had designated a representative, he must file a withdrawal of that
representation before he may discuss the merits of the case directly with the
agency’s representative, the agency asserted that the appellant tried to have that
2 The appellant also argued, for the first time on review, that the administrative judge
should have known from adjudicating another of the appellant’s cases that the appellant
“suffered from a neurological disability which is exacerbated by the sitting and typing
and that he had other pleadings due in other federal and administrative courts.” PFR
File, Tab 1 at 8. He argues that this should have warranted an extension to file his
motion to compel. Id. However, because the record shows that the administrative judge
accepted and considered the appellant’s motions to compel, ID at 4 n.2, rather than
dismissing them as untimely filed, the appellant fails to show that the administrative
judge abused her discretion concerning the timeliness of the appellant’s motions to
compel. 3
direct conversation despite retaining his designated representation.3 IAF, Tab 29
at 6-10. Specifically, the agency argued that, in a June 14, 2019 telephone call to
the agency representative before the filing of his first motion to compel
discovery, the appellant refused to provide contact information for his identified
representative, and was “rude, argumentative, and offensive” before hanging up
the phone on the agency’s representative, such that he did not demonstrate a good
faith effort to resolve the dispute. Id. at 11-12. The appellant describes the
episode differently in his various motions to compel, although he acknowledges
the administrative judge’s admonition that the agency may not communicate with
him directly because he is represented. IAF, Tab 13 at 4-5, Tab 15 at 5-6, Tab 18
at 9-11, Tab 19 at 9-11. He asserted in each description of the episode that his
representative was on the telephone line, but he does not contradict the agency’s
assertion that he hung up on its representative and did not provide the agency
with his representative’s contact information. IAF, Tab 13 at 4-5, Tab 15 at 5-6,
Tab 18 at 9-11, Tab 19 at 9-11.
The agency essentially argued that the appellant failed to contact it to make
the required good faith effort to resolve the discovery dispute before filing his
motion to compel. IAF, Tab 29 at 11; see 5 C.F.R. § 1201.73(c). On review, the
appellant does not assert that he made the required good faith effort and, given
the relative consistency of the parties’ accounts concerning the appellant’s refusal
to provide contact information for his representative, we believe that the
administrative judge properly denied the appellant’s motion to compel for his
failure to abide by 5 C.F.R. § 1201.73(c).
3 The parties’ dispute therefore appears to revolve around the agency representative’s
attempts to avoid speaking directly with a represented party as required by the rules of
professional responsibility. Model Rules of Pro. Conduct r. 4.2 (Am. Bar Ass’n 2018).
Specifically, that rule states that, “[i]n representing a client, a lawyer shall not
communicate about the subject of the representation with a person the lawyer knows to
be represented by another lawyer in the matter, unless the lawyer has the consent of the
other lawyer or is authorized to do so by law or a court order.” Id.4
The appellant argues that discovery was necessary to the adjudication of his
appeal in order to obtain from the agency evidence in support of his argument that
the agency made its selection from vacancy announcement
DH-19-DAL-BLS-0109 as pretext to avoid selecting him. PFR File, Tab 1 at 6.
He also contends that he sought discovery to provide context for the cancellation
of vacancy announcement DE-19-DAL-BLS-0104 and the agency’s shifting
responses regarding whether it closed or cancelled the announcement. Id.
Specifically, he claims he sought discovery to establish that the agency declined
to select him in violation of its promise to give him priority consideration. Id.
at 7-9. However, the appellant’s claim that the agency breached a promise does
not establish Board jurisdiction over his VEOA claims. Because the agency’s
alleged promise does not concern veterans’ preference, but is instead a bargain
between the parties, it cannot assist the appellant in establishing a violation of a
statute or regulation relating to veterans’ preference. See 5 U.S.C. § 3330a(a)(1)
(A). And the agency’s cancellation of the vacancy announcement did not deny
the appellant an opportunity to compete. See Abell v. Department of the Navy ,
343 F.3d 1378, 1384 (Fed. Cir. 2003) ( quoting Scharein v. Department of the
Army, 91 M.S.P.R. 329, ¶ 10 (2002)).
Thus, the appellant fails to explain on review why anything he sought in
discovery would have changed the result in his appeal. See Russell v. Equal
Employment Opportunity Commission , 110 M.S.P.R. 557, ¶ 15 (2009) (finding
that, when the appellant fails to show that the information he sought through
discovery would have changed the result in the appeal, he has not set forth a basis
for granting a petition for review). Regardless of why the administrative judge
denied the appellant’s motions to compel, and given the reason the appellant
failed to establish that the agency violated his rights under VEOA—the agency’s
prerogative to decline to make a selection from vacancy announcement
DE-19-DAL-BLS-0104—the appellant failed to identify any discovery he sought
which could lead to potentially relevant evidence on that issue. Although our5
reviewing court has declined to find that there could never be a VEOA claim
based upon the cancellation of a vacancy announcement, as noted above, it has
found that the particular scenario the appellant alleges, an agency’s cancellation
of a vacancy announcement to avoid hiring a particular preference eligible
veteran, does not violate that individual’s veterans’ preference. Abell, 343 F.3d
at 1384; see Scharein, 91 M.S.P.R. 329, ¶ 10.
Accordingly we find that the administrative judge did not abuse her
discretion concerning discovery. We affirm the initial decision.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
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.6
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,7
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 8
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the 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
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
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/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Gause_Harold_K_DA-3330-19-0276-I-1__Final_Order.pdf | 2024-06-20 | HAROLD K. GAUSE v. DEPARTMENT OF LABOR, MSPB Docket No. DA-3330-19-0276-I-1, June 20, 2024 | DA-3330-19-0276-I-1 | NP |
1,195 | https://www.mspb.gov/decisions/nonprecedential/Kuhlmann_Kerri_S_DC-1221-17-0437-R-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KERRI S. KUHLMANN,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.DOCKET NUMBER
DC-1221-17-0437-R-1
DATE: June 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kerri S. Kuhlmann , Arlington, Virginia, pro se.
Matthew Babington , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication of
this appeal.
FINAL ORDER
¶1The appellant filed a petition for review of the initial decision in the
underlying matter, Kuhlmann v. Department of Labor , MSPB Docket
No. DC-1221-17-0437-W-1, which denied her request for corrective action in this
individual right of action (IRA) appeal. On January 23, 2024, the Board issued
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
an order providing that the initial decision became the final decision of the Board
because Chairman Harris, then one of only two Board members in office, had
recused herself from consideration of the appeal. Kuhlmann v. Department of
Labor, MSPB Docket No. DC-1221-17-0437-W-1, Order (Jan. 23, 2024); see
5 C.F.R. § 1200.3(b). On March 26, 2024, Vice Chairman Limon reopened the
final decision pursuant to 5 U.S.C. § 7701(e)(1), to permit the Board, once a third
member had been confirmed, to issue a decision on the appellant’s petition for
review. Kuhlmann v. Department of Labor , MSPB Docket No. DC-1221-17-
0437-R-1, Reopening File, Tab 1. Member Kerner was sworn into his duties as a
Board member on June 3, 2024. Accordingly, we now consider the reopened
appeal.2
¶2Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review. Except as expressly MODIFIED to clarify when a claimed
hostile work environment constitutes a cognizable personnel action in an IRA
2 Upon further consideration of the circumstances, as well as the expiration of pertinent
time frames contained in the Ethics Agreements she signed in connection with her
Chairman and Member nominations, Chairman Harris has revoked her prior recusal and
has fully participated in the disposition of this appeal.2
appeal, as provided in Skarada v. Department of Veterans Affairs , 2022 MSPB
17, we AFFIRM the initial decision.
¶3The following facts, as further detailed in the initial decision, are not
disputed. The appellant holds the GS-14 position of Pension Law Specialist in
the Employee Benefits Security Administration’s Office of Regulations and
Interpretations (ORI), Division of Coverage, Reporting, and Disclosure (DCRD),
and is domiciled in Washington, D.C. Initial Appeal File (IAF), Tab 59 at 5,
Tab 85, Initial Decision (ID) at 2. The DCRD Chief was her first-level
supervisor, and the ORI Director was a higher -level manager. ID at 2-3. The
majority of the instant IRA appeal involves the individuals who, starting in late
2011, occupied those positions.
¶4In May 2016, after years of conflict with her supervisory chain and at least
one coworker, along with complaints about the same, the appellant filed a
whistleblower retaliation claim with the Office of Special Counsel (OSC). ID
at 14. OSC closed her complaint in February 2017, and this IRA appeal followed.
ID at 14; IAF, Tab 1. The administrative judge held a 7-day hearing before
denying the appellant’s request for corrective action.
¶5The administrative judge found that the appellant presented nonfrivolous
allegations of 32 disclosures within the Board’s jurisdiction but only proved that
10 of those were protected. ID at 17-79, 88. Those protected disclosures were
Disclosures 2-4, 6, 15-18, 22, and 27.3 ID at 88. She further found that the
appellant was subject to four relevant personnel actions—her Fiscal Year 2014
(FY 14) performance appraisal, the denial of several transfer requests, a
3 As the administrative judge explained, the appellant’s alleged disclosures are not
identified in a consistent manner throughout the record. They were initially identified
with a letter and number, then identified with numbers 1-45, after which the appellant
withdrew several and the administrative judge concluded that there were a total of 32
within the Board’s jurisdiction. ID at 16; see, e.g., IAF, Tab 57 at 11-46, Tab 74 at 3-7.
Accordingly, the administrative judge discussed the appellant’s disclosures using that
numbering—Disclosures 1-32. ID at 16-79. The appellant’s petition for review
followed that same formatting. Petition for Review File, Tab 5 at 12. For the sake of
consistency, we will as well.3
significant change in working conditions, and a letter of reprimand. ID at 80-81,
83-86, 88. While the appellant alleged that she was subject to additional
personnel actions, such as a threat of counseling and a hostile work environment,
the administrative judge found that the appellant failed to prove that these matters
constituted personnel actions within the purview of the whistleblower statute. ID
at 81-83, 85-86.
¶6For those disclosures and personnel actions that remained, the
administrative judge found that the appellant met her burden of proving the
contributing factor criterion based upon the knowledge/timing test. ID at 86-90.
Nevertheless, she found that the agency met its burden of proving that it would
have taken the same actions in the absence of the appellant’s protected
disclosures. ID at 90-97. The appellant has filed a petition for review. Petition4
for Review (PFR) File, Tab 5.4 The agency has filed a response, PFR File,
Tab 11,5 and the appellant has replied, PFR File, Tab 16.6
The administrative judge properly denied the appellant’s motion for sanctions and
her request for a subpoena.
Motion for sanctions
¶7During discovery, the parties filed competing motions to compel pertaining
to specific discovery requests. IAF, Tabs 27-28, 31-33. The administrative judge
4 Prior to filing her petition, the appellant requested leave to exceed the applicable
30-page length limitation and submit a petition totaling 77 pages. PFR File, Tab 3. The
Clerk of the Board granted the request, in part, setting the length limitation of the
appellant’s petition at 60 pages. PFR File, Tab 4. After submitting a 58-page petition
for review, the appellant filed a motion for leave to file an additional pleading, to
request that the administrative judge be disqualified from further participation in this
appeal due to bias. PFR File, Tab 9. That request is denied. See Sabio v. Department
of Veterans Affairs , 124 M.S.P.R. 161, ¶¶ 11-13 (2017) (denying an appellant’s motions
to submit additional pleadings because, inter alia, she had already been afforded ample
opportunity to present her arguments on review).
5 After the agency’s response, but before the appellant’s reply, the appellant filed
another motion for leave to submit an additional pleading—this time to strike portions
of the hearing transcript attached to the agency’s response on the basis that it is
unofficial or otherwise fails to fully represent pertinent testimony, and to object to the
agency’s response on the basis that the agency used 10 point font for its footnotes and
exceeded the Board’s 7,500 word limitation. PFR File, Tab 12; see 5 C.F.R.
§ 1201.114(h) (requiring that pleadings on review use no less than 12 point typeface
and setting the length limitation for both petitions for review and responses to a petition
for review at the lesser of 30 pages or 7,500 words, absent a grant of leave to exceed
those limitations for exceptional circumstances). This motion is also denied. See
Sabio, 124 M.S.P.R. 161, ¶¶ 11-13. Regarding the selected portions of transcript
attached to the agency’s response, the official hearing transcript is included in the
record, in its entirety, and we will exclusively refer to it as needed. See Hearing
Transcript, Day 1-Day 7. Regarding the typeface and length of the agency’s response—
only 23 pages, but approximately 8,300 words—while technically noncompliant with
the Board’s regulations concerning the word count, we will not strike the pleading
under these circumstances, where the appellant was allowed to, and did submit, a
58-page petition for review. See PFR File, Tab 11 at 4-26.
