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1,200 | https://www.mspb.gov/decisions/nonprecedential/Gause_Harold_K_DC-3330-19-0333-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HAROLD K. GAUSE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-3330-19-0333-I-1
DATE: June 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rueben Cartwright , Esquire, Humble, Texas, for the appellant.
Christina J. Knott , Esquire, and Damon A. Pace , 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
denied his request for corrective action under the under the Veterans Employment
Opportunities Act of 1998 (VEOA). 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1 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
BACKGROUND
The appellant is an Economic Assistant, GS-0119-07, Step 7, with the
Bureau of Labor Statistics in the Department of Labor. Initial Appeal File (IAF),
Tab 1 at 8. The appellant applied for the position of Equal Employment
Opportunity Specialist, GS-0260-13, with the Deputy Assistant Secretary for
Office of Resolution Management in the Department of Veterans Affairs, but on
January 17, 2019, the agency notified the appellant that he was ineligible for the
position because he did not meet the time -in-grade requirement for the position.
IAF, Tab 1 at 9, Tab 13 at 11-25. The appellant requested reconsideration of this
decision, which the agency denied. IAF, Tab 4 at 26-30. On February 20, 2019,
the appellant timely filed a complaint with the Veterans’ Employment and
Training Service in the Department of Labor (VETS) in which he alleged that, in
determining that he did not meet the time-in-grade requirement, the agency failed
to credit all of his education and work experience. IAF, Tab 1 at 10-13. On
February 25, 2019, VETS informed the appellant that it was closing its case and
informed him of his right to file a Board appeal. IAF, Tab 4 at 31-32. On
February 27, 2019, the appellant timely filed the instant Board appeal; he did not
request a hearing. IAF, Tab 1. He again argued that the agency failed to credit
him for all of his work experience when it determined that he did not meet the
time-in-grade requirement. Id. at 6.
Based on the written record, the administrative judge issued an initial
decision denying the appellant’s request for corrective action. IAF, Tab 19,
Initial Decision (ID). She found that the appellant had established the Board’s
jurisdiction over his VEOA claim. ID at 4-5. She then found that the vacancy
announcement’s requirement that, as a Federal employee currently holding a
General Schedule (GS) position, the appellant must have completed a minimum of2
52 weeks in a GS-12 position in order to be eligible for advancement to a GS -13
position was consistent with Office of Personnel Management regulations
governing such advancements. ID at 5-9. The administrative judge also found
that there was no evidence that the appellant had the requisite time in grade and
that, as a current Federal employee, the appellant was not entitled to have his
non-Federal experience credited towards the time-in-grade requirement. ID
at 9-12. Finally, the administrative judge determined that there was no evidence
that the vacancy was cancelled due to the appellant’s application, and to the
extent that the appellant alleged that the agency’s actions occurred in retaliation
for his prior equal employment opportunity activity, he did not offer any evidence
that this occurred or obstructed his right to compete. ID at 12-13.
On June 19, 2019, the appellant filed a petition for review of the initial
decision. Petition for Review (PFR) File, Tab 1. The Acting Clerk of the Board
informed the appellant that his petition for review appeared to be untimely filed
and that the Board’s regulations require an apparently untimely petition to be
accompanied by a motion to accept the petition as timely or to waive the time
limit for good cause and an affidavit or sworn statement to that effect. PFR File,
Tab 2 at 1-2. The appellant did not file such a motion. The agency opposed the
appellant’s petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
A petition for review must generally be filed within 35 days after the date
of the issuance of the initial decision or, if a party shows that he received the
initial decision more than 5 days after it was issued, within 30 days after his
receipt of the initial decision. 5 C.F.R. § 1201.114(e). The Board will waive this
time limit only upon a showing of good cause for the delay in filing.
5 C.F.R. §§ 1201.12, 1201.114(g). To establish good cause for the untimely
filing of a petition, a party must show that he exercised due diligence or ordinary
prudence under the particular circumstances of the case. Shannon v. Department3
of Veterans Affairs , 110 M.S.P.R. 365, ¶ 6 (2009). To determine whether an
appellant has shown good cause, 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 which similarly shows a causal
relationship to his inability to timely file his petition. Id.
The appellant’s petition for review of the May 14, 2019 initial decision was
due on June 18, 2019, and the appellant’s petition for review was postmarked on
June 19, 2019, which was 1 day late. ID at 14; PFR File, Tab 1 at 23, 25; see
5 C.F.R. § 1201.4(l) (stating that the date of filing by mail is determined by the
postmark date). Even a delay of 1 day can warrant dismissal of an untimely
petition for review. Cf. Little v. U.S. Postal Service , 124 M.S.P.R. 183, ¶¶ 9-10
(2017) (dismissing an initial appeal filed 1 day late). The appellant has offered
no explanation for the untimely filing or any indication that circumstances
beyond his control prevented him from timely filing his petition. He is
represented and possesses a law degree himself. PFR File, Tab 1 at 24. Under
the circumstances, the appellant has not shown good cause to waive the untimely
filing of his petition for review.2
Accordingly, we dismiss the petition for review as untimely filed.3 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 request for corrective action.
2 Moreover, the appellant’s arguments regarding the merits of his appeal do not
establish a basis on which to grant the petition for review. PFR File, Tab 1.
3 The appellant’s request to join the instant appeal with a second appeal that is before
the Board on petition for review is denied, as joinder would not expedite the processing
of the cases. PFR File, Tab 1 at 2-3; Gause v. Railroad Retirement Board , MSPB
Docket No. CH-3330-19-0233-I-1, Petition for Review File, Tab 1; see 5 C.F.R.
§ 1201.36(b) (providing that joinder is appropriate if it would expedite processing of
the cases and not adversely affect the interests of the parties). 4
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.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.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. 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 | Gause_Harold_K_DC-3330-19-0333-I-1__Final_Order.pdf | 2024-06-20 | HAROLD K. GAUSE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-3330-19-0333-I-1, June 20, 2024 | DC-3330-19-0333-I-1 | NP |
1,201 | https://www.mspb.gov/decisions/nonprecedential/Gause_Harold_K_CH-3330-19-0233-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HAROLD K. GAUSE,
Appellant,
v.
RAILROAD RETIREMENT BOARD,
Agency.DOCKET NUMBER
CH-3330-19-0233-I-1
DATE: June 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rueben Cartwright , Esquire, Humble, Texas, for the appellant.
Eunice Kirk , 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
denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA). Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains 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).
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, except as expressly MODIFIED to find that the appellant failed to show
that the agency violated his rights under a statute or regulation relating to
veterans’ preference when it concluded that he did not meet the specialized
experience requirement for a Claims Representative position.
BACKGROUND
The appellant is an Economic Assistant, GS-0119-07, Step 7, with the
Bureau of Labor Statistics in the Department of Labor. Initial Appeal File (IAF),
Tab 1 at 8. The appellant is also a veteran who received an honorable discharge
from two periods of military service and has a service-connected disability, which
is rated at 20 percent. IAF, Tab 7 at 25. The appellant applied for the position of
Claims Representative, GS-0993-10, at the Railroad Retirement Board (RRB);
however, on February 14, 2019, the RRB notified the appellant that he was
ineligible for the position because he did not meet the minimum education or
experience requirement. IAF, Tab 7 at 14, Tab 9 at 16. On the same date, the
appellant requested reconsideration of this decision, which the RRB denied on
February 21, 2019. IAF, Tab 7 at 15-17, Tab 9 at 17-19. In her February 21,
2019 response, the RRB’s representative stated that the appellant failed to show2
that he had 1 year of specialized experience equivalent to the GS -09 grade level
in the Federal service, including that he had working knowledge of the laws,
regulations, and procedures governing RRB programs, and that the position did
not have an education substitution, so the agency could not credit his education
towards the qualification requirements. IAF, Tab 7 at 15, Tab 9 at 19.
On February 20, 2019, the appellant timely filed a complaint with the
Veterans’ Employment and Training Service in the Department of Labor (DOL)
in which he alleged that, in determining that he did not meet the minimum
education or experience requirement for the position, the RRB had failed to credit
all of his education and work experience. IAF, Tab 1 at 10-13. On February 25,
2019, DOL informed the appellant that it was closing its case and notified him of
his right to appeal to the Board. IAF, Tab 7 at 26-28. On February 27, 2019, the
appellant timely filed a Board appeal; he did not request a hearing. IAF, Tab 1.
He argued that the vacancy announcement was impermissibly restrictive as to
qualifying experience and that the RRB failed to credit all of his relevant
education and work experience, including 13 years of experience as a law clerk.
IAF, Tab 1 at 6, Tab 7 at 8-12.
Based on the written record, the administrative judge issued an initial
decision denying the appellant’s request for corrective action. IAF, Tab 12,
Initial Decision (ID). The administrative judge found that the appellant had
established the Board’s jurisdiction over his VEOA claim. ID at 4-5. She then
determined that the appellant had not shown that his nonselection violated his
rights under a statute or regulation relating to veterans’ preference. ID at 5-8.
The administrative judge found that the RRB used the merit promotion process in
its selection of a Claims Representative, and that in using merit promotion
procedures, the agency was not required to consider non-Federal civil service
experience when determining whether the appellant, a current Federal employee,
met the time-in-grade requirements for the position. ID at 6-8. She also found
that the appellant lacked the requisite time in grade at the General Schedule (GS)3
9 level to be eligible for the GS-10 Claims Representative position. ID at 7.
Accordingly, she found that the appellant did not prove that the agency violated
his rights under VEOA and denied his request for corrective action. ID at 7-8.
The appellant has timely filed a petition for review of the initial decision.2
Petition for Review (PFR) File Tab 1. The agency has filed an opposition to the
petition for review. PFR File, Tab 3. As set forth below, we find the appellant’s
arguments to be without merit.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly found that the appellant failed to meet the
time-in-grade requirements for the Claims Representative position.
Generally, in order to establish Board jurisdiction over a veterans’
preference VEOA claim, the appellant must: (1) show that he exhausted his
remedy with DOL; and (2) make nonfrivolous allegations that (i) he is a
preference eligible within the meaning of VEOA; (ii) the action at issue took
place on or after the October 30, 1998 enactment date of VEOA; and (iii) the
agency violated his rights under a statute or regulation relating to veterans’
preference. 5 U.S.C. § 3330a(a)(1)(A); Miller v. Federal Deposit Insurance
Corporation, 121 M.S.P.R. 88, ¶ 6 (2014), aff’d, 818 F.3d 1361 (Fed. Cir. 2016).3
2 The appellant’s request to join the instant appeal with a second appeal that is before
the Board on petition for review is denied, as joinder would not expedite the processing
of the cases. PFR File, Tab 1 at 2-3; Gause v. Department of Veterans Affairs , MSPB
Docket No. DC-3330-19-0333-I-1, Petition for Review File, Tab 1; see 5 C.F.R.
§ 1201.36(b) (providing that joinder is appropriate if it would expedite processing of
the cases and not adversely affect the interests of the parties).
3 An appellant may also establish Board jurisdiction over a “right to compete” VEOA
claim; in order to establish jurisdiction over such a claim, the appellant must: (1) show
that he exhausted his remedy with the DOL; and (2) make nonfrivolous allegations that
(i) he is a veteran within the meaning of 5 U.S.C. § 3304(f)(1); (ii) the action at issue
took place on or after the December 10, 2004 enactment date of the Veterans’ Benefits
Improvement Act of 2004; and (iii) the agency denied him the opportunity to compete
under merit promotion procedures for a vacant position for which the agency accepted
applications from individuals outside its own workforce in violation of 5 U.S.C.
§ 3304(f)(1). 5 U.S.C. § 3330a(a)(1)(B); Becker v. Department of Veterans Affairs ,
115 M.S.P.R. 409, ¶ 5 (2010). Although the appellant’s claim may constitute a right to
compete claim, he specifically alleged that the agency violated 5 U.S.C. § 3311(2) and4
To prevail on the merits of his VEOA claim, the appellant must prove the
jurisdictional elements by preponderant evidence. Isabella v. Department of
State, 106 M.S.P.R. 333, ¶¶ 21-22 (2007), aff’d on recons. , 109 M.S.P.R. 453
(2008). There is no dispute that the appellant exhausted his administrative
remedy with DOL, that he is a preference eligible within the meaning of VEOA,
that the action at issue took place in February 2019, and that the appellant alleged
that the agency violated a statute and regulation pertaining to veterans’
preference. IAF, Tab 7 at 5-12, 14, 25-28. Accordingly, the administrative judge
properly concluded that the Board has jurisdiction over this appeal. ID at 4-5.
The administrative judge also correctly concluded that the appellant failed
to meet the time-in-grade requirement for the Claims Representative position. ID
at 5-8. Federal agencies generally use two types of selection to fill vacancies:
(1) the open “competitive examination” process and (2) the “merit promotion”
process. Joseph v. Federal Trade Commission , 505 F.3d 1380, 1381 (Fed. Cir.
2007). The merit promotion process is used when the position is to be filled by
an employee of the agency or by an applicant from outside the agency who has
“status” in the competitive service. Id. at 1382; 5 C.F.R. § 335.103. Although
veterans’ point preferences do not apply in the merit promotion process, Congress
has provided that veterans “may not be denied the opportunity to compete for
vacant positions for which the agency making the announcement will accept
applications from individuals outside its own workforce under merit promotion
procedures.” Joseph, 505 F.3d at 1382; 5 U.S.C. § 3304(f)(1). It is undisputed
that the vacancy at issue here was advertised under merit promotion procedures.
IAF, Tab 9 at 9-14; ID at 6.
The administrative judge found that the agency provided the appellant with
the opportunity to compete for the vacancy, but that he did not meet the
5 C.F.R. § 302.302(d) by failing to credit his experience in evaluating his application,
thus we find no error in the administrative judge’s determination that the appellant
established jurisdiction over a veterans’ preference VEOA claim. IAF, Tab 1 at 12,
Tab 7 at 5-12; ID at 4-5. 5
time-in-grade requirement for the vacancy because he did not possess the
52 weeks of experience at the GS-09 level required to qualify for the GS-10
position. IAF, Tab 9 at 11; ID at 7. On review, the appellant does not dispute
that he did not meet the time-in-grade requirement based on his Federal service
alone. Rather, he renews his argument that, as a preference eligible, he was
entitled to credit for his non-Federal service in meeting the time-in-grade
requirement. PFR File, Tab 1 at 12-21. The administrative judge correctly found
that, pursuant to our reviewing court’s decision in Kerner v. Department of the
Interior, 778 F.3d 1336, 1339 (Fed. Cir. 2015), 5 U.S.C. §§ 3304(f) and 3311 do
not require a Federal agency to consider non-Federal civil service experience
when determining whether a veteran employed in the Federal civil service meets a
time-in-grade requirement for purposes of a merit promotion. ID at 7. The
appellant argues that Kerner is not applicable here because it addressed a merit
promotion from within the same agency, whereas he applied from outside the
agency, and that the Board’s decision in Styslinger v. Department of the Army ,
105 M.S.P.R. 223 (2007), supports his contention that veterans who are current
Federal employees and are applying from outside an agency should be entitled to
have their non -Federal experience considered in meeting the time -in-grade
requirement. PFR File, Tab 1 at 12-19.
The appellant’s reliance on Styslinger is misplaced, as it only holds that an
agency cannot deny a veteran who is a current Federal employee the right to
compete for a position outside of his agency when it accepts applications from
outside its own workforce. Styslinger, 105 M.S.P.R. 223, ¶ 32. The Board in
Styslinger explicitly stated that, “while the VEOA guarantees preference eligibles
and certain non-preference eligible veterans the right to compete for particular
positions, it does not exempt them from the eligibility criteria, such as
time-in-grade restrictions, that are applicable to all candidates.” Id., ¶ 33.
Moreover, we are bound by our reviewing court’s decision in Kerner, which does
not distinguish between intra- and inter-agency transfers in holding that an6
agency is not required to credit non -Federal service towards time-in-grade
requirements in merit promotions. Nor do we think there is any question as to
whether there is a distinction under VEOA. Kerner observes that VEOA is
intended to assist veterans in gaining access to Federal civil service employment,
not to give veterans preference in merit promotions. Kerner, 778 F.3d at 1338.
Despite the appellant’s status as a veteran external to the agency, he is
nevertheless a current Federal employee and is not exempt from eligibility
requirements applicable to similarly situated candidates for merit promotion.
Accordingly, the administrative judge correctly concluded that the appellant was
not entitled to have his non-Federal service credited towards meeting the
time-in-grade requirement, and that because the appellant did not meet the
requirement based on his Federal service alone, he did not qualify for the
position.4
The initial decision is modified to find that the agency did not violate the
appellant’s rights under a statute or regulation relating to veterans’ preference
when it found that the appellant did not meet the specialized experience
requirement for the position.
The agency did not, however, cite the appellant’s failure to meet the
time-in-grade requirement as the reason it disqualified the appellant from further
competing for the Claims Representative position. Rather, the agency asserted
that the appellant did not meet the requirement of 1 year of specialized experience
equivalent to the GS-09 grade level in the Federal service, including working
4 Because we find that Kerner decisively controls the outcome of this case, we find no
basis on which to grant the appellant’s request to certify this issue to the U.S. Court of
Appeals for the Federal Circuit. PFR File, Tab 1 at 19-21. Moreover, there is no
mechanism in this case for the Board to certify an order for interlocutory review to the
Federal Circuit. See 28 U.S.C. § 1295(a)(9) (conferring jurisdiction to the Federal
Circuit over “an appeal from a final order or final decision of the Merit Systems
Protection Board”); Berry v. Conyers , 435 F. App’x 943, *1-*2 (Fed. Cir. 2011 )
(nonprecedential) (providing that the court generally lacks jurisdiction to review Board
orders that are not final, but granting the Office of Personnel Management’s petition for
review of the Board’s remand order only where the order resolved the issue on review
conclusively and resolved a question separate from the merits, and delay in review of
the issue would imperil a substantial public interest).7
knowledge of the laws, regulations, and procedures governing RRB programs,
and that because there is no education substitution for the position, it could not
credit the appellant’s education towards the requirement. IAF, Tab 9 at 19. The
administrative judge did not address the agency’s stated reason for disqualifying
the appellant from further consideration; however, even if we were to consider
the agency’s reason, the appellant has not proven that the agency violated a right
under a statute or regulation relating to veterans’ preference. On review, the
appellant asserts that the specialized experience requirement that an applicant
possess working knowledge of the laws, regulations, and procedures governing
RRB programs is too restrictive and would “eviscerate” veterans’ preference laws
because it eliminates equivalent experience as qualifying. PFR File, Tab 1
at 9-10. Absent evidence of bad faith or patent unfairness, the Board generally
will not disturb the agency’s determination that such knowledge is a selective or
highly qualifying factor needed for the position. Cf. Anderson v. U.S. Postal
Service, 76 M.S.P.R. 16, 19-20 (1997) (“[A]bsent evidence of bad faith or patent
unfairness, the Board defers to the agency’s determination as to the requirements
that must be fulfilled in order for an individual to qualify for appointment to a
particular position.”). The appellant has not provided any evidence that requiring
an applicant to have a working knowledge of the laws, regulations, and
procedures governing the agency’s programs is designed to circumvent or
otherwise violates a statute or regulation related to veterans’ preference.
Finally, the appellant acknowledges that he does not have experience
regarding RRB employee benefits, but that the agency failed to assess whether his
13 years as a law clerk, which included employee benefits experience, would
qualify him for the position. PFR File, Tab 1 at 10-11. The Board’s jurisdiction
extends to determining whether the agency actually evaluated a veteran’s
“experience material to the position,” as required by 5 U.S.C. § 3311(2) and
5 C.F.R. § 302.302(d), but does not extend to reevaluating the weight the agency
accorded to the veteran’s experience. Miller v. Federal Deposit Insurance8
Corporation, 818 F.3d 1361, 1367 (Fed. Cir. 2016). The agency representative’s
response to the appellant reflected that she considered his experience but did not
find it qualifying. IAF, Tab 9 at 19. The appellant has not submitted his
application or any other evidence to demonstrate that the agency failed to
consider qualifying experience. Accordingly, the appellant has not shown that
the agency violated his rights under a statute or regulation relating to veterans’
preference in finding that he did not have the requisite specialized experience to
further compete for the position.
The appellant’s arguments regarding the lack of discovery and notice are without
merit.
On review, the appellant also argues that the administrative judge erred
when she “issued a final decision on [the instant case] after discovery had been
sent . . . and did not allow proper discovery.” PFR File, Tab 1 at 21-22. 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. Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365, ¶ 16
(2016). The record reflects that the appellant requested that the administrative
judge extend the time to serve discovery requests by 1 day, which the
administrative judge granted and ordered the parties to serve any discovery
requests to the other party by April 5, 2019. IAF, Tab 10, Tab 11 at 1. The
administrative judge also provided that, because the appellant had not requested a
hearing, the record was to close on May 10, 2019. IAF, Tab 11 at 1-2.
Accordingly, responses to any discovery requests served on April 5, 2019, were
due on April 25, 2019, 15 days before the close of the record. IAF, Tab 2 at 4.
Below, the appellant did not object to the deadlines set by the administrative
judge, and on review, he has not identified how additional discovery would have
affected the outcome of this case. We find that the administrative judge did not
abuse her discretion in setting discovery deadlines.9
The appellant also claims that the administrative judge failed to sufficiently
notify him of what evidence was required to prove his claim. PFR File, Tab 1
at 21-22. The administrative judge issued orders notifying the appellant of his
burden and the elements to prove a claim that the agency violated one of the
veterans’ preference rights afforded him by statute or regulation. IAF, Tabs 3, 8.
Additionally, in its pleadings, the agency identified specific arguments to which
the appellant had the opportunity to respond. IAF, Tab 9. We find that the
appellant received sufficient notice of what was required to prove his claim. See
Burgess v. Merit Systems Protection Board , 758 F.2d 641, 643-44 (Fed. Cir.
1985) (providing that an appellant must receive explicit information on what is
required to establish an appealable issue). Accordingly, we affirm the
administrative judge’s denial of the appellant’s request for corrective action, as
modified herein.
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
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
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.10
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. 11
(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: 12
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
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
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. 13
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.14 | Gause_Harold_K_CH-3330-19-0233-I-1__Final_Order.pdf | 2024-06-20 | HAROLD K. GAUSE v. RAILROAD RETIREMENT BOARD, MSPB Docket No. CH-3330-19-0233-I-1, June 20, 2024 | CH-3330-19-0233-I-1 | NP |
1,202 | https://www.mspb.gov/decisions/nonprecedential/Henderson_AaronSF-0752-19-0371-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AARON HENDERSON,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
SF-0752-19-0371-I-2
DATE: June 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeff T. Schrameck , Esquire, Canton, Michigan, for the appellant.
Diana Mondragon , Esquire, and Janet W. Muller , Esquire, Chula Vista,
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
affirmed his removal. On petition for review, the appellant argues that the
administrative judge: (1) overlooked undisputed material evidence that provided a
clear basis to overturn the demeanor-based fact findings and credibility
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).
determinations; (2) misapplied the evidence related to a harmful procedural error
claim; and (3) misapplied the factors set forth in Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 306 (1981). 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 | Henderson_AaronSF-0752-19-0371-I-2__Final_Order.pdf | 2024-06-18 | AARON HENDERSON v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-0752-19-0371-I-2, June 18, 2024 | SF-0752-19-0371-I-2 | NP |
1,203 | https://www.mspb.gov/decisions/nonprecedential/Goodell_RichardCH-0752-19-0137-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICHARD GOODELL,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
CH-0752-19-0137-I-1
DATE: June 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Justin Baker , St. Paul, Minnesota, 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 his termination for lack of jurisdiction. On petition for
review, the appellant makes the following arguments: (1) there is no evidence in
the record that his appeal concerns either activity occurring while he was in a
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).
military pay status or his fitness for duty; (2) he lost his military membership
because he was not allowed to reenlist, not because he was removed from the
military; and (3) the action must be reversed because he was removed without due
process. 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 U.S. Court of Appeals for the Federal Circuit’s decision in Dyer v.
Department of the Air Force , 971 F.3d 1377 (Fed. Cir. 2020), governs the
outcome in this matter, even though the events in this matter predate the issuance
of the Dyer decision. See Heartland By-Products, Inc. v. U.S. , 568 F.3d 1360,
1365 (Fed. Cir. 2009) (“Under general principles of law, judicial decisions are
given retroactive effect.”); NV24-Keyport2 v. Department of the Navy ,
123 M.S.P.R. 263, ¶ 22 (2016) (noting that the Board generally applies case law
issued while an appeal is pending). In Dyer, the court recognized that the
National Defense Authorization Act for Fiscal Year 2017 provided dual status
technicians with the right to appeal some adverse actions, such as removals, to the
Board. 32 U.S.C. § 709(f)(5); Dyer, 971 F.3d at 1382. However, this right is
limited. Dyer, 971 F.3d at 1382. Specifically, section 709(f)(4) provides that2
personnel decisions that “concern[]” a dual status technician’s “fitness for duty in
the reserve components” are appealable only to the adjutant general of the
jurisdiction concerned. 32 U.S.C. § 709(f)(4), (g)(1).
The court in Dyer held that, under 32 U.S.C. § 709, “termination of
dual-status employment . . . as the result of separation from the National Guard”
necessarily concerns fitness for duty in the reserve components. Dyer, 971 F.3d
at 1382-84 (citing 32 U.S.C. § 709(b), (f)(1)(A), (f)(4), (f)(6)). As a result, it
concluded that the Board does not have jurisdiction over such a termination. Id.
at 1384. Here, we find it undisputed that the Minnesota National Guard denied
the appellant’s reenlistment because he failed to meet physical fitness
requirements. Initial Appeal File (IAF), Tab 7 at 4-5, Tab 19, Initial Decision
at 6-7. Thereafter, the appellant was terminated because of his loss of military
membership. IAF, Tab 2 at 2. Thus, under the court’s reasoning in Dyer, as well
as the applicable statute, we find that the Board lacks jurisdiction over his
termination. Accordingly, we affirm the administrative judge’s findings that the
appellant’s appeal concerns his fitness for duty in the reserve components and
that the Board consequently lacks jurisdiction over the appeal. See 32 U.S.C.
§ 709.
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.3
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. The4
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 file5
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. 6
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 | Goodell_RichardCH-0752-19-0137-I-1__Final_Order.pdf | 2024-06-18 | RICHARD GOODELL v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. CH-0752-19-0137-I-1, June 18, 2024 | CH-0752-19-0137-I-1 | NP |
1,204 | https://www.mspb.gov/decisions/nonprecedential/Darnell_Jeffery_G_CH-3443-21-0016-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFFERY GENE DARNELL,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
CH-3443-21-0016-I-1
DATE: June 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeffery Gene Darnell , Waynesville, Missouri, pro se.
Joseph K. Carberry , Esquire, Fort Leonard Wood, Missouri, for the agency.
Samantha Goodwin , Esquire, Scott Air Force Base, 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 his appeal for lack of jurisdiction. On petition for review, the appellant
argues for the first time that the agency circumvented his veterans’ preference
rights. 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.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 The appellant has not explained why he did not argue below that the agency violated
his veterans’ preference rights. 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 ).
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 | Darnell_Jeffery_G_CH-3443-21-0016-I-1__Final_Order.pdf | 2024-06-18 | JEFFERY GENE DARNELL v. DEPARTMENT OF THE ARMY, MSPB Docket No. CH-3443-21-0016-I-1, June 18, 2024 | CH-3443-21-0016-I-1 | NP |
1,205 | https://www.mspb.gov/decisions/nonprecedential/Cox_ShannonDA-0752-18-0173-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHANNON COX,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
DA-0752-18-0173-I-2
DATE: June 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher Forasiepi , Esquire, Dallas, Texas, for the appellant.
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
¶1The appellant has filed a petition for review of the initial decision, which
affirmed his demotion and 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. Except as
expressly MODIFIED to recognize that the personnel management system of the
Federal Aviation Administration (FAA) applies to this appeal and to correct the
analysis of the appellant’s affirmative defenses of whistleblower retaliation and
status-based disability discrimination, we AFFIRM the initial decision.
BACKGROUND
¶2The appellant was a Painter Job Leader with the agency’s FAA.
Initial Appeal File (IAF) Tab 5 at 110. This appeal stems from an incident
involving the appellant and a coworker. The appellant was not this coworker’s
supervisor, and was not a management official, but was a higher-level employee
compared to this coworker. Hearing Transcript (HT) at 10-11 (testimony of the
Division Manager). As alleged by this coworker, after the coworker left work for
the day on September 19, 2017, the appellant drove past him in the opposite
direction, leaned out of his car with his cellphone, and appeared to take photos or
videos of the coworker with his phone. HT at 13-14 (testimony of the Division
Manager); IAF, Tab 5 at 87. The coworker immediately returned to the agency
facility to report this incident to management, which took place at approximately
3:05 p.m. HT at 14-15 (testimony of the Division Manager); IAF, Tab 5 at 62,
87.2
¶3The agency investigated the allegations. IAF, Tab 5 at 73-74. According to
the investigation report, the appellant logged off his computer at 2:52 p.m. and
logged back on at 3:11 p.m. on the day in question.2 Id. at 93-94; HT at 139-40,
165-66 (testimony of the Special Agent assigned to the investigation). The
investigation further found images of an individual appearing to be the appellant
leaving the building at 2:55 p.m. on the date of the incident, and returning at
3:09 p.m. IAF, Tab 5 at 54-55, 73-74, Tab 27 at 4, 18; HT at 158, 160 (testimony
of the Special Agent). Finally, the investigation discovered footage of a vehicle
belonging to the appellant’s wife, who worked at the same location, driving out of
the facility parking lot at 2:55 p.m., entering the street at 3:00 p.m., and
reentering the parking lot at approximately 3:07 p.m. IAF, Tab 5 at 73-74,
Tab 27 at 5-17; HT at 150-58 (testimony of the Special Agent).
¶4Following the incident, on at least two occasions, the appellant denied that
he left the facility during the time in question when his supervisor asked him
about his coworker’s allegations.3 IAF, Tab 5 at 85, 89; HT at 232-33, 245-53
(testimony of the deciding official). After the appellant’s supervisor advised him
of the agency’s video and computer evidence, the appellant stated that, in
essence, he did not know if he left the facility. IAF, Tab 5 at 63, 69-71;
HT at 257-60 (testimony of the deciding official). In submitting his time and
attendance information for the date in question, the appellant indicated that he
had been working during the incident. IAF, Tab 5 at 96-97. He also filed a
complaint with the agency’s Accountability Board alleging that his coworker’s
allegations regarding the September 19, 2017 incident were false. Id. at 99-101.
¶5Effective January 14, 2018, the agency suspended the appellant for 7 days
and demoted him to the position of Paint Worker based on the charges of conduct
unbecoming and providing inaccurate information. Id. at 39-46, 52-53, 62-67.
2 We have rounded off the agency’s time stamps, reflected in seconds, to the nearest
minute.
3 The appellant’s supervisor served as both the proposing and deciding official.
IAF, Tab 5 at 58, 62.3
The appellant filed an appeal to the Board. IAF, Tab 1. He alleged that the
agency improperly sustained the charges and asserted that the agency’s action
was the result of disability discrimination and whistleblower retaliation. Id. at 2.
¶6Following the conclusion of the hearing, the administrative judge issued an
initial decision affirming the agency’s action. Refiled Appeal File (RAF), Tab 6,
Initial Decision (ID) at 1. She determined that the agency proved the charges.
ID at 3-12. She then found that the appellant failed to prove his affirmative
defenses of whistleblower retaliation, status-based disability discrimination, and
failure to accommodate his disabilities. ID at 13-17.
¶7The administrative judge found a nexus between the charged conduct and
the appellant’s coworker’s performance, as well as the agency’s trust and
confidence in the appellant. ID at 17. She found that the agency considered the
relevant mitigating and aggravating factors, and that the agency’s chosen penalty
was within the tolerable limits of reasonableness. ID at 18-19. Therefore, she
found that the penalty of a demotion and suspension was reasonable and promoted
the efficiency of the service. ID at 17. The appellant has filed a petition for
review, and the agency has responded. Petition for Review (PFR) File, Tabs 5, 7.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over this appeal under 49 U.S.C. § 40122(g)(3).
¶8The administrative judge here held that the Board has jurisdiction over this
appeal under 5 U.S.C. §§ 7511-7513. ID at 1. It is undisputed that the appellant
is an employee of the FAA. IAF, Tab 5 at 39, 41, 110. Therefore, the Board’s
jurisdiction over this appeal arises under 49 U.S.C. § 40122(g)(3), and not under
chapter 75. See Roche v. Merit Systems Protection Board , 596 F.3d 1375,
1378-79 (Fed. Cir. 2010) (discussing the relationship between these statutes).
Nonetheless, an FAA “employee,” as defined by 5 U.S.C. § 7511(a)(1), may
appeal an adverse “action,” as defined in 5 U.S.C. § 7512, to the Board.
Id. at 1379-83; see Miller v. Department of Homeland Security , 111 M.S.P.R.4
325, ¶ 17 (2009) (observing that, under 49 U.S.C. 40122(g)(3), a non-screener
employee of the Transportation Security Administration may appeal a reduction
in grade or pay to the Board), aff’d per curiam , 361 F. App’x 134 (Fed. Cir.
2010). The record reflects that the appellant is an employee under 5 U.S.C.
§ 7511(a)(1)(C) as a non-preference eligible appointee in the excepted service
who completed 2 years of service in his position. IAF, Tab 5 at 39, 110.
The record further reflects that the agency reduced him in grade and pay.4
IAF, Tab 1 at 2, Tab 5 at 35. Accordingly, we have jurisdiction over this appeal.
Because we ultimately have jurisdiction over this appeal and, as set forth below,
we agree with the administrative judge’s conclusions, any error was harmless.
See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (finding
an adjudicatory error that is not prejudicial to a party’s substantive rights
provides no basis for reversal of an initial decision).
The administrative judge correctly found that the agency proved its charges by
preponderant evidence.
The administrative judge correctly found that the agency proved its
charge of conduct unbecoming by preponderant evidence.
¶9The appellant argues on review that the administrative judge erred in failing
to credit his explanation of the events of September 19, 2017. PFR File, Tab 5
at 11-12. He also argues that, even if he engaged in the conduct as alleged by the
agency, his conduct was not unbecoming and did not violate any agency policies.
Id. at 12-13. The administrative judge found that preponderant evidence
supported a finding that the appellant engaged in the conduct as described by the
agency, and that this behavior constituted conduct unbecoming of a Paint Job
Leader. ID at 11. We agree with the administrative judge.
4 Although a suspension of less than 15 days is ordinarily not appealable to the Board,
the Board has jurisdiction over such a non-appealable action when, as here, it is
combined with an appealable action in one unified penalty. See 5 U.S.C. § 7512(3)-(4)
(identifying reductions in grade or pay as appealable adverse actions); see also White v.
Government Printing Office , 108 M.S.P.R. 355, ¶ 3 & n.1 (2008) (finding jurisdiction
when an appellant was issued a demotion combined with a 14-day suspension).5
¶10Generally, in an adverse action appeal, an agency must prove its charge by a
preponderance of the evidence. Hall v. Department of Defense , 117 M.S.P.R.
687, ¶ 6 (2012). The charge of “conduct unbecoming” has no specific elements
of proof; rather, it is established by proving that the appellant committed the acts
of misconduct alleged in support of the broad label. Canada v. Department of
Homeland Security , 113 M.S.P.R. 509, ¶ 9 (2010). The agency charged the
appellant with leaving the FAA facility during his shift, driving past his
coworker, who had left work for the day, and leaning out the window of his
vehicle with his cell phone while appearing to take pictures or video of the
coworker. IAF, Tab 5 at 62.
¶11To the extent the appellant argues that the agency failed to prove that he
violated agency policy, recorded his coworker on his cell phone, or had access to
his wife’s vehicle, these facts were not alleged in the agency’s charge. PFR File,
Tab 5 at 10-13; IAF, Tab 5 at 52-53, 62-67; see Canada, 113 M.S.P.R. 509, ¶ 9;
see also Fargnoli v. Department of Commerce , 123 M.S.P.R. 330, ¶ 7 (2016)
(explaining that the Board is required to review the agency’s decision on an
adverse action solely on the grounds invoked by the agency). To the extent he
argues that “[t]aking photographs or video of another individual on a public
street” is not unbecoming, we disagree. Under the laws of the State of Oklahoma,
in which the incident occurred, drivers are required to “devote their full time and
attention” to driving. Okla. Stat. Ann. tit. 47, § 11-901b (West). At a minimum,
by leaning out the window of his vehicle with his cellphone, the appellant
violated this driving requirement. Further, the appellant and his coworker had a
history of disagreements dating back to earlier in the year, giving further context
to what might otherwise be simply childish or joking behavior. IAF, Tab 5 at 77,
80, 99-100. Thus, we agree with the administrative judge that the conduct was
unbecoming. ID at 11.
¶12To the extent the appellant argues that the administrative judge should not
have determined that the agency proved he engaged in the underlying conduct, we6
disagree. PFR File, Tab 5 at 10-12. According to the appellant’s coworker,
just after he drove off the agency’s property and onto the street on
September 19, 2017, at approximately 3:05 p.m., the appellant drove past him in
the opposite direction. IAF, Tab 5 at 87, 103; HT at 82, 84-85 (testimony of the
Assistant Division Manager). The coworker stated that the appellant “was
holding a camera phone and taking a picture” of the coworker while driving.
IAF, Tab 5 at 87. The agency presented evidence showing that on
September 19, 2017, the appellant logged off his computer at 2:52 p.m., he left
the building at 2:55 p.m., a vehicle belonging to his wife drove out of the facility
parking lot and on to the street between 2:55 p.m. and 3:00 p.m., the vehicle
reentered the parking lot at 3:07 p.m., and the appellant reentered the building at
3:09 p.m., and logged back on to his computer at 3:11 p.m. IAF, Tab 5 at 54-55,
73-74, 93-94, Tab 27 at 4-18; HT at 139-40, 150-58, 160, 165-66 (testimony of
the Special Agent).
¶13The appellant raises several unconvincing arguments on review challenging
this evidence of his movements. For example, he claims that the video only
showed his wife’s vehicle leaving and returning to the parking lot, but not that he
was driving the vehicle. PFR File, Tab 5 at 10. While the photographic stills of
videotapes in the record do not contain a clear image of the driver, they do
contain clear images of the appellant exiting and entering the building
immediately before and after the vehicle left and then returned to agency
premises. HT at 87-88 (testimony of the Assistant Division Manager);
IAF, Tab 27 at 4-18.
¶14The appellant also argues that he did not sign off his computer at 2:52 p.m.,
but rather he was automatically logged off due to 10 minutes of inactivity.
PFR File, Tab 5 at 11. The administrative judge considered this argument below
but did not credit the appellant’s testimony that he did not log off of his
computer. ID at 9-11. Further, the computer logs show that the appellant had7
been using his computer within 10 minutes of logging off at 2:52 p.m. IAF,
Tab 5 at 94. Therefore, we discern no reason to disturb this finding.
¶15The appellant also argues that, in finding him not credible, the
administrative judge placed too much weight on his inconsistent statements
regarding whether he took his mother to the hospital before reporting for work on
the day in question. PFR File, Tab 5 at 9-10. The Board will defer to the
credibility determinations of an administrative judge when, as here, they are
based, explicitly or implicitly, upon the observation of the demeanor of witnesses
testifying at a hearing. Thomas v. U.S. Postal Service , 116 M.S.P.R. 453, ¶ 5
(2011). The credibility determinations of an administrative judge are virtually
unreviewable on appeal. Id. Indeed, the Board may overturn such determinations
only when it has sufficiently sound reasons for doing so, such as when the
administrative judge’s findings are incomplete, inconsistent with the weight of
the evidence, and do not reflect the record as a whole. Rapp v. Office of
Personnel Management , 108 M.S.P.R. 674, ¶ 13 (2008).
¶16We discern nothing improper in the administrative judge’s credibility
determinations. A witness’s prior inconsistent statements are a factor to be
considered in assessing credibility. Hillen v. Department of the Army ,
35 M.S.P.R. 453, 458 (1987). When the appellant’s supervisor asked him about
his coworker’s allegations, the appellant volunteered that he took his mother
home from a hospital earlier in the day, after which he arrived at work at
1:00 p.m. IAF, Tab 5 at 85, 89. The administrative judge observed that the
appellant provided inconsistent statements to his supervisor regarding what
occurred after reporting for work at 1:00 p.m. ID at 7-9. The appellant initially
denied leaving the facility after 1:00 p.m., but when advised of the video and
computer evidence of his activities, he said he did not know where he went.
ID at 9-10; IAF, Tab 5 at 70-71, 85, 89. The administrative judge concluded that
the appellant’s testimony denying that he passed his coworker on the street at
3:05 p.m. was not credible. ID at 11. 8
¶17The administrative judge also observed that the appellant stated during his
testimony that he never told his supervisor that he had picked his mother up at the
hospital prior to reporting to work, despite statements in the record reflecting that
the appellant had provided this information to his supervisor. ID at 9-10;
IAF, Tab 5 at 85, 89; RAF, Tab 3-1, Hearing Audio, Day 3 at 2:37:48 (testimony
of the appellant).5 She found these inconsistent statements also made the
appellant’s testimony less credible. ID at 10-11. Although these statements
concerned what occurred earlier in the day, we find no error in the administrative
judge considering them as part of her overall credibility determination.
¶18The appellant also argues on review that the administrative judge erred in
relying on the testimony of individuals who did not observe the alleged incident
of September 19, 2017. PFR File, Tab 5 at 10. The appellant’s coworker did not
testify at the hearing.6 In finding the agency proved its charge, the administrative
judge cited the testimony of individuals to whom the appellant’s coworker
reported the incident. ID at 4-5, 7. The record also contains a statement from the
appellant’s coworker describing what occurred and a summary of the coworker’s
statements to the appellant’s supervisor and another management official about
the incident. IAF, Tab 5 at 87, 89, 103. It is well settled that hearsay evidence is
admissible in administrative proceedings, and that it remains for the trier of fact
to weigh the probative value of the hearsay evidence in the circumstances of the
case. Hipolito v. Department of the Navy , 11 M.S.P.R. 157, 158 (1982).
Here, because the administrative judge appropriately weighed the evidence in
making her findings, the appellant’s argument that the agency did not provide a
first-hand account of the incident is unavailing.
5 The record contains transcripts covering only a portion of the hearing. When a
transcript is available, we have cited to the transcript. Otherwise, we have cited to the
compact disc of the hearing record.
6 Neither the agency nor the appellant sought to call the coworker as a witness.
IAF, Tab 29 at 3-4.9
¶19The appellant submits documents he provides for the first time on review
purporting to show that his coworker was not credible because he subsequently
resigned in lieu of disciplinary action. PFR File, Tab 5 at 11 & n.17, 21-34.
Under 5 C.F.R. § 1201.115(d), the Board may grant a petition for review based on
a showing that new and material evidence is available. However, evidence
offered merely to impeach a witness’s credibility is not generally considered new
and material. Bucci v. Department of Education , 42 M.S.P.R. 47, 55 (1989).
We discern no basis to depart from this general rule and decline to consider the
appellant’s new evidence.
¶20Finally, to the extent that the appellant argues the agency failed to prove its
case due to the lack of “physical evidence,” we disagree. PFR File, Tab 5 at 11.
While it is not entirely clear how the appellant is defining physical evidence,
arguably the still photographs of videotapes submitted by the agency below
qualify as such evidence. IAF, Tab 5 at 54 55, Tab 27 at 4-18. In any event,
when there is no significant contrary proof, circumstantial evidence can constitute
proof of the charge by preponderant evidence. Parbs v. U.S. Postal Service ,
107 M.S.P.R. 559, ¶ 20 (2007), aff’d per curiam , 301 F. App’x 932 (Fed. Cir
2008). Because the administrative judge did not find the appellant’s testimony
credible, the agency’s evidence of the appellant’s conduct is not refuted by
significant contrary proof. Therefore, the administrative judge did not err in
finding the agency met its burden.
The administrative judge properly found that the agency proved the
charge of providing inaccurate information.
¶21The administrative judge found that the agency proved its charge of
providing inaccurate information. ID at 11-12. The appellant does not dispute
this finding on review, and we discern no basis to disturb it.
¶22The appellant told his supervisor he did not leave the facility on
September 19, 2017, between the time he reported to work at 1:00 p.m. and the
time he left for the day at 4:30 p.m. IAF, Tab 5 at 85, 89. He subsequently denied10
knowing where he was at the time of the incident. Id. at 70. His time and
attendance information reflected that he was working during the incident.
Id. at 96-97. Finally, he filed a complaint with the agency asserting that his
coworker’s claims against him were false. Id. at 100. The agency charged that
these statements were inaccurate. Id. at 62-63.
¶23Because we agree with the administrative judge that the agency proved its
charge of conduct unbecoming, we similarly agree that the agency proved that
these statements denying the underlying conduct were inaccurate. When an
underlying misconduct charge has been proven, a subsequent charge based on
misrepresentation or inaccurate information must also be sustained based on the
appellant’s failure to respond truthfully or completely when questioned about
matters relating to the proven misconduct. See Little v. Department of
Transportation, 112 M.S.P.R. 224, ¶ 20 (2009) (citing Boyd v. Department of
Justice, 14 M.S.P.R. 427, 428-30 (1983), for this principle in connection with a
lack of candor charge).
We modify the administrative judge’s analysis of the appellant’s whistleblower
reprisal claim, still finding that he failed to prove his prima facie case.
¶24In an adverse action appeal, such as this, an appellant’s claim of
whistleblower reprisal is treated as an affirmative defense. Shannon v.
Department of Veterans Affairs , 121 M.S.P.R. 221, ¶ 21 (2014). Once the agency
proves its charge or charges, 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 contributing factor in
the agency’s personnel action. Id. 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)(A); Shannon, 121 M.S.P.R. 221, ¶ 22. The administrative
judge addressed the appellant’s whistleblower reprisal claim but did not11
specifically find whether the appellant made a protected disclosure. ID at 13-14.
We modify the initial decision to supplement the administrative judge’s analysis.
¶25The appellant provided various email exchanges and documents referencing
safety issues at the FAA facility dating back to 2014, including the presence of
heavy metals in the workplace, blood testing employees for exposure, and various
safety concerns with sandblasters and redoing the paint shop. IAF, Tab 23
at 24-36. However, none of these documents reflect that the appellant raised
these safety concerns or otherwise brought them to management’s attention;
rather, they appear to be ongoing discussions among FAA employees as to how to
address and rectify the safety concerns. As such, these emails and documents fail
to demonstrate that the appellant made or raised any protected disclosures.
Moreover, although it was alleged that the appellant would, as part of his job,
occasionally bring safety issues to management’s attention, the appellant has
failed to identify any of the specifics of these alleged disclosures sufficient to
render them protected. HT at 118 (testimony of Assistant Division Manager),
278-79 (testimony of the deciding official); see Sazinski v. Department of
Housing and Urban Development , 73 M.S.P.R. 682, 686 (1997) (explaining that
revelation of a negligible, remote, or ill-defined peril that does not involve any
particular person, place, or thing, is not protected).
¶26The appellant also filed a hotline complaint with the FAA Office of Audit
and Evaluation alleging that the agency transferred contaminated parts containing
dangerous metals to a private vendor, and that his supervisor told him, against
Federal rules, not to inform the vendor that the parts were contaminated.
IAF, Tab 35 at 102-03. As a result of this complaint, the agency took what it
described as “protective measures” to advise the vendor of the contamination.
Id. at 102. We find that this hotline complaint amounts to a disclosure that the
appellant reasonably believed evidenced a violation of a rule or regulation under12
5 U.S.C. § 2302(b)(8)(A)(i).7 Thus, the appellant proved that it was protected.
See Grubb v. Department of the Interior , 96 M.S.P.R. 377, ¶¶ 27-28 (2004)
(holding that an employee’s complaint that agency management violated the law
was a protected disclosure).
¶27Although we find that the appellant made a protected disclosure, we also
find that the disclosure in question could not have been a contributing factor in
the decision to demote and suspend him. The appellant filed his hotline
complaint on December 6, 2017. IAF, Tab 35 at 103. The FAA Office of
Investigations received the complaint from the Hotline Information System on
January 10, 2018, and contacted a manager in the appellant’s supervisory chain8
the following day. Id. at 102. Thus, the earliest anyone involved in the decision
to demote and suspend the appellant could have been aware of the hotline
disclosure was January 11, 2018, a week after the deciding official issued the
decision letter. IAF, Tab 5 at 41. Even if we assume that the deciding official
knew of the appellant’s hotline disclosure as of January 11, 2018, that disclosure
could not have been a contributing factor in his decision to demote and suspend
the appellant, which the appellant received on January 4, 2018. See Sherman v.
Department of Homeland Security , 122 M.S.P.R. 644, ¶ 9 (2015) (holding that if
a personnel action had been completed and was only waiting to go into effect
when the deciding official learned about a disclosure, the disclosure could not
have been a contributing factor in that personnel action). We therefore find that
the appellant has failed to establish a prima facie case of whistleblower reprisal.
¶28The Board may not proceed to the clear and convincing evidence test unless
it has first made a finding that the appellant established his prima facie case.
5 U.S.C. § 1221(e)(2); Clarke v. Department of Veterans Affairs , 121 M.S.P.R.
7 Because we find that the appellant made a protected disclosure under section 2302(b)
(8), we need not address whether his complaint also amounts to protected activity under
section 2302(b)(9)(C).
8 The manager contacted by the Office of Investigations appears to be the appellant’s
fourth-level supervisor. HT at 9, 15-16 (testimony of the Division Manager).13
154, ¶ 19 n.10 (2014), aff’d per curiam , 623 F. App’x 1016 (Fed. Cir. 2015).9
Because the administrative judge here found that the appellant failed to establish
a prima facie case of whistleblower reprisal, it was inappropriate for her to
proceed to the clear and convincing evidence test. Scoggins v. Department of the
Army, 123 M.S.P.R. 592, ¶ 28 (2016). Accordingly, we vacate her finding that
the agency proved by clear and convincing evidence that it would have taken the
same personnel action in the absence of the appellant’s whistleblowing.
¶29The appellant provides new evidence on review, which he argues
demonstrates that the agency does not take similar actions against
nonwhistleblowers. PFR, Tab 5 at 14, 18-19. The appellant’s new evidence on
review may be relevant to determining whether the agency proved its affirmative
defense. See Parikh v. Department of Veterans Affairs , 116 M.S.P.R. 197, ¶ 36
(2011) (identifying a relevant factor in determining whether an agency met its
burden as evidence that it took similar actions against similarly situated
nonwhistleblowers). As discussed above, we are vacating the administrative
judge’s findings that the agency did so. Therefore, this evidence is not material
to the outcome of the appeal and does not state a basis for granting review. 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).10
9 Although the U.S. Court of Appeals for the Seventh Circuit has disagreed with the
Board’s decision in Clarke, it has done so on different grounds. Delgado v. Merit
Systems Protection Board , 880 F.3d 913, 923-25 (7th Cir.), as amended on denial of
reh’g and reh’g en banc (7th Cir. 2018). Thus, its disagreement does not implicate the
basis for which we cite Clarke here.
10 The administrative judge found that the appellant failed to prove that the agency’s
actions were motivated by his disability. ID at 14-15. She further found that the
appellant failed to meet his burden of proof that the agency failed to accommodate his
disability. ID at 16-17. The appellant does not challenge these finding on review, and
we decline to disturb them except as follows regarding the appellant’s claim of
status-based disability discrimination. As to that affirmative defense, because the
administrative judge found the appellant failed to meet his burden of proof, we need not14
We discern no basis to disturb the administrative judge’s findings that the agency
proved nexus and sustained the penalty.
¶30In addition to proving its charges by a preponderance of the evidence, in an
adverse action appeal, an agency generally must establish a nexus between the
action and the efficiency of the service, and establish that the penalty imposed is
within the tolerable bounds of reasonableness. Hall, 117 M.S.P.R. 687, ¶ 6.
The administrative judge determined that the agency established a nexus and the
reasonableness of its penalty. ID at 17-19. The appellant does not dispute these
findings on review, and we decline to disturb them.
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
reach her alternative finding that “the agency’s proffered reason for the [appellant’s
removal] was the real reason.” If an appellant fails to show that any prohibited
consideration was a motivating factor in the agency’s action, he necessarily fails to
prove that discrimination was a “but-for” cause of the agency’s decision. See Desjardin
v. U.S. Postal Service , 2023 MSPB 6, ¶ 31 (concluding that an appellant who failed to
show that his sex was a motivating factor in the agency’s action necessarily failed to
meet the more stringent “but-for” causation standard); see also Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶¶ 20-22, 40, 42 (explaining that the level of
relief to which an appellant is entitled in connection with a disparate treatment
disability discrimination claim varies depending on whether she proves discrimination
was a motivating factor in, or a “but-for” cause of, the agency’s action).
Further, an adjudicatory error that is not prejudicial to a party’s substantive rights
provides no basis for reversal of an initial decision. Panter v. Department of the Air
Force, 22 M.S.P.R. 281, 282 (1984). Therefore, to the extent that the administrative
judge relied on the Board’s decisions in Savage v. Department of the Army ,
122 M.S.P.R. 612 (2015), overruled in part by Pridgen , 2022 MSPB 31, ¶¶ 23-25, and
Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647 (2016), clarified by
Pridgen, 2022 MSPB 31, ¶¶ 23-24, we find that the subsequent changes in the Board’s
case law do not impact her determination that the appellant failed to prove his disability
was a motivating factor in the agency’s action.
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. 15
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 particular16
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 . 17
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 of18
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).
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.
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. 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 | Cox_ShannonDA-0752-18-0173-I-2__Final_Order.pdf | 2024-06-18 | SHANNON COX v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. DA-0752-18-0173-I-2, June 18, 2024 | DA-0752-18-0173-I-2 | NP |
1,206 | https://www.mspb.gov/decisions/nonprecedential/Morgan_LeonDE-0752-19-0427-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEON MORGAN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-0752-19-0427-I-1
DATE: June 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew Kim , Esquire, Atlanta, Georgia, for the appellant.
Mandeev Singh Brar , Esquire, Portland, Oregon, 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 involuntary retirement appeal for lack of jurisdiction without
holding the requested hearing. Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous 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).
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 petition for review, the appellant alleges that he raised a nonfrivolous
allegation of Board jurisdiction and that the administrative judge erred by
weighing the evidence to find otherwise. Petition for Review (PFR) File, Tab 1.
The Board has found that, in determining whether an appellant has made a
nonfrivolous allegation of Board jurisdiction, an administrative judge may
consider an agency’s documentary submissions; however, to the extent the
agency’s evidence constitutes mere factual contradiction of the appellant’s
otherwise adequate prima facie showing of jurisdiction, the administrative judge
may not weigh evidence and resolve conflicting assertions of the parties and the
agency’s evidence may not be dispositive. Ferdon v. U.S. Postal Service ,
60 M.S.P.R. 325, 329 (1994). Here, the administrative judge assumed the
appellant’s allegations were true, notwithstanding the agency’s arguments and
evidence, and found that they failed to amount to a nonfrivolous allegation of
Board jurisdiction. Initial Appeal File (IAF), Tab 9, Initial Decision (ID) at 5-7.
Thus, the administrative judge did not improperly weigh the evidence.
The appellant additionally challenges the administrative judge’s finding
that he did not nonfrivolously allege that the agency knew that it would not2
prevail on its removal action.1 PFR File, Tab 1. Furthermore, the appellant
challenges the administrative judge’s finding that the agency’s delay in approving
his prior Family and Medical Leave Act request and the agency’s decision to
suspend him and propose his removal were insufficient to rise to the level of a
nonfrivolous allegation of forced retirement. PFR File, Tab 1. For the reasons
stated in the initial decision, we agree that the appellant failed to raise a
nonfrivolous allegation of Board jurisdiction over this appeal, and we find that
the appellant’s mere disagreement on review with the administrative judge’s
findings does not provide a basis for disturbing the initial decision.2 See Crosby
v. U.S. Postal Service , 74 M.S.P.R. 98, 105-06 (1997); Broughton v. Department
of Health & Human Services , 33 M.S.P.R. 357, 359 (1987).
1 In making this finding, the administrative judge analyzed whether the agency could
prove its charge by substantial evidence. ID at 6-7. However, the U.S. Court of
Appeals for the Federal Circuit recently clarified in Rodriguez v. Department of
Veterans Affairs, 8 F.4th 1290, 1296-1301 (2021) that the Department of Veterans
Affairs may only take the action in the first instance when it is supported by
preponderant evidence. Thus, as is relevant here, in order for the appellant to show that
his retirement was involuntary, he needed to show that the agency knew that it could
not prove the charges against him by preponderant evidence. See Rodriguez, 8 F.4th at
1296-1301. For the reasons set forth in the initial decision, we find that the appellant
has not raised a nonfrivolous allegation that the agency knew that its action was not
supported by a preponderance of the evidence.
2 The appellant further alleges on review that part of the reason he retired was that, had
he been removed, he would have lost his retirement benefits. PFR File, Tab 1 at 13.
The appellant, however, does not allege that the agency was responsible for this belief
or had reason to know that he was relying on it in deciding to retire. Thus, even if the
appellant was mistaken in believing that he would lose his retirement benefits if he was
removed, his bare assertion alone does not constitute a nonfrivolous allegation that his
retirement was involuntary due to agency misinformation. See Aldridge v. Department
of Agriculture, 111 M.S.P.R. 670, ¶ 8 (2009) (stating that, when there is a claim that an
involuntary action resulted from misinformation, an appellant must show, among other
things, that the agency made misleading statements).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) 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 | Morgan_LeonDE-0752-19-0427-I-1__Final_Order.pdf | 2024-06-18 | LEON MORGAN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-0752-19-0427-I-1, June 18, 2024 | DE-0752-19-0427-I-1 | NP |
1,207 | https://www.mspb.gov/decisions/nonprecedential/Lua_Paula_K_SF-0842-17-0681-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAULA K. LUA,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0842-17-0681-I-1
DATE: June 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Paula K. Lua , Los Angeles, California, 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 final decision of the Office of Personnel Management (OPM) that
recomputed her annuity under the Federal Employees’ Retirement System (FERS)
when she turned 62. 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).
BACKGROUND
The Board has issued several orders regarding the appellant’s disability
retirement under FERS. For example, the administrative judge found that the
appellant was entitled to disability retirement retroactive to her last day in pay
status with the U.S. Postal Service, and this order became the Board’s final
decision on August 20, 2004. Lua v. Office of Personnel Management , MSPB
Docket No. SF-844E-04-0093-I-1, Initial Decision (Jul. 16, 2004). The appellant
filed an initial appeal challenging OPM’s letter informing her of a reduction in
her FERS disability annuity when she turned 62; the administrative judge
dismissed the appeal for lack of jurisdiction because OPM had not issued a final
decision in the matter, and the Board affirmed the initial decision. Lua v. Office
of Personnel Management , MSPB Docket No. SF -0842-14-0650-I-1, Final Order
(Sept. 15, 2014). The appellant filed a subsequent appeal challenging OPM’s
final decision letter concerning an overpayment based on her receipt of Social
Security Administration Disability Insurance Benefits, OPM’s initial calculation2
of her annuity, and its age 62 recomputation. The administrative judge issued an
initial decision finding that OPM established the existence and amount of the
overpayment, OPM’s calculation of the appellant’s high-3 salary was permissible
and advantageous to the appellant, and the appellant was not entitled to a waiver.
Lua v. Office of Personnel Management , MSPB Docket No. SF-0845-15-0244-I -1,
Initial Decision (Apr. 22, 2015). After the initial decision became final, the
appellant appealed the decision to the U.S. Court of Appeals for the Federal
Circuit, which affirmed the initial decision and rejected her arguments that she
was entitled to a waiver of the overpayment and that OPM had underpaid her
from the beginning of her retirement. Lua v. Office of Personnel Management ,
634 F. App’x 299 (Fed. Cir. 2015).
In this matter, the appellant argued that OPM denied her due process by
decreasing her annuity when she turned 62 before it issued a final decision.
Initial Appeal File (IAF), Tab 1 at 4-5. The appellant also argued that she had
lost her prior appeals due to OPM fraud, and that she did not raise an
overpayment issue in the 0244 appeal. Id. In September 2017, during the
pendency of this appeal, OPM issued a final decision regarding the age 62
recomputation. IAF, Tab 11 at 7-9. The appellant appeared to file a new appeal
challenging OPM’s final decision, but the filing was docketed as a submission in
the present appeal. IAF, Tab 11, Tab 14 at 3.
During a status conference, the appellant reiterated that she was
challenging OPM’s initial and age 62 recomputation calculations as well as the
Social Security overpayment. IAF, Tab 14 at 3. The administrative judge
informed the appellant that it appeared that her overpayment and initial annuity
challenges were barred by res judicata and collateral estoppel, and that the only
issue the Board had authority to review was OPM’s age 62 recomputation. Id.
at 3-5. The administrative judge issued an order to show cause and instructed the
parties to brief these issues. Id. at 4-5. The appellant argued that (1) her claims
should not be barred by res judicata or collateral estoppel because she had not3
intended her prior appeals to address the overpayment issue and (2) the agency’s
evidence and argument about the overpayment constituted fraud. IAF, Tab 18
at 4-7, Tab 19 at 4-5, Tab 21 at 4-5. The agency provided documentation
regarding its final decision on the age 62 recomputation. IAF, Tab 17 at 6-24.
The administrative judge issued an order on jurisdiction, finding that the
only issues properly before the Board were OPM’s age 62 recomputation and the
appellant’s claim of violation of due process regarding the age 62 recomputation.
IAF, Tab 24 at 7. The administrative judge found that the overpayment claim was
barred by res judicata and the appellant was collaterally estopped from
challenging the original disability annuity. Id. at 7-9.
Following a telephonic hearing, IAF, Tab 36, the administrative judge
issued an initial decision affirming OPM’s final decision regarding the age 62
recomputation, IAF, Tab 37, Initial Decision (ID) at 1, 5. The administrative
judge found that the appellant had failed to show that OPM’s age 62
recomputation was in error. ID at 3-4. Regarding the appellant’s argument that
she had been denied due process in the age 62 recomputation, the administrative
judge found that the appellant had not identified any procedural requirement that
OPM had failed to meet, particularly since the agency had advised her of the
basis of the age 62 recomputation amount and provided her notice of her right to
appeal the matter. ID at 5.
The appellant has filed a petition for review, the agency has filed a
response opposing the petition, and the appellant has filed a reply. Petition for
Review (PFR) File, Tabs 1, 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly affirmed OPM’s final decision on the age 62
recomputation.
On review, the appellant asserts that OPM’s age 62 recomputation was in
error and that the agency violated her due process rights when it reduced her4
monthly payment due to the age 62 recomputation prior to the issuance of a final
decision. PFR File, Tab 1 at 2-4. We are not persuaded by these arguments.
The appellant has the burden of proving by preponderant evidence that she
is entitled to the benefit that she seeks. Fox v. Office of Personnel Management ,
50 M.S.P.R. 602, 605 (1991); 5 C.F.R. § 1201.56(b)(2)(ii). 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).
For the reasons stated in the initial decision, OPM properly recomputed the
appellant’s annuity pursuant to 5 U.S.C. § 8452(b)(1), and calculated the new
monthly annuity in accordance with 5 U.S.C. § 8415(a). ID at 3-4.
We have considered the appellant’s contention that she was denied due
process regarding the age 62 recomputation. PFR File, Tab 1 at 2-4. Benefits
that are a matter of statutory entitlement for persons qualified to receive them
may not be terminated without affording the recipient due process. See Goldberg
v. Kelly, 397 U.S. 254, 262 (1970); May v. Office of Personnel Management ,
38 M.S.P.R. 534, 538 (1988). The essence of due process is notice and an
opportunity to respond. May, 38 M.S.P.R. at 539. OPM provided the appellant
with notice of its decision, an opportunity to respond (to which the appellant
availed herself), and a reconsideration decision that provided her with appeal
rights. IAF, Tab 3 at 7, Tab 11 at 7-9. Further, the appellant has not identified
any statutory, regulatory, or agency procedures with which OPM failed to
comply. See Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368,
1378 (Fed. Cir. 1999) (observing that, in addition to the right to due process,
public employees are “entitled to whatever other procedural protections are
afforded them by statute, regulation, or agency procedure”).5
The administrative judge properly found that the appellant’s challenge to Social
Security overpayment assessment was barred by res judicata.
On review, the appellant repeats her assertion that she did not challenge the
Social Security overpayment in her earlier appeal; OPM fraudulently introduced
the issue, which meant that it was not properly before the Board in her prior
appeal; and the administrative judge improperly applied res judicata to bar her
claim. PFR File, Tab 1 at 1-4.
Under the doctrine of res judicata, a valid, final judgment on the merits of
an action bars a second action involving the same parties based on the same cause
of action. Encarnado v. Office of Personnel Management , 116 M.S.P.R. 301,
¶ 10 (2011); Peartree v. U.S. Postal Service , 66 M.S.P.R. 332, 337 (1995). Res
judicata precludes parties from relitigating issues that were, or could have been,
raised in the prior action, and is applicable if: (1) the prior action was rendered
by a forum with competent jurisdiction; (2) the prior judgment was a final
judgment on the merits; and (3) the same cause of action and the same parties
were involved in both cases. Encarnado, 116 M.S.P.R. 301, ¶ 10; Peartree,
66 M.S.P.R. at 337. We agree with the administrative judge that, in the
continuation sheet on the initial appeal form in the 0244 appeal, the appellant
specifically contested the accuracy of the overpayment and she submitted a copy
of OPM’s final decision on the overpayment into the record in that matter. IAF,
Tab 24 at 7. The administrative judge properly found that the appellant’s
challenge to the overpayment issue was barred by res judicata because the
appellant raised this claim in the 0244 appeal; the Board had jurisdiction over this
claim; the Board issued a final decision on the merits, which was affirmed by the
Federal Circuit; and the parties in the 0244 appeal were identical to the parties in
the present appeal. Id. at 7-8. 6
The administrative judge properly found that the appellant’s challenge to OPM’s
original disability retirement annuity computation was barred by collateral
estoppel.
The appellant asserts on review that OPM failed to meet the requirements
of collateral estoppel, PFR File, Tab 1 at 3, and implicitly challenges the
administrative judge’s finding that she was precluded from challenging the
original disability annuity amount. We disagree.
Collateral estoppel, or issue preclusion, is appropriate under the following
circumstances: (1) the 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
against whom issue preclusion is sought had a full and fair opportunity to litigate
the issue in the prior action, either as a party to the earlier action or as one whose
interests were otherwise fully represented in that action. McNeil v. Department of
Defense, 100 M.S.P.R. 146, ¶ 15 (2005). We agree with the administrative judge
that these criteria have been satisfied. Importantly, the appellant raised the
calculation of her original disability annuity in the 0244 appeal; the
administrative judge in the 0244 appeal discussed this issue in his analysis of the
overpayment issue; the administrative judge’s determination concerning the
original disability annuity calculation was necessary to the resulting judgment in
the 0244 appeal, which was affirmed by the Federal Circuit; and the appellant had
a full and fair opportunity to litigate this issue as a party in the prior appeal. IAF,
Tab 24 at 8-9.
The appellant’s remaining arguments on review are without merit.
The appellant argues on review that the administrative judge improperly
denied her request to call the agency representative as a witness, which she
alleges prejudiced her ability to meet her burden of proof regarding her retirement
benefits. PFR File, Tab 1 at 4-5. Her challenge to the administrative judge’s
evidentiary ruling is unpersuasive. An administrative judge has wide discretion7
to control the proceedings, including the authority to exclude testimony and
evidence she believes would be irrelevant or immaterial. Sanders v. Social
Security Administration , 114 M.S.P.R. 487, ¶ 10 (2010). The Board has found
that 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 the administrative judge disallowed a relevant witness or
evidence that could have affected the outcome. Id. During the prehearing
conference, the appellant stated that she sought the testimony of the agency
representative to address the reasons why the agency raised the Social Security
overpayment issue in the prior appeal and to ask questions concerning the
collection of the overpayment debt. IAF, Tab 34 at 3. The administrative judge
properly found that the proposed testimony was not relevant to the age 62
recomputation and alleged due process violation. Id. Although the appellant
identifies on review additional areas of testimony that she would have sought
from the agency representative during the hearing, PFR File, Tab 1 at 4-5, these
questions concern the agency’s original calculation of her annuity, which was not
properly before the administrative judge for the reasons described above.
The appellant also argues that the administrative judge erred by not
considering OPM’s reconsideration decision on the age 62 recomputation as a
new appeal. Id. at 2-3. However, the appellant has failed to articulate any
prejudice or harm that she suffered by the administrative judge’s decision to
include OPM’s reconsideration decision as a submission in this matter. See
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).
Finally, the appellant requests that the Board reopen her prior appeal, Lua
v. Office of Personnel Management , MSPB Docket No. SF-0842-14-0650-I-1.
PFR File, Tab 1 at 5. The Board’s September 15, 2004 Final Order in the 0650
appeal included a specific statement that it represented the Board’s final decision8
in that matter and apprised the appellant of her further review rights. The
Board’s regulations do not provide for the appellant’s request for review of the
Board’s final decision in that matter. Therefore, there is no further right of
review of the 0650 final decision by the Board.
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.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.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. 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 | Lua_Paula_K_SF-0842-17-0681-I-1__Final_Order.pdf | 2024-06-18 | PAULA K. LUA v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0842-17-0681-I-1, June 18, 2024 | SF-0842-17-0681-I-1 | NP |
1,208 | https://www.mspb.gov/decisions/nonprecedential/Lua_Paula_K_SF-844E-04-0093-C-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAULA K. LUA,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-844E-04-0093-C-2
DATE: June 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Paula K. Lua , Los Angeles, California, pro se.
Linnette Scott , 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 compliance initial
decision, which denied her second petition for enforcement because it was barred
by res judicata. 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).
BACKGROUND
In July 2004, the administrative judge reversed the final decision of the
Office of Personnel Management (OPM) denying the appellant’s application for
disability retirement under the Federal Employees’ Retirement System (FERS)
and ordered OPM to approve her application retroactive to her last day in pay
status and provide the appropriate retroactive annuity payment. Lua v. Office of
Personnel Management , MSPB Docket No. SF-844E-04-0093-I-1, Initial
Decision (Jul. 16, 2004). The initial decision became the Board’s final decision
on August 20, 2004.
The appellant filed her first petition for enforcement in September 2004,
alleging that OPM had failed to pay her any disability retirement benefits since
approving her application pursuant to the Board’s decision. Lua v. Office of
Personnel Management , MSPB Docket No. SF-844E-04-0093-C-1 , Compliance
File (CF-1), Tab 1. During the pendency of the compliance action, the agency
calculated the payments owed to the appellant retroactive to her last day in pay
status. CF-1, Tab 18. However, the appellant argued that the agency had2
miscalculated her annuity based on a lower salary. CF-1, Tabs 21, 23, 28. The
administrative judge subsequently issued an order confirming that the only
remaining compliance issues concerned the withheld Federal taxes and life
insurance premiums, CF-1, Tab 33, and the appellant did not challenge this order.
The administrative judge issued a compliance initial decision, recommending that
the Board find that the agency was not in compliance as to both remaining issues.
CF-1, Tab 41 at 2, 7-11. The Board subsequently issued two precedential
decisions ultimately finding the agency in compliance with the Board’s 2004 final
decision. Lua v. Office of Personnel Management , 102 M.S.P.R. 108, ¶¶ 1, 8-15
(2006); Lua v. Office of Personnel Management , 100 M.S.P.R. 431, ¶ 8 (2005).
In her second petition for enforcement, the appellant argued that OPM had
incorrectly calculated her initial high-3 salary in computing her disability
retirement annuity and had failed to pay her the required retroactive benefits.
Lua v. Office of Personnel Management , MSPB Docket No. SF-844E-04-0093-
C-2, Second Compliance File (CF -2), Tab 1 at 4-6. The administrative judge
issued an acknowledgment order instructing OPM to file proof of its compliance
with the Board’s August 2004 final decision. CF-2, Tab 2. OPM moved to
dismiss the petition for enforcement as barred by res judicata and collateral
estoppel, but did not address the appellant’s allegations of noncompliance. CF -2,
Tab 4 at 4-6. The administrative judge thereafter issued an order informing the
appellant that it appeared that she was attempting to appeal a claim that had
already been adjudicated, and instructing her to file evidence and argument to
show good cause why her appeal should not be dismissed on the grounds of res
judicata, collateral estoppel, or adjudicatory efficiency. CF-2, Tab 5 at 1-4.
In response, the appellant argued that the agency was in contempt of the
acknowledgment order because it had not submitted the “name(s) and address(es)
of the person(s) responsible for the agency’s decision even if the agency
believe[d] it [wa]s in full compliance.” CF-2, Tab 2 at 1-2, Tab 6 at 4. She
asserted that the “matter of the high 3 annual salary and errors lodged in the3
FERS calculation was not at issue” in her first compliance matter. CF-2, Tab 6
at 4. The appellant repeated her argument that the agency had not paid her the
correct amount of retroactive annuity as required by the Board’s 2004 final
decision. Id. at 5. Finally, she asserted that the agency did not issue a final
decision regarding her challenges to the errors in her FERS benefits until
September 2017, during the pendency of her appeal in Lua v. Office of Personnel
Management, MSPB Docket No. SF-0842-17-0681-I-1.2 Id. The appellant
subsequently filed a motion for the administrative judge to “recuse herself for
more than an appearance of bias,” alleging that she could not receive a fair and
impartial hearing from the administrative judge. CF-2, Tab 7 at 4.
The administrative judge issued an initial decision denying the appellant’s
second petition for enforcement. CF-2, Tab 8, Compliance Initial Decision (CID)
at 1, 6. She found that, although the appellant may not have raised the arguments
regarding the outstanding balance of her retroactive annuity payment in her first
compliance case, she could have done so; thus, the second compliance petition
was barred under the doctrine of res judicata. CID at 5-6. The administrative
judge stated in a footnote that she had previously found in the 0681 matter that
the appellant was precluded from raising the issue of her initial high-3 average
salary calculation on the grounds of collateral estoppel. CID at 3 n.3. Finally,
she denied the appellant’s motion to withdraw, finding that the motion contained
“unsupported speculation” of bias and failed to establish grounds for
disqualification. CID at 4 -5. Because the administrative judge dismissed the
appeal as barred by res judicata, she did not address the timeliness of the petition
for enforcement. CID at 6.
2 In the initial decision in the 0681 matter, the administrative judge affirmed OPM’s
September 18, 2017 final decision regarding the recomputation of the appellant’s
annuity when she turned 62 in 2014. The appellant thereafter filed a petition for review
in the 0681 matter. The Board has issued a separate order that discusses the issues
raised in that matter.4
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. OPM has not filed a response.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant repeats her arguments that the agency failed to
provide evidence of its compliance with the Board’s August 2004 final decision.
Id.; CF-2, Tab 6 at 4. She asserts that her first petition for enforcement did not
address either OPM’s “errors and miscalculations” in her retirement annuity or its
failure to provide her the required retroactive payment. PFR File, Tab 1 at 3-4.
She also asserts that the Board did not have jurisdiction over her prior retirement
appeals; thus, the administrative judge erred in dismissing her petition for
enforcement on the grounds of res judicata and collateral estoppel. Id. She also
expresses concern that the administrative judge was biased against her. Id. at 6.
The administrative judge properly found that the appellant’s claim regarding
OPM’s retroactive payment of her disability annuity was barred by res judicata.
Under the doctrine of res judicata, a valid, final judgment on the merits of
an action bars a second action involving the same parties or their privies based on
the same cause of action. Inman v. Department of Veterans Affairs , 115 M.S.P.R.
41, ¶ 13 (2010) (citing Peartree v. U.S. Postal Service , 66 M.S.P.R. 332, 337
(1995)). Res judicata precludes parties from relitigating issues that were, or
could have been, raised in the prior action and is applicable if (1) the prior
judgment was rendered by a forum with competent jurisdiction, (2) the prior
judgment was a final judgment on the merits, and (3) the same cause of action
and the same parties or their privies were involved in both cases. Inman,
115 M.S.P.R. 41, ¶ 13. It is well established that the Board may dismiss a
petition for enforcement on the grounds of res judicata. Senyszyn v. Department
of the Treasury , 113 M.S.P.R. 453, ¶¶ 9-12 (2010); Carson v. Department of
Energy, 109 M.S.P.R. 213, ¶¶ 23-27 (2008), aff’d, 357 F. App’x 293 (Fed. Cir.5
2009). For the following reasons, we find that the administrative judge correctly
dismissed the second petition for enforcement on the grounds of res judicata.
During the pendency of her first compliance appeal, OPM filed a notice of
compliance that set forth, among other things, the retroactive disability payments
that it had made to the appellant. CF-1, Tab 18. The administrative judge
correctly found that the appellant could have raised a claim that the amount of the
retroactive annuity paid to her was incorrect during her first compliance appeal.3
CID at 5. Moreover, the Board was a forum of competent jurisdiction to decide
the issues in her first compliance appeal, 5 U.S.C. § 1204(a)(2); 5 C.F.R.
§ 1201.182, and the Board’s precedential orders constituted a final decision on
the merits. Accordingly, the appellant may not relitigate this claim in this matter.
To the extent that the agency failed to provide evidence of its compliance
with the Board’s final decision by not identifying a responsible agency official,
CF-2, Tab 2 at 1-2, any error made by the administrative judge in not ordering the
agency to submit such evidence into the record is immaterial because the petition
for enforcement was properly barred by res judicata, see 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).
The administrative judge correctly concluded that the appellant’s challenge to
OPM’s original disability retirement annuity computation was barred by collateral
estoppel.
Collateral estoppel, or issue preclusion, is appropriate under the following
circumstances: (1) the 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
3 Even if she did raise such a claim in the first compliance matter, a different outcome is
not warranted. Notably, the appellant did not challenge the administrative judge’s
statement that the only remaining compliance issues in that matter concerned withheld
Federal taxes and life insurance premiums. CF-1, Tab 33. Moreover, the Board noted
in its precedential decision that all issues apart from the appellant’s challenge to OPM’s
withholding of Federal tax and life insurance premiums had been resolved during the
pendency of the compliance matter. Lua, 100 M.S.P.R. 431, ¶ 4. 6
issue in the prior action was necessary to the resulting judgment; and (4) the party
against whom issue preclusion is sought had a full and fair opportunity to litigate
the issue in the prior action, either as a party to the earlier action or as one whose
interests were otherwise fully represented in that action. McNeil v. Department of
Defense, 100 M.S.P.R. 146, ¶ 15 (2005).
The administrative judge correctly found that the appellant was precluded
from raising the issue of OPM’s original disability annuity on the grounds of
collateral estoppel.4 CID at 3 n.3. In 2015, the appellant filed an appeal
challenging OPM’s final decision letter concerning an overpayment based on her
receipt of Social Security Administration Disability Insurance Benefits, in which
she argued that OPM used an incorrect high-3 salary in its initial calculation of
her annuity. The administrative judge issued an initial decision finding that
OPM’s calculation of the appellant’s high-3 salary (from the day after her last day
in pay status) was permissible and advantageous to her, OPM established the
existence and amount of the overpayment, and she was not entitled to a waiver.
Lua v. Office of Personnel Management , MSPB Docket No. SF-0845-15-0244-I -1,
Initial Decision (Apr. 22, 2015). After the initial decision became final, the
appellant appealed the decision to the U.S. Court of Appeals for the Federal
Circuit, which affirmed the initial decision and rejected her arguments that she
was entitled to a waiver of the overpayment and that OPM underpaid her from the
beginning of her retirement. Lua v. Office of Personnel Management , 634 F.
App’x 299 (Fed. Cir. 2015). Indeed, the Federal Circuit held that OPM had
properly calculated her highest average salary using her last day in pay status. Id.
at 302. Therefore, the appellant’s current challenge to OPM’s initial calculation
of her disability annuity is barred by collateral estoppel because the issue is
identical to that involved in the 0244 appeal, it was actually litigated in the 0244
appeal, the determination on the initial calculation was necessary to the resulting
4 Because the administrative judge properly found that this issue was barred by
collateral estoppel, we need not address whether it could also be barred on the grounds
of res judicata.7
judgment upholding the overpayment, and the appellant had a full and fair
opportunity to litigate this issue in the 0244 appeal.
The appellant’s arguments regarding her motion to recuse are without merit.
Finally, the appellant challenges the administrative judge’s denial of her
motion to recuse. PFR File, Tab 1 at 6; CID at 4-5; CF-2, Tab 7 at 4-5. On
review, she asserts that the administrative judge “did not appear to be a
disinterested tribunal” and reiterates her belief that the administrative judge was
not “fair and impartial.” PFR File, Tab 1 at 6. We find that the appellant’s broad
allegation of bias and statement that she “want[ed] the record to reflect her
feelings,” id., are insufficient to rebut the presumption of the administrative
judge’s honesty and integrity. See Smith v. U.S. Postal Service , 81 M.S.P.R. 443,
¶¶ 4, 6 (1999) (holding that case-related rulings do not serve as a basis for
recusal); see also Oliver v. Department of Transportation , 1 M.S.P.R. 382, 386
(1980) (observing that, in making a claim of bias or prejudice against an
administrative judge, a party must overcome the presumption of honesty and
integrity that accompanies administrative adjudicators).
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
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
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. 9
(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: 10
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
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
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
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.12 | Lua_Paula_K_SF-844E-04-0093-C-2__Final_Order.pdf | 2024-06-18 | PAULA K. LUA v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-844E-04-0093-C-2, June 18, 2024 | SF-844E-04-0093-C-2 | NP |
1,209 | https://www.mspb.gov/decisions/nonprecedential/Casimier_SylvesterAT-0831-19-0460-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SYLVESTER CASIMIER, JR.,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0831-19-0460-I-1
DATE: June 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sylvester Casimier, Jr. , Midland, Georgia, 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
dismissed the appeal as barred by the doctrine of res judicata. 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
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).
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 Board has jurisdiction over this appeal,
we AFFIRM the initial decision.
BACKGROUND
The appellant was employed in the position of Distribution Clerk with the
U.S. Postal Service until his removal in March 1997. Casimier v. Office of
Personnel Management , MSPB Docket No. DA-831E-04-0459-I-1,
Initial Decision (0459 ID) at 2 (Apr. 29, 2005). The appellant applied for a
refund of his Civil Service Retirement System (CSRS) retirement contributions in
March 2003 and the Office of Personnel Management (OPM) issued a refund
sometime thereafter. Id. He submitted an application for disability retirement
under CSRS in December 2003, and OPM denied it. Id. Sometime thereafter, the
appellant requested reconsideration of OPM’s determination. Id. In April 2004,
OPM affirmed its denial and noted that, because the appellant had applied for and
received a refund of his retirement contributions, he was precluded from receipt
of any further benefits. Id. at 3.
The appellant filed an appeal with the Board, and the administrative judge
issued an initial decision affirming OPM’s decision. Id. at 8. The appellant filed
a petition for review, which the Board denied in a final order. Casimier v. Office2
of Personnel Management , MSPB Docket No. DA-831E-04-0459-I-1, Final Order
(Sept. 21, 2005). He sought further review from the U.S. Court of Appeals for
the Federal Circuit, which affirmed the Board’s decision. Casimier v. Office of
Personnel Management , 205 F. App’x 839 (Fed. Cir. 2006).
It appears that, despite the outcome of his prior appeal, the appellant
continued to assert to OPM that he was entitled to CSRS annuity benefits.
Initial Appeal File (IAF), Tab 6 at 5. In April 2019, OPM issued a final decision
finding that the appellant was ineligible to receive CSRS annuity benefits because
he applied for and received a refund of his retirement contributions in 2003 and
he was ineligible to make a redeposit of the refund because he was not currently
employed by the Federal Government. IAF, Tab 1 at 2-3. The appellant
subsequently filed this Board appeal challenging OPM’s reconsideration decision.
Id. at 10, 12, 15. During the course of the appeal, OPM stated that it rescinded its
April 2019 decision and moved to dismiss the appeal for lack of jurisdiction or as
barred by res judicata and/or collateral estoppel. IAF, Tab 6 at 5-7. The
appellant did not respond. The administrative judge issued an initial decision
dismissing the appeal as barred by the doctrine of res judicata. IAF, Tab 7, Initial
Decision (0460 ID) at 3-4.
The appellant has filed a petition for review of the initial decision.2
Petition for Review (PFR) File, Tab 1. The agency has filed a response in
opposition, to which the appellant has replied. PFR File, Tabs 4-5.
2 The appellant submits with his petition for review a July 3, 2000 Decision and Order
of the U.S. Department of Labor’s Employees’ Compensation Appeals Board.
PFR File, Tab 1 at 5-10. We have not considered the July 3, 2000 Decision and Order
because it is not new. IAF, Tab 1 at 4-9; see Meier v. Department of the Interior ,
3 M.S.P.R. 247, 256 (1980) (explaining that evidence that is already a part of the
record is not new). For the first time on review, the appellant also submits his
February 12, 1998 application for immediate retirement. PFR File, Tab 1 at 11-13.
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. Avansino v. U.S. Postal Service , 3 M.S.P.R.
211, 214 (1980). The appellant has not made this showing.3
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over this appeal.
The Board has jurisdiction over OPM determinations affecting an
appellant’s rights or interests under the CSRS only after OPM has issued a final
decision, also known as a reconsideration decision. 5 U.S.C. § 8347(d); Morin v.
Office of Personnel Management , 107 M.S.P.R. 534, ¶ 8 (2007),
aff’d, 287 F. App’x 864 (Fed. Cir. 2008); 5 C.F.R. § 831.110. Once OPM
completely rescinds a reconsideration decision, the Board no longer retains
jurisdiction over the appeal in which that reconsideration decision is at issue.
Morin, 107 M.S.P.R. 534, ¶ 8.
Here, as previously noted, OPM stated that it rescinded its April 2019 final
decision. IAF, Tab 6 at 7. However, the administrative judge did not address the
issue of whether OPM’s rescission of this decision divested the Board of
jurisdiction over the appeal. Res judicata is a basis to dismiss an appeal over
which the Board has jurisdiction. Noble v. U.S. Postal Service , 93 M.S.P.R. 693,
¶ 7 (2003). Thus, as an initial matter, we must decide whether the Board has
jurisdiction over this appeal. See Poole v. Department of the Army , 117 M.S.P.R.