6 In yet another motion for leave to submit an additional pleading, the appellant requests
permission to present arguments pertaining to decisions in other cases that have been
issued since her reply brief. PFR File, Tab 17. This included our nonprecedential
decisions in Hornsby v. Federal Housing Finance Agency , MSPB Docket No. DC-0752-
15-0576-I-2, Final Order (Apr. 28, 2022), and Addo v. Department of the Air Force ,
MSPB Docket No. DC-0752-16-0427-I-1, Final Order (May 4, 2022), as well as the5
issued one order, which granted in part each of those motions. IAF, Tab 34. The
parties later filed competing motions for sanctions, with each alleging that the
other had failed to comply with the administrative judge’s order. IAF, Tabs 41,
47, 49, 55-56, 64-65. The administrative judge denied both motions. IAF,
Tabs 50, 74 at 1-2.
¶8The appellant’s motion for sanctions alleged that while the administrative
judge granted her motion to compel concerning Document Request Nos. 3 and 11,
and the agency provided more than 14,000 pages worth of responsive documents,
the agency’s response was incomplete. IAF, Tab 34 at 3-5, Tab 55 at 4-11. For
example, while Document Request No. 3 sought certain electronic
communications by or among more than a dozen officials over a period of about
5 years, the appellant asserted that the agency produced none from one of those
officials. IAF, Tab 55 at 6. The appellant also alleged that the agency produced
no communications dated after May 13, 2016, the end date identified in the
administrative judge’s original order, even though the administrative judge later
amended that order to set an end date of September 2016. Id.; see IAF, Tab 34
at 3-4, Tab 37 at 5, Tab 38 at 1.
¶9The agency opposed the appellant’s motion for sanctions. IAF, Tab 64.
Among other things, the agency argued that sanctions were not warranted because
the appellant had requested them without first informing the agency of the
perceived deficiencies and providing an opportunity to make any necessary
corrections. Id. at 4. The administrative judge agreed. She concluded that
sanctions were not warranted because the agency worked diligently to respond to
Document Request Nos. 3 and 11, and the appellant should have worked with the
agency if she perceived any associated deficiencies. IAF, Tab 74 at 1-2. The
appellant requested reconsideration, but the administrative judge also denied that
precedential decisions in McGuffin v. Social Security Administration , 942 F.3d 1099
(Fed. Cir. 2019), and Sharpe v. Department of Justice , 916 F.3d 1376 (Fed. Cir. 2020).
This motion is similarly denied. We have considered each of the decisions cited but do
not find additional arguments about them warranted.6
request. Hearing Transcript, Day 1 (HT1) at 4 (ruling by the administrative judge
on the record denying the reconsideration motion).
¶10On review, the appellant has generally alleged that the administrative judge
erred in denying the motion for sanctions. PFR File, Tab 5 at 7-8. We disagree.
The imposition of sanctions is a matter within an administrative judge’s sound
discretion and, absent a showing that such discretion has been abused, the
administrative judge’s determination will not be found to constitute reversible
error. El v. Department of Commerce , 123 M.S.P.R. 76, ¶ 16 (2015), aff’d per
curiam, 663 F. App’x 921 (Fed. Cir. 2016). In this case, we find no such abuse of
discretion. We instead find the administrative judge’s reasoning for denying the
appellant’s request for sanctions persuasive. See 5 C.F.R. § 1201.71 (recognizing
an expectation that parties will start and complete discovery with a minimum of
Board intervention).
Subpoena request
¶11As will be further discussed below, the appellant alleged that the DCRD
Chief committed a battery on her in February 2016. An associated report from
the Department of Homeland Security’s Federal Protective Service (FPS) is
included in the record. IAF, Tab 61 at 50-54. However, the appellant asked that
the administrative judge issue a subpoena for the hearing testimony of a particular
FPS agent. IAF, Tab 51 at 4-6. The administrative judge denied the request
because the witness testimony would have been duplicative of a document in the
record and further testimony was irrelevant. IAF, Tab 53 at 1.
¶12On review, the appellant argues that this FPS agent was a material witness
and the administrative judge erred in disallowing him. PFR File, Tab 5 at 8.
According to the appellant, his testimony was material to the question of whether
the appellant had a reasonable belief that she disclosed wrongdoing in connection
with Disclosures 29-32, ones involving the alleged battery. Id. We are not
persuaded.7
¶13We find that the administrative judge did not abuse her discretion. See Lee
v. Environmental Protection Agency , 115 M.S.P.R. 533, ¶ 14 (2010) (analyzing an
administrative judge’s denial of a subpoena for a witness under an abuse of
discretion standard). No subpoena was necessary for this witness because he was
a Federal employee and, in any event, the appellant ultimately chose not to
request his testimony. IAF, Tab 51 at 4, Tab 68 at 56-62; see Lee, 115 M.S.P.R.
533, ¶ 14 (observing that subpoenas are not ordinarily required to obtain the
appearance of Federal employees as witnesses and finding, as to a non-Federal
employee witness, that no subpoena was necessary because the administrative
judge denied the appellant’s request to call him). Accordingly, we discern no
error in the administrative judge denying the request to subpoena the FPS agent.
The appellant has failed to present sufficiently sound reasons to overturn the
administrative judge’s credibility findings.
¶14The appellant’s petition for review contains general arguments about the
administrative judge’s credibility findings. PFR File, Tab 5 at 8-12. We will
address these general credibility arguments now, though we will further discuss
credibility below, as needed, in concert with our discussions of the parties’
respective burdens.
¶15To resolve credibility issues, an administrative judge must identify the
factual questions in dispute, summarize the evidence on each disputed question,
state which version he believes, and explain in detail why he found the chosen
version more credible. Hillen v. Department of the Army , 35 M.S.P.R. 453, 458
(1987). In Hillen, the Board articulated a list of several factors that may be
relevant, including a witness’s demeanor. Id. The U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) has explained that the Board “is not free to
overturn an administrative judge’s demeanor-based credibility findings merely
because it disagrees with those findings.” Haebe v. Department of Justice ,
288 F.3d 1288, 1299 (Fed. Cir. 2002). Instead, the Board may overturn such
determinations only when it has “sufficiently sound” reasons for doing so. Id.8
at 1301. Additionally, the Federal Circuit has recognized that the Board should
give deference not only to an administrative judge’s credibility findings that
explicitly rely on witness demeanor, but also those that are “intertwined with
issues of credibility and an analysis of [a witness’s] demeanor at trial.” Purifoy
v. Department of Veterans Affairs , 838 F.3d 1367, 1373 (Fed. Cir. 2016).
¶16In this case, the administrative judge made extensive credibility findings,
particularly ones concerning testimony of the appellant, the DCRD Chief, and the
ORI Director, and those credibility findings were partially based on witness
demeanor. E.g., ID at 18-20, 24, 27, 33. On review, the appellant argues that we
should not defer to these credibility findings because they were incomplete or
otherwise improper. PFR File, Tab 5 at 8-12. To illustrate her point, the
appellant provides several examples. Id. at 9-12. Although we have considered
each and discuss some below, we do not find any of these credibility arguments
persuasive.
¶17In her first example of alleged improprieties surrounding the administrative
judge’s credibility findings, the appellant discusses her allegation that the DCRD
Chief committed a battery on the appellant during a meeting in February 2016.
Id. at 9. The administrative judge found that the appellant’s disclosure of this
incident was not protected because a reasonable person in her position could not
conclude that the DCRD Chief committed a battery. ID at 72-73. The appellant
argues that, because the DCRD Chief refused to provide any testimony about the
incident,7 it was a gross abuse of discretion for the administrative judge to
conclude that the DCRD Chief’s contact with the appellant was a natural or
reflexive action that she may not have remembered. Id. (citing ID at 71-72). We
disagree.
7 The DCRD Chief refused to testify about the alleged battery, asserting her Fifth
Amendment right against self-incrimination. Hearing Transcript, Day 6 at 163-65, 170
(testimony of the DCRD Chief). As a result, the administrative judge made an adverse
inference that the DCRD Chief touched the appellant and the appellant did not consent
to the touching. ID at 71-72.9
¶18Notwithstanding the absence of direct testimony from the DCRD Chief, the
administrative judge properly relied on other witnesses’ testimony and
documentary evidence in making her findings. ID at 70-73. Most notably, the
agency’s investigative report and the FPS report both indicate that the DCRD
Chief denied touching the appellant at all, IAF, Tab 61 at 52, Tab 62 at 20-21,
while two third -party witnesses recalled the DCRD Chief lightly touching or
tapping the appellant on the shoulder to get her attention, without any force, as
part of a routine conversation, IAF, Tab 62 at 20; Hearing Transcript, Day 4
(HT4) at 30 (testimony of the appellant’s former co-worker). Accordingly, the
record reflects that the administrative judge considered the relevant evidence,
drew appropriate inferences, and made a reasoned conclusion concerning the
nature of the touching, which we will not disturb. ID at 70-74; see, e.g., Crosby
v. U.S. Postal Service , 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to
disturb the administrative judge’s findings when she considered the evidence as a
whole, drew appropriate inferences, and made reasoned conclusions); Broughton
v. Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987)
(same).
¶19The appellant’s next example is unpersuasive for similar reasons. The
appellant argues that the administrative judge abused her discretion and inserted
herself as a fact witness by concluding that a mistake in one of the appellant’s
performance appraisals—rating her as meeting expectations in a category for
which she should have received no rating due to her limited work—was likely
inadvertent. PFR File, Tab 5 at 9 (referencing ID at 23). But again, the
administrative judge’s findings are based on other evidence, appropriate
inferences, and reasoned conclusions about the circumstances at hand. See, e.g.,
Crosby, 74 M.S.P.R. at 105-06.
¶20Most of the appellant’s remaining examples involve the ORI Director and
the administrative judge’s determination, based in part on demeanor, that he
testified credibly. PFR File, Tab 5 at 10-11 (referencing ID at 20, 49). In one,10
the appellant argues that when asked a particular yes-or-no question during the
hearing, the ORI Director provided a 6 -minute answer that was neither concise
nor unequivocal. PFR File, Tab 5 at 11 (referencing Hearing Transcript, Day 2
(testimony of the ORI Director)). In another, the appellant argues that when
asked another yes-or-no question during the hearing, the ORI Director provided a
2-minute answer that was not straightforward. Id. These are not sufficiently
sound reasons for us to overturn the administrative judge’s credibility findings.
See Brough v. Department of Commerce , 119 M.S.P.R. 118, ¶ 6 (2013)
(identifying circumstances in which there are sufficiently sound reasons to
overturn an administrative judge’s demeanor -based credibility findings as
including when those findings are incomplete, inconsistent with the weight of the
evidence, and do not reflect the record as a whole).
The appellant failed to prove that Disclosures 1, 5, 7-14, 19-21, 23-26, and 28-32
were protected.
¶21After an appellant establishes jurisdiction over her IRA appeal, she is
entitled to a hearing at which she must prove the following by preponderant
evidence: (1) she made a disclosure described under 5 U.S.C. § 2302(b)(8), or
engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
(C), or (D); and (2) the disclosure or protected activity was a contributing factor
in the agency’s decision to take or fail to take a personnel action as defined by
5 U.S.C. § 2302(a). 5 U.S.C. § 1221(e)(1); Salerno v. Department of the Interior ,
123 M.S.P.R. 230, ¶ 5 (2016). If the appellant meets that burden, the agency is
given an opportunity to prove, by clear and convincing evidence, that it would
have taken the same personnel action in the absence of the protected disclosure or
activity. 5 U.S.C. § 1221(e); Salerno, 123 M.S.P.R. 230, ¶ 5.
¶22A protected disclosure is a disclosure of information that the appellant
reasonably believes evidences any violation of any law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8); Bradley v.11
Department of Homeland Security , 123 M.S.P.R. 547, ¶ 7 (2016). The proper test
for determining whether an employee had a reasonable belief that her disclosures
were protected is whether a disinterested observer with knowledge of the
essential facts known to and readily ascertainable by the employee could
reasonably conclude that the disclosure evidenced one of the circumstances
described in 5 U.S.C. § 2302(b)(8). Bradley, 123 M.S.P.R. 547, ¶ 7.
¶23In this case, the administrative judge examined 32 alleged disclosures and
found that the appellant met her burden of proof for Disclosures 2-4, 6, 15-18, 22,
and 27, but not Disclosures 1, 5, 7-14, 19-21, 23-26, and 28-32. ID at 17-79, 88.
On review, the appellant presents arguments about several of her alleged
disclosures, both ones the administrative judge found protected and ones as to
which the administrative judge found the appellant failed to meet her burden.
PFR File, Tab 5 at 12-38.
¶24We first consider the disclosures that the administrative judge did not find
protected, i.e., Disclosures 1, 5, 7-14, 19-21, 23-26, and 28-32. Of those, the
appellant presents arguments about only Disclosures 1, 8, 10-14, 23-26, 28-32, so
this decision will be similarly focused.8
Disclosure 1
¶25In Disclosure 1, which reportedly occurred during conversations in both
August 2005 and October 2010,9 the appellant asserted that the ORI Director
manipulated the hiring process to select a particular person over the appellant for
a vacancy in 2005. IAF, Tab 57 at 11-13. Although the appellant alleged that
8 The appellant’s petition for review contains no arguments about Disclosures 5, 7, 9, or
19, while specifically withdrawing Disclosures 20 and 21. PFR File, Tab 5 at 29.
9 In a prehearing summary, the administrative judge found that the appellant
nonfrivolously alleged that she made this disclosure in both 2005 and 2010, to differing
recipients, and exhausted the same with OSC. IAF, Tab 74 at 3-4. However, as the
appellant correctly noted, the administrative judge referenced only the October 2010
date in the initial decision. PFR File, Tab 5 at 13-14; ID at 17. Nevertheless, we find
this oversight immaterial. The differing dates and recipients have no bearing on the
appellant’s failure to prove that this disclosure was protected. 12
this disclosure revealed a violation of law or abuse of authority, the
administrative judge concluded that she failed to meet her burden of proof. ID
at 17-21. In short, the administrative judge found that the appellant did not have
a reasonable belief that she was making a protected disclosure because her
disclosure was based on pure speculation, unsupported by evidence. ID at 19-21.
¶26On review, the appellant argues that the administrative judge improperly
required that she prove an actual violation of law or abuse of discretion, PFR
File, Tab 5 at 13, but the record reflects otherwise. The administrative judge
explicitly relied on the reasonable belief standard. ID at 21; see supra, ¶ 21. The
appellant also suggests we should overturn the administrative judge’s
determination that the ORI Director was more credible than the appellant
regarding their alleged discussions about the vacancy and the propriety of the
hiring process. PFR File, Tab 5 at 14-15; see ID at 19-20. In doing so, the
appellant argues that the administrative judge failed to mention all of the
evidence and Hillen factors that might be relevant in deciding which witness to
believe. PFR File, Tab 5 at 14-15. But an administrative judge’s failure to
mention all of the evidence of record does not mean that she did not consider it in
reaching her decision. Mithen v. Department of Veterans Affairs , 122 M.S.P.R.
489, ¶ 14 (2015), aff’d per curiam, 652 F. App’x 971 (Fed. Cir. 2016). Not
specifically discussing every evidentiary matter or credibility factor does not
mean that an administrative judge failed to consider them. Id. We discern no
basis for disturbing the administrative judge’s well-reasoned credibility findings
or her conclusion that Disclosure 1 is not protected.
Disclosure 8
¶27In Disclosure 8, conversations and follow-up emails from November 2013,
the appellant disclosed various ways in which the DCRD Chief and the ORI
Director were treating her. IAF, Tab 57 at 21; see IAF, Tab 59 at 73-74. The
administrative judge summarized the disclosure as including allegations that the
DCRD Chief was micromanaging the appellant; the DCRD Chief was criticizing13
her work and productivity in a way that the appellant found abusive and
intimidating; the ORI Director enabled the DCRD Chief’s behavior by ignoring
the appellant’s complaints and not allowing the appellant to transfer; and both the
DCRD Chief and the ORI Director were issuing punitively low performance
ratings while also covering up an altercation10 between the appellant and a
coworker from the year before. ID at 30-31; see, e.g., IAF, Tab 59 at 73-74.
¶28One of the categories of wrongdoing specified in section 2302(b)(8) is an
abuse of authority. See 5 U.S.C. § 2302(b)(8)(A)(ii). An abuse of authority
occurs when there is an arbitrary or capricious exercise of power by a Federal
official or employee that adversely affects the rights of any person or results in
personal gain or advantage to himself or preferred other persons. Pasley v.
Department of the Treasury , 109 M.S.P.R. 105, ¶ 18 (2008). There is no de
minimis standard for abuse of authority as a basis of a protected disclosure. Id.
Furthermore, the Board has recognized that harassment or intimidation of other
employees may constitute an abuse of authority. E.g., Ayers v. Department of the
Army, 123 M.S.P.R. 11, ¶ 14 (2015); Pasley, 109 M.S.P.R. 105, ¶ 18. A
supervisor’s use of influence to denigrate other staff members in an abusive
manner and to threaten the careers of staff members with whom he disagrees
constitutes abuse of authority. Pasley, 109 M.S.P.R. 105, ¶ 18.
¶29After recognizing that harassment by a supervisor may constitute an abuse
of authority, the administrative judge considered the evidence of record and
concluded that the appellant failed to prove that Disclosure 8 was protected. ID
at 31-39. She acknowledged shortcomings in the DCRD Chief’s management
style, ID at 33-34, and the appellant’s subjective belief that she was the subject of
harassment, ID at 30-33. However, the administrative judge also recognized the
appellant’s role in the contentious relationship, as she approached even normal
supervisory instructions with suspicion and hostility. ID at 34-35. Ultimately,
the administrative judge found that a difficult working relationship was
10 This altercation is also the subject of Disclosure 4, which is discussed below.14
exacerbated by the DCRD Chief’s style of supervision, but neither her behavior,
nor that of her supervisor—the ORI Director—constituted harassment or a hostile
work environment, i.e., an abuse of authority or other protected category of
wrongdoing. ID at 35-38. The administrative judge, therefore, concluded that the
appellant failed to prove that she reasonably believed Disclosure 8 was protected.
ID at 39.
¶30The appellant’s arguments on review largely mischaracterize the
administrative judge’s analysis of Disclosure 8. For example, the appellant
asserts that the administrative judge mistakenly imposed a de minimis threshold
when considering whether Disclosure 8 revealed an abuse of authority. PFR File,
Tab 5 at 17. In fact, the initial decision repeatedly notes that there is no de
minimis threshold in the context of disclosures of an abuse of authority, and we
discern no analysis in the decision reflecting otherwise. See ID at 18, 25. The
appellant also asserts that the administrative judge improperly relied on a
“disinterested observer” standard rather than the standard of a disinterested
observer with knowledge of the essential facts known to the appellant. PFR File,
Tab 5 at 17. Again, the administrative judge repeatedly cited the appropriate
standard in determining whether the appellant had a reasonable belief about her
disclosures: a disinterested observer with knowledge of the essential facts known
to and readily ascertainable by the appellant. E.g., ID at 17, 21, 27. While she
used the shorthand “disinterested observer” at times, it is apparent that the
administrative judge applied the proper standard throughout.
¶31The appellant’s other arguments concerning Disclosure 8 reflect
disagreement with the administrative judge’s credibility findings about the nature
of the appellant’s conduct and that of her chain of command. PFR File, Tab 5
at 18-20. We do not find her arguments persuasive. See, e.g., Mithen,
122 M.S.P.R. 489, ¶ 14; Crosby, 74 M.S.P.R. at 105-06.15
Disclosure 10
¶32In Disclosure 10, a February 2014 email, the appellant reportedly disclosed
that the DCRD Chief was preventing her from doing her job and the ORI Director
was refusing to correct the DCRD Chief’s behavior. IAF, Tab 57 at 23. The
actual email chain at issue shows that the DCRD Chief emailed the appellant
detailed instructions for some work assignments. IAF, Tab 27 at 141. The
appellant then forwarded that email to the ORI Director, suggesting the email
showed that the DCRD Chief was unnecessarily micromanaging her. Id. The
appellant commented that she did not understand why this “untenable situation”
was never addressed, and asked the ORI Director to do so or else she would seek
help elsewhere. Id.
¶33The administrative judge found that this, Disclosure 10, was not protected.
ID at 41-44. Similar to her reasoning for Disclosure 8, she found that the
particular email at issue and others around the same period reflected the
appellant’s hypersensitivity to basic supervision, not harassment by her
supervisory chain or any other wrongdoing protected under section 2302(b)(8).
Id.; see IAF, Tab 27 at 140-44. On review, the appellant’s arguments follow
those discussed above, with Disclosure 8. According to the appellant, the
administrative judge improperly applied a de minimis standard when considering
whether Disclosure 10 revealed an abuse of discretion, PFR File, Tab 5 at 20-21,
yet we discern no error in the legal standards applied. The appellant also
attempts to further contextualize Disclosure 10, in support of an argument that
she was disclosing harassment that constituted an abuse of authority. Id.
at 21-22. But again, the appellant’s arguments amount to disagreement with the
administrative judge’s findings of fact and well-reasoned credibility analysis
regarding the interactions and working relationship between the appellant, the
DCRD Chief, and the ORI Director. That disagreement is unavailing.16
Disclosures 11-12
¶34In Disclosures 11-12, emails from March 2014, the appellant disclosed that
the DCRD Chief was harassing her, making damaging statements about her, and
interfering with her part-time detail assignment, while the ORI Director continued
to allow it. IAF, Tab 27 at 149, 153-54, Tab 59 at 80; see IAF, Tab 57 at 24. The
administrative judge found that these disclosures were not protected. ID at 44-48.
Generally speaking, she found that which the appellant characterized as harassing
behavior or improper interference with her detail assignment was actually
professional and appropriate behavior on the part of the DCRD Chief. Id.
¶35On review, the appellant reasserts that she had a reasonable belief that she
was disclosing an abuse of authority. PFR File, Tab 5 at 22-24. She again argues
that the administrative judge viewed the disclosures and allegations of harassment
out of context, while also erroneously applying a de minimis standard. Id.
at 23-24. Once more, we disagree. Although the appellant may have subjectively
believed that she was disclosing an abuse of authority, she has not proven that her
belief was reasonable. To illustrate, one of the emails at issue is a message from
the DCRD Chief to the appellant discussing a pending assignment and an
upcoming one, while alluding to the appellant either having a preference for or
performing better when focusing on just one assignment at a time. IAF, Tab 27
at 149. The appellant’s response, just minutes later, accused the DCRD Chief of
making “false and damaging statements about [her] skills and capabilities.” Id.
Having reviewed this email and the other materials the appellant identified, we
agree with the administrative judge. What the appellant casts as abuses of
authority would appear to the reasonable person to be quite ordinary and
appropriate management of a subordinate. See IAF, Tab 27 at 149, 153-54,
Tab 59 at 80.
Disclosure 13
¶36In Disclosure 13, a June 2014 email, the appellant disclosed that the DCRD
Chief had harassed the appellant, culminating with the DCRD Chief pursuing the17
appellant through the office, raising her voice, cornering the appellant, and
physically intimidating her. IAF, Tab 27 at 221; see IAF, Tab 57 at 25. The
administrative judge found that Disclosure 13 was not protected. ID at 48-50. In
short, she found that there was an encounter with unprofessional behavior by both
the appellant and the DCRD Chief—the appellant yelled at the DCRD Chief
before walking out of her office, after which the DCRD Chief responded by
angrily following the appellant to a copy room, where she pointed her finger at
the appellant during a heated discussion. Id. However, the administrative judge
concluded that the appellant failed to meet her burden of proving that the matter
disclosed was one that a reasonable person in her position would believe
evidenced an abuse of authority or any of the other categories of wrongdoing
protected in section 2302(b)(8). Id.
¶37On review, the appellant reiterates that the DCRD Chief angrily followed
her through the office, against the appellant’s wishes, and shook her finger at the
appellant. PFR File, Tab 5 at 24-25. She also asserts that the agency’s workplace
violence policy specifically prohibits following and other intimidating conduct.
Id. at 24 (citing IAF, Tab 12 at 54-55). But the policy actually states that
“[p]hysical intimidation or harassment may include holding, impeding or blocking
movement, following, stalking, touching, or any other inappropriate physical
contact or advances.” IAF, Tab 12 at 55 (emphasis added). In other words, the
context matters; following someone is not a per se violation of the agency’s
workplace violence policies. After reviewing the administrative judge’s analysis,
we find no basis for disturbing her well-reasoned findings. While the incident
seemingly involved unprofessional behavior from both parties, the appellant
failed to prove that she reasonably believed she was disclosing the type of
wrongdoing protected under section 2302(b)(8).
Disclosure 14
¶38In Disclosure 14, a November 2014 email, the appellant referred to
Disclosure 13, asserted that she was never contacted about the matter, and18
suggested that the agency had not conducted a legitimate inquiry. IAF, Tab 12
at 88. During adjudication of this appeal, the appellant characterized this
disclosure as revealing that the agency was covering up the incident. E.g., IAF,
Tab 57 at 26-27. The administrative judge found that Disclosure 14 was not
protected. ID at 50-52. After recognizing that the investigation was delayed for
workload reasons, the administrative judge concluded that the appellant failed to
prove that a disinterested observer would have found that disclosure of the delay
reflected a cover-up or any other wrongdoing protected under the whistleblower
statute. Id.