516, ¶ 9 (2012) (stating that the issue of jurisdiction is always before the Board
and may be raised by either party or sua sponte by the Board at any time during a
proceeding).
In its motion to dismiss, OPM stated that it rescinded its April 2019
decision because the issue of the appellant’s eligibility for an annuity was
determined in the prior Board appeal. IAF, Tab 6 at 7. When, as here, it is
apparent that OPM does not intend to issue a new reconsideration decision that
addresses the merits of the appellant’s application to receive CSRS annuity
benefits, the Board retains jurisdiction to adjudicate the OPM rescission pleading
as the final appealable decision. See Morin, 107 M.S.P.R. 534, ¶ 9; Luzi v. Office
of Personnel Management , 106 M.S.P.R. 160, ¶ 9 (2007). Thus, we modify the
initial decision to clarify that the Board has jurisdiction over this appeal.4
The administrative judge correctly found that res judicata bars this appeal.
Under the doctrine of res judicata, a valid, final judgment on the merits of
an action bars a second action involving the same parties or their privies based on
the same cause of action. Navarro v. Office of Personnel Management ,
105 M.S.P.R. 278, ¶ 4, aff’d, 252 F. App’x 316 (Fed. Cir. 2007);
Peartree v. U.S. Postal Service, 66 M.S.P.R. 332, 337 (1995). Res judicata
precludes parties from relitigating issues that were, or could have been, raised in
the prior action, and is applicable if the following requirements are met: (1) the
prior judgment was rendered by a forum with competent jurisdiction; (2) the prior
judgment was a final judgment on the merits; and (3) the same cause of action
and the same parties or their privies were involved in both cases. Navarro,
105 M.S.P.R. 278, ¶ 4, Peartree, 66 M.S.P.R. at 337. The same cause of action
means the same set of facts which gives an appellant a right to seek relief from
the agency. Navarro, 105 M.S.P.R. 278, ¶ 4.
The appellant asserts that his prior appeal was based not on his removal but
on whether he was injured on the job in 1988. PFR File, Tab 1 at 1.
The appellant’s argument does not provide a basis for disturbing the initial
decision. The prior appeal, Casimier v. Office of Personnel Management ,
MSPB Docket No. DA -831E-04-0459-I-1, and the current appeal involve the
same cause of action regarding his entitlement to CSRS annuity benefits.
The first criterion for res judicata is satisfied because the Board had jurisdiction
to decide the prior appeal under 5 U.S.C. § 8347(d) and 5 C.F.R. § 831.110.
0459 ID at 1. The second criterion for res judicata is satisfied because the Board
issued a final decision on the merits regarding the appellant’s prior appeal.
Finally, the third criterion is satisfied because, as explained above, the same
cause of action and the same parties were involved in both cases. For these
reasons, we agree with the administrative judge that this appeal is barred by the
doctrine of res judicata. 0460 ID at 3.5
For the first time on review, the appellant asserts that he was given poor
advice that he should retire after 30 years of service and that he needed not
respond to the agency’s motion to dismiss. PFR File, Tab 1 at 2-3. The Board
will generally 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 not made this
showing.
Thus, we affirm the initial decision, as modified herein.
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
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
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 obtain7
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 8
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. 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 | Casimier_SylvesterAT-0831-19-0460-I-1__Final_Order.pdf | 2024-06-18 | null | AT-0831-19-0460-I-1 | NP |
1,210 | https://www.mspb.gov/decisions/nonprecedential/Baldwin_Brandy_S_DA-0714-20-0041-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRANDY S. BALDWIN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-0714-20-0041-I-1
DATE: June 17, 2024
THIS ORDER IS NONPRECEDENTIAL1
Don Edge , San Antonio, Texas, for the appellant.
Robert Burlison, III , Esquire, Washington, D.C., for the agency
Brian Danilowicz , Esquire, Dallas, 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
affirmed her removal under 38 U.S.C. § 714. 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).
REMAND the case to the Dallas Regional Office for further adjudication in
accordance with this Remand Order.
BACKGROUND
¶2The appellant was a GS-7 Lead Medical Support Assistant for the agency.
Initial Appeal File (IAF), Tab 1 at 7. Effective November 1, 2019, the agency
removed her based on three charges: (1) failure to follow supervisory instructions
(four specifications); (2) inappropriate conduct (two specifications); and
(3) absence without leave (AWOL) (four specifications).2 IAF, Tab 7 at 9-12.
¶3The appellant filed a Board appeal, challenging the merits of the agency’s
action and raising affirmative defenses of race discrimination, retaliation for
equal employment opportunity (EEO) activity, and harmful procedural error or
denial of due process. IAF, Tab 1 at 4, Tab 15 at 2-3. After a hearing, the
administrative judge issued an initial decision affirming the appellant’s removal.
IAF, Tab 17, Initial Decision (ID). Therein, she sustained three of the four
specifications of failure to follow supervisory instructions charge (and thus the
charge) and both specifications of the inappropriate conduct charge, but she did
not sustain the AWOL charge. ID at 3-14. Nevertheless, the administrative judge
found that the removal penalty was not grossly disproportionate to the proven
misconduct, and that the appellant failed to prove any of her affirmative defenses.
ID at 15-20.
¶4The appellant has filed a petition for review, challenging the administrative
judge’s findings on the sustained specifications and affirmative defenses, and
contesting some of her procedural rulings. Petition for Review (PFR) File, Tab 1.
The agency has filed a response. PFR File, Tab 3.
2 The October 15, 2019 notice of proposed removal included seven specifications to the
failure to follow supervisory instructions charge; the deciding official sustained four of
the seven specifications. IAF, Tab 7 at 9-10, 32-35. 2
DISCUSSION OF ARGUMENTS ON REVIEW
¶5In an appeal of an adverse action taken under 38 U.S.C. § 714(a), the
agency bears the burden of proving its charges by substantial evidence.
38 U.S.C. § 714(d)(2)(a). If the agency meets this standard, the Board may not
mitigate the agency’s chosen penalty, but it is nevertheless required to review the
penalty as part of the agency’s overall decision. 38 U.S.C. § 714(d)(2)(B), (3)
(C). Further, the agency’s decision may not be sustained if the appellant shows
that the decision was based on a prohibited personnel practice described in
5 U.S.C. § 2302(b), was the product of harmful procedural error, or was taken in
violation of her right to due process. 5 U.S.C. § 7701(c)(2)(A)-(B); Stephen
v. Department of the Air Force, 47 M.S.P.R. 672, 680-81 (1991); 5 C.F.R.
§ 1201.56(b)(2)(i)(C). As explained below, although we discern no error in the
administrative judge’s decision to sustain the failure to follow supervisory
instructions and inappropriate conduct charges and to deny the appellant’s
affirmative defenses, we nonetheless must remand this appeal, consistent with
Semenov v. Department of Veterans Affairs, 2023 MSPB 16.
We discern no error in the administrative judge’s decision to sustain the failure to
follow supervisory instructions and inappropriate conduct charges.
Failure to follow supervisory instructions
¶6In the initial decision, the administrative judge sustained three of the four
specifications (specifications 1, 5, and 6). ID at 3-8. On review, the appellant
challenges each sustained specification. PFR File, Tab 1 at 5. As explained
below, the appellant’s arguments do not persuade us to disturb the administrative
judge’s findings.
¶7Under Specification 1 of the failure to follow supervisor instructions
charge, the agency alleged as follows: “On August 05, 2019, your supervisor . . .
asked you to come into her office for a discussion, and you refused. When she
asked if you were refusing orders, you responded I think so. You failed to follow3
your supervisor’s instruction.” IAF, Tab 7 at 9. The administrative judge
sustained this charge, finding that, although the appellant eventually reported to
her supervisor’s office, the appellant admitted that she failed to do so promptly,
as directed. ID at 3-5.
¶8On petition for review, the appellant emphasizes that she reported to her
supervisor’s office after consulting with her union representative. PFR File,
Tab 1 at 5. She also argues that the administrative judge improperly credited her
supervisor’s testimony over hers. Id. As an initial matter, we find that the
administrative judge sustained this specification based on undisputed facts, so
witness credibility was immaterial. See Hawkins v. Smithsonian Institution,
73 M.S.P.R. 397, 406 (1997). Furthermore, although the appellant eventually
reported to her supervisor’s office as instructed, we agree with the administrative
judge that her initial failure to do so is sufficient to sustain this specification. ID
at 4.
¶9Under Specification 5 of this charge, the agency alleged as follows:
On June 24, 2019, you were instructed by your supervisor . . . that
you would be temporarily assigned to Community Care Clinics,
and you stated, “I don’t agree”. When [your supervisor] asked to
clarify that you were refusing her order, you replied “Yes I’m
refusing”. You did not follow your supervisor’s instruction.
IAF, Tab 7 at 9-10. The administrative judge sustained this specification,
crediting the supervisor’s testimony that the appellant did not do the Community
Care work over the appellant’s testimony that she did do the work. ID at 5-6.
¶10On review, the appellant argues that the evidence on this specification was
limited to her supervisor’s word against hers and, apart from her supervisor’s
disputed testimony, there was not substantial evidence to support the
specification. PFR File, Tab 1 at 5. However, substantial evidence is a lower
level of proof than preponderant evidence, Dela Casa v. Office of Personnel
Management, 60 M.S.P.R. 287, 290, review dismissed, No. 94-3205, 1994 WL
745160 (Fed. Cir. 1994); see 5 C.F.R. § 1201.4(p)-(q), and moreover, in the face4
of conflicting testimony, an administrative judge is authorized to make credibility
determinations as to which version of events to believe, see Richard v.
Department of Defense, 66 M.S.P.R. 146, 159 (1995), modified on other grounds
by Buckler v. Federal Retirement Thrift Investment Board, 73 M.S.P.R. 476, 497
(1997). The administrative judge made a reasoned and explained credibility
determination with respect to this specification, based partly on witness
demeanor, and we find that the appellant has not provided a sufficiently sound
reason for the Board to depart from the administrative judge’s finding. ID at 5-6;
see Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002)
(finding that 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, and the Board
may overturn such determinations only when it has “sufficiently sound” reasons
for doing so).
¶11Under Specification 6, the agency alleged that, “[o]n June 19 and 20, 2019,
you were instructed by your acting supervisor . . . to input [overtime] forms in
[the agency’s Time and Attendance System]. You failed to input the [overtime]
into the system as instructed. Therefore, you failed to follow your supervisor’s
instruction.” IAF, Tab 7 at 10. The administrative judge sustained this
specification, finding it undisputed that the appellant never entered the forms as
instructed, and that another employee eventually entered them instead. ID at 7.
¶12On petition for review, the appellant argues that the forms were entered by a
backup timekeeper within 24 hours as required, and that the only reason she did
not do so herself was that she was incapacitated, having taken sick leave the
morning after she was assigned the task at issue. PFR File, Tab 1 at 5. The
appellant again argues that the administrative judge improperly credited her
supervisors’ testimony over hers. Id. We have considered the appellant’s
arguments, but we do not find that they warrant reversal of the specification.
Witness credibility was not at issue because the appellant admitted to not entering5
the time forms. ID at 7. Furthermore, as the administrative judge correctly
found, intent is not an element of a charge of failure to follow instructions. Id.;
Hamilton v. U.S. Postal Service, 71 M.S.P.R. 547, 556 (1996). It appears that the
appellant may have initially intended to enter the overtime forms as instructed
when illness intervened, and she was forced to take sick leave before completing
the task. Id. However, the appellant’s failure to follow a valid supervisory
instruction, for whatever reason, was sufficient to support the specification. See
Powell v. U.S. Postal Service, 122 M.S.P.R. 60, ¶ 5 (2014). Any inadvertency in
the appellant’s failure to enter the overtime forms goes to the issue of penalty, as
does the fact that the forms were timely entered by another individual. See
Hamilton, 71 M.S.P.R. at 556.
¶13Based on the foregoing, we discern no basis to disturb the administrative
judge’s decision to sustain the failure to follow supervisory instructions charge.
See Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990)
(explaining that proof of one or more, but not all, specifications supporting a
charge is sufficient to sustain the charge).
Inappropriate conduct
¶14In the initial decision, the administrative judge sustained both specifications
of the inappropriate conduct charge. ID at 9-12. The appellant challenges these
findings on review. PFR File, Tab 1 at 5-6. Under Specification 1, the agency
alleged that, “[o]n June 18, 2019, during a phone conversation with your
supervisor . . . you raised your voice to her twice, and also hung up the phone on
her. This was inappropriate conduct towards your supervisor.” IAF, Tab 7 at 10.
In sustaining this specification, the administrative judge credited the supervisor’s
account of these events. ID at 9-10.
¶15On petition for review, the appellant argues that her supervisor also raised
her voice during the same conversation but that the agency did not discipline her
supervisor. PFR File, Tab 1 at 5. She also disputes the administrative judge’s6
decision to credit the supervisor’s testimony. Id. We agree with the
administrative judge, however, that the appellant’s supervisor’s possible
inappropriate behavior does not excuse the appellant’s actions, which were also
inappropriate as charged. ID at 10. Nor has the appellant provided us a
sufficiently sound reason to overturn the administrative judge’s reasoned and
explained credibility determinations. ID at 9-10; see Haebe, 288 F.3d at 1301.
To the extent that the appellant may have been provoked by her supervisor or
believes she was treated disparately from her supervisor, this would go to the
issue of penalty. See Douglas v. Veterans Administration, 5 M.S.P.R. 280,
305-06 (1981).
¶16Under Specification 2, the agency alleged that, “[o]n August 29, 2019, two .
. . employees . . . overheard you speaking to [a coworker], where you stated, I
don’t give a f--- what they say or what she thinks, or words to that effect. This
type of language is unacceptable and is inappropriate conduct.” IAF, Tab 7 at 10.
The administrative judge sustained this specification, crediting the testimony of
various individuals that the appellant committed the misconduct described over
the appellant’s denial of the same. ID at 10-12.
¶17On review, the appellant again questions the administrative judge’s
credibility determinations, but we find that these credibility determinations as set
forth in the initial decision were reasonable, and we decline to disturb them.
PFR File, Tab 1 at 5-6; ID at 11; see Haebe, 288 F.3d at 1301. The appellant also
asserts that the agency did not discipline the coworkers with whom she was
having the conversation at issue. PFR File, Tab 1at 6. However, there is no
allegation that the appellant’s coworkers were using inappropriate language. The
appellant’s arguments on review do not provide a basis to disturb the
administrative judge’s findings or her ultimate decision to sustain the
specification. 7
¶18Based on the foregoing, we discern no error in the administrative judge’s
decision to sustain the failure to follow supervisory instructions and inappropriate
conduct charges.
We discern no error in the administrative judge’s rulings on the appellant’s
affirmative defenses.
Discrimination/reprisal
¶19As noted, the appellant raised affirmative defenses of discrimination based
on race, reprisal for EEO activity, harmful error, and a due process violation.
IAF, Tab 15 at 2-3. Regarding the race discrimination and EEO reprisal claims,
in the initial decision, the administrative judge appropriately stated that the
appellant must show that the prohibited consideration was a motivating factor in
agency action. ID at 16; see Pridgen v. Office of Management and Budget,
2022 MSPB 31, ¶¶ 20-22, 30. She concluded that the appellant failed to meet that
burden. ID at 16-17. On petition for review, the appellant broadly reasserts that
the agency retaliated against her for EEO activity.3 PFR File, Tab 1 at 5-6.
However, her general statements in this regard constitute mere disagreement with
the administrative judge’s reasoned and explained findings, and they, therefore,
provide no basis to disturb the initial decision. See Weaver v. Department of the
Navy, 2 M.S.P.R. 129, 133-34 (1980) (finding that mere disagreement with the
administrative judge’s findings and credibility determinations does not warrant
full review of the record by the Board), review denied, 669 F.2d 613 (9th Cir.
3 The appellant also asserts that the agency retaliated against her for union activity.
PFR File, Tab 1 at 4. This was not an issue that the administrative judge identified for
adjudication in her prehearing conference summary, and the appellant did not object to
the exclusion of this issue despite her opportunity to do so. IAF, Tab 15 at 2-3, 8. We
therefore decline to consider this claim for the first time on petition for review. See
Thurman v. U.S. Postal Service, 2022 MSPB 21, ¶ 18 (setting forth a nonexhaustive list
of factors for the Board to consider when determining whether an appellant will be
deemed to have waived or abandoned an affirmative defense); see also Bratton
v. Department of the Air Force, 66 M.S.P.R. 180, 181 (1995 ) (finding that an
administrative judge did not err by not deciding a reprisal issue when it was not
mentioned in the prehearing conference summary and the appellant did not object to it
not being mentioned despite the opportunity to do so).8
1982) (per curiam). The appellant does not contest the administrative judge’s
findings regarding her race discrimination claim. 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.”). We find that the administrative judge’s analyses of the
appellant’s discrimination and retaliation affirmative defenses are sound on their
face, and we discern no basis to disturb her findings.4
Due process violation/harmful error
¶20The appellant argued that the agency denied her due process or committed
harmful procedural error by denying her access to union representation during the
removal process. ID at 18. When a tenured Government employee faces removal
from her position, minimum due process of law entails prior notice of and an
opportunity to respond to the reasons for the removal . Cleveland Board of
Education v. Loudermill, 470 U.S. 532, 546 (1985). The Board has found that
there is a due process right to representation during such administrative
proceedings. Ashford v. Department of Justice, 6 M.S.P.R. 458, 464 (1981). The
separate but related concept of harmful procedural error requires a showing both
that the agency committed procedural error in arriving at its decision and that the
error was harmful. Parker v. Defense Logistics Agency, 1 M.S.P.R. 505, 513
(1980).
¶21In the initial decision, the administrative judge found that the appellant’s
union had been decertified as the exclusive bargaining unit representative during
the relevant time period, but that the appellant still could have requested union
representation, although she did not do so. ID at 18-19; PFR File, Tab 1 at 7.
She also found that the agency specifically notified the appellant in its notice of
4 Because we discern no basis to disturb the administrative judge’s finding that the
appellant failed to meet her initial burden to prove that discrimination based on race or
retaliation for EEO activity were motivating factors in the agency’s action, we need not
address “but for” causation. See Wilson v. Small Business Administration, 2024 MSPB
3, ¶¶ 11-19; see also Pridgen, 2022 MSPB 31, ¶¶ 20-22, 30.9
proposed removal that she had the right to be represented during her reply. ID
at 19; IAF, Tab 7 at 34.
¶22On review, the appellant argues that a September 11, 2019 memorandum
from the agency informing employees in her work unit that the union was
currently unable to provide certification for exclusive representation contradicted
the language in the notice of proposed removal that she had the right to
representation. PFR File, Tab 1 at 5, 7; IAF, Tab 7 at 34. However, we see
nothing contradictory about these two documents, both of which were accurate.
The agency is not at fault for the appellant’s mistaken belief that the union’s loss
of exclusive representational status meant that a union official could not represent
her during the administrative proceedings. Nor did the agency prevent the
appellant from obtaining non-union representation as the notice of proposed
removal clearly stated she was permitted to do. IAF, Tab 7 at 34. For the reasons
explained in the initial decision, we agree with the administrative judge that the
appellant did not establish harmful procedural error or a violation of due process
in this regard. ID at 18-20.
¶23The appellant also argues that the agency denied her due process by
“stacking up” charges against her and not giving her any warning or counseling
before proposing her removal. PFR File, Tab 1 at 4. As an initial matter, we find
that the appellant is raising this issue for the first time on petition for review
without showing that it is based on previously unavailable evidence. See Banks v.
Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) (stating 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). Furthermore, we find that these
matters, which occurred prior to the notice and response period, do not implicate
the appellant’s due process rights. Nor has the appellant identified any sort of
rule that would have required the agency to take the course of action she suggests.10
Based on the foregoing, we discern no basis to disturb the administrative judge’s
findings regarding the appellant’s due process and harmful error claims.
We discern no abuse of discretion in the administrative judge’s handling of the
proceedings.
¶24Under 5 C.F.R. § 1201.41(b), an administrative judge has broad authority to
govern the proceedings before her, including the authority to rule on witnesses,
conduct prehearing conferences, and receive relevant evidence. The Board will
review an administrative judge’s rulings on such matters under an abuse of
discretion standard. See Fox v. Department of the Army, 120 M.S.P.R. 529, ¶ 42
(2014); 5 C.F.R. § 1201.115(c). An abuse of discretion occurs when a procedural
decision impairs a party’s right to a fair and impartial adjudication. Law
v. Department of the Treasury, 5 M.S.P.R. 141, 144 (1981).
¶25In this case, the appellant argues that the administrative judge denied
several of her proffered witnesses on the basis that their testimony would have
been duplicative but that she allowed duplicative testimony from agency
witnesses. PFR File, Tab 1 at 4. As an initial matter, we find that the avoidance
of repetitious testimony is a sound and well-established basis for an
administrative judge to disallow a proffered witness. Roth v. U.S. Postal Service,
54 M.S.P.R. 290, 295 (1992); 5 C.F.R. § 1201.41(b)(10). Furthermore, even
assuming that the administrative judge allowed repetitious testimony from agency
witnesses, there is no reason to suppose this might have put the agency at any sort
of advantage. Although repetitious testimony concerning disputed facts may help
an administrative judge decide which version of events to believe, see Hillen
v. Department of the Army, 35 M.S.P.R. 453, 458 (1987) (listing consistency of
evidence as a factor to consider in evaluating witness credibility), repetitious
testimony concerning undisputed facts is generally redundant and serves only to
lengthen the hearing. After reviewing the expected testimony of the denied
witnesses as summarized by the appellant on review, we find that none of this
testimony concerned material facts in dispute and that the administrative judge11
did not abuse her discretion in denying these witnesses. PFR File, Tab 1 at 4;
IAF, Tab 15 at 6.
¶26The appellant also raises a challenge concerning a piece of documentary
evidence. Several agency officials used a standard agency “Report of Contact”
form to document incidents with the appellant, and the agency submitted these
Reports of Contact for the record. IAF, Tab 7 at 38-39, 42, 45, 52-53, 58-60.
One Report of Contact bears an illegible signature, and, during the prehearing
conference, the administrative judge denied the appellant’s request for testimony
from the unidentified signatory. IAF, Tab 7 at 39, Tab 14 at 4, Tab 15 at 6. On
petition for review, the appellant contests the administrative judge’s ruling and
also appears to raise an issue of authentication. PFR File, Tab 1 at 4. However,
we decline to consider the propriety of the administrative judge’s ruling or the
admissibility of the document because we find that it is not material to the
outcome of the appeal. See Karapinka v. Department of Energy, 6 M.S.P.R. 124,
127 (1981) (holding that a n administrative judge’s procedural error is of no legal
consequence unless it is shown to have adversely affected a party’s substantive
rights).
¶27Specifically, this Report of Contact concerns Charge 1, Specification 2,
which the deciding official did not sustain and was not a basis for the appellant’s
removal in the first place. IAF, Tab 7 at 32, 39. The administrative judge did not
rely on the Report of Contact in reaching her decision, and the appellant has not
explained how this piece of evidence otherwise fits into her theory of the case.
¶28The appellant further argues that the administrative judge improperly
prevented her from speaking during the prehearing conference, insisting that her
representative be the only one to speak. PFR File, Tab 1 at 4. She asserts that
this prevented her from conferring with her representative even though the
administrative judge allowed her to speak during previous telephonic conferences.
Id. However, we find that the administrative judge acted within her discretion to
conduct an orderly prehearing conference, and in any event, the appellant has not12
explained what she intended to say during the prehearing conference or how this
might have been material to the outcome of the appeal. See Karapinka,
6 M.S.P.R. at 127.
¶29Based on the foregoing, we find that the appellant failed to show that the
administrative judge abused her discretion in handling the proceedings below.
We remand this appeal in accordance with Semenov v. Department of Veterans
Affairs , 2023 MSPB 16.
¶30Although we ultimately agree with the administrative judge’s decision to
sustain the failure to follow supervisory instructions and inappropriate conduct
charges and to deny the appellant’s affirmative defenses, remand is still
necessary. In the decision notice removing the appellant, the deciding official
applied the substantial evidence standard to his review of the removal action.
IAF, Tab 7 at 9. After the issuance of the initial decision in this matter, the U.S.
Court of Appeals for the Federal Circuit decided Rodriguez v. Department of
Veterans Affairs, 8 F.4th 1290 (Fed. Cir. 2021). In Rodriguez, 8 F.4th
at 1296-1301, the court found that the agency had erred by applying the
substantial evidence standard of proof to its internal review of a disciplinary
action under 38 U.S.C. § 714. The court found that substantial evidence is the
standard of proof to be applied by the Board, not the agency, and that the
agency’s deciding official must apply the preponderance of the evidence standard
to “determine” whether the appellant’s “performance or misconduct . . . warrants”
the action at issue. See Semenov, 2023 MSPB 16, ¶ 21 (quoting Rodriguez,
8 F.4th at 1298-1301 (quoting 38 U.S.C. § 714(a)(1))); see also Bryant v.
Department of Veterans Affairs, 26 F.4th 1344, 1347 (Fed. Cir. 2022) (agreeing
with a petitioner that the agency’s decision was “legally flawed” when the
deciding official found the charge proved merely by substantial evidence rather
than preponderant evidence, as required under Rodriguez).
¶31The Federal Circuit’s decision in Rodriguez applies to all pending cases,
regardless of when the events at issue took place. Semenov, 2023 MSPB 16, ¶ 22.13
The administrative judge and the parties did not have the benefit of Rodriguez or
the Board’s application of it in Semenov; therefore, we are unable to address its
impact on this appeal. Accordingly, following the return of the appeal to the
administrative judge after the agency issues its penalty redetermination, as
addressed in greater detail below, the administrative judge shall adjudicate
whether the agency’s application of the substantial evidence standard of proof
was harmful error. See id., ¶¶ 22-24 (finding it appropriate to apply the harmful
error standard from 5 U.S.C. § 7701(c)(2) to actions taken under 38 U.S.C.
§ 714).
¶32We must also remand this appeal on the issue of the penalty. As noted
above, the administrative judge correctly acknowledged that she was unable to
mitigate the penalty pursuant to 38 U.S.C. § 714(d)(2)(B). ID at 20. She
concluded, without discussion, that the removal penalty was “not grossly
disproportionate to the proven misconduct.” Id. The appellant did not challenge
the administrative judge’s handling of the penalty on review. PFR File, Tab 1.
However, following the issuance of the initial decision, the Federal Circuit issued
Sayers v. Department of Veterans Affairs, 954 F.3d 1370 (Fed. Cir. 2020),
wherein it clarified that 38 U.S.C. § 714 requires the Board “to review for
substantial evidence the entirety of the [agency’s] removal decision—including
the penalty.” Sayers, 990 F.3d at 1379; see Semenov, 2023 MSPB 16, ¶ 45. After
it issued Sayers, the Federal Circuit explained in Connor v. Department of
Veterans Affairs, 8 F.4th 1319, 1325-26 (Fed. Cir. 2021), that the agency and the
Board must still apply the Douglas factors5 to the selection and review of
penalties in disciplinary actions taken under 38 U.S.C. § 714. See Semenov,
2023 MSPB 16, ¶ 49.
¶33Here, the administrative judge made no finding regarding whether the
penalty of removal was supported by substantial evidence. Additionally, the
5 In Douglas, 5 M.S.P.R. at 305-06, the Board articulated a nonexhaustive list of factors
relevant to the penalty determination in adverse actions.14
deciding official stated in the decision notice only that removal was warranted
due to the appellant’s “egregious behavior” and the fact that she held a position
of trust. IAF, Tab 7 at 10. We find that this discussion does not sufficiently
establish that the deciding official considered the Douglas factors. See Holmes
v. U.S. Postal Service, 987 F.3d 1042, 1047 (Fed. Cir. 2021) (explaining that the
Board is required to determine whether the agency has responsibly balanced the
factors delineated in Douglas). Additionally, given the lack of evidence in the
record regarding the issue of penalty and the administrative judge’s decision not
to sustain all of the charges, we are unable to determine whether the penalty of
removal is supported by substantial evidence. Accordingly, we must remand the
appeal for a reconsideration or redetermination of the penalty. See Connor,
8 F.4th at 1326-27 (stating that, if the Board determines that the agency failed to
consider the Douglas factors or that the chosen penalty is unreasonable, the Board
must remand to the agency for a redetermination of the penalty); see also Brenner
v. Department of Veterans Affairs, 990 F.3d 1313, 1325 (Fed. Cir. 2021)
(explaining that, if the Board concludes that the agency’s removal decision is
unsupported by substantial evidence, it should remand to the agency for further
proceedings); Semenov, 2023 MSPB 16, ¶ 49.
ORDER
¶34For the reasons discussed above, we remand this case to Dallas Regional
Office for further adjudication in accordance with Semenov, 2023 MSPB 16, and
this Remand Order. On remand, the administrative judge shall first set a deadline
for the agency to conduct the penalty redetermination, reissue an agency decision,
and notify the administrative judge of that decision.
¶35After the agency provides the administrative judge with the penalty
redetermination, the administrative judge shall then address whether the agency’s
error in applying the substantial evidence standard of proof to its original action
was harmful, see 5 U.S.C. § 7701(c)(2)(A); Semenov, 2023 MSPB 16, ¶¶ 21-24,15
and whether its new penalty is supported by substantial evidence, see Connor,
8 F.4th at 1325-26. In so doing, she shall provide the parties with an opportunity
to present evidence and argument addressing these issues.6
¶36The administrative judge shall then issue a new initial decision including
her findings on whether the agency committed harmful error in applying the
substantial evidence standard of proof to its action, and if not, whether the
penalty is supported by substantial evidence. See 5 U.S.C. § 7701(a)(1), (b)(1);
Semenov, 2023 MSPB 16, ¶¶ 24-25. Regardless of whether the appellant proves
harmful error in the agency’s application of the substantial evidence standard of
proof in its initial decision, if any argument or evidence adduced on remand
affects the administrative judge’s prior analysis on the appellant’s affirmative
defenses, she should address such argument or evidence in the remand decision.
See Semenov, 2023 MSPB 16, ¶ 25. When issuing a new initial decision on these
matters, the administrative judge may incorporate the findings and conclusions of
the prior initial decision, consistent with this Remand Order, into the new initial
decision.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
6 The administrative judge shall hold a hearing limited to the issues on remand if one is
requested by the appellant. See 5 U.S.C. § 7701(a)(1), (b)(1); see also Semenov,
2022 MSPB 16, ¶ 24 (instructing the administrative judge to hold a supplemental
hearing addressing whether the agency’s use of the substantial evidence standard in a
38 U.S.C. § 714 removal decision constituted harmful error). 16 | Baldwin_Brandy_S_DA-0714-20-0041-I-1__Remand_Order.pdf | 2024-06-17 | BRANDY S. BALDWIN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-0714-20-0041-I-1, June 17, 2024 | DA-0714-20-0041-I-1 | NP |
1,211 | https://www.mspb.gov/decisions/nonprecedential/Hartman_JudyDC-0353-18-0659-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JUDY HARTMAN,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-0353-18-0659-I-1
DATE: June 17, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Judy Hartman , Wedgefield, South Carolina, pro se.
Linda Banks , 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 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
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 jurisdictional analysis, we AFFIRM the initial decision.
BACKGROUND
The appellant was formerly employed as a Management Specialist in the
agency’s Naval Reserve Intelligence Command. Initial Appeal File (IAF), Tab 4
at 6-7. On September 12, 2008, the agency suspended her access to Sensitive
Compartmented Information (SCI) based on information it had received regarding
her mental and emotional stability. Id. at 8. At some point thereafter, the
appellant was indefinitely suspended from her position pending a decision by the
agency’s Central Adjudication Facility (DONCAF) regarding her eligibility for a
security clearance, access to SCI, and assignment to a sensitive position. Id. at
15. On July 8, 2009, DONCAF rendered a decision in the appellant’s favor, on
the condition that she continue taking medication as prescribed by her psychiatrist
and advise her command of any change in her diagnosis or treatment. Id. at 14.
Subsequently, on July 17, 2009, the agency sent a letter by Federal Express to the
appellant’s address of record, directing her to report for duty on July 27, 2009.
Id. The appellant did not respond to the letter or report for duty, and on
July 28, 2009, the agency sent a second letter, with return receipt requested,2
directing her to report to work on August 3, 2009. Id. Again, the appellant did
not respond or return to duty. Id.
By notice dated August 14, 2009, the agency proposed to remove the
appellant for abandonment of her position. Id. at 15-16. The appellant provided
a written response, in which she acknowledged her failure to notify the agency of
her change of address. Id. at 17-18. On September 16, 2009, the agency notified
the appellant of its decision to remove her effective September 18, 2009. Id.
at 19-20.
On June 14, 2018, the appellant filed an appeal challenging her removal.
Hartman v. Department of the Navy , MSPB Docket No. DC-0752-18-0600-I-1,
Appeal File (0600 AF), Tab 1. In the course of that proceeding, she filed a
pleading, dated July 11, 2018, in which she asserted that she “was entitled to
restoration” under Swaney v. Department of the Army , 19 M.S.P.R. 440 (1984).
0600 AF, Tab 10; IAF, Tab 1. Swaney was also an appeal of a removal action,2
and context suggests that the appellant was arguing that her removal should
be reversed, not that she had been denied restoration as the term is used in
5 C.F.R. part 353. Nonetheless, the administrative judge construed the
appellant’s claim as an alleged denial of restoration and docketed a separate
appeal, which is the case now before us. 0600 AF, Tab 11 at 2; IAF, Tab 1.
The administrative judge notified the appellant that the restoration appeal
appeared to be outside the Board’s jurisdiction and afforded her an opportunity to
submit evidence and argument on the issue. IAF, Tab 3. However, the
administrative judge did not state the current jurisdictional standard for
restoration appeals by partially recovered employees, as set forth in
2 The appellant in Swaney was separated based on the agency’s determination that he
had voluntarily abandoned his position. The presiding official reversed the action,
finding that the appellant did not voluntarily abandon his position and that the agency
failed to provide him the procedural protections mandated by law. The Board affirmed,
finding that, contrary to the agency’s assertions, the appellant’s separation was
involuntary because his absence was due to the need for medical treatment. Swaney,
19 M.S.P.R. at 442-43.3
Hamilton v. U.S. Postal Service , 123 M.S.P.R. 404, ¶ 12 (2016). The
administrative judge also did not address the jurisdictional standards applicable to
restoration appeals brought by fully recovered employees. IAF, Tab 3. The
appellant responded to the show cause order but did not allege that she was
denied restoration as an employee partially or fully recovered from a
compensable injury. IAF, Tabs 4, 7.
On August 13, 2018, the administrative judge dismissed the removal appeal
for lack of jurisdiction.3 0600 AF, Tab 18. Subsequently, on August 31, 2018,
the administrative judge issued an initial decision dismissing the instant appeal
for lack of jurisdiction. IAF, Tab 17, Initial Decision (ID). In doing so, she
found that the appellant had failed to present evidence that her separation was due
to a medical condition or compensable injury. ID at 7.
On September 20, 2018, the appellant filed a petition for review, bearing
the docket number of the instant appeal. Petition for Review (PFR) File, Tab 1.
In her petition, she contested the administrative judge’s finding that she failed to
provide evidence she was absent due to a medical condition or a compensable
injury. Id. at 4. She pointed out that her psychiatric issues were the reason her
clearance was suspended in the first instance. Id. She further argued that, like
the appellant in Swaney, she did not voluntarily abandon her position. Id. The
agency filed a response, arguing in general terms that the appellant’s petition
does not meet the criteria for review. PFR File, Tab 3. On December 12, 2018,
after the close of the record on review, the appellant filed a reply to the agency’s
3 As the administrative judge observed, the definition of an “employee” with appeal
rights under 5 U.S.C. § 7511 excludes employees of an intelligence activity of a
military department covered under chapter 83 of title 10, with the exception of a
preference eligible employee in the excepted service who has completed 1 year of
current continuous service in the same or similar positions. 5 U.S.C. § 7511(b)(8); see
Rice v. Merit Systems Protection Board , 522 F.3d 1311, 1319 (Fed. Cir. 2008). The
record reflects that the appellant had an excepted service appointment under the
authority of 10 U.S.C. § 1601, which covers civilian intelligence personnel, and that she
was not preference eligible. IAF, Tab 4 at 6. 4
response. PFR, File, Tab 4. Unlike the September 20, 2018 submission, the reply
bears the docket number of the removal appeal. Id. at 4.
On December 13, 2018, the Clerk of the Board issued a notice requesting
that the appellant clarify whether she intended her September 20, 2018
submission as a petition for review in both the removal appeal and the restoration
appeal, or the restoration appeal only. PFR File, Tab 4. The appellant was
notified that if she did not respond to the notice on or before December 20, 2018,
her September 20, 2018 submission would be treated as a petition for review in
the restoration appeal only. Id. The appellant did not file a timely response.
Accordingly, we consider her September 20, 2018 submission as a petition for
review of the initial decision dismissing the restoration appeal.
On March 6, 2019, the Clerk issued a show cause order describing in full
the jurisdictional standards for appeals contesting a denial of restoration under
5 C.F.R. part 353. PFR File, Tab 6. The appellant was directed to clarify
whether she claimed to have been denied restoration as an employee fully
recovered within 1 year, an employee fully recovered after 1 year, or a partially
recovered employee, and to provide evidence and argument establishing that the
Board has jurisdiction over her appeal. Id. at 4. The order further stated that, if
possible, the appellant should provide correspondence with the Office of
Workers’ Compensation Programs (OWCP) establishing that she was awarded
compensation and, if her compensation was terminated, the date of termination.
Id. The appellant was also instructed to provide any documentation indicating
that the agency denied her restoration or failed to restore her properly, and any
relevant medical evidence concerning the extent of her recovery. Id. at 4-5.
In her response, the appellant asserts that she was entitled to restoration
under 5 C.F.R. § 353.301(a) because she “was fully capable, despite [her]
disability to assume [her] position within a year.” PFR File, Tab 7 at 4. She
further states that her termination was not voluntary. Id. She again states that5
she is “entitled to restoration” under Swaney.4 Id. The agency has also filed a
response, in which it observes that the appellant has not shown or alleged that her
disability was the result of a compensable injury. PFR File, Tab 8 at 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
Under the Federal Employees’ Compensation Act, 5 U.S.C. § 8151(b),
Federal employees who suffer compensable job-related injuries enjoy
certain rights to be restored to their previous or comparable positions. See
Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365, ¶ 9 (2016). Congress has
granted the Office of Personnel Management (OPM) the authority to issue
regulations governing the obligations of employing agencies in this regard.
5 U.S.C. § 8151(b). Pursuant to this authority, OPM has issued regulations
requiring agencies to make certain efforts toward restoring employees with
compensable injuries5 to duty, depending on the timing and extent of their
recovery. 5 C.F.R. § 353.301; see Smith v. U.S. Postal Service, 81 M.S.P.R. 92,
¶ 6 (1999).
Under these regulations, an employee who fully recovers6 from a
compensable injury within 1 year from the date eligibility for compensation
began is entitled to be restored immediately and unconditionally to her former
position or an equivalent one. 5 C.F.R. § 353.301(a). An employee whose full
recovery takes longer than 1 year from the date she became eligible for
compensation is entitled to priority consideration for restoration to the position
she left or an equivalent one, provided she applies for restoration within 30 days
4 The appellant also provides partial citations to two other cases, which appear to be
Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365 (2016), and Kitt v. Department of the
Army, 22 M.S.P.R. 32 (1984). Neither decision affects the outcome of this case.
5 The regulations define an “injury” as “a compensable injury sustained under the
provisions of 5 U.S.C. chapter 81, subchapter 1, [including], in addition to accidental
injury, a disease proximately caused by the employment.” 5 C.F.R. § 353.102.
6 An employee is considered fully recovered if compensation payments have been
terminated on the basis the employee is able to perform all the duties of the position she
left or an equivalent. 5 C.F.R. § 353.102(2). 6
of the cessation of compensation. 5 C.F.R. § 353.301(b). The regulations also
require that an agency must make every effort to restore in the local commuting
area, according to the circumstances in each case, an individual who has partially
recovered7 from a compensable injury and who is able to return to limited duty.
5 C.F.R. § 353.301(d).
Although 5 U.S.C. § 8151 does not itself provide for an appeal right to the
Board, the regulation at 5 C.F.R. § 353.304 provides Board appeal rights to
individuals affected by restoration decisions under 5 C.F.R. § 353.301. These
appeal rights are also dependent to some degree on the timing and extent of
recovery. 5 C.F.R. § 353.304. The Board’s own regulations in turn provide that,
in order to establish jurisdiction over an appeal arising under 5 C.F.R. § 353.304,
an appellant must make nonfrivolous allegations8 with regard to the substantive
jurisdictional elements. 5 C.F.R. § 1201.57(a)(4), (b). In accordance with these
regulations, the Board has determined that, depending on the timing and extent
of recovery, an appellant seeking to contest a denial of restoration under
5 C.F.R. part 353 must accomplish the following to establish the Board’s
jurisdiction.
In the case of an appellant who alleges that the agency denied her
restoration under 5 C.F.R. § 353.301(a) as an employee fully recovered within
1 year, the Board has jurisdiction if the appellant makes nonfrivolous allegations
that (1) she is an employee of an executive branch agency; (2) she suffered a
compensable injury; (3) she fully recovered from the compensable injury within 1
year from the date her eligibility for compensation began; (4) the agency failed to
7 Partially recovered employees are defined in as injured employees who, though not
ready to resume the full range of their regular duties, have recovered sufficiently to
return to part-time or light duty or to another position with less demanding physical
requirements. 5 C.F.R. § 353.102.
8 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s). An allegation generally will be considered nonfrivolous
when, under oath or penalty of perjury, an individual makes an allegation that (1) is
more than conclusory, (2) is plausible on its face, and (3) is material to the legal issues
in the appeal. Id. 7
restore her or improperly restored her; and (5) if she was separated from her
position prior to the alleged failure to restore or improper restoration, her
separation was from a position without time limitation and substantially related to
the compensable injury. Steinmetz v. U.S. Postal Service , 106 M.S.P.R. 277, ¶ 7
(2007), aff’d, 284 F. App’x 805 (Fed. Cir. 2008). In the case of an appellant who
alleges the agency denied her restoration under 5 C.F.R. § 353.301(b) as an
employee fully recovered after 1 year, the appellant must make nonfrivolous
allegations that (1) she was separated because of a compensable injury; (2) she
fully recovered more than 1 year after the date she became eligible for OWCP
benefits; (3) she requested restoration within 30 days after the cessation of OWCP
compensation; and (4) the agency violated her reemployment priority rights in
denying her restoration. Payton v. Department of Homeland Security , 113
M.S.P.R. 463, ¶ 6, aff’d, 403 F. App’x 496 (Fed. Cir. 2010). Finally, an appellant
who alleges she was denied restoration as a partially recovered employee must
make nonfrivolous allegations that (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 those previously required of her; (3) the agency denied her
request for restoration; and (4) the denial was arbitrary and capricious. Hamilton,
123 M.S.P.R. 404, ¶ 12.
The appellant has not established jurisdiction under any of these standards,
for the simple reason that she has not alleged at any point that she suffered a
compensable injury. Thus, the appeal was correctly dismissed for lack of
jurisdiction. We do not decide the question of whether the appellant, like the
appellant in Swaney, was separated involuntarily, as this issue is not pertinent to
the Board’s jurisdiction under 5 C.F.R. § 353.304. 8
NOTICE OF APPEAL RIGHTS9
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).
9 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. 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. 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. 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 | Hartman_JudyDC-0353-18-0659-I-1__Final_Order.pdf | 2024-06-17 | JUDY HARTMAN v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-0353-18-0659-I-1, June 17, 2024 | DC-0353-18-0659-I-1 | NP |
1,212 | https://www.mspb.gov/decisions/nonprecedential/Dawsey_Wayne_E_AT-0752-19-0736-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WAYNE E. DAWSEY,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-0752-19-0736-I-1
DATE: June 17, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David H. Brown , Jacksonville, Florida, for the appellant.
Jason L. Hardy , Esquire, Clearwater, Florida, for the agency.
Ronald E. Jones , Plano, 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
affirmed the agency’s removal action. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains 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).
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 proper analysis of the penalty, we AFFIRM the initial
decision.
BACKGROUND
The appellant was a Tractor Trailer Operator with the United States Postal
Service. Initial Appeal File (IAF), Tab 5 at 29. The appellant signed up for the
overtime-desired list, indicating that he was available to work “Before Tour and
Off-Duty” assignments. Id. at 46. The appellant was scheduled to work an
overtime shift on June 16, 2019. Id. at 41. The appellant did not show up to
work, and he did not request leave. IAF, Tab 1 at 14. As a result, the agency
proposed to remove the appellant based on a single charge of unacceptable
conduct with two specifications: (1) failure to follow mandatory leave requesting
procedures, and (2) being absent from overtime (AOT). IAF, Tab 5 at 29-32.
The appellant was notified of his right to respond, but he did not do so. Id. at 16,
31. The agency subsequently sustained both specifications and the unacceptable
conduct charge and removed the appellant, effective August 12, 2019.
Id. at 16-21. 2
The appellant filed the instant appeal, stating that he did not realize he was
scheduled to work on the date in question. IAF, Tab 1 at 14. During the
prehearing conference, the administrative judge indicated that she was construing
the two specifications as two separate charges because they were written to
describe separate charges with specific elements. IAF, Tab 10 at 2-3. She also
indicated that she was construing the AOT charge as a charge of absence without
leave (AWOL). Id. at 3. Neither party objected below to the administrative
judge’s construction of the charges in this manner.
After holding a hearing, the administrative judge affirmed the agency’s
charges and removal action. IAF, Tab 13, Tab 14, Initial Decision (ID) at 1.
The administrative judge sustained both of the agency’s charges. ID at 3-5.
Regarding the first charge, the administrative judge found that the appellant was
required to request leave when the agency properly scheduled him to work.
ID at 3-4. Regarding the second charge, the administrative judge credited the
appellant’s testimony that he was not aware he was scheduled to work on the day
in question. ID at 4-5. However, she found that his ignorance did not negate the
fact that he failed to show up for a scheduled overtime shift or request leave. Id.
The administrative judge additionally found a nexus between the appellant’s
conduct and the efficiency of the service. ID at 5. She further found the penalty
to be reasonable. ID at 5-7. She noted that the deciding official appeared to
inappropriately rely on the appellant’s prior discipline that had expired; however,
the deciding official testified that she would have upheld the appellant’s removal
even in the absence of that prior discipline. ID at 6. The administrative judge
found that the appellant failed to establish his disparate penalty claim because he
failed to present evidence of any other employee who was similarly situated to
him in terms of disciplinary history and other factors. ID at 7.
The administrative judge ultimately found that the deciding official appropriately
considered the relevant factors in determining the appropriate penalty. Id. 3
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He argues that although he knew the procedures for requesting leave
on a regular work day, the agency failed to prove that he was on notice of the
leave requesting procedures for an off day, and thus the agency failed to prove the
first charge. Id. at 2. He further argues that the two separate charges should have
been merged. Id. Finally, he argues that the agency failed to prove the second
charge because it failed to prove that he was carried in an AOT status. Id. The
agency has responded to the petition for review, and the appellant has replied.
PFR File, Tabs 3, 4.
DISCUSSION OF ARGUMENTS ON REVIEW
We are not persuaded that merger of the charges was appropriate.
The appellant on review argues that because the two charges arise out of
the same set of facts, the charges should have been merged. PFR File, Tab 1 at 2.
We disagree. The Board has specifically held that AWOL and failure to follow
leave procedures are separate charges with different elements of proof.
Valenzuela v. Department of the Army, 107 M.S.P.R. 549, 553 n.* (2007).
Accordingly, we are not persuaded that the administrative judge should have
merged the charges.
The administrative judge correctly sustained the failure to follow mandatory leave
requesting procedures charge.
The appellant on review argues that the agency failed to prove this charge
because he was not on notice of procedures for requesting leave on an off day.
PFR File, Tab 1 at 2. We disagree.
An agency may take disciplinary action against an employee based on his
failure to follow leave-requesting procedures provided he is clearly on notice of
such requirements and the likelihood of discipline for failure to comply.
Valenzuela, 107 M.S.P.R. 549, ¶ 9. The appellant admits that he was aware of the
leave procedures generally. PFR File, Tab 1 at 2. The appellant does not cite,4
and the record does not support, that there were separate leave procedures for
requesting leave from overtime duty. To the contrary, the agency’s leave policy
makes no distinction between regular duty and overtime, and instead applies to
all “scheduled days, including Saturdays, Sundays, and holidays.” IAF, Tab 5
at 53-54. The appellant here admits that he was scheduled to work overtime on
the day in question. PFR File, Tab 1 at 1; IAF, Tab 1 at 14. As such, the policy
applied to him, and he was required to request leave on the day in question if he
was going to be absent.
The agency’s policy further notes that such absences may be the basis for
disciplinary action. IAF, Tab 5 at 54. The appellant here was aware of the
likelihood of discipline based on his numerous prior disciplinary actions
stemming from attendance-related misconduct. Id. at 45, 48-52, 59-61, 63 -64.
Accordingly, we agree with the administrative judge that the agency proved that
the appellant failed to follow the mandatory leave requesting procedures.
The administrative judge correctly sustained the charge of failure to report for
overtime and being carried in AOT.
The appellant argues on review that the agency failed to prove that he was
carried in AOT status as stated in the charge. PFR File, Tab 1 at 2. We are not
persuaded that this argument warrants a different outcome.
As noted above, the administrative judge essentially construed this charge
as an AWOL charge, and the appellant did not object below to this construction.
In order for an agency to prove AWOL, the agency must show that the employee
was absent, and that his absence was not authorized or that his request for leave
was properly denied. Valenzuela, 107 M.S.P.R. 549, ¶ 9. An agency is required
to prove only the essence of its charge, and need not prove each factual
specification supporting the charge. Cole v. Department of the Air Force,
120 M.S.P.R. 640, ¶ 8 (2014). The fact that the agency’s records show that he
was in an AWOL status on June 16, 2019, IAF, Tab 5 at 39, as opposed to an
AOT status, does not warrant a different outcome because the appellant admitted5
that he was scheduled to work on the date in question, he did not show up for
work that day, IAF, Tab 1 at 14, and he does not argue that his absence was
authorized or that he requested leave. Rather, he argues that he was unaware that
he was scheduled to work on the day in question. Id. The administrative judge
found that he credibly testified that he was not aware that he was scheduled to
work. ID at 4. We see no reason to disturb that credibility determination on
review. However, the appellant’s intent is not an element of the charge.2
Valenzuela, 107 M.S.P.R. 549, ¶ 9. Thus, we agree with the administrative judge
that his lack of knowledge of his schedule does not negate the fact that he failed
to show up to work during a scheduled time. Accordingly, we agree that the
agency proved that the appellant was absent from his scheduled work and his
absence was not authorized.
The administrative judge erred in deferring to the deciding official’s penalty
determination, but we conclude that the removal penalty is reasonable. 3
Where the Board sustains an agency’s charges, it will defer to the agency’s
penalty determination unless the penalty exceeds the range of allowable
punishment specified by statute or regulation, or unless the penalty is “so harsh
and unconscionably disproportionate to the offense that it amounts to an abuse of
discretion.” Batten v. U.S. Postal Service, 101 M.S.P.R. 222, ¶ 9
(quoting Parker v. U.S. Postal Service, 819 F.2d 1113, 1116 (Fed. Cir. 1987)),
aff’d, 208 F. App’x 868 (Fed. Cir. 2006). This is because the employing agency,
and not the Board, has primary discretion in maintaining employee discipline and
efficiency. Id. The Board will not displace management’s responsibility, but
2 Because the appellant’s intent may be relevant to our analysis of the penalty, we
discuss this issue below.
3 The administrative judge found a nexus between the appellant’s misconduct and the
efficiency of the service. ID at 5. The parties do not dispute this finding on review,
and we see no reason to disturb it. See, e.g., Adams v. Department of Labor,
112 M.S.P.R. 288, ¶ 8 (2009) (finding that any sustained charge of AWOL is inherently
connected to the efficiency of the service as an essential element of employment is to be
on the job when one is expected to be there). 6
instead will ensure that managerial judgment has been properly exercised. Id.
Mitigation of an agency-imposed penalty is appropriate only where the agency
failed to weigh the relevant factors or where the agency’s judgment clearly
exceeded the limits of reasonableness. Saiz v. Department of the Navy,
122 M.S.P.R. 521, ¶ 5 (2015); Batten, 101 M.S.P.R. 222, ¶ 11. As relevant here,
the factors to be considered in determining the appropriateness of a penalty
include the employee’s past disciplinary record, the clarity with which the
employee was on notice of any rules that were violated in committing the office
or had been warned about the conduct in question, the nature and seriousness of
the offense, including whether it was intentional, and the adequacy and
effectiveness of alternative sanctions to deter such conduct in the future. Douglas
v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981).
The appellant does not explicitly challenge the reasonableness of the
penalty on review. As the administrative judge noted in the initial decision, the
deciding official considered as part of the penalty determination the appellant’s
7-day suspension in August 2017 based on a sustained charge of failure to
maintain a regular work schedule. IAF, Tab 5 at 18; ID at 6. However, at the
time of the proposed action in question, that prior discipline had expired,
IAF, Tab 5 at 62, thus rendering its consideration an error. We therefore find that
the agency did not properly consider the relevant penalty factors, and thus, its
determination of the appropriate penalty is not entitled to deference.
See, e.g., Portner v. Department of Justice, 119 M.S.P.R. 365, ¶¶ 11-15 (2013)
(finding that the deciding official failed to consider the Douglas factor involving
rehabilitative potential and concluding that the agency’s penalty determination
was not entitled to deference), overruled on other grounds by Singh v. U.S. Postal
Service, 2022 MSPB 15, ¶ 17. We modify the initial decision accordingly.
Nevertheless, based on our review of the relevant Douglas factors, removal
is a reasonable penalty for the sustained misconduct. The most significant
Douglas factor is the nature and seriousness of the misconduct. Luciano v.7
Department of the Treasury, 88 M.S.P.R. 335, ¶ 23 (2001), aff’d 30 F. App’x 973
(Fed. Cir. 2002). The decision letter stated that the sustained misconduct was
serious and directly related to the appellant’s duties as a tractor trailer operator.
IAF, Tab 5 at 18. We agree that the sustained misconduct is serious.4
Bowman v. Small Business Administration, 122 M.S.P.R. 217, ¶ 5 (2015);
Luciano, 88 M.S.P.R. 335, ¶ 23.
Setting aside the expired discipline, the appellant has an extensive
disciplinary record for attendance-based charges, including a 30-day suspension
for AWOL and failure to be regular in attendance, one 14-day suspension for
failure to maintain a regular work schedule, and another 14-day suspension for
failure to maintain a regular work schedule and failure to follow instructions.
IAF, Tab 5 at 45, 48-52, 58-61, 63 -64. This lengthy disciplinary record also
demonstrates that the appellant was clearly on notice of the rules that he violated
and had been warned about further misconduct. Moreover, given his failure to
correct his past misconduct, we find that any alternative sanction would be
ineffective to deter future misconduct. Additionally, the appellant has not
identified, and we are not aware of, any evidence that would demonstrate
rehabilitative potential. We have considered whether the removal penalty is
consistent with those imposed upon other employees for the same or similar
offenses, but the appellant has offered no evidence of similarly situated
employees. We have considered the fact that the appellant has been employed
with the agency since 2006, id. at 16, which is favorable to him. Finally, the
appellant evidently contacted the Employee Assistance Program after the notice
of proposed removal was issued, id., but there is no evidence of any medical or
4 In analyzing this Douglas factor, we defer to the administrative judge’s finding that
the appellant’s failure to appear for overtime on the date in question was not
intentional, ID at 7; see Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir.
2002) (stating that 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). 8
mental conditions or other mitigating factors for us to consider. For these
reasons, based on our review of the relevant Douglas factors, we conclude that
removal is a reasonable penalty for the sustained misconduct.
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
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).
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.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.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
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. 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 | Dawsey_Wayne_E_AT-0752-19-0736-I-1__Final_Order.pdf | 2024-06-17 | WAYNE E. DAWSEY v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0752-19-0736-I-1, June 17, 2024 | AT-0752-19-0736-I-1 | NP |
1,213 | https://www.mspb.gov/decisions/nonprecedential/Sulecki_Bethany_T_PH-0752-20-0108-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BETHANY TAYLOR SULECKI,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-0752-20-0108-I-1
DATE: June 17, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chris Richmond , Beckley, West Virginia, for the appellant.
Craig Komorowski , Esquire, Huntington, West 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 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
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).
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 apply the nonfrivolous allegation
standard and to clarify the correct jurisdictional standard for a nonpreference
eligible individual in the excepted service, we AFFIRM the initial decision.
BACKGROUND
The agency appointed the appellant to a Licensed Practical Nurse position
in the excepted service effective April 14, 2019. Initial Appeal File (IAF), Tab 5
at 67. On the Standard Form 50 documenting the appellant’s appointment, the
agency stated that the appointment was subject to the completion of a 1-year
initial probationary period. Id. at 67. Effective November 22, 2019, the agency
terminated the appellant’s appointment for “failure to qualify” during the
probationary period. Id. at 9-10. The agency’s termination letter noted that the
termination was “due to conduct reasons.” Id. at 10.
The appellant appealed the termination to the Board. IAF, Tab 1. In
response to a jurisdictional order, the appellant argued that the termination was in
violation of the agency’s policies set forth in a collective bargaining agreement
and 5 C.F.R. § 315.805(b). IAF, Tab 4 at 4-5. Without holding the requested
hearing, the administrative judge dismissed the appeal for lack of jurisdiction.
IAF, Tab 6, Initial Decision (ID) at 1. The administrative judge found that the2
appellant failed to nonfrivolously allege that she was an “employee” with Board
appeal rights under 5 U.S.C. chapter 75. ID at 3-4. He further found that,
because the Board lacked jurisdiction over the appeal, it also lacked jurisdiction
to review or enforce the agency’s policies or the provisions of its collective
bargaining agreement. Id.
The appellant has filed a petition for review, predominantly challenging the
merits of her probationary termination, and the agency has responded. Petition
for Review (PFR) File, Tabs 1, 3.
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 appellant bears the burden
of proving Board jurisdiction by a preponderance of the evidence. Tolbert v.
Small Business Administration, 104 M.S.P.R. 418, ¶ 6, aff’d, 245 F. App’x 964
(Fed. Cir. 2007); 5 C.F.R. § 1201.56(b)(2)(i)(A). However, if an appellant makes
a nonfrivolous allegation that the Board has jurisdiction, she in entitled to a
hearing on the jurisdictional question.1 Tolbert, 104 M.S.P.R. 418, ¶ 7.
Only an “employee,” as defined under 5 U.S.C. chapter 75, subchapter II,
can appeal to the Board from an adverse action such as a termination.2
Ramirez-Evans v. Department of Veterans Affairs , 113 M.S.P.R. 297, ¶ 9 (2010);
see 5 U.S.C. §§ 7511(a)(1), 7512(1), 7513(d). A nonpreference eligible
1 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s). An allegation generally will be considered nonfrivolous
when, under oath or penalty of perjury, an individual makes an allegation that is more
than conclusory, is plausible on its face, and is material to the legal issues in the appeal.
Id.
2 The agency appointed the appellant to her Licensed Practical Nurse position under the
authority of 38 U.S.C. § 7401(3). IAF, Tab 5 at 67. The Board has held that
individuals appointed under 38 U.S.C. § 7401(3) are entitled to the same appeal rights
regarding disciplinary actions as individuals appointed under title 5 of the United States
Code. Barrand v. Department of Veterans Affairs , 112 M.S.P.R. 210, ¶ 9 (2009 ).3
individual3 in the excepted service is an “employee” within the meaning of
5 U.S.C. § 7511 only if one of the following is true: (1) she is not serving a
probationary or trial period under an initial appointment pending conversion to
the competitive service; or (2) she has completed 2 years of current continuous
service in the same or similar positions in an Executive agency under other than a
temporary appointment limited to 2 years or less. 5 U.S.C. § 7511(a)(1)(C)
(i)-(ii); Ramirez-Evans, 113 M.S.P.R. 297, ¶ 9.
The administrative judge did not address the first method of demonstrating
whether a nonpreference eligible individual in the excepted service is an
“employee” for purposes of chapter 75, and the appellant has not raised the issue
on review. Nonetheless, we modify the initial decision to find that the appellant
has failed to nonfrivolously allege she is an “employee” under the first method.4
Specifically, the appellant has not alleged, and there is nothing in the record to
suggest, that hers was an initial appointment pending conversion to the
competitive service. Therefore, subsection 7511(a)(1)(C)(i) does not apply. See
Van Wersch v. Department of Health & Human Services , 197 F.3d 1144, 1150 n.6
(Fed. Cir. 1999); Forest v. Merit Systems Protection Board , 47 F.3d 409, 411-12
(Fed. Cir. 1995).
Turning to the second method, the administrative judge identified the
standard set forth in 5 U.S.C. § 7511(a)(1)(C)(ii) in the initial decision.
ID at 2-3. Under this section, a nonpreference eligible individual in the excepted
service is an employee if she has completed 2 years of current continuous service
in the same or similar positions in an Executive agency under other than a
temporary appointment limited to 2 years or less. Ramirez-Evans, 113 M.S.P.R.
3 The appellant has not alleged that she is a preference eligible. IAF, Tab 1 at 1.
4 The administrative judge here seems to have found that the appellant did not prove
jurisdiction. ID at 3. However, to be entitled to a jurisdictional hearing, an appellant
need only nonfrivolously allege jurisdiction. Tolbert, 104 M.S.P.R. 418, ¶ 7. We
therefore further modify the initial decision to apply the nonfrivolous allegation
standard.4
297, ¶ 9. The administrative judge determined, however, that the appellant was
required to prove that she had completed 1 year of current continuous service in
the same or similar position, and she did not do so. ID at 3. The administrative
judge’s analysis appeared to apply section 7511(a)(1)(A), which relates to
individuals in the competitive service, even though the appellant is in the
excepted service. Nevertheless, any adjudicatory error by the administrative
judge did not prejudice the appellant’s substantive rights because her lack of 1
year of current continuous service for purposes of 5 U.S.C. § 7511(a)(1)(A)
necessarily means that she lacked 2 years of current continuous service for
purposes of 5 U.S.C. § 7511(a)(1)(C)(ii). See Panter v. Department of the Air
Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error which is
not prejudicial to a party’s substantive rights provides no basis for reversing the
initial decision). We thus further modify the initial decision to apply the correct
standard for nonpreference eligible individuals in the excepted service.
In particular, it is undisputed that the appellant had fewer than 2 years of
Federal service to her credit. IAF, Tab 1 at 1. Thus, she does not satisfy section
7511(a)(1)(C)(ii). Accordingly, the appellant has failed to nonfrivolously allege
that she is an “employee” who may appeal her termination to the Board under
5 U.S.C. chapter 75.5
The remainder of the appellant’s arguments on review involve the merits of
the agency’s termination, including whether the termination violated any agency
policies or a collective bargaining agreement. PFR File, Tab 1 at 4-6. Because
we find that she has failed to nonfrivolously allege Board jurisdiction, we do not
reach these arguments. See Santos v. Department of Energy , 102 M.S.P.R. 370, ¶
5 The appellant below further argued that her termination was in violation of 5 C.F.R.
§ 315.805. IAF, Tab 4 at 5. However, this regulation applies to competitive service
probationers terminated for preappointment reasons—not to excepted service
probationers terminated for postappointment reasons. See Mancha v. Department of
Homeland Security , 112 M.S.P.R. 216, ¶¶ 3, 9-10 (2009).5
6 (2006) (finding the Board must first address the matter of jurisdiction before
proceeding to the merits of the appeal).
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
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).
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.6
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 on7
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) or8
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
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
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. 9
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 | Sulecki_Bethany_T_PH-0752-20-0108-I-1__Final_Order.pdf | 2024-06-17 | BETHANY TAYLOR SULECKI v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-0752-20-0108-I-1, June 17, 2024 | PH-0752-20-0108-I-1 | NP |
1,214 | https://www.mspb.gov/decisions/nonprecedential/Alford_LeroyDC-0845-17-0207-I-3__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEROY ALFORD,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0845-17-0207-I-3
DATE: June 17, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
John J. Rigby , Esquire, Arlington, Virginia, for the appellant.
Tynika Faison Johnson , 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 the decision of the Office of Personnel Management (OPM) finding that
he had been overpaid in retirement benefits and was not eligible for waiver of the
overpayment. On petition for review, the appellant argues that OPM erred in 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).
calculation of the amount of his overpayment, and that the administrative judge
improperly sanctioned the agency during adjudication and denied certain
witnesses he had requested. 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 | Alford_LeroyDC-0845-17-0207-I-3__Final_Order.pdf | 2024-06-17 | LEROY ALFORD v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0845-17-0207-I-3, June 17, 2024 | DC-0845-17-0207-I-3 | NP |
1,215 | https://www.mspb.gov/decisions/nonprecedential/Charney_Donald_K_PH-0831-19-0239-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DONALD KENNETH CHARNEY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0831-19-0239-I-1
DATE: June 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Donald Kenneth Charney , New York, New York, 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
¶1The appellant has filed a petition for review of the initial decision, which
affirmed the Office of Personnel Management’s (OPM) final decision regarding a
Federal Employees’ Retirement System (FERS) annuity overpayment. Generally,
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).
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 below regarding the existence and
amount of the overpayment, we AFFIRM the initial decision.
BACKGROUND
¶2The following facts are undisputed. The appellant retired from Federal
service under FERS on January 3, 1999. Initial Appeal File (IAF), Tab 14
at 108-15. He was unmarried at the time and elected an unreduced annuity
payable only during his lifetime. Id. at 108. On March 21, 2005, the appellant
married. Id. at 42. On April 29, 2005, he appeared in person at OPM
Headquarters and completed the necessary forms to elect a reduced annuity to
provide survivor benefits for his wife. Id. at 28. It was not until 2014 that the
appellant realized that OPM had never reduced his annuity or otherwise put his
2005 survivor benefit election into effect. Id.
¶3On October 18, 2014, the appellant requested that OPM provide him with a
reduced annuity in accordance with his earlier election. Id. at 23. OPM denied
the request, but after the appellant filed a Board appeal, OPM rescinded its
decision and decided to allow the election. IAF, Tab 14 at 77, 80-85; Charney v.2
Office of Personnel Management , MSPB Docket No. NY-0842-18-0033-I-1,
Appeal File, Tab 15. On June 15, 2018, OPM notified the appellant that he would
have 60 days to complete and return a survivor annuity election form. IAF,
Tab 14 at 46-51. OPM also notified the appellant that the election would be
retroactive to January 1, 2006, the first day after the 9-month period beginning
the date of his marriage. Id. at 46. It therefore informed him that, if he elected a
survivor annuity, he would be in an overpayment status due to his receipt of an
unreduced annuity since that date. Id. at 49. OPM also informed the appellant of
the estimated amounts of overpayment and proposed collection schedules,
depending on whether he elected a full or partial survivor benefit. Id. On or
about July 19, 2018, the appellant indicated his election of a full survivor benefit.
Id. at 41.
¶4On August 7, 2018, OPM issued an initial decision, informing the appellant
that, due to his survivor annuity election, he had incurred an overpayment of
$28,487, which it intended to collect in 79 monthly installments of $360.30 and a
final installment of $23.30.2 Id. at 33-36. The appellant filed a request for
reconsideration, challenging the amount of the overpayment and asking that it be
reduced to account for OPM’s delay in allowing the election. Id. at 18-21. On
April 12, 2019, OPM issued a final decision affirming its initial decision. Id.
at 15-17.
¶5The appellant filed a Board appeal challenging OPM’s decision and again
requesting an adjustment to the amount of the overpayment. IAF, Tab 1. He
waived his right to a hearing. IAF, Tab 17, Initial Decision (ID) at 1. After the
close of the record, the administrative judge issued an initial decision affirming
OPM’s final decision. ID. She found that OPM proved the existence and amount
2 OPM’s June 15, 2018 estimate notified the appellant that, if he elected the full benefit,
he could expect to incur a $28,273 overpayment with a collection schedule of $360.30
for 78 months and a final installment of $179.80. IAF, Tab 14 at 49. Considering the
passage of time between this estimate and the appellant’s July 19, 2018 response, it
appears that the estimate was accurate.3
of the overpayment, and that the appellant did not establish that the overpayment
should be waived or the collection schedule adjusted. ID at 3-5.
¶6The appellant has filed a petition for review, arguing that the overpayment
should be recalculated to exclude the period of time that OPM had failed to
recognize his survivor annuity election. Petition for Review (PFR) File, Tab 1.
OPM has filed a response. PFR File, Tab 4.
ANALYSIS
¶7OPM bears the burden of proving the existence and amount of an annuity
overpayment by preponderant evidence. Vojas v. Office of Personnel
Management, 115 M.S.P.R. 502, ¶ 10 (2011). In this case, the administrative
judge found that the appellant did not dispute the existence or the amount of the
overpayment. ID at 3. However, the appellant argues on petition for review that
he did dispute the amount of the overpayment. PFR File, Tab 1 at 4.
Specifically, he argued below, as he does on review, that “[t]he amount should be
recalculated to reflect the dates benefits would have been available.” IAF, Tab 1
at 4; PFR File, Tab 1 at 4. According to the appellant’s theory of the case, if he
had died before the date that OPM accepted his survivor annuity election, his wife
would not have received any survivor benefit. He argues that, because survivor
benefits were not actually available for his wife prior to OPM’s acceptance of the
survivor annuity election in 2018, he should not be required to pay for them as
though they were. IAF, Tab 1 at 4, Tab 6 at 4. The appellant asserted that he was
without fault and that “recovery would be against equity and good conscience,”
thus suggesting that he was seeking a waiver. IAF, Tab 6 at 4; see 5 U.S.C.
§ 8470(b); 5 C.F.R. § 845.301. However, he also stated that “the commencement
date used in calculating the overpayment is the sole issue in this case,” thus
suggesting that he was disputing the amount of the overpayment. IAF, Tab 6 at 4.
Construing this pro se appellant’s pleadings in the most favorable light possible,4
we find that he was making two alternative arguments, the first disputing the
amount of the overpayment and the second requesting a partial waiver.
OPM proved the existence and the amount of the overpayment.
¶8An employee who is unmarried at the time of retiring and who later marries
may irrevocably elect, within 2 years after the marriage, a reduction in his current
annuity in order to provide a survivor annuity for his spouse. 5 U.S.C. § 8416(c)
(1); Larson v. Office of Personnel Management , 93 M.S.P.R. 433, ¶ 7 (2003); 5
C.F.R. § 842.612(a).
¶9The basic premise of the appellant’s argument for recalculating the
overpayment amount is that he did not make his survivor annuity election until
2018. However, we find that the appellant made his election in 2005, and that
OPM merely waited until 2018 to implement it. This is reflected in the language
of OPM’s initial and final decisions. IAF, Tab 14 at 15, 33. Moreover, accepting
the appellant’s argument would entail a finding that OPM waived the 2-year
statutory deadline for making the election, but OPM would not have been
authorized to do so under the facts of this case. There are only three possible
bases for waiving a statutory deadline, none of which apply here: (1) The statute
may provide for a waiver under specified circumstances; (2) an agency’s
affirmative misconduct may preclude enforcement of the deadline under the
doctrine of equitable estoppel; and (3) an agency’s failure to provide a notice of
rights and the applicable filing deadline, where such notice is required by law,
may warrant a waiver of the deadline. Lee v. Office of Personnel Management ,
118 M.S.P.R. 604, ¶ 4 (2012). Regarding the first possibility, the statute itself
does not provide for waiver under the circumstances of this case.3 Regarding the
3 Neither the Board nor the United States Court of Appeals for the Federal Circuit has
recognized any statutory waiver provision for the 2-year deadline in 5 U.S.C. § 8416(c)
(1). See, e.g., Schoemakers v. Office of Personnel Management , 180 F.3d 1377, 1381-
82 (Fed. Cir. 1999) (finding no statutory mechanism to waive the Civil Service
Retirement System (CSRS) survivor annuity election deadline based on mental
incapacity); see also Larson v. Office of Personnel Management , 93 M.S.P.R. 433, ¶ 7
(2003) (finding the FERS survivor annuity deadline to be “basically indistinguishable”5
second possibility, although OPM may have been negligent in failing to effect the
appellant’s 2005 election, negligence does not amount to the affirmative
misconduct required to waive a filing deadline based on equitable estoppel. See
Nunes v. Office of Personnel Management , 111 M.S.P.R. 221, ¶ 19 (2009).
Regarding the third possibility, OPM submitted evidence that it mailed the
appellant the required annual notice of his survivor annuity election rights from
the date of his retirement through the close of the election period, and the
appellant has not rebutted this evidence.4 IAF, Tab 14 at 90-93; see Cartsounis v.
Office of Personnel Management , 91 M.S.P.R. 502, ¶¶ 6-7 (2002). In sum, based
on the plain language of OPM’s decision letters and its inability to waive the
election deadline, we find that the appellant made his election in 2005, and not in
2018.
¶10Moreover, even if the appellant had made his election in 2018, the statute
plainly requires that “[t]he election and reduction shall take effect the first day of
the first month beginning 9 months after the date of marriage.” 5 C.F.R.
§ 8416(c)(2). The statute makes no distinction between elections made during the
2-year period in 5 U.S.C. § 8416(c)(1) and elections made after the 2-year period.
Therefore, regardless of when the election was made, we find that OPM did not
err in making the election and reduction retroactive to January 1, 2006, the first
day after the 9-month period beginning the date of the appellant’s March 21, 2005
marriage. IAF, Tab 14 at 46.
¶11Having found that the dates that OPM used to calculate the overpayment
were correct under the law, we agree with the administrative judge that OPM
provided sufficient evidence of its calculations to prove the amount of the
overpayment in question, and that the appellant did not rebut those calculations.
ID at 3; IAF, Tab 14 at 40. We therefore agree with the administrative judge that
from the CSRS survivor annuity deadline).
4 Even if OPM had not sent the required annual notice, the appellant’s 2005 survivor
annuity application shows that he was actually aware of his election rights during the
relevant time period.6
OPM established the existence of an overpayment in the amount of $28,487. ID
at 3; IAF, Tab 14 at 15.
The appellant has not shown that recovery of the overpayment should be waived.
¶12Recovery of an overpayment may not be made from an individual when, in
the judgment of OPM, the individual is without fault and recovery would be
against equity and good conscience. 5 U.S.C. § 8470(b); 5 C.F.R. § 845.301.
Generally, recovery of an overpayment would be against equity and good
conscience when: (1) it would cause financial hardship; (2) the recipient of the
overpayment can show that he relinquished a valuable right or changed positions
for the worse as a result of the overpayment; or (3) it would be unconscionable
under the circumstances. 5 C.F.R. § 845.303. The Board will consider all
relevant factors under a “totality of-the-circumstances” approach to determine
whether recovery of an annuity payment is unconscionable. Wilcox v. Office of
Personnel Management , 46 M.S.P.R. 377, 382-83 (1990). The annuitant bears
the burden of establishing his entitlement to a waiver by substantial evidence.
5 C.F.R. § 845.307(b); see also 5 C.F.R. § 1201.56(b)(2)(ii).
¶13In this case, the administrative judge found that the appellant did not assert
financial hardship or detrimental reliance on the overpayment. ID at 4. She
considered the appellant’s argument that recovery would be unconscionable
because his wife would not have received the annuity benefit if he had died
during the time of the retroactive period, but she disagreed because the appellant
voluntarily elected the survivor annuity and was put on notice that his election
would create an overpayment. ID at 4-5.
¶14To the extent that the appellant’s petition for review constitutes a challenge
to this finding, we agree with the administrative judge that recovery would
generally not be unconscionable when an overpayment resulted from a voluntary
election of alternative benefits, particularly where the exact amount of the
overpayment was known in advance. ID at 5. Moreover, we note that the
appellant’s argument is premised on a hypothetical that did not actually occur; the7
appellant did not die during the period of retroactivity, and his wife was not
thereby denied survivor benefits due to OPM’s error.5 Given that the appellant
survived this period, we find that he is now essentially seeking a windfall, to
avoid paying for the reduction in his basic annuity that would have occurred but
for OPM’s mistake. See Day v. Office of Personnel Management , 873 F.2d 291,
293 (Fed. Cir. 1989). OPM has now rectified its 2005 administrative error, and
the appellant is now no worse off for it. The principles of equity and good
conscience do not require that the Board make him better off than if the error had
not occurred.6 Cf. Oates v. Department of Health and Human Services ,
64 M.S.P.R. 349, 351 (1994) (finding that status quo ante relief does not require
that an individual be placed in a better position than if the challenged action had
not occurred).
NOTICE OF APPEAL RIGHTS7
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
5 Even if the appellant had died during the period of retroactivity, there would have
been nothing to prevent his wife from actually obtaining survivor benefits by
challenging OPM’s failure to process the 2005 survivor annuity election. See generally
5 U.S.C. § 8461(e)(1) (providing Board appeal rights to individuals whose rights or
interests under FERS are affected by an agency decision).
6 OPM has advised the Board that it may seek recovery of any debt remaining upon an
appellant’s death from the appellant’s estate or other responsible party. A party
responsible for any debt remaining upon the appellant’s death may include an heir
(spouse, child, or other) who is deriving a benefit from the appellant’s Federal benefits,
an heir or other person acting as a representative of the estate if, for example, the
representative fails to pay the United States before paying the claims or other creditors
in accordance with 31 U.S.C. § 3713(b), or transferees or distributers of the appellant’s
estate. Pierotti v. Office of Personnel Management , 124 M.S.P.R. 103, ¶ 13 (2016).
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.8
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. 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.
(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 the10
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.8 The court of appeals must receive your petition for
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 of11
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. 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 | Charney_Donald_K_PH-0831-19-0239-I-1__Final_Order.pdf | 2024-06-14 | DONALD KENNETH CHARNEY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0831-19-0239-I-1, June 14, 2024 | PH-0831-19-0239-I-1 | NP |
1,216 | https://www.mspb.gov/decisions/nonprecedential/Karasinski_Gerald_A_PH-0831-19-0263-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GERALD A. KARASINSKI,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0831-19-0263-I-1
DATE: June 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gerald A. Karasinski , Kingston, Pennsylvania, 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
affirmed the final decision of the Office of Personnel Management (OPM)
denying his request for a waiver of interest on a redeposit of refunded retirement
contributions under the Civil Service Retirement System (CSRS) and on a deposit
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 service under the Federal Insurance Contributions Act (FICA). 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 and supplement the administrative judge’s
analysis of the appellant’s entitlement to retirement annuity benefits, we AFFIRM
the initial decision.
For the reasons provided in the initial decision, we agree with the
administrative judge’s finding that the appellant has failed to prove his
entitlement to retirement annuity benefits based on service for which he received
a refund of retirement contributions and did not pay a redeposit with interest.
Initial Appeal File (IAF), Tab 9, Initial Decision (ID) at 3-6; see 5 U.S.C.
§§ 8334(d)(1), 8342(a); Youngblood v. Office of Personnel Management ,
108 M.S.P.R. 278, ¶¶ 12-13 (2008); Sanchez v. Office of Personnel Management ,
47 M.S.P.R. 343, 346-47 (1991). However, the administrative judge erroneously
characterized the periods of service for which the appellant received a refund of
retirement contributions as “FICA service.” ID at 1, 5.
We modify the initial decision to clarify that the appellant received a
refund of retirement contributions for his service covered under CSRS that he
performed with the Department of the Army from April 22, 1981, through2
August 25, 1987.2 ID at 2; IAF, Tab 5 at 28, 32-34. The refund also included the
deposit the appellant had made to receive credit under CSRS for his military
service from June 17, 1974, through June 16, 1976. ID at 2; IAF, Tab 5 at 32, 35.
The service periods described above are separate and distinct from the periods of
FICA service discussed in OPM’s final decision. IAF, Tab 5 at 10. In particular,
OPM stated that the appellant performed service from August 16, 2008, through
September 3, 2008, and from September 14, 2008, through March 28, 2009, for
which no retirement deductions were withheld. Id. The record reflects that such
service was subject to FICA only.3 Id. at 22.
It is not clear whether the appellant challenges OPM’s determination that
he must pay a deposit with interest to receive credit for his FICA service in
2008-2009 for purposes of his retirement annuity benefits. Petition for Review
(PFR) File, Tab 9 at 3-6, 8-10; IAF, Tab 1 at 4, Tab 5 at 10, Tab 8 at 2-4. In any
event, we further modify the initial decision to find that the appellant has failed to
prove his entitlement to retirement annuity benefits based on his FICA service
when he has not paid any deposit with interest for such service. See Cheeseman
v. Office of Personnel Management , 791 F.2d 138, 140-41 (Fed. Cir. 1986)
(holding that an applicant for retirement benefits bears the burden of proving his
entitlement to such benefits); 5 C.F.R. § 1201.56(b)(2)(ii) (providing the same).
Importantly, the appellant has not identified any statutory or regulatory provision
that would allow him to receive credit for his FICA service under either CSRS or
the analogous Federal Employees’ Retirement System (FERS) without paying a
deposit with interest, or that would authorize a waiver of a deposit with interest
for such service. See 5 C.F.R. §§ 846.302(b) (providing, in part, that certain
civilian service that otherwise would be creditable under CSRS and was
performed before the effective date of FERS coverage is creditable under FERS,
2 It is undisputed that the appellant received the refund at issue. ID at 5.
3 FICA refers to the Federal Insurance Contributions Act, which is the statutory
authority for the collection of Social Security and Medicare taxes from employee
wages. See 26 U.S.C. §§ 3101-3128.3
subject to the deposit requirements of 5 C.F.R. § 842.305), 842.305(a), (d)-(e)
(providing for the payment of a deposit with interest for certain civilian service);
see also 5 C.F.R. §§ 831.105(e) (providing for the computation of interest for
noncontributory service performed on or after October 1, 1982), 831.303(b)
(providing, in relevant part, that a period of creditable civilian service performed
on or after October 1, 1982, for which retirement deductions have not been taken,
shall be used to compute CSRS retirement annuity benefits only if a deposit is
paid).
On petition for review, the appellant essentially reasserts his claim that he
was misinformed by Government employees about the consequences of taking a
refund of his CSRS retirement contributions (including his military-service
deposit) and of electing coverage under FERS. Compare PFR File, Tab 9 at 8-10,
with IAF, Tab 8 at 2-4. He further argues that, because most people
(like himself) are not familiar with the laws relating to retirement, he properly
relied on the retirement advice of those personnel who are trained in such laws.
PFR File, Tab 9 at 5. However, even if the appellant was misinformed by
Government employees, the Government cannot be estopped from denying
monetary benefits not otherwise permitted by law. Youngblood, 108 M.S.P.R.
278, ¶ 13.
For the first time on review, the appellant argues that there should be no
change to his retirement annuity benefits because his service computation date
was “never changed” around the time of his reemployment or retirement.
PFR File, Tab 9 at 4-5. He has included documentation to support his argument,
including Government forms documenting his service computation date.
Id. at 11-15. The appellant has failed to explain why, despite his due diligence,
he was unable to raise his new argument or provide such documentation prior to
the close of the record before the administrative judge. 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 review4
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 was unavailable before the record was closed despite the party’s due
diligence). In any event, we find that the appellant’s argument and evidence
regarding his service computation date are immaterial to the outcome of this
appeal because they do not establish his entitlement to the retirement annuity
benefits he seeks. See Banks, 4 M.S.P.R. at 271; see also Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980) (observing that the Board generally
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 OPM’s final decision.
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
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
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 | Karasinski_Gerald_A_PH-0831-19-0263-I-1__Final_Order.pdf | 2024-06-14 | GERALD A. KARASINSKI v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0831-19-0263-I-1, June 14, 2024 | PH-0831-19-0263-I-1 | NP |
1,217 | https://www.mspb.gov/decisions/nonprecedential/Hooks_Shelia_A_DA-844E-20-0065-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHELIA A. HOOKS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-844E-20-0065-I-1
DATE: June 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shelia A. Hooks , Longview, Texas, 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 lack of jurisdiction her appeal of an Office of Personnel
Management (OPM) reconsideration decision after OPM represented that it had
rescinded its decision during the pendency of the appeal. On petition for review,
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 appellant does not make any arguments or provide any evidence to
demonstrate error by the administrative judge.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
2 During the pendency of the appeal, OPM explained that the appellant had submitted
sufficient medical documentation to establish her entitlement to disability retirement
annuity benefits and represented that, upon dismissal of the appeal, it would forward the
case to the appropriate office to determine the amount of the appellant’s annuity. Initial
Appeal File, Tab 5 at 4. In other words, OPM was granting the appellant’s application
for disability retirement benefits and would calculate the amount of her benefits. Id. If,
at some future point, OPM issues a final decision regarding some aspect of the
appellant’s retirement benefits and she disagrees with that decision, she may file a new
appeal with the regional office consistent with the Board’s regulations.
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
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.
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 at3
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,4
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 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. 115-195,5
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.
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 | Hooks_Shelia_A_DA-844E-20-0065-I-1__Final_Order.pdf | 2024-06-14 | SHELIA A. HOOKS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-844E-20-0065-I-1, June 14, 2024 | DA-844E-20-0065-I-1 | NP |
1,218 | https://www.mspb.gov/decisions/nonprecedential/Blunt_JohnDE-0842-19-0215-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN BLUNT,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DE-0842-19-0215-I-1
DATE: June 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Linda Blunt , Brighton, Colorado, for the appellant.
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
affirmed the final decision of the Office of Personnel Management (OPM) to deny
his request for a deferred annuity under the Federal Employees’ Retirement
System. On petition for review, the appellant argues, as he did below, that he was
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).
mentally incompetent when he requested a refund of his retirement contributions,
and he further submits statements from three individuals in support of his
argument. Petition for Review (PFR) File, Tab 1.2 The appellant’s evidence
submitted on review is neither new nor material, and the administrative judge
appropriately addressed his arguments. 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).
2 On review, the appellant also indicates that he was unable to apply for disability
retirement. PFR File, Tab 1 at 5. To the extent that the appellant claims an entitlement
to a disability retirement annuity, the Board lacks jurisdiction over the claim because he
has not shown that he first requested such an annuity before OPM or that OPM issued a
final decision on that request. See Fagone v. Office of Personnel Management ,
85 M.S.P.R. 49, ¶ 9 (2000).
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
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 | Blunt_JohnDE-0842-19-0215-I-1__Final_Order.pdf | 2024-06-14 | JOHN BLUNT v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DE-0842-19-0215-I-1, June 14, 2024 | DE-0842-19-0215-I-1 | NP |
1,219 | https://www.mspb.gov/decisions/nonprecedential/Smith_Danny_DA-0752-23-0127-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANNY SMITH,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
DA-0752-23-0127-I-1
DATE: June 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Brittany Forrester , Esquire, Christopher Snowden , Esquire, and
Alan V. Edmunds , Esquire, Ponte Vedra Beach, Florida, for the
appellant.