¶39On review, the appellant characterizes her disclosure as revealing that the
ORI Director abused his authority by refusing to respond to Disclosure 13. PFR
File, Tab 5 at 26. Like the administrative judge, we are not persuaded. While the
appellant may have speculated that the agency was acting nefariously because she
had yet to be contacted about the agency’s investigation, she has not proven that
she reasonably believed the agency was engaging in an abuse of authority or other
protected category of wrongdoing. See Pulcini v. Social Security Administration ,
83 M.S.P.R. 685, ¶ 13 (1999) (finding that a disclosure of an agency’s alleged
delay in initiating corrective action against a coworker did not evidence what a
disinterested observer in an appellant’s position could reasonably believe was an
abuse of authority), aff’d per curiam , 250 F.3d 758 (Fed. Cir. 2000) (Table).
Disclosures 23-26
¶40In Disclosures 23-26, a series of emails from January and February 2016,
the appellant disclosed that the DCRD Chief continued to harass the appellant by
misrepresenting their work encounters, challenging her time and attendance, and
falsely accusing her of being absent without leave. IAF, Tab 11 at 22, Tab 27
at 184, 270-72, 281-83, Tab 57 at 41-42. For example, after the DCRD Chief sent
the appellant an email that seemingly called into question whether the appellant
had requested administrative leave for the correct date, the appellant forwarded
the email to other agency officials with no text except for the subject line,19
“[h]arassment: constantly challenging time keeping and attendance.” IAF,
Tab 27 at 184. In another example, the DCRD Chief sent the appellant an email
indicating that she had not yet heard from the appellant and reminding her that
she was required to check in by email first thing in the morning on days away
from the office so the DCRD Chief knew who was available for quick turnaround
assignments. Id. at 283. The appellant forwarded this email and follow-ups,
which suggested that the appellant tried to check in but the DCRD Chief did not
receive the message. Id. at 282-83. She characterized the DCRD Chief’s
comment that, “I have had to check on your attendance once before, so my
inquiry was reasonable,” and the DCRD Chief’s other inquiries into the
appellant’s attendance as “continuing slander.” Id.
¶41The administrative judge found that Disclosures 23-26 were not protected.
ID at 65-68. In short, she found a vast disconnect between the DCRD Chief’s
messages and the appellant’s reaction to them. The administrative judge
determined that a disinterested observer could not reasonably believe that
Disclosures 23-26 revealed harassment or any protected category of wrongdoing.
Id.
¶42On review, the appellant reasserts that she had a reasonable belief that her
emails were protected. PFR File, Tab 5 at 29-32. Among other things, she argues
that the administrative judge erred in crediting the DCRD Chief’s testimony,
which included an explanation about why she required that all her team members
check in on days away from the office for business purposes, and that she felt the
need to remind the appellant to check in because the appellant had failed to do so
on occasion. Id. at 29-30; ID at 67. The appellant has not presented sufficiently
sound reasons for disturbing the administrative judge’s well-reasoned credibility
findings. The appellant also argues that the administrative judge viewed the
messages in a vacuum, rather than recognizing that the DCRD Chief constantly
challenged her time and attendance as a pretext to provoke the appellant. PFR
File, Tab 5 at 30-31. We find no merit to these arguments. On their face, each of20
the messages the appellant identified in Disclosures 23-26 share a commonality in
that they are professional supervisory messages, despite the appellant’s
unpersuasive argument that they served some nefarious purpose or were otherwise
harassing. The administrative judge expressly considered, and found not
credible, the appellant’s claims that the DCRD Chief was constantly checking on
the appellant and accusing her of leave abuse. ID at 67-68. We discern no basis
to disturb these findings. See Purifoy, 838 F.3d at 1373.
Disclosure 28
¶43In Disclosure 28, a February 2016 email, the appellant provided a definition
of workplace violence that discusses verbal harassment, along with a copy of
Whitmore v. Department of Labor , 680 F.3d 1353 (Fed. Cir. 2012), with an email
subject line of, “Notice: Supervisory Abuse of Authority Manifesting as
Workplace Violence.” IAF, Tab 61 at 5; see IAF, Tab 57 at 43. The
administrative judge found that Disclosure 28 appeared to be yet another
allegation of harassment by the DCRD Chief and was not protected for the same
reasons as her other similar disclosures, such as Disclosures 8, 10-12, and 23-26.
ID at 69. On review, the appellant asserts that this disclosure is “protected for the
same reasons described above,” PFR File, Tab 5 at 32, but we find no basis for
concluding, contrary to the administrative judge, that this email contained a
protected disclosure. See Salerno, 123 M.S.P.R. 230, ¶ 6 (explaining that
disclosures must be specific and detailed, not vague allegations of wrongdoing).
Disclosures 29-30
¶44In Disclosures 29-30, a conversation and follow-up email from
February 2016, the appellant disclosed that the DCRD Chief committed a battery
on her. IAF, Tab 27 at 192-93; see IAF, Tab 57 at 44. The administrative judge
found that these disclosures were not protected. ID at 69-73. Most notably, she
recognized that third -party witnesses to the incident described the DCRD Chief as
lightly touching or tapping the appellant on the shoulder while discussing a21
business matter, and the appellant failed to prove that a disinterested observer
would have found that this amounted to battery or any other protected category of
wrongdoing. Id.
¶45On review, the appellant argues that the administrative judge erroneously
focused on the DCRD Chief’s intent, rather than whether the appellant had a
reasonable belief about her disclosure. PFR File, Tab 5 at 32-33. We disagree.
The administrative judge appropriately considered whether a disinterested
observer could reasonably conclude that the DCRD Chief had the intent to cause
harm or offensive contact, as required for criminal or tortious battery. ID
at 72-73; see Ray v. United States , 575 A.2d 1196, 1198-99 (D.C. 1990)
(explaining that a “completed battery necessarily includes an attempted battery,”
or assault, and that an assault under the District of Columbia’s statutes requires
either an intent to injure or a menacing threat); Evans-Reid v. District of
Columbia, 930 A.2d 930, 937 (D.C. 2007) (defining a tortious battery as “an
intentional act that causes a harmful or offensive bodily contact” (citation
omitted)). The appellant also suggests that the DCRD Chief’s touching both
violated the agency’s workplace violence policy and amounted to an abuse of
authority, as evidenced by the DCRD Chief’s initial denial that she touched the
appellant at all and the appellant’s own view of the touching, given the greater
context of constant harassment. Id. at 33-35. Again, we are not persuaded. The
appellant is essentially asking that we overturn the administrative judge’s
well-reasoned credibility findings concerning the nature of the touching and
whether it was benign, as third -party witnesses described, or something more
serious, as the appellant claims. We find no reason to do so.
Disclosure 31
¶46In Disclosure 31, from April 2016, the appellant disclosed that the agency
was covering up her reports of harassment and workplace violence by influencing
witnesses to the alleged battery by the DCRD Chief. IAF, Tab 12 at 32-34; see
IAF, Tab 57 at 45. The administrative judge found that Disclosure 31 was not22
protected. ID at 74-76. Among other things, she found that the third -party
witness with whom the appellant alleged the DCRD Chief tampered credibly
denied any improper discussions. ID at 75. She found no other credible evidence
to support the appellant’s claim. Id.
¶47On review, the appellant again argues that the administrative judge failed to
adequately consider whether she had a reasonable belief about her disclosure.
PFR File, Tab 5 at 36. We disagree. The administrative judge explicitly relied
on the proper standard; she determined not whether the appellant proved the
alleged wrongdoing, but whether she had a reasonable belief that she was
disclosing the type of wrongdoing protected under the whistleblower statute. ID
at 76. The appellant also suggests, again, that we should overturn the
administrative judge’s well-reasoned credibility findings, this time regarding the
third-party witness and her interactions with the DCRD Chief after the alleged
battery. PFR File, Tab 5 at 36-37. Yet we find no basis for doing so.
Disclosure 32
¶48In Disclosure 32, emails from May 2016, the appellant alleged that the
agency had been ignoring and covering up her reports of harassment and
workplace violence for years, was encouraging “mobbing” behavior from her
coworkers, and was denying her opportunities in retaliation for her reports of
these matters. IAF, Tab 27 at 302-03; see IAF, Tab 57 at 46. The administrative
judge found that Disclosure 32 was not protected. ID at 76-79. Among other
things, she recognized that the agency conducted investigations in concert with
each of the appellant’s allegations of battery or attempted battery, and found that
the appellant lacked any reasonable basis for concluding that the agency had
instead ignored the matters or covered them up. ID at 76-77. The administrative
judge further found no merit to the appellant’s allegations that the agency was
encouraging her coworkers to gang up on her, creating a hostile work
environment, or denying her opportunities. ID at 78-79.23
¶49On review, the appellant reasserts that she had a reasonable belief that the
agency was covering up her prior reports of harassment and workplace violence,
PFR File, Tab 5 at 37-38, but she fails to identify any persuasive evidence that
would warrant reversing the administrative judge’s findings to the contrary. The
appellant also argues that she had a reasonable belief that the agency was
violating a specific provision of its workplace violence policy, indicating that
management is responsible for investigating acts of violence in a timely manner
and providing feedback to employees regarding the outcome of their reports
regarding violent or potentially violent incidents. Id. at 37; see IAF, Tab 27
at 303. However, it appears that the appellant did not advance this theory of her
disclosure below. IAF, Tab 57 at 46, Tab 68 at 44. And while the appellant’s
petition for review contains a link to the workplace violence policy provision she
now relies on, she has not identified, nor have we come across, that provision in
the voluminous record below. E.g., IAF, Tab 12 at 54-55. Accordingly, we will
not consider this argument and evidence any further. See Banks v. Department of
the Air Force, 4 M.S.P.R. 268, 271 (1980) (explaining that the Board will not
consider an argument raised for the first time in a petition for review absent a
showing that it is based on new and material evidence not previously available
despite the party’s due diligence); Avansino v. U.S. Postal Service , 3 M.S.P.R.
211, 214 (1980) (under 5 C.F.R. § 1201.115, the Board will not consider evidence
submitted for the first time with the petition for review absent a showing that it
was unavailable before the record was closed despite the party’s due diligence);
see also Weaver v. Department of the Navy , 2 M.S.P.R. 129, 133 (1980) (before
the Board will undertake a complete review of the record, the petitioning party
must explain why the challenged factual determination is incorrect, and identify
the specific evidence in the record which demonstrates the error), review denied
per curiam, 669 F.2d 613 (9th Cir. 1982).24
The administrative judge correctly determined that the appellant met her burden
of proof for Disclosures 2-4, 6, 15-18, 22, and 27.
¶50As mentioned before, the administrative judge found that the appellant met
her burden of proving that Disclosures 2-4, 6, 15-18, 22, and 27 were protected.
ID at 17-79, 88. Nevertheless, the appellant disputes the administrative judge’s
findings for some. PFR File, Tab 5 at 12-38. We will briefly discuss each of the
disclosures the administrative judge found protected, while addressing any
remaining arguments the appellant has presented.
Disclosure 2—performance rating contrary to agency regulations
¶51In Disclosure 2, a conversation from October 2011, the appellant reportedly
disclosed that the agency improperly rated her as “meets expectations” in a
category for which she was not assigned sufficient work to warrant any rating at
all. IAF, Tab 57 at 15; see IAF, Tab 27 at 197. The administrative judge found
that Disclosure 2 was protected because it revealed a violation of agency
regulations about how to treat a rating category when insufficient work was
assigned. ID at 21-23. She did not, however, agree with the appellant’s argument
that Disclosure 2 also evidenced an abuse of discretion or violation of the
prohibition against arbitrary action and favoritism set forth in 5 U.S.C.
§ 2301(b)(8)(A). ID at 23. In short, while the appellant suggested that the ORI
Director had acted intentionally, with animus, the administrative judge found it
more likely that the agency had inadvertently violated the agency regulation. Id.
¶52Even though the administrative judge found this disclosure protected, the
appellant’s petition contains an argument, disagreeing with the administrative
judge’s analysis. The appellant reasserts that Disclosure 2 revealed an abuse of
authority and violation of law. PFR File, Tab 5 at 16. Because the administrative
judge properly identified this disclosure as protected, the appellant’s
disagreement as to its characterization does not provide a basis for granting
review. See Hoback v. Department of the Treasury , 86 M.S.P.R. 425, ¶ 11 (2000)
(explaining that appellants need not correctly label the category of wrongdoing25
for their disclosure to be protected); Panter v. Department of the Air Force ,
22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision).
Disclosure 3—inappropriate work requirement
¶53In Disclosure 3, an August 2012 email, the appellant alleged that the DCRD
Chief threatened to require that she, but not her colleagues, produce an advisory
opinion every month. IAF, Tab 59 at 51; see IAF, Tab 57 at 16. The
administrative judge found that this disclosure was protected because the
appellant had a reasonable belief that the DCRD Chief was abusing her authority.
ID at 23-25.
Disclosure 4—attempted battery by coworker
¶54In Disclosure 4, a conversation from August 2012, memorialized in an email
the next day, the appellant disclosed that a coworker had attempted to commit a
battery upon her in the hallway. IAF, Tab 57 at 17; see IAF, Tab 27 at 204.
More specifically, the appellant alleged that she and a coworker crossed paths in
the office, the coworker attempted to make physical contact with the appellant,
and the appellant had to move her arm to try and avoid the contact, yet the
coworker’s sweater did brush up against the appellant’s arm. IAF, Tab 27 at 204.
The administrative judge found that the appellant had a reasonable belief that the
coworker had attempted to commit a battery or intimidate the appellant, so this
disclosure was protected. ID at 25-27.
Disclosure 6—re-disclosing a prior disclosure
¶55In Disclosure 6, a December 2012 email, the appellant discussed her
performance and performance ratings. IAF, Tab 27 at 207-08; see IAF, Tab 57
at 19. Because one of the assertions in this email mirrored that of Disclosure 2,
which was protected, the administrative judge found that Disclosure 6 was
similarly protected. ID at 28-29.26
Disclosures 15-18—re-disclosing prior disclosures
¶56While the appellant made most of her prior disclosures to the ORI Director
and the DCRD Chief, she turned to different agency officials to make
Disclosures 15-18, which largely consisted of re-disclosing matters previously
disclosed to others. IAF, Tab 57 at 28-29, 31, 33. The administrative judge did
not agree with all of the appellant’s arguments concerning these disclosures, but
the administrative judge did find that they were protected because the scope of
these disclosures included disclosures that she had already deemed protected.
More specifically, she found that Disclosures 15, 17, and 18 were protected
because they re -disclosed Disclosures 2-4, while Disclosure 16 was protected
because it re-disclosed Disclosure 2. ID at 52-58, 88.
¶57On review, the appellant alleges that the administrative judge
mischaracterized the scope of Disclosure 16 as something less than that which
was included in Disclosure 15. PFR File, Tab 5 at 27-28. However,
Disclosures 15 and 16 had different recipients, and the administrative judge’s
description of Disclosure 16 was based on the testimony of the only parties to the
associated conversation—the appellant and a Deputy Assistant Secretary. ID
at 53-54. While the appellant cites to the testimony of an individual that received
Disclosure 15, she has failed to show its relevance in determining the content of
Disclosure 16. PFR File, Tab 5 at 27-28.
¶58The appellant also alleges that the administrative judge erred in her analysis
of Disclosure 18. PFR File, Tab 5 at 29. Again, the administrative judge found
that this disclosure was protected because it included the same matters as
Disclosures 2-4. ID at 56-58. However, the appellant argued that Disclosure 18
was also protected because it revealed that a proposed settlement agreement
between the agency and the appellant’s union would have required that she attend
Employee Assistance Program (EAP) counseling, and the appellant believed that
provision was both illegal and retaliatory. IAF, Tab 57 at 33; see IAF, Tab 13
at 59-60, Tab 27 at 84, 86. The administrative judge found nothing improper27
about the proposed settlement provision and further found that the appellant
failed to prove that a disinterested observer would reasonably believe that this
reflected a violation of law or other protected category of wrongdoing. ID
at 56-58. While the appellant disagrees with that assessment and argues that the
administrative judge did not adequately focus on whether she had a reasonable
belief, PFR File, Tab 5 at 29, we find her arguments unavailing and unpersuasive.
Disclosure 22—plan to file an OSC complaint
¶59In Disclosure 22, a December 2015 email, the appellant stated that she
planned to file a complaint with OSC for harassment and the failure to remedy
that harassment. IAF, Tab 60 at 49; see IAF, Tab 57 at 39. The administrative
judge found that Disclosure 22 was protected because it revealed her intent to
engage in protected activity under section 2302(b)(9)(A)(i). ID at 64-65. We
observe that this activity also expresses an intent to cooperate with or disclose
information to OSC, which is activity protected under 5 U.S.C. § 2302(b)(9)(C).
The appellant’s disclosure created the perception that she intended to engage in
protected activity. The perception that an employee engaged in protected activity
under section 2302(b)(9)(C) may form the basis of an IRA appeal. Corthell v.
Department of Homeland Security , 123 M.S.P.R. 417, ¶ 12 (2016), overruled on
other grounds by Requena v. Department of Homeland Security , 2022 MSPB 39.
Disclosure 27—ignored workplace violence
¶60In Disclosure 27, a February 2016 email, the appellant alleged that although
she made repeated reports of workplace violence, those reports were still being
ignored. IAF, Tab 11 at 87-88; see IAF, Tab 57 at 42-43. The administrative
judge found that Disclosure 27 was protected because it included a re-disclosure
of Disclosure 4. ID at 68, 88. On review, the appellant simply asserts that this
disclosure is “protected for the same reasons described above,” apparently
alluding to some of the arguments she made for earlier disclosures. PFR File,28
Tab 5 at 32. We find no basis for disturbing the administrative judge’s
conclusion that Disclosure 27 is protected because it re-disclosed Disclosure 4.
The administrative judge correctly identified the personnel actions at issue.
¶61As previously stated, the administrative judge found that the appellant was
subject to four relevant personnel actions—her FY 14 performance appraisal, the
denial of transfer requests between August 2012 and November 2014, a
significant change in working conditions in or around February 2016 when she
was placed under the supervision of a different agency official, and a
February 2016 letter of reprimand—but no others. ID at 80-86, 88. On review,
the appellant reasserts that she was subject to additional personnel actions. PFR
File, Tab 5 at 35-48. We are not persuaded.
Cursory narratives in FY 14 performance appraisal
¶62The appellant first argues that the agency provided cursory rather than
substantive narratives within her FY 14 performance appraisal, and that amounted
to a separate personnel action. PFR File, Tab 5 at 35-36; see IAF, Tab 14
at 27-37, 60-61. But again, the administrative judge found that the performance
appraisal itself was a personnel action cognizable in this appeal. ID at 80-81.
The appellant has failed to identify anything to support her argument that the
level of detail in the performance appraisal narratives constitutes a separate
personnel action within the meaning of the whistleblower statute. See 5 U.S.C.
§ 2302(a)(2)(A)(viii) (defining “personnel action” as including, inter alia, a
performance evaluation).
Threats of counseling
¶63The appellant next argues that the agency twice threatened counseling or
EAP referrals, and those threats constitute personnel actions. PFR File, Tab 5
at 39. The first purported threat occurred during a conversation with the DCRD
Chief when, according to the appellant, the DCRD Chief indicated that she was
going to send the appellant to counseling. E.g., IAF, Tab 13 at 62. What the29
appellant characterizes as the second threat was the provision of a grievance
settlement agreement of the appellant’s FY 14 performance appraisal. Id. at 59.
As we previously discussed with Disclosure 18, this provision would have
required that she undergo a certain number of EAP sessions. Id.
¶64The administrative judge considered the arguments but found that the
appellant failed to prove by preponderant evidence that the agency’s actions
amounted to threats of a personnel action. ID at 81-83 (referencing 5 U.S.C.
§ 2302(a)(2)(A)(x) (defining “personnel action” as including “a decision to order
psychiatric testing or examination”)). She explained that the appellant’s own
testimony and her email messages about the DCRD Chief’s reference to
counseling was somewhat inconsistent and gave no indication that the DCRD
Chief was actually threatening to order the appellant to undergo psychiatric
testing or examination. ID at 82. The administrative judge further explained that
the agency’s subsequent proposal for EAP counseling stemmed from what they
perceived as emotional distress from the appellant, but that cannot be equated
with a decision to order psychiatric testing or examination, and there was no
credible evidence that agency officials threatened the appellant with psychiatric
testing or examination during the period at issue. ID at 82-83. While we
recognize the appellant’s disagreement and assertion that we should adopt a
broader interpretation of “personnel action,” we find no basis for disturbing the
administrative judge’s conclusion, which is grounded in explicit and implicit fact
findings and credibility determinations about the motivations of agency officials.
Cf. Agoranos v. Department of Justice , 119 M.S.P.R. 498, ¶¶ 34-35 (2013)
(finding that an offer or recommendation to undergo a psychiatric examination is
an implicit order within the scope of section 2302(a)(2)(A)(x) when accompanied
by a threat of repercussions if declined).
April 2015 denied transfer request
¶65The next personnel action reasserted by the appellant is an alleged denial of
an additional transfer request in April 2015, after the ones recognized by the30
administrative judge. PFR File, Tab 5 at 39-40. The administrative judge found
no credible evidence that the appellant requested a transfer from the ORI Director
or the Deputy Assistant Secretary in April 2015. ID at 83. On review, the
appellant has directed us to April 2015 emails showing that two other agency
officials—the Office of Program Planning Evaluation Management (OPPEM)
Director and a Human Resources official—discussed the possibility of a transfer
at that time, but the OPPEM Director determined that no transfer was available.
See IAF, Tab 62 at 66-68. However, even if this did constitute an additional
personnel action, we found nothing that would satisfy the remainder of the
appellant’s burden, i.e., that her protected disclosures were a contributing factor
in the April 2015 transfer denial. She has not, for example, directed us to specific
evidence showing that the OPPEM Director had actual or constructive knowledge
of the appellant’s protected disclosures when he denied the transfer request.11 See
Weaver, 2 M.S.P.R. at 133.
Hostile work environment
¶66The appellant’s final alleged personnel action reasserted on review is what
she characterizes as a significant change in working conditions in the form of the
DCRD Chief and the ORI Director creating a hostile work environment from
2014 to 2016. PFR File, Tab 5 at 40-48; see, e.g., IAF, Tab 68 at 44-48. The
administrative judge found that the appellant failed to prove that she was subject
to a “significant change in working conditions” in this regard. ID at 85-86. In
short, she found that the appellant’s allegations were largely unsubstantiated and
lacking in the frequency and severity necessary to constitute a hostile work
environment. Id.
11 We recognize that other individuals, including the ORI Director and the DCRD Chief,
who knew of the appellant’s prior protected activity, were ultimately included in the
email chain discussing this transfer. However, the evidence the appellant directed us to
suggests they were only included after the OPPEM Director determined that no transfer
was available. IAF, Tab 62 at 66-68. 31
¶67On review, the appellant asserts that the administrative judge improperly
applied Title VII hostile work environment standards. PFR File, Tab 5 at 42. In
fact, the administrative judge did reference Title VII hostile work environment
standards when discussing whether the appellant’s disclosures of a hostile work
environment were protected, e.g., ID at 31, but her discussions of whether
the appellant was subject to a “personnel action” in the form of a
hostile work environment cited no standard other than the language of
section 2302(a)(2)(A)(xii), ID at 85-86.
¶68Under the Whistleblower Protection Act (WPA), including as amended by
the Whistleblower Protection Enforcement Act of 2012, “personnel action” is
defined as including a “significant change in duties, responsibilities, or working
conditions.” 5 U.S.C. § 2302(a)(2)(A)(xii); Skarada v. Department of Veterans
Affairs, 2022 MSPB 17, ¶ 14. We recently clarified that, while the term “hostile
work environment” has a particular meaning in other contexts, allegations of a
hostile work environment may establish a personnel action under the WPA only if
they meet the statutory criteria, i.e., constitute a significant change in duties,
responsibilities, or working conditions. Id., ¶ 16. We further explained that
although a “significant change” in working conditions should be interpreted
broadly to include harassment and discrimination that could have a chilling effect
on whistleblowing or otherwise undermine the merit system, only agency actions
that, individually or collectively, have practical and significant effects on the
overall nature and quality of an employee’s working conditions, duties, or
responsibilities will be found to constitute a personnel action covered by
section 2302(a)(2)(A)(xii). Id.
¶69The initial decision in the instant appeal preceded our decision in Skarada.
We therefore modify the initial decision to incorporate the aforementioned
standard. However, as further detailed below, we find no basis for disturbing the
administrative judge’s findings. 32
¶70The appellant argues that the administrative judge failed to recognize or
appreciate the abuse she suffered during the relevant period when considering
whether the appellant was subject to this alleged personnel action. PFR File,
Tab 5 at 40-48. However, her arguments largely reflect disagreement with the
administrative judge’s findings, which are grounded in well-reasoned credibility
determinations. For example, the appellant once again refers to the alleged
battery by the DCRD Chief to support her claim that she was subject to a
cognizable personnel action, but the administrative judge found that there was no
such battery. Compare id. at 40-41, with ID at 69-73. The appellant also refers
to cover-ups that followed whenever she filed a complaint of violence, PFR File,
Tab 5 at 45-47, but the administrative judge found that the agency conducted
investigations after each complaint and the appellant’s cover-up allegations were
unsupported, e.g., ID at 38, 51, 75, 77. The appellant’s other allegations, such as
ones of “mobbing” behavior, fare no better. Compare PFR File, Tab 5 at 43-44,
with ID at 38, 76, 78-79.