Alysa Lease-Williams , Esquire, Samantha Bognar , Esquire,
and Deborah Charette , Esquire, 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
sustained the charge of inappropriate conduct (involving four specifications),
found that the appellant did not prove his affirmative defenses of race
discrimination and harmful procedural error, and upheld the removal for 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).
sustained misconduct. 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).
DISCUSSION OF ARGUMENTS ON REVIEW
In his petition for review, the appellant argues, among other things, that the
administrative judge erred in finding the agency witnesses credible in her
evaluation of the inappropriate conduct specifications, and she erred in her
conclusion that the agency did not commit harmful procedural error. Petition for
Review (PFR) File, Tab 1. He also asserts, for the first time in his reply brief,
that the agency violated his due process rights. PFR File, Tab 4 at 9-11. For the
following reasons, a different outcome is not warranted.2
2 The appellant does not explicitly challenge the administrative judge’s analysis of his
race discrimination claim or her finding that the agency proved nexus and that the
removal penalty was reasonable for the sustained misconduct. We affirm the initial
decision in this regard. 2
We discern no error with the administrative judge’s decision to sustain the four
specifications and the inappropriate conduct charge.
In the administrative judge’s analysis of the four specifications and the
charge, she credited the testimony of the agency witnesses over the appellant.
E.g., Initial Appeal File (IAF), Tab 27, Initial Decision (ID) at 5, 9-10, 12-14.
Some of the administrative judge’s credibility determinations were explicitly
based on witness demeanor. E.g., ID at 13. However, because a hearing was
held, the administrative judge’s credibility determinations are implicitly based on
witness demeanor. Little v. Department of Transportation , 112 M.S.P.R. 224, ¶ 4
(2009). The Board must give “special deference” to an administrative judge’s
demeanor-based credibility determinations, “[e]ven if demeanor is not explicitly
discussed.” Purifoy v. Department of Veterans Affairs , 838 F.3d 1367, 1373
(Fed. Cir. 2016); see Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed.
Cir. 2002) (finding that 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). Additionally, the Board will not disturb an administrative judge’s
findings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions on issues of credibility. Crosby
v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997); Broughton v. Department of
Health & Human Services , 33 M.S.P.R. 357, 359 (1987). We have considered the
appellant’s specific arguments on review, but none persuade us that the
administrative judge erred in her credibility determinations or her decision to
sustain the four specifications and the inappropriate conduct charge.
The appellant’s arguments about harmful procedural error do not warrant a
different outcome.
Harmful error under 5 U.S.C. § 7701(c)(2)(A) cannot be presumed; an
agency error is harmful only where the record shows that the procedural error was3
likely to have caused the agency to reach a conclusion different from the one it
would have reached in the absence or cure of the error. Stephen v. Department of
the Air Force, 47 M.S.P.R. 672, 681, 685 (1991). The appellant bears the burden
of proving harmful procedural error by preponderant evidence. 5 C.F.R.
§ 1201.56(b)(2)(i)(C).
In the initial decision, the administrative judge found that the appellant did
not prove his claim of harmful procedural error relating to the agency’s failure to
allow him to rescind or modify the April 19, 2022 statement that he provided
during the factfinding.3 ID at 17-18. The administrative judge also noted that the
appellant suggested during the hearing that his first-line supervisor should have
been the deciding official on the removal action, instead of his fourth-line
supervisor, but she concluded that the appellant failed to show by preponderant
evidence that the appointment was contrary to any applicable procedure or that it
constituted harmful procedural error. ID at 18 n.3. The appellant raises both
claims on review, but we are not persuaded that a different outcome is warranted.
Even if we assume for the purposes of our analysis that the agency
committed an error by not permitting the appellant to edit his statement, the
appellant has not persuaded us that the agency would have reached a different
decision in the absence of the error. Indeed, in his written response to the notice
of proposed removal, the appellant clarified that he “tickl[ed]” an officer’s neck
and “mov[ed] side to side when trying to tickle him while he was sitting down,”
and he admitted tickling a second officer. IAF, Tab 7 at 29. The deciding
official noted in the decision letter the inconsistency between the appellant’s
statements, and he found more credible the appellant’s first statement because it
was closer in time to the actual events and was made under oath. Id. at 24-25.
We discern no error with the administrative judge’s conclusion that the appellant
did not prove his harmful procedural error claim in this regard.
3 This was the only harmful procedural error claim identified during the prehearing
conference summary, IAF, Tab 17 at 4, and the appellant did not challenge the
administrative judge’s characterization in this regard. 4
Likewise, we are also not persuaded that the agency erred when it
designated the appellant’s fourth-line supervisor as the deciding official on the
removal action. The provisions cited by the appellant, which are part of the
agency’s anti-harassment policy, only apply to the deciding official on the
harassment allegations, not the deciding official on the removal action. Thus,
there is no support for the appellant’s assertion that the agency committed
harmful procedural error involving the deciding official on the removal action.4
On petition for review, the appellant also asserts that the agency committed
harmful procedural error when it failed to appoint an impartial factfinder for the
investigative inquiry, when the factfinder questioned witnesses about specific
instances of alleged harassment, and when it delayed issuing corrective action
against him.5 PFR File, Tab 1 at 11-15. We have considered these arguments,
but we likewise conclude that a different outcome is not warranted. Importantly,
we are not persuaded that the agency committed any error regarding the
appointment of the factfinder or how the factfinder questioned certain witnesses.
Even if we assumed for the purposes of our analysis that the agency made an
error when it delayed issuing corrective action against him, the appellant has not
persuaded us that the agency would have reached a different conclusion in the
absence of the error.
4 Even if the agency erred by appointing the appellant’s third-level supervisor as the
deciding official on the harassment allegations, the appellant has not explained how the
agency would have reached a different decision in the absence of the error. Indeed,
there is no indication that the appellant’s first-line supervisors, who wrote character
references for him, had any knowledge of the inappropriate conduct allegations made
against him. Therefore, the appellant can only speculate as to what either of his first-
line supervisors would have done based on the factfinder’s report on the harassment
allegations. The appellant’s speculation does not satisfy his burden to prove that any
error was harmful. Defense Intelligence Agency v. Department of Defense ,
122 M.S.P.R. 444, ¶ 15 (2015); Parker v. Defense Logistics Agency , 1 M.S.P.R. 505,
515 (1980).
5 In his closing argument, he raised arguments about the agency delaying issuing
corrective action against him. IAF, Tab 26-4 (closing argument).5
The Board need not consider the appellant’s due process claim, which he raises
for the first time in his reply brief, because it is not based on new and material
evidence.
In his reply brief, the appellant asserts, for the first time, that the agency
violated his due process rights by introducing new evidence against him without
allowing him to respond to such evidence. PFR File, Tab 4 at 9-10. The
appellant asserts that the factfinder on the harassment allegations sent an April
26, 2022 email—2 days before he submitted the factfinding report—containing a
second sworn statement from the appellant as well as his impressions of the
appellant to, among other people, (1) the deciding official on the factfinding, who
later became the proposing official on the removal action, and (2) the individual
who later became the deciding official on the removal action. Id. at 10; IAF,
Tab 13 at 57.
The appellant, who was represented by counsel before the administrative
judge, did not raise a due process claim in his prehearing submission, the
administrative judge did not note it as an issue during the prehearing conference,
and she did not discuss such a claim in the initial decision. IAF, Tabs 13, 17.
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. Clay v. Department of
the Army, 123 M.S.P.R. 245, ¶ 6 (2016). The factfinder’s April 26, 2022 email
referenced by the appellant to support his claim of an alleged due process
violation is not new evidence. To the contrary, the appellant included this
document in his prehearing submission. IAF, Tab 13 at 57. Accordingly, because
it is not based on new evidence, we need not consider the appellant’s argument on
review.
We have considered the appellant’s remaining arguments, but we are not
persuaded that a different outcome is warranted.6
NOTICE OF APPEAL RIGHTS6
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:
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.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.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
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 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 | Smith_Danny_DA-0752-23-0127-I-1__Final_Order.pdf | 2024-06-14 | DANNY SMITH v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DA-0752-23-0127-I-1, June 14, 2024 | DA-0752-23-0127-I-1 | NP |
1,220 | https://www.mspb.gov/decisions/nonprecedential/Hall_RobbieDA-0752-18-0472-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBBIE HALL,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
DA-0752-18-0472-I-1
DATE: June 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joel J. Kirkpatrick , Esquire, Canton, Michigan, for the appellant.
Thomas M. Ashton and Brady J. Kiehm , 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. Except as expressly MODIFIED to
supplement the administrative judge’s analysis of the appellant’s disparate
penalty claim, we AFFIRM the initial decision.
BACKGROUND
The essential undisputed facts, as set forth in the initial decision, are as
follows. The appellant was formerly employed by the agency as a Criminal
Investigator with the agency’s Inspector General for Tax Administration
(TIGTA), Office of Investigations. Initial Appeal File (IAF), Tab 25, Initial
Decision (ID) at 2. On May 24, 2018, the agency proposed his removal based on
a charge of conduct unbecoming a Federal employee, supported by
four specifications. Id. at 2-3. In specification one, the agency alleged that the
appellant stated to a coworker, C.C., with whom he had a prior romantic
relationship, that he had thought about killing her by shooting her through the
windshield while she was pulling out from the driveway. Id. at 4-5. In the
remaining specifications, the agency alleged that the appellant attempted or
threatened to use his position as a TIGTA agent to coerce or influence his
coworker to maintain their personal relationship. Id. at 7-8. After affording the
appellant an opportunity to respond, the agency sustained the charge and removed
the appellant from service, effective July 9, 2018. Id. at 2.2
The appellant filed a Board appeal in which he disputed the charge and
asserted that the agency had violated his due process rights. IAF, Tab 1. After
holding a hearing, the administrative judge issued an initial decision sustaining
the charge. ID at 1. The administrative judge found that the agency proved all
four of the specifications in support of its charge. ID at 3-13. She further found
that the appellant failed to prove his affirmative defense of due process violations
and that the agency proved nexus and that the penalty of removal was reasonable.
ID at 13-25.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 3. The agency has opposed the appellant’s petition. PFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly found that the agency proved its charge.
On review, the appellant has not identified any specific errors in the
administrative judge’s analysis concerning the agency’s proof of its charge.
Thus, the Board will not embark upon a complete review of the record. See
Baney v. Department of Justice , 109 M.S.P.R. 242, ¶ 7 (2008); Tines v.
Department of the Air Force , 56 M.S.P.R. 90, 92 (1992); 5 C.F.R. § 1201.115(a)
(2). Rather, regarding specification one, the appellant merely reiterates his
arguments that the agency improperly construed his statement as a threat and
failed to take into account the context, intent, and meaning of his words. PFR
File, Tab 3 at 6, 10. However, the administrative judge found that, even
accepting the appellant’s explanation of the context as true, his conduct was still
inappropriate, unsuitable, and reflected poor judgment. ID at 6-7. Regarding the
remaining specifications, the appellant summarily reiterates, without citation to
any record evidence, that his actions were proper as part of his job duties and that
his first-level supervisor confirmed that he was following proper procedure. PFR
File, Tab 3 at 6. Considering the record evidence, the administrative judge found
implausible the appellant’s claim that his communications with C.C. were in3
keeping with legitimate law enforcement purposes based on the timing of the
communications as well as the commingling of personal and professional
subjects. ID at 9-13. Moreover, contrary to the appellant’s argument, the
administrative judge found that the appellant’s first-level supervisor testified that
agents are expected to interview a complainant within 15 days of receipt of an
allegation of potential misconduct by an agent; yet, the appellant did not do so
here until well beyond the 15-day period. ID at 9-10. Thus, the appellant’s
arguments amount to mere disagreement with the administrative judge’s findings
and do not provide a basis for reversal. See Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98, 105-06 (1997) (stating that the Board will give due deference to
the credibility findings of the administrative judge and will not grant a petition
for review based on a party’s mere disagreement with those findings);
Broughton v. Department of Health & Human Services , 33 M.S.P.R. 357, 359
(1987) (same).
The administrative judge properly found that the appellant failed to prove that the
agency violated his due process rights.
Regarding the appellant’s contention that the deciding official was biased
and should have recused himself, the administrative judge found that the
appellant failed to present any actual evidence of bias and that the circumstances
were not such that the risk of unfairness was intolerably high. ID at 14-15.
Regarding the appellant’s contention that the deciding official considered
information that he failed to disclose to the appellant, including the appellant’s
history of rudeness and name-calling reflected in his text messages with C.C, the
administrative judge found that the appellant could not reasonably claim that he
was deprived of notice that this information would be considered. ID at 16-17.
In particular, she noted that the notice of proposed removal quoted specific text
messages that contained rude and offensive language, and the appellant requested
via his written response to the proposal that the deciding official consider the full4
text message exchanges between the appellant and C.C. to understand the context
of the statements cited in the proposal notice. Id.
On review, the appellant reiterates his same alleged due process violations
but fails to identify any error in the administrative judge’s analysis of such
claims. PFR File, Tab 3 at 10, 12, 14. He further raises a claim that, during the
oral reply, the deciding official inquired about the appellant’s prior relationships
with Federal employees. Id. at 12. This argument does not appear to have been
raised below, and the administrative judge did not address it. In any event, such a
claim would not amount to an ex parte communication because the appellant was
present for the oral reply, provided the information at issue, and was on notice
that the deciding official would consider the information presented during the oral
reply. See Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368,
1376-77 (Fed. Cir. 1999) (discussing when ex parte concerns arise in connection
with an adverse action).
The administrative judge properly found that there was a nexus between the
appellant’s off-duty misconduct and the efficiency of the service.
On review, the appellant disputes that his off-duty conduct has a nexus to
the efficiency of the service. PFR File, Tab 3 at 8-10, 13. The Board generally
recognizes three independent means by which an agency may show a nexus
linking an employee’s off-duty misconduct with the efficiency of the service:
(1) a rebuttable presumption of nexus that may arise in certain egregious
circumstances based on the nature and gravity of the misconduct; (2) a showing
by preponderant evidence that the misconduct affects the employee’s or his
coworkers’ job performance, or management’s trust and confidence in the
employee’s job performance; and (3) a showing by preponderant evidence that the
misconduct interfered with or adversely affected the agency’s mission.2
2 On review, the appellant states that, in the absence of a violation of criminal law, the
agency may discipline an employee for off-duty misconduct only if it impacts the
agency’s ability to perform its responsibilities or if the conduct constitutes a violation
of an internal regulation. PFR File, Tab 3 at 13. However, he cites no case law in5
Kruger v. Department of Justice , 32 M.S.P.R. 71, 74 (1987). Here, we agree with
the administrative judge that the appellant’s statement that he had thought about
killing C.C. is contrary to the agency’s mission of overseeing and protecting
Internal Revenue Service (IRS) employees from threats. ID at 18. The record
reflects that one of TIGTA’s core missions is the protection of IRS employees,
which includes investigating threats against IRS employees and determining
whether the employee’s safety in their capacity as an IRS employee is implicated.
ID at 18; IAF, Tab 24, Hearing Transcript (HT) at 126-27. Moreover, the Board
has long held that law enforcement agents are held to a higher standard of
conduct than other employees. See, e.g., MacDonald v. Department of the Navy ,
4 M.S.P.R. 403, 404 (1980). Accordingly, we agree with the administrative judge
that a nexus exists between the appellant’s off-duty misconduct and the efficiency
of the service. See, e.g., Royster v. Department of Justice , 58 M.S.P.R. 495, 500
(1993) (the appellant’s off-duty misconduct involving threatening and abusive
calls to a woman bore a nexus to his position as correctional officer in a women’s
prison); Barnhill v. Department of Justice , 10 M.S.P.R. 378, 381 (1982) (the
appellant’s off-duty obscene telephone calls and threats of violence to a woman
bore a nexus to the efficiency of the service given his position as a Border Patrol
Agent whose duties entailed the apprehension of female suspects).
The administrative judge properly found that the penalty of removal is
reasonable.
The administrative judge found that the appellant failed to prove his
disparate penalty claim because, although the purported comparators were
charged with conduct unbecoming, the nature of the underlying conduct, such as
misuse of a government vehicle or using profanity toward subordinates, was
materially different than the misconduct engaged in by the appellant.
ID at 21-23. The administrative judge further found that the appellant did not
show that any of the purported comparators were located in the same group or
support of this proposition.6
field division, held the same position, or had the same deciding official. ID at 23.
On review, the appellant identifies the same comparators and reiterates his
argument that the deciding official failed to consider the consistency of the
penalty imposed but does not identify any specific error in the administrative
judge’s analysis. PFR File, Tab 3 at 14, 17-20.
After the issuance the initial decision, the Board clarified the proper
standards for assessing a disparate penalty claim in Singh v. U.S. Postal Service ,
2022 MSPB 15. In Singh, the Board noted that, under recent case law, the
universe for potential comparators had become worldwide and that broad
similarity in misconduct between the appellant and the comparator had been
found sufficient to shift the burden to the agency to explain the difference in
treatment. Singh, 2022 MSPB 15, ¶ 11. The Board clarified that, although the
universe of potential comparators will vary from case to case, it should be limited
to those employees whose misconduct and/or other circumstances closely
resemble those of the appellant. Id., ¶ 13. The Board noted that, in most cases,
employees from another work unit or supervisory chain will not be proper
comparators. Id. The Board further held that the relevant inquiry is whether the
agency knowingly and unjustifiably treated employees differently. Id., ¶ 14.
Here we find that the administrative judge’s analysis comports with the
standards set forth in Singh. We agree with the administrative judge that the
record reflects that the alleged comparators did not engage in similar misconduct
or that such individuals were in the same work unit or supervisory chain as the
appellant. ID at 21-23; IAF, Tab 15 at 38-60, Tab 16 at 5-48, Tab 22 at 6-9.
Rather, the purported comparators were in different field divisions, and different
proposing and deciding officials were involved in the disciplinary actions. IAF,
Tab 15 at 38-60, Tab 16 at 5-48, Tab 22 at 6-9. Nor does the record contain
anything suggesting that the agency knowingly treated the appellant differently.
Accordingly, we affirm the initial decision, sustaining the appellant’s
removal.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).
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. 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.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. 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 | Hall_RobbieDA-0752-18-0472-I-1__Final_Order.pdf | 2024-06-14 | ROBBIE HALL v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DA-0752-18-0472-I-1, June 14, 2024 | DA-0752-18-0472-I-1 | NP |
1,221 | https://www.mspb.gov/decisions/nonprecedential/Marcinuk_CoryPH-0752-18-0329-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CORY S. MARCINUK,
Appellant,
v.
DEPARTMENT OF STATE,
Agency.DOCKET NUMBER
PH-0752-18-0329-I-1
DATE: June 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cory S. Marcinuk , Methuen, Massachusetts, pro se.
Marianne Perciaccante , Esquire, and Christine Hulsizer , 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 from the position of Passport Specialist. On petition for
review, the appellant argues, among other things, that the administrative judge
committed adjudicatory error by refusing to allow argument regarding 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).
agency’s failure to promote the appellant, not allowing discovery regarding the
appellant’s previous suspensions, and finding that he was not a qualified
individual with a disability. The appellant also argues that the administrative
judge failed to rule on his motion to compel discovery, failed to address a recent
Equal Employment Opportunity Commission (EEOC) decision, failed to consider
all of the evidence, and failed to consider whether the agency properly relied on
prior discipline in its penalty selection. 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 address several matters not specifically addressed by the
administrative judge, we AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
Absent an abuse of discretion in the administrative judge’s handling of
discovery related matters, the Board will not find reversible error. See Kingsley
v. U.S. Postal Service , 123 M.S.P.R. 365, ¶ 16 (2016); Rodgers v. Department of
the Navy, 122 M.S.P.R. 559, ¶ 21 (2015). Here, the appellant’s assertion that the
administrative judge erred by failing to rule on the appellant’s motion to compel
discovery is unavailing. Petition for Review (PFR) File, Tab 1 at 2. The2
appellant served a round of discovery on the agency, and after the agency
responded, the appellant filed a motion to compel. Initial Appeal File (IAF),
Tab 23. The agency opposed the motion, arguing that the appellant’s round of
discovery was untimely and that the appellant failed to discuss the anticipated
motion with the agency in violation of the Board’s regulations. IAF, Tab 26. The
appellant did not respond to the agency’s opposition. Under these circumstances,
the administrative judge’s failure to rule on the appellant’s motion to compel did
not constitute an abuse of discretion. In any event, the administrative judge’s
failure to address the discovery issue in his initial decision 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’s assertion that the administrative judge erred by failing to
mention a recent decision by the EEOC in a disability discrimination case,
Solomon v. Tillerson , EEOC Appeal No. 0120160352 (Feb. 22, 2018), is also
unavailing. PFR File, Tab 1 at 2; IAF, Tab 27 at 16-23. The appellant contends
that the EEOC decision is relevant to his allegation of disability discrimination
because it addresses alleged discrimination against a Passport Specialist in
another agency location. PFR File, Tab 1 at 2 . In its decision, the EEOC found
that a Passport Specialist at that facility was a qualified individual with a
disability and ordered that the agency accommodate him. IAF, Tab 27 at 18-20.
The EEOC decision is not relevant to the disposition of the appellant’s allegation
of discrimination, however, because the appellant failed to prove that he is a
qualified individual with a disability.
On review, the appellant argues that the administrative judge did not
consider all of the evidence he submitted at Tabs 27 and 31 of the initial appeal
file. PFR File, Tab 1 at 2-3. It is well settled, however, that an administrative
judge’s failure to mention all of the evidence of record does not mean that he did3
not consider it in reaching his decision. Marques v. Department of Health &
Human Services , 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir.
1985) (Table).
Finally, on review the appellant argues that the administrative judge failed
to consider his arguments about the propriety of a previous 5-day suspension and
a 14-day suspension, apparently as they relate to the penalty analysis. PFR File,
Tab 1 at 3; IAF, Tab 27 at 5-7. The Board’s review of a prior disciplinary action
is limited to determining whether: (1) the employee was informed of the action in
writing; (2) the action is a matter of record; and (3) 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). Here, the appellant was informed of both suspensions in writing, the
action was a matter of record, and the appellant was permitted to dispute the
charges before a higher level of authority. IAF, Tab 5 at 56-64, 66-72. Thus, the
Board will not review those actions except to the extent that they were clearly
erroneous in the sense that they leave the Board with the “definite and firm
conviction that a mistake has been committed.” Bolling, 9 M.S.P.R. at 340.
Here, the appellant has not shown that the previous suspensions were clearly
erroneous. Therefore, to the extent that the administrative judge erred in failing
to address the appellant’s assertion that prior discipline should not be considered
in determining the penalty for the sustained misconduct, his error did not harm
the appellant’s substantive rights. An adjudicatory error that is not prejudicial to
a party’s substantive rights provides no basis for reversal of an initial decision.
Panter, 22 M.S.P.R. at 282.
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
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.4
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:
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 particular5
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 . 6
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 of7
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 | Marcinuk_CoryPH-0752-18-0329-I-1__Final_Order.pdf | 2024-06-14 | CORY S. MARCINUK v. DEPARTMENT OF STATE, MSPB Docket No. PH-0752-18-0329-I-1, June 14, 2024 | PH-0752-18-0329-I-1 | NP |
1,222 | https://www.mspb.gov/decisions/nonprecedential/Tillman-Johnson_LynetteDA-1221-22-0388-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LYNETTE TILLMAN-JOHNSON,
Appellant,
v.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT,
Agency.DOCKET NUMBER
DA-1221-22-0388-W-1
DATE: June 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew B. Henson , Esquire, Decatur, Georgia, for the appellant.
Marcus R. Patton , Esquire, Anju V. Mathew , Esquire, Sakeena M. Adams ,
Esquire, and Mary C. Merchant , Esquire, Fort Worth, Texas, 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 agency has filed a petition for review of the initial decision, which
granted corrective action in this individual right of action (IRA) 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).
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 agency 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
¶2On September 4, 2018, the agency appointed the appellant to the position of
GS-13 Senior Account Executive (SAE), subject to a 1-year initial probationary
period. Initial Appeal File (IAF), Tab 1 at 7. The appellant was responsible for
overseeing the performance of a portfolio of multifamily housing properties under
the agency’s purview. IAF, Tab 8 at 52, Tab 22 at 25. As a part of her job duties,
she was required to monitor the properties assigned to her portfolio for changing
financial circumstances, including by reviewing and approving changes to lease
requests, loan terms or modifications, changes in property management, and other
project-related requests. IAF, Tab 22 at 26. As an SAE, the appellant served as
the primary point of contact with owner management agents, tenants, and Federal,
state, and local governments for the projects assigned to her. Id. As such, she
was tasked with “negotiat[ing] formal agreements on behalf of” the agency, and
3
with “insuring [sic] that all executed agreements are monitored in accordance
with established policies and procedures.” Id.
¶3On August 4, 2022, the appellant filed an IRA appeal, claiming that the
agency reassigned her, terminated her employment, and took several other
personnel actions against her in retaliation for protected whistleblowing. IAF,
Tabs 1, 5. She waived her right to a hearing. IAF, Tab 17. After the close of the
record, the administrative judge issued an initial decision granting the appellant’s
request for corrective action with respect to both the reassignment and the
termination. IAF, Tab 31, Initial Decision (ID) at 1, 30. The agency has filed a
petition for review, and the appellant has filed a response. Petition for Review
(PFR) File, Tabs 1, 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The appeal was timely.
¶4Under 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. 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 closeout letter, or, if the letter is received more than
5 days after its issuance, within 60 days of the date of receipt. 5 C.F.R.
§ 1209.5(a)(1).
¶5In this case, the appellant received OSC’s closeout letter on May 31, 2022—
the date it was issued, and so the filing deadline was August 4, 2022. IAF, Tab 3
at 3, Tab 8 at 46-47. The appellant filed her appeal on that date. IAF, Tab 1.
However, it appeared from the appellant’s initial appeal form that she was
appealing her probationary termination directly, and it was not until 5 days later
that the appellant clarified that she intended to file an IRA appeal. IAF, Tab 1,
Tab 2 at 3-5, Tab 3 at 3. Based on these facts, the agency argues that the
4
appellant filed her IRA appeal outside the statutory deadline and that the appeal
should be dismissed as untimely. PFR File, Tab 1 at 6-7.
¶6We have considered the agency’s argument, but we disagree. The agency
has provided no precedent in support of its position on timeliness. There is no
support in the statute or regulations for the Board to construe the date on which
the appellant clarified the nature of her appeal as the date that she filed her
appeal. Furthermore, even if it could be argued that this pro se appellant’s initial
filing was defective, her filing of a timely but defective pleading would provide a
sufficient basis to toll the statutory deadline.2 See Irwin v. Department of
Veterans Affairs , 498 U.S. 89, 96 (1990) (holding that equitable tolling may be
invoked when a party “has actively pursued his judicial remedies by filing a
defective pleading during the statutory period”).
The appellant proved her case in chief.
¶7In the merits phase of an IRA appeal, the appellant must prove by
preponderant evidence 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).
¶8In this case, the administrative judge found that the appellant made five
disclosures that were protected on the basis that the appellant reasonably believed
that they concerned a violation of law, rule, or regulation: (1) on October 11,
2018, the appellant disclosed to her former first-line supervisor that the agency
had abandoned or failed to properly inspect and service certain properties; (2) on
2 The Board has never squarely decided the issue of whether the deadline at 5 U.S.C.
§ 1214(a)(3)(A) is subject to equitable tolling. However, we see no reason to doubt that
it is. See generally Boechler v. Commissioner of Internal Revenue , 596 U.S. 199, 209
(2022) (holding that non-jurisdictional filing deadlines are presumptively subject to
equitable tolling).
5
October 12, 2018, she followed up by making the same disclosure to her third -line
supervisor; (3) on October 15, 2018, she reported to her first-line supervisor that
an agency official was retaliating against her for protected whistleblowing by
instructing other employees not to assist her with her portfolio; (4) on
December 14, 2018, she reported to her first-line supervisor that the agency failed
to ensure that property inspections were being conducted and that repairs were
being documented; and (5) on December 11 and 19, 2018, she reported to her
first-line supervisor that the agency failed to ensure that mandatory contract terms
were being included in management agreements. ID at 8-19. On petition for
review, the agency contests the administrative judge’s findings on these
disclosures, except for Disclosure 3. For the reasons explained in the initial
decision, we agree with the administrative judge that the appellant made
Disclosure 3 and that her disclosure was protected. ID at 17.
Disclosures 1 and 2
¶9Regarding Disclosures 1 and 2, the agency disputes the administrative
judge’s findings about the content of these disclosures, arguing that they are not
supported by the record. PFR File, Tab 1 at 7-8. For the first time on review, the
agency has submitted an October 11, 2018 email that it postulates is Disclosure 1,
and argues that this email contains no allegation of failure to service properties,
property abandonment, missing inspections, or exigent health and safety issues.
Id. at 7 n.21, 13-15.
¶10However, even considering the agency’s late-filed evidence, we find that it
does not warrant a different outcome in this appeal for two reasons. First, the
administrative judge’s findings about the content of these disclosures were not
based on this one email alone, but on “multiple reports” to the appellant’s
supervisors that the agency was failing to ensure proper servicing of portfolios,
including on October 11 and 12, 2018, when she indicated that the properties
“had been abandoned.” ID at 8. The administrative judge noted that the
6
appellant disclosed the content of Disclosures 1 and 2 by providing evidence that
the property files had not been updated prior to the properties being transferred to
her portfolio. ID at 8-9. The administrative judge also credited the appellant’s
deposition testimony, in which the appellant stated that she reported the lack of
servicing issues to her supervisors, over the declaration of one of those
supervisors who “only generally stat[ed]” that she did not recall the appellant
alleging that the agency was violating any laws, rules, or regulations. The
administrative judge observed that the supervisors did not specifically deny that
the appellant reported that the agency was failing to service the properties. ID
at 9-10. We therefore cannot agree with the agency’s suggestion that the
October 11, 2018 email was all there was to Disclosures 1 and 2.
¶11 Second, even if the Board restricted its examination to the email itself,
there would be sufficient evidence to support the administrative judge’s findings.
Although the email does not explicitly reference property abandonment, missing
inspections, or any exigent health and safety items, it identifies the last date that
inspections were completed for each of the three identified properties, notes that
each of the properties were lacking action plans, and identifies that each of the
properties had been in the same condition for the past 3 months. PFR File, Tab 1
at 13-15. Contextually understood, this email supports the administrative judge’s
finding that the appellant could have reasonably believed that, by identifying
these repeated failures to properly service properties in her portfolio, she was
disclosing that the properties had been “abandoned,” and that this inaction
constituted a violation of agency rules or regulations governing the proper
servicing of the properties. ID at 9-10.
¶12In finding that Disclosures 1 and 2 met the “reasonable belief” standard, the
administrative judge considered an internal report of investigation (ROI), which
stated that numerous properties in the appellant’s portfolio had not been inspected
as scheduled, and health and safety remediation had not been properly
7
documented, in violation of 24 C.F.R. § 200.857(b)(1) and (c)(2).3 ID at 10-11;
IAF, Tab 8 at 49-67. The agency argues that, because the appellant failed to
specifically identify many of the properties discussed in the ROI, it was
“improper for the [administrative judge] to assume that the ROI was based on
information [that the appellant] had available to her at the time of her
disclosures.” PFR File, Tab 1 at 8. However, t he ROI was produced at OSC’s
direction as a direct result of the appellant’s whistleblowing complaint, and the
scope of the agency’s investigation was specifically limited to the properties in
the appellant’s portfolio. IAF, Tab 8 at 44-45, 51, 54. Additionally, each of the
three properties that the appellant identified in her October 11, 2018 email was
referenced in the ROI. PFR File, Tab 1 at 13-15; IAF, Tab 8 at 60. Finally, the
appellant also provided OSC with a contemporaneously prepared spreadsheet of
her correspondence with agency managers concerning the inadequate servicing of
her properties, including Disclosures 1 and 2. IAF, Tab 8 at 23, Tab 22 at 5-6.
Consequently, it can be reasonably inferred that the findings in the ROI were
based, at least in part, on information that the appellant had about her properties
when she originally made her disclosures. ID at 11. In any event, it is immaterial
whether the specific properties that the ROI identified as deficient were the same
properties that the appellant identified in Disclosures 1 and 2. As the
administrative judge correctly noted, the appellant was only required to establish
that she reasonably believed that her disclosures evidenced one of the categories
of wrongdoing identified in 5 U.S.C. § 2302(b)(8). PFR File, Tab 4 at 5-6; ID
at 11-12.
¶13The agency next argues that the appellant did not have a reasonable belief
that it was violating 24 C.F.R. § 200.857(b)(1) by not conducting monthly
inspections because the regulation does not require monthly inspections. PFR
File, Tab 1 at 10. However, even if the appellant was mistaken about how
3 After the initial decision was issued, 24 C.F.R. § 200.857 was removed and reserved,
effective October 1, 2023. See 88 Fed. Reg. 30442, 30498 (May 11, 2023).
8
frequently inspections were required, as explained in the ROI, she was still
correct that the agency was not conducting inspections frequently enough. The
agency also argues that the appellant did not have a reasonable belief that it had
violated 24 C.F.R. § 200.857(c)(2) because property owners, and not the agency,
are required to make health and safety repairs. PFR File, Tab 1 at 10. However,
it is undisputed that the agency failed to hold property owners to the required
remediation timelines for a significant number of the properties in the appellant’s
portfolio. ID at 10-11; IAF, Tab 8 at 54-55. Further, even if the purported
wrongdoing primarily involved non-agency officials, the Board has held that a
disclosure of wrongdoing committed by a non -Federal Government entity may
nevertheless be protected 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. See Covington v. Department of the Interior , 2023 MSPB 5, ¶ 16;
Arauz v. Department of Justice , 89 M.S.P.R. 529, ¶¶ 6-7 (2001). Regardless of
which party was responsible for conducting the actual repair work, we find that
the Government’s interests and good name are implicated in the appellant’s
disclosures. In sum, we agree with the administrative judge that the appellant
reasonably believed that she was disclosing violations of agency regulations in
connection with Disclosures 1 and 2. ID at 8-12.
Disclosure 4
¶14Regarding Disclosure 4, the administrative judge credited the appellant’s
deposition testimony that, on December 14, 2018, she disclosed that the agency
had failed to adequately service her properties prior to them being assigned to
her, including by failing to complete inspections and ensure that repairs were
being properly documented. ID at 9 (citing IAF, Tab 23 at 32-33, 54-55). The
agency argues that there is insufficient evidence to prove that the appellant’s
December 14, 2018 disclosure was protected. PFR File, Tab 1 at 8. Specifically,
9
the agency argues that there is no evidence that the appellant disclosed property
inspection and repair documentation failures, and that the administrative judge
improperly relied on the ROI in finding that she did. Id. We disagree.
¶15Because the administrative judge’s findings are based on the written record,
the Board is free to reweigh the evidence and make its own findings without
deferring to her credibility findings. See Haebe v. Department of Justice ,
288 F.3d 1288, 1302 (Fed. Cir. 2002). We have reviewed the record and find that
the administrative judge properly weighed the evidence, including by considering
the consistency of the appellant’s statements with other evidence in the record,
such as the ROI and the appellant’s prior emails detailing the concerns underlying
Disclosure 4. ID at 8-12; see Hillen v. Department of the Army , 35 M.S.P.R. 453,
458 (1987) (setting forth various factors relevant to credibility determinations);
see also Borninkhof v. Department of Justice , 5 M.S.P.R. 77, 87 (1981)
(explaining the factors that affect the weight of hearsay evidence). In her
deposition, the appellant specifically stated that she informed her first-line
supervisor, by email and in person, that the properties had problems with
inspection and repair documentation. IAF, Tab 23 at 54-55. The appellant
further testified that she had regular meetings with her supervisor during which
she discussed numerous issues with the properties in her portfolio, and that she
discussed the inspection and repair issues during a December 14, 2018 meeting
with her first-line supervisor. IAF, Tab 23 at 55.
¶16Regarding the agency’s argument that the administrative judge improperly
relied on the findings in the ROI, the administrative judge considered the ROI as
evidence that the appellant’s disclosures concerned a violation of regulation—not
as evidence that she made the disclosures as alleged. ID at 10-11. It was
appropriate for the administrative judge to cite the findings of the ROI, as it gave
context to the appellant’s disclosures by clarifying the proper process and
timeline for completing inspections and repairs, and the ROI acknowledged that
the timelines for both requirements regularly were not met for properties in the
10
appellant’s portfolio. ID at 10-11; IAF, Tab 8 at 53-55. For these reasons, we
agree with the administrative judge that the appellant made Disclosure 4 as
alleged, and that the disclosure concerned violations of agency regulation.
Disclosure 5
¶17Regarding Disclosure 5, the appellant informed her first-line supervisor on
December 11 and 19, 2018, that certain management agreements were missing
clauses required by the agency’s handbook. ID at 11-12; IAF, Tab 22 at 58-59.
The administrative judge found that the appellant reasonably believed that this
disclosure evidenced a violation of law, rule, or regulation. ID at 12. On review,
the agency argues that its handbook does not amount to a “law, rule, or
regulation” within the meaning of 5 U.S.C. § 2302(b)(8). PFR File, Tab 1
at 10-11. However, to construe the appellant’s disclosures of purported handbook
violations as protected only if the handbook has the force of law—i.e., a statute or
substantive regulation, as the agency suggests—would render the term “rule,” as
provided under section 2302(b)(8)(A)(i), superfluous. See Department of
Homeland Security v. MacLean , 135 S. Ct. 913, 918-21 (2015) (finding that, by
using the phrase “law, rule, or regulation” to describe protected disclosures, while
using the word “law” to describe excepted disclosures, Congress intended to
exclude disclosures that violated rules or regulations from excepted disclosures).
Instead, the Board has defined a rule as “an established and authoritative standard
or principle; a general norm mandating or guiding conduct or action in a given
type of situation.” Rusin v. Department of the Treasury , 92 M.S.P.R. 298, ¶ 16
(2002) (quoting Black’s Law Dictionary 1330 (7th ed. 1999)). For the reasons
explained in the initial decision, we agree with the administrative judge that the
agency’s handbook amounts to a “rule” for purposes of 5 C.F.R. § 2302(b)(8). ID
at 12 n.5; IAF, Tab 23 at 116
¶18The agency also argues that nothing in the appellant’s December 11, 2018
email evidenced a violation of its handbook. PFR File, Tab 1 at 9. We disagree.
11
The appellant’s email specifically stated that one of her management contracts
was missing required clauses, and she proposed to notify the agent. IAF, Tab 22
at 58-59. She also specifically cited a provision of the handbook that required
such language in the agreements. Id. The appellant’s first-line supervisor
disregarded her concerns and directed her not to send the email. Id. at 58. As the
administrative judge noted, the ROI acknowledged that management agreements
are required to reference required contract clauses upon renewal or when
appropriate, citing the exact same handbook provision as the appellant referenced
to her supervisor. IAF, Tab 8 at 63 & n.46. Properly and contextually
understood, the appellant was attempting to disclose to her supervisor that the
agreement did not have the required contract language and that the absence of that
language was contrary to the requirements of the handbook. ID at 12.
¶19The agency further argues that the ROI determined that there were “no
compliance issues regarding expired management contracts in this instance,”
noting that, for this property, the management agreement allowed for automatic
renewal and had not yet expired, and thus, the agency did not violate the
handbook provisions by not requiring the owner to amend the management
agreement. PFR File, Tab 1 at 9; IAF, Tab 8 at 63. This is an oversimplification
of what the ROI said about this matter. Although the ROI determined that there
were no compliance issues regarding “expired management contracts,” the ROI
also addressed the appellant’s concern in Disclosure 5 that the existing
management agreement failed to include required termination rights provisions.
IAF, Tab 8 at 62 (“According to Claimant, MFHSW Branch Chief Managers
failed to adhere to this requirement by not addressing expired or missing
management certifications and by not requiring that management agreements
include required contract clauses related to fees and termination rights .”)
(emphasis added). Although the ROI suggests that the failure to include the
required language concerning termination rights did not result in “loss to HUD”
in this instance, the ROI does note that best practices would require the agency to
12
reference required contract clauses in management agreements “upon contract
renewal or when appropriate,” which would “strengthen Owner’s ability to
terminate the management agent agreement at will or at the direct of HUD.” Id.
at 63. Thus, the ROI supports the appellant’s concerns in Disclosure 5 that the
agency violated its rules or regulations by failing to include the termination
clauses.
¶20In any event, even if the absence of the required termination clause was not
actually in violation of the agency handbook, Disclosure 5 would still be
protected. An individual making a disclosure is protected from retaliation for
whistleblowing based on her reasonable belief that her disclosure evidenced one
or more of the categories of wrongdoing listed in 5 U.S.C. § 2302(b)(8), even
when her belief is mistaken. Mithen v. Department of Veterans Affairs ,
122 M.S.P.R. 489, ¶ 24 (2015), aff’d, 652 F. App’x 971 (Fed. Cir. 2016) . The
test for determining whether an individual’s belief is reasonable is whether a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the employee could reasonably conclude that the actions of the
agency evidence the wrongdoing disclosed. Lachance v. White , 174 F.3d 1378,
1381 (Fed. Cir. 1999). We agree with the administrative judge that the appellant
reasonably believed that Disclosure 5 evidenced a violation of an agency rule or
regulation, and whether the ROI confirmed that belief is ultimately immaterial to
this finding. ID at 11.
¶21 Finally, the agency argues that, even if some management agreements
failed to comply with the requirements set forth in the agency handbook, the
owners and managers of the subject properties were the noncompliant parties, not
the agency, and the Board has held that disclosures of wrongdoing by private,
nongovernmental entities do not constitute protected disclosures for the purposes
of 5 U.S.C. § 2302(b)(8). PFR File, Tab 1 at 9-10. We disagree because the
substance of Disclosure 5 was that the agency was violating its own rules and
regulations by failing to ensure that entities it oversaw included required contract
13
terms in their management agreements—not that the management agents and
owners were themselves violating a law, rule, or regulation. IAF, Tab 20 at 2-3.
¶22Further, given the oversight functions that the agency exercised over the
management agents and owners, the agency’s failure to enforce compliance with
the regulatory requirements that governed the relationship between the agency
and the management agents and owners could implicate the Government’s
interests and good name. See Arauz, 89 M.S.P.R. 529, ¶ 7 (finding that the
appellant’s disclosure regarding alleged wrongdoing by a private organization
was protected when the agency was in a position to influence or exercise
oversight over the organization’s performance of the challenged functions, such
that the Government’s “interests and good name” were implicated in the
wrongdoing). Accordingly, we conclude that even if Disclosure 5 evidenced only
wrongdoing by nongovernmental parties, the appellant’s disclosure was
nevertheless protected because it implicated the Government’s interests and good
name.
The agency did not prove its affirmative defense.
¶23If the appellant proves that her protected disclosure or activity was a
contributing factor in a personnel action taken against her, 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.4
Soto v. Department of Veterans Affair s, 2022 MSPB 6, ¶ 6; see 5 U.S.C.
§ 1221(e)(1)-(2). In determining whether an agency has met this burden, the
Board will consider all of the relevant factors, including the following: (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
4 The agency does not contest the administrative judge findings on contributing factor,
and for the reasons explained in the initial decision, we agree with the administrative
judge that the appellant proved that part of her case. ID at 19-23.
14
actions against employees who are not whistleblowers but who are otherwise
similarly situated. Carr v. Social Security Administration , 185 F.3d 1318, 1323
(Fed. Cir. 1999); Soto, 2022 MSPB 6, ¶ 11. The Board does not view these
factors as discrete elements, each of which the agency must prove by clear and
convincing evidence, but rather, the Board will weigh the factors together to
determine whether the evidence is clear and convincing as a whole. Karnes v.
Department of Justice , 2023 MSPB 12, ¶ 24. Additionally, the Board will
consider all the evidence presented, including evidence that detracts from the
conclusion that the agency met its burden. Whitmore v. Department of Labor ,
680 F.3d 1353, 1368 (Fed. Cir. 2012); Soto, 2022 MSPB 6, ¶ 11.
¶24In her initial decision, the administrative judge found that the agency did
not demonstrate strong reasons for taking the personnel actions, the officials
involved had considerable retaliatory motive, and there was no evidence
concerning the agency’s treatment of similarly situated non-whistleblowers. ID
at 24-25. Considering the evidence as a whole, she found that the agency did not
prove by clear and convincing evidence that it would have reassigned and
terminated the appellant even absent her protected disclosures. Id. On review,
the agency argues that the administrative judge failed to consider evidence of two
other employees who also reported violations of the agency’s handbook to the
appellant’s first-line supervisor but who were not disciplined. PFR File, Tab 1
at 11. It argues that the first -line supervisor’s failure to take disciplinary action
against these employees despite their expressed disagreement demonstrates that it
was not the appellant’s whistleblowing activity that motivated the first-line
supervisor to take the contested personnel actions. Id.
¶25The agency is correct that evidence regarding similarly situated
whistleblowers may be relevant to the second Carr factor. See Siler v.
Environmental Protection Agency , 908 F.3d 1291, 1299 (Fed. Cir. 2018) .
Nevertheless, we find no reason to disturb the administrative judge’s analysis of
the second Carr factor on this basis. In finding that the second Carr factor
15
weighed in the appellant’s favor with respect to both personnel actions, the
administrative judge observed that the appellant’s disclosures about the agency’s
abandonment of properties revealed “real and significant problems” about how
properties within the agency’s portfolio were being managed, as later validated by
the ROI. ID at 24-25. The administrative judge reasoned that the appellant’s
detailing of the agency’s failures would have reflected poorly on her first- and
third-level supervisors, both of whom were aware of the appellant’s disclosures
but did not take action to remedy the issues she identified, and thus they would
have been motivated to retaliate. ID at 24-25, 29; see Robinson v. Department of
Veterans Affairs , 923 F.3d 1004, 1019 (Fed. Cir. 2019) (considering under the
second Carr factor whether there was a professional motive to retaliate); see also
Wilson v. Department of Veterans Affairs , 2022 MSPB 7, ¶ 65 (finding that
officials 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); Smith
v. Department of the Army , 2022 MSPB 4, ¶¶ 28-29. By contrast, the parties
stipulated only that the two employes at issue “expressed their disagreement”
with the appellant’s first-line supervisor that the agency was consistently
following the handbook. IAF, Tab 23 at 8. There is no additional information in
the record concerning the nature of this “disagreement” or whether the two
employees’ expression of disagreement rose to the level of the appellant’s
whistleblowing activity. Accordingly, we conclude that the administrative judge
properly weighed the Carr factors in finding that the agency failed to meet its
burden. For the foregoing reasons, we deny the agency’s petition for review and
affirm the initial decision.
16
ORDER
¶26We ORDER the agency to cancel the appellant’s termination and to restore
the appellant effective March 14, 2019.5 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.
¶27We 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.
¶28We 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).
¶29No 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).
5 The administrative judge found, and the parties do not dispute, that there is no
corrective action available to correct the appellant’s reassignment. ID at 30.
Nevertheless, the circumstances of this personnel action may be relevant to assessing
damages.
17
¶30For 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.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204.
In addition, the Whistleblower Protection Enhancement Act of 2012
authorized the award of compensatory damages including interest, reasonable
18
expert witness fees, and costs, 5 U.S.C. § 1214(g)(2), which you may be entitled
to receive.
If you believe you are entitled to these damages, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your motion with the
office that issued the initial decision on your appeal.
NOTICE TO THE PARTIES
A copy of the decision will be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note that
while any Special Counsel investigation related to this decision is pending, “no
disciplinary action shall be taken against any employee for any alleged prohibited
activity under investigation or for any related activity without the approval of the
Special Counsel.” 5 U.S.C. § 1214(f).
NOTICE OF APPEAL RIGHTS6
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
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
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.
20
(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:
21
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.
22
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.
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. | Tillman-Johnson_LynetteDA-1221-22-0388-W-1__Final_Order.pdf | 2024-06-14 | null | DA-1221-22-0388-W-1 | NP |
1,223 | https://www.mspb.gov/decisions/nonprecedential/Durant_ValondaAT-0752-18-0622-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VALONDA DURANT,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-0752-18-0622-I-1
DATE: June 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ronica Scales , Esquire, and Shaun Southworth , Esquire, Atlanta, Georgia,
for the appellant.
Jason L. Hardy , Esquire, Clearwater, 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 her 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
supplement and clarify the administrative judge’s analysis of the appellant’s
Title VII discrimination claims, we AFFIRM the initial decision.
BACKGROUND
The appellant was the Supervisor of Distribution Operations at the Ybor
City Processing and Distribution Center in Ybor City, Florida. Initial Appeal File
(IAF), Tab 5 at 45. On May 10, 2018, the agency proposed her removal based on
the following charges: (1) unacceptable conduct when, on March 12, 2018, she
wore headphones on the workroom floor and verbally attacked her manager
(Manager 1) and, on March 20, 2018, she screamed and swore at another manager
(Manager 2) and referred to the Plant Manager as a “fat ass” (4 specifications);
(2) absence without leave for 2 days in March 2018 (1 specification); and
(3) failure to follow instructions when, after Manager 1 instructed her to remove
her headphones on March 12, 2018, she refused to do so, she refused Manager 2’s
instruction to review and sign two leave request forms on March 20, 2018, and
she refused to attend an investigative interview on March 22, 2018, regarding the
behavior at issue here (3 specifications). Id. at 28-33. On July 17, 2018, the
agency issued a decision letter on its proposed removal, sustaining the
unacceptable conduct and failure to follow instructions charges and finding that2
removal was an appropriate penalty. Id. at 16-22. The deciding official did not
sustain the absence without leave charge. Id. at 16.
The appellant filed this appeal of her removal. IAF, Tab 1. Following a
hearing, the administrative judge issued an initial decision affirming the removal.
IAF, Tab 34, Initial Decision (ID) at 1, 15. He found that the agency proved both
charges. ID at 3-9. He further found that the agency’s action promoted the
efficiency of the service, and that removal was a reasonable penalty for the
sustained charges. ID at 9-12. The administrative judge also concluded that the
appellant did not prove her affirmative defenses of discrimination on the basis of
gender, sexual orientation, and race, and reprisal for prior equal employment
opportunity (EEO) activity. ID at 13-14.
The appellant has timely filed a petition for review, challenging the
administrative judge’s finding that the agency proved its charge of unacceptable
conduct. Petition for Review (PFR) File, Tab 1. The agency has responded to the
petition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge made proper credibility findings based on the hearing
testimony and record evidence.
In sustaining the charges, the administrative judge credited the testimony of
the agency witnesses, who testified as to the conduct underlying the appellant’s
removal, over the appellant’s denials. ID at 3-9. On review, the appellant
disputes the credibility -based findings of the administrative judge regarding the
unacceptable conduct charge. PFR File, Tab 1 at 5. For the following reasons,
we do not agree with the appellant’s arguments.2
2 The appellant does not challenge the administrative judge’s finding that the agency
proved the failure to follow instructions charge on review. PFR File, Tab 1 at 5.
Although she generally disagrees that she failed to remove her headphones as instructed
on March 12, 2018, she provides no evidence or argument related to her assertion. Id.
We find that the appellant’s contention constitutes mere disagreement with the
administrative judge’s reasoned and explained findings. See Stoglin v. Department of
the Air Force, 123 M.S.P.R. 163, ¶ 6 (2015) (explaining that a petition for review must3
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 ,
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).3 He identified
the factual questions in dispute, summarized the agency’s charges, and then
analyzed the evidence and testimony that the parties offered with respect to the
charges. ID at 3-7. For each specification of the unacceptable conduct charge, as
discussed below, the administrative judge stated that he believed the testimony of
the agency’s witnesses over that of the appellant, and explained why he found the
appellant’s testimony less credible.4 Id.
state a party’s objections to the initial decision, including all of the party’s legal and
factual arguments, and must be supported by specific references to the record and any
applicable laws or regulations), aff’d per curiam, 640 F. App’x 864 (Fed. Cir. 2016).
Accordingly, we discern no basis to disturb the administrative judge’s finding that the
agency proved this charge. We also discern no reason to disturb the administrative
judge’s findings that the agency proved nexus between the sustained charges and the
efficiency of the service, and that removal was a reasonable penalty. ID at 9-12. The
appellant does not contest these findings. PFR File, Tab 1 at 5.
3 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) her character; (3) any prior inconsistent
statement by the witness; (4) her bias, or lack of bias; (5) the contradiction of her
version of events by other evidence or its consistency with other evidence; (6) the
inherent improbability of her version of events; and (7) her demeanor. Hillen,
35 M.S.P.R. at 458.
4 The hearing was held via video teleconference on October 23, 2018. ID at 1; IAF,
Tabs 28-29. A supplemental hearing was conducted via telephone on November 2,
2018, and the only testimony provided was supplemental testimony from the deciding
official. ID at 1; IAF, Tab 31. The administrative judge only relied on this
supplemental testimony in his penalty analysis, which the parties do not challenge on
review. ID at 10-11. Thus, for purposes of determining whether the agency proved its
charges, the administrative judge’s demeanor-based findings are entitled to deference.4
Regarding the first specification, the agency alleged that, on
March 12, 2018, the appellant wore headphones on the workroom floor in
violation of agency policy. IAF, Tab 5 at 28. As to the second specification, the
agency alleged that, after Manager 1 instructed the appellant to remove her
headphones, she verbally attacked him by stating, “[y]ou look like a b----, you
smell like a b---- and you act like a b----,” or words to that effect. Id. at 28-29.
In sustaining these two specifications of the unacceptable conduct charge, the
administrative judge made explicit demeanor -based credibility determinations and
credited Manager 1’s testimony over the appellant’s testimony. ID at 3-6.
On review, the appellant alleges that the administrative judge erred in
finding that she wore headphones on the workroom floor and that, contrary to the
administrative judge’s findings, her demeanor -based testimony at the hearing
“showed she was telling the truth.” PFR File, Tab 1 at 5. She further alleges that
the second specification is inherently unbelievable “because it is made up and
people do not talk like that.” Id. We have considered the appellant’s arguments,
but we find that they do not constitute a sufficiently sound reason to overturn the
administrative judge’s demeanor-based credibility determinations. See Haebe,
288 F.3d at 1301.
The appellant also alleges that the administrative judge failed to consider
that Manager 1 had previously harassed her, was biased, and had fabricated the
charge. PFR File, Tab 1 at 5. However, contrary to the appellant’s assertions on
review, the administrative judge did make findings on these issues. ID at 6 n.3.
Specifically, he found that Manager 1 did not call the appellant a racial epithet
and that the appellant fabricated this allegation to deflect from her own
wrongdoing. Id. In making this finding, the administrative judge made
credibility determinations based on the appellant’s testimony, compared her
testimony to her own prior inconsistent statements, and considered that her
See Thompson v. Department of the Army , 122 M.S.P.R. 372, ¶ 21 n.9 (2015) (finding
that the Board must defer to an administrative judge’s demeanor-based credibility
findings related to testimony given during a videoconference hearing). 5
testimony was contradicted by the record evidence and other witnesses. ID
at 13-14, n.7; see Purifoy v. Department of Veterans Affairs , 838 F.3d 1367,
1372-73 (Fed. Cir. 2016) (explaining that the Board generally must defer to an
administrative judge’s credibility findings made after holding a hearing, even if
demeanor was not explicitly discussed). Thus, the administrative judge
considered the appellant’s argument regarding Manager 1’s alleged bias below
and we find that the appellant has not provided a sufficiently sound reason to
disturb the administrative judge’s credibility determinations on review. See
Haebe, 288 F.3d at 1301.
For the third and fourth specifications, the agency alleged that, on
March 20, 2018, the appellant screamed and swore at Manager 2 and referred to
the Plant Manager as a “fat ass.” IAF, Tab 5 at 28. In sustaining these two
specifications, the administrative judge credited the testimony of the agency’s
witness, an Administrative Clerk, who testified that she observed the conduct as
charged. ID at 6-7. The administrative judge found the Administrative Clerk’s
testimony “forthright and unambiguous.” ID at 7. However, he did not credit the
appellant’s testimony due to the inconsistency between her oral reply, during
which she flatly denied the alleged conduct, and her testimony at the hearing,
during which she stated she did not remember. Id.
On review, the appellant appears to dispute the administrative judge’s
findings as to specification 4. In particular, she asserts that she testified that she
did not make the alleged statements and argues that the agency’s documentation
in support of this claim is insufficient. PFR File, Tab 1 at 5. However, her
argument is not supported by her hearing testimony, in which she testified that,
on March 20, 2018, she was upset and did not remember making the statements as
charged by the agency. IAF, Tab 28, Hearing Compact Disc (testimony of the
appellant). Further, in addition to the testimony of the Administrative Clerk, the
record also includes her statement, completed just 7 days after the incident,
corroborating that the appellant made the alleged comment. IAF, Tab 5 at 37.6
Notes from an agency interview with the Administrative Clerk contain the same
information. Id. at 38. Thus, the appellant’s arguments on review amount to
mere disagreement with the administrative judge’s well -reasoned findings, and
they do not provide a basis for reversal. 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 where she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions on the issues of credibility);
Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359
(1987) (same).
We modify the administrative judge’s analysis of the appellant’s Title VII claims.
The appellant asserted as affirmative defenses that her removal was the
result of gender, sexual orientation, and race discrimination, and retaliation for
filing EEO complaints. IAF, Tab 1 at 3, Tab 17 at 4-5. To prove an affirmative
defense of discrimination or retaliation under 42 U.S.C. § 2000e-16, the appellant
must prove by preponderant evidence that the prohibited consideration was at
least a motivating factor in the contested personnel action. See Pridgen v. Office
of Management and Budget , 2022 MSPB 31, ¶¶ 20-22, 30.
The administrative judge found that the appellant did not meet her burden
of proving her gender, sexual orientation, and race discrimination affirmative
defenses. ID at 13-14. He also found that, while it was uncontested she had filed
two prior EEO complaints, she did not meet her burden of proving that her
removal was in reprisal for filing those complaints. ID at 13. In considering
these claims, the administrative judge properly cited the Board’s decision in
Savage v. Department of the Army , 122 M.S.P.R 612 (2015), overruled in part by
Pridgen, 2022 MSPB 31, ¶¶ 23-25. ID at 13; IAF, Tab 22 at 3-5. However, in
analyzing the appellant’s claims, the administrative judge did not identify the
applicable standard of causation. Nevertheless, despite not identifying the
standard of causation, the administrative judge made pertinent findings of fact
and concluded that the appellant provided insufficient evidence to raise an7
inference of discrimination or retaliation. ID at 13-14. The administrative
judge’s conclusion, supported by the record and unchallenged on review, is
tantamount to a finding that the appellant did not prove that discrimination or
retaliation was a motivating factor in her removal. We modify the initial decision
accordingly.
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
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
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
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 file9
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 10
(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
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.
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
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.12 | Durant_ValondaAT-0752-18-0622-I-1 Final Order.pdf | 2024-06-13 | VALONDA DURANT v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0752-18-0622-I-1, June 13, 2024 | AT-0752-18-0622-I-1 | NP |
1,224 | https://www.mspb.gov/decisions/nonprecedential/McAllister_Latease_M_PH-0752-19-0204-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LATEASE MONIQUE MCALLISTER,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
PH-0752-19-0204-I-1
DATE: June 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Latease Monique McAllister , Baltimore, Maryland, pro se.
Daniel Hutman , Esquire, 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
dismissed her appeal of her trial-period termination for lack of jurisdiction. On
petition for review, the appellant acknowledges that she was removed during her
trial period but argues she was “wrongfully terminated” and subjected to age
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).
discrimination and fraud. Petition for Review (PFR) File, Tab 2 at 3.
She addresses the merits of her termination, refers to a related grievance and
equal employment opportunity complaint, and refers to, but does not provide,
correspondence concerning her grievance. PFR File, Tab 1 at 4, Tab 2 at 3.
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. 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 | McAllister_Latease_M_PH-0752-19-0204-I-1__Final_Order.pdf | 2024-06-13 | LATEASE MONIQUE MCALLISTER v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. PH-0752-19-0204-I-1, June 13, 2024 | PH-0752-19-0204-I-1 | NP |
1,225 | https://www.mspb.gov/decisions/nonprecedential/McFarlane_Jonathan_M_NY-0841-19-0076-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JONATHAN M. MCFARLANE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
NY-0841-19-0076-I-1
DATE: June 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jonathan M. McFarlane , Queens Village, New York, 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
dismissed for lack of jurisdiction his appeal of a decision of the Office of
Personnel Management (OPM) denying his request for a refund of deductions
from his disability retirement annuity under the Federal Employees’ Retirement
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).
System (FERS) that purportedly were made for the Federal Employees Health
Benefits (FEHB) program. 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).
On petition for review, the appellant argues that the administrative judge
misconstrued his claim as concerning OPM’s administration of the
FEHB program. Petition for Review (PFR) File, Tab 1 at 5-6. Specifically, he
asserts that OPM began making withholdings from his FERS disability retirement
annuity from March 4, 2011, but he was not covered by an FEHB carrier until
August 1, 2014. Id. at 5. He further contends that, although OPM labeled its
withholdings as FEHB premiums, there is no evidence that OPM provided
premiums to any participating FEHB carrier during the relevant period. Id. at 6.
Thus, because he claims that there is no indication that the disputed withholdings
implicated the FEHB program, he argues that the appealed matter concerns
OPM’s administration of his FERS disability retirement annuity. Id. at 5-6.
We are not persuaded by the appellant’s arguments. As properly noted in
the initial decision, the U.S. Court of Appeals for the Federal Circuit has rejected
the argument that any reduction in a retiree’s annuity payments affects the rights2
or interests of the annuitant under the retirement statute and therefore is
reviewable by the Board. Initial Appeal File (IAF), Tab 20, Initial Decision (ID)
at 11; see Miller v. Office of Personnel Management , 449 F.3d 1374, 1379-80
(Fed. Cir. 2006). The court found that this theory would give the Board very
broad authority over a wide variety of substantive claims simply because of the
mechanism used to collect the obligations stemming from the claims, contrary to
Congressional intent. ID at 11; see Miller, 449 F.3d at 1379-80. Here, the
appealed matter concerns the appellant’s request to OPM for a refund of
deductions from his FERS disability retirement annuity. ID at 1, 3-5. However,
his request for a refund is based on the premise that the deductions were improper
because he did not receive any FEHB coverage during the relevant period. IAF,
Tab 16 at 4-5; McFarlane v. Office of Personnel Management , MSPB Docket
No. NY-0841-18-0009-I-1, Appeal File, Tab 20 at 6-8. Thus, we find that the
underlying matter concerns OPM’s administration of the FEHB program. We
further find that the administrative judge properly characterized the appellant’s
claim as concerning the FEHB program. ID at 12.
As properly explained in the initial decision, claims concerning the
FEHB program generally are beyond the Board’s jurisdiction. ID at 5;
see Chamblin v. Office of Personnel Management , 112 M.S.P.R. 266, ¶ 7 (2009).
However, the Board has recognized that there are limited exceptions to the
general rule that it lacks jurisdiction over such claims, such as when the claim
arises in the context of a petition for enforcement of a final Board decision or
when the case concerns a request to waive recovery of an annuity overpayment
caused by the retroactive application of premiums for the FEHB program.
ID at 5-6; see Chamblin, 112 M.S.P.R. 266, ¶¶ 11-14.
Here, the administrative judge found that the circumstances of this appeal
do not fall under an exception to the general rule that the Board lacks jurisdiction3
over claims concerning the FEHB program.2 ID at 8-12. The administrative
judge considered the appellant’s reliance on Lua v. Office of Personnel
Management, 102 M.S.P.R. 108 (2006), to support his argument that the Board
has jurisdiction over the instant appeal. ID at 8-10. However, the administrative
judge found that Lua is distinguishable because it concerned a petition for
enforcement while the present case does not. ID at 10. The appellant challenges
this finding on review. PFR File, Tab 1 at 5-6.
We agree with the administrative judge’s finding that Lua is
distinguishable because it arose in the context of a compliance proceeding. ID at
10. The Board held in Lua that it had jurisdiction to review OPM’s deductions of
premiums for the Federal Employees’ Group Life Insurance program as an issue
of compliance from the Board’s final decision granting the appellant’s disability
retirement annuity. Lua, 102 M.S.P.R. 108, ¶ 8. Thus, the Board’s jurisdiction in
Lua was based on its enforcement authority. See Hunt v. Office of Personnel
Management, 114 M.S.P.R. 590, ¶ 6 (2010) (explaining that the Board derives its
enforcement authority from 5 U.S.C. § 1204(a)(2), which authorizes the Board to
order any Federal agency or employee to comply with the Board’s decisions and
orders issued under its jurisdiction). Here, however, the appellant has not filed a
petition for enforcement.
Moreover, the administrative judge properly noted in the initial decision
that the appellant is not precluded from seeking relief in a Federal district court
or the U.S. Court of Federal Claims. ID at 13 n.4; see Threadgill v. Merit
Systems Protection Board , 230 F.3d 1372, **1-2 (Fed. Cir. 1999) (Table)
(affirming the Board’s decision, which noted that the appellant could appeal
OPM’s final decisions on her FEHB claims to the appropriate district court or the
U.S. Court of Federal Claims, pursuant to 5 U.S.C. § 8912). The appellant argues
2 The appellant does not dispute, and we discern no reason to disturb, the administrative
judge’s finding that this appeal does not fall under the type of exception arising in cases
concerning requests to waive the repayment of annuity overpayments. PFR File, Tab 1
at 6; ID at 8, 11-12. 4
on review that he cannot bring his case to these courts because he has not made a
claim concerning the FEHB program. PFR File, Tab 1 at 5. We find this
argument unavailing because it does not address the dispositive jurisdictional
issue in this appeal. In addition, we cannot issue an advisory opinion on whether
the appellant can successfully bring his case to another court.
5 U.S.C. § 1204(h).
Accordingly, we affirm the initial decision dismissing this appeal for lack
of jurisdiction. See, e.g., Brown v. Office of Personnel Management ,
684 F. App’x 960, 961 (Fed. Cir. 2017) (finding that the Board lacked jurisdiction
over the appellant’s claims that he was not receiving his elected health or life
insurance benefits);3 Hudson v. Office of Personnel Management , 114 M.S.P.R.
669, ¶¶ 3, 10-12 (2010) (dismissing for lack of jurisdiction the appellant’s appeal
of an OPM reconsideration decision denying his request for a retroactive
adjustment of his health insurance premiums).
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 Board may follow a nonprecedential decision of the U.S. Court of Appeals for the
Federal Circuit when, as here, the Board finds the court’s reasoning persuasive.
Morris v. Department of the Navy , 123 M.S.P.R. 662, ¶ 13 n.9 (2016).
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 | McFarlane_Jonathan_M_NY-0841-19-0076-I-1__Final_Order.pdf | 2024-06-13 | JONATHAN M. MCFARLANE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. NY-0841-19-0076-I-1, June 13, 2024 | NY-0841-19-0076-I-1 | NP |
1,226 | https://www.mspb.gov/decisions/nonprecedential/Weygand_James_A_DE-0845-19-0409-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES A. WEYGAND,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DE-0845-19-0409-I-1
DATE: June 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
James A. Weygand , Tucson, Arizona, 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 for failure to prosecute his appeal of the Office of Personnel
Management’s (OPM) decision finding that he received an overpayment in
retirement benefits and was not entitled to a waiver of the debt. 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 argues that OPM should lower his monthly payment amount
and offset a portion of the overpayment debt due to the fact that his former spouse
receives a portion of his monthly 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).
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 | Weygand_James_A_DE-0845-19-0409-I-1__Final_Order.pdf | 2024-06-13 | JAMES A. WEYGAND v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DE-0845-19-0409-I-1, June 13, 2024 | DE-0845-19-0409-I-1 | NP |
1,227 | https://www.mspb.gov/decisions/nonprecedential/Ready_Judi_R_DE-0843-19-0010-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JUDI R. READY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DE-0843-19-0010-I-1
DATE: June 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Judi R. Ready , Salida, Colorado, pro se.
Jane Bancroft and 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 reconsideration decision by the Office of Personnel Management
(OPM), denying her application for a former spouse survivor annuity. Generally,
we grant petitions such as this one only in the following circumstances: 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).
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’s former husband, Mr. Hommertzheim, retired while the
couple was still married, and elected for her to receive a Federal Employees’
Retirement System (FERS) survivor annuity upon his death. Initial Appeal File
(IAF), Tab 9 at 31, 35. The couple subsequently entered into an October 2013
separation agreement that was silent about the award of a survivor annuity to the
appellant. Id. at 21-25. The Chaffee County District Court in Colorado issued a
November 13, 2013 Decree of Dissolution of Marriage that incorporated the
couple’s October 2013 separation agreement. Id. at 27-29. On January 6, 2014,
that court issued a Court Order Acceptable for Processing, which addressed the
appellant’s entitlements to her ex-husband’s FERS benefits. Id. at 16-20.
Specifically, the order assigned to the appellant 50% of Mr. Hommertzheim’s
gross monthly annuity. Id. at 17.
The order more generally stated that the appellant is entitled to a portion of
Mr. Hommertzheim’s FERS benefits, which could include “a portion of the [his]2
Annuity, a Refund of Employee Contributions[,] or . . . a Survivor Annuity to the
Former Spouse.” Id. at 16. Although the order recognized the possibility of a
survivor annuity, it did not award one. Id. at 16-20.
The appellant filed the court order with OPM, and, as set forth in the order,
OPM approved her receipt of 50% of her former spouse’s gross annuity benefit.
IAF, Tab 9 at 14-15, Tab 12 at 5. OPM advised her that the order made no
reference to a survivor annuity award. IAF, Tab 9 at 14.
The parties do not dispute that Mr. Hommertzheim received annual notices
from OPM in, as pertinent here, December 2012, December 2013, and December
2014. IAF, Tab 14 at 4, Tab 18, Initial Decision (ID) at 5. Those notices
explained to him that, if he had previously elected a survivor annuity for his
then-spouse, it “terminate[d] upon . . . divorce,” and “a new survivor election
[was] required within 2 years after the divorce if [he] wish[ed] to provide a
former spouse [survivor] annuity.” IAF, Tab 14 at 7. He made no new election.
IAF, Tab 9 at 5, 8.
Mr. Hommertzheim died in November 2017. IAF, Tab 1 at 4, Tab 9 at 5.
The appellant filed an application with OPM for former spouse survivor annuity
benefits, and OPM denied the request in an initial and then a reconsideration
decision. IAF, Tab 9 at 5-9, 13.
The appellant filed this appeal, disputing OPM’s determination that she
was not entitled to an annuity. IAF, Tab 1. The administrative judge held a
telephonic hearing. IAF, Tab 17. She affirmed OPM’s reconsideration decision,
reasoning that the appellant’s right to a survivor annuity terminated with her
divorce from Mr. Hommertzheim, and none of the court decrees in the record
expressly provided, or could fairly be read as awarding, a survivor annuity. ID
at 4-5. Although the administrative judge found it undisputed that OPM
continued to reduce Mr. Hommertzheim’s monthly annuity payments after the
divorce, she also found that he received OPM’s annual notices advising him of
the need to make a former spouse survivor annuity election within 2 years of the3
divorce. ID at 5. Thus, because Mr. Hommertzheim made no such election, the
administrative judge found that OPM properly denied the appellant’s survivor
annuity application. ID at 6.
The appellant has filed a petition for review in which she alleges that her
former spouse elected a survivor annuity for her and OPM lost the documentation.
Petition for Review (PFR) File, Tab 1 at 6. She also asserts that OPM reduced
her former spouse’s annuity payments to fund her annuity but has not “offered or
awarded [her] back pay for those amounts.” Id. OPM has filed a response to the
appellant’s petition for review. PFR File, Tab 6.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s right to a survivor annuity as a former spouse is governed
by the portion of FERS codified at 5 U.S.C. § 8445. That section provides that a
former spouse of a deceased employee is entitled to a survivor annuity “if and to
the extent expressly provided for” in either (1) an election under 5 U.S.C.
§ 8417(b) or (2) “the terms of any decree of divorce or annulment or any court
order or court-approved property settlement agreement incident to such decree.”
5 U.S.C. § 8445(a). Although the “expressly provided for” provision of § 8445(a)
does not require the use of “magic words,” the intent to provide a survivor
annuity must be clear, definite, explicit, plain, direct, and unmistakable, not
dubious or ambiguous. See Holzman v. Office of Personnel Management ,
62 M.S.P.R. 254, 257 (1994) (interpreting identical language found in 5 U.S.C.
§ 8341(h)(1)), aff’d per curiam , 48 F.3d 1237 (Fed. Cir. 1995) (Table)). The
court order “must specify that it is awarding a former spouse survivor annuity” by
using terms such as “survivor annuity” or “death benefits,” and by stating that the
former spouse is to receive survivor annuity benefits or that the retiree is to
maintain those benefits. 5 C.F.R. §§ 838.804(b), 838.912(a) -(b).
The administrative judge found, and the parties do not dispute on review,
that the divorce agreement did not provide for a survivor annuity. ID at 4. We4
agree that the court order that the appellant presented did not expressly state that
the appellant was entitled to, or direct Mr. Hommertzheim to provide, a former
spouse annuity as required by the statute. IAF, Tab 9 at 16-20. Thus, we discern
no basis to disturb this finding.
The administrative judge also found that Mr. Hommertzheim did not make
a post-divorce election of a survivor annuity for the appellant. ID at 5. In her
petition for review, the appellant again contends that Mr. Hommertzheim did so.
PFR File, Tab 1 at 6; IAF, Tab 12 at 1-2. She has provided no additional support
for her assertion.2 PFR File, Tab 1 at 6; IAF, Tab 12 at 1-2. Below, she stated
during her testimony that her spouse told her he would elect the survivor annuity,
and “he told [her] he took care of it.” IAF, Tab 17, Hearing Recording (testimony
of the appellant). However, she testified that she had no knowledge as to whether
he carried through with these assurances. Id. Under these circumstances, we
agree with the administrative judge that the appellant did not meet her burden to
prove that Mr. Hommertzheim made the necessary election. See Cheeseman v.
Office of Personnel Management , 791 F.2d 138, 140 -41 (Fed. Cir. 1986)
(explaining that the burden of proving entitlement to a survivor annuity is on the
applicant for benefits).
It is undisputed that Mr. Hommertzheim received annual notices sent to all
annuitants by OPM informing him of his right to make an election for a former
spouse survivor annuity. IAF, Tab 14; ID at 5. OPM must notify each Civil
Service Retirement System (CSRS) annuitant annually of his former spouse
survivor annuity election rights. 5 U.S.C. § 8339 note; see Cartsounis v. Office of
Personnel Management , 91 M.S.P.R. 502, ¶ 5 (2002) (explaining OPM’s
2 The appellant argues on review that OPM lost the document reflecting
Mr. Hommertzheim’s election. PFR File, Tab 1 at 6. She did not raise this claim
below. IAF, Tab 12 at 1-2, Tab 17, Hearing Recording (testimony of the appellant).
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. Clay v. Department of the Army ,
123 M.S.P.R. 245, ¶ 6 (2016). The appellant has made no such showing. Therefore, we
have not considered her new argument here. 5
obligation to notify CSRS annuitants annually of their survivor annuity election
rights under 5 U.S.C. § 8339(j) and (k)(2)). There is no corresponding
requirement under FERS, but OPM nevertheless sends the notice to all annuitants.
IAF, Tab 14 at 4; compare 5 U.S.C. § 8339 note (requiring annual notification of
a retiree’s right to elect a former spouse annuity under CSRS), and 5 C.F.R.
§ 831.681 (same), with 5 U.S.C. § 8417(b) (permitting a retiree to elect to provide
a former spouse survivor annuity under FERS without mention of an OPM notice
requirement), and 5 C.F.R. § 842.611 (same). Regardless of whether it was
required to do so, the administrative judge found that OPM provided adequate
notice to Mr. Hommertzheim of his right to elect to provide a former spouse
survivor annuity and he did not do so. ID at 4-5. We decline to disturb these
findings. IAF, Tab 4 at 7; see Holder v. Office of Personnel Management ,
47 F.3d 412, 415 (Fed. Cir. 1995) (finding sufficient OPM’s notice to an
annuitant that if he was divorced, he had a specified time period to elect a former
spouse survivor annuity under CSRS).
Both below and on review, the appellant observed that OPM
“never . . . offered or awarded [her] back pay” representing the amount by which
it reduced her ex -husband’s annuity to provide the appellant with a survivor
annuity. PFR File, Tab 1 at 6; IAF, Tab 1 at 4. The administrative judge failed
to address this claim. Nonetheless, we find that her error was harmless.
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). According to OPM notices
that the appellant provided below, Mr. Hommertzheim’s annuity payments were
erroneously reduced to fund a survivor annuity for the appellant. IAF, Tab 1
at 5-6. The appellant may be seeking a lump -sum death benefit under 5 U.S.C.
§ 8424(c)-(d). However, we lack jurisdiction to consider such a claim, because
the appellant has not alleged that she either requested or received a final decision6
from OPM regarding a lump -sum benefit.3 IAF, Tab 9 at 5-9, 15, Tab 11; see
Ott v. Office of Personnel Management , 120 M.S.P.R. 453, ¶ 4 (2013) (explaining
the Board generally has jurisdiction over retirement issues only once OPM has
issued a reconsideration 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
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.
3 Should the appellant wish to file a new appeal raising this claim, she may do so. We
express no opinion regarding the Board’s jurisdiction over, or the timeliness of, such an
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.7
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,8
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 9
(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 you wish to challenge the Board’s rulings on your whistleblower claims
only, excluding all other issues , 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. 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 | Ready_Judi_R_DE-0843-19-0010-I-1__Final_Order.pdf | 2024-06-13 | JUDI R. READY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DE-0843-19-0010-I-1, June 13, 2024 | DE-0843-19-0010-I-1 | NP |
1,228 | https://www.mspb.gov/decisions/nonprecedential/Mottas_Anthony_J_DE-1221-19-0011-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY J. MOTTAS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-1221-19-0011-W-1
DATE: June 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Anthony J. Mottas , Crestview, Florida, pro se.
Zane Perry Schmeeckle , 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
¶1The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
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 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
¶2The appellant was previously employed as an Advanced Medical Support
Assistant (MSA) at the agency’s Junction City, Kansas outpatient clinic. Initial
Appeal File (IAF), Tab 15 at 314. On or about June 6, 2017, the appellant
contacted the agency’s Office of Compliance and Business Integrity (OCBI)
regarding “access to care” issues related to the implementation of a block
scheduling program, whereby a physician’s appointment slots are blocked off
from being filled for a period of time following the physician’s return from any
period of leave lasting longer than a week. See IAF, Tab 15 at 54-55, 107, 158,
162-63.
¶3On August 22, 2017, the agency’s Medical Center Director directed that an
Administrative Investigative Board (AIB) be convened to investigate allegations
that the appellant used agency time to conduct business as a Veterans Service
Organization (VSO) representative, represented the agency in an unfavorable
manner to veterans and the public, provided direction to individuals outside of his
scope of duties, failed to follow guidance on scheduling procedures, and behaved2
in a manner that intimidated agency staff. IAF, Tab 15 at 139-40. By a letter
dated May 24, 2018, the Medical Center Director—the AIB convening authority
—certified the completion of the AIB investigative report and findings, and
directed that a number of actions be taken against the appellant, including
discipline “up to removal, if appropriate, based on progressive discipline,” and
reassignment out of the Junction City facility. Id. at 5-7. By a letter dated
June 18, 2018, the Service Line Manager for the Business Office proposed the
appellant’s suspension for 14 days for one charge with two specifications of
inappropriate conduct based on the information obtained from the AIB
investigation and the convening authority’s recommendation. IAF, Tab 1 at 8-10.
¶4On July 13, 2018, the appellant filed a complaint with the Office of Special
Counsel (OSC), asserting that the agency initiated the AIB investigation of him,
detailed him to the Topeka, Kansas office, and proposed his suspension for
14 days in retaliation for his protected disclosures to the OCBI. Id. at 13-19. On
July 17, 2018, after the appellant responded to the proposal, the deciding official
imposed the suspension. Id. at 7, 11-12. One month later, the agency
permanently reassigned the appellant to the Topeka, Kansas Medical Center,
effective August 19, 2018. See IAF, Tab 12 at 31, 36. By a letter dated
August 27, 2018, OSC closed its inquiry into the appellant’s complaint and
provided him with Board appeal rights.2 Id. at 20-21.
2 In the appellant’s July 13, 2018 OSC complaint, he identified the agency’s “proposal”
to suspend him for 14 days as one of the challenged personnel actions. IAF, Tab 1
at 17. The appellant served the 14-day suspension from July 23, 2018 through
August 5, 2018. IAF, Tab 12 at 32. OSC’s close-out letter notes that it issued its
preliminary determination to close the appellant’s file on August 13, 2018, and the
appellant provided “additional information” on August 16, 2018, which OSC reviewed.
IAF, Tab 1 at 20. The appellant has not provided copies of this correspondence with
OSC. Therefore, on the provided record, it is not clear whether the appellant amended
his OSC complaint to include the 14-day suspension itself as a challenged personnel
action. However, the administrative judge concluded that the appellant had exhausted
this claim with OSC. See IAF, Tab 18 at 5, Tab 35, Initial Decision at 3-4. We
conclude that there is sufficient evidence in the record demonstrating that the appellant
exhausted with OSC his claim that the agency retaliated against him by suspending him
for 14 days. See Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 103
¶5On September 25, 2018, the appellant timely filed the instant Individual
Right of Action (IRA) appeal. Id. at 1-5. After considering the parties’
jurisdictional filings, the administrative judge issued an order finding that the
appellant exhausted his administrative remedies with OSC regarding his claim
that he made a protected disclosure under 5 U.S.C. § 2302(b)(8), or engaged in
protected activity under 5 U.S.C. § 2302(b)(9)(C), when he complained to the
OCBI regarding “access to care issues,” and that in retaliation for his disclosure
or activity, he was suspended for 14 days and permanently reassigned. IAF,
Tab 18 at 3-6. After holding the appellant’s requested hearing, IAF, Tabs 32, 34,
the administrative judge issued an initial decision, denying the appellant’s request
for corrective action, IAF, Tab 35, Initial Decision (ID) at 1, 21. In the initial
decision, the administrative judge reiterated his findings regarding exhaustion,
concluded that the appellant had established Board jurisdiction over his appeal,
and determined that the appellant met his burden of establishing that he engaged
in protected whistleblowing activity and that his protected activity was a
contributing factor in the agency’s decision to take both of the contested
personnel actions. ID at 4-7. Nevertheless, the administrative judge concluded
that the agency met its burden of proving by clear and convincing evidence that it
would have taken the challenged actions absent the appellant’s protected
whistleblowing activity, and consequently denied the appellant’s request for
corrective action. ID at 8-21.
¶6The appellant has timely filed a petition for review of the initial decision.
Petition for Review (PFR) File, Tab 1. The agency has filed a response in
opposition to the petition for review, and the appellant has filed a reply. PFR
File, Tabs 3, 5.
(explaining that to show exhaustion, an appellant need only show that he provided OSC
with a sufficient basis to pursue an investigation that might lead to corrective action).4
DISCUSSION OF ARGUMENTS ON REVIEW
¶7On review, the appellant argues that the administrative judge erred by
allowing an agency witness to testify at the hearing over his objection and by
crediting that witness’s testimony over his own. PFR File, Tab 1 at 3. The
appellant also challenges the administrative judge’s determination that the agency
met its burden of proving that it would have taken the challenged personnel
actions in the absence of the appellant’s protected activity, arguing that the
administrative judge erred in his analysis of the second and third factors
identified by the U.S. Court of Appeals for the Federal Circuit in Carr v. Social
Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999), by incorrectly
concluding that the Director and Associate Director had only a slight motive to
retaliate against the appellant and by improperly concluding that the three
Registered Nurse comparator employees were similarly situated to the appellant,
an MSA. PFR File, Tab 1 at 4-5, Tab 5 at 4. Additionally, the appellant argues
that the agency erroneously failed to consider the factors identified in the Board’s
decision in Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981)
when determining the penalty to impose against him. PFR File, Tab 1 at 4-5,
Tab 5 at 3-4. Finally, the appellant argues that the administrative judge erred by
granting the agency’s request for an extension of time to submit a pleading,
denying the appellant’s requests to delay the prehearing conference and the
hearing, denying the appellant’s request that the administrative judge recuse
himself, and denying the appellant’s request that the administrative judge certify
for interlocutory appeal his ruling denying the appellant’s request for recusal.
PFR File, Tab 1 at 4, Tab 5 at 3-4; see IAF, Tabs 17, 18, 20-23, 25.
The administrative judge correctly concluded that the appellant engaged in
protected activity when he contacted the OCBI hotline and that his protected
activity was a contributing factor in the agency’s decision to take both of the
challenged personnel actions.
¶8In order to prevail on the merits of an IRA appeal, an appellant must prove
by preponderant evidence that he made a whistleblowing disclosure as described5
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). Salerno v. Department of the
Interior, 123 M.S.P.R. 230, ¶ 5 (2016); see 5 U.S.C. § 1221(e)(1). 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. Salerno, 123 M.S.P.R. 230, ¶ 5; see 5 U.S.C § 1221(e)(2).
¶9As previously noted, the administrative judge concluded that the appellant
met his burden of proving that he engaged in protected whistleblowing activity
under 5 U.S.C. § 2302(b)(9)(C) when he contacted the OCBI hotline to complain
about “access to care” issues related to the agency’s block scheduling policy. See
ID at 6. In making this determination, the administrative judge noted that on
December 12, 2017, the National Defense Authorization Act for Fiscal Year 2018
(NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law, which
amended various provisions of Title 5 of the U.S. Code, including
section 2302(b)(9)(C) to provide that, in addition to the Inspector General of an
agency or the Special Counsel, a disclosure to “any other component responsible
for internal investigation or review” also constitutes protected activity, and the
administrative judge found that the appellant’s disclosure to the OCBI hotline fell
within the coverage of the post -NDAA amendment to section 2302(b)(9)(C). ID
at 5-6.
¶10In the recent Board decision Edwards v. Department of Labor , 2022 MSPB
8, ¶¶ 28-32, aff’d, No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023), the
Board determined that the NDAA amendment expanding the coverage of 5 U.S.C.
§ 2302(b)(9)(C) does not retroactively apply when all of the events relevant to the
appeal occurred prior to the enactment of the NDAA. Although the appellant
contacted the OCBI hotline on or around June 6, 2017, prior to the NDAA’s6
amendment to section 2302(b)(9)(C), the purported retaliatory personnel actions
—the appellant’s 14 -day suspension and permanent reassignment—occurred in
July and August 2018, respectively, after the enactment of the NDAA. See IAF,
Tab 1 at 7, Tab 12 at 31, Tab 15 at 54-55. Because the purportedly retaliatory
personnel actions occurred after the NDAA’s enactment, we conclude that the
administrative judge correctly applied the post -NDAA language in 5 U.S.C.
§ 2302(b)(9)(C) to this appeal. See McCray v. Department of the Army ,
2023 MSPB 10, ¶ 26 (applying the post-NDAA version of 5 U.S.C.
§ 2302(b)(9)(C) when all relevant events occurred after the NDAA went into
effect).
¶11We also agree with the administrative judge’s determination that the
appellant met his burden of proving that he engaged in protected activity under
5 U.S.C. § 2302(b)(9)(C), as amended by the NDAA, when he contacted the
OCBI hotline regarding “access to care” issues related to the block scheduling
policy. See ID at 6. As the administrative judge noted, the evidence provided by
the parties reflects that the appellant contacted relevant authorities at the OCBI,
and they acknowledged the appellant’s complaint and “actively conduct[ed] [an]
investigation” into the complaint, which resulted in the cancelation of the block
scheduling policy. IAF, Tab 15 at 54-55, Tab 26 at 7-9, Tab 34, Hearing
Compact Disc 2 (HCD 2) (testimony of the agency Chief of Staff); see ID at 18.
Further, under 5 U.S.C. § 2302(b)(9)(C), cooperating with or disclosing
information to the OIG or any other component responsible for internal
investigation or review is considered protected activity without regard for the
content of the disclosure, as long as such disclosure is made “in accordance with
applicable provisions of law.” 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”). On review, the agency has not challenged
the administrative judge’s finding that the appellant’s disclosure to the OCBI7
constituted protected activity under 5 U.S.C. § 2302(b)(9)(C), as amended by the
NDAA. Accordingly, we agree with the administrative judge’s conclusion that
the appellant met his burden of proving that he engaged in a protected activity
when he contacted the OCBI, a “component responsible for internal investigation
or review.” See ID at 5-6.
¶12Additionally, we agree with the administrative judge’s conclusion that the
appellant met his burden of demonstrating that his protected activity was a
contributing factor in the agency’s decision to take both of the contested
personnel actions. See ID at 6-7. To prevail in an IRA appeal before the Board,
an appellant also must prove by preponderant evidence that his disclosure was a
contributing factor in a personnel action. Scoggins v. Department of the Army ,
123 M.S.P.R. 592, ¶ 21 (2016). One way of proving the contributing factor
element is the “knowledge/timing test,” under which an appellant can prove that
his 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.
¶13As the administrative judge noted, the record reflects that the AIB
convening authority knew about the appellant’s protected activity on or about
June 6, 2017, before deciding to convene the AIB less than 3 months later, and
that same official played a role in both of the challenged personnel actions by
directing other agency officials to initiate disciplinary action based on the AIB’s
findings, resulting in the appellant’s suspension and permanent reassignment in
July and August 2018. IAF, Tab 15 at 53; HCD 2 (testimony of the Medical
Center Director/AIB convening authority); see ID at 6-7. Consequently, the
administrative judge concluded that the appellant met his burden of proving
contributing factor based on the knowledge/timing test. ID at 7; see Scoggins,
123 M.S.P.R. 592, ¶ 25 (finding that that a personnel action taken within 2 years8
of the appellant’s disclosures satisfies the knowledge/timing test). The agency
has not challenged this finding on review, and we see no reason to disturb it.
We agree with the administrative judge’s conclusion that the agency met its
burden of proving by clear and convincing evidence that it would have taken the
challenged personnel actions in the absence of the appellant’s protected activity.
Carr Factor 1
¶14Once the appellant meets his burden to establish a prima facie case of
reprisal for whistleblowing, the burden shifts to the agency to prove by clear and
convincing evidence that it would have taken the same personnel actions in the
absence of the appellant’s whistleblowing. Scoggins, 123 M.S.P.R. 592, ¶ 26. In
determining that the agency met its burden of proving that it would have taken the
challenged actions in the absence of the appellant’s whistleblowing, the
administrative judge extensively considered the factors identified by the Federal
Circuit in Carr, 185 F.3d at 1323, including: (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. ID at 8-21.
¶15The administrative judge concluded that the first Carr factor weighed
strongly in the agency’s favor, based on the fact that the agency’s asserted
reasons for taking the personnel actions were sound, the agency had compelling
evidence that the appellant engaged in the acts of wrongdoing alleged, and the
agency witnesses involved in taking the personnel actions against the appellant
testified credibly and convincingly that the appellant engaged in the alleged
misconduct and it negatively impacted the agency work environment, while the
appellant’s testimony to the contrary was incredible and evasive. ID at 8-18.
¶16On review, the appellant does not directly challenge the administrative
judge’s findings with respect to the first Carr factor. However, he does allege
that the agency erred by taking the challenged personnel actions against him9
without considering the factors identified by the Board in Douglas, 5 M.S.P.R.
at 305-06, which articulated a nonexhaustive list of factors relevant to the penalty
determination in adverse action appeals. PFR File, Tab 1 at 4-5; Tab 5 at 3. This
is akin to an argument challenging the merits of the agency’s decision to take the
contested personnel actions, which the Board does not have jurisdiction to
consider in the context of an IRA appeal. See 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 an underlying personnel action and is
limited to adjudicating the whistleblower allegations); Geyer v. Department of
Justice, 70 M.S.P.R. 682, 687 (1996) (same), aff’d, 116 F.3d 1497 (Fed. Cir.
1997) (Table).
¶17Nevertheless, even if we were to consider the appellant’s argument that the
agency erred by failing to conduct a proper Douglas factor analysis in taking the
challenged actions, it would not affect our decision here. The appellant’s more
than 9 years of Federal service could be considered as a mitigating factor.
Douglas, 5 M.S.P.R. at 305. Conversely, the deciding official made clear that the
nature and seriousness of the offenses, which included inappropriate behavior of
an intimidating and hostile nature and conducing VSO business on agency time,
were significant and “quite troubling.” IAF, Tab 1 at 11-12; see Douglas,
5 M.S.P.R. at 305 (identifying as considerations “the nature and seriousness of
the offense and its relation to an employee’s duties,” and “the effect of the
offense upon the employee’s ability to perform at a satisfactory level and upon
supervisors’ confidence in the employee’s ability to perform assigned duties”);
IAF, Tab 1 at 8-12.
¶18Additionally, although the record does not address whether the appellant has
a record of prior discipline or whether the penalty was consistent with the
agency’s table of penalties, the deciding official specifically noted that she
considered the reasonableness of the 14-day suspension penalty and determined it
to be “within the range of reasonableness,” and as discussed in greater detail in10
the third Carr factor discussion, the agency Medical Center Director who
recommended the penalty testified at the hearing that he had both suspended and
reassigned other similarly situated agency employees for “inappropriate conduct”
that “contributed to a hostile work environment” in a manner similar to that of the
appellant. IAF, Tab 1 at 11; HCD (testimony of the Medical Center Director);
see Douglas, 5 M.S.P.R. at 305 (identifying as a consideration the consistency of
the penalty with those imposed upon other employees for the same or similar
offenses); IAF, Tab 27 at 13-18. Based on our independent review of the
Douglas factors, we conclude that the agency’s actions were reasonable and
supported by the record. Accordingly, we find no reason to disturb the
administrative judge’s findings concerning the first Carr factor.
Carr Factor 2
¶19Regarding the second Carr factor, the existence and strength of any motive
to retaliate on the part of the agency officials who were involved in the decision,
the appellant argues on review that the administrative judge assigned insufficient
weight to the fact that the Medical Center Director and Associate Director had
prior knowledge of his whistleblowing activity. PFR File, Tab 1 at 4. The
administrative judge concluded that this factor weighed modestly in the
appellant’s favor. ID at 18-20. The administrative judge determined that the
individual with the greatest motive to retaliate against the appellant because of
his protected activity (the OCBI Chief of Staff) was implicated by the disclosure,
insofar as she was responsible for implementing the “block scheduling” policy
that was the subject of the disclosure. ID at 18-19. Nevertheless, the
administrative judge concluded that any motive she had to retaliate was slight
because she was minimally affected by the decision to abandon the block
scheduling program, was not disciplined for her attempt to implement it, and
viewed the issues with the program as nothing more than a “process” problem.
ID at 18; see HCD 2 (testimony of the agency Chief of Staff).11
¶20Continuing, the administrative judge concluded that the individual with the
second greatest motive to retaliate (the Medical Center Director/AIB convening
authority) was aware of the appellant’s complaint, convened the AIB, and
recommended the disciplinary actions that are the subject of this IRA appeal, but
the administrative judge nevertheless concluded that the Medical Center
Director’s motive to retaliate was also very weak because he was not the target of
the appellant’s complaint and he convincingly testified that the complaint did not
cause him any sort of problem.3 ID at 19-20; see HCD (testimony of the Medical
Center Director). Additionally, we note that the record does not suggest that the
content of the appellant’s disclosures, which concerned “access to care” issues
that arose from the agency’s use of block scheduling, reflected poorly on the AIB
convening official in his capacity as a manager, given that he was not directly
responsible for implementing the program and that the implementation of the
program was described as nothing more than a “process” problem by another
witness. HCD 2 (testimony of the agency Chief of Staff); cf. Whitmore v.
Department of Labor , 680 F.3d 1353, 1370-71 (Fed. Cir. 2012) (finding that the
administrative judge took “an unduly dismissive and restrictive view” in finding
no evidence of a retaliatory motive when the appellant’s disclosures “repeatedly
cast [the agency] and, by implication, all of the responsible [agency] officials, in
a highly critical light by calling into question the propriety and honesty of their
3 In his discussion of the second Carr factor, the administrative judge noted that the two
individuals who actually proposed and sustained the two challenged personnel actions—
one of whom was the Associate Director—had “no motive to retaliate against the
appellant.” ID at 20; see IAF, Tab 1 at 11-12, Tab 12 at 36, Tab 14 at 10-12. Although
the administrative judge did not elaborate on this point in the second Carr factor
discussion, he appears to have reached this conclusion based on the fact that neither
official was the subject of the appellant’s disclosure, neither had any involvement in the
AIB investigation, and each testified convincingly explaining why they proposed and
sustained the personnel actions. See ID at 9, 17-18. We discern no reason to doubt the
administrative judge’s findings in this regard. 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 on the issue of credibility); Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 105 -06 (1997) (same).12
official conduct”). Accordingly, we agree with the administrative judge’s
conclusion that the second Carr factor, which concerns the existence and strength
of any motive to retaliate on the part of the agency officials who were involved in
the decision, slightly favors the appellant. See ID at 20.
Carr Factor 3
¶21Finally, the administrative judge concluded that the third Carr factor,
concerning any evidence that the agency takes similar actions against employees
who are not whistleblowers but who are otherwise similarly situated, weighed
strongly in the agency’s favor because the AIB convening authority testified
credibly and without challenge that he had suspended and reassigned three
non-whistleblower nurses in the last 6 years for the same sort of “inappropriate
conduct” that “contributed to a hostile work environment” for which the appellant
was suspended and reassigned. ID at 20. On review, the appellant challenges
this finding, arguing that the three non -whistleblower comparator employees the
agency offered were not similarly situated to the appellant because they were
nurses, while the appellant is an MSA. PFR File, Tab 1 at 4-5; Tab 5 at 4.
¶22The administrative judge considered this argument below but rejected it,
concluding that the distinction was inconsequential and was outweighed by the
fact that the comparator employees were charged with the same sorts of
misconduct as the appellant, and the AIB convening official (the official who
directed that the personnel action be taken against the appellant) had
recommended the same sort of discipline for all of them. IAF, Tab 15 at 5-7,
Tab 27 at 13-18; see ID at 20. We agree and do not read the third Carr factor as
narrowly as the appellant would have us here. See Whitmore, 680 F.3d at 1373
(noting that “the requisite degree of similarity between employees cannot be
construed so narrowly that the only evidence helpful to the inquiry is completely
disregarded,” that the requirement that comparator employees be “similarly
situated” does not require “virtual identity,” and that “[d]ifferences in kinds and13
degrees of conduct between otherwise similarly situated persons . . . can and
should be accounted for”); see also Miller v. Department of Justice , 842 F.3d
1252, 1262 (Fed. Cir. 2016) (rejecting an “exceedingly narrow approach” to the
third Carr factor). Accordingly, we agree with the administrative judge’s
conclusion that, with respect to the third Carr factor, the appellant, an MSA, was
similarly situated to the three nurse non-whistleblower comparator employees
offered by the agency and that this factor strongly favors the agency.
¶23In summary, we agree with the administrative judge’s conclusion that any
potential retaliatory motive by agency officials under the second Carr factor is
outweighed by the strength of the agency’s evidence in support of its actions and
the compelling evidence that the agency takes similar action against similarly
situated non-whistleblowers. Therefore, we conclude that the agency established
by clear and convincing evidence that it would have taken the challenged
personnel actions in the absence of the appellant’s protected activity.
The appellant’s remaining arguments do not provide a basis for reversal.
¶24On review the appellant challenges the administrative judge’s decisions
granting the agency’s request for an extension of time to submit a pleading,
allowing an agency Human Resources (HR) Specialist to testify at the hearing
over the appellant’s objection, denying the appellant’s requests to delay the
prehearing conference and the hearing, denying the appellant’s request that the
administrative judge recuse himself, and denying the appellant’s request for
interlocutory certification of the denied recusal request. PFR File, Tab 1 at 3-4;
Tab 5 at 3-4. An administrative judge has broad discretion to control the
proceedings before him. Scoggins, 123 M.S.P.R. 592, ¶ 20; see 5 C.F.R.
§ 1201.41(b). The Board generally will not find reversible error in an
administrative judge’s case-related ruling unless it was not consistent with
required procedures or involved an abuse of discretion, and the resulting error
affected the outcome of the case. 5 C.F.R. § 1201.115(c).14
¶25Regarding the appellant’s objection to the administrative judge’s decision to
grant the agency’s request for an extension of time to file a pleading, we find no
abuse of discretion in the administrative judge’s determination. PFR File, Tab 1
at 4, Tab 5 at 3; see IAF, Tab 8 at 4-6, Tab 9 at 1. As previously noted, the
administrative judge has broad discretion to control the proceedings before him,
and it was within his sound discretion to grant the agency’s timely request for an
extension of time to submit the filing. Scoggins, 123 M.S.P.R. 592, ¶ 20; see
5 C.F.R. § 1201.41(b)(8).
¶26With respect to the appellant’s argument that the administrative judge erred
by denying his requests to delay the prehearing conference and the hearing, the
appellant initially requested the delay so that he could attend a 4-week treatment
program, IAF, Tab 21 at 4, but after the administrative judge issued an order
seeking clarification concerning whether or not the appellant had actually
enrolled in the program and received a start and end date for it, the appellant
conceded that he did not yet actually have an enrollment date for the program,
IAF, Tab 22 at 2; Tab 23 at 4-5. Consequently, the administrative judge denied
the request at that time, but instructed the appellant to inform him immediately if
a date for the program was set, and the administrative judge indicated that he
would review the request at that time. Tab 25 at 1-2. The appellant did not
subsequently provide any additional information. Accordingly, we find no error
in the administrative judge’s determination.
¶27Regarding the administrative judge’s decision granting the agency’s request
to allow an HR Specialist to testify at the hearing, as the agency correctly notes,
the administrative judge only allowed the HR Specialist and a
HR/Employee-Labor Relations (ELR) Specialist to testify at the hearing as
rebuttal witnesses after the appellant alleged for the first time during his hearing
testimony that he had not received the evidence supporting the agency’s proposed
14-day suspension for the first time until after he had already filed his IRA appeal
with the Board. ID at 10; HCD 2 (testimony of the HR Specialist, testimony of15
the HR/ELR Specialist); see PFR File, Tab 3 at 8. In light of this potential due
process concern, the administrative judge allowed the testimony over the
appellant’s objection, but specifically limited the testimony of both witnesses to
addressing their personal knowledge concerning the appellant’s receipt of the
agency’s evidence packet for the 14-day suspension. HCD 1 (administrative
judge’s ruling); HCD 2 (testimony of the HR Specialist, testimony of the HR/ELR
Specialist); see ID at 10-11. Additionally, although the appellant argues on
review that the HR/ELR Specialist’s testimony was unreliable or biased based on
the fact that she was present for the testimony of the other witnesses at the
hearing, the administrative judge properly acknowledged this fact on the record
and stated that he would consider it when determining the amount of weight to
give to that witness’s testimony. HCD 2 (testimony of the HR/ELR Specialist).
Accordingly, we find that the administrative judge did not abuse his discretion by
allowing the agency witnesses to testify over the appellant’s objection.
¶28The appellant also challenges the administrative judge’s decisions denying
his requests for recusal and to certify his ruling on the recusal request for
interlocutory review. PFR File, Tab 1 at 4, Tab 5 at 3-4; see IAF, Tabs 17, 18,
20. Regarding the recusal request, the appellant appears to suggest that the
administrative judge could not be impartial in the instant appeal because he made
rulings with which the appellant disagreed in a previous Board appeal. PFR File,
Tab 5 at 3 (referencing Mottas v. Department of Army , MSPB Docket No. DE-
1221-16-0415-W-1). We disagree. It is well established that conclusory claims
of bias which do not involve extrajudicial conduct do not overcome the
presumption of honesty and integrity that accompanies administrative
adjudicators. Simpkins v. Office of Personnel Management , 113 M.S.P.R. 411,
¶ 5 (2010). An administrative judge’s conduct during the course of a Board
proceeding will warrant a new adjudication only if their 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.16
Cir. 2002). The appellant’s conclusory assertions here, unsupported by any
objective evidence, do not meet this standard. See Boechler v. Department of the
Interior, 109 M.S.P.R. 542, ¶ 16 (2008) (finding that an appellant’s disagreement
with an administrative judge’s rulings in an earlier appeal are insufficient to
establish bias), aff’d, 328 F. App’x 660 (Fed. Cir. 2009); King v. Department of
the Army, 84 M.S.P.R. 235, ¶ 6 (1999) (stating that an administrative judge’s
case-related rulings, even if erroneous, are insufficient to establish bias).
¶29Finally, regarding the denied request for interlocutory certification, the
Board’s regulations provide that an administrative judge will certify a ruling for
interlocutory review if the ruling involves an important question of law or policy
about which there is substantial ground for difference of opinion; and an
immediate ruling will materially advance the completion of the proceeding, or the
denial of an immediate ruling will cause undue harm to the party or the public.
5 C.F.R. § 1201.92. The administrative judge’s rulings do not meet these criteria,
so the administrative judge properly did not certify the appellant’s request for
interlocutory review. See Lee v. Environmental Protection Agency , 115 M.S.P.R.
533, ¶¶ 22-23 (2010) (explaining that an administrative judge did not abuse her
discretion by denying the appellant’s request to certify for interlocutory appeal
the administrative judge’s denial of the appellant’s recusal motion). For the
foregoing reasons, we deny the petition for review and affirm the initial decision
denying the appellant’s request for corrective action.
NOTICE OF APPEAL RIGHTS4
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
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.17
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. 18
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, 137 S. Ct. 1975 (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 the19
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
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 of20
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. 21
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.22 | Mottas_Anthony_J_DE-1221-19-0011-W-1__Final_Order.pdf | 2024-06-13 | ANTHONY J. MOTTAS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-1221-19-0011-W-1, June 13, 2024 | DE-1221-19-0011-W-1 | NP |
1,229 | https://www.mspb.gov/decisions/nonprecedential/Mattison_LawrenceDC-0752-16-0350-B-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAWRENCE E. MATTISON,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-0752-16-0350-B-1
DATE: June 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence E. Mattison , Chesapeake, Virginia, pro se.
Brandon Cubas , Esquire, Baltimore, Maryland, and Timothy O’Boyle ,
Esquire, Hampton, 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 remand initial decision,
which affirmed 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 agency established the requisite nexus, we AFFIRM the initial
decision.
¶2On petition for review, the appellant argues that the administrative judge
erred in sustaining the agency’s charges. E.g., Mattison v. Department of
Veterans Affairs , MSPB Docket No. DC-0752-16-0350-B-1, Remand Petition for
Review (RPFR) File, Tab 1 at 7-17, 22.2 He also alleges that the agency
committed a harmful error by, inter alia, misunderstanding certain facts and by
facilitating his criminal prosecution by Virginia officials and Virginia courts. Id.
at 17-21. Next, the appellant argues that the administrative judge erred by
2 In addition to his remand petition for review and his reply to the agency’s response,
RPFR File, Tabs 1, 4, the appellant filed several more pleadings. First, he filed two
requests to amend his petition in a way that would not include material changes but
might make the petition easier to read. RPFR File, Tabs 5, 7. He then filed a motion,
seeking to present oral argument to the Board. RPFR File, Tab 9. Finally, the appellant
filed yet another motion to amend his petition. RPFR File, Tab 11. With this last
motion, the appellant indicated that he wanted to amend the petition to make it easier to
read and to emphasize certain facts or arguments. Id. These motions are denied. See
5 C.F.R. § 1201.114(a)(5) (limiting the pleadings parties may submit in connection to a
petition for review, and providing that additional pleadings will not be accepted absent
leave from the Clerk of the Board, based on a motion describing the nature and need for
the pleading). The record in this appeal is sufficiently developed and the appellant has
not adequately explained the need for these additional pleadings or oral argument. See
id. 2
denying motions he filed regarding discovery and laches. Id. at 11-12, 14, 16,
21-22. We are not persuaded by these arguments.
¶3The appellant’s petition also references the nexus requirement that applies
in a case such as this. Id. at 13. He points out, correctly, that the nexus
requirement is not explicitly addressed in the remand initial decision. We modify
the decision accordingly. In addition to the requirement that the agency prove its
charge, it also must prove that there is a nexus, i.e., a clear and direct relationship
between the articulated grounds for an adverse action and either the appellant’s
ability to accomplish his duties satisfactorily or some other legitimate
Government interest. Chin v. Department of Defense , 2022 MSPB 34, ¶ 22.
Here, that nexus is apparent. The appellant’s conduct unbecoming was directed at
a coworker and most of the allegations underlying both charges occurred on
agency premises.3 See Campbell v. Department of the Army , 123 M.S.P.R. 674,
¶ 24 (2016) (recognizing that there is a presumption of a nexus when the
misconduct occurred in part at work). Plus, his misconduct undoubtedly affected
his coworkers’ job performance or the agency’s trust and confidence in the
appellant’s job performance. See Chin, 2022 MSPB 34, ¶ 23 (discussing the loss
of the agency’s trust and confidence in the employee as a means by which an
agency can establish nexus between off-duty misconduct and the efficiency of the
service); Doe v. Department of Justice , 113 M.S.P.R. 128, ¶¶ 24-34 (2010)
(discussing the effect on coworkers’ job performance as a means by which an
agency can establish nexus between off-duty misconduct and the efficiency of the
service). While the appellant has referenced the nexus requirement in his
petition, he has not presented any substantive or persuasive basis for finding that
3 The agency’s first charge, conduct unbecoming, concerned the appellant’s repeated
following, calling, and texting a coworker, even after she asked him to cease all contact.
Mattison v. Department of Veterans Affairs , MSPB Docket No. DC-0752-16-0350-I-1,
Initial Appeal File (IAF), Tab 12 at 27. It further concerned the appellant’s accessing
this coworker’s cell phone without permission to send a photo from her phone to the
appellant’s email address. Id. The agency’s second charge, failure to follow
supervisory instructions, concerned the appellant returning to agency property just
hours after his supervisor’s instruction to stay away. IAF, Tab 12 at 27.3
the agency did not establish nexus in this appeal. We therefore modify the
remand initial decision to find that the agency established the requisite nexus.
¶4In his petition for review, the appellant lastly argues that the administrative
judge exhibited bias and should have recused herself from the remand
proceedings. RPFR File, Tab 1 at 7, 11-12, 18-23. He references a civil action
he filed in Federal court, while the instant appeal was pending, regarding the
propriety of his criminal prosecution, where he named the administrative judge as
a defendant along with seven other individuals, including the Virginia court
judges that handled his criminal case. Id. at 19-21; see Mattison v. Willis, et al .,
No. 4:17CV134, (E.D. Va. Dec. 6, 2018) (granting each defendant’s motion to
dismiss), aff’d, 774 F. App’x 800 (4th Cir. 2019)). We are not persuaded by these
arguments.
¶5An administrative judge’s conduct during the course of a Board proceeding
warrants a new adjudication only if his 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
claims do not overcome that presumption, nor do they establish a deep-seated
favoritism or antagonism. Oliver v. Department of Transportation , 1 M.S.P.R.
382, 386 (1980) (holding that, in making a claim of bias or prejudice against an
administrative judge, a party must overcome the presumption of honesty and
integrity that accompanies administrative adjudicators). They also do not show
that the administrative judge should have recused herself from the remand
proceedings. See Baker v. Social Security Administration , 2022 MSPB 27,
¶¶ 7-11 (discussing how recusal is appropriate if an administrative judge’s
impartiality could reasonably be questioned).4
NOTICE OF APPEAL RIGHTS4
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:
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
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.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. 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 | Mattison_LawrenceDC-0752-16-0350-B-1__Final_Order.pdf | 2024-06-13 | LAWRENCE E. MATTISON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-0752-16-0350-B-1, June 13, 2024 | DC-0752-16-0350-B-1 | NP |
1,230 | https://www.mspb.gov/decisions/nonprecedential/Smith_TerriDC-0752-19-0045-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TERRI SMITH,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
DC-0752-19-0045-I-1
DATE: June 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Randolph Bennett , St. Thomas, Virgin Islands, for the appellant.
Darin B. Tuggle , 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
¶1The appellant has filed a petition for review of the initial decision, which
sustained her removal for excessive absences and dismissed her restoration claim
for lack of jurisdiction. 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 in
¶¶ 19-20, below, with respect to the appellant’s restoration claim, we AFFIRM
the initial decision.
BACKGROUND
¶2The appellant was a GS-13 Support Services Specialist for the agency’s
Office of Inspector General. Initial Appeal File (IAF), Tab 5 at 38. On
March 10, 2015, the appellant injured her back and neck at work and began a long
absence from the workplace. Id. at 48. The Office of Workers’ Compensation
Programs (OWCP) ruled the injury compensable, and the appellant began
receiving wage loss compensation benefits. Id. She never returned to duty.
¶3In July 2016, the appellant attempted to return to duty and engaged in the
reasonable accommodation process with the agency, but ultimately, her treating
physician declined to give her a medical release. Hearing Recording (HR),
Track 1 at 5:30 (testimony of the Supervisory Human Resource Specialist),
Track 3 at 11:30 (testimony of the appellant). The appellant remained on the
wage loss benefit rolls until February 2018, when an OWCP district office
notified her that her benefits were being terminated because she no longer had2
any residuals or disability due to her accepted work related conditions. IAF,
Tab 9 at 48-49; see 20 C.F.R. § 10.503. The appellant both sought review of the
district office’s decision under 20 C.F.R. § 10.616 and notified the agency that
she intended to return to duty. IAF, Tab 2 at 3, Tab 5 at 47.
¶4On February 8, 2018, the appellant contacted the Supervisory Human
Resource Specialist in charge of her case at her employing agency. IAF, Tab 2
at 3. The agency’s Office of General Counsel and Federal Aviation
Administration (which handles workers compensation matters throughout the
agency) advised the Supervisory Human Resource Specialist that the appellant
should be placed on the agency’s reemployment priority list. HR, Track 1
at 22:05 (testimony of the Supervisory Human Resource Specialist); see generally
5 C.F.R. part 330, subpart B (regulations governing reemployment priority in the
competitive service). The Supervisory Human Resource Specialist informed the
appellant that her former position had already been filled, there was nothing
available for her at the moment, and she would need to apply for placement on the
reemployment priority list. IAF, Tab 3 at 3. The appellant remained on the
reemployment priority list at least until May 2018. IAF, Tab 15 at 11-12, 16-17.
¶5Meanwhile, on June 11, 2018, an OWCP hearing representative granted the
appellant’s petition and reversed the February 1, 2018 district office decision that
terminated her benefits. IAF, Tab 5 at 47-52. The hearing representative decided
that there was insufficient evidence to support the district office’s decision, and
the appellant was returned to the wage loss compensation rolls retroactively. Id.
at 51-52.
¶6At some point, the agency determined that it had erred in placing the
appellant on the reemployment priority list, and so, on June 21, 2018, it sent her a
letter inquiring whether she intended to return to duty in her Support Services
Specialist position and warning her that her failure to return could result in
removal. IAF, Tab 5 at 46; HR, Track 1 at 22:25 (testimony of the Supervisory
Human Resource Specialist). On July 3, 2018, the appellant responded that she3
would return to duty “as soon as [she was] cleared by the treating physician,” but
she gave no indication of when such clearance could be expected to occur. IAF,
Tab 5 at 45. On August 6, 2018, the agency proposed the appellant’s removal
based on a charge of excessive absences. Id. at 43-44. After the appellant
responded, the agency issued a decision removing her effective September 14,
2018. Id. at 39-42.
¶7The appellant filed a Board appeal challenging the removal decision and
arguing that the agency violated her restoration rights. IAF, Tab 1 at 4, 6. She
raised affirmative defenses of disability discrimination, retaliation for equal
employment opportunity (EEO) activity, and whistleblower reprisal. Id. at 5-6.
After a hearing, the administrative judge issued an initial decision affirming the
removal. Initial Appeal File (IAF), Tab 21, Initial Decision (ID). She found that
the agency proved its charge, ID at 2-10, that the appellant failed to prove any of
her affirmative defenses, ID at 11 -14, and that the penalty was reasonable, ID
at 16-18. The administrative judge further found that the Board lacks jurisdiction
over the appeal as a restoration claim under 5 C.F.R. § 353.304. ID at 14-16.
¶8The appellant has filed a petition for review challenging the initial decision.
Petition for Review (PFR) File, Tab 1. The agency has not filed a response.
ANALYSIS
Newly submitted evidence
¶9The appellant attached three documents to her petition for review: a
February 1, 2018 OWCP decision to terminate her wage loss compensation
benefits; a July 11, 2017 medical report; and a July 11, 2017 work capacity
evaluation. Id. at 7-20. The appellant states that she submitted these documents
below but the administrative judge failed to consider them. Id. at 3. After a
careful review of the record, we find that the appellant did not, in fact, submit
these documents for the record below. The Board will not consider evidence
submitted for the first time on petition for review when it previously was4
available but a party elected to not submit it to the administrative judge. Fox v.
U.S. Postal Service , 81 M.S.P.R. 522, ¶¶ 4-5 (1999). Furthermore, none of these
documents appear to be material to the outcome of the appeal. 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). We therefore
decline to consider the evidence that the appellant has submitted for the first time
with her petition for review.
Discovery
¶10On petition for review, the appellant argues that she requested that the
agency produce all emails regarding her, including “emails asking for justification
for keeping her from returning to duty[,] and those emails were not submitted to
her.” PFR File, Tab 1 at 4. However, the appellant’s failure to file a motion to
compel discovery below precludes her from raising this issue for the first time on
review. See Szejner v. Office of Personnel Management , 99 M.S.P.R. 275, ¶ 5
(2005), aff’d, 167 F. App’x 217 (Fed. Cir. 2006).
Removal
¶11To prove a charge of excessive absences, an agency 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. Fox v. Department of the Army , 120 M.S.P.R. 529,
¶ 31 (2014). In this case, the administrative judge found that the agency proved
all three elements of the charge. ID at 8-9.5
¶12The appellant challenges the administrative judge’s analysis based on the
agency’s actions in February 2018, when it placed her on the reemployment
priority list instead of returning her to duty in her Support Services Specialist
position. She argues that the agency cannot prevent an employee from returning
to duty and then later remove her for excessive absences. PFR File, Tab 1 at 4.
We construe this as a challenge to the first element of the charge, and we agree
with the appellant that the agency erred in placing her on the reemployment
priority list. T he administrative judge found so too, and the agency itself
admitted as much. ID at 4; IAF, Tab 18 at 5. It is appropriate under certain
circumstances to place individuals with compensable injuries on a reemployment
priority list, but this is limited to situations in which the individual has been
separated from her former position. See 5 C.F.R. §§ 330.203(b)(2), 353.301(b).
Because the appellant had not been separated from her Support Services
Specialist position in February 2018, we find that the agency should have
attempted to return her to duty in that position, just as it did in July 2016,
including engaging in the interactive process with her as appropriate.2 However,
we find that the agency’s error was of no consequence because the appellant
would not have been able to return to duty in her former position in February
2018 even if the agency had allowed her to do so. We find it more likely that the
appellant would ultimately have declined to return to work in February 2018, just
as she did in July 2016 and July 2018, when she also expressed her intention to
return but declined the agency’s offers for want of a medical release from her
treating physician. IAF, Tab 5 at 45; HR, Track 1 at 5:30 (testimony of the
Supervisory Human Resource Specialist), Track 3 at 11:30 (testimony of the
2 Although the appellant does not challenge the administrative judge’s disability
discrimination analysis on review, we observe that that the agency’s failure to engage in
the interactive process in February 2018 did not itself constitute disability
discrimination. The appellant has not shown that there was any accommodation
available at the time that would have allowed her to perform the duties of her Support
Services Specialist position or any other vacant funded position. See Clemens v.
Department of the Army , 120 M.S.P.R. 616, ¶ 17 (2014).6
appellant). There is no evidence that the appellant had any such release in
February 2018, or that her condition was any better at that time than it was in July
2016 or July 2018.3
¶13The appellant asserts that, on February 1, 2018, she was “cleared to return
to duty.” PFR File, Tab 1 at 4. However, the document to which she refers was
not a release to return to duty; it was a notice of termination of her wage loss
compensation benefits. PFR File, Tab 1 at 7-13. Nor was this document authored
by the appellant’s treating physician, and in any event, it was later determined to
be in error. IAF, Tab 5 at 47-52. This situation is similar to the one in July 2016,
when OWCP “released” the appellant to return to duty with limitations but the
appellant declined to return because her treating physician did not concur. HR,
Track 1 at 5:30 (testimony of the Supervisory Human Resource Specialist),
Track 3 at 11:30 (testimony of the appellant). There was no such concurrence in
February 2018 either. Considering the totality of the evidence, we find that the
agency’s error of not offering the appellant an immediate return to duty in her
position of record in February 2018 did not prevent it from proving the first
element of its charge, i.e., that the appellant was absent for compelling reasons
beyond her control and could not be on the job.
¶14The appellant has not disputed the second element of the charge, i.e., that
her absence from work continued beyond a reasonable time. We agree with the
administrative judge that the appellant’s absence of more than 3 years easily
satisfies this requirement. ID at 9; see Cole v. Department of Veterans Affairs ,
77 M.S.P.R. 434, 440 (1998) (finding that the appellant’s total continuous
absence of more than 2 years continued beyond a reasonable time).
¶15The appellant does, however, appear to dispute the third element of the
charge, i.e., that her position needed to be filled by an employee available for
3 The actual medical evidence in the record is very sparse. It consists of summaries
prepared by the Office of Inspector General and the OWCP hearing representative and a
March 11, 2018 update of the appellant’s accepted compensable medical conditions.
IAF, Tab 5 at 48-52, Tab 17 at 8-9, Tab 18 at 20-21.7
duty on a regular basis. Specifically, she argues that her position “was held
vacant after the agency hired an additional GS-14.” PFR File, Tab 1 at 4. We
find that this fact is immaterial. The administrative judge found that, after years
of dividing the appellant’s former duties among current staff on an ad hoc basis,
the agency hired a GS-14 Facilities Support Manager to absorb those duties and
reduce the burden on the individuals who had been performing them in the
interim. ID at 5-7. The fact that the appellant’s former GS-13 Support Services
Specialist position persisted as a vacant fulltime equivalent does not rebut the
agency’s showing that it needed someone to perform the duties formerly assigned
to that position and, in fact, the agency hired another individual for that purpose.
¶16The appellant has not directly challenged the administrative judge’s
analyses of the nexus and penalty issues, and for the reasons explained in the
initial decision, we agree with the administrative judge that the agency proved
that removal was reasonable under the circumstances of this case. ID at 16-18.
Restoration
¶17Upon an employee’s recovery from a compensable injury, she is entitled to
restoration rights under 5 C.F.R. part 353 that are dependent upon both the extent
of recovery and the time it takes for her to recover. Smith v. U.S. Postal Service ,
81 M.S.P.R. 92, ¶ 6 (1999); 5 C.F.R. § 353.301. An employee’s Board appeal
rights also differ depending on the extent and the timing of her recovery. Smith,
81 M.S.P.R. 92, ¶ 7; 5 C.F.R. § 353.304. In this case, the administrative judge
analyzed the appellant’s claim both as a fully recovered employee and as a
partially recovered employee. ID at 14-16; see 5 C.F.R. § 353.302(a)-(b), (d).
She found, however, that the Board lacks jurisdiction over her claim because the
appellant did not meet the definition of “fully recovered” and the agency never
denied her request for restoration as a partially recovered employee. ID at 15-16.
¶18On petition for review, the appellant argues that the agency failed to follow
the procedures of 5 C.F.R. § 353.301(b) for returning to duty an individual fully
recovered after 1 year. PFR File Tab 1 at 5. Regardless of whether this is true,8
we agree with the administrative judge that 5 U.S.C. § 353.301(b) did not apply to
the appellant’s situation because she was not “fully recovered” within the
meaning of the Office of Personnel Management’s regulations. ID at 15-16.
Under 5 C.F.R. § 353.102, an individual is “fully recovered” when her
compensation benefits have been terminated on the basis that she is able to fully
perform the duties of her former position or an equivalent one. OWCP’s
retroactive reinstatement of benefits in June 2018 precludes the appellant from
meeting the definition of “fully recovered,” and the Board therefore lacks
jurisdiction over her restoration claim as a fully recovered individual. See Zysk v.
U.S. Postal Service , 108 M.S.P.R. 520, ¶ 6 (2008).
¶19The appellant argues in the alternative that the agency failed to afford her
the restoration rights for a partially recovered employee. PFR File, Tab 1 at 5-6;
see generally 5 C.F.R. § 353.301(d) (setting forth the restoration rights for
partially recovered individuals). To establish jurisdiction over such a claim, an
appellant must make nonfrivolous allegations that: (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 those previously required of her; (3) the agency
denied her request for restoration; and (4) the agency’s denial was arbitrary and
capricious. Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365, ¶ 11 (2016);
5 C.F.R. § 1201.57(a)(4), (b). In this regard, we disagree with the administrative
judge that the agency did not deny the appellant’s request for restoration. ID
at 15. Although the agency did not deny the appellant’s request for restoration in
2016, the record shows that it did deny her request in February 2018. IAF, Tab 2
at 26, Tab 3 at 3. Nevertheless, we find that the appellant failed to make a
nonfrivolous allegation regarding the second element of her claim, i.e., that she
recovered sufficiently to return to work in some capacity.4 Cf. 5 C.F.R. § 353.102
(defining “partially recovered” an as an injured employee who has recovered
4 The administrative judge did not make any explicit findings on this issue.9
sufficiently to return to part-time or light duty or to another position with less
demanding physical requirements). As explained above, it is undisputed that the
appellant was unable to return to duty in July 2018, and there is no evidence to
support a finding that she would have been able to return in February 2018, even
if the agency had offered her work at that time. See Davis v. Department of
Justice, 61 M.S.P.R. 92, 98-99, aff’d, 43 F.3d 1485 (Fed. Cir. 1994) (Table).
¶20Because the appellant has not made a nonfrivolous allegation that she is
either fully or partially recovered, we find that she is not entitled to restoration
under 5 C.F.R. § 353.301, and that the Board lacks jurisdiction over her
restoration claim.5 See Davis, 61 M.S.P.R. at 99.
Constructive suspension
¶21Finally, the appellant appears to contest the agency’s action of placing her
in a leave without pay (LWOP) status between February and June 2018, during
the period that she was not receiving wage loss compensation benefits. PFR File,
Tab 1 at 4-6. Under certain circumstances, involuntary placement in an LWOP
status can amount to an appealable suspension under 5 U.S.C. chapter 75.6 See
Martin v. U.S. Postal Service , 123 M.S.P.R. 189, ¶ 9 (2016); McHenry v. U.S.
Postal Service, 121 M.S.P.R. 80, ¶ 8 (2014).
¶22However, the Federal Employees Compensation Act, 5 U.S.C. § 8116(a),
prohibits an employee who is awarded OWCP benefits from receiving any other
remuneration from the Federal Government. Further, the U.S. Supreme Court
declared that this statute was enacted for the purpose of providing the exclusive
remedy for injured employees of the United States. See Johansen v. United
States, 343 U.S. 427, 439-41 (1952). As a result, we held in Hagan v.
5 The appellant does not argue that she was “physically disqualified,” as that term is
defined in 5 C.F.R. § 353.102, but even if she were, there is no evidence that she is
capable of performing the duties of any position.
6 As the administrative judge observed in the initial decision, there is no evidence that
the appellant had any paid leave available during the time that the agency carried her in
an LWOP status. ID at 9.10
Department of the Army , 99 M.S.P.R. 313, ¶ 11 (2005) and Roja v. Department of
the Navy, 55 M.S.P.R. 618, 620 (1992) that an employee receiving OWCP is not
entitled to receive salary, pay, or remuneration of any type. Because the
appellant received retroactive wage loss benefits covering the entire period that
the agency carried her in LWOP status, the issue is moot. See Williams v. U.S.
Postal Service, 31 M.S.P.R. 604, 606 (1986).
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.
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.11
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,12
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 13
(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
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.
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. 1510.14
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.15 | Smith_TerriDC-0752-19-0045-I-1__Final_Order.pdf | 2024-06-13 | TERRI SMITH v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. DC-0752-19-0045-I-1, June 13, 2024 | DC-0752-19-0045-I-1 | NP |
1,231 | https://www.mspb.gov/decisions/nonprecedential/Rubtsov_Ivan_V_SF-0752-19-0138-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
IVAN V. RUBTSOV,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
SF-0752-19-0138-I-1
DATE: June 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ivan V. Rubtsov , Van Nuys, California, pro se.
Richard I. Anstruther , Esquire, 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
sustained his removal pursuant to 5 U.S.C. chapter 75 based on two charges of
discourteous or unprofessional behavior.2 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).
2 The agency also charged the appellant with failure to follow a management directive;
however, it withdrew this charge at the start of the hearing. Initial Appeal File, Tab 30,
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).
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant argues that the administrative judge exhibited bias
throughout the adjudication of his appeal. Petition for Review (PFR) File, Tab 1
at 3-6, Tab 4 at 4, 7-11. To this end, he alleges that the administrative judge
previously was employed by the agency and, as such, he ruled in the agency’s
favor. PFR File, Tab 1 at 3-6, Tab 4 at 4, 7-11. The Board consistently has 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 , 87 M.S.P.R. 313, ¶ 12 (2000). 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
Hearing Transcript at 4-5. 2
indicate a deep-seated favoritism or antagonism that would render fair judgment
impossible. Simpkins v. Office of Personnel Management , 113 M.S.P.R. 411, ¶ 5
(2010) (quoting Bieber v. Department of the Army , 287 F.3d 1358, 1362-63 (Fed.
Cir. 2002)).
Here, the administrative judge issued an order explaining that he previously
was employed by the agency, and he provided both parties an opportunity to raise
any concerns associated therewith. Initial Appeal File (IAF), Tab 8 at 1. Neither
party responded. Because the appellant failed to raise any concerns associated
with the administrative judge’s prior employment at that juncture, he is precluded
from raising this argument for the first time on review. See Gensburg v.
Department of Veterans Affairs , 85 M.S.P.R. 198, ¶ 7 (2000); see also 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). Moreover, we find that
the record is devoid of any bias indicating “a deep-seated favoritism or
antagonism” that would render fair judgment impossible. See Simpkins,
113 M.S.P.R. 411, ¶ 5; see also Morris v. Department of the Air Force ,
24 M.S.P.R. 41, 42-43 (1984) (reasoning that the deciding official’s prior
employment with the agency was not automatically indicative of compromised
judgment).
The appellant avers that he was “denied the introduction of the witnesses
that would support [his] credibility” and that “[t]here are documents related to the
agency’s credibility, concealment of documents and misrepresenting a truth that
were not allowed by the judge to be introduced.” PFR File, Tab 1 at 3-4
(grammar as in original). We discern no basis to disturb the administrative
judge’s reasoned conclusion that the proffered testimony of 6 of the appellant’s
13 proposed witnesses was “either irrelevant or cumulative.” IAF, Tab 19 at 2-3;
see Thomas v. U.S. Postal Service , 116 M.S.P.R. 453, ¶ 4 (2011) (explaining that3
the administrative judge has broad discretion to regulate the course of the hearing
and to exclude evidence and witnesses that have not been shown to be relevant or
material). Moreover, because the appellant does not identify the documents to
which he refers, we find his contention that the administrative judge erroneously
disallowed his documentary evidence unavailing.3 See Tines v. Department of the
Air Force, 56 M.S.P.R. 90, 92 (1992) (explaining 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 also contends that the administrative judge denied him a
“line of questioning” that would have substantiated one of his affirmative
defenses. PFR File, Tab 1 at 3. Although unclear, the appellant seemingly
references a portion of the deciding official’s hearing testimony regarding the
deciding official’s weighing of the evidence. Id. at 3, 6; IAF, Tab 30, Hearing
Transcript at 140-42. We discern no basis to disturb the administrative judge’s
reasoned ruling that this line of questioning was irrelevant to the issues on appeal.
See Miller v. Department of Defense , 85 M.S.P.R. 310, ¶ 8 (2000) (explaining
that an administrative judge has wide discretion to control the proceedings,
including authority to exclude testimony he believes would be irrelevant or
immaterial).
The appellant alleges that the administrative judge erroneously denied his
discovery requests and that he improperly denied his request for additional time
to complete discovery. PFR File, Tab 1 at 3, 6. Here, because the appellant
failed to file a motion to compel before the administrative judge, he is precluded
3 The appellant provides numerous documents with his petition for review, all of which
he proffered before the administrative judge. PFR File, Tab 1 at 9-36. The
administrative judge admitted all of these documents into the record, with the exception
of a three-page printout from a tax court proceeding involving a taxpayer who testified
against the appellant, and a six-page chain of emails. Id. at 20-22, 31-36; IAF, Tab 18
at 9-11, 101-06, Tab 19 at 3. To the extent the appellant is referring to either of these
documents, we find them irrelevant to the matters at issue in this appeal; thus, we
discern no basis to disturb the administrative judge’s evidentiary ruling associated
therewith. See Thomas, 116 M.S.P.R. 453, ¶ 4.4
from raising discovery issues for the first time on review. See Szejner v. Office of
Personnel Management , 99 M.S.P.R. 275, ¶ 5 (2005), aff’d, 167 F. App’x 217
(Fed. Cir. 2006); 5 C.F.R. § 1201.73(c). Moreover, the appellant both fails to
identify the documents that he allegedly was denied in discovery and to explain
how his rights were prejudiced by any such denial. PFR File, Tab 1 at 3; see
Vincent v. Federal Deposit Insurance Corporation , 41 M.S.P.R. 637, 640 (1989)
(finding unavailing the appellant’s allegations of discovery -related adjudicatory
errors when the appellant neither clearly identified the evidence he was precluded
from obtaining nor explained how his rights were prejudiced by the alleged denial
of such evidence). In denying the appellant’s motion for additional time to
complete discovery, the administrative judge explained that the appellant had
failed to indicate what additional discovery he needed. IAF, Tab 14 at 3, Tab 17
at 1-2. Thus, we find that the administrative judge was well within his discretion
in denying the appellant’s request for additional time. See Cassel v. Department
of Agriculture, 72 M.S.P.R. 542, 546 (1996) (explaining that, absent an abuse of
discretion, the Board will not find reversible error in an administrative judge’s
discovery rulings).
The appellant contends that the administrative judge erroneously assessed
witness credibility. PFR File, Tab 1 at 4-5, Tab 4 at 5-7. The appellant’s
arguments on review, which amount to mere disagreement with the administrative
judge’s findings, do not provide a sufficiently sound basis for reversal. See
Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105-06 (1997); Broughton v.
Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987).
The appellant also reiterates that the agency violated his due process rights.
PFR File, Tab 1 at 5-6, Tab 4 at 9, 11. In so alleging, he seemingly reasserts that
the agency concealed relevant information and documents despite his union
representative’s requests for the same pursuant to 5 U.S.C. § 7114(b)(4). IAF,
Tab 29 at 12; PFR File, Tab 1 at 6. The Board has found that a deciding official
violates an employee’s constitutional due process rights when he relies on “new5
and material” ex parte information as a basis for his decisions on either the merits
of a proposed charge or the penalty to be imposed. See Solis v. Department of
Justice, 117 M.S.P.R. 458, ¶¶ 7 -8 (2012); see also Gray v. Department of
Defense, 116 M.S.P.R. 461, ¶ 6 (2011). Here, we discern no basis to disturb the
administrative judge’s reasoned conclusion that, because there was no evidence to
suggest that the deciding official considered any of the information sought by the
appellant’s union representative pursuant to 5 U.S.C. § 7114(b)(4), i.e., any “new
and material” ex parte information, the appellant failed to show that the agency
violated his due process rights.4 ID at 33; see Solis, 117 M.S.P.R. 458, ¶¶ 7-8.
The appellant alleges on review that the administrative judge erred in
finding that he failed to prove his affirmative defenses of harmful procedural
error and reprisal for union activity. PFR File, Tab 1 at 5-6, Tab 4 at 9-11.
However, we are unable to discern any specific allegations of error in his
argument; rather, the appellant merely disagrees with the administrative judge’s
associated credibility determinations and findings of fact. PFR File, Tab 1 at 5-6,
Tab 4 at 9-11. Thus, we discern no basis to disturb the initial decision. See
Crosby, 74 M.S.P.R. at 105-06; see also Haebe v. Department of Justice ,
288 F.3d 1288, 1301 (Fed. Cir. 2002).
Last, the appellant seemingly contends that both the agency and the
administrative judge misapplied the factors set forth in Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981). PFR File, Tab 4 at 7. We find
this contention unavailing. The record reflects that both the deciding official and
the administrative judge appropriately considered the Douglas factors. IAF,
Tab 4 at 15-18; ID at 48-51; see Ellis v. Department of Defense , 114 M.S.P.R.
407, ¶ 11 (2010) (explaining that, when the agency’s charges are sustained, the
4 To the extent the appellant seeks to have the Board determine whether the agency
committed an unfair labor practice by failing to provide the requested information in
accordance with 5 U.S.C. § 7114(b)(4), we agree with the administrative judge that the
Board lacks jurisdiction over the issue. ID at 33 (citing Fearon v. Department of Labor ,
99 M.S.P.R. 428, ¶ 3 n.1 (2005)).6
Board will review an agency -imposed penalty only to determine if the agency
considered all of the relevant factors and exercised discretion within tolerable
limits of reasonableness).5 To this end, the administrative judge analyzed the
deciding official’s consideration of the Douglas factors, and he reasonably
concluded that the agency’s selected penalty did not exceed the maximum
reasonable penalty for the appellant’s behavior. ID at 51. In so doing, he noted,
among other things, that the appellant previously had received a 5-day suspension
for conduct unbecoming an Internal Revenue Service employee and failure to
observe written regulations, and that he proffered no mitigating factors. IAF,
Tab 4 at 35, 42-76; ID at 50-51. Thus, we discern no basis to disturb the initial
decision.
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS6
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
5 As stated, the agency withdrew its charge of failure to follow a management directive
at the beginning of the hearing; thus, the administrative judge sustained only the two
charges of discourteous or unprofessional behavior. HT at 4-5; ID at 8, 27. However,
both the proposing official and the deciding official concluded that the first charge of
discourteous or unprofessional behavior alone was sufficient to warrant the appellant’s
removal. IAF, Tab 4 at 16, 33.
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.7
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. 8
(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. 9
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.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. 1510.10
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.11 | Rubtsov_Ivan_V_SF-0752-19-0138-I-1__Final_Order.pdf | 2024-06-13 | IVAN V. RUBTSOV v. DEPARTMENT OF THE TREASURY, MSPB Docket No. SF-0752-19-0138-I-1, June 13, 2024 | SF-0752-19-0138-I-1 | NP |
1,232 | https://www.mspb.gov/decisions/nonprecedential/Martin_BatrinaDC-0752-18-0363-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BATRINA MARTIN,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-0752-18-0363-I-1
DATE: June 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Batrina Martin , Chesapeake, Virginia, pro se.
Kathleen Ann Giacolone , Portsmouth, Virginia, for the agency.
David L. Mannix , Falls Church, 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
sustained her removal. 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 to
supplement the administrative judge’s analysis of the agency’s unauthorized
absence charge and the reasonableness of the penalty and to clarify the applicable
burden of proof regarding the appellant’s affirmative defense of status-based
disability discrimination, we AFFIRM the initial decision.
BACKGROUND
The undisputed facts as set forth in the initial decision are as follows. The
appellant was formerly employed as a Health Systems Specialist for the Naval
Medical Center in Portsmouth, Virginia. Initial Appeal File (IAF), Tab 35, Initial
Decision (ID) at 2. On February 8, 2017, the agency proposed her removal based
on four charges of unauthorized absence, failure to maintain a regular work
schedule, failing to complete work assignments in a timely manner, and misuse of
a Government computer. Id. After affording the appellant an opportunity to
respond, the agency issued a decision sustaining the charges and removing her
from service, effective April 6, 2017. Id.
The appellant filed a Board appeal disputing the charges and raising
affirmative defenses of discrimination based on her disability and race, denial of
reasonable accommodation, and retaliation based on her prior equal employment2
opportunity (EEO) activity. IAF, Tab 1, Tab 30 at 2-3. After holding the
appellant’s requested hearing, the administrative judge issued an initial decision
sustaining her removal. ID at 1. The administrative judge found that the agency
proved all four of its charges, there was a nexus between the charges and the
efficiency of the service, and the penalty of removal was reasonable. ID at 3-12.
He further found that the appellant failed to prove any of her affirmative
defenses. ID at 13-24.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1.2 The agency has opposed the appellant’s petition. PFR File, Tab 4.3
DISCUSSION OF ARGUMENTS ON REVIEW
As an initial matter, we deny the appellant’s request that the Board grant
her interim relief pending the outcome of her petition for review due to financial
hardship. PFR File, Tab 1 at 3, 6. Under the Board’s regulations, interim relief
is only available to a prevailing party. See 5 C.F.R. § 1201.111(c)(1). Here,
because the administrative judge sustained the appellant’s removal and found that
she failed to prove any of her affirmative defenses, and in light of our decision to
affirm the initial decision, we find that the appellant is not a prevailing party, and
thus, is not entitled to interim relief. See, e.g., Edmond v. Veterans
2 With her petition, the appellant has submitted two exhibits. PFR File, Tab 1 at 7-16.
Exhibit A is a document from the Office of Personnel Management concerning the
appellant’s application for a deferred retirement annuity. Id. at 9. Exhibit B appears to
be a document that the appellant created concerning mitigating factors in response to
the agency’s charge of unauthorized use of a government computer. Id. at 11-16. We
decline to consider such evidence because the appellant has not shown that it constitutes
new and material evidence that was unavailable, despite her due diligence, prior to the
close of the record below. 5 C.F.R. § 1201.115(d).
3 The agency has also filed a motion to dismiss the appellant’s petition as untimely
filed. PFR File, Tab 3. However, we find that the appellant timely filed her petition by
mail on November 16, 2018, within 35 days after the issuance of the initial decision on
October 12, 2018. PFR File, Tab 1 at 1; ID at 1; see 5 C.F.R. § 1201.4( l) (stating that
the date of filing by mail is determined by the postmark date); 5 C.F.R. § 1201.114(e)
(stating that a petition for review must be filed within 35 days of the date of issuance of
the initial decision). Accordingly, we deny the agency’s motion. 3
Administration, 21 M.S.P.R. 633, 638 n.2 (1984) (finding that the appellant was
not a prevailing party when the Board sustained the agency’s removal action).
The administrative judge properly found that the agency proved its charges.
Regarding the agency’s unauthorized absence charge, the appellant asserts
on review that she was absent due to her medical condition and cites to medical
records that do not appear to have been originally submitted to the agency. PFR
File, Tab 1 at 3; IAF, Tab 33.
Generally, to prove a charge of unauthorized absence or absence without
leave (AWOL), an agency must show that the appellant was absent and that her
absence was unauthorized; if the employee requested leave, the agency must show
that the request was properly denied. Wilson v. Small Business Administration ,
2024 MSPB 3, ¶ 7. Nonetheless, in certain situations, an appellant may rely upon
medical evidence of illness not previously submitted to the agency as a defense to
an action based on such a charge. See, e.g., Thom v. Department of the Army ,
114 M.S.P.R. 169, ¶ 6 (2010); Zeiss v. Veterans Administration , 8 M.S.P.R. 15,
17-18 (1981).
The administrative judge found that the appellant was absent on the dates
charged, the absences were unauthorized, and the agency properly denied the
appellant’s leave requests. ID at 3-5. In finding that the agency proved its
unauthorized absence charge, however, the administrative judge did not reference
or discuss the appellant’s new medical evidence, which reflects that during the
relevant time period she was suffering from several medical conditions that may
have rendered her incapacitated from work. IAF, Tab 33. Nonetheless, we find
that such medical conditions do not warrant reversal of the charge because the
appellant has not explained how any of her medical conditions rendered her
unable to present administratively acceptable evidence to show that she was
incapacitated for duty. See Thom, 114 M.S.P.R. 169, ¶ 6; Zeiss, 8 M.S.P.R.
at 18-19; 5 C.F.R. § 630.405 (authorizing an agency to require submission of
administratively acceptable medical evidence in support of an absence because of4
incapacitation due to a physical or mental illness). Further, we note that, in
response to the deciding official’s request for medical documentation, the
appellant simply indicated that she would not release her confidential medical
records. IAF, Tab 11 at 10. Thus, the agency properly considered her absence to
have been unauthorized because she failed to provide administratively acceptable
evidence of her incapacitation during the relevant period.4
Beyond her assertions that she was medically incapacitated, the appellant
does not specifically challenge the administrative judge’s finding that the agency
proved its charge of failure to maintain a regular work schedule. We discern no
error in the administrative judge’s findings that the agency proved this charge
because the appellant was absent due to illnesses, which constituted compelling
reasons beyond her control, her absences continued beyond a reasonable amount
of time, the agency warned her it may take an adverse action if she did not
become available for duty, and the appellant’s position needed to be filled by an
employee available for duty. ID at 6-7; see, e.g., Fox v. Department of the Army ,
120 M.S.P.R. 529, ¶ 31 (2014).
Regarding the charge of failure to timely complete work assignments, the
appellant reiterates her argument that the agency should have provided her with
overtime to complete the meeting minutes and that other employees were
provided excessive overtime. PFR File, Tab 1 at 3. Such an argument, however,
was considered and rejected by the administrative judge, who credited the
testimony of the appellant’s supervisor that the directorate did not grant overtime
4 Because the appellant had exhausted all of her sick leave, ID at 4, the agency had the
discretion of granting her leave without pay or charging her with an unauthorized
absence, see Riley v. Department of the Army , 53 M.S.P.R. 683, 689 n.4 (1992). The
appellant’s supervisor testified that the appellant was granted leave without pay for the
dates on which she submitted administratively acceptable medical documentation. IAF,
Tab 34, Hearing Compact Disc (HCD) (testimony of the appellant’s first-level
supervisor). To the extent the appellant did not provide acceptable medical
documentation to the agency for the dates at issue in this appeal, we find that the
agency’s denial of leave without pay was not unreasonable. ID at 5; see e.g., Robb v.
Department of Defense , 77 M.S.P.R. 130, 135 (1997).5
to anyone and compensatory time was not necessary because the appellant was
granted multiple extensions to compete her work. ID at 23. The appellant’s mere
disagreement with the administrative judge’s finding does not provide a basis for
reversal. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105-106 (1997)
(stating that the Board will give due deference to the credibility findings of the
administrative judge and will not grant a petition for review based on a party’s
mere disagreement with those findings); Broughton v. Department of Health and
Human Services , 33 M.S.P.R. 357, 359 (1987) (same).
Regarding the charge of unauthorized use of a Government computer, the
administrative judge found that the appellant’s use of her Government computer
to access documents related to her work as a professor at Strayer University and
Liberty University was unauthorized because the agency’s regulations prohibit
using a Government computer for personal financial gain. ID at 9-10. On
review, the appellant argues that she accessed Department of Education websites
before and after her work shifts and on Saturday and Sunday. PFR File, Tab 1
at 4. Such an argument is unpersuasive to the extent the charge was unauthorized
use of a Government computer and the administrative judge found that the
appellant admitted that she used her Government computer as part of her duties as
a professor in violation of agency regulations. ID at 9. The appellant also
reiterates her arguments that she was permitted to use the internet and conduct
research, which she contends was related to her Federal job duties. PFR File,
Tab 2 at 5-6. However, the administrative judge considered but rejected such
arguments as unpersuasive, and we decline to disturb such findings. ID at 9-10.
The administrative judge properly found that the appellant failed to prove her
affirmative defense of disability discrimination. 5
In finding that the appellant failed to prove her affirmative defense of
status-based disability discrimination, the administrative judge found that the
5 The appellant does not challenge the administrative judge’s specific findings that she
failed to prove her affirmative defenses of discrimination based on race or retaliation. 6
appellant was an individual with a disability and properly analyzed whether the
appellant’s disability was a motivating factor in her removal. ID at 14-15; see
Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 40. On review,
the appellant generally asserts that the agency was prohibited from discriminating
against a qualified individual with a disability and its actions were in violation of
the Americans with Disabilities Act, PFR File, Tab 1 at 1-2, but she has not
identified any specific errors in the administrative judge’s finding that she failed
to prove that her disabilities were a motivating factor in the agency’s decision to
remove her.
To prove a failure to accommodate disability discrimination claim, the
appellant must prove that she is a disabled person, that the action appealed was
based on her disability and, to the extent possible, she must articulate a
reasonable accommodation under which she believes she could perform the
essential duties of her position or of a vacant funded position to which she could
be reassigned. Sanders v. Social Security Administration , 114 M.S.P.R. 487, ¶ 16
(2010). We agree with the administrative judge that the appellant failed to
articulate a reasonable accommodation under which she could have performed her
job duties or show that the agency’s removal action was based on her disability.
The record does not reflect that the appellant submitted sufficient medical
documentation in support of her request for reasonable accommodation as
instructed by the agency, or explained how her requested accommodations would
have allowed her to perform her job duties. IAF, Tab 5 at 45, Tab 26 at 34-40.
Moreover, the administrative judge found that, despite receiving information
concerning how to request a reasonable accommodation in 2015 and
February 2016, the appellant did not request a reasonable accommodation until
November 23, 2016, which was after most of the charged misconduct occurred.
ID at 18-19. Thus, he found that it was not improper for the agency to discipline
her for her misconduct. Id. We discern no error in the administrative judge’s
analysis. See U.S. Equal Employment Opportunity Commission, Enforcement7
Guidance on Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities Act, Notice No. 915.002, Question 36 (Oct. 17, 2002)
(stating that, “[s]ince reasonable accommodation is always prospective, an
employer is not required to excuse past misconduct even if it is the result of the
individual’s disability”).
The administrative judge properly found that the penalty of removal
was reasonable.
When, as here, all of the agency’s charges are sustained, the Board will
review the 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. Pinegar v. Federal Election Commission , 105 M.S.P.R.
677, ¶ 53 (2007); see Douglas v. Veterans Administration , 5 M.S.P.R. 280,
305-06 (1981) (articulating a nonexhaustive list of 12 factors that are relevant in
assessing the appropriate penalty for an act of misconduct). In making this
determination, the Board must give due deference 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. Pinegar, 105 M.S.P.R.
677, ¶ 53. The Board will modify or mitigate an agency-imposed penalty only
when it finds that the agency failed to weigh the relevant factors or that the
penalty clearly exceeds the bounds of reasonableness. Id.
As the administrative judge noted, the deciding official testified that any
one of the charges could have been sufficient for removal. ID at 11. Having
considered the relevant Douglas factors, including the appellant’s medical
conditions as a mitigating factor, we conclude that removal is a reasonable
penalty under the circumstances. See Foreman v. U.S. Postal Service ,
89 M.S.P.R. 328, ¶ 17 (2001) (finding that removal was a reasonable penalty
based on a sustained charge of being AWOL for 16 days when the appellant had
three prior disciplinary actions based on similar offenses and was repeatedly8
warned to provide adequate documentation to substantiate his absences); Maddux
v. Department of the Air Force , 68 M.S.P.R. 644, 645-46 (1995) (holding that
removal is a reasonable penalty for approximately 2 weeks of AWOL, despite the
fact that there were mitigating factors, including the employee’s length of service
and his personal problems); see also Gartner v. Department of the Army ,
104 M.S.P.R. 463, ¶¶ 9-15 (2007) (finding that removal was reasonable for a
sustained charge of excessive absence when the appellant was absent for
333.5 hours during a 6-month period); Cresson v. Department of the Air Force ,
33 M.S.P.R. 178, 184-85 (1987) (finding that removal was a reasonable penalty
for excessive absences, notwithstanding the appellant’s 35 years of service and
the absence of a prior disciplinary record).
Accordingly, we affirm the initial decision as modified.
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.9
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 you10
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: 11
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. 12
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. 13
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 | Martin_BatrinaDC-0752-18-0363-I-1__Final_Order.pdf | 2024-06-13 | BATRINA MARTIN v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-0752-18-0363-I-1, June 13, 2024 | DC-0752-18-0363-I-1 | NP |
1,233 | https://www.mspb.gov/decisions/nonprecedential/Santos_MareneoDC-0752-18-0599-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARENEO SANTOS,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DC-0752-18-0599-I-1
DATE: June 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mareneo Santos , Alexandria, Virginia, pro se.
Jeremiah Crowley , Maxwell Air Force Base, Alabama, 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 administrative judge’s analysis of the appellant’s affirmative defense
of retaliation for equal employment opportunity (EEO) activity, we AFFIRM the
initial decision.
The appellant’s retaliation defense concerns complaints of discrimination
based on race and national origin. These claims arise under 42 U.S.C.
§ 2000e-16, and to prove them, the appellant must show that retaliation was at
least a motivating factor in his removal. Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶¶ 20-22, 30. However, even if the appellant meets his
burden, he will not be entitled to full relief if the agency proves that it would
have taken the same action even absent the prohibited consideration. Wilson v.
Small Business Administration , 2024 MSPB 3, ¶ 18. In this case, the
administrative judge found both that the agency would have taken the same action
absent the appellant’s EEO complaint and that the appellant did not prove that
retaliation was a motivating factor in his removal. Initial Appeal File, Tab 58
at 35-36. To clarify, we agree with the administrative judge that the appellant did
not prove that retaliation was a motivating factor in his removal. Because the
appellant did not prove motivating factor, we do not reach the issue of whether
the agency proved its same-action defense. See Wilson, 2024 MSPB 3, ¶ 13.2
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
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 | Santos_MareneoDC-0752-18-0599-I-1__Final_Order.pdf | 2024-06-13 | MARENEO SANTOS v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DC-0752-18-0599-I-1, June 13, 2024 | DC-0752-18-0599-I-1 | NP |
1,234 | https://www.mspb.gov/decisions/nonprecedential/Burbas_William_F_NY-0752-18-0222-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM F. BURBAS,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
NY-0752-18-0222-I-2
DATE: June 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert L. Boreanaz , Esquire, Buffalo, New York, for the appellant.
Jill M. Skretny and Megan N. Steele , Buffalo, New York, 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 for misconduct. 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 supplement the administrative judge’s discussion of the
appellant’s rehabilitation potential, we AFFIRM the initial decision.
BACKGROUND
The appellant was employed by the agency as a GS-12 Customs and Border
Protection (CBP) Officer in Buffalo, New York. Burbas v. Department of
Homeland Security , MSPB Docket No. NY-0752-18-0222-I-1, Initial Appeal File
(IAF), Tab 8 at 40, Tab 28 at 4. On May 16, 2018, the agency proposed his
removal based on the charge of “exposing [his] penis in the workplace.”
IAF, Tab 8 at 31-33. After considering the appellant’s oral and written replies,
the agency removed the appellant from his position, effective August 30, 2018.
Id. at 40, 42-45, 47-82, 84-147.
The appellant appealed his removal to the Board. IAF, Tabs 1, 4.
The administrative judge noted that it appeared that the appellant was raising
affirmative defenses of whistleblower reprisal and harmful procedural error. IAF,
Tab 4. She informed the appellant of his burden of proof to establish these
affirmative defenses and ordered him to file evidence and argument regarding
these claims. Id. The appellant provided information regarding his claim of
whistleblower reprisal and clarified that he was not raising a claim of harmful2
procedural error. IAF, Tab 6. He did not identify any other affirmative defenses.
The administrative judge issued an order dismissing the appellant’s claim of
whistleblower reprisal. IAF, Tab 17. In an order and summary of telephonic
prehearing conference, the administrative judge identified the following issues for
adjudication: (1) whether the appellant’s removal promoted the efficiency of the
service and was within tolerable bounds of reasonableness; and (2) whether the
appellant was subjected to a disparate penalty. IAF, Tab 26. The parties did not
raise any objections to the order and summary of telephonic prehearing
conference. Thereafter, the administrative judge dismissed the appeal without
prejudice. IAF, Tab 34.
Shortly thereafter, the appeal was refiled. Burbas v. Department of
Homeland Security , MSPB Docket No. NY-0752-18-0222-I-2, Appeal File
(I-2 AF), Tab 1. After holding the appellant’s requested hearing,
the administrative judge issued an initial decision that affirmed the removal.
IAF, Tab 30, Hearing Compact Disc (HCD); I-2 AF, Tab 4, HCD 2, Tab 7,
Initial Decision (I-2 ID). The administrative judge found that the agency proved
its charge, nexus, and the reasonableness of the penalty. I-2 ID at 6-21.
In discussing the reasonableness of the penalty, the administrative judge
separately discussed and found unpersuasive the appellant’s claim of disparate
penalties. I-2 ID at 15-20. In a footnote in the initial decision, the administrative
judge stated that she had previously dismissed the appellant’s claim of
whistleblower reprisal because the appellant had failed to raise a prima facie case
of whistleblower retaliation.2 I-2 ID at 6 n.9.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 3. The agency has responded in opposition to the petition for review, to
which the appellant has replied. PFR File, Tabs 8-9.
2 The appellant does not challenge, nor do we discern any reason to disturb, the
administrative judge’s finding in this regard.3
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly sustained the agency’s charge that the
appellant exposed himself in the workplace.
The administrative judge found that the appellant admitted to exposing
himself in the workplace. I-2 ID at 5-6; IAF, Tab 28 at 4-5 (stipulations 4-6).
On review, the appellant does not challenge, and we discern no reason to disturb,
the administrative judge’s well-reasoned finding that the agency proved its
charge. I-2 ID at 5-6; 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 made
reasoned conclusions); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (same). Instead, the appellant raises a claim of a
violation of due process and generally disagrees with aspects of the
administrative judge’s penalty analysis. PFR File, Tab 3 at 7-12.
The administrative judge properly found that the agency established nexus.
In addition to proving its charge by preponderant evidence, the agency
must also establish a nexus between the charged misconduct and the efficiency of
the service. 5 U.S.C. § 7513(a). The administrative judge found that there is
sufficient nexus between the charged misconduct and the efficiency of the service
where, as here, the misconduct occurred at work.3 I-2 ID at 7 (citing Miles v.
3 In addressing nexus, the administrative judge cited Canada v. Department of
Homeland Security , 113 M.S.P.R. 509, ¶ 11 (2010), for the proposition that an agency
may show a nexus by the following three means: (1) a rebuttable presumption in certain
egregious circumstances; (2) preponderant evidence that the misconduct adversely
affects the appellant’s or coworkers’ job performance or the agency’s trust and
confidence in the appellant’s job performance; or (3) preponderant evidence that the
misconduct interfered with or adversely affected the agency’s mission. This is the
standard to show a nexus between off-duty misconduct and the efficiency of the service.
Kruger v. Department of Justice , 32 M.S.P.R. 71, 74 (1987). The administrative judge,
however, correctly recognized that the sustained charge involved on-duty misconduct,
and she properly applied the standard for on-duty misconduct in determining that the
agency established nexus. 4
Department of the Navy , 102 M.S.P.R. 316, ¶ 11 (2006)). We discern no basis for
disturbing this finding on review. I-2 ID at 7.
We need not address the merits of the appellant’s due process and harmful
procedural error claims.
The appellant asserts on review that the agency violated his due process
rights and/or committed harmful procedural error when the deciding official
considered certain Douglas factors as aggravating factors even though they were
not considered as such in the notice of proposed removal. PFR File, Tab 3 at 7-9.
The appellant, however, did not raise a claim of due process violation below.
The Board will generally 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 the party’s due diligence. Banks v. Department of
the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant has not made such a
showing here; thus, we need not further address this claim.
In addition, the appellant did not explicitly identify a harmful procedural
error claim either in his initial appeal or in any of his pleadings below. To the
extent he argues otherwise, the Board considers a nonexhaustive list of factors in
determining whether an appellant is deemed to have waived or abandoned a
previously raised affirmative defense. Thurman v. U.S. Postal Service ,
2022 MSPB 21, ¶¶ 17-18. These factors include the following: (1) the
thoroughness and clarity with which the appellant raised his affirmative defense;
(2) the degree to which the appellant continued to pursue his affirmative defense
in the proceedings below after initially raising it; (3) whether the appellant
objected to a summary of the issues to be decided that failed to include the
potential affirmative defense when he was specifically afforded an opportunity to
object and the consequences of his failure were made clear; (4) whether the
appellant raised his affirmative defense or the administrative judge’s processing
of the affirmative defense claim in his petition for review; (5) whether the
appellant was represented during the course of his appeal before the5
administrative judge and on petition for review, and if he was not, the level of
knowledge of Board proceedings possessed by the appellant; and (6) the
likelihood that the presumptive abandonment of the affirmative defense was the
product of confusion, or misleading or incorrect information provided by the
agency or the Board. Id., ¶ 18.
Here, in response to the administrative judge’s affirmative defenses order,
the appellant explicitly stated that he was not raising a harmful procedural error
claim. IAF, Tab 4, Tab 6 at 6. The appellant had an opportunity to object to the
order and summary of telephonic prehearing conference, which did not include
any affirmative defenses amongst the issues to be adjudicated, but he did not.
IAF, Tab 26 at 1-2. Throughout this appeal, the appellant was represented by an
attorney, and there is no evidence that his abandonment of harmful procedural
error claim was due to confusion, or misleading or incorrect information provided
by the administrative judge or the agency. Under these circumstances, the
appellant is deemed to have abandoned any such claim.
The administrative judge properly found that removal was a reasonable penalty.
In sustaining the removal penalty, the administrative judge considered the
factors set forth in Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06
(1981), and concluded that the deciding official considered the relevant factors
and exercised her discretion within the tolerable limits of reasonableness. I-2 ID
at 7-20. On petition for review, the appellant challenges the administrative
judge’s analysis of Douglas factor 6 (consistency of the penalty with those
imposed upon other employees for the same or similar offenses), Douglas factor 7
(the consistency of the penalty with any applicable agency table of penalties),
Douglas factor 8 (the notoriety of the offense or its impact upon the reputation of
the agency), Douglas factor 9 (the clarity with which the employee was on notice
of any rules that were violated in committing the offense), and Douglas factor 10
(the potential for the employee’s rehabilitation). PFR File, Tab 3 at 9-12. The6
administrative judge found, and we agree, that the deciding official considered
the relevant Douglas factors in making her decision to remove the appellant.
When the agency’s charge is sustained, as in this case, the Board will defer
to the agency’s penalty determination unless the penalty exceeds the range of
allowable punishment specified by statute or regulation, or unless the penalty is
“so harsh and unconscionably disproportionate to the offense that it amounts to an
abuse of discretion.” Batten v. U.S. Postal Service , 101 M.S.P.R. 222, ¶ 9,
aff’d, 208 F. App’x 868 (Fed. Cir. 2006). That is because the employing agency,
and not the Board, has primary discretion in maintaining employee discipline and
efficiency. Id. The Board will not displace management’s responsibility, but
instead will ensure that managerial judgment has been properly exercised. Id.
Mitigation of an agency-imposed penalty is appropriate only when the agency
failed to weigh the relevant factors or when the agency’s judgment clearly
exceeded the limits of reasonableness. Id., ¶ 11. The deciding official need not
show that she considered all the mitigating factors, and the Board will
independently weigh the relevant factors only if the deciding official failed to
demonstrate that she considered any specific, relevant mitigating factors before
deciding on a penalty. Id. For the reasons stated below, the appellant’s
arguments on review do not provide a basis for disturbing the agency’s penalty
determination.
Regarding Douglas factor 6, the administrative judge considered the cases
of several other employees whom the appellant identified (employees # 6, 3, 2,
and 5), but she found that none of them were similarly situated to the appellant
for purposes of penalty. I-2 ID at 15-18. The appellant disputes these findings
on review. PFR File, Tab 3. For the reasons explained in the initial decision, we
agree with the administrative judge that employees # 6, 3, and 2 were not
similarly situated to the appellant. I-2 ID at 15-17; see Singh v. U.S. Postal
Service, 2022 MSPB 15, ¶ 13 (holding that the universe of potential comparators
should be limited to those employees whose misconduct and/or other7
circumstances closely resemble those of the appellant). We also agree with the
administrative judge that employee #5’s misconduct was most similar to the
appellant’s. I-2 ID at 17-18. Nevertheless, the administrative judge found that
this employee was not a proper comparator because, unlike the appellant, he was
not part of a Tactical Terrorism Response Team. I-2 ID at 18. However, even
assuming that the administrative judge was wrong and employee #5 was a proper
comparator, we find that the agency did not treat him more leniently; it proposed
his removal, and he resigned before the agency issued its decision. Id. In other
words, employee #5’s case turned out differently than the appellant’s not because
the agency issued a lesser penalty, but because the employee chose to resign. For
these reasons, we find that consistency of the penalty is not a mitigating factor.
With respect to Douglas factor 7, the administrative judge considered the
deciding official’s testimony that the type of misconduct in which the appellant
engaged was not one of the listed offenses and that the closest offense was
“inappropriate and/or unwelcome verbal or physical behavior of a sexual nature.”
I-2 ID at 11-12; HCD (testimony of the deciding official); IAF, Tab 9 at 103.
As noted by the administrative judge, the deciding official explained that,
although that offense had a recommended penalty range of written reprimand to
30-day suspension for a first offense, the appellant’s conduct was more egregious
because it involved actual exposure of his genitals and because he admitted to a
prior incident of self-exposure. I-2 ID at 12; HCD (testimony of the deciding
official). The appellant argues that the penalty of removal is unwarranted
because the appellant’s offense “does not fit square into any offense listed [on the
agency’s table of penalties].” PFR File, Tab 3 at 12.
The Board and the U.S. Court of Appeals for the Federal Circuit have held
that the table of penalties are merely a guide and are not mandatory unless the
agency has a specific statement making the table mandatory and binding rather
than advisory. Farrell v. Department of the Interior , 314 F.3d 584, 590-92 (Fed.
Cir. 2002); Taylor v. Department of Veterans Affairs , 112 M.S.P.R. 423, ¶ 108
(2009), modified on other grounds by Lewis v. Department of Veterans Affairs ,
113 M.S.P.R. 657 (2010). Here, the “Instructions on Use” for the table of
penalties state that the table should be used “as a guide” and that the “absence of
a specific offense covering an act does not mean that such an act is condoned,
permissible, or would not result in disciplinary or adverse action.” IAF, Tab 9
at 98.
With respect to Douglas factor 8, the administrative judge considered the
deciding official’s testimony that the appellant’s incident of self-exposure had the
potential to seriously harm the reputation of the agency. I-2 ID at 12;
HCD (testimony of the deciding official). The appellant argues that, although the
deciding official identified potential notoriety as an aggravating factor, it should
not be considered as such because she conceded that no negative consequences
materialized from his misconduct. PFR File, Tab 3 at 9. It is proper for an
agency to consider the harm that the appellant’s misconduct could have caused
even if the misconduct did not actually result in such harm. See Chandler v.
Social Security Administration , 80 M.S.P.R. 542, ¶ 12 (1999) (finding the
“potential for harm to the agency’s basic mission” was an aggravating favor in a
penalty analysis); Jones v. Department of the Navy , 67 M.S.P.R. 6, 9 (1995)
(same).
With respect to Douglas factor 9, the administrative judge considered that
the deciding official testified that it is “common sense” that one should not
expose oneself to one’s coworkers, and that some things are so inherently wrong
that one need not have them written in an agency’s standards of conduct for it to
constitute proper notice. I-2 ID at 12. The appellant argues that he did not have
clear notice that exposing himself was inappropriate because he had a prior
incident of self-exposure, of which his supervisors were aware, and that he was
not reprimanded or otherwise disciplined following that incident.4 PFR File,
4 The proposal notice advised the appellant that the agency took this prior incident into
consideration when deciding to remove him. IAF, Tab 8 at 31-32.9
Tab 3 at 11. He observes that the deciding official’s testimony that it is
“common sense” that one should not expose oneself to one’s coworkers cannot be
considered clear notice of what is considered misconduct. Id.
Here, although the agency has not identified a specific agency policy that
prohibits the conduct at issue, 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); 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). The creation of such all-encompassing
policies would not be feasible. Brown, 15 M.S.P.R. at 233. Rather, an agency
may reasonably require Federal employees to exercise “good judgment,
notwithstanding the lack of literal guidance from any agency rule, regulation, or
other statement of agency policy.” Boyer v. Department of the Navy , 56 F.3d 84,
*2 (Fed. Cir. 1995) (Table);5 Bize v. Department of the Treasury , 3 M.S.P.R. 155,
161 (1980). In this case, common sense should have forewarned the appellant
that his action was improper and could lead to discipline. Brousseau v. United
States, 640 F.2d 1235, 1247 (Ct. Cl. 1981).6 Based on the foregoing, we find that
the agency’s failure to identify a specific policy implicated by the appellant’s
misconduct is not dispositive.7
5 The Board may follow a nonprecedential decision of the Federal Circuit when, as here,
it finds its reasoning persuasive. Morris v. Department of the Navy , 123 M.S.P.R. 662,
¶ 13 n.9 (2016).
6 The Board may follow a decision of the U.S. Court of Federal Claims when, as here, it
finds its reasoning persuasive. Special Counsel ex rel. Hardy v. Department of Health
and Human Services , 117 M.S.P.R. 174, ¶ 7 n.6 (2011).
7 The appellant asserts that the administrative judge abused her discretion in not
allowing testimony surrounding the appellant’s “prior admitted similar misconduct and
the reaction of his supervisors to said misconduct.” PFR File, Tab 3 at 10-11.
He indicates that this testimony would have shown that he was never put on clear notice
or warned that such conduct would result in any discipline. Id. An administrative
judge has broad discretion to regulate the course of the hearing and to exclude evidence
and witnesses that have not been shown to be relevant, material, and nonrepetitious.10
With respect to Douglas factor 10, the appellant’s potential for
rehabilitation, the administrative judge considered the deciding official’s
testimony that this factor weighed against the appellant because he did not take
any responsibility for his misconduct and insisted that he exposed himself to his
coworker as a joke. I-2 ID at 13; HCD (testimony of the deciding official).
The appellant asserts that his personal decision to seek medical help through
counseling supports mitigation of the penalty. PFR File, Tab 3 at 9-10. In his
oral and written replies to the proposed removal, the appellant raised this issue
and provided a June 18, 2018 note signed by a licensed clinical social worker
stating that he “self-referred to [Veterans Affairs] care as a pro-active step to
enhance overall well-being.” IAF, Tab 8 at 61, 88, 141, 143. Because neither the
administrative judge nor the deciding official addressed this issue in assessing the
appellant’s potential for rehabilitation, we modify the initial decision to consider
whether the appellant’s decision to seek counseling is entitled to mitigating
weight.
Here, the appellant does not explain or provide evidence as to how any
counseling addressed the misconduct at issue. Even if he had provided such
evidence, a “forward-looking” analysis for an appellant’s future behavior does
not outweigh the agency’s legitimate apprehension as to his ability to make
proper judgment calls during his day-to-day duties. See Quander v. Department
of Justice, 22 M.S.P.R. 419, 422 (1984), aff’d, 770 F.2d 180 (Fed. Cir.
1985) (Table). We therefore find that the appellant’s attendance of counseling is
not entitled to significant mitigating weight and does not provide a basis for
disturbing the deciding official’s conclusions regarding the appellant’s
rehabilitation potential.
Thomas v. U.S. Postal Service , 116 M.S.P.R. 453, ¶ 4 (2011); 5 C.F.R. § 1201.41(b)(8),
(10). The Board will not reverse an administrative judge’s rulings on such matters
absent an abuse of discretion. Ryan v. Department of the Air Force , 117 M.S.P.R. 362,
¶ 5 (2012). The appellant has not shown how any such testimony would have been
material to the outcome of this case. Thus, we find that the administrative judge did not
abuse her discretion in disallowing this testimony.11
Based on our review of the record, we agree with the administrative judge
that the deciding official properly considered the relevant Douglas factors and
that the penalty of removal does not exceed the tolerable bounds of
reasonableness. I -2 ID at 9-21; see Alexander v. U.S. Postal Service , 67 M.S.P.R.
183, 186, 191 (1995) (finding that the appellant’s self-exposure and other
misconduct was sufficiently serious to warrant removal, despite the appellant’s
32 years of Federal service and lack of prior discipline); see also Walker v.