¶71The appellant also argues that the administrative judge failed to
acknowledge pertinent evidence, such as evidence that reflected a consciousness
of guilt on the parts of the DCRD Chief and the ORI Director, along with
testimonial evidence from the appellant herself. PFR File, Tab 5 at 41-43. But
we discern no meaningful omission in the administrative judge’s extensive
analysis. The record included thousands of pages of evidence and 7 days of
hearing testimony. As we previously noted, an administrative judge’s failure to
mention all of the evidence does not mean that she did not consider it in reaching
her decision. Mithen, 122 M.S.P.R. 489, ¶ 14.
¶72Next, the appellant suggests that the administrative judge exhibited bias by
blaming the appellant for the agency’s harassment and filling the decision with
gratuitous and unsupported attacks on the appellant’s character without ever
mentioning evidence of her positive attributes and work contributions. PFR File,
Tab 5 at 41 n.11. But we find no evidence of bias. See Bieber v. Department of33
the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (recognizing that an
administrative judge’s conduct during the course of a Board proceeding warrants
a new adjudication only if the administrative judge’s comments or actions
evidence “a deep-seated favoritism or antagonism that would make fair judgment
impossible” (quoting Liteky v. United States , 510 U.S. 540, 555 (1994))). We
instead find that the administrative judge properly analyzed the relevant issues,
which necessarily required discussions of the appellant’s behavior, particularly in
response to supervision. E.g., ID at 41-44. In fact, one of the gratuitous attacks
the appellant cites is actually the administrative judge’s mere recounting of the
appellant’s own allegations. Compare PFR File, Tab 5 at 41 n.11 (alleging that
the administrative judge described the appellant as, inter alia, “unproductive”),
with ID at 3, 23, 82 (recounting the appellant’s allegations that the DCRD Chief
accused the appellant of being unproductive).
¶73Based on the aforementioned standard from Skarada, and the administrative
judge’s findings of fact, with which we agree, we conclude that the appellant
failed to prove that she was subjected to a personnel action in the form of
harassment or a hostile work environment between 2014 and 2016.
The administrative judge correctly analyzed the contributing factor criterion.
¶74We now turn to the final element of the appellant’s burden: proving that
her protected disclosures—Disclosures 2-4, 6, 15-18, 22, and 27—were a
contributing factor in the cognizable personnel actions. To prove that a
disclosure was a contributing factor in a personnel action, the appellant need only
demonstrate that the fact of, or the content of, the protected disclosure was one of
the factors that tended to affect the personnel action in any way. Mastrullo v.
Department of Labor , 123 M.S.P.R. 110, ¶ 18 (2015). An appellant may meet
this burden through circumstantial evidence, such as 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 conclude34
that the disclosure was a contributing factor in the personnel action, i.e., the
knowledge/timing test. Id.; see 5 U.S.C. § 1221(e)(1).
¶75For the first personnel action, the appellant’s FY 14 performance appraisal,
the administrative judge found that the appellant proved that Disclosures 15, 17,
and 18 were contributing factors. ID at 89. For the second personnel action, the
denial of transfer requests, the administrative judge found that the appellant
proved that Disclosures 3-4, and 6 were contributing factors for those requests
that occurred between August 2012 and November 2014, while Disclosure 16 was
a contributing factor for just the November 2014 transfer request. Id. For the
third personnel action, a significant change in working conditions by being placed
under the supervision of a different agency official in or around February 2016,
the administrative judge found that the appellant proved that Disclosures 15, 17,
18, and 22 were contributing factors. Id. at 89-90. For each of these, the
administrative judge found that the appellant satisfied the knowledge/timing test.
¶76For the fourth and final personnel action, a February 2016 letter of
reprimand, the administrative judge found that the DCRD Chief issued the
reprimand, but she only knew of the protected disclosures that occurred more than
3 years earlier, such that the knowledge/timing test was not satisfied. Id. at 90.
Nevertheless, the administrative judge further found that the appellant proved the
contributing factor criterion because other agency officials who were directly
involved in the reprimand knew of more recent protected disclosures that did
satisfy the knowledge/timing test. Id. Although she did not explicitly identify
those more recent disclosures, the administrative judge appeared to be referencing
Disclosures 15 through 18 and 22.
¶77On review, the appellant asserts that “[i]t is absurd” for the administrative
judge to conclude that the DCRD Chief had no knowledge of the appellant’s
disclosures because the ORI Director forwarded all of the appellant’s complaints
to the DCRD Chief. PFR File, Tab 5 at 48. But in doing so, the appellant has35
neither identified to which disclosures she is referring, nor cited any evidence of
record.
¶78The appellant also suggests that the administrative judge considered the
knowledge/timing test but failed to consider whether there was other
circumstantial evidence that could satisfy the contributing factor criterion. PFR
File, Tab 5 at 48. She then summarily states that she set forth contributing factor
outlines in her submissions. Id. (citing IAF, Tab 1 at 38-59, Tab 57 at 47-56).
Yet the materials cited repeatedly refer to the knowledge/timing test, without any
substantive argument that the contributing factor criterion is met through other
means. See, e.g., IAF, Tab 1 at 39, 47, 54, Tab 57 at 53-54. Accordingly, we
find no reason to reach a conclusion different than the administrative judge.
The agency met its burden of proving that it would have taken the same actions in
the absence of the appellant’s protected disclosures.
¶79Because the appellant met her burden of proving that some of her protected
disclosures were contributing factors in personnel actions, we now turn to the
question of whether the agency proved, by clear and convincing evidence, that it
would have taken the same personnel actions in the absence of the protected
disclosures. 5 U.S.C. § 1221(e)(1)-(2); Salerno, 123 M.S.P.R. 230, ¶ 5.
¶80In determining whether the agency has shown by clear and convincing
evidence that it would have taken the same personnel action in the absence of
protected activity, the Board generally will consider the following factors:
(1) the strength of the agency’s evidence in support of its action; (2) the existence
and strength of any motive to retaliate on the part of the agency’s officials who
were involved in the decision; and (3) any evidence that the agency takes similar
actions against employees who did not engage in protected activity but who are
otherwise similarly situated. See Carr v. Social Security Administration ,
185 F.3d 1318, 1323 (Fed. Cir. 1999). The Board must consider all pertinent
record evidence in making this determination. Whitmore, 680 F.3d at 1368. The
Board does not view these factors as discrete elements, each of which the agency36
must prove by clear and convincing evidence. Phillips v. Department of
Transportation, 113 M.S.P.R. 73, ¶ 11 (2010). Rather, the Board will weigh the
factors together to determine if the evidence is clear and convincing as a whole.
Id.
¶81The administrative judge conducted an extensive analysis of the first Carr
factor, finding that the agency’s evidence in support of each of its personnel
actions was strong. ID at 91-95. For the second Carr factor, she found that the
agency did not possess a particularly strong motive to retaliate. ID at 95-96. And
for the third Carr factor, the administrative judge concluded that the agency
failed to present any comparator evidence, which weighed slightly against the
agency. ID at 96. The administrative judge considered the individual the
appellant identified as a potential comparator concerning the denied transfer
requests but found that her situation was distinguishable. Id. Weighing these
factors together, the administrative judge concluded that the agency met its
burden. ID at 97. On review, the appellant asserts that the administrative judge
grossly abused her discretion in reaching these findings, reflecting the
administrative judge’s disdain for employees. PFR File, Tab 5 at 48-61. We
disagree.
¶82We need not address many of the appellant’s arguments about the strength
of the agency’s evidence as to personnel actions for which she failed to meet her
burden. For example, the appellant argues that the agency did not meet its burden
regarding her April 2015 transfer request; a significant change in working
conditions by way of harassment and hostility; along with the Fiscal Year 2005
and 2011 to 2013 performance appraisals. PFR File, Tab 5 at 52-53, 55-57,
60-61. The agency had no burden of proof for those matters because the
appellant failed to present a prima facie case of whistleblower reprisal for the
same. See Clarke v. Department of Veterans Affairs , 121 M.S.P.R. 154, ¶ 19 n.10
(2014) (recognizing that the Board may not proceed to the clear and convincing
test unless it has first made a finding that the appellant established his prima facie37
case, i.e., that he made a protected disclosure that was a contributing factor in a
personnel action), aff’d per curiam , 623 F. App’x 1016 (Fed. Cir. 2015).12
¶83The appellant’s remaining arguments about the agency’s burden are
unavailing because they generally reflect disagreement with the administrative
judge’s findings of fact that are grounded in credibility determinations or they
erroneously fault the administrative judge for not discussing every piece of
evidence or theory. For example, in response to the administrative judge
determining that relevant officials did not feel particularly threatened by the
appellant’s allegations—a finding implicitly rooted in credibility determinations
—the appellant claims there was no evidence of the same. PFR File, Tab 5 at 49
(referencing ID at 95-96). On that same point, the second Carr factor, the
appellant also suggests that the administrative judge should have considered how
the effort expended on investigations into the appellant’s complaints may have
created a motive to retaliate against her. PFR File, Tab 5 at 50. But again, the
appellant has failed to present any persuasive basis for us to disturb the
administrative judge’s well-reasoned credibility findings, and the administrative
judge’s failure to mention every piece of evidence in the voluminous record or
every alternative theory the appellant has for the agency’s actions does not mean
12 The U.S. Court of Appeals for the Seventh Circuit has disagreed with the Board’s
decision in Clarke. Delgado v. Merit Systems Protection Board , 880 F.3d 913, 924-25
(7th Cir. 2018). However, the court’s disagreement was on other grounds and does not
implicate the holding at issue here. Id.38
that the administrative judge failed to consider them.13 See Mithen, 122 M.S.P.R.
489, ¶ 14.
¶84We are mindful of the requirement that the Board evaluate all of the
pertinent evidence in determining whether an agency has met its clear and
convincing burden. Campbell v. Department of the Army , 123 M.S.P.R. 674, ¶ 22
(2016). Here, the administrative judge’s thorough initial decision reflects that
she did so. See id., ¶¶ 14, 22-23 (finding that an administrative judge’s thorough
initial decision showed that she closely listened to the testimony of witnesses on
both sides, including those who bolstered the appellant’s claim of whistleblower
reprisal, despite the administrative judge’s failure to make explicit findings on all
the Carr factors).
¶85In conclusion, we agree with the administrative judge that the appellant met
her burden regarding some disclosures and personnel actions, but the agency met
its burden as well, such that corrective action is not warranted.
13 To the extent the administrative judge failed to specifically address any professional
or institutional motive to retaliate, we find that she made implicit credibility-based
findings that such motive was not strong. See, e.g., Soto v. Department of Veterans
Affairs, 2022 MSPB 6, ¶¶ 14-15 (recognizing that the Board should avoid an overly
restrictive analysis of the motive to retaliate and should consider whether officials
possessed a professional retaliatory motive due to disclosures implicating agency
officials and employees in general); Smith v. Department of the Army , 2022 MSPB 4,
¶¶ 28-29 (2022) (recognizing that the Board should avoid an overly restrictive analysis
of the motive to retaliate and finding that an appellant's disclosures reflected poorly on
agency officials as representatives of the agency’s general institutional interests, even
though they were not personally implicated by the disclosures). Among other things,
the administrative judge ultimately concluded that the appellant’s disclosures were
“almost entirely focused on her own experiences working under” the DCRD Chief and
the ORI Director, that they did not feel “particularly threatened” by her allegations, and
that other agency officials made “good faith efforts to resolve her complaints.” E.g., ID
at 95-96. These stated facts and the administrative judge’s well-reasoned decision
reflect little professional or institutional motive to retaliate against the appellant.39
NOTICE OF APPEAL RIGHTS14
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
14 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.40
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any41
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s42
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.15 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
15 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 43
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.44 | Kuhlmann_Kerri_S_DC-1221-17-0437-R-1_Final_Order.pdf | 2024-06-20 | KERRI S. KUHLMANN v. DEPARTMENT OF LABOR, MSPB Docket No. DC-1221-17-0437-R-1, June 20, 2024 | DC-1221-17-0437-R-1 | NP |
1,196 | https://www.mspb.gov/decisions/nonprecedential/Byrd_Lin_M_SF-1221-20-0221-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LIN M. BYRD,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
SF-1221-20-0221-W-1
DATE: June 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lin M. Byrd , Lompoc, California, pro se.