Department of the Navy , 59 M.S.P.R. 309, 318 (1993) (reversing the
administrative judge’s mitigation of the penalty of removal where the appellant
exposed himself to a female subordinate while on duty on two occasions, despite
evidence that his medical and psychological condition may have contributed to
his behavior). This is so especially given that the appellant is a law enforcement
officer and is held to a higher standard. See Reid v. Department of the Navy ,
118 M.S.P.R. 396, ¶ 26 (2012).
Thus, we affirm the initial decision, as modified herein.
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
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.12
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. 13
(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: 14
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.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).
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. 15
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.16 | Burbas_William_F_NY-0752-18-0222-I-2__Final_Order.pdf | 2024-06-13 | WILLIAM F. BURBAS v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. NY-0752-18-0222-I-2, June 13, 2024 | NY-0752-18-0222-I-2 | NP |
1,235 | https://www.mspb.gov/decisions/nonprecedential/Thorogood_Teddie_G_DC-0752-16-0347-X-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TEDDIE G. THOROGOOD,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-0752-16-0347-X-1
DATE: June 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Laura A. O’Reilly , Esquire, and Neil C. Bonney , Esquire,
Virginia Beach, Virginia, for the appellant.
Kathleen H. Lambert and Robert Pirone , Portsmouth, Virginia,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
In an August 24, 2018 compliance initial decision, the administrative judge
granted the appellant’s petition for enforcement and found the agency 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).
noncompliance with the parties’ settlement agreement, which had been entered
into the record for enforcement by the Board in the underlying adverse action
appeal. Thorogood v. Department of Homeland Security , MSPB Docket No. DC-
0752-16-0347-C-1, Compliance Initial Decision (CID) (Aug. 24, 2018);
Compliance File (CF), Tab 17, CID; Thorogood v. Department of Homeland
Security, MSPB Docket No. DC-0752-16-0347-I-1, Initial Decision (ID) (June 17,
2016); Initial Appeal File, Tab 52, ID. For the reasons discussed below, we find
the agency in compliance and DISMISS the petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
The appellant’s petition for enforcement contended that the agency
breached the settlement agreement by failing to expunge records referencing the
adverse actions at issue in her underlying case, MSPB Docket No. DC-0752-16-
0347-I-1. CF, Tab 1. The appellant stated that she discovered this failure when
she received a notice of intent to revoke her security clearance that referred to the
agency’s proposal to remove her. Id. at 4. The appellant stated that she also
discovered in her official personnel file a Standard Form (SF) 50 that showed the
cancellation of her demotion to a lower grade. CF, Tab 15 at 7. In the
compliance initial decision, the administrative judge found that the agency had
violated the settlement agreement by retaining records pertaining to these actions
in the appellant’s official personnel file and in the files of the agency’s Coast
Guard Investigative Service (CGIS). CID at 4-5. The administrative judge
ordered the agency to expunge all records related to accusations and disciplinary
actions involving the appellant, such as the proposed removal notice, the decision
on the proposed removal imposing a demotion, and all investigations and related
documents, including the SF-50, from all agency records. CID at 5-6.
On September 12 and 17, 2018, the agency submitted to the Board evidence
regarding its compliance. Thorogood v. Department of Homeland Security ,
MSPB Docket No. DC-0752-16-0347-X-1, Compliance Referral File (CRF),2
Tabs 1, 3. The evidence includes a sworn declaration by a Human Resources
Specialist that all SF-50s related to the appellant’s demotion were removed from
her official personnel file, CRF, Tab 3, and sworn declarations by the Legal
Counsel of the CGIS and the Director of the Coast Guard Security Center
concerning databases that retain some reference to the appellant’s records solely
to permit limited access for Security Center employees conducting background
checks related to security clearance adjudications, CRF, Tab 1. The latter
declarations state that notifications are included that the appellant’s records are
inadmissible and have been expunged in accordance with the Board’s decision, id.
at 8, and that “if such data is developed during the course of future background
checks, it must be dismissed as mitigated.” Id. at 6-7.
The Board’s acknowledgement order notified the appellant that she could
respond to the agency’s evidence of compliance within 20 days of the date of
service of the agency’s submission. CRF, Tab 2 at 2. It also informed the
appellant that, if she did not respond, the Board may assume that the appellant is
satisfied and dismiss the petition for enforcement. Id. The appellant has not
responded to the agency’s submission.
Accordingly, in light of the agency’s evidence and the appellant’s failure to
respond, we find the agency in compliance and dismiss the petition for
enforcement. This is the final decision of the Merit Systems Protection Board in
this compliance proceeding. Title 5 of the Code of Federal Regulations,
section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If3
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your 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.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
(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.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. 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 | Thorogood_Teddie_G_DC-0752-16-0347-X-1__Final_Order.pdf | 2024-06-13 | TEDDIE G. THOROGOOD v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-0752-16-0347-X-1, June 13, 2024 | DC-0752-16-0347-X-1 | NP |
1,236 | https://www.mspb.gov/decisions/nonprecedential/Duvuvuei_Rose_M_CH-0752-19-0405-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROSE M. DUVUVUEI,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
CH-0752-19-0405-I-1
DATE: June 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rose M. Duvuvuei , Delaware, Ohio, pro se.
Juliana B. Pierce , Esquire, 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 removal appeal as untimely filed without a showing of good cause
for the delay. 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).
On review, the appellant repeats arguments that her filing delay was based
on incorrect advice received from various persons, and that her delay was caused
by her medical conditions.2 Petition for Review (PFR) File, Tab 1 at 1-3. The
administrative judge addressed these arguments below, and we see no reason to
disturb his findings regarding these issues on review. Initial Appeal File, Tab 12,
Initial Decision (ID) at 5-7; see Scoggins v. Department of the Army ,
123 M.S.P.R. 592, ¶ 13 (2016) (finding that mere disagreement with the
administrative judge’s findings does not warrant Board review); 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 he considered the evidence as a whole, drew
appropriate inferences, and made reasoned conclusions).
The appellant argues for the first time on review that her delay was caused
by her waiting for documents requested under the Freedom of Information Act
(FOIA). PFR File, Tab 1 at 1. 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
2 The appellant does not challenge the administrative judge’s determination that her
appeal was untimely filed by 1 day. Initial Appeal File, Tab 12, Initial Decision at 2-3.
We see no reason to disturb this finding on review.2
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). A delay in
filing due to gathering information and evidence, either through FOIA or
otherwise, is insufficient to establish good cause for an untimely appeal. See
Jones v. Social Security Administration , 111 M.S.P.R. 498, ¶ 11 (2009) (finding
that an appellant’s belief that he needed to obtain information pursuant to a FOIA
request did not excuse a delay in filing). Accordingly, her delay while waiting on
FOIA documents is not material and thus does not provide a basis for review.
The remainder of the appellant’s arguments go to the merits of the agency’s
removal action, which we need not address on review, having found that the
administrative judge correctly determined that the appellant’s initial appeal was
untimely filed without good cause. ID at 3-8.
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
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
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 obtain4
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 5
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. 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 | Duvuvuei_Rose_M_CH-0752-19-0405-I-1__Final_Order.pdf | 2024-06-13 | ROSE M. DUVUVUEI v. DEPARTMENT OF DEFENSE, MSPB Docket No. CH-0752-19-0405-I-1, June 13, 2024 | CH-0752-19-0405-I-1 | NP |
1,237 | https://www.mspb.gov/decisions/nonprecedential/Lamb_Timothy_A_SF-844E-20-0076-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY A. LAMB,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-844E-20-0076-I-1
DATE: June 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Timothy A. Lamb , Lake Oswego, Oregon, 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 his appeal attempting to relitigate an Office of Personnel Management
(OPM) reconsideration decision, which was previously considered by the Board,
as barred by the doctrine of res judicata, or, alternatively, by the doctrine 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).
collateral estoppel. On petition for review, the appellant argues that neither res
judicata nor collateral estoppel apply because the Board’s prior decision was
based on evidence that is no longer valid. Petition for Review (PFR) File, Tab 1
at 21-22. He also claims that the administrative judge improperly denied him a
hearing and that he has new and material evidence,2 and he describes his medical
history in support of his attempt to obtain disability retirement benefits under the
Federal Employees’ Retirement System (FERS). Id. at 4-8. 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 as
barred by the doctrine of res judicata. Initial Appeal File, Tab 11, Initial
Decision. The appellant’s claim that he has new and material evidence is not
supported by the record and does not provide a basis to disturb the initial
decision, as his “new and material evidence” appears to be related to his medical
condition, which is not at issue now before the Board. See Jackson v. Department
2 The appellant has not submitted any additional evidence with his petition for review,
despite his claims that such evidence exists. PFR File, Tabs 1, 4.2
of Justice, 10 M.S.P.R. 501, 502-03 (1982) (stating that evidence that is not
relevant to a fact that is directly in dispute in an appeal does not constitute new
and material evidence under 5 C.F.R. § 1201.115). In addition, such evidence
does not establish an exception to the doctrine of res judicata, such as fraud,
concealment, or misrepresentation by OPM. See Anderson v. Department of
Transportation, 46 M.S.P.R. 341, 349 (1990), aff’d, 949 F.2d 404 (Fed. Cir.
1991) (Table).
Regarding the appellant’s request for a hearing, the Board’s regulations do
not provide for a hearing at the petition for review level. To the extent the
appellant is asserting that the administrative judge erred by not affording him a
hearing below, we find that he was not entitled to one. An appellant is entitled to
a hearing either when the Board’s jurisdiction is in question and he makes
nonfrivolous allegations of jurisdiction, or, generally, when he requests a hearing
on the merits. Liu v. Department of Agriculture , 106 M.S.P.R. 178, ¶ 8 (2007)
(explaining that an appellant has the burden of establishing jurisdiction and
providing that an appellant is entitled to a hearing on the question of jurisdiction
when he has presented nonfrivolous allegations of jurisdiction); 5 C.F.R.
§ 1201.24(d) (providing the appellant with a general right to a hearing on the
merits of his case). In this case, jurisdiction is not in dispute, as the Board has
jurisdiction over claims for benefits under FERS pursuant to 5 U.S.C. § 8461(e)
(1), and the merits of the appeal have already been adjudicated. Lamb v. Office of
Personnel Management , MSPB Docket No. SF-844E-15-0348-I-1, Appeal File,
Tab 27. The appellant has not pointed to any law, rule, or regulation that
provides him with a right to a hearing on the issue of whether the doctrines of res
judicata or collateral estoppel preclude the instant appeal. 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) 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 | Lamb_Timothy_A_SF-844E-20-0076-I-1__Final_Order.pdf | 2024-06-12 | TIMOTHY A. LAMB v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-844E-20-0076-I-1, June 12, 2024 | SF-844E-20-0076-I-1 | NP |
1,238 | https://www.mspb.gov/decisions/nonprecedential/Doe_John_CH-0843-22-0245-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN DOE1,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-0843-22-0245-I-1
DATE: June 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL2
Algis Sirvaitis , Esquire, Willoughby, Ohio, for the estate of Dan M.
Krysty.
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.
1 For the reasons explained below regarding the circumstances under which this appeal
was filed and docketed, the Board finds it appropriate to caption this appeal as “John
Doe.” Additionally, the initial decision in this matter has been recaptioned as “John
Doe,” and a reference to the appellant’s name in the initial decision has been changed to
“John Doe.”
2 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
Algis Sirvaitis, Esquire, executor of the estate of Dan M. Krysty, a former
annuitant under the Federal Employees’ Retirement System (FERS), has filed a
petition for review of the initial decision, which dismissed his appeal of the
agency’s final decision denying him lump sum death benefits for failure to
prosecute and as untimely filed without good cause shown. For the reasons set
forth below, we DISMISS the petition for review, VACATE the initial decision,
and DISMISS the appeal.
BACKGROUND
Dan M. Krysty was an annuitant under FERS at the time of his death.
Mr. Sirvaitis had been his court-appointed guardian for many years and, upon
Mr. Krysty’s death, was appointed as the executor of his estate. Initial Appeal
File (IAF), Tab 1 at 1, 10. In that capacity, he applied for FERS lump sum death
benefits on behalf of Mr. Krysty’s daughter. Id. at 5. The Office of Personnel
Management denied the application, finding that Mr. Sirvaitis was not the
designated beneficiary of Mr. Krysty’s death benefits and that he was not
otherwise entitled to the benefits. Id. at 8-9. The instant Board appeal followed.
In a June 27, 2022 initial decision, the administrative judge dismissed the
appeal for failure to prosecute and as untimely filed without good cause shown.
IAF, Tab 9, Initial Decision at 1, 3-4. On August 24, 2022, Mr. Sirvaitis filed an
untimely petition for review, arguing, among other things, that, although he filed
the application for death benefits on behalf of the decedent’s daughter, he did not
know where she was, had been unable to locate her, and that “the application filed
by [him] should have been considered without burdening the estate and depriving
[Mr. Krysty’s heir]” of benefits. Petition for Review (PFR) File, Tab 1 at 1-2,
Tab 5 at 1. The agency responded in opposition to the petition for review,
asserting that the petition does not meet the criteria for review. PFR File, Tab 4
at 4. 2
On May 22, 2023, the Board issued an order directing the appellant and/or
Mr. Sirvaitis to submit evidence and/or argument establishing that he was the
designated representative of the appellant. PFR File, Tab 7 at 2. The order
allowed the agency to reply to any submissions. The order also instructed that if
the appellant and/or Mr. Sirvaitis did not provide the aforementioned evidence
and/or argument, both parties should address whether the appeal should have been
dismissed by the administrative judge because Mr. Sirvaitis lacked the proper
authority to act for the appellant. Id. at 2-3. Neither the appellant, nor Mr.
Sirvaitis, nor the agency responded to the order.
ANALYSIS
The Board’s regulations provide that only an appellant, her designated
representative, or a party properly substituted under 5 C.F.R. § 1201.353 may file
an appeal. 5 C.F.R. § 1201.24(a). All appeals must contain the signature of the
appellant or, if the appellant has a representative, of the representative. 5 C.F.R.
§ 1201.24(a)(9). Similarly, the regulations provide that a petition for review must
contain the signature of the party or their representative. 5 C.F.R. § 1201.114(c).
Although Mr. Sirvaitis signed the initial Board appeal, IAF, Tab 1 at 1,
nothing in the record below shows that the appellant designated him to act on her
behalf. The designation of representative form submitted with the initial appeal
is signed by Mr. Sirvaitis, but not by the appellant. Id. at 8. Similarly, the
petition for review is signed by Mr. Sirvaitis, but not the appellant. PFR File,
Tab 1. As noted above, despite the Board’s order seeking a designation of
representative, neither the appellant nor Mr. Sirvaitis responded.
When a petition for review is not signed by the appellant or her designated
representative, the Board has dismissed the petition for review. E.g., Schaberg v.
3 The regulation regarding substitution has no application here. It addresses the
situation when an appellant dies or is otherwise unable to pursue an appeal, and another
individual is allowed to continue the appeal. 5 C.F.R. § 1201.35. Here, while Mr.
Krysty has died, Mr. Sirvaitis purportedly filed the appeal on behalf of Mr. Krysty’s
living daughter. 3
U.S. Postal Service , 104 M.S.P.R. 621, ¶¶ 6-7 (2007); Staines v. U.S. Postal
Service, 65 M.S.P.R. 84, 85 (1994). As those are the facts here, consistent with
the above decisions, we dismiss the petition for review. Similarly, because
Mr. Sirvaitis was not the appellant’s designated representative below, the appeal
should not have been docketed or, having been docketed, the administrative judge
should have dismissed the appeal. See 5 C.F.R. § 1201.24(a); see also Visconti v.
Environmental Protection Agency , 78 M.S.P.R. 17, 21 (1998) (finding that an
administrative judge should not have dismissed an appeal without prejudice based
on the request of an individual who had not been designated as the appellant’s
representative).
Accordingly, we dismiss the appeal and the petition for review. This is the
final decision of the Merit Systems Protection Board.
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
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
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.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
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. 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 | Doe_John_CH-0843-22-0245-I-1__Final_Order.pdf | 2024-06-12 | null | CH-0843-22-0245-I-1 | NP |
1,239 | https://www.mspb.gov/decisions/nonprecedential/Fleming_Kishma_L_AT-844E-19-0309-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KISHMA L. FLEMING,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-844E-19-0309-I-1
DATE: June 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kishma L. Fleming , Augusta, Georgia, pro se.
Christy Miller , 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 by the Office of Personnel Management
(OPM) denying the appellant’s Federal Employees’ Retirement System (FERS)
disability retirement application. For the reasons set forth below, the appellant’s
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).
petition for review is DISMISSED as untimely filed without good cause shown.
5 C.F.R. § 1201.114(e), (g).
In the June 26, 2019 initial decision, the administrative judge instructed the
appellant that the initial decision would become final on July 31, 2019, unless a
petition for review was filed by that date. Initial Appeal File (IAF), Tab 11,
Initial Decision (ID) at 8. On October 8, 2019, over 2 months after the finality
date, the appellant filed her petition for review. Petition for Review (PFR) File,
Tab 1.
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
she received the initial decision more than 5 days after it was issued, within
30 days after she 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 she received the initial decision more than 5 days after it was
issued. PFR File, Tab 1. Moreover, the appellant, who had registered as an
e-filer, is deemed to have received the initial decision, hearing order, and the
order regarding closing the record on the date of electronic submission. IAF,
Tab 1 at 2; see Laboy v. U.S. Postal Service , 103 M.S.P.R. 570, ¶ 6 (2006);
5 C.F.R. § 1201.14(m) (2019). Thus, the deadline to file a petition for review
was July 31, 2019. Her October 2019 petition for review of the initial decision
was untimely filed by roughly 2 months. ID at 8; 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 filing delay. Palermo, 120 M.S.P.R. 694,
¶ 4; 5 C.F.R. §§ 1201.113(d), 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 showing of due2
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 limits or of unavoidable casualty or misfortune that
shows a causal relationship to her inability to timely file her petition. Id.
In an acknowledgment letter dated October 10, 2019, the Acting Clerk of
the Board informed the appellant that her petition for review was untimely filed
and that an untimely filed 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 4 at 2-3. The Acting Clerk provided specific instructions regarding
the requirements for such a motion, as well as a sample “Motion to Accept Filing
as Timely or to Waive Time Limit” form, and allowed the appellant until
October 25, 2019, to submit the motion. Id. at 2, 8-9. The Acting Clerk
additionally informed the appellant of how to establish good cause based on an
illness that affected the appellant’s ability to file on time. Id. at 8 n.1.
Finally, the Acting Clerk expressly informed the appellant that, if she did not
submit the requisite motion, “the Board [might] issue an order dismissing [her]
petition for review as untimely, which would result in the initial decision
becoming the Board’s final decision.” Id. at 3.
The appellant did not respond to the Acting Clerk’s letter. In her petition
for review, the appellant asserts that she was not notified of the hearing below,
and that her failure to attend the hearing resulted in the closing of her case.
PFR File, Tab 1 at 3. She additionally asserts that she is sick and needs help.
PFR File, Tab 2 at 5. We find that the appellant has failed to establish good
cause for her untimely petition for review.
The administrative judge issued an order scheduling both the prehearing
conference and the hearing. IAF, Tab 6. She electronically served the parties the
same day. Id. at 4. However, she cancelled the hearing after the appellant failed
to file prehearing submissions or attend the prehearing conference. IAF, Tab 8
at 1. This order was also served on the date of issuance. Id. at 6. As an e-filer,3
the appellant is deemed to have received these orders when they were issued.
Laboy, 103 M.S.P.R. 570, ¶ 6.
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 or a request for an extension of time. Lacy v. Department of the
Navy, 78 M.S.P.R. 434, 437 (1998). The appellant here has failed to provide any
of the requisite medical evidence or explanation of how her illness prevented her
from timely filing an appeal or a request for an extension of time. Although the
appellant is acting pro se, the 2-month filing delay is significant. See Bilbrew v.
U.S. Postal Service , 111 M.S.P.R. 34, ¶ 12 (2009) (finding a filing delay of
2 months was significant, even for a pro se appellant). Because the appellant has
not shown that she exercised due diligence or ordinary prudence under the
particular circumstances of the case, her petition for review must be dismissed as
untimely filed without good cause shown.
Accordingly, we dismiss the petition for review as untimely filed without a
showing of good cause for the delay. 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 OPM’s
reconsideration decision denying the appellant’s FERS disability retirement
application.
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. 4
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. 5
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 the6
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 of7
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. 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 | Fleming_Kishma_L_AT-844E-19-0309-I-1__Final_Order.pdf | 2024-06-12 | KISHMA L. FLEMING v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-844E-19-0309-I-1, June 12, 2024 | AT-844E-19-0309-I-1 | NP |
1,240 | https://www.mspb.gov/decisions/nonprecedential/Davis_Sharon_SF-0752-17-0435-I-1 and SF-0752-18-0191-I-1_Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHARON DAVIS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBERS
SF-0752-17-0435-I-1
SF-0752-18-0191-I-1
DATE: June 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Steve Newman , Esquire, New York, New York, for the appellant.
Thomas L. Davis and Omar Qudrat , Los Angeles, 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 petitions for review in the above-captioned appeals,
which dismissed her first appeal as moot, affirmed her removal in her second
appeal, and found that she failed to prove her affirmative defenses. 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 these 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 these appeals, we JOIN them
for adjudication on review under 5 C.F.R. § 1201.36.2 We conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petitions for review. Therefore, we DENY the petitions for review and AFFIRM
the initial decisions, except as expressly MODIFIED to supplement the
administrative judge’s analysis of the appellant’s affirmative defenses of
(1) equal employment opportunity (EEO) retaliation and (2) retaliation for filing a
Board appeal wherein she alleged EEO retaliation. 5 C.F.R. § 1201.113(b).
The appellant provides a number of documents with her first petition for
review. Davis v. Department of Veterans Affairs , MSPB Docket No. SF-0752-17-
0435-I-1, Petition for Review (0435 PFR) File, Tab 1 at 8-23. She asserts that
she did not submit these documents to the administrative judge because neither
she nor her union representative knew how to submit documents. Id. at 4. To the
extent that her union representative failed to submit these documents below, the
appellant is responsible for the errors of her chosen representative. Sofio v.
Internal Revenue Service , 7 M.S.P.R. 667, 670 (1981). We find that these
documents do not warrant disturbing the initial decision because the appellant has
2 Joinder of two or more appeals filed by the same appellant is appropriate when doing
so would expedite case processing and will not adversely affect the parties’ interests.
Doe v. Pension Benefit Guaranty Corporation , 117 M.S.P.R. 579, ¶ 23 (2012); 5 C.F.R.
§ 1201.36(a)(2), (b). We find that these criteria are satisfied here.2
not shown that they were unavailable before the record closed despite her due
diligence or that they are of sufficient weight to warrant a different outcome. See
Cleaton v. Department of Justice , 122 M.S.P.R. 296, ¶ 7 (2015), aff’d, 839 F.3d
1126 (Fed. Cir. 2016); 5 C.F.R. § 1201.115(d).
The appellant asserts that the agency failed to return her to the status quo
ante after it rescinded her May 9, 2017 removal on September 1, 2017, because it
reproposed her removal 1 week later based on the same charges and
specifications. Davis v. Department of Veterans Affairs , MSPB Docket No. SF-
0752-18-0191-I-1, Petition for Review (0191 PFR) File, Tab 1 at 4-9. We agree
with the administrative judge that the agency, following its rescission of the
earlier removal based on its concerns about a due process violation, could
reinitiate the removal action based on the same charges and specifications in a
constitutionally correct proceeding. Davis v. Department of Veterans Affairs ,
MSPB Docket No. SF-0752-18-0191-I-1, Initial Appeal File, Tab 25, Initial
Decision (0191 ID) at 2 n.1 (citing Jenkins v. Environmental Protection Agency ,
118 M.S.P.R. 161, ¶ 14 (2012)); see also Tawadrous v. Department of the
Treasury, 477 F. App’x 735, 738 -39 (Fed. Cir. 2012).3 The appellant has never
disputed that the agency cancelled the first removal action and removed all
references to it from her personnel file, returned her to pay status in her position
of record, and provided appropriate back pay and benefits. See Hess v. U.S.
Postal Service, 123 M.S.P.R. 183, ¶ 5 (2016). The agency’s decision to
repropose the appellant’s removal 1 week after rescinding her removal does not
show that it failed to provide status quo ante relief. See Hagan v. Department of
the Army, 99 M.S.P.R. 313, ¶ 8 (2005) (noting that a status quo ante remedy does
not require that the appellant be placed in a better position than he was at the time
of the agency’s action). Thus, we agree with the administrative judge that the
agency completely rescinded the first removal action.
3 The Board may choose to follow nonprecedential decisions of the U.S. Court of
Appeals for the Federal Circuit if, as here, it finds the reasoning persuasive. See, e.g.,
Erlendson v. Department of Justice , 121 M.S.P.R. 441, ¶ 6 n.2 (2014). 3
The appellant asserts on review that she proved her EEO retaliation
affirmative defense; however, she provides no substantive argument to refute any
of the administrative judge’s findings.4 0191 PFR File, Tab 1 at 9-10; see Hsieh
v. Defense Nuclear Agency , 51 M.S.P.R. 521, 524-25 (1991) (holding that mere
reargument of the same issues heard and decided by the administrative judge,
with nothing more, does not constitute a basis for Board review), aff’d, 979 F.2d
217 (Fed. Cir. 1992) (Table). Moreover, we find, contrary to the appellant’s
claim, that the administrative judge did not abuse her discretion by denying three
of the nine witnesses that the appellant planned to call at the August 22, 2017
hearing in her first removal appeal because their proffered testimony regarding
her EEO retaliation defense was irrelevant, cumulative, or not in dispute.
0435 PFR File, Tab 1 at 3; see Parker v. Department of Veterans Affairs ,
122 M.S.P.R. 353, ¶ 21 (2015); 5 C.F.R. § 1201.41(b)(8), (10).
The appellant further asserts that the administrative judge “improperly
abandoned her neutrality” by “answering for” the agency and becoming its
“partisan” when analyzing the appellant’s EEO retaliation defense. 0191 PFR
File, Tab 1 at 10. In making a claim of bias or prejudice against an
administrative judge, a party must overcome the presumption of honesty and
integrity that accompanies administrative adjudicators. Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980). An administrative judge’s conduct
4 Claims of retaliation for opposing discrimination in violation of Title VII, as here, are
analyzed under the same framework used for Title VII discrimination claims, which
requires an appellant to show by preponderant evidence that a prohibited consideration
was a motivating factor in the agency’s decision. Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶¶ 20-22, 30. To the extent the administrative judge did not
find in the initial decisions that the appellant failed to prove by preponderant evidence
that her EEO activity was a motivating factor in the agency’s decision to remove her,
we supplement the administrative judge’s analyses to make such a finding. Davis v.
Department of Veterans Affairs , MSPB Docket No. SF-0752-17-0435-I-1, Initial Appeal
File, Tab 20, Initial Decision at 7-9; 0191 ID at 16-17. We also find that the appellant
failed to prove by preponderant evidence that her first Board appeal, wherein she raised
a claim of EEO retaliation, was a motivating factor in the agency’s decision to reinitiate
the removal action. 0191 ID at 16; see Pridgen, 2022 MSPB 31, ¶ 32.4
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 bare allegation that the
administrative judge became the agency’s “partisan” does not meet this rigorous
standard. The mere fact that the administrative judge rules against a party does
not establish bias. Thompson v. Department of the Army , 122 M.S.P.R. 372, ¶ 29
(2015) (citing Schoenrogge v. Department of Justice , 76 M.S.P.R. 216, 220
(1997)). To the extent that the appellant also asserts bias because the
administrative judge presided over her first removal appeal and found no EEO
retaliation, we find her claims insufficient to establish bias. See Nickerson v.
U.S. Postal Service , 49 M.S.P.R. 451, 461 (1991).
We have considered the appellant’s remaining arguments on review but
find that they do not provide any basis to disturb the initial decisions. 0435 PFR
File, Tab 1 at 3-6; 0191 PFR File, Tab 1 at 4-10. Therefore, we deny the
petitions for review and affirm the initial decisions in these joined appeals.
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
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.5
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. The6
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 file7
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
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. 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.
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 | Davis_Sharon_SF-0752-17-0435-I-1 and SF-0752-18-0191-I-1_Final Order.pdf | 2024-06-12 | SHARON DAVIS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0752-17-, June 12, 2024 | SF-0752-17- | NP |
1,241 | https://www.mspb.gov/decisions/nonprecedential/Presna_Pierre-RichardPH-315H-19-0345-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PIERRE-RICHARD PRESNA,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-315H-19-0345-I-1
DATE: June 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ashling M. Soares , Esquire, Westport, Connecticut, for the appellant.
Kimberly Jacobs , Esquire, Newington, Connecticut, 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 and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
On review, the appellant asserts that it was “not possible for [him] to
prepare and get information to [his] attorney on time to plead [his] case” because
he was “on Active Duty Orders” from July 13, 2019, through August 21, 2019.
Petition for Review (PFR) File, Tab 1 at 3. It is unclear whether the appellant is
referring to his failure to respond to the acknowledgment order below or to the
length of time he had to prepare his petition for review after the initial decision
was issued. Nonetheless, the appellant’s military service did not cover the entire
period for responding to the acknowledgment order or filing a petition for review.
He has not shown why he was unable to request an extension of time under the
circumstances. In fact, the appellant timely filed his petition for review during
the period he asserts he was subject to these orders, and he has not filed any
additional pleadings. We therefore find that the appellant’s argument provides no
basis to disturb the initial decision.
A review of his petition for review shows that the appellant focuses on the
merits of the termination action. PFR File, Tab 1 at 4-27. The merits of the
termination action are not before the Board, the administrative judge properly
declined to address the appellant’s arguments regarding the merits of the2
termination action in the initial decision, Initial Appeal File, Tab 6, Initial
Decision (ID) at 5, and we therefore make no finding as to whether the appellant
engaged in misconduct as alleged. 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).
For the reasons stated in the initial decision, we find that the appellant’s
termination is outside the Board’s jurisdiction. ID at 4-5.
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
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
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,
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.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. 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 | Presna_Pierre-RichardPH-315H-19-0345-I-1__Final_Order.pdf | 2024-06-12 | null | PH-315H-19-0345-I-1 | NP |
1,242 | https://www.mspb.gov/decisions/nonprecedential/Hendy_David_M_CH-1221-19-0217-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID M. HENDY,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-1221-19-0217-W-1
DATE: June 12, 2024
THIS ORDER IS NONPRECEDENTIAL1
David M. Hendy , Chicago, Illinois, pro se.
Stephanie Macht , Hines, 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.
REMAND ORDER
¶1The 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
the reasons discussed below, we GRANT the appellant's petition for review,
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).
REVERSE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
BACKGROUND
¶2On February 16, 2019, the appellant filed an IRA appeal with the Board
alleging that his nonselection in or around May 2018 for a Green Environmental
Management System (GEMS) Manager position at the Edward Hines, Jr. Veterans
Affairs Hospital (Hines VA) constituted reprisal for making protected disclosures
and engaging in protected activities under 5 U.S.C. § 2302(b)(8)-(9). Initial
Appeal File (IAF), Tab 1 at 3, 5, Tab 2 at 4-6, Tab 6 at 5-13. Specifically, the
appellant alleged that, during his prior employment as an Industrial Hygienist at
the Hines VA from December 2015 through June 2016, he made, and was
perceived to have made, disclosures about safety and health hazards and
mismanagement. IAF, Tab 6 at 24, 35-36, Tab 12 at 7, 28, Tab 13 at 16, 21-22.
He further claimed that, at a meeting with the Hines VA Director in or around
October 2017, he made, and was perceived to have made, disclosures about
asbestos, mismanagement, and violations of veterans’ preference laws. IAF,
Tab 6 at 24, Tab 12 at 17, Tab 13 at 17.
¶3In addition, the appellant asserted that his May 2018 nonselection
constituted reprisal for his engagement, and perceived engagement, in the
following alleged activities: (1) he filed an equal employment opportunity (EEO)
complaint, a whistleblower reprisal complaint with the Office of Special Counsel
(OSC),2 and two Board appeals concerning his July 2013 termination from the
Jesse Brown Veterans Affairs Medical Center (Jesse Brown VA), IAF, Tab 6
at 29, 35, Tab 13 at 18; (2) he filed a June 2016 complaint with the agency’s
Office of Inspector General (OIG) concerning safety issues at the Hines VA, IAF,
Tab 2 at 5-6, Tab 6 at 24, 31, 34, 36, Tab 12 at 6, 9, Tab 13 at 21; (3) he filed
2 The record contains documents pertaining to four separate OSC complaints the
appellant filed. The appellant’s 2013 OSC complaint alleging that his termination was
retaliatory was designated OSC File No. MA-13-4191. PFR File, Tab 7 at 31-33.2
complaints with the Department of Labor (DOL) under the Veterans Employment
Opportunities Act of 1998 (VEOA) and the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA), a November 2017 OSC
complaint,3 and three IRA, VEOA, and USERRA appeals with the Board
concerning the agency’s failure to select him for positions in 2016-2017, IAF,
Tab 2 at 5-6, Tab 5 at 6, 9, 18-20, 25, Tab 6 at 24-25, 34-35, Tab 12 at 5-7, 9, 12,
20, Tab 13 at 19-21; and (4) he filed a May 2018 VEOA complaint and an August
2018 USERRA complaint with DOL and two August 2018 VEOA and USERRA
appeals with the Board concerning his nonselection for the GEMS Manager
position, IAF, Tab 5 at 6, 21-22, 25, Tab 6 at 25, 30-31, Tab 12 at 6, 9-10, 25, 27,
Tab 13 at 19.4
¶4Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 19, Initial Decision (ID) at 1-2, 13. Regarding the appellant’s claim of
retaliation for making protected whistleblowing disclosures under 5 U.S.C.
§ 2302(b)(8), she found that he failed to prove that he exhausted his
administrative remedies before OSC. ID at 9-11. She further found that,
although he proved exhaustion regarding his claim of retaliation for engaging in
activities protected under 5 U.S.C. § 2302(b)(9) (specifically, filing a
November 2017 OSC complaint, an August 2018 USERRA complaint with DOL,
and an August 2018 Board appeal), he failed to nonfrivolously allege that he
engaged in a protected activity that was a contributing factor in his nonselection.
ID at 9-13.
3 The November 2017 complaint, the second OSC complaint the appellant filed, was
OSC File No. MA-18-1040. IAF, Tab 12 at 36, Tab 14 at 5.
4 The appellant’s pleadings are not a model of clarity and, as described in the initial
decision, he has a lengthy and complicated history with the agency. IAF, Tab 19, Initial
Decision at 2-7. In light of his pro se status, however, we have liberally construed his
pleadings. See Melnick v. Department of Housing & Urban Development , 42 M.S.P.R.
93, 97-98 (1989), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table).3
¶5The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 4.5 The agency has filed a response, PFR File, Tab 6, to which the
appellant has replied, PFR File, Tab 7.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6To establish jurisdiction in a typical IRA appeal under the Whistleblower
Protection Enhancement Act of 2012 (WPEA),6 an appellant must prove by
preponderant evidence7 that he exhausted his administrative remedies before OSC
and make nonfrivolous allegations8 that (1) he 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)(2)(A).9 Corthell v. Department
of Homeland Security , 123 M.S.P.R. 417, ¶ 8 (2016), overruled on other grounds
by Requena v. Department of Homeland Security , 2022 MSPB 39. Once an
5 The appellant filed a perfected petition for review after the Office of the Clerk of the
Board granted his request for an extension of time to file a perfected petition for
review. PFR File, Tabs 2-4.
6 Pursuant to the WPEA, effective December 27, 2012, Congress expanded the grounds
on which an appellant may file an IRA appeal with the Board. Rebstock Consolidation
v. Department of Homeland Security , 122 M.S.P.R. 661, ¶ 5 (2015). The alleged events
at issue in the instant appeal occurred after the WPEA’s effective date. The relevant
holdings of pre-WPEA case law that we have cited in this Remand Order have not been
affected by the WPEA.
7 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).
8 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
9 The National Defense Authorization Act for Fiscal Year 2018 (2018 NDAA),
Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on December 12, 2017, after
some of the events alleged in this appeal occurred. Section 1097 of the 2018 NDAA
amended various provisions of Title 5 of the U.S. Code. Our decision to remand this
appeal would be the same under both pre- and post-NDAA law.4
appellant establishes jurisdiction over an IRA appeal, he is entitled to a hearing
on the merits of his claim, which he must prove by preponderant evidence.
Rebstock Consolidation v. Department of Homeland Security , 122 M.S.P.R. 661,
¶ 9 (2015). For the following reasons, we reverse the initial decision because we
find that the appellant has established jurisdiction over this IRA appeal.
¶7For the first time on review, the appellant has submitted additional
documentation (including letters and emails with attachments) that he claims
proves he exhausted his remedies with OSC10 and shows he made nonfrivolous
allegations of jurisdiction.11 PFR File, Tab 2 at 15, 18, 28-33, Tab 7 at 5-6, 13,
20-22, 25-26, 31-33. We have considered such documentation because the issue
of the Board’s jurisdiction is always before the Board and may be raised by either
party or sua sponte by the Board at any time during a Board proceeding. Simnitt
v. Department of Veterans Affairs , 113 M.S.P.R. 313, ¶ 5 (2010).
The appellant has proven by preponderant evidence that he exhausted his
administrative remedies before OSC.
¶8Under 5 U.S.C. § 1214(a)(3), an employee is required to “seek corrective
action from [OSC] before seeking corrective action from the Board” through an
IRA appeal. Miller v. Federal Deposit Insurance Corporation , 122 M.S.P.R. 3,
¶ 6 (2014), aff’d, 626 F. App’x 261 (Fed. Cir. 2015). The substantive
requirements of exhaustion 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. The Board’s jurisdiction over an IRA appeal is
limited to those issues that have been previously raised with OSC, but appellants
may give a more detailed account of their whistleblowing activities before the
Board than they did to OSC. Id. An appellant who raises a claim of reprisal for
10 The OSC complaint in which the appellant raised the claims at issue in this appeal
was OSC File No. MA-18-5251. IAF, Tab 12 at 33-34.
11 In addition, the appellant has resubmitted OSC correspondence that already is a part
of the record before the administrative judge. PFR File, Tab 2 at 27, Tab 7 at 23-24,
27-30; IAF, Tab 1 at 8-9, Tab 14 at 5-7, 9-10, Tab 18 at 45.5
perceived whistleblowing or perceived engagement in activity protected under
5 U.S.C. § 2302(b)(9) must establish that he exhausted his remedies with OSC
regarding that claim. King v. Department of the Army , 116 M.S.P.R. 689, ¶ 9
(2011); see Corthell, 123 M.S.P.R. 417, ¶¶ 12-13. Appellants may demonstrate
exhaustion of their OSC remedies with evidence regarding their initial OSC
complaint and other communications with OSC concerning their allegations.
See Baldwin v. Department of Veterans Affairs , 113 M.S.P.R. 469, ¶ 8 (2010).
¶9On petition for review, the appellant argues that he has proven exhaustion
regarding his claim that his nonselection for the GEMS Manager position
constituted reprisal for making protected disclosures and engaging in protected
activities under 5 U.S.C. § 2302(b)(8)-(9). PFR File, Tab 4 at 5-9, Tab 7 at 5-13.
For the following reasons, we agree.
The appellant has proven exhaustion regarding his reprisal claims
under 5 U.S.C. § 2302(b)(8).
¶10Based on the appellant’s submission of the following evidence, we find that
he has proven exhaustion regarding his reprisal claims under 5 U.S.C. § 2302(b)
(8). He submitted a December 14, 2018 letter from OSC that summarized his
whistleblower reprisal complaint as alleging that the agency failed to select him
for the GEMS Manager position in retaliation for, among other things, his report
in 2016 of “possible problems with asbestos” in a Veterans Affairs Medical
Center. IAF, Tab 1 at 8-9.12 He further submitted a January 16, 2018 email that
he sent to OSC in response to its preliminary determination to close its inquiry
into his prior whistleblower reprisal complaint concerning his nonselections in
2016-2017. IAF, Tab 12 at 36-43. In that email, he alleged that he made, and
was perceived to have made, disclosures about safety and health hazards and
12 If the appellant chooses to submit correspondence from OSC, it may be relied upon to
prove exhaustion of remedies with OSC. See Lewis v. Department of Defense , 123
M.S.P.R. 255, ¶ 10 (2016). However, the administrative judge may not rely upon
OSC’s decision or its characterization of the appellant’s allegations to make findings on
the merits of his IRA appeal. See 5 U.S.C. § 1214(a)(2)(B); Cassidy v. Department of
Justice, 118 M.S.P.R. 74, ¶ 16 (2012).6
mismanagement to agency officials during his prior Hines VA employment as an
Industrial Hygienist. Id. The appellant declared under penalty of perjury that he
explained to OSC in his most recent OSC complaint that his nonselection for the
GEMS Manager position constituted additional reprisal for the matters described
in his January 16, 2018 email. PFR File, Tab 7 at 3, 5; IAF, Tab 12 at 3, 6; see
Chambers, 2022 MSPB 8, ¶ 11 (holding that exhaustion may be proved through a
declaration attesting to the matters raised with OSC). He further declared that he
raised before OSC the issue of meeting with the Hines VA Director to discuss
matters related to his application for his former Industrial Hygienist position in
October 2017, IAF, Tab 12 at 3, 17, and that he provided OSC with an Industrial
Hygiene event tracking table, a May 3, 2016 memorandum on lead and mold, and
a March 3, 2016 report on a mold investigation that he had prepared during his
prior Hines VA employment, PFR File, Tab 4 at 3, 6-8; IAF, Tab 12 at 44, Tab
13 at 28-30, Tab 16 at 4-42. Therefore, we find that the appellant has proven
exhaustion regarding his claim that his nonselection for the GEMS Manager
position constituted retaliation for alleged disclosures he made, and was
perceived to have made, to agency officials during his prior Hines VA
employment from 2015-2016 and to the Hines VA Director at an October 2017
meeting.
The appellant has proven exhaustion regarding his reprisal claims
under 5 U.S.C. § 2302(b)(9).
¶11We further find that the appellant has proven exhaustion regarding his
reprisal claims under 5 U.S.C. § 2302(b)(9) based on his submission of the
following evidence . In the appellant’s January 16, 2018 email that he sent to
OSC, he alleged that the agency perceived him as a whistleblower based on his
2013 OSC complaint, Board appeals, and EEO settlement concerning his
July 2013 termination from his prior Jesse Brown VA employment and based on
his OIG complaint concerning problems at the Hines VA. IAF, Tab 12 at 37, 41.
He further alleged in his email to OSC that he filed one USERRA and two VEOA7
complaints with DOL concerning his nonselections in 2016-2017. Id. at 40. In
addition, the appellant submitted an October 13, 2017 letter from OIG confirming
that he met with OIG in June 2016 to discuss safety concerns at the Hines VA.
Id. at 35. Moreover, the appellant declared under penalty of perjury that OSC
considered his January 16, 2018 email and the October 13, 2017 OIG letter as
part of his most recent whistleblower reprisal complaint regarding his
nonselection for the GEMS Manager position. Id. at 3, 6.
¶12Further, the appellant has submitted OSC letters dated November 15 and
December 14, 2018, which summarized his whistleblower reprisal complaint as
alleging that the agency failed to select him for the GEMS Manager position in
retaliation for his prior November 2017 OSC complaint, his August 2018
USERRA complaint with DOL, and his August 2018 Board appeal. PFR File,
Tab 7 at 25; IAF, Tab 1 at 8. He also has submitted a separate OSC letter
dated December 14, 2018, which acknowledged that he raised an additional
allegation of reprisal for filing an EEO complaint. PFR File, Tab 7 at 21. In
addition, the appellant has submitted September 2018 emails that he sent to OSC
in which he raised the following issues: he alleged that the selecting official for
the GEMS Manager position was “coerced by ex[ ]parte remarks” from certain
agency officials because of his IRA, USERRA, and VEOA appeals concerning his
nonselections in 2016-2017 and his USERRA and VEOA appeals concerning his
nonselection for the GEMS Manager position; and he discussed his USERRA
complaint that DOL had referred to OSC and his VEOA complaint with DOL
concerning the GEMS Manager position.13 PFR File, Tab 2 at 29-32.
¶13Therefore, we find that the appellant has proven exhaustion regarding his
claim that his nonselection for the GEMS Manager position constituted reprisal
for his engagement, and perceived engagement, in the following alleged
activities: (1) the 2013 OSC complaint, an EEO complaint, and two Board
13 OSC designated the USERRA complaint referred by DOL as OSC File No. RE-18-
5666. IAF, Tab 18 at 14-15.8
appeals he filed concerning his July 2013 termination from his prior Jesse Brown
VA employment; (2) a June 2016 OIG complaint he filed concerning safety issues
at the Hines VA; (3) a November 2017 whistleblower reprisal complaint he filed
with OSC, one USERRA and two VEOA complaints he filed with DOL, and three
IRA, USERRA, and VEOA appeals he filed with the Board concerning his
nonselections in 2016-2017; (4) a May 2018 VEOA complaint and an
August 2018 USERRA complaint he filed with DOL and two August 2018 VEOA
and USERRA appeals he filed with the Board concerning his nonselection for the
GEMS Manager position; and (5) a USERRA complaint he filed with DOL that
was referred to OSC.
The appellant has made nonfrivolous allegations sufficient to establish
jurisdiction over this IRA appeal.
¶14The next jurisdictional inquiry is whether the appellant has made
nonfrivolous allegations that he made a whistleblowing disclosure or engaged in a
protected activity that was a contributing factor in his nonselection for the
GEMS Manager position.14 Corthell, 123 M.S.P.R. 417, ¶ 8. A nonfrivolous
allegation of a protected whistleblowing disclosure is an allegation of facts that,
if proven, would show that the appellant disclosed a matter that a reasonable
person in his position would believe evidenced one of the categories of
wrongdoing specified in 5 U.S.C. § 2302(b)(8). Salerno v. Department of the
Interior, 123 M.S.P.R. 230, ¶ 6 (2016) . The test to determine whether a putative
whistleblower has a reasonable belief in the disclosure is an objective one:
whether a disinterested observer with knowledge of the essential facts known to
and readily ascertainable by the employee could reasonably conclude that the
actions of the agency evidenced a violation of law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. Id.
14 A nonselection is a personnel action. King, 116 M.S.P.R. 689, ¶ 10.9
¶15To satisfy the contributing factor criterion at the jurisdictional stage, an
appellant only need raise a nonfrivolous allegation that the fact, or content of, the
whistleblowing disclosure or protected activity was one factor that tended to
affect the personnel action in any way. See id., ¶ 13. Under the
knowledge/timing test, an appellant 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. See 5 U.S.C. § 1221(e)
(1); Salerno, 123 M.S.P.R. 230, ¶ 13 .
¶16For a claim of reprisal for perceived whistleblowing or engagement in other
protected activity, the relevant jurisdictional inquiry is whether the appellant has
made nonfrivolous allegations that (1) the agency perceived that he made, or
intended to make, a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged
in an activity protected under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and
(2) the agency’s perception was a contributing factor in the personnel action. See
Corthell, 123 M.S.P.R. 417, ¶ 13; King, 116 M.S.P.R. 689, ¶¶ 8-9.
¶17For the following reasons, we find that the appellant has made nonfrivolous
allegations sufficient to establish jurisdiction over some, but not all, of his
exhausted claims.
The appellant’s alleged disclosures under 5 U.S.C. § 2302(b)(8).
The appellant has failed to nonfrivolously allege that he made,
or was perceived to have made, a protected whistleblowing
disclosure concerning gross mismanagement during his prior
Hines VA employment.
¶18The appellant alleged that he made the following disclosures concerning
mismanagement during his prior Hines VA employment: (1) he questioned the
Assistant to the Chief of Engineering why there was no emergency funding for10
asbestos cleanup, IAF, Tab 13 at 22; (2) he sent to his supervisor a March 16,
2016 email in which he claimed that it was inappropriate for her to ask the Fire
Protection Manager to annotate his work hours and described his concerns about
the adequacy of the Fire Protection Manager’s confined-space rescue plan for a
steam-tunnel system, IAF, Tab 14 at 17-19; and (3) he sent to his supervisor a
May 5, 2016 email in which he requested additional resources to support the
Industrial Hygiene program, IAF, Tab 6 at 37. Because the substance of these
alleged disclosures suggests, at most, that management committed de minimis
wrongdoing or negligence, we find that the appellant has failed to make a
nonfrivolous allegation that he made, or was perceived to have made, a protected
disclosure evidencing gross mismanagement. See Swanson v. General Services
Administration, 110 M.S.P.R. 278, ¶ 11 (2008) (explaining that “gross
mismanagement” means 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) .
The appellant has nonfrivolously alleged that he made
protected whistleblowing disclosures of safety and health
hazards to agency officials during his prior Hines VA
employment that were a contributing factor in his
nonselection.
¶19Although the appellant’s pleadings are not a model of clarity, we have
identified the following disclosures of safety and health hazards that he allegedly
made during his prior Hines VA employment: (1) he provided to his managers
and the Human Resources (HR) Officer an Industrial Hygiene event tracking table
in which he identified specific rooms in the Hines VA that contained dangerous
levels of lead, mold, and asbestos, PFR File, Tab 4 at 7-8; IAF, Tab 12 at 44;
(2) he reported to his supervisor that, in Building 1, there was mold in the laundry
area and that Information Technology employees were being exposed to asbestos,
IAF, Tab 12 at 39, Tab 13 at 21; (3) he reported to his supervisor and the former
Chief of Engineering that he was concerned about mold and asbestos in day care11
areas and the men’s bathroom in Building 2, IAF, Tab 6 at 24; (4) he sent to his
supervisor a February 9, 2016 email in which he described his concerns about the
adequacy of a hazardous waste storage shed, IAF, Tab 14 at 13; (5) he provided
to his managers and the HR Officer a March 3, 2016 report in which he explained
that HR employees were being exposed to mold and unsanitary conditions in
Building 17, PFR File, Tab 2 at 19, Tab 4 at 8; IAF, Tab 16 at 4-42; (6) he sent to
his supervisor a March 16, 2016 email in which he described his concerns about
the adequacy of a confined-space rescue plan for an outdated steam-tunnel system
that posed the risk of steam-line ruptures, IAF, Tab 6 at 35, Tab 12 at 7, Tab 13
at 23, Tab 14 at 17-18; and (7) he provided to his managers and the HR Officer a
May 3, 2016 memorandum in which he discussed the possibility of lead, asbestos,
mold, and fungus in the auditorium in Building 9, where children recently had
attended a community event, PFR File, Tab 4 at 8; IAF, Tab 2 at 33, Tab 13
at 28-30.
¶20In determining whether a disclosure evidenced a substantial and specific
danger to public health or safety, it is relevant for the Board to consider factors
such as (1) the likelihood of harm resulting from the danger, (2) the imminence of
the potential harm, and (3) the nature of the potential harm. Parikh v.
Department of Veterans Affairs , 116 M.S.P.R. 197, ¶ 14 (2011). Considering
these factors, we find that the appellant’s alleged disclosures of safety and health
hazards, as described above, are specific and, if true, would pose a likely,
imminent, and serious danger to the health and safety of staff, patients, and
visitors at the Hines VA. Therefore, we find that the appellant nonfrivolously
alleged that he made protected disclosures that a reasonable person with his
Industrial Hygienist experience would believe evidenced a substantial and
specific danger to public health or safety. See, e.g., Wojcicki v. Department of
the Air Force, 72 M.S.P.R. 628, 634-35 (1996). We further find that the
appellant nonfrivolously alleged that a reasonable person in his position would
believe that the alleged disclosures of safety and health hazards described above12
also evidenced a violation of a law, rule, or regulation concerning workplace
safety. See, e.g., Schoenig v. Department of Justice , 120 M.S.P.R. 318, ¶ 9
(2013).
¶21For the following reasons, we find that the appellant has nonfrivolously
alleged that the disclosures of safety and health hazards described above were a
contributing factor in his nonselection. Because the appellant allegedly made
such disclosures during his prior Hines VA Employment from December 2015
through June 2016, IAF, Tab 13 at 16, and his nonselection occurred around
May 2018, IAF, Tab 1 at 3, Tab 2 at 5, he does not meet the timing component of
the knowledge/timing test, see Salerno, 123 M.S.P.R. 230, ¶ 14 (observing that a
personnel action taken within approximately 1 to 2 years of the disclosures
satisfies the timing component of the knowledge/timing test) . However, the
knowledge/timing test is not the only way for an appellant to satisfy the
contributing factor criterion. Dorney v. Department of the Army , 117 M.S.P.R.
480, ¶ 14 (2012). When, as here, an appellant fails to satisfy the
knowledge/timing test, the Board considers 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
proposing or deciding officials, and whether these individuals had a desire or
motive to retaliate against the appellant. See id., ¶ 15. Any weight given to a
whistleblowing disclosure, either alone or in combination with other factors, can
satisfy the contributing factor criterion. Id.
¶22Here, the appellant alleged that the selecting official’s supervisor, who was
the Associate Director and chaired the Hines Safety Committee, had general
knowledge of his disclosures. IAF, Tab 12 at 19, Tab 13 at 16, 21, 23. The
appellant further alleged that he gave the HR Officer the Industrial Hygiene event
tracking table, the March 3, 2016 report on a mold investigation, and the May 3,
2016 memorandum on lead and mold. PFR File, Tab 2 at 19, Tab 4 at 7-8; IAF,
Tab 12 at 44, Tab 13 at 28-30, Tab 16 at 4-42. Moreover, t he appellant alleged13
that the HR Officer sent him an email on May 9, 2018, in which the HR Officer
stated that the reason the appellant was not selected for the GEMS Manager
position was because he was not on the certificate of eligibles. IAF, Tab 2 at 5,
Tab 6 at 31. The appellant further alleged that the selecting official’s supervisor
and the HR Officer instructed the selecting official to hire an applicant from the
certificate of eligibles only. IAF, Tab 6 at 23-24. The appellant argues that the
agency had the authority to amend the certificate and to consider him for the
GEMS Manager position as a qualified applicant and a disabled veteran, but the
agency wrongfully denied his request to be on the certificate that he had made
when he submitted his application. Id. at 22-25, 28-31. To support his argument,
the appellant submitted a letter from DOL determining that the agency had
violated his veterans’ preference rights regarding his nonselection. IAF, Tab 1
at 10. Because the appellant has raised a material issue about the strength or
weakness of the agency’s reasons for not selecting him, we find that he has
nonfrivolously alleged that his disclosures of safety and health hazards that were
known to the selecting official’s supervisor and the HR Officer were a
contributing factor in their actions that influenced the selecting official’s
decision. See, e.g., Dorney, 117 M.S.P.R. 480, ¶ 17.
The appellant has nonfrivolously alleged that he made
protected whistleblowing disclosures about asbestos and
veterans’ preference violations to the Hines VA Director in an
October 2017 meeting that were a contributing factor in his
nonselection.
¶23The appellant alleged that, in an October 2017 meeting with the Hines VA
Director, he reiterated his concern that employees were being exposed to
asbestos. IAF, Tab 6 at 24, Tab 13 at 17. Assuming that the appellant raised the
same or similar disclosures concerning asbestos that he allegedly had made
during his prior Hines VA employment, as described and analyzed above, we find
that he nonfrivolously alleged that he made a protected disclosure evidencing a
substantial and specific danger to public health or safety and a violation of a law,14
rule, or regulation concerning workplace safety. See 5 U.S.C. § 2302(f)(1)(B)
(providing that a disclosure shall not be excluded from subsection (b)(8) because
it revealed information that had been previously disclosed). We further find that
the appellant’s allegation that he also complained to the Hines VA Director at the
meeting about how the agency was violating his veterans’ preference rights and
denying him the ability to compete by failing to rehire him constitutes a
nonfrivolous allegation that he made a protected disclosure evidencing a violation
of a law, rule, or regulation concerning veterans’ preference. IAF, Tab 6 at 24,
Tab 12 at 17, Tab 13 at 17. However, we find that the appellant’s allegation that
he told the Hines VA Director that he could help the agency fix problems such as
the mismanagement of the Industrial Hygiene program is not sufficiently specific
or detailed to nonfrivolously allege that he made, or was perceived to have made,
a protected disclosure evidencing gross mismanagement. IAF, Tab 13 at 17; see
Salerno, 123 M.S.P.R. 230, ¶¶ 6-7.
¶24Moreover, we find that the appellant made nonfrivolous allegations
satisfying the contributing factor criterion through the knowledge/timing test.
Specifically, the appellant’s May 2018 nonselection occurred less than 1 year
after he allegedly made protected disclosures to the Hines VA Director in an
October 2017 meeting. IAF, Tab 1 at 3, Tab 2 at 5, Tab 6 at 24, Tab 12 at 17,
Tab 13 at 17. Thus, the timing component is satisfied. See Salerno,
123 M.S.P.R. 230, ¶ 14. The appellant further alleged that the Hines VA Director
advised the selecting official not to hire him for the GEMS Manager position.
IAF, Tab 2 at 4. Accordingly, we find that the appellant nonfrivolously alleged
that the selecting official had constructive knowledge of his alleged disclosures to
the Hines VA Director about asbestos and veterans’ preference violations . See
Bradley v. Department of Homeland Security , 123 M.S.P.R. 547, ¶ 15 (2016)
(observing that an appellant may establish an official’s constructive knowledge of
a protected disclosure by demonstrating that an individual with actual knowledge
of the disclosure influenced the official accused of taking the retaliatory action).15
The appellant’s alleged activities under 5 U.S.C. § 2302(b)(9).
The appellant has nonfrivolously alleged that he engaged in
protected activities under 5 U.S.C. § 2302(b)(9)(C) that were a
contributing factor in his nonselection.
¶25Protected activity under 5 U.S.C. § 2302(b)(9)(C) is “cooperating with or
disclosing information to the Inspector General (or any other component
responsible for internal investigation or review) of an agency, or the Special
Counsel, in accordance with applicable provisions of law.” The appellant has
submitted a letter from OIG confirming that he filed, a June 2016 OIG complaint
concerning safety issues at the Hines VA. IAF, Tab 2 at 27. Further, the record
contains a letter from OSC dated October 18, 2018, confirming that, pursuant to
the appellant’s referral request, OSC reviewed his USERRA complaint that he
had filed with DOL alleging that he had been denied reinstatement and was not
selected for vacancies in 2016-17 after he had resigned from his position to seek
treatment for service-connected injuries. IAF, Tab 18 at 14-15. Therefore, we
find that the appellant has nonfrivolously alleged that he engaged in protected
activity under 5 U.S.C. § 2302(b)(9)(C) by filing the aforementioned OIG
complaint and by referring his USERRA complaint to OSC.
¶26For the following reasons, we find that the appellant has nonfrivolously
alleged that his OIG complaint and the referral of his USERRA complaint to OSC
were a contributing factor in his nonselection. Specifically, the appellant’s May
2018 nonselection occurred less than 2 years after he allegedly filed an OIG
complaint in June 2016 IAF, Tab 1 at 3, Tab 2 at 5, 27. Thus, the timing
component of the knowledge/timing test is satisfied. See Salerno, 123 M.S.P.R.
230, ¶ 14. In addition, the appellant alleged that the HR Officer knew of the
complaint. IAF, Tab 2 at 5, Tab 5 at 9, 21, Tab 13 at 18-19, 21. The appellant
further alleged that the selecting official had constructive knowledge of the
complaint because the HR Officer, with the HR staff, influenced the selecting
official by effectively telling him not to hire the appellant. IAF, Tab 2 at 5, Tab 616
at 24, Tab 13 at 20-21; see Bradley, 123 M.S.P.R. 547, ¶ 15. Therefore, we find
that the appellant has satisfied the contributing factor criterion through the
knowledge/timing test for purposes of his June 2016 OIG complaint.
¶27Although the appellant does not specify when he requested that DOL refer
his USERRA complaint to OSC, the record reflects that OSC received his file
from DOL by at least September 2018 and that it ended its review of his case in
October 2018. PFR File, Tab 2 at 29; IAF, Tab 18 at 14. The record further
reflects that DOL’s investigation of his USERRA complaint was ongoing in
November and December 2017. IAF, Tab 13 at 32, Tab 18 at 51-53. Moreover,
the appellant alleged that the selecting official and the HR Officer knew of his
USERRA complaint because they reviewed his related Freedom of Information
Act request in February 2018. PFR File, Tab 7 at 8; IAF, Tab 6 at 24, 34, Tab 12
at 7, 12. Because the appellant’s USERRA complaint accused the HR Officer of
wrongdoing regarding the appellant’s nonselections in 2016-2017, we find that
the appellant has nonfrivolously alleged that the HR Officer, who purportedly
influenced the selecting official, had a motive to retaliate based on the appellant’s
USERRA complaint. IAF, Tab 12 at 36-40, Tab 13 at 20-21, Tab 18 at 14, 51.
Thus, we find that the appellant has made nonfrivolous allegations sufficient to
establish that the referral of his USERRA complaint to OSC was a contributing
factor in his nonselection.15 See Dorney, 117 M.S.P.R. 480, ¶ 15.
The appellant has nonfrivolously alleged that he engaged in
protected activities under 5 U.S.C. § 2302(b)(9)(A)(i) that
were a contributing factor in his nonselection.
¶28Protected activity under 5 U.S.C. § 2302(b)(9)(A)(i) is “the exercise of any
appeal, complaint, or grievance right granted by any law, rule, or regulation—
(i) with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)].” Thus, only
appeals, complaints, or grievances seeking to remedy whistleblower reprisal are
15 On remand, the administrative judge should address when the appellant requested that
DOL refer his USERRA complaint to OSC in determining whether he proves the
contributing factor criterion.17
covered under 5 U.S.C. § 2302(b)(9)(A)(i). See Mudd v. Department of Veterans
Affairs, 120 M.S.P.R. 365, ¶¶ 6-7 (2013). Here, it is undisputed that the appellant
sought to remedy alleged whistleblower reprisal in two prior Board appeals he
filed concerning his July 2013 termination from his prior Jesse Brown VA
employment and a prior IRA appeal he filed with the Board concerning his
nonselections in 2016-2017. ID at 2-3, 5. Further, the appellant filed the 2013
OSC complaint alleging that his July 2013 termination from his prior Jesse Brown
VA employment had been retaliatory and the November 2017 OSC complaint
asserting retaliation with respect to his nonselections in 2016-2017. Therefore,
we find that the appellant has nonfrivolously alleged that he engaged in protected
activity under 5 U.S.C. § 2302(b)(9)(A)(i) by filing these prior Board appeals and
OSC complaints.
¶29However, we find that the appellant has failed to nonfrivolously allege that
he engaged, or was perceived to have engaged, in protected activity under
5 U.S.C. § 2302(b)(9)(A)(i) based on the following remaining alleged activities
that he exhausted: an EEO complaint he filed concerning his July 2013
termination from his prior Jesse Brown VA employment; one USERRA and two
VEOA complaints he filed with DOL and two USERRA and VEOA appeals he
filed with the Board concerning his nonselections in 2016-2017; a May 2018
VEOA complaint and an August 2018 USERRA complaint he filed with DOL and
two August 2018 VEOA and USERRA appeals he filed with the Board
concerning his nonselection for the GEMS Manager position.16 See supra ¶ 13.
In particular, the appellant’s submissions do not suggest that he sought to remedy
alleged whistleblower reprisal in any of these complaints or appeals; rather, his
submissions suggest that he filed them to remedy alleged EEO, USERRA, and
16 Moreover, the appellant’s May 20, 2018 VEOA complaint and August 2018 USERRA
complaint he filed with DOL and two August 2018 VEOA and USERRA appeals he
filed with the Board could not have been a contributing factor in his nonselection
because he allegedly filed them after he was not selected on or around May 9, 2018.
IAF, Tab 1 at 3, Tab 2 at 5, 11.18
VEOA violations. PFR File, Tab 2 at 29-31; IAF, Tab 2 at 9-11, Tab 6 at 29,
Tab 7 at 27, Tab 12 at 40; see ID at 2-6. Even if the appellant’s alleged EEO and
DOL complaints and USERRA and VEOA appeals constitute protected activity
under 5 U.S.C. § 2302(b)(9)(A)(ii), they cannot form the basis of an IRA appeal.
See 5 U.S.C. § 1221(e); Mudd, 120 M.S.P.R. 365, ¶ 7.
¶30For the following reasons, we find that the appellant has nonfrivolously
alleged that his two prior Board appeals concerning his July 2013 termination
from his prior Jesse Brown VA employment and his prior IRA appeal concerning
his nonselections in 2016-2017 were a contributing factor in his nonselection for
the GEMS Manager position. Regarding the appellant’s prior IRA appeal
concerning his nonselections in 2016-2017, we find that the appellant has met the
timing component of the knowledge/timing test because his May 2018
nonselection allegedly occurred approximately 5 months after he filed that appeal
in December 2017. ID at 5; IAF, Tab 1 at 3, Tab 2 at 5; see Salerno,
123 M.S.P.R. 230, ¶ 14 . We further find that the appellant’s assertions that the
selecting official’s supervisor and the HR Officer had knowledge of his prior
IRA appeal, PFR File, Tab 2 at 31, and that they effectively told the selecting
official not to hire the appellant, IAF, Tab 2 at 5, Tab 6 at 24, Tab 13 at 20-21,
constitute nonfrivolous allegations that the selecting official had constructive
knowledge of his prior IRA appeal. See Bradley, 123 M.S.P.R. 547, ¶ 15.
Therefore, we find that the appellant has satisfied the contributing factor criterion
through the knowledge/timing test for purposes of his prior IRA appeal.
¶31Regarding the appellant’s two prior Board appeals concerning his July 2013
termination from his prior Jesse Brown VA employment, the appellant alleged
that the HR Officer had knowledge of these appeals because the HR Officer asked
him questions related to the matter. IAF, Tab 6 at 29, Tab 12 at 37; see ID at 2-3.
Further, the appellant has alleged that the selecting official knew about these
appeals because the selecting official thought he had contested his termination.
PFR File, Tab 7 at 7; IAF, Tab 7 at 19, Tab 13 at 22. As explained above, the19
appellant has raised a material issue about the strength or weakness of the
HR Officer’s stated reason for the appellant’s nonselection, i.e., he was not on the
certificate of eligibles. IAF, Tab 2 at 5, 9, Tab 6 at 31. Thus, we find that the
appellant has nonfrivolously alleged that his prior Board appeals concerning his
July 2013 termination were a contributing factor in his nonselection. See, e.g.,
Dorney, 117 M.S.P.R. 480, ¶ 17.
¶32In addition, the appellant alleged that the HR Officer knew about the
appellant’s OSC complaint concerning his July 2013 termination from his prior
Jesse Brown VA employment. PFR File, Tab 7 at 31-33; IAF, Tab 12 at 37. As
explained above, the appellant has raised a material issue about the strength or
weakness of the HR Officer’s stated reason for the appellant’s nonselection, i.e.,
he was not on the certificate of eligibles. IAF, Tab 2 at 5, 9, Tab 6 at 31. Thus,
we find that the appellant has nonfrivolously alleged that his prior OSC complaint
concerning his July 2013 termination was a contributing factor in his
nonselection. See, e.g., Dorney, 117 M.S.P.R. 480, ¶ 17.
¶33As to the appellant’s November 2017 OSC complaint, the complaint was
filed approximately 7 months before the May 2018 nonselection, and therefore
the timing component of the knowledge/timing test is satisfied. See Salerno,
123 M.S.P.R. 230, ¶ 14. And, as noted above, the appellant alleged that the HR
Officer had knowledge of the complaint and influenced the selecting official by
effectively telling him not to hire the appellant. IAF, Tab 2 at 5, Tab 6 at 24, Tab
13 at 20-21; see Bradley, 123 M.S.P.R. 547, ¶ 15. Accordingly, we find that the
appellant has made a nonfrivolous allegation that the November 2017 OSC
complaint was a contributing factor in the agency’s decision not to select him for
the GEMS Manager position.
¶34Accordingly, because we find that the appellant has exhausted his
administrative remedies before OSC and has nonfrivolously alleged that he made
protected whistleblowing disclosures and engaged in protected activities that
were a contributing factor in his nonselection for the GEMS Manager position , we20
remand this IRA appeal for the appellant’s requested hearing and a decision on
the merits of his claim.17 Specifically, on remand, the administrative judge shall
adjudicate the appellant’s claim that his nonselection constituted reprisal for the
following: (1) disclosures of safety and health hazards that he made to agency
officials during his prior Hines VA employment in 2015-2016; (2) disclosures
about asbestos and veterans’ preference violations that he made to the Hines VA
Director in an October 2017 meeting ; (3) a prior OSC complaint and two Board
appeals he filed concerning his July 2013 termination from his prior Jesse Brown
VA employment; (4) a June 2016 OIG complaint he filed concerning safety issues
at the Hines VA; (5) a November 2017 OSC complaint and a prior IRA appeal he
filed concerning his nonselections in 2016-2017; and (6) a USERRA complaint he
filed with DOL that was referred to OSC for review.18
17 On remand, the administrative judge should consider whether the appellant’s
disclosures under 5 U.S.C. § 2302(b)(8) were made during the normal course of his
duties. Section 101 of the WPEA provided, in part, that a disclosure “made during the
normal course of duties of an employee,” and otherwise covered by 5 U.S.C. § 2302(b)
(8), is protected if the agency “took, failed to take, or threatened to take or fail to take a
personnel action with respect to that employee in reprisal for the disclosure.” This
provision was initially codified at 5 U.S.C. § 2302(f)(2). On October 26, 2017,
Congress enacted the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017, Pub.
L. No. 115-73, 131 Stat. 1235, which recodified the provision at 5 U.S.C. § 2302(e)(2).
Section 1097 of the 2018 NDAA amended and recodified the provision at 5 U.S.C. §
2302(f)(2). The Board has held that section 2302(f)(2) imposed an “extra proof
requirement” for these types of disclosures such that an appellant to whom the provision
applies must prove by preponderant evidence that the agency took a personnel action
because of the disclosure and did so with an improper, retaliatory motive. See Salazar v.
Department of Veterans Affairs , 2022 MSPB 42, ¶ 13. Moreover, this section of the
statute expressly applies only to an employee whose principal job function is to
regularly investigate and disclose wrongdoing. Id., ¶ 15. The administrative judge
should consider what effect, if any, section 2302(f)(2) has on this appeal .
18 If the appellant cannot prove on remand that he made a particular protected disclosure
or engaged in a particular protected activity, the administrative judge should consider
the appellant’s alternative exhausted claim that his nonselection constituted retaliation
based on the agency’s perception that he made a protected disclosure or engaged in a
protected activity. See King, 116 M.S.P.R. 689, ¶ 6 (explaining that an individual who
is perceived as a whistleblower still is entitled to the protections of the Whistleblower
Protection Act, even if he has not made protected disclosures).21
The appellant’s remaining evidence and argument on review do not warrant a
different outcome.
¶35On review, the appellant asserts that the agency violated his constitutional
due process rights, committed harmful error and other prohibited personnel
practices, discriminated against him, and committed violations of his veterans’
preference rights. PFR File, Tab 2 at 15-17, 19-23, Tab 7 at 6-7. The Board does
not have jurisdiction over these claims in the context of an IRA appeal. See, e.g.,
Benton-Flores v. Department of Defense , 121 M.S.P.R. 428, ¶ 6 n.1 (2014);
Smets v. Department of the Navy , 117 M.S.P.R. 164, ¶ 14 (2011), aff’d,
498 F. App’x 1 (Fed. Cir. 2012); McCarthy v. International Boundary and Water
Commission, 116 M.S.P.R. 594, ¶ 27 (2011), aff’d, 497 F. App’x 4 (Fed. Cir.
2012). On remand, the administrative judge should consider such assertions only
to the extent they are relevant or material to the appellant’s reprisal claims. See
Marren v. Department of Justice , 51 M.S.P.R. 632, 638-39 (1991), aff’d, 980 F.2d
745 (Fed. Cir. 1992) (Table), and modified on other grounds by Robinson
v. U.S. Postal Service, 63 M.S.P.R. 307, 323 n.13 (1994).
¶36In addition, we decline to address the appellant’s allegations pertaining to
his other Board appeals or matters that are otherwise outside the scope of this
IRA appeal.19 PFR File, Tab 7 at 9, 34-40.
¶37Finally, to the extent the appellant argues that the administrative judge was
biased because she unfairly closed the case, PFR File, Tab 7 at 16, we find that
19 We find that the administrative judge correctly denied the appellant’s stay request
because, although the appellant has satisfied the nonfrivolous allegation standard at this
jurisdictional stage, he has not yet provided evidence or argument showing a substantial
likelihood that he will prevail on the merits. Hendy v. Department of Veterans Affairs ,
MSPB Docket No. CH-1221-19-0217-S-1, Stay File (S-1 File), Tab 3; PFR File, Tab 4
at 9; see Mogyorossy v. Department of the Air Force, 96 M.S.P.R. 652, ¶ 25 (2004)
(finding that the administrative judge correctly denied the appellant’s stay request). We
address the appellant’s argument on this issue because the administrative judge denied
his request for an interlocutory appeal of the stay decision. S-1 File, Tab 16; see
Mogyorossy 96 M.S.P.R. 652, ¶ 24 (addressing the appellant’s arguments regarding his
entitlement to a stay in an IRA appeal when the administrative judge denied his request
for a stay and his request for an interlocutory appeal of that decision). 22
this is an insufficient basis to rebut the presumption of honesty and integrity that
accompanies an administrative judge, see 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) for the proposition that an administrative judge’s
conduct during the course of a Board proceeding warrants a new adjudication
only if her comments or actions evidence “a deep-seated favoritism or antagonism
that would make fair judgment impossible.”). In sum, we have considered the
appellant’s remaining evidence and argument on review but find that they do not
warrant a different outcome in this appeal.
ORDER
¶38For 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.23 | Hendy_David_M_CH-1221-19-0217-W-1__Remand_Order.pdf | 2024-06-12 | DAVID M. HENDY v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-19-0217-W-1, June 12, 2024 | CH-1221-19-0217-W-1 | NP |
1,243 | https://www.mspb.gov/decisions/nonprecedential/Johnson_Dedrick_D_AT-0752-18-0743-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEDRICK D. JOHNSON,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0752-18-0743-I-1
DATE: June 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Clark Hazley, Sr. , Bay Pines, Florida, for the appellant.
Barbara S. Patch , St Petersburg, Florida, for the agency.
Kristen Langwell , Hines, 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
sustained his removal for absence without leave. 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).
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. 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 | Johnson_Dedrick_D_AT-0752-18-0743-I-1__Final_Order.pdf | 2024-06-12 | DEDRICK D. JOHNSON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-18-0743-I-1, June 12, 2024 | AT-0752-18-0743-I-1 | NP |
1,244 | https://www.mspb.gov/decisions/nonprecedential/Figueroa_JaimeDC-1221-16-0136-W-3__2795956.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAIME FIGUEROA,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBERS
DC-1221-16-0136-W-3
DC-1221-15-0982-B-2
DATE: June 12, 2024
THIS ORDER IS NONPRECEDENTIAL1
Stephanie Rapp-Tully , Washington, D.C., for the appellant.
Glenn H. Brown , Anchorage, Alaska, for the agency.
Rebecca G. Snowdall , 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
¶1The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in these individual right of action appeals.
For the reasons discussed below, we GRANT the petition for review, VACATE
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, and REMAND the case to the Washington Regional Office
for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2This appeal has an extensive procedural history that is not material to the
issues now before the Board and which we need not repeat here.
The appellant filed two appeals in which he alleged that the Federal Aviation
Administration (FAA or agency) took various personnel actions against him in
retaliation for his protected disclosures. MSPB Docket No. DC-1221-15-0982-
W-1, Initial Appeal File, Tab 1; MSPB Docket No. DC-1221-16-0136-W-1,
Initial Appeal File (0136 IAF), Tab 1. The administrative judge thereafter joined
the two appeals for adjudication. MSPB Docket No. DC -1221-16-0136-W-2,
Appeal File (0136-W-2 AF or AF)2, Tabs 1, 22; MSPB Docket No. DC-1221-15-
0982-B-1, Appeal File, Tab 4.
¶3After a 6-day hearing, MSPB Docket No. DC-1221-16-0136-W -3, Appeal
File (0136-W-3 AF), Tabs 17-22, the administrative judge issued an initial
decision in which he found that the appellant exhausted his administrative
remedies before the Office of Special Counsel (OSC), but failed to show by
preponderant evidence that he made a protected disclosure because he failed to
show that a reasonable person in his position would have believed that the alleged
financial improprieties he disclosed evidenced a violation of law, rule, or
regulation, gross mismanagement, or a gross waste of funds, Figueroa v.
Department of Transportation , MSPB Docket Nos. DC-1221-16-0136-W-3,
DC-1221-15-0982-B-2, Initial Decision (ID) at 49-52 (Aug. 16, 2018); 0136 -W-3
AF, Tab 24. The administrative judge also found that the appellant failed to show
that a second disclosure made to the FAA Administrator was a contributing factor
2 From this point, even before he formally joined the appeals some time later, the
administrative judge treated the appeals as joined. All pertinent pleadings and orders
are contained in 0136-W-2 AF unless otherwise indicated. For simplicity’s sake, all
references to “AF” should be understood to refer to the file in MSPB Docket
No. DC-1221-16-0136-W-2.2
in a personnel action because he did not establish that any of the managers
involved in the personnel actions at issue were aware of the disclosure. ID
at 53-58.
¶4The appellant petitions for review of the initial decision. Petition for
Review File, MSPB Docket No. DC-1221-16-0136-W-3 (PFR File), Tab 1.
The agency responds in opposition to the petition for review and the appellant
replies to the agency’s response. PFR File, Tabs 3-4.
ANALYSIS
¶5The following background information is not disputed. NextGen is an
office within the FAA charged with modernizing the air traffic management
system via technological advancement and other available means. NextGen is run
by an Assistant Administrator who reports to the FAA Administrator. As relevant
here, it is divided by function into six divisions, A though F, each headed by a
director.
¶6NextGen receives appropriated funds which are allocated to performing
offices via a device known as a Project Level Agreement (PLA). PLAs are
funding documents that contain funding levels for particular projects with
schedules, deliverables, and statements of the expected benefits.
Because NextGen is intended to search for the optimal future air traffic
management system, it is normal that not every funded research activity will
achieve the projected deliverable and not every achieved deliverable will result in
the expected benefits.
The appellant did not show by preponderant evidence that his second protected
disclosure was a contributing factor in a personnel action.
¶7The appellant sent an email to the FAA Administrator at his public email
address on January 9, 2015. 0136-W-3 AF, Tab 23, Exhibit QQQQ. In the email,
he made allegations of financial and ethical misconduct on the part of his
superiors and he asserted that they retaliated against him for making internal3
reports about these matters by reassigning him to a position with lesser status and
responsibility. Id.
¶8It is not disputed that the email was read by one of the Administrator’s two
assistants. The administrative judge found, however, that there was no evidence
that any of the managers responsible for the personnel actions taken against the
appellant had any knowledge of the email. ID at 58. On review, the appellant
contends that it is not plausible that no one in the Administrator’s office took note
of the appellant’s email. PFR File, Tab 1 at 15-16.
¶9According to the initial decision, and not disputed by the appellant on
review, the Administrator had a public email address that received “many, many
emails from the public, from media, from all sources.” ID at 54. The
Administrator had two assistants who screened the emails in his public account
and either archived messages, forwarded them to the Administrator, or forwarded
them to other agency employees for action as appropriate. The Administrator
himself had access to the public account, but he never looked at it personally and
relied entirely on his assistants to screen messages from the account. He had a
second, private email address for senior agency managers to use.
¶10The administrative judge found that the agency’s records showed that one of
the two assistants opened and read the appellant’s email. Neither of them
remembered doing so and neither of them took any action on it. The
administrative judge found their testimony credible. ID at 58. The credibility
determinations of an administrative judge are virtually unreviewable, and the
appellant has not offered a sufficient reason here to set them aside. Haebe v.
Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002); Bieber v.
Department of the Army , 287 F.3d 1358, 1364 (Fed. Cir. 2002). Therefore, we
find no basis to disturb the administrative judge’s finding that the appellant failed
to prove by preponderant evidence that his disclosure to the FAA Administrator
was a contributing factor in a personnel action taken against him.4
The appellant showed that he reasonably believed that his first disclosure
was protected.
¶11According to his undisputed testimony, Mr. B arrived at the FAA in
September or October 2013 as Assistant Administrator in charge of the NextGen
program. His arrival was immediately followed by a lengthy furlough, during
which he read a number of Inspector General (IG) reports concerning the lack of
transparency in how NextGen pre-implementation funds3 were being used.
ID at 38-39. He met with the new FAA Administrator and the new Deputy
Administrator to discuss the agency’s priorities and they wanted him to focus on
improvement in the management and documentation of pre-implementation
funds. Id.
¶12When the furlough was over, Mr. B asked Mr. J to put together a study of
the issues in pre-implementation funding. ID at 26, 39. Mr. J testified that there
was an existing audit done recently by Mr. E comparing expenditures to
deliverables and which had found $50 million in missing deliverables. ID at 27.
“Missing” did not necessarily mean the funds had been misappropriated, but
perhaps that there was a lack of proper documentation. ID at 27. Mr. B and Mr. J
both testified that Mr. B gave no specific guidance about the method or means by
which Mr. J was to complete the assignment. ID at 27, 40. Mr. J selected his
own team, which included, as relevant here, the appellant and Mr. W. ID at 27.
¶13At the end of May 2014, Mr. J presented Mr. B with a 90% draft of a
document titled “Pre-Implementation Funding Internal Review” (IRR). ID at 28;
AF, Tabs 133-34. Mr. B had the draft distributed internally to senior
management, and his staff collected comments into a spreadsheet, which was
presented to Mr. J and the appellant the day before a meeting designed to discuss
the IRR. ID at 14, 41-42; AF, Tab 100.
¶14According to his OSC complaint, the appellant, as a co-author of the IRR,
disclosed that there were nearly $50 million in funded program deliverables that
3 This relates to how money is spent before acquisition contracts are executed.
Pre-implementation funding is the largest portion of NextGen’s budget.5
could not be found. 0136 IAF, Tab 1 at 12; AF, Tabs 133-34. After a thorough
and detailed summary of the hearing testimony that neither party disputes,
the administrative judge concluded that the appellant failed to show by
preponderant evidence that he reasonably believed that his disclosure evidenced a
violation of law, rule, or regulation, a gross waste of funds, or gross
mismanagement. In making this finding, the administrative judge relied on two
main considerations. First, he noted that the IRR received a great deal of
criticism when it was circulated among the NextGen senior management team.
ID at 50-51. Second, he characterized the appellant’s disclosure as a
disagreement about policy matters and, in doing so, he credited the testimony of
Mr. F that the appellant’s disclosure “was a contrived attack on the current
NextGen leadership implying that the appellant . . . had opinions about how to
manage the NextGen activities which were not accepted by current leadership or
which had fallen out of favor.” ID at 51-52.
¶15A protected disclosure includes any disclosure of information which the
employee reasonably believes evidences, inter alia, a violation of law, rule, or
regulation, gross mismanagement, or a gross waste of funds. 5 U.S.C. § 2302(b)
(8). The test of a reasonable belief is whether a disinterested observer with
knowledge of the essential facts known to and readily ascertainable by the
employee could reasonably conclude that the actions evidenced, as relevant here,
a violation of law, rule, or regulation, gross mismanagement, or a gross waste of
funds. Lachance v. White , 174 F.3d 1378, 1381 (Fed. Cir. 1999); Ayers v.
Department of the Army , 123 M.S.P.R. 11, ¶ 13 (2015).
¶16The initial decision stated, “neither the Board nor Congress requires more
than the belief be reasonable.” ID at 48. It then said, however, that “[t]he
appellant’s allegation must be reasonable and not ‘debatable among reasonable
people.’” Id. In Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶ 9
(2015), which the administrative judge cited in support of the “not debatable
among reasonable people” test, the Board actually noted that Congress had6
specifically disapproved of the test because it imposed additional burdens of
proof on the employee that were not present in the statute. The Board clarified
that the employee need only show that he had a reasonable belief that his
disclosure evidenced the kind of misconduct identified in 5 U.S.C. § 2302(b)(8),
rather than a policy disagreement. Webb, 122 M.S.P.R. 248, ¶ 9. In light of the
foregoing, the administrative judge erred by finding that the appellant failed to
show that his belief was reasonable because he did not disclose impropriety that
was not debatable among reasonable people.
¶17The initial decision also placed too much weight on the fact that other
managers disagreed with the appellant’s conclusions without considering the
nature of those disagreements and the extent to which they related (or did not
relate) to his key disclosure. The Board has held that it is error to conclude that a
belief is not reasonable simply because management officials do not agree with it.
Aquino v. Department of Homeland Security , 121 M.S.P.R. 35, ¶ 16 (2014);
Miller v. Department of Homeland Security , 111 M.S.P.R. 312, ¶ 17 (2009). As a
factual matter, however, the degree to which other managers actually disputed the
appellant’s findings is subject to debate. For example, comment 1 calls for a
discussion of past efforts to solve “the PLA problem” and why they did not work.
AF, Tab 100 at 4. Comment 6 calls for creating a new process for funding
internal activities now handled through the PLA process that do not fit the PLA
format or purpose. Id. at 5. Comment 10 criticizes the authors for re-assessing
financial controls for a time period that had already been audited even though that
was the assignment given to them by Mr. B. Id. at 6. Comment 11 suggests that
the authors are biased and that someone else should be assigned to the project.
Id. Comments 17-18 call for a historical discussion. Id. at 8-9. Comment 25
questions the purpose of the assignment. Id. at 10. Comment 27 questions the
competence of the authors. Id. at 11-12. Comment 30 complains about not
having been consulted earlier when the authors had not been instructed to include
stakeholders. Id. at 12-13. Comments 35 and 37-38 take issue with a statement7
that recommendations were not implemented but then agree that recommendations
were not implemented. Id. at 13-14.
¶18These comments, and many others, may reflect a great deal of disagreement
about the contents of the IRR as well as a misunderstanding on the part of the
commenters of the assignment that Mr. B gave the IRR’s authors, but they do not
relate to the appellant’s core disclosure. As to that, comments 39-45, pertaining
to the appellant’s particular disclosure of “178 missing deliverables valued at
$49.2 million,” did not dispute the appellant’s figures but instead, requested that
the report define the term “missing deliverable” and clarify that the figures
include lawful expenditures that were improperly or incompletely documented.
AF, Tab 100 at 14-16. Comment 116 noted that efforts were underway to recover
missing documentation, that some improperly logged files had been located, and
further efforts to correct documentation problems were ongoing. Both of these
comments are an acknowledgment that the underlying problem disclosed by the
appellant, that there were missing deliverables that had not been accounted for,
in fact existed. Id. at 31.
¶19The initial decision also failed to take into account evidence that
corroborated the appellant’s disclosure, such as the substantially similar report
prepared by Mr. E and the existing IG reports that Mr. B reviewed during the
furlough, which had all reached similar broad conclusions about mismanagement
of NextGen pre-implementation funds. In addition, the administrative judge
rejected the appellant’s proposed hearing exhibit PPPP, a document entitled
“FAA’s Management and Oversight of Development Funding Exit Conference
Document March 9, 2017.” AF, Tab 127. The administrative judge found that
the document was not relevant because the truth of the appellant’s disclosure was
not at issue in this appeal. MSPB Docket No. DC-1221-16-0136-W-3,
Hearing Compact Disc, June 4, 2018 (14:00).
¶20The administrative judge is correct that the appellant need not prove that his
disclosure actually evidenced a violation of law, rule, or regulation, gross8
mismanagement, or a gross waste of funds. Scoggins v. Department of the Army ,
123 M.S.P.R. 592, ¶ 11 (2016). However, the U.S. Court of Appeals for the
Federal Circuit and our own decisions have held that the fact that others share the
appellant’s belief is a factor that weighs in favor of finding his belief reasonable.
Greenspan v. Department of Veterans Affairs , 464 F.3d 1297, 1305 (Fed. Cir.
2006); Ayers, 123 M.S.P.R. 11, ¶ 22. The Exit Conference Document was
prepared by the agency’s IG and is a summary of an analysis of NextGen
developmental funding during fiscal years 2009-2015 by auditors who “conducted
our work in accordance with generally accepted Government auditing standards.”
AF, Tab 127 at 4. In addition to citing a lack of established procedures for
tracking expenditures, the IG stated:
FAA identified 640 deliverables valued at $109 million missing from
the Office of NextGen. Although FAA took action to recover
missing NextGen deliverables from program offices, 118 remained
missing or late from August 2010 to 2016.
AF, Tab 127 at 5. The excluded exhibit provides significant support for the
appellant’s claim that his belief was reasonable and we find that the
administrative judge abused his discretion by excluding it.
¶21The initial decision’s second basis for finding that the appellant failed to
show that he had a reasonable belief that his disclosure was protected was that the
disclosure was about a policy disagreement and was motivated by a desire to
discredit senior management. The appellant’s disclosure that there were
178 missing deliverables valued at $49.2 million is not reasonably characterized
as a disagreement about policy. The initial decision noted testimony from Mr. W
that a significant proportion of the missing funds could be accounted for by
projects being funded directly by a budget committee outside the PLA process.
ID at 45. The IG expressed disapproval of the extra-PLA funding process
because it allowed for funding projects before there was an approved budget or
scope of work. AF, Tab 127 at 5. The expert opinion of the IG’s trained auditors
that NextGen’s extra-PLA funding process was improper undercuts the9
administrative judge’s conclusion that the decision to fund projects in this fashion
was a debatable question of policy. Even assuming arguendo that a portion of the
missing funds could be attributable to financial practices that were debatable
matters of policy, the majority of the missing funds covered by the appellant’s
disclosure were not attributable to these practices. We find that the
administrative judge’s conclusion that the appellant’s disclosure concerned
debatable matters of policy is not supported by the weight of the record evidence.
¶22The administrative judge also credited Mr. F’s testimony that the IRR was a
“contrived attack” on NextGen management and, by implication, not a genuine
report of misconduct. ID at 52. The Board has repeatedly held that when a
putative whistleblower has met the reasonable belief test, the motivation for his
disclosures is irrelevant. Sood v. Department of Veterans Affairs , 88 M.S.P.R.
214, ¶ 14 n.3 (2001); Carter v. Department of the Army , 62 M.S.P.R. 393, 402
(1994), aff’d, 45 F.3d 444 (Fed. Cir. 1995) (Table). The fact that the appellant
may have been perceived to some extent as a troublemaker is not material to the
question of whether a disinterested observer with the facts known to and
reasonably ascertainable by him could conclude that the agency’s financial
activities violated a law, rule, or regulation, or constituted gross mismanagement
or a gross waste of funds. Johnson v. Department of Defense , 87 M.S.P.R. 454,
¶ 10 (2000). Because the appellant’s alleged motivation is not a consideration
that is pertinent to the question of whether the appellant reasonably believed his
disclosure was protected, the fact that the administrative judge found that Mr. F’s
assertion about the appellant’s alleged motivation was credible is not a binding
and material credibility determination.
¶23For all the above reasons, we find that the appellant proved by preponderant
evidence that he had a reasonable belief that he made a protected disclosure of
gross mismanagement.4 We further find that, within approximately a year after
4 Johnson v. Department of Justice , 104 M.S.P.R. 624, ¶ 16 (2007) (defining “gross
mismanagement” as a management action or inaction that creates a substantial risk of
significant adverse impact on the agency’s ability to accomplish its mission, that is10
his disclosure in May 2014, Mr. B reassigned the appellant in January 2015 and
Ms. W failed to select him for his former position when the agency readvertised it
in June 2015. Because these actions were taken by management officials with
direct knowledge of the appellant’s disclosures and took place with a period of
time such that a reasonable person could conclude that the disclosure was a
contributing factor in the personnel action, the appellant has shown contributing
factor. Mastrullo v. Department of Labor , 123 M.S.P.R. 110, ¶¶ 18, 21 (2015)
(stating than an appellant may prove that a disclosure was a contributing factor in
a personnel action under the knowledge/timing test by demonstrating that the
official taking the personnel action knew of the disclosure, and that the personnel
action occurred within 1 to 2 years of the disclosure). Accordingly, we find that
the appellant has established a prima facie case of reprisal for whistleblowing
with respect to these two personnel actions.
¶24The appellant further contended below that the agency subjected him to an
additional personnel action when he was subjected to a hostile working
environment. On remand, the administrative judge shall determine whether the
appellant has shown that he was subjected to treatment that individually or
collectively, had practical and significant effects on the overall nature and quality
of his working conditions, duties, or responsibilities so as to constitute a
significant change in his duties, responsibilities, or working conditions under
5 U.S.C. § 2302(a)(2)(A)(xii). See Skarada v. Department of Veterans Affairs ,
2022 MSPB 17, ¶ 16. If the administrative judge finds that the appellant was
affected by a personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii), he shall
more than de minimis wrongdoing or negligence, and that does not include management
decisions that are merely debatable); cf. Wood v. Department of Defense , 100 M.S.P.R.
133, ¶ 12 (2005) (finding that the appellant made a nonfrivolous allegation that he
disclosed gross mismanagement when he reported that an agency official failed to
request an investigation into large-scale thefts by agency employees and for having
failed to redeem $90,000 in discount coupons; under the circumstances and in light of
the alleged value of the coupons, the Board found it was not debatable among
reasonable people that the disclosures alleged serious errors by agency management).11
determine whether the appellant has shown that his protected disclosure was a
contributing factor to that personnel action.
The appeal must be remanded for further proceedings.
¶25Because the appellant has made out a prima facie case, the agency must
show by clear and convincing evidence that it would have taken the same
personnel actions in the absence of the protected disclosure. 5 U.S.C. § 1221(e)
(1)-(2); Lu v. Department of Homeland Security , 122 M.S.P.R. 335, ¶ 7 (2015).
The administrative judge made no findings regarding this issue. We find it
appropriate to remand this case because the administrative judge, as the hearing
officer, is in the best position to make factual findings and detailed credibility
assessments on the remaining issue. Turner v. Department of Agriculture ,
2023 MSPB 25, ¶ 19.
ORDER
¶26For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.5
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
5 In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.12 | Figueroa_JaimeDC-1221-16-0136-W-3__2795956.pdf | 2024-06-12 | JAIME FIGUEROA v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. DC-1221-15-0982-, June 12, 2024 | DC-1221-15-0982- | NP |
1,245 | https://www.mspb.gov/decisions/nonprecedential/Figueroa_JaimeDC-1221-15-0982-B-2__2795998.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAIME FIGUEROA,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBERS
DC-1221-16-0136-W-3
DC-1221-15-0982-B-2
DATE: June 12, 2024
THIS ORDER IS NONPRECEDENTIAL1
Stephanie Rapp-Tully , Washington, D.C., for the appellant.
Glenn H. Brown , Anchorage, Alaska, for the agency.
Rebecca G. Snowdall , 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
¶1The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in these individual right of action appeals.
For the reasons discussed below, we GRANT the petition for review, VACATE
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, and REMAND the case to the Washington Regional Office
for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2This appeal has an extensive procedural history that is not material to the
issues now before the Board and which we need not repeat here.
The appellant filed two appeals in which he alleged that the Federal Aviation
Administration (FAA or agency) took various personnel actions against him in
retaliation for his protected disclosures. MSPB Docket No. DC-1221-15-0982-
W-1, Initial Appeal File, Tab 1; MSPB Docket No. DC-1221-16-0136-W-1,
Initial Appeal File (0136 IAF), Tab 1. The administrative judge thereafter joined
the two appeals for adjudication. MSPB Docket No. DC -1221-16-0136-W-2,
Appeal File (0136-W-2 AF or AF)2, Tabs 1, 22; MSPB Docket No. DC-1221-15-
0982-B-1, Appeal File, Tab 4.
¶3After a 6-day hearing, MSPB Docket No. DC-1221-16-0136-W -3, Appeal
File (0136-W-3 AF), Tabs 17-22, the administrative judge issued an initial
decision in which he found that the appellant exhausted his administrative
remedies before the Office of Special Counsel (OSC), but failed to show by
preponderant evidence that he made a protected disclosure because he failed to
show that a reasonable person in his position would have believed that the alleged
financial improprieties he disclosed evidenced a violation of law, rule, or
regulation, gross mismanagement, or a gross waste of funds, Figueroa v.
Department of Transportation , MSPB Docket Nos. DC-1221-16-0136-W-3,
DC-1221-15-0982-B-2, Initial Decision (ID) at 49-52 (Aug. 16, 2018); 0136 -W-3
AF, Tab 24. The administrative judge also found that the appellant failed to show
that a second disclosure made to the FAA Administrator was a contributing factor
2 From this point, even before he formally joined the appeals some time later, the
administrative judge treated the appeals as joined. All pertinent pleadings and orders
are contained in 0136-W-2 AF unless otherwise indicated. For simplicity’s sake, all
references to “AF” should be understood to refer to the file in MSPB Docket
No. DC-1221-16-0136-W-2.2
in a personnel action because he did not establish that any of the managers
involved in the personnel actions at issue were aware of the disclosure. ID
at 53-58.
¶4The appellant petitions for review of the initial decision. Petition for
Review File, MSPB Docket No. DC-1221-16-0136-W-3 (PFR File), Tab 1.
The agency responds in opposition to the petition for review and the appellant
replies to the agency’s response. PFR File, Tabs 3-4.
ANALYSIS
¶5The following background information is not disputed. NextGen is an
office within the FAA charged with modernizing the air traffic management
system via technological advancement and other available means. NextGen is run
by an Assistant Administrator who reports to the FAA Administrator. As relevant
here, it is divided by function into six divisions, A though F, each headed by a
director.
¶6NextGen receives appropriated funds which are allocated to performing
offices via a device known as a Project Level Agreement (PLA). PLAs are
funding documents that contain funding levels for particular projects with
schedules, deliverables, and statements of the expected benefits.
Because NextGen is intended to search for the optimal future air traffic
management system, it is normal that not every funded research activity will
achieve the projected deliverable and not every achieved deliverable will result in
the expected benefits.
The appellant did not show by preponderant evidence that his second protected
disclosure was a contributing factor in a personnel action.
¶7The appellant sent an email to the FAA Administrator at his public email
address on January 9, 2015. 0136-W-3 AF, Tab 23, Exhibit QQQQ. In the email,
he made allegations of financial and ethical misconduct on the part of his
superiors and he asserted that they retaliated against him for making internal3
reports about these matters by reassigning him to a position with lesser status and
responsibility. Id.
¶8It is not disputed that the email was read by one of the Administrator’s two
assistants. The administrative judge found, however, that there was no evidence
that any of the managers responsible for the personnel actions taken against the
appellant had any knowledge of the email. ID at 58. On review, the appellant
contends that it is not plausible that no one in the Administrator’s office took note
of the appellant’s email. PFR File, Tab 1 at 15-16.
¶9According to the initial decision, and not disputed by the appellant on
review, the Administrator had a public email address that received “many, many
emails from the public, from media, from all sources.” ID at 54. The
Administrator had two assistants who screened the emails in his public account
and either archived messages, forwarded them to the Administrator, or forwarded
them to other agency employees for action as appropriate. The Administrator
himself had access to the public account, but he never looked at it personally and
relied entirely on his assistants to screen messages from the account. He had a
second, private email address for senior agency managers to use.
¶10The administrative judge found that the agency’s records showed that one of
the two assistants opened and read the appellant’s email. Neither of them
remembered doing so and neither of them took any action on it. The
administrative judge found their testimony credible. ID at 58. The credibility
determinations of an administrative judge are virtually unreviewable, and the
appellant has not offered a sufficient reason here to set them aside. Haebe v.
Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002); Bieber v.
Department of the Army , 287 F.3d 1358, 1364 (Fed. Cir. 2002). Therefore, we
find no basis to disturb the administrative judge’s finding that the appellant failed
to prove by preponderant evidence that his disclosure to the FAA Administrator
was a contributing factor in a personnel action taken against him.4
The appellant showed that he reasonably believed that his first disclosure
was protected.
¶11According to his undisputed testimony, Mr. B arrived at the FAA in
September or October 2013 as Assistant Administrator in charge of the NextGen
program. His arrival was immediately followed by a lengthy furlough, during
which he read a number of Inspector General (IG) reports concerning the lack of
transparency in how NextGen pre-implementation funds3 were being used.
ID at 38-39. He met with the new FAA Administrator and the new Deputy
Administrator to discuss the agency’s priorities and they wanted him to focus on
improvement in the management and documentation of pre-implementation
funds. Id.
¶12When the furlough was over, Mr. B asked Mr. J to put together a study of
the issues in pre-implementation funding. ID at 26, 39. Mr. J testified that there
was an existing audit done recently by Mr. E comparing expenditures to
deliverables and which had found $50 million in missing deliverables. ID at 27.
“Missing” did not necessarily mean the funds had been misappropriated, but
perhaps that there was a lack of proper documentation. ID at 27. Mr. B and Mr. J
both testified that Mr. B gave no specific guidance about the method or means by
which Mr. J was to complete the assignment. ID at 27, 40. Mr. J selected his
own team, which included, as relevant here, the appellant and Mr. W. ID at 27.
¶13At the end of May 2014, Mr. J presented Mr. B with a 90% draft of a
document titled “Pre-Implementation Funding Internal Review” (IRR). ID at 28;
AF, Tabs 133-34. Mr. B had the draft distributed internally to senior
management, and his staff collected comments into a spreadsheet, which was
presented to Mr. J and the appellant the day before a meeting designed to discuss
the IRR. ID at 14, 41-42; AF, Tab 100.
¶14According to his OSC complaint, the appellant, as a co-author of the IRR,
disclosed that there were nearly $50 million in funded program deliverables that
3 This relates to how money is spent before acquisition contracts are executed.
Pre-implementation funding is the largest portion of NextGen’s budget.5
could not be found. 0136 IAF, Tab 1 at 12; AF, Tabs 133-34. After a thorough
and detailed summary of the hearing testimony that neither party disputes,
the administrative judge concluded that the appellant failed to show by
preponderant evidence that he reasonably believed that his disclosure evidenced a
violation of law, rule, or regulation, a gross waste of funds, or gross
mismanagement. In making this finding, the administrative judge relied on two
main considerations. First, he noted that the IRR received a great deal of
criticism when it was circulated among the NextGen senior management team.
ID at 50-51. Second, he characterized the appellant’s disclosure as a
disagreement about policy matters and, in doing so, he credited the testimony of
Mr. F that the appellant’s disclosure “was a contrived attack on the current
NextGen leadership implying that the appellant . . . had opinions about how to
manage the NextGen activities which were not accepted by current leadership or
which had fallen out of favor.” ID at 51-52.
¶15A protected disclosure includes any disclosure of information which the
employee reasonably believes evidences, inter alia, a violation of law, rule, or
regulation, gross mismanagement, or a gross waste of funds. 5 U.S.C. § 2302(b)
(8). The test of a reasonable belief is whether a disinterested observer with
knowledge of the essential facts known to and readily ascertainable by the
employee could reasonably conclude that the actions evidenced, as relevant here,
a violation of law, rule, or regulation, gross mismanagement, or a gross waste of
funds. Lachance v. White , 174 F.3d 1378, 1381 (Fed. Cir. 1999); Ayers v.
Department of the Army , 123 M.S.P.R. 11, ¶ 13 (2015).
¶16The initial decision stated, “neither the Board nor Congress requires more
than the belief be reasonable.” ID at 48. It then said, however, that “[t]he
appellant’s allegation must be reasonable and not ‘debatable among reasonable
people.’” Id. In Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶ 9
(2015), which the administrative judge cited in support of the “not debatable
among reasonable people” test, the Board actually noted that Congress had6
specifically disapproved of the test because it imposed additional burdens of
proof on the employee that were not present in the statute. The Board clarified
that the employee need only show that he had a reasonable belief that his
disclosure evidenced the kind of misconduct identified in 5 U.S.C. § 2302(b)(8),
rather than a policy disagreement. Webb, 122 M.S.P.R. 248, ¶ 9. In light of the
foregoing, the administrative judge erred by finding that the appellant failed to
show that his belief was reasonable because he did not disclose impropriety that
was not debatable among reasonable people.
¶17The initial decision also placed too much weight on the fact that other
managers disagreed with the appellant’s conclusions without considering the
nature of those disagreements and the extent to which they related (or did not
relate) to his key disclosure. The Board has held that it is error to conclude that a
belief is not reasonable simply because management officials do not agree with it.
Aquino v. Department of Homeland Security , 121 M.S.P.R. 35, ¶ 16 (2014);
Miller v. Department of Homeland Security , 111 M.S.P.R. 312, ¶ 17 (2009). As a
factual matter, however, the degree to which other managers actually disputed the
appellant’s findings is subject to debate. For example, comment 1 calls for a
discussion of past efforts to solve “the PLA problem” and why they did not work.
AF, Tab 100 at 4. Comment 6 calls for creating a new process for funding
internal activities now handled through the PLA process that do not fit the PLA
format or purpose. Id. at 5. Comment 10 criticizes the authors for re-assessing
financial controls for a time period that had already been audited even though that
was the assignment given to them by Mr. B. Id. at 6. Comment 11 suggests that
the authors are biased and that someone else should be assigned to the project.
Id. Comments 17-18 call for a historical discussion. Id. at 8-9. Comment 25
questions the purpose of the assignment. Id. at 10. Comment 27 questions the
competence of the authors. Id. at 11-12. Comment 30 complains about not
having been consulted earlier when the authors had not been instructed to include
stakeholders. Id. at 12-13. Comments 35 and 37-38 take issue with a statement7
that recommendations were not implemented but then agree that recommendations
were not implemented. Id. at 13-14.
¶18These comments, and many others, may reflect a great deal of disagreement
about the contents of the IRR as well as a misunderstanding on the part of the
commenters of the assignment that Mr. B gave the IRR’s authors, but they do not
relate to the appellant’s core disclosure. As to that, comments 39-45, pertaining
to the appellant’s particular disclosure of “178 missing deliverables valued at
$49.2 million,” did not dispute the appellant’s figures but instead, requested that
the report define the term “missing deliverable” and clarify that the figures
include lawful expenditures that were improperly or incompletely documented.
AF, Tab 100 at 14-16. Comment 116 noted that efforts were underway to recover
missing documentation, that some improperly logged files had been located, and
further efforts to correct documentation problems were ongoing. Both of these
comments are an acknowledgment that the underlying problem disclosed by the
appellant, that there were missing deliverables that had not been accounted for,
in fact existed. Id. at 31.
¶19The initial decision also failed to take into account evidence that
corroborated the appellant’s disclosure, such as the substantially similar report
prepared by Mr. E and the existing IG reports that Mr. B reviewed during the
furlough, which had all reached similar broad conclusions about mismanagement
of NextGen pre-implementation funds. In addition, the administrative judge
rejected the appellant’s proposed hearing exhibit PPPP, a document entitled
“FAA’s Management and Oversight of Development Funding Exit Conference
Document March 9, 2017.” AF, Tab 127. The administrative judge found that
the document was not relevant because the truth of the appellant’s disclosure was
not at issue in this appeal. MSPB Docket No. DC-1221-16-0136-W-3,
Hearing Compact Disc, June 4, 2018 (14:00).
¶20The administrative judge is correct that the appellant need not prove that his
disclosure actually evidenced a violation of law, rule, or regulation, gross8
mismanagement, or a gross waste of funds. Scoggins v. Department of the Army ,
123 M.S.P.R. 592, ¶ 11 (2016). However, the U.S. Court of Appeals for the
Federal Circuit and our own decisions have held that the fact that others share the
appellant’s belief is a factor that weighs in favor of finding his belief reasonable.
Greenspan v. Department of Veterans Affairs , 464 F.3d 1297, 1305 (Fed. Cir.
2006); Ayers, 123 M.S.P.R. 11, ¶ 22. The Exit Conference Document was
prepared by the agency’s IG and is a summary of an analysis of NextGen
developmental funding during fiscal years 2009-2015 by auditors who “conducted
our work in accordance with generally accepted Government auditing standards.”
AF, Tab 127 at 4. In addition to citing a lack of established procedures for
tracking expenditures, the IG stated:
FAA identified 640 deliverables valued at $109 million missing from
the Office of NextGen. Although FAA took action to recover
missing NextGen deliverables from program offices, 118 remained
missing or late from August 2010 to 2016.
AF, Tab 127 at 5. The excluded exhibit provides significant support for the
appellant’s claim that his belief was reasonable and we find that the
administrative judge abused his discretion by excluding it.
¶21The initial decision’s second basis for finding that the appellant failed to
show that he had a reasonable belief that his disclosure was protected was that the
disclosure was about a policy disagreement and was motivated by a desire to
discredit senior management. The appellant’s disclosure that there were
178 missing deliverables valued at $49.2 million is not reasonably characterized
as a disagreement about policy. The initial decision noted testimony from Mr. W
that a significant proportion of the missing funds could be accounted for by
projects being funded directly by a budget committee outside the PLA process.
ID at 45. The IG expressed disapproval of the extra-PLA funding process
because it allowed for funding projects before there was an approved budget or
scope of work. AF, Tab 127 at 5. The expert opinion of the IG’s trained auditors
that NextGen’s extra-PLA funding process was improper undercuts the9
administrative judge’s conclusion that the decision to fund projects in this fashion
was a debatable question of policy. Even assuming arguendo that a portion of the
missing funds could be attributable to financial practices that were debatable
matters of policy, the majority of the missing funds covered by the appellant’s
disclosure were not attributable to these practices. We find that the
administrative judge’s conclusion that the appellant’s disclosure concerned
debatable matters of policy is not supported by the weight of the record evidence.
¶22The administrative judge also credited Mr. F’s testimony that the IRR was a
“contrived attack” on NextGen management and, by implication, not a genuine
report of misconduct. ID at 52. The Board has repeatedly held that when a
putative whistleblower has met the reasonable belief test, the motivation for his
disclosures is irrelevant. Sood v. Department of Veterans Affairs , 88 M.S.P.R.
214, ¶ 14 n.3 (2001); Carter v. Department of the Army , 62 M.S.P.R. 393, 402
(1994), aff’d, 45 F.3d 444 (Fed. Cir. 1995) (Table). The fact that the appellant
may have been perceived to some extent as a troublemaker is not material to the
question of whether a disinterested observer with the facts known to and
reasonably ascertainable by him could conclude that the agency’s financial
activities violated a law, rule, or regulation, or constituted gross mismanagement
or a gross waste of funds. Johnson v. Department of Defense , 87 M.S.P.R. 454,
¶ 10 (2000). Because the appellant’s alleged motivation is not a consideration
that is pertinent to the question of whether the appellant reasonably believed his
disclosure was protected, the fact that the administrative judge found that Mr. F’s
assertion about the appellant’s alleged motivation was credible is not a binding
and material credibility determination.
¶23For all the above reasons, we find that the appellant proved by preponderant
evidence that he had a reasonable belief that he made a protected disclosure of
gross mismanagement.4 We further find that, within approximately a year after
4 Johnson v. Department of Justice , 104 M.S.P.R. 624, ¶ 16 (2007) (defining “gross
mismanagement” as a management action or inaction that creates a substantial risk of
significant adverse impact on the agency’s ability to accomplish its mission, that is10
his disclosure in May 2014, Mr. B reassigned the appellant in January 2015 and
Ms. W failed to select him for his former position when the agency readvertised it
in June 2015. Because these actions were taken by management officials with
direct knowledge of the appellant’s disclosures and took place with a period of
time such that a reasonable person could conclude that the disclosure was a
contributing factor in the personnel action, the appellant has shown contributing
factor. Mastrullo v. Department of Labor , 123 M.S.P.R. 110, ¶¶ 18, 21 (2015)
(stating than an appellant may prove that a disclosure was a contributing factor in
a personnel action under the knowledge/timing test by demonstrating that the
official taking the personnel action knew of the disclosure, and that the personnel
action occurred within 1 to 2 years of the disclosure). Accordingly, we find that
the appellant has established a prima facie case of reprisal for whistleblowing
with respect to these two personnel actions.
¶24The appellant further contended below that the agency subjected him to an
additional personnel action when he was subjected to a hostile working
environment. On remand, the administrative judge shall determine whether the
appellant has shown that he was subjected to treatment that individually or
collectively, had practical and significant effects on the overall nature and quality
of his working conditions, duties, or responsibilities so as to constitute a
significant change in his duties, responsibilities, or working conditions under
5 U.S.C. § 2302(a)(2)(A)(xii). See Skarada v. Department of Veterans Affairs ,
2022 MSPB 17, ¶ 16. If the administrative judge finds that the appellant was
affected by a personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii), he shall
more than de minimis wrongdoing or negligence, and that does not include management
decisions that are merely debatable); cf. Wood v. Department of Defense , 100 M.S.P.R.
133, ¶ 12 (2005) (finding that the appellant made a nonfrivolous allegation that he
disclosed gross mismanagement when he reported that an agency official failed to
request an investigation into large-scale thefts by agency employees and for having
failed to redeem $90,000 in discount coupons; under the circumstances and in light of
the alleged value of the coupons, the Board found it was not debatable among
reasonable people that the disclosures alleged serious errors by agency management).11
determine whether the appellant has shown that his protected disclosure was a
contributing factor to that personnel action.
The appeal must be remanded for further proceedings.
¶25Because the appellant has made out a prima facie case, the agency must
show by clear and convincing evidence that it would have taken the same
personnel actions in the absence of the protected disclosure. 5 U.S.C. § 1221(e)
(1)-(2); Lu v. Department of Homeland Security , 122 M.S.P.R. 335, ¶ 7 (2015).
The administrative judge made no findings regarding this issue. We find it
appropriate to remand this case because the administrative judge, as the hearing
officer, is in the best position to make factual findings and detailed credibility
assessments on the remaining issue. Turner v. Department of Agriculture ,
2023 MSPB 25, ¶ 19.
ORDER
¶26For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.5
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
5 In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.12 | Figueroa_JaimeDC-1221-15-0982-B-2__2795998.pdf | 2024-06-12 | JAIME FIGUEROA v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. DC-1221-15-0982-, June 12, 2024 | DC-1221-15-0982- | NP |
1,246 | https://www.mspb.gov/decisions/nonprecedential/Santangelo_Janet_R_PH-1221-16-0237-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JANET R. SANTANGELO,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
PH-1221-16-0237-W-1
DATE: June 12, 2024
THIS ORDER IS NONPRECEDENTIAL1
Ronica Scales , Esquire, Shaun Southworth , Esquire, and Terina Williams ,
Esquire, Atlanta, Georgia, for the appellant.
Alison K. Sablick , Esquire, New York, New York, 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 her 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, VACATE the initial decision, and REMAND the case to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant was a GS-14 Supervisory Appeals Officer for the agency’s
Internal Revenue Service. Initial Appeal File (IAF), Tab 10 at 167. In 1997, she
was temporarily promoted to the GS-15 grade level. Id. at 43, 167. She was
returned to the GS-14 grade level in 2002, although she maintained that she
continued to perform GS-15 grade level work.2 Id. at 167.
In the years following the end of her temporary promotion, the appellant
made numerous purported disclosures about the alleged misclassification of her
position to various agency officials. Id. at 167-68. For instance, she submitted
five or six requests to human resources about her alleged misclassification
between 2010 and 2012, and raised her alleged misclassification with her
supervisor between January 2011 and June 2012. Id. at 168.
The appellant also made purported disclosures regarding two other matters.
First, in August 2013, she informed her supervisor and another management
official about an alleged inconsistency in her team’s case productivity data. IAF,
Tab 10 at 172, Tab 25 at 65-69, 162-63. Additionally, on December 12, 2013, the
appellant suffered a laceration to her face when a subordinate threw a case file at
her. IAF, Tab 10 at 173. Approximately 20 minutes after that incident, she
described the altercation in an email to her supervisor, other management
officials, and officials with the Treasury Inspector General for Tax
Administration (TIGTA). IAF, Tab 25 at 73. When she returned to work on
December 16, 2013, she informed some of these same individuals that the locks
around her office had not been changed, as she asserted should have been done
2 At times, the appellant was on a pay plan in which the IR-04 grade level was
equivalent to GS-14 grade level and the IR-03 grade level was equivalent to the GS-15
grade level. IAF, Tab 5 at 50, Tab 10 at 178. For convenience, we refer to the
appellant’s grade level by its general schedule equivalent.2
following the incident to prevent her subordinate’s unannounced entry. IAF,
Tab 10 at 86-87, 174.
On December 23 and 30, 2013, the appellant informed officials with
TIGTA and agency officials charged with oversight of security matters about
alleged inaccuracies in the agency and local police reports regarding the
altercation. Id. at 93-94, 175. On February 6, 2014, she similarly informed her
new supervisor, among others, about the alleged inaccuracies. Id.
at 92-94, 175-76.
On February 27, 2014, the agency proposed the appellant’s suspension for
failing to follow managerial instructions. Id. at 110. Specifically, she failed to
assign a case and to attend a counseling session as directed. Id. The appellant
did not respond to the proposal notice. Id. at 114. The agency sustained the
proposal and suspended the appellant for 5 days. Id. at 113-15.
On June 5, 2014, the appellant’s supervisor ordered her to stop raising the
issue of the alleged misclassification of her position unless she had new and
material information to offer because the agency had repeatedly addressed her
concerns and rejected them. Id. at 117. On June 19, 2014, the appellant
forwarded her supervisor a 2010 email in which she had raised her
misclassification claim to an agency official. Id. at 119. On August 1, 2014, the
agency proposed the appellant’s suspension for her failure to follow the
instruction. Id. at 123. The appellant did not respond to the proposal notice. Id.
at 127. On October 9, 2014, the agency sustained the proposal and suspended the
appellant for 10 days. Id. at 126-28.
On February 18, 2015, the appellant discussed with her supervisor what she
called the “old business” of, inter alia, the alleged misclassification of her
position and the December 2013 altercation. IAF, Tab 5 at 41, Tab 10 at 180,
Tab 26 at 82. He told her that they could continue their discussion the following
week and that she should send him a single email with a list of issues she wanted
to discuss. IAF, Tab 5 at 41. He “[s]pecifically advised her to not send [him]3
multiple emails” on the subject. Id. Before and after the February 25, 2015
meeting, the appellant sent her supervisor approximately 32 emails regarding her
“old business.” IAF, Tab 5 at 42-43, Tab 10 at 180-81.
On June 24, 2015, the agency proposed the appellant’s removal based on
4 charges with a total of 33 specifications. IAF, Tab 5 at 20-26. The agency
charged the appellant with the following: (1) insubordination; (2) failure to
follow management directives; (3) misuse of time during official work days; and
(4) unprofessional behavior. Id. One of the specifications under the second
charge concerned the appellant’s transmission to her supervisor of approximately
32 emails on February 25, 2015, regarding her “old business.” IAF, Tab 5 at 21,
42-43, Tab 10 at 80-81. The appellant did not reply to the proposed removal.
IAF, Tab 5 at 17. The agency removed the appellant effective July 28, 2015. Id.
at 16-19.
The appellant filed a complaint with the Office of Special Counsel (OSC)
and then filed this IRA appeal after receiving her close-out letter. IAF, Tab 1.
After holding the requested hearing, the administrative judge issued an initial
decision in which he identified the following as the appellant’s alleged
disclosures: (1) the email concerning the incident of workplace violence on
December 12, 2013, including her following stated concerns as to the agency’s
response to and investigation of the incident; (2) 2013 and 2014 communications
regarding the misclassification of her position; and (3) expressed concerns as to
the inaccurate production data for her team, which she disclosed in 2013. IAF,
Tab 35, Initial Decision (ID) at 12.
Of these disclosures, the administrative judge only found that the following
were protected: (1) the appellant’s contemporaneous email regarding the
December 12, 2013 incident; and (2) her communications regarding the
misclassification of her position generally. Id. at 16-25. As to disclosure (1), he
concluded that the appellant’s later communications about the agency’s report and
handling of the December 12, 2013 incident were not protected. ID at 19-22. As4
to disclosure (2), he found that by the time the appellant sent her June 19, 2014
email as to the misclassification of her position, she no longer reasonably
believed that the position was misclassified. ID at 30-31. The administrative
judge determined that disclosure (3), the appellant’s communications concerning
the alleged inconsistency in her team’s case productivity data, was not protected.
ID at 17-18. Finally, he found that the appellant’s communications as to “old
business,” including the 32 emails she sent her supervisor on this topic, were not
protected because they concerned matters that the agency already had addressed
and resolved. ID at 34-35.
The administrative judge found that the appellant established that her
protected disclosures were a contributing factor in her two suspensions and
removal. ID at 25. He concluded, however, that the agency proved by clear and
convincing evidence that it would have taken the same actions in the absence of
the appellant’s protected disclosures. ID at 25-37. He therefore denied her
request for corrective action. ID at 38.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response to the petition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
This case involves disclosures made both prior to and after the
December 27, 2012 effective date of the Whistleblower Protection Enhancement
Act of 2012 (WPEA), and personnel actions that occurred after that date.
Because the agency knew of the parties’ rights, liabilities, and duties under the
WPEA when it suspended and removed the appellant, the WPEA should be
applied in this matter. Pridgen v. Office of Management and Budget , 2022 MSPB
31, ¶¶ 50-51. 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 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.5
§ 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)(2)(A).3 Salerno v. Department
of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016).
Once an appellant establishes jurisdiction over her IRA appeal, she is
entitled to a hearing on the merits of her claim, which she must prove by
preponderant evidence. Id. If the appellant proves that her protected disclosure
or activity was a contributing factor in a personnel action taken against her, 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. Id.
The administrative judge should have found that the appellant’s communications
to the TIGTA were protected activity under 5 U.S.C. § 2302(b)(9)(C).
The appellant sent the emails reporting the December 12, 2013 incident to,
among others, TIGTA employees. IAF, Tab 25 at 73. She also included the
TIGTA on her December 16 and 30, 2013 emails regarding alleged inaccuracies
in the reports of the incident completed by the agency and local police and the
agency’s failure to immediately change the office locks. IAF, Tab 10 at 87, 94,
174, Tab 25 at 74. During a meeting with a TIGTA employee on December 23,
2013, the appellant informed the employee that the local police report of the
December 12, 2013 incident inaccurately characterized the nature of the incident.
IAF, Tab 10 at 175. Other than the December 12, 2013 email, the administrative
judge found that none of these disclosures were protected. In doing so, he
determined that the appellant did not prove that she reasonably believed that her
other communications disclosed wrongdoing protected under section 2302(b)(8).
ID at 13, 19-20, 23. This finding was in error.
3 The parties do not dispute the administrative judge’s finding that the Board has
jurisdiction over the appeal. ID at 1. They also do not dispute the administrative
judge’s description of the disclosures and personnel actions at issue. ID at 12-13. We
discern no basis to disturb these findings.6
A protected whistleblowing disclosure is one that a reasonable person in
the appellant’s position would believe evidenced one of the categories of
wrongdoing specified in 5 U.S.C. § 2302(b)(8). 5 U.S.C. § 2302(a)(2)(D);
Salerno, 123 M.S.P.R. 230, ¶ 6 (discussing this standard at the jurisdictional
stage of an IRA appeal). The test to determine whether a putative whistleblower
has a reasonable belief in the disclosure is an objective one: whether a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the employee could reasonably conclude that the actions of the
agency evidenced a violation of law, rule, or regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety. Salerno, 123 M.S.P.R. 230, ¶ 6. However, unlike
protected “disclosures” under 5 U.S.C. § 2302(b)(8), 5 U.S.C. § 2302(b)(9)(C)
does not require proof that the employee has a reasonable belief that she is
disclosing wrongdoing when “cooperating with or disclosing information to the
Inspector General . . . in accordance with applicable provisions of law.”4
As discussed above, the WPEA applies to this appeal. Therefore, the
appellant’s statements to the TIGTA are protected activity under 5 U.S.C.
§ 2302(b)(9)(C), and the Board has jurisdiction over them in this IRA appeal.5
See Salerno, 123 M.S.P.R. 230, ¶ 5. Further, the administrative judge found, and
the record supports, that the appellant proved by preponderant evidence that she
engaged in this protected activity. ID at 18-21. Therefore, we must remand this
4 During the pendency of this appeal, the National Defense Authorization Act for Fiscal
Year 2018, Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on December 12,
2017. It expanded the activities protected under 5 U.S.C. § 2302(b)(9)(C) to include
cooperating or disclosing information to “any . . . component responsible for internal
investigations or review.” Pub. L. No. 115-91, § 1097(c)(1)(A), 131 Stat. 1283, 1618.
That expansion does not affect the outcome of this appeal because all of the relevant
events occurred prior to December 12, 2017. See Edwards v. Department of Labor ,
2022 MSPB 9, ¶¶ 29-33 (finding that the changes to section 2302(b)(9)(C) do not apply
retroactively), aff’d, No. 22-1967 (Fed. Cir. July 7, 2023).
5 The administrative judge found that the appellant exhausted her OSC remedy as to her
disclosures arising out of the December 12, 2013 incident. ID at 12. 7
issue for the administrative judge to make factual findings as to whether the
appellant met her burden to prove by preponderant evidence that this activity was
a contributing factor in a personnel action and if the agency met its burden to
prove its affirmative defense. See Mastrullo v. Department of Labor ,
123 M.S.P.R. 110, ¶ 27 (2015) (remanding for an administrative judge to make
additional factual findings and credibility determinations to determine if an
agency threatened an appellant with a personnel action in reprisal for
whistleblowing). In doing so, we observe that because the administrative judge
already addressed the appellant’s December 13, 2013 email as a protected
disclosure (discussed below), he is not required to separately address it as a
protected activity. In addition, the appellant’s February 6, 2014 email to her
supervisor and others about purported inaccurate reports concerning the
altercation need not be addressed, because the appellant has not alleged that she
forwarded that email to the TIGTA. IAF, Tab 10 at 92-94, 175-76.
The appellant failed to prove that her June 19, 2014 disclosure regarding the
alleged misclassification of her position was protected.
The appellant argues that her June 2014 email constituted a protected
disclosure that was a contributing factor in some of the personnel actions taken
against her. PFR File, Tab 1 at 8-10. The administrative judge found that this
email was not protected because it violated her supervisor’s instruction to refrain
from raising her misclassification issue again unless she had new and material
information to offer. ID at 29-30. The appellant essentially argues that an
otherwise protected disclosure cannot lose its protection simply because the
agency instructed her not to make it. PFR File, Tab 1 at 9-10. In this instance,
we agree with the appellant. See Grubb v. Department of the Interior ,
96 M.S.P.R. 361, ¶¶ 2-6, 12, 14 (2004) (finding that disclosures of time and
attendance abuse were protected despite the appellant’s violation of her
supervisor’s instruction to stop investigating her coworkers’ comings and goings
and discussing their office activities).8
The administrative judge further found that the appellant’s June 2014 email
was not protected because the Office of Personnel Management (OPM) had
completed an audit and determined that the appellant’s position was not
misclassified. ID at 30. The appellant challenges this finding on review. PFR
File, Tab 1 at 10 n.1.
Regardless of whether OPM had made such a determination, the agency had
addressed it on multiple occasions. The appellant does not dispute that by
June 19, 2014, the agency had found, in 2012 and again in February 2014, that
her position was correctly classified. ID at 30 (citing IAF, Tab 25 at 119); PFR
File, Tab 1. She argued below that this finding was inconsistent with an internal
rule requiring that the agency “ensure that positions are classified consistent with
[an OPM] policy,” which provides “that the grade of a position may be
determined by the performance of higher -graded duties which constitute at least
25 percent of an employee’s work time.” Internal Revenue Manual, Part 6,
Human Resources Management, § 6.511.1.7.4(2),
https://www.irs.gov/irm/part6/irm_06-511-001 (last visited June 12, 2024); IAF,
Tab 10 at 26. In her June 2014 email, the appellant seemed to indicate that at
least 25 percent of the work that she supervised was commensurate with
higher-graded duties. IAF, Tab 10 at 119.
We agree with the administrative judge that by June 2014 the appellant’s
continued claim that she was performing GS-15 level work was unavailing. In
essence, the appellant was disagreeing with the agency’s ruling that her position
was properly rated at the GS-14 level. Id. An employee’s disagreement with an
agency ruling or adjudication does not constitute a protected disclosure even if
that ruling was legally incorrect. O’Donnell v. Department of Agriculture ,
120 M.S.P.R. 94, ¶ 15 (2013), aff’d per curiam , 561 F. App’x 926 (Fed. Cir.
2014), and clarified on other grounds by Webb v. Department of the Interior ,
122 M.S.P.R. 248, ¶ 9 (2015).9
The parties do not dispute that the administrative judge’s finding that the
appellant’s earlier disclosures of the alleged misclassification of her position
were protected. ID at 16-17. Nor do they dispute his finding that the appellant’s
disclosure of the alleged inaccurate production data was not protected. ID
at 17-18. Finally, they present no argument that the administrative judge erred in
finding that the appellant met her burden to prove that her protected disclosures
were a contributing factor in the agency’s personnel actions. ID at 25. We
discern no basis to disturb these conclusions.
The agency established by clear and convincing evidence that it would have taken
the same personnel actions in the absence of the appellant’s protected disclosures.
As to the appellant’s protected disclosures, the only remaining question is
whether the agency proved by clear and convincing evidence that it would have
taken the same actions notwithstanding (1) the appellant’s contemporaneous
email regarding the December 12, 2013 incident, and (2) her earlier
communications regarding the misclassification of her position. In determining
whether the agency has met its burden of proving by clear and convincing
evidence that it would have taken the same action absent the appellant’s
disclosure, the Board will consider all the relevant factors, including the
following: (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 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. Carr v. Social Security Administration ,
185 F.3d 1318, 1323 (Fed. Cir. 1999). 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. Lu v. Department of Homeland
Security, 122 M.S.P.R. 335, ¶ 7 (2015).10
The appellant has failed to show that the administrative judge erred
in his application of the first Carr factor.
The appellant argues that the administrative judge erroneously applied
Yunus v. Department of Veterans Affairs , 242 F.3d 1367, 1372 (Fed. Cir. 2001).
PFR File, Tab 1 at 6-8. Citing Yunus, the administrative judge found that
“[w]hen examining the strength of the agency’s evidence, the Board will look at
the evidence the agency had before it when it took the [personnel] action.” ID
at 25 (emphasis omitted). Because the appellant failed to submit replies to the
proposed suspensions or the proposed removal, and the evidence before the
deciding official was undisputed, the administrative judge found that the agency
“cleared [the first] Carr hurdle almost by default.” ID at 25-26.
The administrative judge further found, however, that “[e]ven if [he were
to] consider the appellant’s responses to the disciplinary actions that she
presented [during the Board proceedings], [he] would still conclude that the
agency had ample evidence for its actions.” ID at 27. He then went on to discuss
the responses the appellant gave at the hearing to the various charges, which he
found unpersuasive. ID at 27-35. The appellant asserts that the administrative
judge’s “even if” comment demonstrates that he did not “officially” consider her
evidence. PFR File, Tab 1 at 7. The appellant argues that “it is error to analyze
the evidence from the perspective of what the [a]gency had before it instead of
the actual underlying strength of the evidence.” Id. at 6-7; Whitmore v.
Department of Labor , 680 F.3d 1353, 1368 (Fed. Cir. 2012) (explaining that both
evidence supporting, and detracting from, a conclusion must be considered in
determining if an agency proves its affirmative defense in an IRA appeal).
Despite the administrative judge’s use of the phrase “even if,” he identified
and resolved the appellant’s challenges as to the strength of the agency’s stated
reasons for its actions. ID at 27-35. Thus, we discern no harmful error in his
expressed concern that the appellant failed to present this evidence to the agency
in the first instance. Id. at 7-8; Panter v. Department of the Air Force ,11
22 M.S.P.R. 281, 282 (1984) (providing 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 also argues that the administrative judge erred in a number of
other respects regarding the first Carr factor. PFR File, Tab 1 at 8-11. She
argues that the initial decision should be reversed because the administrative
judge found that, if he considered the appellant’s evidence, he still would have
found “ample evidence” supporting the agency action. Id. at 8 (referring to ID
at 27). She asserts that the proper standard is “strong evidence.” Id. We find
that the administrative judge correctly identified the standard. ID at 11, 25; see
Lu, 122 M.S.P.R. 335, ¶ 7. Read in context, the administrative judge’s statement
that “the agency had ample evidence for its actions,” is simply a restatement of
his finding that the agency had strong evidence for its actions. ID at 27.
The appellant’s 5-day suspension was based, in part, on her failure to
attend a scheduled counseling session with her supervisor on February 6, 2014.
IAF, Tab 10 at 110. The appellant argues that the administrative judge failed to
consider that “[equal employment opportunity] law does not require accusers to
confront their harassers.” PFR File, Tab 1 at 8. She asserts that she became ill
from a last-minute notice to meet with someone she believed was retaliating
against her. Id. The administrative judge found that the appellant’s claim, that
she could not meet with her supervisor because she fell ill, was not credible. ID
at 27-28.
When, as here, an administrative judge’s findings are “intertwined with
issues of credibility and an analysis of [the appellant’s] demeanor at trial,” the
Board affords them “special deference.” Purifoy v. Department of Veterans
Affairs, 838 F.3d 1367, 1373 (Fed. Cir. 2016). The Board may overturn such
findings only if it can articulate sound reasons for doing so. Haebe v.
Department of Justice , 288 F.3d 1288, 1300-01 (Fed. Cir. 2002). On review, the
appellant has not specifically challenged the administrative judge’s finding that12
her claim of falling ill was not credible, and we discern no reasons for
overturning it.
Also regarding the 5-day suspension, the appellant argues, without citing to
the record, that the administrative judge failed to consider the appropriateness of
an alternative penalty, whether the action was inconsistent with the agency’s table
of penalties, and whether the penalty was excessive. PFR File, Tab 1 at 8.
However, because this is an IRA appeal, the appropriateness of the penalty
imposed by the agency is not at issue. Weaver v. Department of Agriculture ,
55 M.S.P.R. 569, 576 (1992); see 5 C.F.R. § 1209.2(c) (listing the issues before
the Board in deciding the merits of an IRA appeal). In any event, we do not
discern a basis to conclude that the agency’s imposition of a 5-day suspension for
two instances of failure to follow instructions was overreaching. See Archerda v.
Department of Defense , 121 M.S.P.R. 314, ¶¶ 24-27 (2014) (finding that removal
for failure to follow an instruction to provide medical documentation was within
the tolerable limits of reasonableness).
Regarding the 10-day suspension, the appellant argues that it was unlawful
for the agency to discipline her for her June 2014 email concerning her position
misclassification. PFR File, Tab 1 at 8-10. As stated above, we agree with the
administrative judge that the June 2014 email was not protected. Thus, we cannot
grant corrective action based on the agency’s discipline for her violation of this
instruction. See 5 U.S.C. § 1221(e)(1) (requiring the Board to grant corrective
action, subject to the provisions of section 1221(e)(2), if it finds that a protected
disclosure or activity was a contributing factor in an agency personnel action).
The appellant was removed for, among other things, refusing to work on
certain cases and failing to account for her time during certain periods of work
between January and May 2015. IAF, Tab 5 at 20-23. The appellant asserts that
she refused to work on the cases because she lacked the requisite training. PFR
File, Tab 1 at 10; IAF, Tab 25 at 18-19. Because she failed to identify specific
evidence in the record to corroborate her assertion, we discern no basis to grant13
her petition. See 5 C.F.R. § 1201.114(b) (explaining that a petition for review
must be supported by specific references to the record). She also asserts that the
administrative judge failed to consider her testimony that she continued to work
on other assignments during the time in question. PFR File, Tab 1 at 10. In fact,
it appears that the administrative judge did recount her testimony in this regard
and he found it not credible. ID at 33; see Purifoy, 838 F.3d at 1373.
Additionally, the appellant argues that the administrative judge failed to
apply the Douglas factors6 to determine whether the penalty of removal was
reasonable. PFR File, Tab 1 at 10-11. As stated above, because this is an IRA
appeal, the agency is not required to prove that its penalty was reasonable. Nor,
in any case, does the appellant explain how application of the Douglas factors
would undermine the strength of the agency’s evidence that her removal resulted
from her misconduct. Accordingly, her argument is without merit.
The appellant has failed to show that the administrative judge erred
in his application of the second Carr factor.
The appellant argues that, in considering the strength of the agency’s
motive to retaliate, the administrative judge ignored the fact that the agency
attempted to suppress the disclosures, such as through her 10-day suspension.
PFR File, Tab 1 at 11. As discussed above, we find that the appellant’s June
2014 email, leading to her 10-day suspension, was not protected. Accordingly,
her 10-day suspension did not demonstrate that the agency was attempting to
suppress her protected disclosure or discourage others from making protected
disclosures. The appellant does not otherwise challenge the administrative
judge’s findings that the agency did not have a strong motive to retaliate, and we
decline to disturb these findings. ID at 35-37.
6 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board
recognized a number of factors that are relevant for consideration in determining the
appropriateness of a penalty in a chapter 75 appeal.14
The appellant has failed to show that the administrative judge erred
in his application of the third Carr factor.
The appellant argues that the administrative judge erroneously placed the
burden regarding the third Carr factor on her, in that he found that she presented
no evidence that the agency was more lenient with nonwhistleblowers. PFR File,
Tab 1 at 11. We find that the administrative judge merely observed that neither
the appellant nor the agency presented evidence regarding this issue and that he
did not place any burden on her to present evidence on this factor. ID at 37.
The appellant similarly argues that the administrative judge only
considered whether there was evidence of nonwhistleblowers being treated more
leniently, without considering whether the agency took similar actions against
nonwhistleblowers who are otherwise similarly situated. PFR File, Tab 1
at 11-12. We find that the administrative judge merely rephrased the correct legal
standard and did not apply an incorrect legal standard. ID at 37. In particular,
the appellant does not dispute the administrative judge’s finding that neither party
presented any relevant evidence as to Carr factor 3.
The appellant also argues that the agency’s failure to produce evidence on
the third Carr factor means that it failed to meet its clear and convincing burden.
Id. at 11-13. However, as the administrative judge correctly stated, the agency
does not have an affirmative burden to produce evidence as to each Carr factor.
ID at 11; Lu, 122 M.S.P.R. 335, ¶ 7. The administrative judge found that the
record regarding the third Carr factor was essentially empty and noted that both
parties agreed that disciplinary actions against managers like the appellant were
rare. ID at 37. Our reviewing court has held that “the absence of any evidence
relating to Carr factor three can effectively remove that factor from the analysis,”
but that the failure to produce evidence “may be at the agency’s peril,” and may
imperil the agency’s overall case. See Whitmore, 680 F.3d at 1374-75.
Moreover, when the agency fails to introduce relevant comparator evidence, the
third Carr factor cannot weigh in favor of the agency. Smith v. General Services15
Administration, 930 F.3d 1359, 1367 (Fed. Cir. 2019); Siler v. Environmental
Protection Agency , 908 F.3d 1291, 1299 (Fed. Cir. 2018). Under the
circumstances of this appeal, however, we find that the third Carr factor is not a
significant consideration in our analysis of this case. In any event, we find that
the strength of the agency’s evidence outweighs the other two factors, and we
agree with the administrative judge that the agency proved by clear and
convincing evidence that it would have taken the same personnel actions against
the appellant in the absence of any protected disclosure. ID at 25-37.
Accordingly, for the reasons set forth above, we agree with the
administrative judge that the appellant is not entitled to corrective action as it
concerns her protected disclosures.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication of the appellant’s allegation of reprisal for protected
activity in accordance with this Remand Order. Because the record already was
developed in this matter, the administrative judge should exercise his discretion
in determining whether to accept additional evidence or hold a supplemental16
hearing. The administrative judge may adopt his prior findings as to the
appellant’s claims of reprisal for protected disclosures in his remand initial
decision.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.17 | Santangelo_Janet_R_PH-1221-16-0237-W-1__Remand_Order.pdf | 2024-06-12 | JANET R. SANTANGELO v. DEPARTMENT OF THE TREASURY, MSPB Docket No. PH-1221-16-0237-W-1, June 12, 2024 | PH-1221-16-0237-W-1 | NP |
1,247 | https://www.mspb.gov/decisions/nonprecedential/Tillman_Debbie_R_DC-0752-18-0406-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEBBIE R. TILLMAN,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
DC-0752-18-0406-I-1
DATE: June 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
H. Jerome Briscoe , Windsor Mill, Maryland, for the appellant.
Mark A. Wines , Esquire, and Byron D. Smalley , 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 of her removal as untimely filed with no good cause shown
for the filing delay. On petition for review, the appellant argues that the
administrative judge abused her discretion regarding certain hearing-related
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).
matters and erred in finding that the appellant failed to establish good cause for
her 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 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 | Tillman_Debbie_R_DC-0752-18-0406-I-1__Final_Order.pdf | 2024-06-12 | DEBBIE R. TILLMAN v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DC-0752-18-0406-I-1, June 12, 2024 | DC-0752-18-0406-I-1 | NP |
1,248 | https://www.mspb.gov/decisions/nonprecedential/Plemons_Michael_E_DC-0752-18-0773-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL EUGENE PLEMONS,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-0752-18-0773-I-2
DATE: June 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael Eugene Plemons , Fayetteville, North Carolina, pro se.
Derek Coyne , Esquire, and Samantha Sliney , Esquire, Fort Liberty, North
Carolina, 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 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).
On petition for review, the appellant challenges the administrative judge’s
findings that the agency proved by preponderant evidence1 the charge of negligent
performance of duty and the charge of misrepresentation (based on
specification 2). Petition for Review File, Tab 1 at 4-26; Refiled Appeal File,
Tab 8, Initial Decision at 8-14, 17-19 . After considering the appellant’s
arguments and reviewing the record, we discern no reason to disturb the initial
decision.
Accordingly, we affirm 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
1 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 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
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.
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 at3
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,4
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 of5
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 | Plemons_Michael_E_DC-0752-18-0773-I-2_Final_Order.pdf | 2024-06-12 | MICHAEL EUGENE PLEMONS v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-0752-18-0773-I-2, June 12, 2024 | DC-0752-18-0773-I-2 | NP |
1,249 | https://www.mspb.gov/decisions/nonprecedential/Upshaw_NatashaAT-0752-20-0270-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NATASHA UPSHAW,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-0752-20-0270-I-1
DATE: June 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joshua L. Klinger , Esquire, Denver, Colorado, for the appellant.
Nic Roberts , Fort Benning, Georgia, 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 her indefinite suspension based upon the decision denying her eligibility
for access to classified information and/or occupancy in a position designated
“sensitive.” On petition for review, the appellant argues that the administrative
judge erred in concluding that she failed to prove her harmful procedural error
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 due process affirmative defense claims. 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
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 | Upshaw_NatashaAT-0752-20-0270-I-1__Final_Order.pdf | 2024-06-12 | NATASHA UPSHAW v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-0752-20-0270-I-1, June 12, 2024 | AT-0752-20-0270-I-1 | NP |
1,250 | https://www.mspb.gov/decisions/nonprecedential/Blackwell_James_D_DA-0752-19-0054-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES D. BLACKWELL,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DA-0752-19-0054-I-1
DATE: June 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kristin Richards , Esquire, Oklahoma City, Oklahoma, for the appellant.
Richard R. Rice , Esquire, and Orion A. Strand , Esquire, Midwest City,
Oklahoma, for the appellant.
Michele S. McNaughton , Esquire, and William Vernon , Esquire, Tinker Air
Force Base, 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 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
merge the agency’s charges of unauthorized absence and failure to request leave
according to established procedures, we AFFIRM the initial decision.
On petition for review, the appellant argues that the administrative judge
erred in sustaining the charge of refusal to submit to a urinalysis for the following
reasons: (1) the “shy bladder” collection procedures applied to him regardless of
whether he told personnel at the drug-testing facility that he had a shy bladder;
(2) he was unable to provide a urine specimen due to the medical conditions of
himself and his mother; and (3) he was not required to stay at the facility for
3 hours. Petition for Review (PFR) File, Tab 1 at 9-16.
For the reasons provided in the initial decision, we agree with the
administrative judge’s finding that the appellant’s action of leaving the
drug-testing facility without providing a urine specimen and without staying the
requisite 3 hours constituted a refusal to submit to a urinalysis. Initial Appeal
File (IAF), Tab 23, Initial Decision (ID) at 4-13. We further agree with the
administrative judge’s finding that the appellant did not stay at the facility for the
3-hour period that would have qualified him to claim shy-bladder status. ID
at 20. Thus, we discern no prejudice to the appellant’s substantive rights as a2
result of any error in the administrative judge’s interpretation of the agency’s
drug-testing policy as requiring an employee to specifically invoke the shy
bladder collection procedures. ID at 12-13, 20; 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). Although the agency’s drug-testing policy contemplates that
there may be a medical reason for an employee’s inability to provide a urine
specimen, we interpret the policy as referring to an employee’s own medical
condition. PFR File, Tab 1 at 12-14; IAF, Tab 15 at 57.
In addition, the appellant argues on review that his absences on the dates
specified in the remaining leave-related charges were covered under the Family
and Medical Leave Act of 1993 (FMLA).2 PFR File, Tab 1 at 17-20.
Specifically, he claims that the agency approved his August 13, 2018 requests for
leave from August 2 to 31, 2018, and retroactively designated such leave as
FMLA leave under 29 C.F.R. § 825.301(d). PFR File, Tab 1 at 19; IAF, Tab 15
at 12-13. We discern no reason to disturb the initial decision based on such
arguments. The appellant has failed to point to any record evidence suggesting
that the agency approved his leave requests. Further, the appellant’s reliance on
29 C.F.R. § 825.301(d) is unavailing. See Burge v. Department of the Air Force ,
82 M.S.P.R. 75, ¶ 27 (1999) (distinguishing 29 C.F.R. § 825.301 as applying to
2 The appellant has resubmitted FMLA documentation and leave requests that already
are a part of the record before the administrative judge. Compare PFR File, Tab 1
at 23-28, with IAF, Tab 15 at 9-13. For the first time on review, the appellant has
provided a copy of his mother’s death certificate. PFR File, Tab 1 at 30. The appellant
has failed to explain why, despite his due diligence, he was unable to submit such
evidence prior to the close of the record before 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). In any event, we find that it is immaterial to the outcome of this
appeal. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980)
(observing that the Board generally 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).3
the Postal Service). Instead, under 5 C.F.R. § 630.1203(b), “An employee may
not retroactively invoke his or her entitlement to family and medical leave.”
See Burge, 82 M.S.P.R. 75, ¶ 27 (applying 5 C.F.R. § 630.1203 to the Air Force).
However, we modify the initial decision to merge the charges of
unauthorized absence and failure to request leave according to established
procedures because they concern the same misconduct and elements of proof.
IAF, Tab 4 at 40; see, e.g., McNab v. Department of the Army , 121 M.S.P.R. 661,
¶ 4 n.3 (2014). Merging these charges does not affect our decision to affirm the
penalty. See, e.g., Shiflett v. Department of Justice , 98 M.S.P.R. 289, ¶ 12,
review dismissed , 139 F. App’x 261 (Fed. Cir. 2005).
Accordingly, we affirm the agency’s removal action.
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.
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
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 you5
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 | Blackwell_James_D_DA-0752-19-0054-I-1__Final_Order.pdf | 2024-06-12 | JAMES D. BLACKWELL v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DA-0752-19-0054-I-1, June 12, 2024 | DA-0752-19-0054-I-1 | NP |
1,251 | https://www.mspb.gov/decisions/nonprecedential/Seemungal_GracelynAT-3443-19-0444-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GRACELYN SEEMUNGAL,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
AT-3443-19-0444-I-1
DATE: June 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gracelyn Seemungal , Pembroke Pines, Florida, pro se.
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
dismissed her appeal for lack of jurisdiction. On petition for review, the
appellant restates her argument that the agency erroneously rated her as ineligible
for the challenged position and alleges that she is being targeted for nonselection
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).
because she is “NOT Latino,” but she does not address the administrative judge’s
findings concerning the jurisdictional issue raised by her appeal. Petition for
Review File, Tab 1 at 10. 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).
As the administrative judge correctly concluded, absent certain limited
exceptions, the Board generally does not have jurisdiction over an appeal
challenging a nonselection for a specific position, and the appellant has
not asserted that her claim falls within any of the relevant exceptions. Initial
Appeal File, Tab 3 at 2; see Kazan v. Department of Justice , 112 M.S.P.R. 390,
¶ 6 (2009). Additionally, to whatever extent the appellant is alleging that her
nonselection was the product of discrimination on the basis of race, the Board is
without jurisdiction to consider such a claim in the absence of an otherwise
appealable action. Pridgen v. Office of Management and Budget , 117 M.S.P.R.
665, ¶ 7 (2012) (stating that the Board does not have jurisdiction over
discrimination claims absent an otherwise appealable action). 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 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 | Seemungal_GracelynAT-3443-19-0444-I-1__Final_Order.pdf | 2024-06-12 | GRACELYN SEEMUNGAL v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. AT-3443-19-0444-I-1, June 12, 2024 | AT-3443-19-0444-I-1 | NP |
1,252 | https://www.mspb.gov/decisions/nonprecedential/Nagel_Byron_A_DA-315H-23-0014-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BYRON NAGEL,
Appellant,
v.
DEPARTMENT OF ENERGY,
Agency.DOCKET NUMBER
DA-315H-23-0014-I-1
DATE: June 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Byron A. Nagel , Baton Rouge, Louisiana, pro se.
Kelly O’Shaughnessy , Esquire, New Orleans, Louisiana, 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. On
petition for review, the appellant argues for the first time that his termination was
due to age discrimination. 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 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 | Nagel_Byron_A_DA-315H-23-0014-I-1__Final_Order.pdf | 2024-06-12 | BYRON NAGEL v. DEPARTMENT OF ENERGY, MSPB Docket No. DA-315H-23-0014-I-1, June 12, 2024 | DA-315H-23-0014-I-1 | NP |
1,253 | https://www.mspb.gov/decisions/nonprecedential/Murphy_James_P_DA-0752-13-0302-I-3_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES P MURPHY,
Appellant,
v.
DEPARTMENT OF ENERGY,
Agency.DOCKET NUMBER
DA-0752-13-0302-I-3
DATE: June 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence A. Berger , Glen Cove, New York, for the appellant.
Ida E. Hernandez , Albuquerque, New Mexico, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The agency filed a notice of intent to file a petition for review of the initial
decision in this appeal. Petition for Review (PFR) File, Tab 7.2 For the reasons
set forth below, we DISMISS the appeal as settled.
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 A March 15, 2017 Notice to the Parties acknowledged the agency’s March 14, 2017
submission indicating its intent to file a petition for review of the initial decision. See
PFR File, Tabs 7-8.
¶2On May 30, 2024, the parties submitted a settlement agreement dated
May 23, 2024. PFR File, Tab 11. The document provides, among other things,
for the withdrawal of the appeal. Id. at 3.
¶3Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146,
149 (1988). In addition, before accepting a settlement agreement into the record
for enforcement purposes, the Board must determine whether the agreement is
lawful on its face and whether the parties freely entered into it. See Delorme v.
Department of the Interior , 124 M.S.P.R. 123, ¶¶ 10-11 (2017 ).
¶4Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforcement by the Board. PFR File, Tab 11 at 5. Accordingly, we find that
dismissing the appeal with prejudice to refiling (i.e., the parties normally may not
refile this appeal) is appropriate under these circumstances. In addition, we find
that the agreement is lawful on its face and freely entered into, and we accept the
settlement agreement into the record for enforcement purposes.
¶5This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
NOTICE TO THE PARTIES OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not2
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182(a).
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 | Murphy_James_P_DA-0752-13-0302-I-3_Final_Order.pdf | 2024-06-12 | JAMES P MURPHY v. DEPARTMENT OF ENERGY, MSPB Docket No. DA-0752-13-0302-I-3, June 12, 2024 | DA-0752-13-0302-I-3 | NP |
1,254 | https://www.mspb.gov/decisions/nonprecedential/Kenneh_John_S_PH-0752-21-0006-I-3__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN KENNEH,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
PH-0752-21-0006-I-3
DATE: June 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
John J. D’Angelo , Esquire, Philadelphia, Pennsylvania, for the appellant.
Lida V. KiaNoury , Esquire, and A. Victoria Wright , Esquire, Philadelphia,
Pennsylvania, 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 his removal for failure to meet a condition of employment. On petition
for review, the appellant argues that his removal does not promote the efficiency
of the service. 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 | Kenneh_John_S_PH-0752-21-0006-I-3__Final_Order.pdf | 2024-06-12 | JOHN KENNEH v. DEPARTMENT OF DEFENSE, MSPB Docket No. PH-0752-21-0006-I-3, June 12, 2024 | PH-0752-21-0006-I-3 | NP |
1,255 | https://www.mspb.gov/decisions/nonprecedential/Gist_Richard_A_DC-0752-18-0614-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICHARD ALLEN GIST,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-0752-18-0614-I-1
DATE: June 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shaun Southworth , Esquire, Atlanta, Georgia, for the appellant.
Sara K. Achinger , Esquire, Fort Belvoir, 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
affirmed his removal under 5 U.S.C. chapter 75 for unacceptable performance.
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
below regarding the appellant’s defense of harmful procedural error, we AFFIRM
the initial decision.
BACKGROUND
The appellant was a GS-15 Senior Accountant for the agency. Initial
Appeal File (IAF), Tab 1 at 1. His performance year ran from April 1 to
March 31, and, on May 9, 2018, he received his annual performance appraisal,
with a summary rating of “Not Met,” having failed to render successful
performance in the critical elements of “Teamwork” and “Support of Mission.”
IAF, Tab 9 at 4-10. On May 14, 2018, the agency proposed the appellant’s
removal under 5 U.S.C. chapter 75 based on a charge of “Duty Performance at the
‘Not Met’ Level.” IAF, Tab 8 at 15-17. The agency specified that the appellant
“failed to create an overarching financial reconciliation [Standard Operating
Procedure (SOP)] and to monitor reconciliation activity on a regular basis” as he
had been directed to do on May 1, 2017, and he “failed to effectively work well
with others to get the job done.” Id. at 16. After the appellant responded, the
deciding official issued a decision to remove him effective June 16, 2018. IAF,
Tab 4 at 10-14.2
The appellant filed a Board appeal, challenging his removal on the merits
and raising affirmative defenses of harmful error, race discrimination, disability
discrimination, and retaliation for equal employment opportunity activity. IAF,
Tab 1, Tab 29 at 4-6, Tab 32 at 2-7. After a hearing, the administrative judge
issued an initial decision affirming the appellant’s removal. IAF, Tab 34, Initial
Decision (ID). She found that the agency met its burden of proving the charge
and that the penalty promoted the efficiency of the service. ID at 2-10, 20-22.
She further found that the appellant failed to prove any of his affirmative
defenses. ID at 10-20.
The appellant has filed a petition for review, challenging the administrative
judge’s findings with respect to the charge and his harmful error defense.2
Petition for Review (PFR) File, Tab 1. The agency has filed a response.
PFR File, Tab 3.
ANALYSIS
The agency proved its charge.
In her initial decision, the administrative judge summarized the testimony
of several agency witnesses, including the appellant’s first-level supervisor (the
proposing official), who testified that the appellant understood but refused to
carry out his assignment of creating an SOP. ID at 3-4. Other witnesses,
including the Chief of Finance and Accounting, testified that the appellant failed
to attend pertinent meetings and failed to heed their guidance, and instead
criticized their work and questioned their competence. ID at 4-7. The appellant
testified that he did not refuse to create the SOP. He argued that it was
impossible for him to do so because he lacked the necessary background, was not
given sufficient guidance, and was not assigned to develop the SOP until his
November 2, 2017 midyear evaluation. ID at 7-8. The appellant further testified
2 The appellant does not contest the administrative judge’s findings with respect to the
penalty or any of his other affirmative defenses. 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.”).3
that the assignment was vague and confusing, and that he believed it was
improper. Id. Applying the factors set forth in Hillen v. Department of the Army ,
35 M.S.P.R. 453, 458 (1987), including explicit demeanor-based credibility
determinations, the administrative judge found the agency witnesses’ testimony
more credible than the appellant’s. ID at 8-9. She found that developing an SOP
was a proper and appropriate assignment for the appellant, which he should have
been able to accomplish but simply refused to do. ID at 9-10.
On petition for review, the appellant reiterates that the SOP assignment was
poorly communicated and confusing. PFR File, Tab 1 at 6-7. He takes issue with
the notice of proposed removal and its description of the SOP as “overarching.”
PFR File, Tab 1 at 6-7; IAF, Tab 8 at 16. He states that he does not understand
what an “overarching” SOP is supposed to be, and that the agency did not assign
him with developing an “overarching” SOP until shortly before his removal.
PFR File, Tab 1 at 6-7. We find the appellant’s arguments unavailing. Although
March 16, 2018, might have been the first time that the expected SOP was
described as “overarching,” this did not change the nature of the assignment.
IAF, Tab 5 at 13. Rather, it is just another word to describe the task of
developing a system to track “the entire population of reconciliations,” a task for
which the appellant had been responsible since at least April 2017. IAF, Tab 10
at 23.
The appellant also argues that he received inconsistent instructions about
his duties with respect to the reconciliations.3 Specifically, on April 3, 2017, he
was tasked to “track the status of reconciliations each month for reporting as well
3 The appellant asserts that the agency witnesses provided “inconsistent testimony” on
this and other matters. PFR File, Tab 1 at 6. However, the appellant neither identifies
the specific nature of these alleged inconsistencies nor directs the Board to a particular
place in the hearing recording where they might be found. The appellant’s bare
assertion that some of the testimony was inconsistent fails to provide “sufficient
specificity for the Board to ascertain whether there is a serious evidentiary challenge
justifying a complete review of the record.” See Thompson v. Department of the Army ,
122 M.S.P.R. 372, ¶ 10 (2015); Tines v. Department of the Air Force , 56 M.S.P.R. 90,
92 (1992).4
as monitoring,” but, on April 26, 2017, he was told that he was “not currently
tasked to conduct any analysis of the reconciliations.” PFR File, Tab 1 at 6-7;
IAF, Tab 8 at 10. We disagree that the appellant received inconsistent
instructions. Tracking the status of reconciliations was the ultimate goal, but the
Chief of Finance and Accounting explicitly informed the appellant on April 3,
2017, of the step-by-step process for achieving that goal. IAF, Tab 8 at 10. As of
April 26, 2017, the appellant still had not accomplished step 1 (identifying all of
the reconciliations to be tracked), and so the Chief of Finance and Accounting
reminded him to complete this step before moving any further. Id. We see no
inconsistency here.
Similarly, the appellant argues that, for the first time on March 16, 2018,
the Chief of Finance and Accounting requested an “SOP/checklist.” PFR File,
Tab 1 at 7. He expresses confusion over whether the agency wanted an SOP or a
checklist. Id. However, we find this unpersuasive. As clearly communicated to
the appellant at least by August 10, 2017, he was required to develop a standard
checklist based on the requirements that all reconciliations have in common.
IAF, Tab 22 at 12. According to the agency’s Guidance for Preparing Standard
Operating Procedures, to which the appellant was directed no later than
November 3, 2017, a “checklist is not the SOP, but a part of the SOP.” IAF,
Tab 7 at 11, Tab 10 at 6.
On petition for review, the appellant renews his argument that he was not
qualified to create an overall reconciliation SOP. PFR File, Tab 1 at 7. He cites
an email that he wrote his first-level supervisor shortly after his proposed
removal, explaining that he was not a “system accountant,” was unqualified to
write an SOP regarding accounting system interactions, and worked with “output
and evaluation only, not system design, extraction, audit or evaluation.” He
contended that designing such an SOP would require a team approach. IAF,
Tab 6 at 4. Taking the appellant at his word that he lacked the knowledge, skills,
and abilities to create an overall reconciliation SOP on his own, we find that this5
was not what was being required of him. Rather, he was supposed to collaborate
with the Division of Finance and Accounting—the very team approach that he
claims was required—but he failed to do so effectively. ID at 4-6; IAF,
Tab 9 at 6, 9, Tab 10 at 19, Tab 11 at 4, Tab 22 at 4-5, 7, 12, 15. The appellant
argues that any tensions in his interactions with others arose from his addressing
issues with reconciliations and pointing out that they were not in legal
compliance. PFR File, Tab 1 at 8. To the extent that this is true, it only goes to
show that the appellant was creating these tensions unnecessarily. He was
counseled repeatedly throughout the performance year that he was not supposed
to be analyzing the individual reconciliations but was instead supposed to be
directing his efforts toward systematizing the reconciliations in the aggregate.
ID at 4-6; IAF, Tab 8 at 10-12, Tab 9 at 6, 9, Tab 10 at 19-20, Tab 11 at 4, 7,
Tab 22 at 5, 12. For the reasons explained in the initial decision, we agree with
the administrative judge that the agency proved its charge.
The appellant did not prove his harmful error defense.
To prove an affirmative defense of harmful procedural error, an appellant
must show by preponderant evidence both that the agency committed procedural
error and that the error was harmful. 5 U.S.C. § 7701(c)(2)(A); Parker v. Defense
Logistics Agency , 1 M.S.P.R. 505, 513 (1980); 5 C.F.R. § 1201.56(b)(2)(C).
Harmful error cannot be presumed; an agency error is harmful only where the
record shows that the procedural error was likely to have caused the agency to
reach a conclusion different from the one it would have reached in the absence or
cure of the error. Stephen v. Department of the Air Force , 47 M.S.P.R. 672, 681,
685 (1991).
On petition for review, the appellant argues that the administrative judge
erred in denying his affirmative defense of harmful procedural error. PFR File,
Tab 1 at 5-6. He argues that under Department of Defense (DOD) Instruction No.
1400.25, § 3.9.b, DOD Civilian Personnel Management System: Performance
Management and Appraisal Program (Feb. 4, 2016), the agency is required to6
notify an employee of deficient performance and provide him with an opportunity
to improve, with assistance from his supervisor, before taking any
performance-based action under either 5 U.S.C. chapter 43 or 5 U.S.C.
chapter 75. PFR File, Tab 1 at 5-6; IAF, Tab 29 at 103. He argues that he was
never informed of any performance deficiencies prior to his midyear review in
November 2017, that he was never told that he would be removed if his
performance did not improve, and that he was never placed on a performance
improvement plan (PIP), i.e., an “opportunity to demonstrate acceptable
performance” under 5 C.F.R. § 432.104. PFR File, Tab 1 at 5-6. He contends
that, if the agency had followed the prescribed procedures, he would have
improved his performance and the entire removal action would have been
avoided. Id. at 6.
In her initial decision, the administrative judge found that the agency’s
performance management system relates specifically to performance-based
actions taken against its employees, and because the instant removal action was
taken against the appellant for misconduct as he failed to meet the expectations of
his position because he refused to perform his duties, the agency’s performance
management system was inapplicable. ID at 19-20. She therefore found that the
agency had no obligation to place the appellant on a PIP or follow any chapter 43
procedures before taking disciplinary action against him. ID at 20.
As an initial matter, we disagree with the administrative judge that the
appellant was removed for misconduct. It is well established that an agency may
rely on either chapter 75 or chapter 43 to take a performance -based action.
Lovshin v. Department of the Navy , 767 F.2d 826, 843 (Fed. Cir. 1985)
(en banc).4 The proposal and decision letters definitively establish that the
appellant in this case was removed for performance reasons. IAF, Tab 8 at 15,
4 In its response to the petition for review, the agency appears to endorse the position
that chapter 75 actions are categorically based on misconduct, whereas
performance-based actions are the sole province of chapter 43. PFR File, Tab 3 at 8-9.
The Board does not recognize such a dichotomy. See Lovshin, 767 F.2d at 843.7
Tab 4 at 10. Furthermore, we agree with the appellant that the agency rule at
issue here applies regardless of whether a performance-based action is taken
under chapter 75 or chapter 43. DOD Instruction No. 1400.25, § 3.9.b explicitly
acknowledges that a performance-based action can be taken under either
authority, and it provides without differentiation that, if an employee’s
performance declines to an unacceptable level, the supervisor must inform him of
the deficiency and provide him assistance to help him improve his performance
during an opportunity period to demonstrate acceptable performance. IAF,
Tab 29 at 103. Although this is not normally required in a chapter 75
performance-based action, see Mealy v. Department of the Navy , 34 M.S.P.R.
187, 190-91 (1987), the agency here has imposed this additional requirement on
itself and is therefore bound to follow it, see Barner v. U.S. Postal Service ,
11 M.S.P.R. 357, 359 (1982) .
We find that the agency followed its requirements as stated in DOD
Instruction No. 1400.25, § 3.9.b for taking a chapter 75 performance-based
action. As the appellant admits, his supervisor informed him of his performance
deficiencies on November 2, 2017, in his midyear performance evaluation. PFR
File, Tab 1 at 5-6; IAF, Tab 9 at 6. This was 4 months before the agency
proposed the appellant’s removal and provided him ample time to bring his
performance up to standards. See Towne v. Department of the Air Force ,
120 M.S.P.R. 239, ¶ 10 (2013) (finding that even a 30-day PIP can offer a
reasonable opportunity to demonstrate acceptable performance in the context of
5 U.S.C. chapter 43). Furthermore, it is undisputed that the appellant’s
supervisor met with him biweekly about the SOP during this time period, thereby
satisfying his obligation to assist the appellant in improving his performance. ID
at 4; IAF, Tab 11 at 6-7, Tab 28 at 10-12. DOD Instruction No. 1400.25,
§ 3.9.b(1) outlines some additional requirements found in the Office of Personnel
Management’s regulations at 5 U.S.C. §§ 432.104, .105, but it makes clear that
these requirements only apply to actions taken under chapter 43. IAF, Tab 298
at 103-04. The agency afforded the appellant all of the procedural protections
that this rule requires for performance-based actions under chapter 75. For these
reasons, we find that the appellant has not shown error in the agency’s application
of its rules, and we affirm, as modified, the administrative judge’s finding that the
appellant failed to prove this affirmative defense.
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
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
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.9
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 file10
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 11
(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
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.
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. 12
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.13 | Gist_Richard_A_DC-0752-18-0614-I-1__Final_Order.pdf | 2024-06-12 | RICHARD ALLEN GIST v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-0752-18-0614-I-1, June 12, 2024 | DC-0752-18-0614-I-1 | NP |
1,256 | https://www.mspb.gov/decisions/nonprecedential/Gladden_Brian_G_DC-0752-18-0553-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRIAN G. GLADDEN,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-0752-18-0553-I-1
DATE: June 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Charity C. Emeronye Swift , Esquire, and Stephen Christopher Swift ,
Esquire, Alexandria, Virginia, for the appellant.
John B. Reese , 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
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 MODIFIED to
supplement the analysis regarding the appellant’s discrimination claims, we
AFFIRM the initial decision.
BACKGROUND
The appellant was employed by the agency as a GS-5 Medical Support
Assistant at the Walter Reed National Military Medical Center. Initial Appeal
File (IAF), Tab 4 at 89. His primary duty was to serve as a clerk at the front desk
at the Hospital Dentistry Clinic. Id. at 24. Shortly after the appellant began to
work at the front desk, the agency also appointed another front desk clerk who
regularly worked with the appellant. Id. Almost immediately, the two had a
strained working relationship, and the agency issued them identical letters of
counseling regarding their “disruptive tension” in the workplace. Id. at 59-60,
65-66.
Several months later, the other front desk clerk and, to a far lesser extent,
other coworkers, made allegations of sexual harassment against the appellant, and
the agency conducted an investigation. IAF, Tab 4 at 23-60. Following the
investigation, the agency proposed the appellant’s removal on one charge of
inappropriate conduct (three specifications) and one charge of “Violation of the
Health Insurance Portability and Accountability Act (HIPAA) Privacy and
Security Regulations” (four specifications). Id. at 67-70. Following the2
appellant’s written and oral responses, id. at 71-78, the deciding official issued a
final decision, sustaining only the inappropriate conduct charge and removing the
appellant from Federal service, id. at 84-85.
The appellant filed the instant appeal with the Board challenging his
removal and asserting that it was the result of discrimination. IAF, Tabs 1, 20.
Following a hearing, IAF, Tab 25, Hearing Compact Disc (HCD), the
administrative judge issued an initial decision sustaining two of the three
specifications of the inappropriate conduct charge and finding that the appellant
failed to prove his affirmative defense of discrimination, IAF, Tab 29,
Initial Decision (ID) at 8-10. She also found a nexus between the sustained
charge and the efficiency of the service and that the penalty of removal was
reasonable. ID at 10-13. The appellant has filed a petition for review of the
initial decision, and the agency has responded.2 Petition for Review (PFR) File,
Tabs 3, 5. The appellant has also filed a reply to the agency’s response.
PFR File, Tab 6.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved the charge of inappropriate conduct by preponderant evidence.
A charge of inappropriate conduct has no specific elements of proof; it is
established by proving that the appellant committed the acts alleged in support of
the broad label. See Alvarado v. Department of the Air Force , 103 M.S.P.R. 1,
¶ 22 (2006) (considering the charge of “improper conduct”); 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). Specification A of the charge alleged that on
August 23, 2016, the appellant was working at the front desk and made crude
2 There is a question as to the timeliness of the petition for review, Petition for Review
(PFR) File, Tabs 5-6, that we need not, and do not, resolve, given our disposition of the
petition for review on the merits. See, e.g., Alcantara v. Office of Personnel
Management, 88 M.S.P.R. 61, ¶ 3 n.* (2001). 3
comments that were sexual in nature to fellow coworkers. IAF, Tab 4 at 67.
Specifically, it alleged that the appellant stated, while on duty and in front of two
coworkers, “I think I will go back here and jerk off.” Id. During the hearing, a
Specialist and the other front desk clerk testified that the appellant made the
comment referencing masturbation and that it made them uncomfortable.
HCD (testimony of the Specialist and front desk clerk). The appellant testified to
the contrary, stating that he did not make the comment or any other similarly
inappropriate comment. HCD (testimony of the appellant).
When, as here, there is conflicting testimony concerning the appellant’s
conduct, and it is impossible to believe the testimony of witnesses on 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). In the
initial decision, the administrative judge assessed the credibility of the Specialist,
the other front desk clerk, and the appellant pursuant to the factors set forth in
Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987). ID at 8.
In doing so, she relied on their demeanors and the degree of consistency with
other evidence in the record, such as statements made during the agency
investigation into the appellant’s conduct. ID at 8. She concluded that the
Specialist and the other front desk clerk were more credible witnesses than the
appellant and sustained the specification. Id.
On review, the appellant generally argues that the specification contains no
specificity, such as the circumstances surrounding the alleged comment or the
nature of the comment. PFR File, Tab 3 at 5-6. He also asserts that the other
front desk clerk was biased because the two of them did not get along and that her
testimony is therefore not credible. Id. at 6, 12-13. He further alleges that the
Specialist’s and the front desk clerk’s testimony was contradictory because they
could not agree about whether the alleged comment was made in reference to a
jerked chicken lunch. Id. 4
The appellant’s arguments do not provide a basis to disturb the initial
decision. The two witnesses’ testimony provided the degree of specificity that
the appellant alleges the agency failed to show; they testified regarding the nature
and circumstances surrounding the alleged comment, providing the date of the
incident and the time of day, and explaining the expressions on the appellant’s
face and general demeanor when he made the comment. HCD (testimony of the
Specialist and front desk clerk). Further, although there was a poor workplace
history between the other front desk clerk and the appellant, the Board cannot
discount testimony based solely on the potential bias of a witness. Redschlag v.
Department of the Army , 89 M.S.P.R. 589, ¶ 12 (2001). Furthermore, although
the appellant is correct that the other front desk clerk and the Specialist’s
testimony conflicted regarding whether the comment was made in reference to the
jerked chicken lunch, the administrative judge acknowledged this discrepancy,
but nevertheless found the Specialist, in particular, to be a credible witness
because she testified in a “straightforward” and “clear” manner. ID at 8. Given
this demeanor-based finding, we defer to the administrative judge’s credibility
determination. 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). Accordingly, we decline to disturb the administrative judge’s finding
that the other front desk clerk and Specialist were more credible witnesses than
the appellant. The appellant’s attempts on review to have the Board reweigh this
evidence are unpersuasive. PFR File, Tab 3 at 5-7; 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 made reasoned conclusions on issues of
credibility); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (same). 5
Specification C3 of the charge alleges that, on August 8, 2016,
while speaking to a coworker about the television show “Law and Order,” the
appellant stated to the Specialist that “pedophiles get off on [a] baby’s natural
sucking reflex.” IAF, Tab 4 at 67. At the hearing, the Specialist testified
regarding the incident, stating that the appellant made that statement to her and
that she had to ask him several times to stop talking about it before he quit.
HCD (testimony of the Specialist). The appellant acknowledged that he made the
comment, but claimed that it was “academic in nature” and stopped talking about
it when the Specialist asked him to. HCD (testimony of the appellant); PFR File,
Tab 3 at 10-11. The administrative judge credited the Specialist’s testimony, in
part because it was consistent with her prior statements during the investigation,
and she sustained the specification. ID at 9.