Kathryn Price , El Segundo, California, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal as untimely filed. On
petition for review, the appellant reiterates her argument from below that her
mental illness should warrant the application of equitable tolling to suspend the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
statutory filing deadline. Petition for Review (PFR) File, Tab 1 at 4-6.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
supplement the initial decision to provide further analysis on whether the
appellant’s mental illness is a basis for the equitable tolling of the statutory filing
deadline, we AFFIRM the initial decision.
The administrative judge correctly found that the IRA appeal was untimely
filed by 2 days. Initial Appeal File (IAF), Tab 10, Initial Decision (ID) at 5; see
5 U.S.C. § 1214(a)(3)(A); 5 C.F.R. § 1209.5(a). He correctly explained that,
generally, equitable tolling may be applied to suspend the filing period for
equitable reasons, such as when an appellant has been induced or tricked by her
adversary’s misconduct into allowing the deadline to pass, or when she filed a
defective pleading during the statutory period. ID at 5 (citing Irwin
v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990)); see Heimberger
v. Department of Commerce, 121 M.S.P.R. 10, ¶ 10 (2014). We agree with the
administrative judge’s conclusion that the appellant’s assertions concerning her
mental illness and related symptoms do not meet either of those circumstances.
ID at 5-6. 2
However, our reviewing court has stated that equitable tolling “is available
in a variety of circumstances, including when a party has been mentally
incapacitated.” Barrett v. Principi, 363 F.3d 1316, 1318 (Fed. Cir. 2004). In
Barrett, the court considered whether the filing deadline for an appeal of a final
decision by the Board of Veterans’ Appeals could be equitably tolled based on a
claim of mental illness. Id. at 1317-21. It answered that question in the
affirmative and concluded that, to obtain the benefit of equitable tolling based on
a claim of mental illness, an appellant must show that the failure to timely file
was the “direct result of a mental illness that rendered him incapable of ‘rational
thought or deliberate decision making,’ [] or ‘incapable of handling [his] own
affairs or unable to function [in] society.’” Id. at 1321 (internal citations
omitted). The court further stated that “a medical diagnosis alone or vague
assertions of mental problems will not suffice.” Id.
To the extent the deadline for filing an IRA appeal, as set forth in 5 U.S.C.
§ 1214(a)(3)(A) and 5 C.F.R. § 1209.5(a)(1), may be similarly equitably tolled
based specifically on a claim of mental illness, we find that the appellant has
failed to make the necessary showing under Barrett to apply the doctrine here.
Although the appellant submitted into the record a letter from her treating
physician stating that she suffers from bipolar disorder, severe anxiety, and panic
attacks, which, he claims, “impair[ed] her ability to complete the appeal in a
timely manner,” the letter did not explain how such an impairment manifested.
IAF, Tab 4 at 8. For example, the letter did not state that the appellant
experienced a panic or anxiety attack on a specific date or dates within the
timeframe during which the appellant was required to file her appeal, nor did it
explain what specific symptoms the appellant exhibited and when, or how those3
specific symptoms kept the appellant from filing within the required time frame.2
Id.
Further, the appellant’s own statements belie her claim that her mental
illness prevented her from filing her appeal on time. As noted by the
administrative judge, the appellant referred to herself as a “mature person” who
could work in her position as a Contracting Specialist. ID at 5; IAF, Tab 1 at 19.
Moreover, the appellant claimed that she was “shocked to read” that her appeal
was untimely filed by 2 days because she “had counted the days” when she first
received the notice and “thought [the appeal] was due [January] 28th.” IAF,
Tab 4 at 4. Although she claims that extreme stress may have caused her to
“remember incorrectly,” she nonetheless admits that her late filing was due to an
error in calculation. Id. Based on the foregoing, we supplement the initial
decision to find that the appellant failed to show that her failure to timely file her
appeal was the direct result of a mental illness that rendered her incapable of
rational thought or deliberate decision making, or incapable of handling her own
affairs or unable to function in society. See Barrett, 363 F.3d at 1318.
Accordingly, we agree with the administrative judge’s ultimate conclusion that
the appellant has failed to prove that the statutory filing deadline should be
equitably tolled in this case, and we affirm his dismissal of this case as untimely
filed.
2 The note from the appellant’s physician is particularly brief—less than 100 words long
—and does not include any supporting medical evidence such as clinical notes or test
results. IAF, Tab 4 at 8. The note also does not indicate when the physician last saw
the appellant or if that visit was during or around the time of the filing period at issue
here, nor does it state what the appellant’s specific medical state was at the time of her
most recent visit. Id.4
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s7
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. 9 | Byrd_Lin_M_SF-1221-20-0221-W-1__Final_Order.pdf | 2024-06-20 | LIN M. BYRD v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. SF-1221-20-0221-W-1, June 20, 2024 | SF-1221-20-0221-W-1 | NP |
1,197 | https://www.mspb.gov/decisions/nonprecedential/Wright_Leonard_G_DC-0752-20-0100-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEONARD GREGORY WRIGHT,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-0752-20-0100-I-1
DATE: June 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Leonard Gregory Wright , Aldie, Virginia, pro se.
Gary L. Levine , Esquire, Arlington Heights, Illinois, for the agency.
Timothy D. Johnson , Esquire, Fort McCoy, Wisconsin, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal based on nine specifications of a single charge of
inappropriate behavior. On petition for review, the appellant challenges the
administrative judge’s factual findings, which are largely based on her credibility
1A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
determinations, by asserting that some of his alleged behavior never occurred or
was taken out of context. Petition for Review (PFR) File, Tab 1 at 6-14. He also
argues, for the first time on review, that two of the agency’s witnesses made their
initial allegations against him in reprisal—one for having been criticized by the
appellant about the performance of a work-related duty and the other for being
counseled by an agency official after calling the appellant a profane name. Id.
at 4-5, 8, 10, 17. He also asserts that the penalty of removal was unreasonable.
Id. at 14-16. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b).
2 As noted, the appellant did not raise his claim of reprisal below. IAF, Tab 1.
Generally, the Board will not consider an argument raised for the first time on review
absent a showing of new and material evidence not previously available despite the
party’s due diligence. See Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6
(2016). On review, the appellant has not explained why he was unable to raise this
claim below. PFR File, Tab 1. Accordingly, we have not considered it in our review of
the administrative judge’s assessment of witness credibility or of her factual
determinations. 2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board 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.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
7 | Wright_Leonard_G_DC-0752-20-0100-I-1__Final_Order.pdf | 2024-06-20 | LEONARD GREGORY WRIGHT v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-0752-20-0100-I-1, June 20, 2024 | DC-0752-20-0100-I-1 | NP |
1,198 | https://www.mspb.gov/decisions/nonprecedential/Muchow_Beverly_A_SF-0752-20-0326-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BEVERLY A. MUCHOW,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-0752-20-0326-I-1
DATE: June 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Beverly A. Muchow , Oxnard, California, pro se.
Andre Long , Esquire, Point Mugu, California, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary retirement appeal for lack of jurisdiction. On petition
for review, the appellant does not directly challenge the administrative judge’s
findings, and instead merely restates many of the allegations contained in her
Equal Employment Opportunity (EEO) complaint, alleging that management is
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
“dirty” and that she felt that retirement was her only option. Petition for Review
(PFR) File, Tab 1 at 1. She also argues that she merely inquired about the
prospect of retiring and the administrative judge unfairly held that fact against
her. Id.; PFR File, Tab 2 at 1. She notes that when she sent the emails inquiring
about retiring, she was still debating when the best date was to retire, but she felt
compelled to retire based on the hostile work environment the managers created
by denying her a promotion and training opportunities, and by discriminating
against her based on her age, sex, and physical limitations. PFR File, Tab 1
at 1-2; Tab 2 at 1. She also suggests that if she hadn’t been forced out, she would
have continued to work through the GS-12 level. PFR File, Tab 1 at 2; Tab 2
at 1. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
We agree with the administrative judge’s findings and see no reason to
disturb them on review. As the administrative judge noted, dissatisfaction with
work assignments, a feeling of being unfairly criticized, and difficult or
unpleasant working conditions are generally not so intolerable as to compel a
reasonable person to retire. Initial Appeal File (IAF), Tab 9, Initial Decision (ID)
at 5; see Terban v. Department of Energy , 216 F.3d 1021, 1025-26 (Fed. Cir.
2000); Brown v. U.S. Postal Service , 115 M.S.P.R. 609, ¶ 15 (2011) (stating that2
an employee is not guaranteed a stress-free work environment), aff’d per curiam ,
469 F. App’x 852 (Fed. Cir. 2012); Miller v. Department of Defense , 85 M.S.P.R.
310, ¶ 32 (2000). The administrative judge accepted as true the appellant’s
claims that management failed to give her clear directions about how to get
promoted to the GS-11 level and failed to provide her with adequate training
opportunities, but still concluded that those allegations did not render her
working conditions so intolerable that she had no choice but to retire. ID at 7-9.
We agree with the administrative judge that the appellant’s retirement decision
was not the product of coercion by the agency, and therefore the appellant failed
to demonstrate that her retirement was involuntary.
Regarding the appellant’s assertion that she was still debating the best time
to retire and that the administrative judge held her correspondences with
retirement officials against her, there is also no merit to this argument. PFR File,
Tab 1 at 1-2; Tab 2 at 1; see IAF, Tab 8 at 146-48. As an initial matter, the
appellant does not deny that her correspondences reflect that in March 2018, she
inquired into the requirements to retire, and that by February 2019, she stated that
she was “ready to retire on 4/30/2019,” and that she was “just waiting for [her
service] anniversary which is on 4/14/2019 to make it 35 years.” IAF, Tab 8
at 146. Instead, she merely suggests that she “might” have sent her retirement
form “for inquiries only,” and that she was “debating the best date to retire” so
that she could get her maximum service credit. PFR File, Tab 1 at 1 (emphasis
added). Further, there is no indication that the administrative judge held this
information against the appellant, and she only included this information to offer
a contrast to the appellant’s assertion in her EEO complaint that she did not
intend to retire on April 30, 2019. ID at 7-8. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).3
NOTICE OF APPEAL RIGHTS0
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
0 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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s6
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.0 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
0 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Muchow_Beverly_A_SF-0752-20-0326-I-1__Final_Order.pdf | 2024-06-20 | BEVERLY A. MUCHOW v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0752-20-0326-I-1, June 20, 2024 | SF-0752-20-0326-I-1 | NP |
1,199 | https://www.mspb.gov/decisions/nonprecedential/Carter_Brenda_DA-0714-20-0370-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRENDA CARTER,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-0714-20-0370-I-1
DATE: June 20, 2024
THIS ORDER IS NONPRECEDENTIAL1
Morgan Velasquez , Dallas, Texas, for the appellant.
Kacy Coble , Esquire, and Tijuana D. Griffin , North Little Rock, Arkansas,
for the agency.
Thomas Herpin , Houston, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her removal appeal as untimely filed. For the reasons discussed below,
we GRANT the appellant’s petition for review, VACATE the initial decision, and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
ORDER the agency to cancel the appellant’s removal. We REMAND the case to
the regional office for adjudication of the appellant’s claims of prohibited
personnel practices.
BACKGROUND
¶2The agency appointed the appellant to the position of Clinical Pharmacist
pursuant to 38 U.S.C. § 7401(3) on January 29, 2012. Initial Appeal File (IAF),
Tab 12 at 45. Effective October 25, 2019, the agency removed the appellant
pursuant to the authority set forth in the Department of Veterans Affairs
Accountability and Whistleblower Protection Act of 2017 (VA Accountability
Act), Pub. L. No. 115-41, § 202(a), 131 Stat. 862, 869-73 (2017) (codified as
amended at 38 U.S.C. § 714). IAF, Tab 6 at 14-17, Tab 9 at 4-6. In its decision
letter, the agency informed the appellant of her options for seeking review of the
action, including filing a Board appeal, seeking corrective action from the Office
of Special Counsel, filing a grievance, or filing a discrimination complaint with
the agency’s Office of Resolution Management. IAF, Tab 6 at 15-17. The
decision letter further notified the appellant of the 10-business-day deadline for
filing a Board appeal, as well as the 45-calendar-day deadline for initiating equal
employment opportunity (EEO) counseling, and stated that “[w]hichever option
you may choose to pursue regarding this action . . . shall be considered an
election by you to proceed under that appeal process.” Id. at 17. The notice did
not state a deadline for filing an EEO complaint. Id. at 15-17
¶3On November 26, 2019, the appellant elected to amend her previously filed
EEO formal complaint to include her removal. IAF, Tab 15 at 7, 12, 33-36. On
April 29, 2020, the agency issued a Final Agency Decision (FAD) to the
appellant, which included notice of her right to appeal to the Board within
30 days of receipt of the FAD. IAF, Tab 7 at 4-5, 14-15. On May 29, 2020, the
appellant filed the instant appeal, challenging her removal. IAF, Tab 1 at 2, 4.