On review, the appellant argues that the agency viewed the comment in the
wrong context and that it was not harassment4 because he was discussing the
“punishment for pedophiles.” PFR File, Tab 3 at 10-11. These arguments are
unconvincing. The Specialist testified that she knew “where [the appellant] was
going” with his comments and that they made her uncomfortable, particularly
because she had two children. HCD (testimony of the Specialist).
The administrative judge credited the Specialist’s testimony, emphasizing that she
provided it “in an earnest manner.” ID at 9. The appellant’s arguments on
review are not sufficient to disturb this demeanor-based credibility finding.
Haebe, 288 F.3d at 1301 (stating that the Board may overturn demeanor-based
credibility determinations only when it has “sufficiently sound” reasons to do so);
3 Although the appellant included in his petition for review arguments that addressed
Specification B, PFR File, Tab 3 at 7-9, the administrative judge did not sustain that
specification, ID at 8-9, and the agency has not challenged that determination in its
response to the appellant’s petition for review, PFR File, Tab 5. As such, it is not
necessary to consider the appellant’s arguments regarding that specification.
4 To the extent the appellant characterizes the agency’s charge as one of sexual
harassment in his petition for review, PFR File, Tab 3 at 10, he is mistaken.
The agency charged him with inappropriate conduct. IAF, Tab 4 at 67. 6
see 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).
Based on the foregoing, we agree with the administrative judge’s decision
to sustain the charge, and we will not disturb it.
The appellant failed to prove his affirmative defenses of Title VII and age
discrimination.
The appellant asserted as an affirmative defense that his removal was the
result of race, color, sex, religion, national origin, and age discrimination.
IAF, Tab 20. An appellant alleging discrimination must prove that such
discrimination was at least a motivating factor in the agency’s employment
decision. Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 21.
Here, the administrative judge considered the appellant’s assertion that his
age, race, color, sex, religion, and national origin played a “major role” in the
way he was perceived. ID at 10. She found, however, that he failed to submit
any evidence supporting his claim, either in response to the affirmative defenses
order, in his prehearing submission, or at the hearing. Id. She also concluded
that the record did not contain any evidence that the responsible management
officials were motivated by discriminatory factors. Id.
On review, the appellant reasserts his discrimination claim and appears to
argue that he was discriminated against because his “accusers” were of a different
age, sex, race, and national origin. PFR File, Tab 3 at 4, 13. Although this
statement may be true, it does not prove that the appellant’s age, sex, race, and
national origin were motivating factors in his removal. Further, the deciding
official specifically testified that he did not consider the appellant’s age, race,
sex, national origin, or religious faith when he effected the removal action.
HCD (testimony of the deciding official). The administrative judge did not7
discuss this testimony or make an explicit credibility finding on this point,
ID at 10, but the appellant bears the burden of proof on his affirmative defense,
see 5 C.F.R. § 1201.56(b)(2)(i)(C). We find that the appellant has not proven by
preponderant evidence that any of the prohibited categories discussed above were
motivating factors in his removal, and we discern no basis to disturb in the initial
decision in this regard. Because we affirm the administrative judge’s finding that
the appellant failed to show that any prohibited consideration 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
decisions. See Pridgen, 2022 MSPB 31, ¶¶ 20-22, 29-33.
The penalty of removal is reasonable. 5
When, as here, the Board sustains the agency’s charges, but not all of the
specifications of those charges, it will review the agency-imposed penalty to
determine whether it is within the parameters of reasonableness.
Dunn v. Department of the Air Force , 96 M.S.P.R. 166, ¶ 10 (2004), aff’d, 139 F.
App’x 280 (Fed. Cir. 2005). 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 completed a Douglas factor worksheet and
reiterated his conclusions at the hearing. IAF, Tab 4 at 79-83; HCD (testimony of
5 As noted, the administrative judge found that the appellant’s misconduct had a nexus
to the efficiency of the service. ID at 10-11. The appellant has not challenged that
finding on review, and we discern no reason to disturb it. 8
the deciding official). He testified that removal was reasonable considering the
nature of the appellant’s workplace and the importance of maintaining integrity in
that environment. HCD (testimony of the deciding official). He further testified
that he consulted the agency’s table of penalties and that removal was consistent
with the suggested penalty for inappropriate behavior that was sexual in nature.
Id. He also testified that he considered that the appellant exhibited a pattern of
inappropriate conduct without signs of improvement and concluded that he lacked
the potential for rehabilitation. IAF, Tab 4 at 82. He considered the appellant’s
past disciplinary history, noting that he had a record of inappropriate conduct,
id. at 80, as well as mitigating factors, such as the appellant’s performance and
strained work relationship with the other front desk clerk, but concluded that they
were overshadowed by the negative climate created by his offenses, id. at 81-82.
In the initial decision, the administrative judge found that the deciding official
properly weighed the relevant Douglas factors in affirming the removal, and she
credited his testimony based on his demeanor and its consistency with the written
record. ID at 12.
On review, the appellant argues that both the administrative judge and the
deciding official erred in sustaining the penalty of removal. PFR File, Tab 3
at 11-13. He argues that the administrative judge improperly considered the
second charge that was included in the proposal action but not sustained by the
deciding official in finding that the penalty of removal was reasonable. Id. at 3.
Although the administrative judge discussed the second charge that was not
sustained by the deciding official in the background section of the initial
decision, there is no indication that she considered the charge in her assessment
of the reasonableness of the penalty of removal. ID at 11-13.
Additionally, the appellant generally argues that the deciding official’s
penalty analysis was not sufficient for a variety of reasons, including that he
failed to explain why the table of penalties on which the he relied was relevant
and why he did not find the appellant dependable, or how the misconduct9
rendered him unable to perform his job. PFR File, Tab 3 at 11-13. He also
contends that the deciding official’s finding that he lacked the potential for
rehabilitation was “incendiary, demeaning, and humiliating” because it likened
him to “a criminal in prison, whose issue was about rehabilitation from his past
crime.” Id. at 11.
The appellant’s arguments are unconvincing. Whether an employee has the
potential for rehabilitation and whether the proposed penalty is consistent with
the agency’s table of penalties are both relevant factors for a deciding official to
consider when determining the appropriate penalty. Douglas, 5 M.S.P.R. at 305.
Here, the table of penalties indicates that the similar charge of conduct
unbecoming a Federal employee, which also has a broad label but is accompanied
by a narrative detailing alleged misconduct, see Canada v. Department of
Homeland Security , 113 M.S.P.R. 509, ¶ 9 (2010), warrants a penalty in the range
of a 5-day suspension to a removal after the first offense. IAF, Tab 4 at 115.
Thus, we see no error in the deciding official’s reliance on the table of penalties
to determine the appropriate penalty. Further, the deciding official testified at
length why he believed the appellant was no longer dependable or able to perform
his duties, focusing on the environment created by the misconduct and the
agency’s mission of dealing with veterans. HCD (testimony of the deciding
official); IAF, Tab 4 at 80. After our review of the hearing testimony and the
written Douglas factor analysis, we find that that the deciding official weighed
the relevant factors, including mitigating factors, before concluding that removal
was the appropriate penalty. IAF, Tab 4 at 79-83; HCD (testimony of the
deciding official).
Because the deciding official properly considered Douglas factors, we only
review the penalty to determine whether it is reasonable. See Stuhlmacher,
89 M.S.P.R. 272, ¶ 20. We agree with the administrative judge that it is. 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 the10
misconduct and its relation to the employee’s duties, position, and
responsibilities. Martin v. Department of Transportation , 103 M.S.P.R. 153, ¶ 13
(2006), aff’d, 224 Fed. App’x 974 (Fed. Cir. 2007). The Board has found that
conduct similar to the appellant’s is serious and may warrant removal. See, e.g.,
Social Security Administration v. Carr , 78 M.S.P.R. 313, 325-27, 341, 343 (1998)
(finding that good cause existed for removal of an administrative law judge when
she engaged in persistent use of vulgar and profane language, sexual harassment,
and ridicule, and made demeaning comments, even if they were intended as jokes,
when aggravating factors were present such as a prior reprimand, a relatively
brief Federal tenure of less than 4 years, difficulty with interpersonal
relationships in the office, and lack of potential for rehabilitation), aff’d, 185 F.3d
1318 (Fed. Cir. 1999); Wilson v. Department of Justice , 68 M.S.P.R. 303, 310-11
(1995) (concluding that disrespectful conduct manifested by the use of abusive,
language is unacceptable and not conducive to a stable working atmosphere and is
grounds for removal). Further, the appellant’s duties and responsibilities require
him to deal with the public, specifically with veterans, is a relevant factor and
may be considered aggravating. See Douglas, 5 M.S.P.R. at 305-06.
In addition to these factors and the previously discussed table of penalties,
the record also reflects that the appellant had prior discipline, which the deciding
official considered. IAF, Tab 4 at 80. The record contains two letters of
counseling and a letter of reprimand, which concern performance issues and the
appellant’s ability to get along with coworkers.6 Id. at 61-66. The record further
indicates that the appellant had been appointed to his position with the agency in
April of 2016, giving him less than 2 years of service. IAF, Tab 4 at 28.
Based on the foregoing, we find removal to be within the bounds of
reasonableness. The appellant’s mere disagreement with the weight the deciding
6 Although two of these letters were issued after the appellant engaged in the charged
misconduct, and, therefore, generally could not be considered as prior discipline,
see Cantu v. Department of the Treasury , 88 M.S.P.R. 253, ¶ 6 (2001), they nonetheless
are relevant to the appellant’s potential for rehabilitation. 11
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).
The appellant has not presented any new and material evidence that warrants a
reversal of the initial decision.
On review, the appellant seeks to resubmit three documents with his
petition for review, which include: (1) the final decision of removal; (2) an email
regarding Specification B of the charge of inappropriate conduct; and
(3) a summary document of the internal investigation into the appellant’s
misconduct. PFR File, Tab 3 at 15-27. However, all three of these documents are
included in the record below in the agency file, and, therefore, are not new. IAF,
Tab 4 at 23-33, 55, 84-85; see Meier v. Department of the Interior , 3 M.S.P.R.
247, 256 (1980) (concluding that evidence that was in the record below and was
considered by the administrative judge is not new simply because a party believes
that the evidence was not properly weighed or considered by the administrative
judge). Moreover, the appellant has not explained how any of these documents
would have a material impact on, or would change the outcome of, his appeal.
Accordingly, we find that the additional documents provide no basis for granting
review. See 5 C.F.R. § 1201.115(d) (providing that the Board will grant a
petition for review based on new and material evidence).
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. 12
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).
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:
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.13
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 any14
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’s15
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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. 16
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.17 | Gladden_Brian_G_DC-0752-18-0553-I-1__Final_Order.pdf | 2024-06-12 | BRIAN G. GLADDEN v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-0752-18-0553-I-1, June 12, 2024 | DC-0752-18-0553-I-1 | NP |
1,257 | https://www.mspb.gov/decisions/nonprecedential/Williams_VernellDC-0752-18-0649-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VERNELL WILLIAMS,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-0752-18-0649-I-1
DATE: June 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Scott G. Crowley , Esquire, Glen Allen, Virginia, for the appellant.
Megan Garry , 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
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
or regulation or the erroneous application of the law to the facts of the case; 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).
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 by
this Final Order concerning the appellant’s affirmative defenses of disability
discrimination and retaliation, we AFFIRM the initial decision.
On review, the appellant has not identified any specific error in the
administrative judge’s analysis. Thus, the Board will not embark upon a
complete review of the record. See Baney v. Department of Justice , 109 M.S.P.R.
242, ¶ 7 (2008); Tines v. Department of the Air Force , 56 M.S.P.R. 90, 92 (1992);
5 C.F.R. § 1201.115(a)(2) (stating that a petitioner who alleges that the judge
made erroneous findings of material fact must explain why the challenged factual
determination is incorrect and identify specific evidence in the record that
demonstrates the error). Rather, the appellant merely reiterates generally that the
agency failed to properly consider reasonable accommodations for his
post-traumatic stress disorder and “violated his rights against reprisal for
complaining of disability and race discrimination.” Petition for Review (PFR)
File, Tab 1 at 4, 12-14.
The administrative judge considered and rejected the appellant’s
affirmative defenses of disability discrimination and retaliation. Following the
issuance of the initial decision, however, the Board issued decisions clarifying the
standards governing the adjudication of claims of disability discrimination and
retaliation for activity protected under the Rehabilitation Act. See Pridgen v.
Office of Management and Budget , 2022 MSPB 31, ¶¶ 42, 46; Desjardin v. U.S.2
Postal Service, 2023 MSPB 6, ¶¶ 27-33. These decisions, however, do not alter
the Board’s analysis concerning a claim of disability discrimination based on a
failure to accommodate. To the extent the appellant is claiming reprisal for filing
complaints of disability discrimination, the proper causation standard for such a
claim requires proof that the appellant’s protected activity was the “but for” cause
of the adverse employment action, not merely a motivating factor. Pridgen,
2022 MSPB 31, ¶ 46. Other than applying the lower motivating factor standard,
we discern no error in the administrative judge’s analysis. Therefore, we affirm
the administrative judge’s finding, as modified, to find that the appellant did not
prove that his prior complaints of disability discrimination were the “but for”
cause of his removal.
Finally, we decline to consider the appellant’s new evidence submitted for
the first time on review. PFR File, Tab 1 at 16-22. Such evidence consists of
emails dated 2016 and 2017, and the appellant has not explained why he could not
have submitted such evidence below. See Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211, 214 (1980) (stating that, under 5 C.F.R. § 1201.115, the Board
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).
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
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
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 at4
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,5
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 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. 115-195,6
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. 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 | Williams_VernellDC-0752-18-0649-I-1__Final_Order.pdf | 2024-06-11 | VERNELL WILLIAMS v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-0752-18-0649-I-1, June 11, 2024 | DC-0752-18-0649-I-1 | NP |
1,258 | https://www.mspb.gov/decisions/nonprecedential/Little_AngelaDC-0752-19-0201-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANGELA DEMETRIC LITTLE,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
DC-0752-19-0201-I-1
DATE: June 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kirk Angel , Esquire, Concord, North Carolina, for the appellant.
Carol J. Parker , Somerset, New Jersey, 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 based on the charges of failure to follow instructions
involving agency procurement procedures, failure to follow supervisory
instructions to correct issues with the procurement, and lack of candor involving
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 procurement. On petition for review, the appellant argues that the
administrative judge made erroneous factual findings leading to his incorrectly
sustaining the charges and also erred in his analysis of the appellant’s claim of
retaliation for prior equal employment opportunity activity. 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. 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 | Little_AngelaDC-0752-19-0201-I-1__Final_Order.pdf | 2024-06-11 | ANGELA DEMETRIC LITTLE v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DC-0752-19-0201-I-1, June 11, 2024 | DC-0752-19-0201-I-1 | NP |
1,259 | https://www.mspb.gov/decisions/nonprecedential/Copeland_JosephDA-0752-20-0166-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH COPELAND, JR.,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DA-0752-20-0166-I-1
DATE: June 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joseph Copeland, Jr. , Manor, Texas, pro se.
Roderick Eves , Esquire, Saint Louis, Missouri, 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 the agency’s chapter 75 removal action based on one charge of
unacceptable conduct and one charge of unacceptable work performance. On
petition for review, the appellant makes the following arguments: (1) the
deciding official improperly considered his past disciplinary record; (2) 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).
agency’s penalty of removal was inconsistent with discipline imposed upon other
agency employees for similar conduct; and (3) the administrative judge was
biased against him.2 Petition for Review (PFR) File, Tab 1 at 5, 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).
On review, the appellant states that the “settlement [agreement] should not
have been in [his] record because [Human Resources] was instructed to clean out
[his] record.” PFR File, Tab 1 at 5. He also avers that the agency “was stuck in
the past of [his] history when [he] had worked in Killeen Copper Mountain.” Id.
We interpret these statements as assertions that the agency violated his due
process rights insofar as the deciding official relied on: (1) a November 27, 2017
letter of warning, which was subsequently expunged pursuant to an April 26,
2018 settlement agreement; and (2) a March 19, 2018 notice of proposed removal
for which the agency never rendered a decision.3 Initial Appeal File (IAF),
Tab 15 at 11, Tab 19 at 9.
2 The appellant does not challenge the administrative judge’s finding that the agency
proved both charges and nexus or her finding that he did not prove his affirmative
defense of harmful procedural error. We affirm her findings in this regard. 2
A deciding official violates an employee’s constitutional due process rights
when he relies on “new and material” ex parte information as a basis for his
decision on either the merits of a proposed charge or the penalty to be imposed.
Ward v. U.S. Postal Service , 634 F.3d 1274, 1280 (Fed. Cir. 2011); Solis v.
Department of Justice , 117 M.S.P.R. 458, ¶¶ 7 -8 (2012). Here, to the extent the
appellant contends that the deciding official improperly relied on the
November 27, 2017 letter and/or the March 19, 2018 notice of proposed removal
as a basis for his decision on the merits of the proposed charges, the appellant’s
contention is unavailing. Although the November 27, 2017 letter of warning is
not in the record, it appears that the incident upon which it was based was
discussed during the appellant’s oral reply, IAF, Tab 6 at 20-21, and the notice of
proposed removal referenced the incident, id. at 27; thus, we agree with the
administrative judge’s conclusion that the appellant could not reasonably claim
that he was deprived of notice and an opportunity to respond, IAF, Tab 22, Initial
Decision (ID) at 16; see Wilson v. Department of Homeland Security ,
120 M.S.P.R. 686, ¶ 11 (2014) (finding unavailing the appellant’s allegation that
the agency violated her due process by rights improperly considering
unauthorized disclosures that she made when the appellant raised and discussed
these disclosures in her reply to the notice of proposed removal), aff’d, 595 Fed.
Appx. 995 (Fed. Cir. 2015). Similarly, the notice of proposed removal for the
instant removal action specifically referenced and discussed the agency’s prior
March 19, 2018 notice of proposed removal. IAF, Tab 6 at 28-29. Therefore, the
appellant was on notice that the agency was considering it.4 Thus, we discern no
basis to disturb the initial decision.
3 We believe that these assertions involve an April 26, 2018 settlement agreement,
which resolved a March 2018 notice of proposed removal for unacceptable performance.
Initial Appeal File (IAF), Tab 6 at 71-81, Tab 15 at 11-12. As part of this agreement,
the agency agreed not to issue a decision on the proposed removal and agreed to
expunge letters of warning dated June 5, 2017, July 24, 2017, and November 27, 2017,
and the appellant agreed to accept a reassignment and downgrade. IAF, Tab 6 at 79-81,
Tab 15 at 11-12. 3
The appellant seemingly asserts that four other agency employees engaged
in similar misconduct but were not removed. PFR File, Tab 1 at 5. However, the
appellant did not raise this claim before the administrative judge and has failed to
demonstrate that it is based on new and material evidence that previously was
unavailable to him despite due diligence, and thus, a different outcome is not
warranted. 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 on review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence). Moreover,
even if the Board was to consider this untimely argument, a different outcome
would not be warranted insofar as the appellant fails to identify any comparator
employees who engaged in the same totality of misconduct. PFR File, Tab 1 at 5;
see Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 18 (finding that the Board
should not attempt to weigh the relative seriousness of various offenses in order
to determine whether two employees who committed different acts of misconduct
were treated disparately).
The appellant contends that the administrative judge exhibited bias.
PFR File, Tab 1 at 7. To this end, he avers that “it [] felt like the [administrative
judge] was on the [agency’s] side [but] was trying so hard not to be.” Id. He also
states that “it seem[ed] to [him] that the [administrative judge] had her mind
already made up before the trial was under way.” Id. The Board has consistently
held that in making a claim of bias against an administrative judge, the appellant
4 Even if we alternatively consider the appellant’s argument that the agency improperly
considered in its penalty assessment prior discipline that was expunged or that was
proposed but not effected, a different outcome is not warranted. To this end, the
administrative judge recognized that the agency improperly relied on an August 26,
2019 notice of proposed 7-day, no time off suspension and a November 15, 2018 notice
of proposed letter of warning as aggravating factors, and she conducted an independent
review of the relevant aggravating and mitigating penalty factors as set forth in Douglas
v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981). ID at 22-24 (citing Bolling
v. Department of the Air Force , 9 M.S.P.R. 335, 339-40 (1981)). We discern no basis
to disturb her reasoned conclusion that removal was appropriate under the
circumstances. ID at 23-25. 4
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). This presumption can be overcome only by a
substantial showing of personal bias. Williams v. U.S. Postal Service ,
87 M.S.P.R. 313, ¶ 12 (2000). The appellant has not overcome this presumption.5
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS6
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
5 During the pendency of the appeal, the parties participated in a telephonic settlement
conference with a different administrative judge through the Board’s Mediation Appeals
Program. IAF, Tab 17 at 1-2. To the extent that the appellant contends for the first
time on review that this administrative judge was also biased against him, PFR File,
Tab 1 at 7, we find his unsubstantiated assertion similarly unavailing, see Gensburg v.
Department of Veterans Affairs , 85 M.S.P.R. 198, ¶ 7 (2000) (stating that mere unsworn
statements that an administrative judge acted improperly without either identifying any
evidence in the record or submitting any evidence to support such a claim does not
rebut the presumption of an administrative judge’s honesty and integrity).
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.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.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. 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 | Copeland_JosephDA-0752-20-0166-I-1__Final_Order.pdf | 2024-06-11 | null | DA-0752-20-0166-I-1 | NP |
1,260 | https://www.mspb.gov/decisions/nonprecedential/Sepulveda_Miguel_A_NY-315I-20-0020-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MIGUEL A. SEPULVEDA,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
NY-315I-20-0020-I-1
DATE: June 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Francisco J. Reyes , Esquire, Guaynabo, Puerto Rico, for the appellant.
Aarrin Golson , 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 his appeal of the agency’s reassignment action 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 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
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
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 obtain3
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 4
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. 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 | Sepulveda_Miguel_A_NY-315I-20-0020-I-1__Final_Order.pdf | 2024-06-11 | MIGUEL A. SEPULVEDA v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. NY-315I-20-0020-I-1, June 11, 2024 | NY-315I-20-0020-I-1 | NP |
1,261 | https://www.mspb.gov/decisions/nonprecedential/Kilbane_Matthew_H_DC-3443-23-0017-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MATTHEW KILBANE,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-3443-23-0017-I-1
DATE: June 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Elchonon Reizes , Esquire, Houston, Texas, for the appellant.
Patrick D. Dyson , Esquire, Orange, 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 his appeal challenging the expiration of his temporary appointment for
lack of jurisdiction. On petition for review, the appellant argues that the
administrative judge erred in concluding that the agency did not appoint him to a
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).
permanent position, effective September 9, 2021, and that he had not completed a
1-year probationary period at the time of his separation from 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. 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 | Kilbane_Matthew_H_DC-3443-23-0017-I-1__Final_Order.pdf | 2024-06-11 | MATTHEW KILBANE v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-3443-23-0017-I-1, June 11, 2024 | DC-3443-23-0017-I-1 | NP |
1,262 | https://www.mspb.gov/decisions/nonprecedential/Milowski_Kyle_R_AT-0752-19-0238-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KYLE MILOWSKI,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
AT-0752-19-0238-I-1
DATE: June 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence Berger , Esquire, Glen Cove, New York, for the appellant.
Katie Chillemi , 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 agency has filed a petition for review of the initial decision, which
reversed its alleged constructive suspension action. For the reasons discussed
below, we GRANT the agency’s petition for review, VACATE the initial
decision, and DISMISS the appeal for lack of 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).
BACKGROUND
The appellant is a GS-13 Deportation Officer (Course
Developer/Instructor) for Immigration and Customs Enforcement at the Federal
Law Enforcement Training Center in Glynco, Georgia. On April 17, 2017, he
informed his supervisor that he would be out of work because of a medical
condition. Initial Appeal File (IAF), Tab 4 at 14. He remained out of work and
filed a claim with the Office of Workers’ Compensation Programs (OWCP). On
June 22, 2017, he emailed his supervisor, asking “What are my options for
returning to work now?” Id. at 17. His supervisor responded: “Have you been
medically cleared to return to work? If so, please provide medical doctors note.
Upon receipt of medical clearance to return to work note, we’ll discuss your
options.” Id. at 17-18. The appellant responded that he had not been cleared to
work but did not want to exhaust his leave. IAF, Tab 17 at 34. His supervisor
responded, “Your return to work is a moot point, [sic] until medical
documentation is provided, [sic] clearing you to return to work.” Id. at 36. The
appellant did not provide medical documentation to his supervisors and
apparently did not contact his supervisors again until August 1, 2018.
Meanwhile, however, on November 21, 2017, in connection with his
OWCP claim,2 the appellant submitted a medical report and several pages of
medical documentation from a physician that recounted his medical history, the
nature and diagnosis of his medical condition, its symptoms, and recommended
treatment. IAF, Tab 6 at 80-87. The physician preparing the report, Dr. S,
concluded that the appellant was “to remain out of work until further evaluation.”
Id. at 80.
On August 1, 2018, the appellant submitted to his supervisor a medical note
from Dr. R, stating that the appellant was able to return to work with the
accommodation of an ergonomic chair and a standing/sitting workstation.
2 The record does not reflect the status of the appellant’s OWCP claim. In any event, it
is not relevant to this appeal.2
Id. at 77. The agency responded with an August 3, 2018 letter in which it noted
that the August 1 note was not signed and did not contain adequate information to
allow the agency to conclude that the appellant was capable of performing the
essential functions of his position. Id. at 71. The agency requested additional
information from the appellant’s physician in lieu of a formal fitness for duty
examination, and it prepared a list of questions for his physician to answer along
with a copy of the appellant’s position description. Id. at 71-72. The appellant
responded by submitting a photocopy of the list of questions with unsigned,
handwritten, cursory answers. Id. at 69.
The agency sent the appellant an August 29, 2018 letter informing him that
the handwritten answers that he provided were substantively inadequate, it was
unclear who wrote them, and they were unsigned. Id. at 63-64. It requested that
the appellant provide additional medical documentation and suggested that
documentation concerning his treatment following the November 21, 2017 note
from Dr. S would be useful. Id. The agency informed the appellant that his
failure to submit proper medical documentation would result either in a fitness for
duty examination or a determination of his fitness for duty based on the available
information. Id. at 64.
The appellant did not submit medical documentation. Instead, he alleged
that other agency employees with medical conditions were not required to
undergo fitness for duty examinations, he expressed his mistrust of the agency’s
physician, Dr. M, he referred to a prior quasi-disciplinary incident in which he
believed he was treated unfairly, and he asserted that instructors are not called
upon to perform the same duties as the law enforcement officers they instruct and
should not be held to the same physical standards. Id. at 59-60. On October 25,
2018, the agency issued a notice scheduling the appellant for a fitness for duty
examination with an outside physician pursuant to 5 C.F.R. part 339. Id.
at 56-57. It instructed him to complete a medical release to facilitate review of
the medical records pertinent to his condition. Id. 3
When the appellant did not respond, the agency sent him another notice,
dated November 6, 2018, instructing him to participate in the fitness for duty
process and to complete a medial release. Id. at 30. The notice informed the
appellant that his failure to cooperate would result in the agency taking action
based on the information currently available to it, which showed that the
appellant was not fit for duty, and which could result in disciplinary action for
failure to follow instructions, up to and including removal. Id.
The appellant responded by alleging that the agency’s actions constituted
harassment, retaliation against a whistleblower, and an imposition against his
privacy rights. Id. at 27. He stated that physicians employed by the Federal
Government can be sued for malpractice. Id. He averred that he was being
required to undergo a fitness for duty examination without due process. Id.
He accused his supervisors of perjury and fraud, and claimed they were refusing
to provide him with reasonable accommodation. Id. at 27-28. He concluded by
naming a number of Federal agencies against which he had instigated litigation,
and declared that he would not complete a medical release. Id. at 28.
On December 6, 2018, the agency granted the appellant’s request for
accommodation by giving him an ergonomic chair and a standing/sitting
workstation, apparently on the basis that he was determined to be a qualified
disabled individual after a January 2017 request for reasonable accommodation,
although it is not clear whether that request was predicated on the same medical
condition as the one at issue in this appeal. IAF, Tab 17 at 40, 48, 50.
On December 10, 2018, the agency informed the appellant that it had
scheduled a fitness for duty examination, it informed him of the date, time, and
location, and it informed him that his failure to cooperate could result in
disciplinary action up to and including removal. IAF, Tab 6 at 23.
The examination took place, and the appellant was returned to duty in a light duty
status effective January 30, 2019. Id. at 20.4
On February 7, 2019, the appellant filed an appeal in which he contended
that his absence from June 22, 2017, through January 31, 2019, constituted an
appealable constructive suspension. IAF, Tab 1. He further contended that the
agency’s action constituted disability discrimination based on a failure to afford
him reasonable accommodation and retaliation for his prior equal employment
opportunity (EEO) activity. IAF, Tab 15 at 2, 5. The appellant waived his right
to a hearing and requested a decision on the written record. IAF, Tab 13 at 3.
After affording the parties the opportunity to submit evidence and argument
in support of their respective positions, the administrative judge found that the
appellant proved by preponderant evidence that the agency constructively
suspended him. IAF, Tab 19, Initial Decision (ID) at 3-7. She further found that
the agency committed disability discrimination when it failed to offer him a
reasonable accommodation and retaliated against him for his prior EEO activity.
ID at 7-13. The administrative judge did not order interim relief.
The agency has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The appellant has responded in opposition to the
petition for review. PFR File, Tab 3.
ANALYSIS
The Board lacks jurisdiction over appeals of employees’ voluntary actions.
Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶ 7 (2013). However, the Board
has always recognized that employee-initiated actions that appear voluntary on
their face are not always so. Id. The Board may have jurisdiction over such
actions under 5 U.S.C. chapter 75 as “constructive” adverse actions. Id.
Involuntary leaves of absence may be appealable to the Board as constructive
suspensions when: (1) the employee lacked a meaningful choice in the matter;
and (2) it was the agency’s wrongful actions that deprived the employee of that
choice. Rosario-Fabregas v. Merit Systems Protection Board , 833 F.3d 1342,
1346-47 (Fed. Cir. 2016); Bean, 120 M.S.P.R. 397, ¶ 8. Assuming that the5
jurisdictional requirements of 5 U.S.C. chapter 75 are otherwise met, proof of
these two things is sufficient to establish Board jurisdiction. Bean, 120 M.S.P.R.
397, ¶ 8. The burden of proving Board jurisdiction is on the appellant.
Thomas v. Department of the Navy , 123 M.S.P.R. 628, ¶ 11 (2016).
Here, the appellant alleges that his absence became involuntary when the
agency denied his request to return to work on June 22, 2017. The administrative
judge found that the appellant’s request to return to work triggered an obligation
on the part of the agency to begin the process of searching for a reasonable
accommodation, and that its failure to do so was wrongful and deprived the
appellant of a meaningful choice as to whether to continue his absence. ID at 4-5.
We disagree. Although the appellant framed his request to return to work
on June 22, 2017, in terms of “options,” there were in fact no options because, as
he himself stated, he had not been cleared to return to work. IAF, Tab 6 at 17,
Tab 17 at 34. The appellant never suggested that he might be able to work a
modified version of his job, or perform some duties but not others, or made any
other remarks about duties he could perform that would have triggered the
agency’s obligation to begin the reasonable accommodation process. An
employee need not invoke magic language to make an effective request for
reasonable accommodation; he has only a general responsibility to inform his
employer that he needs accommodation for a medical condition, such as a change
or adjustment at work for a reason related to a medical condition. See generally
Gonzalez-Acosta v. Department of Veterans Affairs , 113 M.S.P.R. 277, ¶ 15
(2010). The appellant’s request to return to work, coupled with the statement that
he had not been medically cleared to return to work and his failure to provide any
medical documentation at his supervisor’s prompting, did not trigger an
obligation on the part of the agency to begin the reasonable accommodation
process. Therefore, the agency’s denial of his request to return to work on
June 22, 2017, was not a wrongful action that deprived the appellant of a
meaningful choice about returning to work. 6
Moreover, the administrative judge mischaracterized the agency’s response
to the appellant’s request. The agency informed him that, once he submitted
medical documentation, they could discuss his options for returning to duty.
The administrative judge interpreted this to mean that the appellant would not be
allowed to return to duty until he could perform the full range of his duties.
ID at 4-5. It seems obvious that the agency’s decision on returning the appellant
to duty would depend entirely on the appellant’s medical documentation and the
recommendations of his doctor. Moreover, the appellant had previously obtained
a reasonable accommodation and so was familiar with the process and able to
articulate what duties he could and could not do and what accommodations he
might need. Furthermore, the agency knew that the appellant had previously been
accommodated and knew how to ask for accommodation and likely found it
significant that he did not do so in this case, stating instead that he was not
cleared to return to work.
The administrative judge distinguished this appeal from the case of
Rosario-Fabregas v. Merit Systems Protection Board , 833 F.3d 1342 (Fed. Cir.
2016). ID at 6-7. The court in Rosario-Fabregas found that the agency did not
act improperly and that the appellant failed to prove that he was constructively
suspended. The administrative judge noted in particular that the agency in
Rosario-Fabregas attempted to reasonably accommodate the appellant whereas
the agency in this case did not. In Rosario-Fabregas , the appellant submitted
medical documentation and requested to return to work on a reduced schedule.
Rosario-Fabregas , 833 F.3d at 1344. The agency responded by asking for
additional information, to which the appellant did not respond adequately, leading
the court to conclude that the agency did not act wrongfully. Id. at 1344-45,
1347. In contrast, the appellant here submitted no medical documentation, even
after his supervisor requested it, and he contended without qualification
(and continued to contend for more than a year thereafter) that he was unable to
work. We find that Rosario-Fabregas is directly applicable in this appeal.7
Similarly, the November 21, 2017 medical documentation3 that the
appellant submitted did not contain a request to return to work and stated that the
appellant remained unable to work.4 IAF, Tab 6 at 80-87. The agency’s failure to
return the appellant to work at this point was not a wrongful action that deprived
the appellant of a meaningful choice about returning to work.
The appellant’s request to return to work on August 1, 2018, on the other
hand, did contain a request for reasonable accommodation and a statement from a
physician that the appellant was able to return to work. Id. at 77. The agency
granted the appellant’s request for reasonable accommodation on December 8,
2018, and returned him to work on January 30, 2019. We find, however, that the
agency’s behavior after August 1, 2018 was reasonable, and that the delay in
returning the appellant to work was due to the appellant’s refusal to cooperate
with the fitness for duty process. The appellant occupied a secondary law
enforcement position containing physical requirements. Id. at 130-31. As such,
the agency was permitted under 5 C.F.R. § 339.301(b)(1), (b)(3) to require the
appellant to undergo a fitness for duty examination. The appellant resisted the
agency’s efforts to obtain medical documentation, objected to the agency’s
physician, and was generally hostile to the process. An agency may properly
refuse to allow an employee to resume working if the employee does not satisfy
3 The appellant contends that this documentation was generated to support his OWCP
claim, and that he informed his doctor that he was unable to work because the agency
would not allow him to return to work “under any conditions or accommodations.”
IAF, Tab 17 at 53. That statement is not an accurate representation of what the agency
told the appellant; it merely asked him to provide medical documentation, which he
refused to provide. IAF, Tab 4 at 17-18, Tab 17 at 36. The suggestion that the Board
should not take at face value the same medical documentation that the appellant
submitted to support a claim pending in another Federal agency is disturbing.
4 The administrative judge, citing Yarnell v. Department of Transportation ,
109 M.S.P.R. 416, ¶ 10 (2008), found that whether the appellant was able to perform his
duties was irrelevant. ID at 4. Yarnell was a suspension case in which the appellant’s
placement in a non-duty status was clearly involuntary, not a constructive suspension
case, in which an appellant’s medical ability to return to work following an absence for
medical reasons is frequently one of the material issues in dispute. 8
the agency’s conditions for returning to work. Rosario-Fabregas , 833 F.3d
at 1347. We find that the appellant’s failure to cooperate with the agency’s
efforts to get him cleared to return to duty delayed his return by several months.
Further, we take official notice of the fact that most of the delay between the date
the fitness for duty examination finally took place and the date the appellant
returned to duty is accounted for by the partial Government shutdown of
December 2018 to January 2019.
On the record before us, we find that the appellant’s absence from duty
after June 22, 2017, was not caused by or prolonged because of any improper
actions on the part of the agency. See id. (holding that the agency’s refusal to
allow the employee to return to work when the employee failed to provide
appropriate medical documentation, including a medical release, did not
constitute a constructive suspension). Therefore, the appellant has failed to meet
his burden of proving by preponderant evidence that his absence from work was
an involuntary constructive suspension, and the Board lacks jurisdiction over this
appeal. Because we lack jurisdiction over the appeal, we also lack jurisdiction
over his claims of disability discrimination and retaliation for EEO activity. The
administrative judge’s findings on those issues are vacated.
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
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. 9
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. The10
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 file11
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. 12
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. 13
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 | Milowski_Kyle_R_AT-0752-19-0238-I-1__Final_Order.pdf | 2024-06-11 | KYLE MILOWSKI v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. AT-0752-19-0238-I-1, June 11, 2024 | AT-0752-19-0238-I-1 | NP |
1,263 | https://www.mspb.gov/decisions/nonprecedential/Park_Soon_D_NY-0714-18-0070-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SOON D PARK,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
NY-0714-18-0070-I-1
DATE: June 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chanwoo Lee , Flushing, New York, for the appellant.
Andre Purnell , Bronx, New York, for the agency.
Jean McCaig Rummel , Bedford, Massachusetts, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has petitioned for review of the initial decision that affirmed
her removal. For the reasons set forth below, we DISMISS the appeal as settled.
After the filing of the petition for review, the agency filed a motion to
dismiss the appeal and attached a document titled “REMEDY ELECTION
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).
FORM” signed and dated by the appellant on January 9, 2024. Petition for
Review (PFR) File, Tab 9. In the motion, the agency explained that in
compliance with an August 2023 arbitration award with the American Federation
of Government Employees—the union representing the appellant—the agency
offered the appellant the option of accepting a lump sum payment in exchange for
a waiver of all pending claims against the agency. Id. at 4-5, 7. The agency
provided a copy of the appellant’s signed election to receive a lump sum payment
in exchange for waiving all outstanding claims against the agency. Id. at 7-8.
The agency has requested the dismissal of this appeal based on the following
provision in the executed remedy election form:
I agree to release and waive any right to continue to pursue any
complaint, claim, lawsuit, grievance, appeal, or proceeding of
whatever nature arising from my adverse action by the Department
pursuant to 38 U.S.C. § 714 predating my election. . . . . I hereby
agree [that the agency] can use my Remedy Election Form as
evidence of my express authorization to dismiss any pending
complaint, claim, lawsuit, grievance, appeal, or proceeding of
whatever nature arising from my adverse action by the Department
pursuant to 38 U.S.C. § 714 predating my election.
Id. at 4-5, 8.
The Board can consider a settlement agreement reached outside of a Board
proceeding to determine its effect on a personnel action before the Board and any
waiver of appeal rights. Swidecki v. U.S. Postal Service , 101 M.S.P.R. 110, ¶ 7
(2006). Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146,
149 (1988). In addition, before accepting a settlement agreement into the record
for enforcement purposes, the Board must determine whether the agreement is
lawful on its face and whether the parties freely entered into it. See Delorme v.
Department of the Interior , 124 M.S.P.R. 123, ¶¶ 10-11 (2017). Here, we find2
that the parties have entered into a settlement agreement and understand its terms.
PFR File, Tab 9 at 7-8. Accordingly, we find that dismissing the appeal with
prejudice to refiling (i.e., the parties normally may not refile this appeal) is
appropriate under these circumstances.
We note that the waiver form does not address whether the parties intend
for the agreement to be entered into the record for enforcement purposes.
However, the agreement references the arbitration agreement reached between the
parties through the Federal Mediation and Conciliation Service (FMCS). Id. at 4,
7. Because the waiver is the result of an arbitration agreement reached through
the FMCS, and the agreement does not refer to enforcement by the Board, we find
that the parties do not intend to enter the settlement agreement into the record
for enforcement by the Board. PFR File, Tab 9 at 4, 7; Settlement Agreement
Between Department of Veterans Affairs & National Veterans Affairs Council,
American Federation of Government Employees, AFL-CIO , FMCS Case No. 17-
0921-55048, available at https://www.afge.org/globalassets/documents/va/2023-
07-28---afge-va-714-settlement-agreement.pdf; see Swidecki, 101 M.S.P.R. 110,
¶¶ 24, 26 (determining that a settlement agreement that referenced enforcement
by “any court” and did not provide authority to the Board to enforce its terms was
not enforceable by the Board). As the parties do not intend for the Board to
enforce the terms of the agreement, we do not enter the settlement agreement into
the record for enforcement.
This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113). 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 | Park_Soon_D_NY-0714-18-0070-I-1__Final_Order.pdf | 2024-06-11 | SOON D PARK v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. NY-0714-18-0070-I-1, June 11, 2024 | NY-0714-18-0070-I-1 | NP |
1,264 | https://www.mspb.gov/decisions/nonprecedential/Griffin_Nadine_Y_AT-0752-18-0292-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NADINE YVONNE GRIFFIN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0752-18-0292-I-1
DATE: June 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Nadine Yvonne Griffin , Auburn, Alabama, pro se.
Tsopei T. Robinson , Esquire, West Palm Beach, Florida, 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 constructive removal 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
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).
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 was a Supervisory Social Worker, GS-0185-12, with the
agency’s Central Alabama Veterans Health Care System. Initial Appeal File
(IAF), Tab 4 at 10, 22. In February 2018, the agency issued the appellant a
decision to demote her to the position of Social Worker, GS-0185-11, based on
charges of inappropriate behavior and inappropriate conduct. Id. at 10-12. The
appellant resigned from her position 7 days after the issuance of the decision and
2 days before the decision was to take effect. Id. at 10-12, 22.
The appellant timely filed a Board appeal alleging that she involuntarily
resigned from her position after the agency issued the decision to demote her, and
she requested a hearing. IAF, Tab 1 at 2, 5. She alleged that her resignation was
due to the exacerbation of medical issues caused by stress from ongoing
harassment, discrimination, and prohibited personnel actions, and that she was
subjected to retaliation “for speaking up and against unjust and discriminatory
practices.” Id. at 5. After affording the appellant an opportunity to demonstrate
that the Board had jurisdiction over her resignation, the administrative judge2
issued a decision on the written record dismissing the appeal for lack of
jurisdiction. IAF, Tab 7, Tab 10, Initial Decision (ID). Specifically, the
administrative judge found that there was no indication that the appellant was
subjected to working conditions so unpleasant that a reasonable person would
have felt compelled to resign; thus, the appellant had failed to make a
nonfrivolous allegation of facts that, if proven, could show that her resignation
was involuntary. ID at 6-8.
The appellant timely filed a petition for review of the initial decision.
Petition for Review (PFR) File, Tab 1. The agency filed an opposition to the
petition. PFR File, Tab 3.
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. Searcy v. Department of
Commerce, 114 M.S.P.R. 281, ¶ 12 (2010). However, employee-initiated actions
that appear voluntary on their face are not always so, and such actions may be
appealed to the Board as constructive adverse actions. Bean v. U.S. Postal
Service, 120 M.S.P.R. 397, ¶ 7 (2013). To prove jurisdiction over a constructive
adverse action, an appellant must show that (1) she lacked a meaningful choice in
the matter; and (2) it was the agency's wrongful actions that deprived her of that
choice. If an appellant makes a nonfrivolous allegation that the jurisdictional
elements are satisfied, she is entitled to a hearing at which she must prove
jurisdiction by a preponderance of the evidence. Garcia v. Department of
Homeland Security , 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc). To meet the
nonfrivolous allegation standard, an appellant need only plead allegations of fact
that, if proven, could show jurisdiction. Pariseau v. Department of the Air Force ,
113 M.S.P.R. 370, ¶ 14 (2010). As set forth below, the appellant has not made a
nonfrivolous allegation that she lacked a meaningful choice in her resignation. 3
The administrative judge properly adjudicated the appeal as an constructive
removal.
On petition for review, the appellant argues that the Board had jurisdiction
over her demotion, the penalty of demotion was unreasonable, and the agency’s
improper demotion action contributed to her resignation. PFR File, Tab 1 at 5, 7.
The administrative judge properly adjudicated the instant appeal as a constructive
adverse action because the appellant resigned prior to the effective date of the
demotion, and although she later attempted to rescind her resignation, she was not
entitled to have her resignation rescinded after its effective date. IAF, Tab 1 at 5,
Tab 4 at 22; ID at 2-3; see Glenn v. U.S. Soldiers’ and Airmen’s Home ,
76 M.S.P.R. 572, 577 (1997) (holding that the appellant was not entitled to
rescind her resignation after the effective date of the resignation).
To the extent that the appellant alleges that her resignation was induced by
a threat to take an adverse action that the agency knew could not be substantiated,
she has failed to allege facts that, if proven, could prove such an allegation. See
Staats v. U.S. Postal Service , 99 F.3d 1120, 1124 (Fed. Cir. 1996) (holding that
an example of an involuntary resignation based on coercion is a resignation
induced by a threat to take disciplinary action that the agency knows could not be
substantiated). The appellant’s assertion that the agency did not consider certain
mitigating factors does not constitute a nonfrivolous allegation that the agency
knew that the demotion could not be substantiated. PFR File, Tab 1 at 7.
Additionally, in arguing that she was subjected to a harsher penalty than other
agency employees, her accounts of misconduct committed by her coworkers
reflect that one coworker was subjected to a harsher penalty than demotion, and
the other three coworkers allegedly committed misconduct that is not
substantially similar to the appellant’s misconduct. The appellant’s allegations,
even if proven, would not show that the agency knew that the penalty of demotion
could not be substantiated. IAF, Tab 5 at 10-12; PFR File, Tab 1 at 7; see, e.g.,
Graham v. Department of the Treasury , 1999 WL 38828, at *4 (Fed. Cir. Jan. 28,4
1999) (nonprecedential) (providing that the appellant did not make a nonfrivolous
allegation that the agency knew it could not establish that the penalty was
reasonable where the appellant did not show that any other employee had
committed similar misconduct).2
On review, the appellant also argues that the administrative judge failed to
apply the standard to establish jurisdiction over an individual right of action
(IRA) appeal and that the agency’s retaliation against her for whistleblowing
activity resulted in her resignation. She has submitted documentation in support
of her claim. PFR File, Tab 1 at 6-7, 18-53. In a separate initial decision, the
administrative judge dismissed as untimely filed the appellant’s IRA appeal,
which alleged whistleblower retaliation on the same grounds alleged in the instant
petition.3 Griffin v. Department of Veterans Affairs , MSPB Docket No. AT-1221-
18-0293-W-1, Initial Decision (Apr. 26, 2018). However, we have considered the
appellant’s whistleblower retaliation claim to the extent it goes to the ultimate
question of coercion in determining whether she has alleged facts that, if proven,
could show jurisdiction. See Coufal v. Department of Justice , 98 M.S.P.R. 31,
¶ 24 (2004) (providing that, where an appellant raises allegations of reprisal for
whistleblowing activity in connection with a constructive removal claim,
evidence of reprisal goes to the ultimate question of coercion). The
administrative judge considered most of the actions that the appellant claims are
retaliatory in determining that the appellant had not made a nonfrivolous
allegation of jurisdiction; however, as discussed further below, we have
considered the appellant’s additional allegations that the agency denied her
telework and did not respond to her request for leave under the Family and
2 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. Morris v. Department
of the Navy, 123 M.S.P.R. 662, ¶ 13 n.9 (2016).
3 The appellant’s petition for review of the initial decision dismissing her IRA appeal as
untimely filed has been addressed in a separate order. Griffin v. Department of
Veterans Affairs, MSPB Docket No. AT-1221-18-0293-W-1, Final Order (Nov. 23,
2023).5
Medical Leave Act, but conclude that the totality of the circumstances do not
support a finding that she made a nonfrivolous allegation that her resignation was
involuntary. ID at 4-8; see Griffin v. Department of Veterans Affairs , MSPB
Docket No. AT-1221-18-0293-W-1, Initial Appeal File (0293 IAF), Tab 5.
The appellant has not alleged facts that, if proven, could show that her resignation
was the result of the agency’s misleading statements.
On review, the appellant argues that she was given misinformation when
the agency incorrectly stated the effective date of the demotion as February 18,
2017, the agency stated that the reduction in her grade would be to a GS-11
without providing a step level, and the agency did not include in her Standard
Form 50 the reasons for her resignation that she cited in her resignation letter,
and instead stated that she resigned after receiving notice of the demotion. PFR
File, Tab 1 at 6. We have considered the appellant’s arguments but find that they
do not entitle her to a jurisdictional hearing, as the appellant has failed to explain
how the alleged agency actions and omissions caused her to rely on them to her
detriment in choosing to resign. See Aldridge v. Department of Agriculture ,
111 M.S.P.R. 670, ¶ 8 (2009) (providing that an appellant who claims that an
involuntary action resulted from misinformation must show that the agency made
misleading statements and that she reasonably relied on the misinformation to her
detriment).
The appellant had not alleged facts that, if proven, could show that her
resignation was the result of duress or coercion by the agency.
The appellant alleges in her petition for review that the administrative
judge erred in finding that her complaints were the result of her dissatisfaction
with her work environment, her coworkers, and agency investigations leading to
her demotion, rather than her intolerable working conditions. PFR File, Tab 1
at 7. She also argues that a February 15, 2018 email from human resources staff6
made her feel under duress to resign.4 Id. at 6. Finally, the appellant argues that
she was denied discovery vital to her case. Id. at 5.
We have considered each of the appellant’s arguments, in addition to the
evidence and argument she provided below, and conclude that she has not met her
burden to plead allegations of facts that, if proven, could show that her
resignation was the result of the agency’s coercive acts. The appellant’s evidence
does not suggest that the agency encouraged her to resign or that, despite the
agency’s investigations into her conduct, which resulted in the agency detailing
her to another position and the decision to demote her; the denial of telework as
an accommodation; the agency’s failure to act on her leave request; and
interpersonal conflicts, her working conditions were made so difficult that a
reasonable person in her position would have felt compelled to resign. See, e.g.,
Baldwin v. Department of Veterans Affairs , 109 M.S.P.R. 392, ¶¶ 19-20 (2008)
(explaining that allegations of being assigned to onerous tasks, being
unjustifiably threatened with discipline, and being subjected to unnecessary
investigations did not suffice to make a nonfrivolous allegation of jurisdiction
over an involuntary resignation based on coercion); Miller v. Department of
Defense, 85 M.S.P.R. 310, ¶ 32 (2000) (providing that dissatisfaction with work
assignments, a feeling of being unfairly criticized or difficult or unpleasant
working conditions are generally not so intolerable as to compel a reasonable
person to resign). Additionally, the appellant does not explain how discovery
would have assisted her in making a nonfrivolous allegation of jurisdiction.
Accordingly, we affirm the initial decision dismissing the appeal for lack of
jurisdiction.
4 The February 15, 2018 email is not included in the record of the instant case; rather,
the appellant submitted the document in her IRA appeal. 0293 IAF, Tab 6 at 4.
Nevertheless, we have considered it for the purpose of determining whether the
appellant has made a nonfrivolous allegation of jurisdiction. 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:
Washington, D.C.______________________________
Gina K. Grippando
Clerk of the Board12 | Griffin_Nadine_Y_AT-0752-18-0292-I-1__Final_Order.pdf | 2024-06-11 | NADINE YVONNE GRIFFIN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-18-0292-I-1, June 11, 2024 | AT-0752-18-0292-I-1 | NP |
1,265 | https://www.mspb.gov/decisions/nonprecedential/McDonald_Lee_A_CH-0841-22-0286-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEE A. MCDONALD,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-0841-22-0286-I-1
DATE: June 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lee A. McDonald , Crown Point, 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
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 his request to change his deferred annuity commencing date.2 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).
2 OPM uses the terms “commencing date” and “commencement date” interchangeable.
E.g., Initial Appeal File, Tab 13 at 6-7. For clarity, we have used the term
the reasons discussed below, we GRANT the appellant’s petition for review,
REVERSE the initial decision and OPM’s reconsideration decision, and ORDER
OPM to change the appellant’s deferred annuity commencing date to May 1,
2015, and to retroactively recalculate the appellant’s annuity based on that
commencing date.
BACKGROUND
The appellant separated from Federal service in 1997 at 43 years of age
with over 10 years of creditable service under the Federal Employees’ Retirement
System. Initial Appeal File (IAF), Tab 13 at 42-50. In July 2020, at age 67, he
applied for deferred retirement benefits with OPM. Id. at 36-41. In his
application, he designated May 1, 2009, a date on which he was 56 years of age,
as the date he wanted benefits to begin accruing. Id. at 40. Based on his
application, OPM awarded the appellant an annuity in April 2021 retroactive to a
May 1, 2009 commencing date. Id. at 32-35. The appellant then contacted OPM
to challenge, among other things, his annuity’s commencing date. Id. at 22-28.
He alleged that he filed a second retirement application in September 2020
amending the commencing date to May 1, 2015, a date on which he was 62 years
old. Id. at 17-23. OPM issued a reconsideration decision declining to change the
commencing date. Id. at 6-7. The appellant appealed the reconsideration
decision to the Board. IAF, Tab 1.
The administrative judge affirmed OPM’s reconsideration decision in her
initial decision, finding that, even if OPM received the appellant’s September
2020 application, OPM correctly designated May 1, 2009, as his annuity
commencing date. IAF, Tab 23, Initial Decision (ID). She specifically
determined that 5 U.S.C. § 8413(b) prohibited the commencement of the
appellant’s annuity on May 1, 2015, a date after his 62nd birthday. ID at 6. She
found that, under 5 U.S.C. § 8413(b), OPM was correct to set the appellant’s
“commencing date” throughout our decision.2
benefits to commence on May 1, 2009, by which date he had attained his
minimum retirement age (MRA) of 56 but had not yet turned age 62. ID at 4, 6.
She also found that 5 C.F.R. § 842.212(b)(4), which states that the election of a
commencing date “becomes irrevocable when OPM authorizes the first annuity
payment,” prevented OPM from amending the appellant’s annuity commencing
date after it authorized his first payment in April 2021. ID at 6.
The appellant has filed a petition for review, and the agency has submitted
a pro forma response. Petition for Review (PFR) File, Tabs 1, 4. The appellant
has filed a reply. PFR File, Tab 5.
ANALYSIS
The appellant is entitled to a deferred annuity with a May 1, 2015 commencing
date.
In relevant part, 5 U.S.C. § 8413(a) provides that an employee separated
after completing 5 years of Federal service is entitled to an annuity after age 62.
Meanwhile, 5 U.S.C. § 8413(b) provides that an employee separated after
completing 10 years of service but before attaining his MRA may select an
annuity commencing date between his MRA and the date he turns 62 years old.
5 U.S.C. § 8413(b)(1). But under 5 U.S.C. § 8413(b)(2)(B), the election of an
annuity under “this subsection,” i.e., 5 U.S.C. § 8413(b), is not effective unless
the employee “will not otherwise be eligible to receive an annuity within 31 days
after filing the election.”
It is undisputed that the appellant filed an application for a deferred annuity
in July 2020. IAF, Tab 13 at 6, 10. Though the appellant had 10 years of
creditable service and elected an annuity commencing on his MRA—56 years of
age—in that application, 5 U.S.C. § 8412(h)(1)(C), he filed that application when
he was 67 years old. Id. at 40. Because the appellant had completed over 5 years
of credible service and attained age 62 when he filed his July 2020 application, he
was eligible when he filed that application to receive an annuity under 5 U.S.C.3
§ 8413(a), and thus his election of an annuity under 5 U.S.C. § 8413(b)—
including the May 1, 2009 commencing date—was not effective under 5 U.S.C.
§ 8413(b)(2). In other words, because the appellant was already entitled to an
annuity under 5 U.S.C. § 8413(a) beginning at age 62 at the time of his July 2020
application, under 5 U.S.C. § 8413(b)(2), no designation of a commencing date
before age 62 in that application could have been effective.
Under 5 C.F.R. § 842.212, the regulation promulgated to implement
5 U.S.C. § 8413, the appellant’s annuity should have begun on the first day of the
month after he attained age 62, i.e., May 1, 2015. 5 C.F.R. § 842.212(a); IAF,
Tab 13 at 42. In explaining this regulation, OPM expressed its intent to ensure
that, consistent with 5 U.S.C. § 8413(b), “an annuity cannot commence before the
first day of the month after attainment of the minimum retirement age.” Federal
Employees Retirement System—Basic Annuity; Eligibility Requirements and
Basic Annuity Computation, 52 Fed. Reg. 4472-01, 4472-73, 4475 (Feb. 11,
1987). We thus reverse the administrative judge’s initial decision and OPM’s
reconsideration decision, which both erroneously determined the May 1, 2009
commencing date to be correct.
ORDER
We ORDER OPM to change the appellant’s deferred annuity commencing
date to May 1, 2015, and to retroactively recalculate the appellant’s annuity based
on that commencing date. OPM must complete this action no later than 20 days
after the date of this decision.
We further 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).4
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).
This is the final decision of the Merit Systems Protection Board in this
appeal. 5 C.F.R. § 1201.113(c).
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. 7
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. 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 | McDonald_Lee_A_CH-0841-22-0286-I-1__Final_Order.pdf | 2024-06-11 | LEE A. MCDONALD v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0841-22-0286-I-1, June 11, 2024 | CH-0841-22-0286-I-1 | NP |
1,266 | https://www.mspb.gov/decisions/nonprecedential/Gavin_AmyAT-0845-20-0812-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AMY GAVIN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0845-20-0812-I-1
DATE: June 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Amy Gavin , Warner Robins, Georgia, 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
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision from the Office of Personnel Management
(OPM) denying the appellant’s request for a waiver of recovery of an
overpayment which was triggered by her retroactive entitlement to Social
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).
Security benefits. On petition for review, the appellant argues that OPM’s
actions were “monstrous” because it failed to issue the reconsideration decision
for over 3 years, and she reasonably relied on OPM’s silence as confirmation that
her waiver had been granted. 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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).2
2 On review, the appellant relies on Gordon v. Office of Personnel Management ,
689 F. App’x 977 (Fed. Cir. 2017), in which the U.S. Court of Appeals for the Federal
Circuit (Federal Circuit) granted the appellant’s request for a waiver because OPM had
taken over 3 years to calculate the appellant’s benefits, and then took an additional
3 years and 10 months to issue a reconsideration decision. Gordon, 689 F. App’x
at 988; PFR File, Tab 1 at 5-8, Tab 2. As an initial matter, Gordon is an unpublished
decision, and nonprecedential decisions of the Federal Circuit are not binding
precedent. VanDesande v. United States , 673 F.3d 1342, 1348 (Fed.Cir. 2012); Weed v.
Social Security Administration , 110 M.S.P.R. 468, ¶ 11 (2009). Nevertheless, Gordon
is distinguishable from this case, as in Gordon the court relied upon OPM’s lengthy
delays on two separate occasions, the second of which fell only 40 days short of the
presumptively impermissible 4-year time frame, in finding that recovery of
overpayment would be unconscionable. Gordon, 689 F. App’x at 988. Here, although
OPM did take over 3 years to issue the reconsideration decision, it was the only lengthy
delay. Accordingly, the appellant’s reliance on Gordon is misplaced. 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 | Gavin_AmyAT-0845-20-0812-I-1__Final_Order.pdf | 2024-06-11 | AMY GAVIN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0845-20-0812-I-1, June 11, 2024 | AT-0845-20-0812-I-1 | NP |
1,267 | https://www.mspb.gov/decisions/nonprecedential/Arney_Matthew_K_DE-0752-19-0080-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MATTHEW K. ARNEY,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DE-0752-19-0080-I-1
DATE: June 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Steven G. Clark , Phoenix, Arizona, 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 his termination for lack of jurisdiction. On petition for
review, the appellant argues that there is no evidence in the record concerning
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).
why he was removed by the Arizona Army National Guard and that it was
improper for the administrative judge to consider the agency’s pleadings as
evidence. He also argues that his termination must be reversed because the
agency violated his right to due process. 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 address the right of dual-status technicians to appeal some adverse
actions under Dyer v. Department of the Air Force , 971 F.3d 1377 (Fed. Cir.
2020), we AFFIRM the initial decision.
The U.S. Court of Appeals for the Federal Circuit’s decision in Dyer,
971 F.3d at 1377, governs the outcome in this matter, even though the events in
this matter predate the issuance of the Dyer decision. See Heartland By-
Products, Inc. v. U.S. , 568 F.3d 1360, 1365 (Fed. Cir. 2009) (“Under general
principles of law, judicial decisions are given retroactive effect.”);
NV24-Keyport2 v. Department of the Navy , 123 M.S.P.R. 263, ¶ 22 (2016) (noting
that the Board generally applies case law issued while an appeal is pending). In
Dyer, the court recognized that the National Defense Authorization Act for Fiscal
Year 2017 provided dual-status technicians with the right to appeal some adverse
actions, such as removals, to the Board. 32 U.S.C. § 709(f)(5); Dyer, 971 F.3d at2
1382. However, this right is limited. Dyer, 971 F.3d at 1382. Specifically,
section 709(f)(4) provides that personnel decisions that “concern[]” a dual-status
technician’s “fitness for duty in the reserve components” are appealable only to
the adjutant general of the jurisdiction concerned. 32 U.S.C. § 709(f)(4), (g)(1).
The court in Dyer held that, under 32 U.S.C. § 709, “termination of
dual-status employment . . . as the result of separation from the National Guard”
necessarily concerns fitness for duty in the reserve components. Dyer, 971 F.3d
at 1382-84 (citing 32 U.S.C. § 709(b), (f)(1)(A), (f)(4), (f)(6)). As a result, it
concluded that the Board does not have jurisdiction over such a termination. Id.
at 1384. Here, the appellant was terminated from his dual-status technician
position because of the loss of his membership in the Arizona Army National
Guard. Initial Appeal File, Tab 12 at 10. Thus, under the court’s reasoning in
Dyer, as well as the applicable statute, we find that the Board lacks jurisdiction
over his termination. Accordingly, we affirm the administrative judge’s findings
that the appellant’s appeal concerns his fitness for duty in the reserve components
and that the Board consequently lacks jurisdiction over the appeal. See 32 U.S.C.
§ 709(f)(4).
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
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
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. The4
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 file5
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. 6
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 | Arney_Matthew_K_DE-0752-19-0080-I-1__Final_Order.pdf | 2024-06-11 | MATTHEW K. ARNEY v. DEPARTMENT OF THE ARMY, MSPB Docket No. DE-0752-19-0080-I-1, June 11, 2024 | DE-0752-19-0080-I-1 | NP |
1,268 | https://www.mspb.gov/decisions/nonprecedential/Rehman_Andrew_B_DA-315H-20-0337-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW B. REHMAN,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DA-315H-20-0337-I-1
DATE: June 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Thomas F. Muther, Jr. , Esquire, Denver, Colorado, for the appellant.
Joseph P. Kinlin , Esquire, Fort Sam Houston, Texas, 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 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 application 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).
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 VACATE the administrative judge’s finding that the
appellant’s service with the Department of the Air Force cannot count toward the
completion of his probationary period, and we AFFIRM the initial decision as
MODIFIED to clarify and supplement the administrative judge’s jurisdictional
analysis. Except as expressly indicated in this Final Order, the initial decision of
the administrative judge is the Board’s final decision.
On petition for review, the appellant reasserts his argument that he is an
“employee” with adverse action appeal rights under 5 U.S.C. § 7511(a)(1)(A)(i)
because he can “tack on” his prior Federal civilian service with the agency to
complete his 2-year probationary period. Petition for Review File, Tab 1 at 6-8;
Initial Appeal File (IAF), Tab 7 at 5-7. For the following reasons, we modify the
initial decision to clarify and supplement the administrative judge’s analysis
regarding this jurisdictional issue.
The appellant made nonfrivolous allegations2 that he performed the
following periods of Federal civilian service: (1) from July 24, 2017, through
July 7, 2018, he served over 11 months with the agency under a time-limited
appointment; (2) from July 8, 2018, through January 5, 2019, he served
approximately 6 months with the Department of the Air Force under 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
career-conditional appointment (subject to the completion of a 2-year
probationary period beginning on July 8, 2018); and (3) from January 6, 2019,
until his termination on February 6, 2020, he served approximately 13 months
with the agency after being transferred from the Department of the Air Force.
IAF, Tab 7 at 8-13, Tab 10 at 29, 34-39, Tab 12, Initial Decision (ID) at 2.
Under 5 C.F.R. § 315.501, an agency may appoint by transfer to a
competitive service position, without a break in service of a single workday, a
current career or career-conditional employee of another agency. See Park v.
Department of Health and Human Services , 78 M.S.P.R. 527, 532 n.2 (1998).
Under 5 C.F.R. § 315.801(b), a person who is transferred under 5 C.F.R.
§ 315.501 before he has completed probation is required to complete the
probationary period in the new position. Park, 78 M.S.P.R. at 532 n.2 . Here, the
Standard Form 50 documenting the appellant’s January 6, 2019 transfer from the
Department of the Air Force to the agency reflects that he was transferred under
5 C.F.R. § 315.501 and that his appointment was subject to the completion of the
2-year probationary period, beginning on July 8, 2018. IAF, Tab 7 at 13, Tab 10
at 34-35. Thus, we find that the appellant has made a nonfrivolous allegation that
he was transferred to the agency under 5 C.F.R. § 315.501 before he completed
his 2-year probationary period that began on July 8, 2018. We further find that,
under 5 C.F.R. § 315.801(b), such a transferee is required to complete his
probationary period with the agency after being transferred. Therefore, we vacate
the administrative judge’s finding that the appellant’s service with the
Department of the Air Force cannot count toward the completion of his
probationary period because it was not performed with the same agency. ID at 6.
Instead, we find that the appellant made nonfrivolous allegations that he
performed probationary service beginning with his July 8, 2018
career-conditional appointment to the Department of the Air Force, continuing
with his January 6, 2019 transfer to the agency, and ending with his February 6,
2020 termination from the agency. However, such probationary service of3
approximately 19 months was insufficient to complete the 2-year probationary
period.
In addition, we modify the initial decision, as follows, to clarify and
supplement the administrative judge’s analysis regarding whether the appellant
can “tack on” his prior service with the agency to complete his probationary
period. Under 5 C.F.R. § 315.802(b), prior Federal civilian service counts toward
completion of probation when the prior service (1) is in the same agency, (2) is in
the same line of work, and (3) contains or is followed by no more than a single
break in service that does not exceed 30 calendar days. Here, it is clear that the
appellant could not have “tacked on” his prior service with the agency when he
first began his probationary period (upon his career-conditional appointment to
the Department of the Air Force) because his prior service was not performed in
the same agency. See, e.g., Francis v. Department of the Navy , 53 M.S.P.R. 545,
547-51 (1992) (finding that the appellant’s prior service in the Department of the
Army could not be credited toward the completion of the probationary period that
she had begun when she was appointed by the Department of the Navy). The
appellant has failed to provide, and we have not found, any legal authority or case
law to support the proposition that a subsequent event, such as his transfer to the
agency, could lead to a different result.
Accordingly, we affirm the dismissal of this appeal for lack of jurisdiction.
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
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
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. 5
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 the6
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
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 of7
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. 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 | Rehman_Andrew_B_DA-315H-20-0337-I-1__Final_Order.pdf | 2024-06-10 | ANDREW B. REHMAN v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-315H-20-0337-I-1, June 10, 2024 | DA-315H-20-0337-I-1 | NP |
1,269 | https://www.mspb.gov/decisions/nonprecedential/Oram_Cyril_D_AT-4324-20-0476-M-4__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CYRIL DAVID DANIEL ORAM JR.,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
AT-4324-20-0476-M-4
DATE: June 10, 2024
THIS ORDER IS NONPRECEDENTIAL1
Cyril David Daniel Oram Jr. , Bellingham, Washington, pro se.
Janell N. Bell-Burnett , Suitland, Maryland, 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 Uniformed Services Employment and Reemployment Rights Act of
1994 (USERRA) appeal as untimely refiled without good cause. For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE 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).
initial decision, and REMAND the case to the regional office for further
adjudication in accordance with this Remand Order.
BACKGROUND
In August 2018, the agency selected the appellant, a disabled veteran, for a
GS-12 IT Specialist appointment with the Census Bureau. Oram v. Department
of Commerce, MSPB Docket No. AT-4324-20-0476-M-1, Remand File (M-1 RF),
Tab 6 at 13; Oram v. Department of Commerce , MSPB Docket
No. AT-4324-20-0476-M-4, Remand File (M-4 RF), Tab 5 at 13. Due to his
mother’s severe illness, he requested to use leave under the Family and Medical
Leave Act of 1993 (FMLA) upon entry to his position, or he would “need to
withdraw from consideration.” M-1 RF, Tab 6 at 44. The agency denied the
appellant’s FMLA request because he was not yet an employee and “accept[ed
his] withdrawal from consideration.” Id.
The appellant filed an initial appeal alleging that the agency’s actions were
due to “military affiliation animus” in violation of USERRA. Oram v.
Department of Commerce , MSPB Docket No. AT-4324-20-0476-I-1, Initial
Appeal File (IAF), Tab 1 at 6. The administrative judge issued an initial decision
that dismissed the appeal, finding that the appellant failed to nonfrivolously
allege that the Board had jurisdiction over his appeal. IAF, Tab 6, Initial
Decision at 1, 5-8.
The U.S. Court of Appeals for the Federal Circuit remanded the case,
holding that “the Board should take a ‘liberal approach in determining whether
jurisdiction exists under USERRA,’” and if the appellant does not further
“develop [his] allegations, his USERRA claim should simply later be denied on
the merits.” Oram v. Merit Systems Protection Board , 855 F. App’x 699, 701
(Fed. Cir. 2021) (per curiam) (quoting Yates v. Merit Systems Protection Board ,
145 F.3d 1480, 1484 (Fed. Cir. 1998)). The Board, in turn, remanded the appeal
to the regional office. M -1 RF, Tab 3. The regional office acknowledged the2
remanded appeal. M -1 RF, Tab 4. Over the course of the following 15 months,
the administrative judge dismissed the appellant’s USERRA appeal without
prejudice 3 times at the appellant’s request. M-1 RF, Tab 8 at 4, Tab 9, Initial
Decision at 2 (dismissing the appeal without prejudice at the appellant’s request
“pending the outcome of a [related] proceeding before the Office of Personnel
Management (OPM)); Oram v. Department of Commerce , MSPB Docket
No. AT-4324-20-0476-M-2, Remand File (M-2 RF), Tab 9 at 4-5, Tab 10, Initial
Decision at 2 (granting the parties’ joint request to dismiss the appeal without
prejudice based in part “on the appellant’s having to care for his critically-ill
parent”); Oram v. Department of Commerce , MSPB Docket
No. AT-4324-20-0476-M-3, Remand File (M-3 RF), Tab 5, Tab 6, Initial
Decision at 2 (granting the appellant’s request to dismiss his appeal without
prejudice due to “his own poor health and that of his mother”).
In dismissing the case for the third time, the administrative judge instructed
the appellant that he could “re-file the appeal after November 9, 2022, and must
refile the appeal, if at all, by not later than April 4, 2023. It is the appellant’s
responsibility to re-file the appeal .” M-3 RF, Initial Decision at 2 (emphasis in
original). The appellant refiled his appeal on April 7, 2023. M-4 RF, Tab 1. The
administrative judge issued an Order on Timeliness explaining that “there [was] a
question [of] whether this appeal was refiled within the period established when it
was dismissed without prejudice. As a result, the Board might dismiss the appeal
as untimely filed without addressing the merits of the case.” M-4 RF, Tab 4 at 1.
The administrative judge ordered the appellant to file evidence and argument
showing either that he timely refiled his appeal or that good cause exists to
excuse the delay in refiling. Id. at 2.
In his response to the Order on Timeliness, the appellant argued that
because his appeal arose under USERRA, the regional office should have
“automatically refiled [his appeal] at the expiration of any time limit placed by
the [administrative judge].” M-4 RF, Tab 5 at 8-9. The appellant also argued3
that even if he was required to personally refile his appeal and missed the refiling
deadline, he established good cause for waiver. He pointed to severe illness and
death in his immediate family, his own injury and the resulting nerve damage that
impaired his ability to read and write, and delays resulting from “return[ing]”
from Maryland to Washington State. Id. at 6, 8, 14. He also noted that the delay
of 3 days was relatively short. Id. at 8. With his response, the appellant
submitted several emergency room notes showing that he had been intermittently
seen for treatment and was restricted from typing between February and
April 2023. Id. at 10-12. The agency replied, arguing the appeal should be
dismissed as untimely filed without good cause. M-4 RF, Tab 7.
The administrative judge issued an initial decision that dismissed the
appeal as untimely refiled without good cause. M-4 RF, Tab 8, Initial Decision
(ID) at 2, 5. He found that the appellant did not comply with the specific
instructions regarding refiling and that neither the death in the appellant’s
immediate family nor his physical illness were sufficient reasons for waiver.
ID at 2-5. Further, the administrative judge noted that the appellant “is an
experienced litigant before the Board, having filed many previous appeals with
several of the Board’s regional offices.” ID at 3.
The appellant has filed a timely petition for review.2 Petition for Review
(PFR) File, Tab 3. On review, the appellant reiterates that the regional office
should have automatically redocketed his appeal and his untimeliness should have
been excused. Id. at 12. He disputes the administrative judge’s claim that he is
an experienced litigant, argues the merits of his appeal, and challenges the
fairness of the appeal process in this and his other related appeals. Id. at 5-13.
2 In an acknowledgment letter, the Office of the Clerk of the Board explained that the
petition for review was timely filed on July 7, 2023, but because Board documents
reflect the Eastern Time Zone, and the appellant was located in the Pacific Time Zone,
the filing date was reflected in the Board’s records as July 8, 2023, instead of July 7,
2023. Petition for Review (PFR) File, Tab 4 at 1. Perhaps confused by the Board’s
wording, the appellant moved for leave to file a pleading addressing the timeliness of
his petition for review. PFR File, Tab 5 at 4. We deny the appellant’s motion as
unnecessary. 4
For the first time on review, the appellant requests disqualification of the
administrative judge on remand because the administrative judge was not “fair
and unbiased.” Id. at 14. The agency has filed a response to the petition for
review, and the appellant filed a reply. PFR File, Tabs 7-8.
DISCUSSION OF ARGUMENTS ON REVIEW
We deem the appeal to have been timely refiled on April 4, 2023.
Dismissal without prejudice should not become a trap to deny an appellant
the opportunity to have his case decided on the merits. Nelson v. U.S. Postal
Service, 113 M.S.P.R. 644, ¶ 8 (2010), aff’d per curium , 414 F. App’x 292 (Fed.
Cir 2011). This is especially true of USERRA appeals. In Milner v. Department
of Justice, 87 M.S.P.R. 660, ¶ 13 (2001), the Board clarified its policy that to
effectuate the USERRA statutory scheme, which contains no time limit for filing
USERRA appeals, a USERRA case that has been dismissed without prejudice to
refiling will be considered automatically refiled by the date set forth in the
dismissal order. See 5 C.F.R. § 1208.12 (stating that there is no time limit for
filing a USERRA appeal). The exception to this policy is if there is evidence that
the appellant has abandoned the appeal. Milner, 87 M.S.P.R. 660, ¶ 13; see
Gingery v. Department of the Treasury , 111 M.S.P.R. 134, ¶¶ 6-7, 13 (2009)
(finding it appropriate to apply the Board’s policy that USERRA appeals
dismissed without prejudice are automatically refiled, first announced in Milner,
to a Veterans Employment Opportunities Act of 1998 appeal that an
administrative judge dismissed sua sponte over the appellant’s objection).
On review, the appellant reargues that the administrative judge erred when
he did not automatically refile the appeal. M-4 RF, Tab 5 at 9; PFR File, Tab 3
at 12. He asserts that the appeal was effectively refiled on the date set forth in
the prior initial decision. M -4 RF, Tab 5 at 9; PFR File, Tab 3 at 12. We agree.
Although the appeal was dismissed without prejudice three times
previously, there is no indication that the appellant abandoned his USERRA5
claim. The appellant requested the three dismissals without prejudice because of
related proceedings at OPM, his responsibility in caring for a critically ill parent,
and his own physical injuries. M-1 RF, Tab 9 at 2; M-2 RF, Tab 10 at 2; M-3
RF, Tab 5, Tab 6 at 2. Nowhere across the three prior appeals, below, or before
the Board on review has the appellant indicated a desire to abandon his USERRA
claim. In contrast, at each stage of his appeal, the appellant has pursued his
USERRA claim. Oram, 855 F. App’x at 700-01; M-1 RF, Tab 7 at 4-7 (detailing
the appellant’s attempts to conduct discovery for his USERRA claim); M -2 RF,
Tab 1 at 3 (refiling his USERRA appeal, but requesting a continuance to complete
his related proceeding before OPM); M -3 RF, Tab 5 at 3 (acknowledging the
automatic refiling of his USERRA claim but requesting an extension or a
dismissal without prejudice due to his mother’s critical illness and his own
physical injuries).
Therefore, we deem the appeal to have been automatically refiled on
April 4, 2023, the date set forth in the dismissal order. In light of our finding that
the appeal was timely refiled, we do not reach the parties’ arguments as to
whether the appellant showed good cause for his purported delay or consider the
evidence that the appellant submits on review regarding the reasons for his delay.
We deny the appellant’s request for a different administrative judge on remand.
On review, the appellant requests that the Board assign a different
administrative judge to his case. PFR File, Tab 3 at 14. Recusal of an
administrative judge is required when a reasonable person, knowing all the facts,
would question the administrative judge’s impartiality. Baker v. Social Security
Administration, 2022 MSPB 27, ¶ 7 (citing 28 U.S.C. § 455(a)). Here, the
appellant made conclusory statements of bias, but did not point to evidence in the
record to support his claim of the administrative judge’s “disdain for [p]ro se
appellants.” PFR File, Tab 3 at 9. For example, the appellant argues that the
administrative judge’s bifurcation of his original appeal into separate claims6
“made it nearly impossible for the pro se [appellant] to provide a clear and
concise set of events for which a decision could be made” or to “timely object to
the [administrative judge’s] actions.” Id. at 6. He also argues that “the assigned
[administrative judge] cannot be concluded to be providing the [a]ppellant a fair
and unbiased redress.” Id. at 14.
These conclusory statements of bias and disagreement with the
administrative judge’s procedural handling of his appeal would not lead a
reasonable person to question the judge’s impartiality. Baker, 2022 MSPB 27,
¶¶ 2-3, 18-19 (holding the administrative judge erred by not granting an
appellant’s motion for recusal when the administrative judge maintained an
ongoing and undefined personal relationship with an attorney who worked in the
same office as the appellant, the appellant had made alleged whistleblowing
disclosures to the attorney’s two coworkers that served as bases for his appeal,
and the attorney and her coworkers had negative views of the appellant).
Accordingly, the appellant’s request for disqualification of the administrative
judge is denied. Lee v. U.S. Postal Service , 48 M.S.P.R. 274, 281 (1991) (stating
that a party must make a substantial showing of personal bias to overcome an
administrative judge’s presumed honesty and integrity, and an administrative
judge’s past ruling against a party is insufficient to warrant disqualification).3
3 In his reply to the agency’s response to his petition for review, the appellant argues
that the agency committed errors in his hiring process, he was entitled to a permanent
rather than a 2-year appointment, and he was the victim of whistleblower reprisal. PFR
File, Tab 9 at 4-18. A reply is limited to the factual and legal issues raised by another
party in the response to the petition for review. 5 C.F.R. § 1201.114(a)(4). It may not
raise new allegations of error. Id. Because the appellant’s arguments concern matters
not raised in the agency’s response, we will not consider them. See Lin v. Department
of the Air Force, 2023 MSPB 2, ¶ 8 n.3 (declining to consider arguments first raised in
the appellant’s reply). The appellant also has submitted documents with his reply. PFR
File, Tab 9 at 19-46. The Board may grant a petition for review when a party presents
new and material evidence that, despite the petitioner’s due diligence, was not available
when the record closed. 5 C.F.R. § 1201.115(d). We need not determine whether this
evidence is new, because it is not material to the dispositive timeliness issue before us.
See Alvarado v. Office of Personnel Management , 113 M.S.P.R. 407, ¶ 6 (2010)
(declining to consider documents that an appellant submitted for the first time with his
petition for review because he did not show that they were relevant to the timeliness7
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. In light of this
Remand Order, we also dismiss as unnecessary the appellant’s motion (PFR File,
Tab 5) requesting leave to respond to the Board’s Acknowledgement letter (PFR
File, Tab 4).
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
issue before the Board and that he could not have obtained them despite his due
diligence before the record closed below). Therefore, we have not considered the
appellant’s reply.8 | Oram_Cyril_D_AT-4324-20-0476-M-4__Remand_Order.pdf | 2024-06-10 | CYRIL DAVID DANIEL ORAM JR. v. DEPARTMENT OF COMMERCE, MSPB Docket No. AT-4324-20-0476-M-4, June 10, 2024 | AT-4324-20-0476-M-4 | NP |
1,270 | https://www.mspb.gov/decisions/nonprecedential/Neice_Daniel_R_CH-0432-18-0020-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL RAY NEICE,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
CH-0432-18-0020-I-1
DATE: June 10, 2024
THIS ORDER IS NONPRECEDENTIAL1
Daniel Ray Neice , Overland Park, Kansas, pro se.
Julia C. Walker , Esquire, and Laurie Faber Stitzer , Esquire, Kansas City,
Missouri, 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
sustained his contribution-based removal . 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).
REMAND the case to the regional office for further adjudication in accordance
with this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2The appellant was a Claims Specialist whom the agency removed under the
provisions of 5 U.S.C. chapter 43, effective September 11, 2017. Initial Appeal
File (IAF), Tab 6 at 93-100, Tab 24 at 11. The appellant filed a Board appeal,
and the administrative judge issued an initial decision sustaining the removal.
IAF, Tab, 31, Initial Decision (ID). The appellant has filed a petition for review,
and the agency has filed a response.2 Petition for Review File, Tabs 1, 4.
¶3Having carefully considered the appellant’s petition for review, we find that
he has identified no basis to disturb the initial decision. Nevertheless, during the
pendency of the petition for review, the U.S. Court of Appeals for the Federal
Circuit issued Santos v. National Aeronautics and Space Administration , 990 F.3d
1355 (Fed. Cir. 2021), in which it clarified the agency’s burden of proof in a
chapter 43 appeal. Specifically, the court held that, in addition to the five
elements of proof that the administrative judge identified in her initial decision,
ID at 16, the agency must also prove by substantial evidence that the appellant’s
performance was unsatisfactory leading up to the formal opportunity to
demonstrate acceptable performance (in this case, the Opportunity to Perform
Successfully (OPS)). Santos, 990 F.3d at 1360-61. In other words, the agency
must justify its initiation of the opportunity to demonstrate acceptable
performance.
¶4Pursuant to Santos, the Board now identifies six elements that the agency in
a chapter 43 appeal must prove by substantial evidence: (1) the Office of
Personnel Management approved its performance appraisal system and any
2 The appellant’s petition was untimely by 1 day. Considering the circumstances of the
appellant’s untimely filing, we find good cause to waive the filing deadline. See
generally 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).2
significant changes thereto; (2) the agency communicated to the appellant the
performance standards and critical elements of his position; (3) the appellant’s
performance standards are valid under 5 U.S.C. § 4302(c)(1); (4) the appellant’s
performance during the appraisal period was unacceptable in one or more critical
elements; (5) the agency warned the appellant of the inadequacies in his
performance during the appraisal period and gave him an adequate opportunity to
demonstrate acceptable performance; and (6) after an adequate improvement
period, the appellant’s performance remained unacceptable in at least one critical
element.
¶5The administrative judge in this case correctly applied Board precedent as it
existed at the time she issued her initial decision. However, neither she nor the
parties had the benefit of the court’s decision in Santos, and that decision applies
to all appeals pending before the Board regardless of when the events at issue
took place. Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 16.
Although the record already contains a significant amount of evidence regarding
the appellant’s performance leading up to the OPS (element 4), the appellant was
not specifically informed that this would be an issue, and he has not had a full
and fair opportunity to address it. Therefore, this appeal must be remanded to
give the parties an opportunity to file evidence and argument concerning the
appellant’s pre-OPS performance.
¶6On remand, the administrative judge shall accept evidence and argument on
whether the agency proved by substantial evidence that the appellant’s pre-OPS
performance was unacceptable. 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.3
ORDER
¶7For 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.4 | Neice_Daniel_R_CH-0432-18-0020-I-1__Remand_Order.pdf | 2024-06-10 | DANIEL RAY NEICE v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. CH-0432-18-0020-I-1, June 10, 2024 | CH-0432-18-0020-I-1 | NP |
1,271 | https://www.mspb.gov/decisions/nonprecedential/Harris_Gregory_F_AT-315H-23-0503-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GREGORY F. HARRIS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-315H-23-0503-I-1
DATE: June 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gregory F. Harris , Tampa, Florida, pro se.
Andrew James Patch , 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 his probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant argues the merits of his probationary
termination but does not address the jurisdictional issue. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
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).
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 | Harris_Gregory_F_AT-315H-23-0503-I-1__Final_Order.pdf | 2024-06-10 | GREGORY F. HARRIS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-315H-23-0503-I-1, June 10, 2024 | AT-315H-23-0503-I-1 | NP |
1,272 | https://www.mspb.gov/decisions/nonprecedential/Merritt_Leisa_H_AT-0842-22-0521-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEISA H. MERRITT,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0842-22-0521-I-1
DATE: June 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Leisa H. Merritt , Ellenwood, Georgia, 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
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM) finding
that she could not change her survivor annuity election under the Federal
Employees’ Retirement System (FERS). Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
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 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).
¶2We find no basis to disturb the initial decision. To the extent the appellant
seeks to change her election, made at the time of retirement, of an annuity
payable only in her lifetime, she has not established a basis for allowing such an
untimely change of election more than a decade after her first regular monthly
annuity payment. Initial Appeal File (IAF), Tab 4 at 22-23, Tab 13, Initial
Decision at 2; see 5 C.F.R. §§ 842.605, 842.608, 842.610; see also, e.g., Blaha v.
Office of Personnel Management , 106 M.S.P.R. 265, ¶ 8 (2007) (explaining
grounds for waiving a filing deadline prescribed by statute or regulation).