3
¶4Thereafter, the administrative judge informed the appellant that there was a
question as to whether she had filed her appeal within the 10-business-day time
limit required by 38 U.S.C. § 714(c)(4)(B). IAF, Tab 22 at 1. He ordered her to
show that she had timely filed her appeal or there was a basis to accept her
late-filed appeal. Id. at 1-4. He also ordered the agency to file any evidence and
argument it had on the timeliness issue. Id. at 4. The agency then moved to
dismiss the appeal on the basis that the appeal was untimely filed beyond the
10-day filing period, which it asserted could not be excused. IAF, Tab 29
at 4-11. The appellant responded, arguing that the mixed-case appeal was timely
filed within 30 days of receipt of the agency’s FAD. IAF, Tab 30 at 4-6. She
alternatively argued that the deadline should be extended due to agency
misrepresentation. Id. at 5-6.
¶5On the day of the hearing, the appellant withdrew her hearing request
following the administrative judge’s denial of her motion to postpone the hearing.
IAF, Tab 35, Hearing Recording. Both parties submitted written arguments and
documentary evidence, and the record closed. IAF, Tabs 36-40.
¶6Without reaching the merits of the appeal, the administrative judge issued
an initial decision finding that the Board has jurisdiction over the appeal but
dismissing the appeal as untimely filed. IAF, Tab 43, Initial Decision (ID) at 1-2,
8. He reasoned that the regulatory time limits for mixed cases cannot override the
statutory language of the VA Accountability Act to establish a different Board
filing deadline and there was no basis upon which to equitably toll the statutory
filing deadline. ID at 4-7.
¶7The appellant filed a petition for review of the initial decision. Petition for
Review (PFR) File, Tab 1. In her petition for review, the appellant reasserts that
the 10-day appeal deadline associated with 38 U.S.C. § 714 adverse personnel
actions does not apply in mixed cases when the appellant has first filed an EEO
complaint. Id. at 6-7. Alternatively, she argues that the deadline should be
extended due to the agency’s misrepresentations that she had 30 days from receipt
4
of the FAD to file her appeal, or the agency waived the deadline based on the
agency’s acceptance of her amendment to her EEO complaint and issuance of a
FAD on the merits. Id. at 7-9. Lastly, the appellant asserts that she is entitled to
a hearing on the merits. Id. at 9. The agency has responded to the petition for
review. PFR File, Tab 3.
ANALYSIS
We find that the appeal was timely filed.
¶8On review, the appellant argues that the 10-business-day appeal deadline
articulated in 38 U.S.C. § 714(c)(4)(B) does not apply to mixed-case appeals
when an appellant has elected to first proceed through the EEO complaint process
and, therefore, her appeal was timely filed within 30 days of receipt of the
agency’s FAD pursuant to 5 C.F.R. § 1201.154(b)(1) and 29 C.F.R. § 1614.302(d)
(1)(ii). PFR File, Tab 1 at 5-6. The administrative judge found that the appeal
was untimely filed, reasoning that because Board and Equal Employment
Opportunity Commission (EEOC) regulations are in conflict with the filing
deadline set forth in the VA Accountability Act, the provisions of the statute
prevail and, therefore, the appellant was required to file her appeal within
10 business days of the date of the agency’s removal decision. ID at 4. We find
the appeal timely filed.
¶9The VA Accountability Act permits an employee to appeal a removal to the
Board “not later than 10 business days after the date of [the action].” 38 U.S.C.
§ 714(c)(4)(B). Because the agency issued the removal on October 16, 2019,
effective October 25, 2019, an appeal under section 714(c)(4)(B) would have
been due, at the latest, by November 8, 2019. IAF, Tab 6 at 14-17. Thus, the
appellant’s May 29, 2020 Board appeal would be more than 7 months untimely
filed under the time limit set forth in section 714(c)(4)(B).
¶10Nevertheless, in Wilson v. Department of Veterans Affairs , 2022 MSPB 7,
¶¶ 10-25, we read the VA Accountability Act together with the Civil Service
5
Reform Act of 1978 (CSRA) to give both effect. There, we found that the more
specific time limits for mixed-case appeals at 5 U.S.C. § 7702(e)(1) determined
the timeliness of a mixed-case appeal in which, as here, an appellant filed an EEO
complaint followed by a Board appeal. Id., ¶¶ 17, 25.
¶11We disagree with the administrative judge’s conclusion that the 10-day
deadline in the VA Accountability Act conflicts with Board and EEOC
regulations regarding mixed-case appeals. ID at 4. Those regulations implement
the CSRA, which is reconcilable, and capable of coexistence, with the VA
Accountability Act. Wilson, 2022 MSPB 7, ¶¶ 13, 19. Thus, the VA
Accountability Act does not override the time limits addressed in the CSRA.
Those time limits apply when an appellant first files a timely EEO complaint
followed by a Board appeal. Id., ¶¶ 19, 25.
¶12The time limits for mixed-case appeals apply to this case. Here, the
appellant timely amended her EEO complaint on November 26, 2019, to include
the removal decision. IAF, Tab 15 at 7, 33-34; see 29 C.F.R. § 1614.106(d)
(providing that an individual may amend a pending formal EEO compliant to
include “like or related” issues “at any time prior to the conclusion of the
investigation”). The agency issued a final decision on April 29, 2020, which the
appellant appealed to the Board within 30 days, on May 29, 2020. IAF, Tab 1
at 8-20. Pursuant to 5 C.F.R. § 1201.154(b)(2) and 29 C.F.R. § 1614.302(d)(1)
(ii), the appellant had 30 days from receipt of the agency’s FAD to file her
mixed-case appeal with the Board. See Lang v. Merit Systems Protection Board ,
219 F.3d 1345, 1347-48 (Fed. Cir. 2000); Augustine v. Department of Justice ,
100 M.S.P.R. 156, ¶ 7 (2005). Accordingly, her May 29, 2020 appeal, filed
30 days after receipt of the FAD, was timely. We vacate the initial decision
finding otherwise.2
2 Because we find that the appeal was timely filed, we need not reach the appellant’s
alternative arguments regarding the agency’s misrepresentations about the filing
deadline and waiver of the issue of timeliness. PFR File, Tab 1 at 7-9.
6
The agency’s removal action must be reversed.
¶13As the agency appointed the appellant to the position of Clinical Pharmacist
pursuant to 38 U.S.C. § 7401(3), she was a hybrid employee, which is a category
of agency employees subject to both Title 38 and Title 5 of the United States
Code. U.S. Department of Veterans Affairs v. Federal Labor Relations Authority ,
9 F.3d 123, 126 (D.C. Cir. 1993); see James v. Von Zemenszky , 284 F.3d 1310,
1314 (Fed. Cir. 2002). Since the issuance of the initial decision in this case, the
Board issued a precedential Opinion and Order in Richardson v. Department of
Veterans Affairs , 2023 MSPB 1, ¶¶ 15-28, holding that the agency does not have
the authority under 38 U.S.C. § 714 to remove a hybrid employee appointed under
38 U.S.C. § 7401(3). We reasoned that such employees are covered by 38 U.S.C.
§ 7403(f)(3), which provides that “all matters relating to adverse actions . . . shall
be resolved under the provisions of title 5 as though such individuals had been
appointed under that title.” Id., ¶ 12 (quoting 38 U.S.C. § 7403(f)(3)). Thus, the
agency’s removal action in this case under the authority of 38 U.S.C. § 714 is not
in accordance with law. See id., ¶¶ 29-30.
¶14An agency action that is not in accordance with law must be reversed by the
Board. 5 U.S.C. § 7701(c)(2); Hamilton v. U.S. Postal Service , 58 M.S.P.R. 486,
488 (1993). The appellant need not show that the agency violated her
constitutional due process rights or that the erroneous action was harmful, i.e.,
that it prejudiced her rights so that the outcome before the agency was likely
affected. Hamilton, 58 M.S.P.R. at 488; Stephen v. Department of the Air Force ,
47 M.S.P.R. 672, 683-84 (1991); see also Richardson, 2023 MSPB 1, ¶¶ 30-32
(finding that the Board could not sua sponte convert a 38 U.S.C. § 714 removal
appeal to a 5 U.S.C. chapter 75 removal appeal because it would be “inherently
unfair”). Accordingly, we reverse the agency’s removal action. If the agency
wants to take an adverse action against the appellant, it must do so in accordance
with the procedures of chapter 75, as required by section 7403(f)(3).
7
We remand the appeal for adjudication of the appellant’s claims of prohibited
personnel practices.
¶15The appellant raised allegations of age discrimination, EEO reprisal, and
whistleblower reprisal in connection with her removal. IAF, Tabs 26-27. She is
entitled to have her claims of prohibited personnel practices adjudicated even
though the Board has not upheld her removal. Cowart v. U.S. Postal Service ,
117 M.S.P.R. 572, ¶¶ 7-9 (2012); Rivas v. U.S. Postal Service , 62 M.S.P.R. 480,
483 (1994). Thus, as the record does not establish that she abandoned or
withdrew these affirmative defenses, we remand this appeal for adjudication of
the appellant’s claims of prohibited personnel practices.
¶16Because the appellant does not dispute that she withdrew her hearing
request, the administrative judge need not hold a hearing. IAF, Tab 35-1 (hearing
recording), Tab 38 at 6, Tab 40; ID at 2 n.1; PFR File, Tab 1 at 9. Nevertheless,
further development is warranted. Concerning the appellant’s age discrimination
and EEO reprisal claims, the administrative judge notified the appellant of the
standards and methods of proof under Savage v. Department of the Army ,
122 M.S.P.R. 612 (2015), IAF, Tab 19 at 2-6, and the parties submitted evidence
and argument in response, IAF, Tabs 26-28, 32-33, 38-39. However, the Board
has since overruled the holding in Savage that the analytical framework identified
in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 -04 (1973), is
inapplicable to Board proceedings. Pridgen v. Office of Management and Budget ,
2022 MSPB 31, ¶ 25. We further clarified the burdens of proof in Title VII
disparate treatment discrimination claims as well as age discrimination claims in
Wilson v. Small Business Administration , 2024 MSPB 3, ¶¶ 11-19. As the Board
has required administrative judges to apprise appellants of the applicable burdens
of proof, as well as the kind of evidence required to meet those burdens, the
administrative judge must do so on remand. See id., ¶ 10. The administrative
judge shall then afford the parties an additional opportunity to submit relevant
8
evidence and argument on these affirmative defenses and address the affirmative
defenses in his remand initial decision.
¶17The administrative judge need not reopen the record on the appellant’s
whistleblower reprisal claim because he provided the parties with notice of the
applicable burdens of proof for this claim. IAF, Tab 19 at 7-9; see Pridgen,
2022 MSPB 31, ¶ 49; see also Semenov v. Department of Veterans Affairs ,
2023 MSPB 16, ¶ 37 (stating that the Board will adjudicate whistleblower reprisal
claims under the VA Accountability Act in the same manner as we have
adjudicated them when raised in an appeal of an action taken under chapter 43
and chapter 75). Nevertheless, the administrative judge should consider any new
argument or evidence relevant to the appellant’s other affirmative defenses that
may also be relevant to this claim and shall address the appellant’s whistleblower
reprisal claim in his remand initial decision.
¶18Furthermore, before issuing his remand initial decision, the administrative
judge should rule on the appellant’s pending motion to strike the agency’s
response to her close of record submission. IAF, Tabs 39, 41. The administrative
judge previously denied the motion as moot. ID at 2 n.1. However, that is no
longer the case in light of this Remand Order.
9
ORDER
¶19Accordingly, we REMAND the appeal for adjudication of the appellant’s
claims of prohibited personnel practices.
¶20Because the agency’s removal action must be reversed regardless of the
findings on remand, we now ORDER the agency to cancel the appellant’s removal
and restore the appellant effective October 25, 2019. See Kerr v. National
Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency must
complete this action no later than 20 days after the date of this decision.
¶21We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶22We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶23No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
10
¶24For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐2) Settlement agreement, administrative determination, arbitrator award, or order.
☐3) Signed and completed “Employee Statement Relative to Back Pay”.
☐4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2.The following information must be included on AD-343 for Restoration:
a.Employee name and social security number.
b.Detailed explanation of request.
c.Valid agency accounting.
d.Authorized signature (Table 63).
e.If interest is to be included.
f.Check mailing address.
g.Indicate if case is prior to conversion. Computations must be attached.
h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3.Outside earnings documentation statement from agency.
4.If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5.Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6.If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a.Must provide same data as in 2, a-g above.
b.Prior to conversion computation must be provided.
c.Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630. | Carter_Brenda_DA-0714-20-0370-I-1__Remand_Order.pdf | 2024-06-20 | BRENDA CARTER v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-0714-20-0370-I-1, June 20, 2024 | DA-0714-20-0370-I-1 | NP |
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