Although she has claimed that she was not aware of the relevant time limit, she
has not established that the Government failed to provide her with any required
notice or that she was misinformed in any way. IAF, Tab 1 at 2-3, Tab 4
at 10-11; Petition for Review (PFR) File, Tab 1.
¶3However, it may be possible for the appellant’s son to receive another type
of survivor’s annuity for which the appellant was not required to make an election
on her application for immediate retirement. For instance, it is possible that,
upon the death of the appellant, her son could receive a children’s monthly
survivor annuity if it is proven that he was dependent on the appellant at the time2
of her death and was incapable of supporting himself because of a physical or
mental disability incurred before age 18. See 5 U.S.C. §§ 8441(4)(B), 8443(a)(1);
5 C.F.R. §§ 843.402, 843.405, 843.406, 843.407; CSRS and FERS Handbook for
Personnel and Payroll Offices , ch. 73, §§ 73A1.1-1(A), 73A2.1 -4(B), (C)
(April 1998), https://www.opm.gov/retirement-center/publications-forms/csrsfers-
handbook/c073.pdf.
¶4During this appeal, OPM informed the appellant that her son may be
entitled to a child survivor annuity if he met certain criteria, instructed her to
submit the Disabled Dependent Questionnaire, and stated it would make a
separate determination on that matter. IAF, Tab 4 at 6-7. The appellant provided
evidence that she overnight mailed the questionnaire to OPM on February 3,
2023. PFR File, Tab 1 at 4-5, 10. If OPM issues an unfavorable decision
concerning the Disabled Dependent Questionnaire, our decision in this appeal
does not preclude the appellant from filing a separate Board appeal concerning
that issue.
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 | Merritt_Leisa_H_AT-0842-22-0521-I-1__Final_Order.pdf | 2024-06-10 | LEISA H. MERRITT v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0842-22-0521-I-1, June 10, 2024 | AT-0842-22-0521-I-1 | NP |
1,273 | https://www.mspb.gov/decisions/nonprecedential/PARRA_JOSE_A_SF-844E-23-0313-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSE A. PARRA,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-844E-23-0313-I-1
DATE: June 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jose A. Parra , Calexico, California, pro se.
James Mercier , Esquire, 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
affirmed the reconsideration decision of the Office of Personnel Management to
dismiss the appellant’s application for disability retirement benefits as untimely.
On petition for review, the appellant argues that he qualifies for a waiver of the
statutory filing deadline. 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 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
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 While we are sympathetic to the appellant’s situation, the Board does not have the
authority to waive statutory requirements that Congress has imposed as a condition to
the payment of Federal funds. Schoemakers v. Office of Personnel Management ,
180 F.3d 1377, 1382 (Fed. Cir. 1999 ).
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 | PARRA_JOSE_A_SF-844E-23-0313-I-1_Final_Order.pdf | 2024-06-07 | JOSE A. PARRA v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-844E-23-0313-I-1, June 7, 2024 | SF-844E-23-0313-I-1 | NP |
1,274 | https://www.mspb.gov/decisions/nonprecedential/Howard_Quan_P_SF-0841-20-0355-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
QUAN P. HOWARD,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0841-20-0355-I-1
DATE: June 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence Berger , Esquire, Glen Cove, New York, for the appellant.
Jane Bancroft and Alison Pastor , 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
dismissed his 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;
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).
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).
However, the Board’s regulations further provide that an appellant “may not
avoid service of a properly addressed and mailed decision by intentional or
negligent conduct which frustrates actual service.” 5 C.F.R. § 1201.22(b)(3). For
example, “[a]n appellant who fails to pick up mail delivered to his or her post
office may be deemed to have received the agency decision.” Id. Here, the
record reflects that OPM mailed its final decision to the appellant’s address of
record by U.S. Postal Service (USPS) certified mail on June 25, 2019. Initial
Appeal File (IAF), Tab 6 at 9-10, 12. Tracking indicates, and the appellant does
not dispute, that USPS attempted delivery and left a notice at his address on
June 28, 2019. Id. at 9.
Contrary to what the appellant suggests on review, the administrative judge
did not take official notice that he received a properly completed PS Form 3849,
bearing the name and address of the sender. Rather, she took official notice of
the verifiable fact that the PS Form 3849 contains a section for that purpose.2
IAF, Tab 8, Initial Decision at 5 n.4; see 5 C.F.R. § 1201.64 (providing that an
administrative judge “may take official notice of matters of common knowledge
or matters that can be verified”); USPS, PS Form 3489 Redelivery Notice , https://
faq.usps.com/s/article/PS-Form-3849-Redelivery-Notice (last visited June 7,
2024). The appellant does not dispute that this is an accurate description of the
form itself.
Moreover, the appellant was not prejudiced by the lack of opportunity to
object to the taking of official notice on this issue. We recognize that, while
5 C.F.R. § 1201.64 provides only that an administrative judge “may” provide the
parties an opportunity to object to the taking of official notice, the Board has
stated that it nonetheless regards parties as having a “right of refutation.” Hope
v. Department of the Army , 108 M.S.P.R. 6, ¶ 9 (2008). However, as noted
above, it is a verifiable and undisputed fact that the PS Form 3849 contains a
section for name and address of the sender. Hence, even if the administrative
judge erred in not providing the appellant an opportunity to object to the taking of
official notice, the error would not require a different result. See Karapinka v.
Department of Energy , 6 M.S.P.R. 124, 127 (1981) (holding an administrative
judge’s procedural error is of no legal consequence unless it is shown to have
adversely affected a party’s substantive rights).
We agree with the appellant that the record does not clearly establish that
the notice actually left at his address on June 28, 2019, was a properly completed
PS 3849 bearing the name and address of OPM. However, the Board’s regulation
at 5 C.F.R. § 1201.22(b)(3) does not require knowledge of the sender’s identity as
a condition of constructive delivery. Even if the appellant was unaware that the
item was a letter from OPM, he was still on notice that USPS had attempted to
deliver it and that he would need to pick it up at the post office or arrange to have
it delivered at a later date. He has not explained his failure to take such ordinary
measures. Accordingly, we deem June 28, 2019, to be the date of receipt and find
that his appeal was untimely filed by 249 days.3
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, 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 which 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). Here, the appellant, who is
represented by counsel, could have argued in the alternative that there was good
cause for his untimely filing, but he did not do so. Silence does not constitute a
showing of good cause. Lewis v. Department of Housing and Urban
Development, 96 M.S.P.R. 479, ¶ 6 (2004) (good cause not shown where the
appellant failed to provide any explanation for her more than 2-month delay in
seeking review of the initial decision that dismissed her appeal as settled).
Hence, we discern no error in the administrative judge’s decision to dismiss the
appeal as untimely filed without a showing of good cause for the delay.
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.4
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. 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
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
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.
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 | Howard_Quan_P_SF-0841-20-0355-I-1_Final_Order.pdf | 2024-06-07 | QUAN P. HOWARD v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0841-20-0355-I-1, June 7, 2024 | SF-0841-20-0355-I-1 | NP |
1,275 | https://www.mspb.gov/decisions/nonprecedential/Seeger_Finita_D_DC-844E-20-0290-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FINITA D. SEEGER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-844E-20-0290-I-1
DATE: June 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Finita D. Seeger , Woodbridge, Virginia, pro se.
Linnette Scott , 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 the reconsideration decision issued by the Office of Personnel
Management denying the appellant’s disability retirement application under the
Federal Employees’ Retirement System. 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).
On review, the appellant submits additional medical records showing that
she suffered a second seizure on or around June 15, 2020. Petition for Review
(PFR) File, Tabs 1, 3. Pursuant to 5 C.F.R. § 1201.115(d), the Board will
consider new and material evidence or argument that, despite the petitioner’s due
diligence, was not available when the record was closed. We acknowledge that
the evidence submitted by the appellant on review is new, as the documents are
related to an incident that occurred after the record closed. PFR File, Tabs 1, 3;
see 5 C.F.R. § 1201.115(d). However, these documents are not material, as they
do not impact the outcome of this case. While the documents establish that the
appellant suffered another seizure, the doctor’s notes explain that the seizure
“was in setting of noncompliance with [medication].” PFR File, Tab 3 at 5.
Therefore, the new evidence supports a finding that the appellant has not proven
her entitlement to disability retirement benefits because the appellant’s condition
is effectively controlled by medication. See Confer v. Office of Personnel
Management, 111 M.S.P.R. 419, ¶ 21 (2009) (finding that in order to establish
entitlement to disability retirement benefits the appellant must establish that her2
condition cannot be controlled by medication, therapy, or other reasonable
means). Accordingly, we do not find that these documents provide a basis for
disturbing the initial decision. Cf. Thomas v. Office of Personnel Management ,
104 M.S.P.R. 139, ¶ 6 (2006) (remanding an appeal to the administrative judge
after the appellant presented evidence that bore directly on his entitlement to
disability retirement benefits); Sachs v. Office of Personnel Management ,
99 M.S.P.R. 521, ¶¶ 10-12 (2005) (remanding a case when, after close of record,
the appellant submitted a Department of Veterans Affairs rating showing that he
was 100% disabled, which impacted a determination of his entitlement to
disability retirement benefits).
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.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.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:
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
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 | Seeger_Finita_D_DC-844E-20-0290-I-1_Final_Order.pdf | 2024-06-07 | FINITA D. SEEGER v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-844E-20-0290-I-1, June 7, 2024 | DC-844E-20-0290-I-1 | NP |
1,276 | https://www.mspb.gov/decisions/nonprecedential/Alspaugh_RosemaryAT-0752-23-0247-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROSEMARY ALSPAUGH,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
AT-0752-23-0247-I-1
DATE: June 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
A. Christina Bronner-Stafford , Smyrna, Georgia, for the appellant.
Cleora S. Anderson , Smyrna, Georgia, 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 alleged involuntary reassignment and reduction-in-pay 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
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).
¶2On petition for review, the appellant argues the merits of the agency’s
removal action and reasserts that she was involuntarily reassigned because she
had no choice but to accept the reassignment or the agency would remove her
from Federal service. Petition for Review (PFR) File, Tab 1. We find the
appellant’s arguments unavailing. The appellant made several allegations without
evidence in support of her claim that her reassignment to a lower-graded position
was involuntary. Id. at 17-22. She reiterates her bare assertions that she received
successful performance appraisals and promotions, so the agency sustained its
removal action without supporting evidence. Id.; Initial Appeal File (IAF), Tab 1
at 6, Tab 12 at 6-10. However, such pro forma allegations are insufficient to cast
doubt on the voluntariness of her acceptance of a lower-graded position. See
Harris v. Department of Veterans Affairs , 114 M.S.P.R. 239, ¶ 8 (2010). Thus,
we agree with the administrative judge’s finding that the appellant did not meet
her burden to nonfrivolously allege that she was involuntarily reassigned to a
lower-graded position. IAF, Tab 14, Initial Decision (ID) at 1, 8-9; Harris,
114 M.S.P.R. 239, ¶ 8; Reed v. U.S. Postal Servic e, 99 M.S.P.R. 453, ¶ 12 (2005),
aff’d, 198 F. App’x 966 (Fed. Cir. 2006); Soler-Minardo v. Department of
Defense, 92 M.S.P.R. 100, ¶ 6 (2002).2
¶3To the extent that the appellant argues that the agency committed harmful
procedural errors and subjected her to disability discrimination, we also find that
she cannot establish jurisdiction. PFR File, Tab 1 at 11-16. As the administrative
judge found, in the absence of an otherwise appealable action, the Board lacks
independent jurisdiction over such allegations. ID at 8-9; see Wren v. Department
of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).
¶4Therefore, we conclude that the administrative judge properly found that the
appellant’s allegations of coercion were insufficient to establish that her
reassignment and reduction in pay were involuntary, and we find that the
appellant’s arguments on review are without merit. Accordingly, we affirm the
administrative judge’s finding that the Board lacks jurisdiction over the 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
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
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 obtain4
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 5
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. 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 | Alspaugh_RosemaryAT-0752-23-0247-I-1__Final_Order.pdf | 2024-06-06 | ROSEMARY ALSPAUGH v. DEPARTMENT OF DEFENSE, MSPB Docket No. AT-0752-23-0247-I-1, June 6, 2024 | AT-0752-23-0247-I-1 | NP |
1,277 | https://www.mspb.gov/decisions/nonprecedential/Elnashfan_Wahid_NY-3330-20-0139-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WAHID ELNASHFAN,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
NY-3330-20-0139-I-1
DATE: May 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Wahid Elnashfan , Jersey City, New Jersey, pro se.
Adam Chandler , Washington, D.C., for the agency.
Janell N. Bell-Burnett , Suitland, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998. 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.2 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 In December 2023, the appellant filed a motion seeking leave to file an additional
pleading, requesting to submit a copy of the agency’s investigation of his equal
employment opportunity complaint, which includes interviews conducted with agency
personnel while under oath. Petition for Review File, Tab 5 at 3. The appellant does
not explain the impact that these documents would have on the outcome of this appeal,
and we do not discern any impact. Id. Therefore, we deny the appellant’s motion to
file an additional pleading because he has not shown that the alleged new evidence is
material to the dispositive issues in this case. See, e.g., Hooker v. Department of
Veterans Affairs, 120 M.S.P.R. 629, ¶ 4 n.4 (2014).
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 | Elnashfan_Wahid_NY-3330-20-0139-I-1_Final_Order.pdf | 2024-05-31 | WAHID ELNASHFAN v. DEPARTMENT OF COMMERCE, MSPB Docket No. NY-3330-20-0139-I-1, May 31, 2024 | NY-3330-20-0139-I-1 | NP |
1,278 | https://www.mspb.gov/decisions/nonprecedential/DuRussel_Diana_I_SF-3443-19-0105-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DIANA DURUSSEL,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
SF-3443-19-0105-I-1
DATE: May 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Diana DuRussel , Peoria, Arizona, pro se.
Jennifer Spangler , Esquire, Kansas City, Kansas, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed 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
the facts of the case; the administrative judge’s rulings during either the course 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).
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 appears to reiterate her claim that the agency
committed harmful procedural error in requiring her to take and pass an
assessment examination to be eligible for a vacant position to which she had
applied. Petition for Review (PFR) File, Tab 1 at 1. However, we cannot
consider a claim of harmful procedural error absent an otherwise appealable
action. See Lavelle v. Department of Transportation , 17 M.S.P.R. 8, 12 (1983)
(stating that an appellant’s contention that an agency committed harmful
procedural error does not constitute a basis for Board jurisdiction), modified on
other grounds by Stephen v. Department of the Air Force , 47 M.S.P.R. 672
(1991); Wren v. Department of the Army , 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d
867, 871-73 (D.C. Cir. 1982). The appellant has not provided a basis for
disturbing the administrative judge’s well-reasoned finding that the Board lacks
jurisdiction over the appeal.
Additionally, although the appellant has submitted additional documents
with her petition for review, PFR File, Tab 1 at 2-7, all but one of these
documents were submitted below for the administrative judge’s consideration,
Initial Appeal File (IAF), Tab 1 at 9-12. The document that was submitted for the
first time on review is an agency program statement. PFR File, Tab 1 at 6-7. The
Board generally will not consider evidence submitted for the first time on review
absent a showing that the documents and information contained therein were2
unavailable before the record closed despite due diligence, and the evidence 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). Here, the
program statement was issued on May 22, 2018, PFR File, Tab 1 at 6, and the
appellant’s initial appeal was filed approximately 6 months later, IAF, Tab 1.
The appellant has not explained why this document was not available for
submission into the record below despite her due diligence, nor has she explained
why it is of sufficient weight to warrant a different outcome than the one reached
below. PFR File, Tab 1. Accordingly, we have not considered it.
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.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.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. 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 | DuRussel_Diana_I_SF-3443-19-0105-I-1 Final Order.pdf | 2024-05-31 | DIANA DURUSSEL v. DEPARTMENT OF JUSTICE, MSPB Docket No. SF-3443-19-0105-I-1, May 31, 2024 | SF-3443-19-0105-I-1 | NP |
1,279 | https://www.mspb.gov/decisions/nonprecedential/Lam_NaretDA-0752-18-0313-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NARET LAM,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DA-0752-18-0313-I-1
DATE: May 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher Winiecki , Esquire, and Tyler J. Sroufe , Esquire, Dallas, Texas,
for the appellant.
William D. Vernon , Esquire, and Julia M. Williams , Esquire, Tinker AFB,
Oklahoma, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
sustained his removal for deliberate misrepresentation. On petition for review,
the appellant argues that the administrative judge made erroneous findings
regarding the agency’s charge, his affirmative defenses, nexus, and the
reasonableness of the penalty. Generally, we grant petitions such as this one only
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 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
address the appellant’s claim that the deciding official took the removal action in
retaliation for his prior equal employment opportunity (EEO) activity, we
AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2The appellant was removed based on a single charge of deliberate
misrepresentation with two specifications. Initial Appeal File (IAF), Tab 10
at 16, 18-20, Tab 12 at 33-35. The charge stemmed from his actions during a
software development training assignment wherein he copied software from a
source found on the internet, and then, after being informed of deficiencies in his
submission, copied the work of a colleague for his second submission. IAF,
Tab 12 at 33.
¶3To establish a charge of misrepresentation, falsification, or lying, an agency
must prove that an appellant: (1) supplied wrong information; and (2) knowingly
did so with the intent of defrauding, deceiving, or misleading the agency for his
own private material gain. Boo v. Department of Homeland Security ,
122 M.S.P.R. 100, ¶ 10 (2014). In the initial decision, the administrative judge2
observed that the training agreement signed by the appellant provided that all
projects were to be the appellant’s own work and that the exchange of software
code was prohibited. IAF, Tab 35, Initial Decision (ID) at 7; IAF, Tab 13 at 48.
The administrative judge also found, based at least in part on credibility
determinations, that the agency proved that the appellant provided wrong
information. ID at 6-7. We find no reason to disturb the administrative judge’s
finding that the appellant supplied the agency with wrong information when he
submitted the training assignment and presented it as his own work when it was
not. See Purifoy v. Department of Veterans Affairs , 838 F.3d 1367, 1373 (Fed.
Cir. 2016) (explaining that the Board must 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”); Haebe v. Department of Justice ,
288 F.3d 1288, 1301 (Fed. Cir. 2002) (finding that when an administrative
judge’s credibility determinations are based, even 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).
¶4In the context of a misrepresentation charge, the definition of “private
material gain” is quite broad and includes such interests as the securement of
employment and the hiding of facts in order to prevent an agency from taking
disciplinary or corrective action. Boo, 122 M.S.P.R. 100, ¶ 13. The Board has
found an appellant to have obtained a private material gain by being credited with
performing his required work, though he had not actually done so. O’Lague v.
Department of Veterans Affairs, 123 M.S.P.R. 340, ¶ 10 (2016), aff’d,
698 F. App’x 1034 (Fed. Cir. 2017). In arguing that he obtained no private
material gain, the appellant asserts that the proposing official testified that he
would not have faced removal, or any other disciplinary or corrective action, had
he failed to complete the training exercise. Petition for Review (PFR) File, Tab 3
at 13. In fact, the proposing official testified that the appellant was probably3
worried about not finishing the exercise and getting a poor appraisal and stated
that the appellant “potentially” could have been removed for not completing the
exercise. Hearing Transcript (HT) at 49 (testimony of the proposing official).
Notably, in this regard, the training agreement provided that the training program
in which the appellant was enrolled was his “only and top priority.” IAF, Tab 13
at 48. Therefore, the appellant’s assertion is without merit.
¶5In sum, we agree with the administrative judge that the appellant’s
misconduct was knowingly done with the intent of misleading the agency so that
he could be credited with completing his assigned training exercise, which, under
the circumstances present here, constitutes private material gain. Thus, the
administrative judge properly sustained the charge. See Gustave-Schmidt v.
Department of Labor , 87 M.S.P.R. 667, ¶¶ 2, 7, 19 (2001) (affirming the removal
of an employee for intentional misrepresentation when she engaged in plagiarism
and led others to believe that she was the author of the plagiarized works).
¶6The administrative judge found that the appellant failed to show that his
prior EEO activity was a motivating factor in his removal. ID at 11-15. After the
initial decision was issued, the Board clarified the analytical framework for
addressing EEO retaliation claims. Claims of retaliation for opposing
discrimination in violation of Title VII are analyzed under the same framework
used for Title VII discrimination claims, namely, that the appellant bears the
initial burden of proving by preponderant evidence that his protected EEO
activity was a motivating factor in his removal. Pridgen v. Office of Management
and Budget, 2022 MSPB 31, ¶ 20. In discussing the appellant’s affirmative
defenses, the administrative judge found that the appellant failed to establish that
the deciding official was aware of his prior EEO activity when rendering his
decision. ID at 11-12. However, the decision notice refers to the appellant’s
supplemental written reply to the proposed removal, IAF, Tab 10 at 18, which
itself notes that the appellant had filed an EEO complaint about his proposed
removal, IAF, Tab 11 at 10. Thus, the deciding official was aware of the4
appellant’s EEO activity when he issued his decision and the administrative
judge’s finding to the contrary was erroneous.2
¶7Nevertheless, the deciding official’s knowledge of the appellant’s EEO
complaint does not in itself establish that it was a motivating factor in his
decision to remove the appellant. See Golden v. U.S. Postal Service , 60 M.S.P.R.
268, 274 (1994) (finding that although the proposing official knew, and the
deciding official may have known, about the appellant’s EEO complaints, the
appellant still failed to show that his EEO complaints were a motivating factor in
his demotion). Without more, and in consideration of the record as a whole,
including the evidence establishing that the appellant committed the charged
misconduct, we find that he failed to establish that his EEO activity was a
motivating factor in his removal.3
¶8The appellant asserted that the removal penalty was inconsistent with lesser
penalties previously levied against three other employees who were charged with
deliberate misrepresentation in connection with their requests for sick leave.
IAF, Tab 12 at 21-22. The administrative judge found that these employees were
not comparable to the appellant because, among other things, their misconduct
was not similar to his. ID at 17-18. We agree with the administrative judge’s
analysis. See Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 13 (holding that the
“universe of potential comparators” “should be limited to those employees whose
2 To the extent that the appellant suggests on review that the administrative judge erred
in finding that the proposing official lacked knowledge of the appellant’s prior EEO
activity when he proposed the removal, the record shows that the January 26, 2018
proposal notice predates the initiation of the EEO process on January 29, 2018.
PFR File, Tab 3 at 16-17; IAF, Tab 12 at 33-35, Tab 14 at 8. At the hearing, the
appellant testified that he initiated his EEO activity when he found out that the
proposing official was proposing the removal. HT at 154 (testimony of the appellant).
Thus, the proposal notice could not have been in retaliation for the appellant’s prior
EEO activity.
3 Because we discern no error with the administrative judge’s motivating factor analysis
or conclusions regarding the appellant’s retaliation claim, it is unnecessary for us to
address whether retaliation was a but-for cause of the removal action. See Pridgen,
2022 MSPB 31, ¶¶ 20-25.5
misconduct and/or other circumstances closely resemble those of the appellant”).
In addition, the consistency of the penalty with those imposed on other employees
for the same or similar offenses is only one of many factors to be considered in
determining an appropriate penalty, and is not necessarily outcome determinative.
Id., ¶ 18; Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981).
¶9For the reasons set forth in the initial decision, we agree that the agency
established a nexus between the appellant’s misconduct and the efficiency of the
service and that its penalty determination was reasonable. ID at 15-19. We
therefore affirm the appellant’s removal and deny the petition for review.
NOTICE OF APPEAL RIGHTS4
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
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
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 obtain7
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 8
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).
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
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
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 | Lam_NaretDA-0752-18-0313-I-1 Final Order.pdf | 2024-05-31 | NARET LAM v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DA-0752-18-0313-I-1, May 31, 2024 | DA-0752-18-0313-I-1 | NP |
1,280 | https://www.mspb.gov/decisions/nonprecedential/Bailey_SirronDA-0752-19-0252-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SIRRON BAILEY,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DA-0752-19-0252-I-1
DATE: May 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alan Lescht , Esquire, and Victoria Williamson , Esquire, Washington, D.C.,
for the appellant.
Daniel K. Murphy , Austin, Texas, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his 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 application 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).
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, the appellant argues that the administrative judge
erred in holding that his Human Relations (HR) Specialist and Police Officer
positions were not the same or similar for purposes of tacking his prior service in
order to qualify as an employee with Board appeal rights. Petition for Review
(PFR) File, Tab 1 at 3-5; Initial Appeal File (IAF), Tab 16, Initial Decision (ID)
at 6-10. He also challenges the administrative judge’s finding that his experience
as union president for his bargaining unit during his Police Officer appointment
could not be used to establish that the two positions were the same or similar.
PFR File, Tab 1 at 6-7; ID at 9-10.
The appellant’s arguments on review provide no basis for disturbing the
administrative judge’s finding that he failed to raise nonfrivolous allegations2 that
he had completed 2 years of current continuous service in the same or similar
position. ID at 5-10. The administrative judge properly considered the duties
actually performed by the appellant in the course of the two official appointments
in the Federal service. ID at 6 -10; see Coradeschi v. Department of Homeland
Security, 439 F.3d 1329, 1333-34 (Fed. Cir. 2006); 5 C.F.R. § 752.402.
2 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).2
Moreover, the initial decision3 to which the appellant cites on review does not
support his argument regarding union activity performed outside of the scope of
his appointment as a Police Officer; in that appeal, the administrative judge
considered the additional duties that the agency had assigned to the appellant
according to shifting agency needs. PFR File, Tab 1 at 6 (citing Landgraf v. U.S.
Postal Service, MSPB Docket No. SF-0752-18-0367-I-1, Initial Decision at 6
(Aug. 8, 2018)). In contrast, the appellant here failed to make a nonfrivolous
allegation that the duties he performed as union president were part of his prior
position for jurisdictional purposes, or that the Police Officer and HR Specialist
appointments were “similar positions.” See 5 C.F.R. § 752.402. Because the
appellant failed to nonfrivolously allege that he was an “employee” with Board
appeal rights under 5 U.S.C. chapter 75, he was not entitled to a jurisdictional
hearing. See 5 U.S.C. § 7511(a)(1)(C)(ii); Ferdon v. U.S. Postal Service ,
60 M.S.P.R. 325, 329 (1994).
Accordingly, we deny the petition for review and 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
3 Board initial decisions are of no precedential value and cannot be cited or relied on as
controlling authority. Roche v. Department of Transportation , 110 M.S.P.R. 286, ¶ 13
(2008), aff’d, 596 F.3d 1375 (Fed. Cir. 2010); 5 C.F.R. § 1201.113.
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
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. The4
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 file5
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 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
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 | Bailey_SirronDA-0752-19-0252-I-1 Final Order.pdf | 2024-05-31 | SIRRON BAILEY v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DA-0752-19-0252-I-1, May 31, 2024 | DA-0752-19-0252-I-1 | NP |
1,281 | https://www.mspb.gov/decisions/nonprecedential/Autry_William_T_PH-0752-18-0331-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM AUTRY,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
PH-0752-18-0331-I-2
DATE: May 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shaun Yancey , Atlanta, Georgia, for the appellant.
David Peter Blackwood , Columbia, Maryland, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal pursuant to 5 U.S.C. chapter 75 for conduct unbecoming a
Federal employee.2 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).
2 The agency charged the appellant with both conduct unbecoming a Federal employee
and lack of candor; however, the administrative judge found that the agency failed to
prove the latter charge by preponderant evidence. Autry v. Department of the Army ,
MSPB Docket No. PH-0752-18-0331-I-2, Appeal File, Tab 13, Initial Decision at 19.
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 analysis of the appellant’s affirmative defenses of retaliation for
engaging in protected equal employment opportunity (EEO) activity and disparate
treatment disability discrimination, we AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant argues that the administrative judge failed to properly
resolve witness credibility issues. Petition for Review (PFR) File, Tab 1
at 17-23. We find that the administrative judge conducted a proper analysis of
the credibility of the testifying witnesses and properly weighed the totality of the
testimonial and documentary evidence. Autry v. Department of the Army ,
MSPB Docket No. PH-0752-18-0331-I-2, Appeal File, Tab 13, Initial Decision
(ID) at 13-17; see Hillen v. Department of the Army , 35 M.S.P.R. 453, 458
(1987). The appellant’s arguments on review, which amount to mere
disagreement with the administrative judge’s findings, do not provide a
sufficiently sound basis for reversal. See Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98, 105-06 (1997); Broughton v. Department of Health and Human
Services, 33 M.S.P.R. 357, 359 (1987). Moreover, his general disagreement with2
the administrative judge’s demeanor -based credibility findings does not provide a
reason to disturb the initial decision. ID at 13-14; see Haebe v. Department of
Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (holding that 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 appellant also contends that the administrative judge abused his
discretion by disallowing evidence of a text message allegedly sent to the
appellant.3 PFR File, Tab 1 at 27. However, we discern no basis to disrupt the
administrative judge’s reasoned conclusion that the subject evidence was both
untimely submitted and of little probative value. ID at 15 n.4; see Thomas v.
U.S. Postal Service , 116 M.S.P.R. 453, ¶ 4 (2011) (explaining that the
administrative judge has broad discretion to regulate the course of the hearing and
to exclude evidence and witnesses that have not been shown to be relevant,
material, and nonrepetitious).
The appellant further asserts that the agency failed to establish a nexus
between his conduct and the efficiency of the service. PFR File, Tab 1 at 23-25.
We disagree. The administrative judge found credible the undisputed testimony
of the deciding official, who averred that, in light of the appellant’s job duties
and the nature of his misconduct, he lost trust in the appellant’s ability to
continue to perform in his position. ID at 29-30; see Kruger v. Department of
Justice, 32 M.S.P.R. 71, 74 (1987) (explaining that an agency may establish
nexus by showing by preponderant evidence that an appellant’s off-duty
misconduct adversely affected the agency’s trust and confidence in his job
performance). We find no basis to disturb the administrative judge’s credibility
3 The appellant further alleges that the administrative judge erroneously relied on a
public records search; however, because the basis of this allegation is unclear, we
discern no reason to disturb the initial decision. PFR File, Tab 1 at 28; see Tines v.
Department of the Air Force , 56 M.S.P.R. 90, 92 (1992) (explaining 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). 3
determination. See Haebe, 288 F.3d at 1301. We further find that the
administrative judge properly found that, through this evidence, the agency
established a nexus between the appellant’s misconduct and the efficiency of the
service. ID at 29; see Scheffler v. Department of Army , 117 M.S.P.R. 499, ¶ 13
(2012) (finding the deciding official’s unrebutted testimony that the appellant’s
off-duty conduct shattered her trust in him and eliminated her faith in his
judgment sufficient to establish nexus), aff’d, 522 F. App’x 913 (Fed. Cir. 2013).
Last, the appellant argues that the administrative judge erroneously applied
the factors set forth in Douglas v. Veterans Administration , 5 M.S.P.R. 280,
305-06 (1981). PFR File, Tab 1 at 25-27. To this end, he asserts that the
administrative judge should have mitigated the penalty because he sustained only
one of the two charges.4 Id. at 25-26. When an agency fails to prove all of its
charges, if the agency does not indicate that it desires a lesser penalty to be
imposed on fewer charges, the Board may mitigate to the maximum reasonable
penalty if a careful balancing of the mitigating factors warrants, or the Board may
impose the same penalty imposed by the agency based on justification of that
penalty as the maximum reasonable penalty after balancing those factors.
Lachance v. Devall , 178 F.3d 1246, 1260 (Fed. Cir. 1999); Byers v. Department
of Veterans Affairs , 89 M.S.P.R. 655, ¶ 20 (2001). Here, the administrative judge
explained that the agency did not indicate that it desired a lesser penalty based on
the sole sustained charge. ID at 31. He then considered the Douglas factors,
including mitigating factors such as the appellant’s lack of prior discipline and
4 The appellant also contends that the administrative judge should have merged
specifications 3 and 4 of the charge of conduct unbecoming a Federal employee and
mitigated the penalty because these specifications “involved the same misconduct on
the same day.” PFR File, Tab 1 at 25. We find this contention unavailing. To this end,
the specifications at issue relate to two distinct acts of indecency. Autry v. Department
of the Army, MSPB Docket No. PH-0752-18-0331-I-1, Initial Appeal File, Tab 8 at 102.
Nevertheless, these specifications were used to support only one charge of conduct
unbecoming a Federal employee; thus, the doctrine of merger is inapposite to this
appeal. See generally Mann v. Department of Health and Human Services , 78 M.S.P.R.
1, 6-7 (1998). 4
good work performance, but he nonetheless concluded that the agency’s selected
penalty did not exceed the maximum reasonable penalty. ID at 31-34. To this
end, he reasoned that the appellant’s conduct was highly improper, repeated, and
became known outside the agency. ID at 33-34. We discern no basis to disrupt
his conclusion that removal was warranted under the circumstances.
See Alexander v. U.S. Postal Service , 67 M.S.P.R. 183, 186-87, 191 (1995)
(finding the appellant’s removal appropriate where he exhibited a pattern of
behavior involving both sexual harassment and exhibitionism).
Although the appellant does not challenge the administrative judge’s
analysis of his affirmative defenses of reprisal for protected EEO activity and
disparate treatment disability discrimination, we modify the initial decision to
clarify the proper legal standards for analyzing these claims. Regarding the
appellant’s retaliation claim, the administrative judge found that the appellant did
not prove that retaliation was a motivating factor in his removal. ID at 20-23.
However, the appellant’s claim of retaliation arises under the Rehabilitation Act.
After the initial decision was issued, the Board held that to prove such a claim, an
appellant must show that retaliation was a but-for cause of the action under
appeal. Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 46-47.
Nevertheless, because the appellant did not prove motivating factor causation he
necessarily did not prove but-for causation.
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
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.5
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. 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.
(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 the7
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.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 of8
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. 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 | Autry_William_T_PH-0752-18-0331-I-2__Final_Order.pdf | 2024-05-31 | WILLIAM AUTRY v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-0752-18-0331-I-2, May 31, 2024 | PH-0752-18-0331-I-2 | NP |
1,282 | https://www.mspb.gov/decisions/nonprecedential/Zekoll_Da_Vitta_DE-315H-19-0165-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DA VITTA N. ZEKOLL,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DE-315H-19-0165-I-1
DATE: May 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J
anice L. Jackson , Leavenworth, Kansas, for the appellant.
Kristine H. Bell , Esquire, Fort Leavenworth, Kansas, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed 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
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
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 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
Effective January 8, 2018, the agency appointed the appellant to the
competitive-service position of Medical Support Assistant. Initial Appeal File
(IAF), Tab 10 at 12-13. The Standard Form (SF) 50 documenting her
appointment indicated her appointment was subject to the successful completion
of a 2-year probationary period. Id. Before the end of her probationary period,
however, the agency terminated her from her position for failure to demonstrate
the conduct required for retention in the Federal service, effective March 8, 2019.
Id. at 17; IAF, Tab 1 at 7-11.
The appellant appealed her termination to the Board and requested a
hearing. IAF, Tab 1. The administrative judge notified her that the Board may
not have jurisdiction over her appeal because probationary employees appointed
on or after November 26, 2015, to permanent positions in the competitive service
in the Department of Defense (DOD) who have less than 2 years of current,
continuous service have limited rights of appeal to the Board . IAF, Tab 3 at 2-5.
He apprised her of the ways in which she could establish jurisdiction over her
appeal and ordered her to file evidence and argument on the jurisdictional issue.
Id. In response, the appellant argued that she was not a probationary employee2
because she completed a probationary period when she served in a
non-appropriated fund (NAF) position with the agency from September 11, 2014,
through August 7, 2015, and that, pursuant to a DOD Interchange Agreement, she
was not required to serve another one. IAF, Tab 8 at 6-7, 9-16. She further
appeared to argue that her prior private sector employment at an agency
contractor from March 9, 2015, through August 26, 2016, should count towards
completion of her probationary period because she performed the same duties. Id.
at 7, 18-19. The agency moved to dismiss the appeal for lack of jurisdiction,
arguing that the appellant’s prior Federal and private sector employment could
not be credited towards completion of her probationary period and that she did
not meet the definition of an employee with the statutory right to appeal her
termination to the Board. IAF, Tab 10 at 4-11. Without holding the appellant’s
requested hearing, the administrative judge issued an initial decision dismissing
the appeal for lack of jurisdiction. IAF, Tab 11, Initial Decision (ID).
The appellant has filed a petition for review of the initial decision, and the
agency has responded. Petition for Review (PFR) File, Tabs 1, 3.
ANALYSIS
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). 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 her removal from Federal service
by filing an appeal with the Board. Maibaum v. Department of Veterans Affairs ,
116 M.S.P.R. 234, ¶ 9 (2011). At the time of the appellant’s appointment to her
position, an individual appointed to a permanent competitive-service position
after November 25, 2015, at 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) if she had
completed 2 years of current continuous service. 10 U.S.C. § 1599e(a), (b)(1)(A),3
(d), note (repealed 2022); Bryant v. Department of the Army , 2022 MSPB 1, ¶ 8.2
The appellant bears the burden of proving the Board’s jurisdiction by
preponderant evidence.3 5 C.F.R. § 1201.56(b)(2)(i)(A).
In the initial decision, the administrative judge found that the appellant did
not satisfy the first definition of a competitive-service “employee” because she
was serving a probationary period at the time of her termination. ID at 3 -5. In so
finding, he determined that her prior service could not count towards completion
of her probationary period because she had a break in service of more than
30 days between her appointments. ID at 4-5. On review, the appellant does not
challenge the administrative judge’s finding that the break in service precludes
her prior employment from counting towards completion of her probationary
period, PFR File, Tab 1, and we discern no basis to disturb it, see 5 C.F.R.
§ 315.802(b) (providing that prior Federal civilian service counts toward
completion of a probationary period if, among other requirements, the prior
service was “followed by no more than a single break in service that does not
exceed 30 calendar days”). The appellant reiterates her argument, however, that
she was not serving a probationary period at the time of her termination because
she completed a probationary period while serving in her NAF position and was
therefore not required to serve another one pursuant to the DOD Interchange
Agreement.4 IAF, Tab 8 at 7; PFR File, Tab 1 at 5.
2 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 DOD 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.
3 Preponderant evidence is that degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely true than untrue. 5 C.F.R. § 1201.4(q).
4 The administrative judge did not explicitly address this argument in the initial
decision. Even if such omission was error, however, it was harmless because it did not
affect the outcome of the appeal. See Panter v. Department of the Air Force ,
22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory error that is not prejudicial to4
The DOD Interchange Agreement permits Federal agencies to
noncompetitively appoint NAF employees to career or career -conditional
competitive service appointments and provides, among other things, that
employees appointed under the agreement who have previously completed a
probationary period are not required to serve a new one. See Department of
Defense Instruction (DODI) 1400.25, Volume 1403, DOD Civilian Personnel
Management System: [NAF] Employment, Enclosure 3, paragraph 8(a) &
Appendix (Mar. 20, 2015).5 The appellant, however, has not provided any
evidence reflecting that she was appointed pursuant to the DOD Interchange
Agreement.6 Moreover, she would not have been eligible for an appointment
under the agreement in January 2018 because she was not currently holding a
competitive service or NAF position, nor had she been “involuntarily separated
from such appointment without personal cause within the preceding year.” Id.
Accordingly, we discern no basis to disturb the administrative judge’s
determination that the appellant was a probationary employee at the time of her
termination and thus was not an employee with appeal rights under
section 7511(a)(1)(A)(i).
The appellant did not argue below that she met the second definition of
employee set forth in section 7511(a)(1)(A), and the administrative judge did not
address it. For the first time on review, however, she appears to argue that she
a party’s substantive rights provides no basis for reversal of an initial decision).
5 Although the parties did not submit a copy of DOD Interchange Agreement into the
record, they both referenced it in their pleadings. IAF, Tab 8 at 7, Tab 10 at 10.
Accordingly, we take official notice of the DOD Interchange Agreement, which is
publicly available in the Appendix to Enclosure 3 of DODI 1400.25 at
https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/140025/140025_vol1403.
pdf (last visited May 30, 2024). See Willingham v. Department of the Navy ,
118 M.S.P.R. 21, ¶ 18 (2012) (taking official notice of a publicly available Department
of Defense Instruction).
6 The SF-52 requesting the appellant’s appointment and the SF-50 documenting her
appointment reflect that she was appointed pursuant to the authority of 5 C.F.R.
§ 315.612, which provides for the noncompetitive appointment of certain military
spouses. IAF, Tab 8 at 22, Tab 10 at 13. 5
qualifies as an employee under this section because she had 1 year of current
continuous service at the time of her termination.7 PFR File, Tab 1 at 5. She
contends that section 1599e of title 10, which increased the current continuous
service requirement in section 7511(a)(1)(A)(ii) from 1 year to 2 years, did not
apply to her because she was appointed to her NAF position before November 25,
2015. Id. We find no merit to this argument. Section 1599e applied to any
individual who, like the appellant, was appointed to a permanent position within
the competitive service at DOD after November 25, 2015.8 10 U.S.C. § 1599e(b)
(1)(A), (d), note (repealed 2022); IAF, Tab 10 at 12. The fact that the appellant
was appointed to, and resigned from, a non -competitive service position at DOD
before November 25, 2015, does not remove her January 8, 2018
competitive-service appointment from coverage by section 1599e. IAF, Tab 8
at 10-16; Tab 10 at 12. Accordingly, to qualify as an employee with Board
appeal rights under section 7511(a)(1)(A)(ii), the appellant must show that she
completed at least 2 years of current continuous service in the competitive service
without a break in Federal civilian employment of a workday. See 10 U.S.C.
§ 1599e(d) (repealed 2022); Hurston v. Department of the Army , 113 M.S.P.R.
34, ¶ 9 (2010). Because she served only 14 months in the competitive service
preceding her termination, she does not meet the definition of employee set forth
in section 7511(a)(1)(A)(ii).
Even when a probationary employee in the competitive service does not
have a statutory right of appeal, she may nonetheless have a regulatory right of
appeal if she nonfrivolously alleges that her termination was based on partisan
political reasons or marital status or if her termination for preappointment reasons
was not effected in accordance with the appropriate procedures. Harris v.
Department of the Navy , 99 M.S.P.R. 355, ¶ 6 (2005); 5 C.F.R. §§ 315.805-.806.
7 Although the appellant did not raise this argument below, we will address it because
the issue of jurisdiction is always before the Board. See Ney v. Department of
Commerce, 115 M.S.P.R. 204, ¶ 7 (2010)
8 The agency is a component of DOD. 10 U.S.C. § 111(b)(6).6
In the initial decision, the administrative judge found that the appellant did not
raise such argument, despite being apprised of her right to do so, and thus
concluded that the Board did not have jurisdiction pursuant to 5 C.F.R.
§§ 315.805-.806. ID at 5-6; IAF, Tab 3 at 3. The appellant has not challenged
this finding on review, PFR File, Tab 1, and we discern no basis to disturb it.
In light of the foregoing, we find that the administrative judge properly
dismissed this appeal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS9
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.
9 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
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,8
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 9
¶1(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. 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 | Zekoll_Da_Vitta_DE-315H-19-0165-I-1_Final_Order.pdf | 2024-05-31 | DA VITTA N. ZEKOLL v. DEPARTMENT OF THE ARMY, MSPB Docket No. DE-315H-19-0165-I-1, May 31, 2024 | DE-315H-19-0165-I-1 | NP |
1,283 | https://www.mspb.gov/decisions/nonprecedential/Randall_JennievaSF-0752-19-0422-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JENNIEVA RANDALL,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
SF-0752-19-0422-I-1
DATE: May 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jennieva Randall , Compton, California, pro se.
Blaine Markuson , Esquire, Fort McCoy, Wisconsin, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary retirement 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 the facts of the case; the administrative judge’s rulings
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).
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 repeats her assertion that the Equal Employment
Opportunity Commission (EEOC) determined that the Board has jurisdiction over
her appeal. Petition for Review (PFR) File, Tab 1 at 4; Initial Appeal File (IAF),
Tab 6 at 5. She maintains that she is “prepared to provide evidentiary witness
testimony” at a hearing, but she does not set forth any specific allegations
regarding her claims. PFR File, Tab 1 at 4. Regardless of any purported
statement from an EEOC administrative judge or representative suggesting that
her complaint is appealable to the Board, the appellant must establish that the
Board has jurisdiction over her involuntary retirement appeal prior to the
adjudication of a mixed case involving issues of discrimination and reprisal. See
Levy v. Department of Homeland Security , 109 M.S.P.R. 444, ¶ 15 (2008);
5 C.F.R. §§ 1201.56(b)(2)(i)(A), 1201.151(a). The appellant presents no basis on
review for overturning the administrative judge’s findings that she failed to make
nonfrivolous allegations2 that her appeal is within the Board’s jurisdiction and she
is not entitled to a jurisdictional hearing. IAF, Tab 8, Initial Decision at 4-9; see
Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994).
2 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).2
In her initial appeal, the appellant stated that she had filed a complaint
of whistleblower reprisal with the Office of Special Counsel (OSC) on
December 15, 2016, approximately 1 year prior to her retirement. IAF, Tab 1
at 4. On review, she referred to the “filing of a Whistleblowers charge.” PFR
File, Tab 1 at 4, 6. The appellant provided no further information regarding the
nature of her OSC complaint. To the extent that the appellant wishes to pursue an
individual right of action appeal concerning an alleged personnel action taken in
reprisal for protected whistleblowing activity prior to her retirement, she may file
an appeal with the Western Regional Office in accordance with the Board’s
regulations. See 5 C.F.R. §§ 1209.5, 1209.6. The Board makes no findings on
any issues of timeliness or jurisdiction over such an appeal at this time.
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
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
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 obtain4
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 5
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. 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 | Randall_JennievaSF-0752-19-0422-I-1 Final Order.pdf | 2024-05-31 | JENNIEVA RANDALL v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-0752-19-0422-I-1, May 31, 2024 | SF-0752-19-0422-I-1 | NP |
1,284 | https://www.mspb.gov/decisions/nonprecedential/Mallonee_MichaelDE-1221-16-0063-W-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL MALLONEE,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
DE-1221-16-0063-W-1
DATE: May 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael Mallonee , Conyers, Georgia, pro se.
Glenn Himebaugh , Albuquerque, New Mexico, for the agency.
Kevin Mack , Sacramento, California, for the agency.
Teresa M. Garrity , Esquire, Bloomington, Minnesota, for the agency.
Rachel Wieghaus , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in this individual right of action (IRA)
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).
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. Except as expressly MODIFIED to
supplement the administrative judge’s findings concerning the appellant’s
protected disclosures and contributing factor and to VACATE the administrative
judge’s alternative finding that the agency proved by clear and convincing
evidence that it would have taken the same personnel actions against the appellant
absent his protected disclosures, we AFFIRM the initial decision.
BACKGROUND
The appellant was formerly employed by the agency’s Bureau of Indian
Education (BIE) as an Assistant Principal at the Cheyenne Eagle Butte School
(CEBS), an elementary school located on the Cheyenne River Indian Reservation
in Eagle Butte, South Dakota, until he was terminated during his probationary
period, effective May 4, 2012. Initial Appeal File (IAF) Tab 1 at 1, Tab 11 at 11,
Tab 19 at 11. On November 4, 2015, he filed an IRA appeal alleging that, in
reprisal for various protected disclosures he made, the agency: (1) subjected him
to a hostile work environment; (2) threatened to charge him as absent without
leave (AWOL) for failure to provide acceptable medical documentation;2
(3) terminated his employment; and (4) failed to select him for numerous
positions. IAF, Tab 1 at 13-15, Tab 9.
After holding the appellant’s requested hearing, the administrative judge
issued an initial decision denying the appellant’s request for corrective action.
IAF, Tab 180, Initial Decision (ID). The administrative judge found that the
appellant established by preponderant evidence that he made the following
protected disclosures to the agency’s Office of Inspector General (OIG) on
March 28, 2012, and to the BIE Associate Deputy Director on or about April 14,
2012: (1) he reported unsafe building conditions at CEBS to the Occupational
Safety and Health Administration on February 29, 2012; and (2) he disclosed that
an acting kindergarten assistant principal at CEBS lacked necessary certification
to an educational consulting firm on or about February 29, 2012. ID at 5-6,
17-20.
However, the administrative judge found that the appellant failed to
establish that his protected disclosures were a contributing factor in any of the
agency’s personnel actions. ID at 22-26. The administrative judge found that the
appellant’s protected disclosures all occurred after the February 21, 2012
threatened AWOL and, thus, could not have been a contributing factor in the
agency’s action. ID at 23. Regarding the appellant’s termination, the
administrative judge found that the appellant failed to present any evidence that
the Principal who took the action was aware of his protected disclosures. ID
at 23-25. Similarly, regarding the appellant’s nonselections, the administrative
judge found that he failed to prove that the individuals who made the decisions
not to select him were aware of his prior protected disclosures. ID at 25-26.
Alternatively, the administrative judge found that the agency proved by clear and
convincing evidence that the agency would have taken the same personnel actions
against the appellant absent his protected disclosures. ID at 26-30.3
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 3. The agency has opposed the appellant’s petition, and the appellant
has filed a reply. PFR File, Tabs 5-6.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly found that the appellant failed to prove that his
alleged disclosures that he was harassed amounted to protected disclosures.
To prove that a disclosure is protected, an appellant must prove by
preponderant evidence2 that a disinterested observer with knowledge of the
essential facts known to and readily ascertainable by him could reasonably
conclude that the matter disclosed 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); Bradley v. Department of Homeland Security , 123 M.S.P.R. 547,
¶ 7 (2016).3 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. Herman v. Department of Justice , 115 M.S.P.R. 386,
¶ 11 (2011). Harassing or intimidating employees may constitute an abuse of
authority. See, e.g., Herman, 115 M.S.P.R. 386, ¶ 11; Swanson v. General
Services Administration , 110 M.S.P.R. 278, 285 n.* (2008); Pasley v. Department
of the Treasury, 109 M.S.P.R. 105, ¶ 18 (2008).
The administrative judge characterized the appellant’s claims concerning
harassment as pertaining to three different alleged disclosures: (1) the appellant
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).
3 Most of the alleged retaliatory events at issue in this appeal occurred before the
December 27, 2012 effective date of the Whistleblower Protection Enhancement Act
(WPEA), Pub. L. No. 112-199, 126 Stat 1465, but some occurred after the effective
date. However, our analysis concerning whether the appellant made a protected
disclosure under 5 U.S.C. § 2302(b)(8) is the same under both pre- and post-WPEA law.4
reported that the Principal abused her authority when she subjected him to
harassment while he was on extended medical leave by repeatedly seeking
medical documentation from him; (2) he reported that the Principal and the
Acting Kindergarten Assistant Principal abused their authority generally by
harassing him; and (3) he reported that the Principal and the Acting Kindergarten
Assistant Principal’s harassment was based on his disability. ID at 10-17.
First, regarding the appellant’s alleged disclosure that the Principal abused
her authority and/or harassed him by seeking medical documentation, the
administrative judge found that the appellant’s testimony on this issue was vague,
unconvincing, and improbable and that a reasonable person would not have
considered the Principal’s treatment to be harassing behavior that could be
deemed an abuse of authority. ID at 10-12. The appellant does not dispute this
finding on review, and we discern no error in the administrative judge’s analysis.
Second, regarding the appellant’s alleged disclosure that the Principal and
the Acting Kindergarten Assistant Principal harassed him generally, the appellant
contends that he reported to an educational consulting firm on February 29, 2012,
that the Acting Kindergarten Assistant Principal created a hostile work
environment and reported to the BIE Associate Deputy Director on April 14,
2012, that the Principal bullied him and created a hostile work environment. ID
at 5-6; IAF, Tab 9 at 137. It is unclear from the record what details, if any, the
appellant reported to the firm or the Deputy Director concerning his alleged
hostile work environment or bullying claims. Indeed, the administrative judge
found that the appellant’s testimony on this issue was vague, unconvincing, and
improbable. ID at 15. Even assuming that the appellant reported all of the issues
discussed in the initial decision, the administrative judge found that a reasonable
person in the appellant’s position would not have concluded that the Principal or
the Acting Kindergarten Assistant Principal abused their authority by creating a
hostile work environment. ID at 12-16.5
In particular, the administrative judge found that the appellant testified that
his working relationship with the Principal prior to his extended leave was
cordial. ID at 12. She found that the harassment the appellant identified merely
amounted to his perceived lack of responsiveness on the part of the Principal to
his complaints about his working relationship with the Acting Kindergarten
Assistant Principal and his other work -related concerns. ID at 12-13. Regarding
the Acting Kindergarten Assistant Principal, the administrative judge found that
the appellant’s claim of harassment stemmed from his difficulty adapting to the
work environment, which required him to share responsibilities with the Acting
Kindergarten Assistant Principal with whom he disagreed over day-to-day
matters, such as staff training and assignments and the proper handling of
individual education plans for special education students. ID at 14-15. She
further found that the appellant and the Acting Kindergarten Assistant Principal
did not have a good working relationship, and each complained to the Principal
about the other’s alleged inappropriate behavior. ID at 15. We discern no error
in the administrative judge’s conclusion that a reasonable person would not have
considered the Principal’s or the Acting Kindergarten Assistant Principal’s
behavior to amount to an abuse of authority. See Carr v. Department of Defense ,
61 M.S.P.R. 172, 181 (1994) (finding that the appellant’s broad and imprecise
assertions that he was being harassed and subjected to a stressful work
environment did not constitute a disclosure of an abuse of authority).
On review, the appellant argues that the administrative judge erred in
finding that his report that the Principal and the Acting Kindergarten Assistant
Principal subjected him to a hostile work environment did not amount to a
protected disclosure, and he sets forth various facts that he appears to contend
support his belief that he was subjected to a hostile work environment. PFR File,
Tab 3 at 16. For example, he makes various arguments about his role at CEBS
and asserts that he expected to report to work overseeing the entire K-2 program
as discussed in his interview and that the Principal abused her authority by6
splitting those duties between him and the Acting Kindergarten Assistant
Principal, whom he contends was not qualified to oversee the kindergarten class.
Id. at 16-17. To the extent the appellant is reiterating his argument that the
Acting Kindergarten Assistant Principal was improperly serving in her role
without proper certification, the administrative judge considered this as a separate
disclosure and found that the appellant made a protected disclosure that the
Acting Kindergarten Assistant Principal at CEBS lacked necessary certification.
ID at 18-20.
Third, regarding the appellant’s claim that the Principal and the Acting
Kindergarten Assistant Principal’s harassment was due to his disability, the
administrative judge found that the appellant failed to present credible evidence
that he was subjected to a hostile work environment based on discrimination and,
thus, failed to prove that he made a protected disclosure based on a violation of
Title VII of the Civil Rights Act of 1964. ID at 17. It is unclear from the record
whether the appellant ever reported to anyone that he believed the alleged
harassment was based on his disability. To the extent he is alleging as much,
however, such a claim would not amount to a protected disclosure because
disclosures that are limited to equal employment opportunity matters that are
covered under 5 U.S.C. § 2302(b)(1) and (b)(9) are excluded from coverage under
section 2302(b)(8). See McCray v. Department of the Army , 2023 MSPB 10, ¶ 22
(finding that a disclosure of disability discrimination or other practice made
unlawful by the Rehabilitation Act is not protected under 5 U.S.C. § 2302(b)(8));
see also Young v. Merit Systems Protection Board , 961 F.3d 1323, 1329-30 (Fed.
Cir. 2020) (stating that allegations of retaliation for exercising a Title VII right
do not fall within the scope of section 2302(b)(8)). Thus, we modify the initial
decision to vacate the administrative judge’s findings on this issue and instead
find that the appellant failed to prove that he made a protected disclosure for the
reasons set forth above.7
The administrative judge properly found that the appellant failed to prove that
any of his protected disclosures were a contributing factor in the agency’s
personnel actions.
The administrative judge found that the appellant proved by preponderant
evidence that he was subjected to personnel actions when he was: (1) threatened
with being placed in an AWOL status; (2) terminated from his employment; and
(3) not selected for BIE contract education personnel positions. ID at 21-22.
Regarding the appellant’s claim that he was subjected to a hostile work
environment, the administrative judge found that the appellant’s allegations, as
detailed above, did not amount to a significant change in job duties,
responsibilities, or working conditions, and thus, they did not amount to a
personnel action. ID at 12-16. The appellant does not challenge this finding on
review, and we discern no error in the administrative judge’s finding to the extent
that the appellant’s allegations fail to establish that the agency’s actions,
individually or collectively, had practical and significant effects on the overall
nature and quality of his working conditions, duties, or responsibilities. See
Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶¶ 16, 26-29 (finding
that the appellant failed to prove by preponderant evidence that his allegations of
a hostile work environment amounted to a significant change in duties 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, and yelled
at him and excluded him from meetings).
Regarding the threatened AWOL, the administrative judge found that the
appellant failed to prove that his protected disclosures were a contributing factor
in the agency’s decision because the threatened AWOL occurred prior to his
protected disclosures. ID at 23. Regarding the appellant’s termination and
nonselections, the administrative judge applied the knowledge/timing test and
found that the appellant failed to present any evidence that the individuals who
decided to terminate his employment and not to select him were aware of his prior8
protected disclosures. ID at 23-26. However, the knowledge/timing test is not
the only way an appellant can establish that his protected disclosures were a
contributing factor in the agency’s decision to take a personnel action against
him. It is the agency, not its individual officials, from whom an appellant seeks
corrective action, and actual knowledge by a single official is not dispositive.
See Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 12 (2012).
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 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 proposing or deciding officials, and whether they had a
desire or motive to retaliate against the appellant. Id., ¶ 15; Powers v.
Department of the Navy , 69 M.S.P.R. 150, 156 (1995). We note that these factors
are a nonexhaustive list of the evidence that may be relevant to a contributing
factor determination. See Dorney, 117 M.S.P.R. 480, ¶ 15. Because the
administrative judge did not address the alternative to the knowledge/timing test
set forth in Dorney, we modify the initial decision to do so.
Regarding the strength of the evidence, we find that the agency had strong
evidence for its termination decision. The record reflects that the Principal, who
made the decision to terminate the appellant due to performance issues, took steps
to start the termination process with human resources as of at least January 11,
2012, prior to any of the appellant’s alleged disclosures. IAF, Tab 81 at 10.
Next, we find that the appellant’s disclosures were directed, at least in part, at the
Principal who chose to have the Acting Assistant Kindergarten Principal assist
the appellant and who would presumably have been responsible for addressing the
various safety issues at the school. IAF, Tab 81 at 29. However, regarding the
alleged safety violations, the administrative judge credited the Principal’s
testimony that numerous safety issues were reported annually and were widely
known but that there was simply not enough funding for larger repair projects.9
ID at 17-18. Additionally, regarding the Acting Kindergarten Assistant
Principal’s qualifications, the administrative judge found that agency policy
permitted her to be detailed into the position even without all of the required
qualifications. ID at 19. Finally, as discussed above, the administrative judge
found that the Principal did not have knowledge of the appellant’s disclosures,
and thus, we find she could not have had a motive to retaliate. Geyer v.
Department of Justice , 70 M.S.P.R. 682, 693 (1996) (observing that disclosures
of which a deciding official has neither knowledge nor constructive knowledge
cannot contribute toward any retaliatory motive on his part), aff’d per curiam ,
116 F.3d 1497 (Fed. Cir. 1997) (Table).
Regarding the appellant’s claims that, following his termination, he was not
selected for various positions, the appellant has not clearly identified the
positions to which he is referring.4 Before the Office of Special Counsel, he
alleged that he had applied to at least 12 positions but received no offers. IAF,
Tab 2 at 3-4. He also alleged in his Board pleadings and testimony that he
applied for over 650 positions in community settings across the country. IAF,
Tab 83 at 47, Tab 177 at 18. However, the appellant only identified two specific
4 On review, the appellant argues that the administrative judge erred in failing to
address all of his nonselection claims. PFR File, Tab 3 at 21. However, he does not
identify any specific nonselections that the administrative judge failed to consider, but
rather, he asks that the Board review the hiring process for all BIA/BIE positions for
which he applied from 2012 to 2017. PFR File, Tab 3 at 22. However, in an IRA
appeal, the Board’s jurisdiction is limited to adjudicating the whistleblower allegations.
See, e.g., Ramos v. Department of the Treasury , 72 M.S.P.R. 235, 240 (1996). The
appellant also argues that the administrative judge erred in finding that he failed to
exhaust his remedy with the Office of Special Counsel (OSC) concerning his claim that
he was not selected for additional positions. PFR File, Tab 3 at 22. However, even
assuming such claims were exhausted, the appellant has not provided sufficient
information to identify the relevant nonselections or to establish that his protected
disclosures were a contributing factor in the decisions not to select him. Finally, the
appellant’s argument that the agency failed to provide him with the information he
requested concerning his nonselections, PFR File, Tab 3 at 22, is unavailing. The
appellant filed a motion to compel the agency to produce certain information, but it did
not address his nonselection claims. IAF, Tab 42.10
Principal and Assistant Principal positions.5 IAF, Tab 9 at 10, 112. Indeed, the
agency requested clarification regarding the specific positions for which the
appellant alleged he was not selected. IAF, Tab 15.
The lack of clarity regarding the appellant’s nonselection claims makes the
contributing factor analysis difficult. The appellant offers virtually no evidence
regarding the strength or weaknesses of the agency’s reasons for not selecting
him for any of the positions, including the Principal and the Assistant Principal
positions. It is the appellant’s burden to establish that his protected disclosures
and/or activity were a contributing factor to a personnel action and this lack of
evidence cuts against him. The appellant argues that he was not selected for
positions due to whistleblower reprisal because he is Native American, has a
rating of 94, and the agency could not select a non-Native American candidate if
a qualified Native American candidate was available. IAF, Tab 9 at 10.
However, the appellant does not allege or offer any evidence that the agency
selected a non-Native American candidate over him for any of the positions. Nor
does he allege that he was more qualified than any individual who was selected.
ID at 29.
Regarding the remaining Dorney factors, there is no evidence that the
appellant’s protected disclosures were personally directed at any of the selecting
officials.6 And, as noted, the administrative judge credited the testimony of the
selecting officials for the two identified positions that they were not aware of the
appellant’s disclosures. Therefore, they could not have had a motive to retaliate.
Finally, the appellant argues that the decisions not to select him were motivated
by reasons other than whistleblower reprisal. IAF, Tab 83 at 48. Specifically, he
5 The record also includes documents regarding various other positions. IAF, Tab 167
at 43-56, Tab 168 at 30-39, Tab 169 at 30-39.
6 Although the appellant alleged that the Acting Kindergarten Assistant Principal, about
whom he complained lacked proper certification, served on several committees that
interviewed him, IAF, Tab 83 at 48, the administrative judge found that the appellant
provided no evidence to support his claim and, in any event, did not provide any
evidence that this individual was aware of his protected disclosures, ID at 25 n.15.11
asserts that applicants were rarely hired regardless of their qualifications because
staff who served in an acting capacity for the positions often served on the hiring
committees and routinely found no qualified applications so that they could
continue in their acting positions. Id. Such an argument fails to support his
claim that he was not selected in reprisal or his protected disclosures. Based on
the foregoing, we find that the appellant failed to prove by preponderant evidence
that his disclosures were a contributing factor in the agency’s decisions to
terminate him and not to select him for various positions.
The administrative judge properly analyzed the appellant’s claims under the
Whistleblower Protection Act (WPA), as amended by the Whistleblower
Protection Enhancement Act of 2012 (WPEA).
On review, the appellant contends that the administrative judge erred in
applying the provisions of the WPA instead of the WPEA. PFR File, Tab 3
at 25-26. Effective December 27, 2012, the WPEA created new Board appeal
rights in IRA appeals for employees who allege that a personnel action has been
taken as a result of a prohibited personnel practice described in 5 U.S.C.
§ 2302(b)(9)(A)-(D). Pub. L. No. 112-199, 126 Stat 1465. However, as the
administrative judge properly stated, the Board has declined to give retroactive
effect to the new appeal rights for activities protected under section 2302(b)(9).
ID at 7 n.4. Thus, she found that the Board lacks jurisdiction over the appellant’s
claims that any of the agency’s personnel actions that occurred prior to
December 27, 2012, were in retaliation for protected activity under
section 2302(b)(9). ID at 7 n.4. Except for the appellant’s nonselections, the
personnel actions at issue in this appeal all occurred prior to the WPEA’s
enactment. As to the appellant’s nonselections that occurred after the
December 27, 2012 effective date, we apply the WPEA. See Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶¶ 50-51. To the extent the appellant is
alleging that his nonselections after December 27, 2012, constituted reprisal for
protected activity under section 2302(b)(9)(C), disclosing to the OIG that the12
Acting Kindergarten Assistant Principal lacked necessary certification, as
discussed above, we find that he has not proven that such activity was a
contributing factor in his nonselections.7
The appellant’s remaining arguments do not provide a basis for reversal.
The appellant identifies various alleged errors in the administrative judge’s
factual findings. For example, he challenges her finding that CEBS was operated
by BIE and the Eagle Butte School District and that the Principal decided to split
the job duties of overseeing kindergarten to second grade between him and
another employee. PFR File, Tab 3 at 6-7. However, such arguments do not
provide a basis for reversal because the appellant has not explained how any of
these alleged factual errors are relevant to the dispositive issue of whether he
made a protected disclosure that was a contributing factor in the agency’s
personnel actions. See 5 C.F.R. § 1201.115 (explaining that the Board will only
grant a petition for review based on a showing that the initial decision contains
erroneous findings of fact if such factual errors are material, meaning that they
are of sufficient weight to warrant an outcome different from that of the initial
decision).
Additionally, the appellant makes various arguments concerning the
administrative judge’s finding that the agency proved by clear and convincing
evidence that it would have taken its actions absent the appellant’s protected
disclosures. For example, he contends that the administrative judge erred in
finding that agency policy authorized CEBS to temporarily place a special
7 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 U.S. Code. In particular, it amended 5 U.S.C. § 2302(b)(9)(C) to include
disclosing information to the Inspector General “or any other component responsible for
internal investigation or review.” 131 Stat. 1283, 1616. However, the result would be
the same under both pre- and post-NDAA law because the appellant disclosed
information to the agency’s Inspector General. We also have reviewed the other
relevant legislation enacted during the pendency of this appeal and have concluded that
it does not affect the outcome of the appeal.13
education teacher in the Acting Assistant Kindergarten Principal position without
necessary credentials. PFR File, Tab 3 at 7-9, 24. He also disputes the
administrative judge’s findings regarding when the Principal made the decision to
terminate his employment and argues that the administrative judge erred in failing
to consider his arguments showing that the reasons for his termination were
unfounded. Id. at 9, 11-16. Such arguments similarly fail to show any error in
the administrative judge’s finding that the appellant failed to make a protected
disclosure that was a contributing factor in the agency’s personnel actions and,
thus, do not provide a basis for reversal.
Nonetheless, given the administrative judge’s correct finding that the
appellant failed to prove his prima facie case, it is unnecessary to determine
whether the agency proved by clear and convincing evidence that it would have
taken the same personnel actions against the appellant absent his protected
disclosures. See 5 U.S.C. § 1221(e)(2); Clarke v. Department of Veterans Affairs ,
121 M.S.P.R. 154, ¶ 19 n.10 (2014) (stating that the Board may not proceed to the
clear and convincing evidence test unless it has first determined that the appellant
established his prima facie case), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015).
Accordingly, we vacate the administrative judge’s finding that the agency proved
by clear and convincing evidence that it would have taken the same personnel
actions absent the appellant’s protected disclosures.
The appellant’s arguments concerning procedural error do not provide a basis for
reversal.
On review, the appellant also argues that the administrative judge
committed various procedural errors, but we conclude that none of these alleged
errors warrants reversing the initial decision. For example, the appellant argues
that he was prejudiced by the overall length of time it took to adjudicate his
appeal in that he was denied legal representation due to the cost of the extended
process. PFR File, Tab 3 at 29. However, the Board generally has found that an
appellant’s lack of representation does not provide a basis for granting review.14
See, e.g., Feathers v. Office of Personnel Management , 27 M.S.P.R. 485, 487
(1985). Additionally, it appears that the appellant was initially represented by
counsel and later designated his wife as his representative. IAF, Tabs 30-31, 70,
170. Although the appellant may have been unable to afford what he considers to
be adequate representation, a claim of inadequate representation does not provide
grounds for Board review. See Wadley v. Department of the Army , 90 M.S.P.R.
148, ¶ 5 (2001); Abney v. Office of Personnel Management , 89 M.S.P.R. 305, ¶ 5
(2001), aff’d, 41 F. App’x 421 (Fed. Cir. 2002).
The appellant also contends that technological issues related to lag time,
which are not reflected on the hearing compact discs, nonetheless interfered with
the hearing. PFR File, Tab 3 at 29. He does not, however, explain the nature of
these technical difficulties or how he was prejudiced by them. See 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 reversing an initial decision). He also argues that the administrative
judge directed his representative to cease referring to multiple documents in the
record, which altered her approach to questioning and limited relevant testimony,
and the administrative judge improperly limited his representative’s questions
regarding his disability, but he fails to offer any details concerning which
testimony was improperly limited or how it was prejudicial to him. PFR File,
Tab 3 at 29-30. Lastly, he argues that the administrative judge improperly denied
his proposed witnesses, but he fails to explain how their proposed testimony was
relevant or how denying such witnesses prejudiced him. Id. at 30; see Sanders v.
Social Security Administration , 114 M.S.P.R. 487, ¶ 10 (2010) (stating that, to
obtain reversal of an initial decision on the ground that the administrative judge
abused his discretion in excluding evidence, the petitioning party must show on
review that relevant evidence, which could have affected the outcome, was
disallowed).15
Accordingly, we affirm the initial decision denying the appellant’s request
for corrective action.
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.16
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 on17
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) or18
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. 19
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.20 | Mallonee_MichaelDE-1221-16-0063-W-1 Final Order.pdf | 2024-05-31 | MICHAEL MALLONEE v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. DE-1221-16-0063-W-1, May 31, 2024 | DE-1221-16-0063-W-1 | NP |
1,285 | https://www.mspb.gov/decisions/nonprecedential/Buggs_Patricia_A_DC-0752-21-0674-I-2 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PATRICIA A. BUGGS,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-0752-21-0674-I-2
DATE: May 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Patricia A. Buggs , Fredericksburg, Virginia, pro se.
Eva M. Clements , Quantico, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary resignation appeal for lack of jurisdiction. On petition
for review, the appellant argues that the Board’s March 4, 2022 ratification of the
Merit Systems Protection Board’s administrative judges’ appointments is
unconstitutional and requests that the Board forward her case to arbitration.
Petition for Review (PFR) File, Tab 1 at 4. 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).
2
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.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).
The appellant filed an appeal alleging that her resignation from Federal
service was involuntary. Buggs v. Department of the Navy , MSPB Docket No.
DC-0752-21-0674-I-1, Initial Appeal File (IAF), Tab 1. Thereafter, the agency
filed a motion to dismiss the appeal without prejudice in which it asserted that
there was a question as to whether Board administrative judges were properly
appointed under the Appointments Clause. IAF, Tab 8. Specifically, the agency
contended that, pursuant to the U.S. Supreme Court’s decision in Lucia v.
Securities Exchange Commission , 138 S. Ct. 2044 (2018), the administrative
judge may not have the authority to decide the appeal because the administrative
judge may qualify as an Officer of the United States subject to the Appointments
Clause, rather than as a mere employee . Id. The agency recognized that this
2 Following the petition for review, the appellant filed a motion for leave to submit
additional documentation she received pursuant to a Freedom of Information Act
request to substantiate her constructive discharge claim. PFR File, Tab 4 at 4.
Nonetheless, because the appellant has failed to sufficiently explain how this purported
new evidence would be material, i.e., of sufficient weight to warrant a different
outcome from that of the initial decision, we DENY her motion. 5 C.F.R.
§ 1201.114(k); see Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980).
3
question was currently pending before the Board on interlocutory appeal, and it
requested that the appeal be dismissed without prejudice pending review of this
question by the Board. On October 18, 2021, the administrative judge dismissed
the appeal without prejudice in order for the Board to address this issue. IAF,
Tab 9, Initial Decision.
The appeal was automatically re-docketed on April 18, 2022. Buggs v.
Department of the Navy , MSPB Docket No. DC-0752-21-0674-I-2, Appeal File
(I-2 AF), Tab 1. After the case was refiled, the appellant filed a response to the
agency’s statement on jurisdiction in which she stated that she “has no objection
to the current Judge handling the case at hand.” I-2 AF, Tab 5. On July 6, 2022,
the administrative judge issued an initial decision dismissing the involuntary
resignation appeal for lack of jurisdiction. I-2 AF, Tab 10, Initial Decision.
On petition for review, the appellant argues that the ratification of the
Board’s administrative judges’ appointments is unconstitutional because only two
Board members ratified the appointments. PFR File, Tab 1 at 4. The appellant
also challenges the authority of the administrative judge by contending that the
administrative judge has two layers of removal protections. Id.
We need not, however, address these arguments because we find that the
appellant waived any objection to the administrative judge’s authority. The
appellant was apprised by the agency’s motion to dismiss the appeal and the
initial decision dismissing the appeal without prejudice that there was a question
pending before the Board on interlocutory appeal regarding whether
administrative judges were properly appointed pursuant to the Appointments
Clause. IAF, Tab 8-9. The appellant nonetheless expressly waived any objection
to the administrative judge adjudicating her appeal in her response to the
agency’s pleading on jurisdiction. I-2 AF, Tab 5; see Wynn v U.S. Postal Service ,
115 M.S.P.R. 146, ¶ 9-10 (2010) (explaining the circumstances under which an
appellant may be deemed to have expressly waived an affirmative defense),
overruled on other grounds by Thurman v. U.S. Postal Service , 2022 MSPB 21.
4
Furthermore, the appellant did not raise any objections to the administrative
judge’s authority to adjudicate her appeal in her other pleadings below. Thus,
even if the appellant’s statement below did not constitute an express waiver on its
own, the appellant effectively waived any such objection to the administrative
judge’s authority by not pursuing it below. See Thurman, 2022 MSPB 21,
¶¶ 17-18 (explaining that the ultimate question in determining whether an
appellant waived an affirmative defense is whether an appellant demonstrated his
intent to continue pursuing his affirmative defense, and whether he conveyed that
intent after filing the initial appeal).
In addition, the Board’s regulations impose particular requirements on
litigants who wish to challenge the qualifications of the individual assigned to
hear their cases. McClenning v. Department of the Army , 2022 MSPB 3, ¶ 14.3
Specifically, a party seeking to disqualify a judge must file a motion to disqualify
as soon as the party has reason to believe there is a basis for disqualification and,
if the administrative judge denies that motion, the party must request certification
of an interlocutory appeal or the disqualification issue is considered waived. Id.;
5 C.F.R. § 1201.42(b)-(c); see Thomas v. Office of Personnel Management ,
350 F. App’x 448, 451 (Fed. Cir. 2009) (finding that the appellant had waived her
request for recusal of the administrative judge by failing to comply with the
provisions of 5 C.F.R. § 1201.42). Here, the appellant did not file any such
motion below.
To the extent that the appellant requests that the Board forward her
involuntary resignation claim to arbitration, because the Board lacks jurisdiction
over her claim, it similarly lacks the authority to refer her claim to another forum.
See Brady v. Department of the Treasury , 94 M.S.P.R. 439, ¶ 7 (2003) (where the
Board lacks jurisdiction over a matter, it also lacks authority to refer the matter to
another forum that may have jurisdiction).
3 We note that the Board’s decision in McClenning was issued on March 31, 2022, prior
to the July 6, 2022 initial decision dismissing the appeal for lack of jurisdiction.
I-2 AF, Tab 10.
5
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.
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 any
7
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
8
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.
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. | Buggs_Patricia_A_DC-0752-21-0674-I-2 Final Order.pdf | 2024-05-31 | PATRICIA A. BUGGS v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-0752-21-0674-I-2, May 31, 2024 | DC-0752-21-0674-I-2 | NP |
1,286 | https://www.mspb.gov/decisions/nonprecedential/Bohinski_Robert_PH-300A-20-0013-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT BOHINSKI,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
PH-300A-20-0013-I-1
DATE: May 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
R
obert Bohinski , Mount Laurel, New Jersey, pro se.
Kimberly M. Engel , Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his employment practices appeal for lack of jurisdiction. On petition
for review, the appellant argues that the Office of Personnel Management’s
(OPM) use of a “closing date” for a vacancy announcement on the Federal
employment website, USAJOBS.gov, constitutes an “employment practice” and
that the agency failed to comply with it. Petition for Review (PFR) File, Tab 1
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).
at 4-5. He also argues that the initial decision contains incorrect statements of
fact and that the OPM audits concerning the irregularities with the closing date of
the vacancy announcement are incorrect, unfair, and need to be corrected.
Id. at 5. He appears to reassert his claim that the agency violated the merit
system principles by questioning whether “preference or advantage” was given to
the selected applicant when the agency failed to comply with OPM’s “rules” for
the closing date. Id. He also argues, for the first time, that the agency engaged in
reprisal, and he submits emails between him and an agency official regarding the
OPM audits for the first time. Id. at 6, 8-12. 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
articulate any employment practice that was applied to him that is appealable to
the Board and, thus, that he failed to establish Board jurisdiction over his appeal.
Initial Appeal File (IAF), Tab 10, Initial Decision (ID) at 8-9; see 5 C.F.R.
§ 300.101 (partially defining “employment practices”). To the extent that he
failed to address the appellant’s other claims of harmful procedural error and a
violation of the merit system principles, the appellant’s rights were not prejudiced2
because, absent an otherwise appealable action, the Board is without jurisdiction
to consider these claims. See Penna v. U.S. Postal Service , 118 M.S.P.R. 355,
¶ 13 (2012) (stating that the Board lacks jurisdiction over an appellant’s harmful
error claim absent an otherwise appealable action); Neal v. Department of Health
& Human Services , 46 M.S.P.R. 26, 28 (1990) (stating that an appellant’s
reference to the merit system principles does not establish jurisdiction because
they are intended to furnish guidance to Federal agencies and do not constitute an
independent basis for legal action); 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); Wren v. Department of the Army , 2 M.S.P.R. 1, 2 (1980),
aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).
The appellant argues for the first time on review that the agency engaged in
reprisal. PFR File, Tab 1 at 6. Generally, the Board 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 the party’s due
diligence. Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016).
The appellant has neither asserted nor proven as much. Moreover, the Board is
without jurisdiction to consider a reprisal claim absent an otherwise appealable
action. See Winns v. U.S. Postal Service , 124 M.S.P.R. 113, ¶ 19 (2017)
(reaffirming the Board’s lack of jurisdiction to consider reprisal claims absent an
otherwise appealable action), aff’d sub nom. Williams v. Merit Systems Protection
Board, 892 F.3d 1156 (Fed. Cir. 2018). If the appellant wishes to pursue an
individual right of action appeal on the basis of whistleblower reprisal, he should
first exhaust his administrative remedy with the Office of Special Counsel before
coming to the Board with that claim.
The appellant also submitted with his petition for review several emails
between him and an agency official concerning follow-up inquiries he had about
the OPM audits. PFR File, Tab 1 at 8-12. The appellant did not submit these3
emails below. IAF, Tabs 1, 6, 9. 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. Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 213-14 (1980).
The emails submitted by the appellant are dated between
September 26, 2019, and October 2, 2019. PFR File, Tab 1 at 8-12. The record
below closed on or around November 4, 2019. IAF, Tab 2 at 1, 5. The appellant
has not explained why he was unable to submit these emails prior to the close of
the record, nor has he shown that they are of sufficient weight to warrant an
outcome different from that of the initial decision. PFR File, Tab 1.
Accordingly, we have not considered them. See Avansino, 3 M.S.P.R. at 213-14;
Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980).
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 has updated the
notice of review rights included in final decisions. As indicated in the notice, the Board
cannot advise which option is most appropriate in any matter. 4
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 you5
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.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 | Bohinski_Robert_PH-300A-20-0013-I-1_Final_Order.pdf | 2024-05-31 | ROBERT BOHINSKI v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-300A-20-0013-I-1, May 31, 2024 | PH-300A-20-0013-I-1 | NP |
1,287 | https://www.mspb.gov/decisions/nonprecedential/Haught_Jason_F_PH-752S-20-0035-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JASON FREDERICK HAUGHT,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
PH-752S-20-0035-I-1
DATE: May 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jason Frederick Haught , Belpre, Ohio, pro se.
Brian Self , Esquire, Parkersburg, West Virginia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his 5-day suspension 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 the facts of the case; the administrative judge’s rulings during either
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 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 employed as a GS-13 Lead Information Technology
Specialist for the Department of the Treasury, Bureau of the Fiscal Service.
Initial Appeal File (IAF), Tab 5 at 13. By letter dated August 15, 2019, the
agency proposed to suspend him for 5 calendar days for inappropriate conduct.
Id. at 19-23. The deciding official upheld the proposed action and suspended him
for 5 calendar days, effective October 11, 2019. Id. at 13, 15-18.
The appellant filed a Board appeal challenging his 5-day suspension.
IAF, Tab 1 at 3. The administrative judge advised the appellant that the Board
may not have jurisdiction over the appeal and notified him of the limited
exceptions to the general rule that the Board does not have jurisdiction over
suspensions of 14 or fewer days. IAF, Tab 2 at 2-3. The administrative judge
ordered the appellant to file evidence and argument showing that his appeal is
within the Board’s jurisdiction, id. at 3, but the appellant did not respond.
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision finding that the appellant failed to raise a nonfrivolous
allegation of Board jurisdiction over his appeal and dismissing the appeal for lack
of jurisdiction. IAF, Tab 6, Initial Decision (ID) at 2-3.2
The appellant has timely filed a petition for review. Petition for Review
(PFR) File, Tab 1. The agency has not responded.
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). Suspensions of more than 14 days are
within the Board’s jurisdiction under 5 U.S.C. §§ 7512(2), 7513(d). However, a
suspension of 14 days or less is not appealable to the Board. Lefavor v.
Department of the Navy , 115 M.S.P.R. 120, ¶ 5 (2010); Stewart v. Department of
Defense, 82 M.S.P.R. 649, ¶ 15 (1999). Here, it is undisputed that the appellant
was suspended for fewer than 14 days.
For the first time on review, the appellant argues that the agency retaliated
against him based on his whistleblowing disclosure, subjected him to a suitability
action, and violated his due process rights. PFR File, Tab 1 at 7-11. The Board
will generally not consider arguments raised for the first time in a petition for
review absent a showing that they are 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). However, the issue of the Board’s
jurisdiction is always before the Board, and it may be raised by either party or sua
sponte by the Board at any time. Poole v. Department of the Army , 117 M.S.P.R.
516, ¶ 9 (2012). We have therefore considered the appellant’s allegations to the
extent they relate to the dispositive issue of jurisdiction.
Although the administrative judge advised the appellant of how to establish
jurisdiction over his appeal under the Whistleblower Protection Act, one of the
exceptions to the general rule that the Board does not have jurisdiction over
suspensions of 14 or fewer days, the appellant did not respond. IAF, Tab 2 at 2.
The appellant’s allegation of whistleblower reprisal, raised for the first time on
review, is vague and unsupported, and it is unclear whether he is attempting to3
pursue an individual right of action (IRA) appeal. To the extent the appellant
does wish to file an IRA appeal, he may do so with the regional office in
accordance with the Board’s procedures. See 5 C.F.R. §§ 1209.5, 1209.6.
Next, we turn to the appellant’s assertion that the action at issue constitutes
a suitability action. Pursuant to the regulations of the Office of Personnel
Management (OPM) at 5 C.F.R. part 731, the Board has jurisdiction over certain
matters involving suitability for Federal employment. See Upshaw v. Consumer
Product Safety Commission , 111 M.S.P.R. 236, ¶ 7 (2009), modified on other
grounds by Scott v. Office of Personnel Management , 116 M.S.P.R. 356 (2011),
modified, 117 M.S.P.R. 467 (2012). OPM issued revised suitability regulations
which became effective on June 16, 2008. Under the new 5 C.F.R. § 731.501(a),
only a “suitability action” may be appealed to the Board. A suitability action is
an action based on a suitability determination that relates to an individual’s
character or conduct that may have an impact on the integrity or efficiency of the
service. 5 C.F.R. § 1201.3(a)(9). It includes the cancellation of eligibility,
removal, cancellation of reinstatement eligibility, and debarment. Id.; see
5 C.F.R. § 731.203(a). Here, the appellant has not alleged, nor does the record
show, that the agency took any of the actions listed in 5 C.F.R. § 731.203(a)
against him. Thus, we find that the appellant has failed to nonfrivolously allege
that the agency subjected him to an appealable suitability action under 5 C.F.R.
part 731. See Sapla v. Department of the Navy , 118 M.S.P.R. 551, ¶¶ 10, 12
(2012) (finding that the Board lacked jurisdiction over the appeal as a suitability
action); see also Lara v. Department of Homeland Security , 101 M.S.P.R. 190,
¶ 7 (2006) (stating that mere pro forma allegations are insufficient to satisfy the
nonfrivolous standard).
For the reasons stated above, the administrative judge properly dismissed
the appeal for lack of jurisdiction. ID at 2-3. Absent an otherwise appealable
action, the Board lacks jurisdiction to review a claim of a violation of due
process. See Burnett v. U.S. Postal Service , 104 M.S.P.R. 308, ¶ 15 (2006).4
Moreover, such a claim is not relevant to the jurisdictional issue. See Morrison v.
Department of the Navy , 122 M.S.P.R. 205, ¶ 11 (2015) (declining to reach the
appellant’s claim of a violation of due process because it was not relevant to the
jurisdictional issue).
Finally, the appellant appears to challenge the merits of his 5-day
suspension. PFR File, Tab 1 at 8-10. Any such allegations, however, are not
relevant to the dispositive issue of jurisdiction. See Sapla, 118 M.S.P.R. 551, ¶ 7
(finding that the appellant’s arguments regarding the merits of her appeal were
not relevant to the question of jurisdiction). Thus, we need not consider them.
Accordingly, we affirm 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
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.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.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. 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 | Haught_Jason_F_PH-752S-20-0035-I-1 Final Order.pdf | 2024-05-31 | JASON FREDERICK HAUGHT v. DEPARTMENT OF THE TREASURY, MSPB Docket No. PH-752S-20-0035-I-1, May 31, 2024 | PH-752S-20-0035-I-1 | NP |
1,288 | https://www.mspb.gov/decisions/nonprecedential/Shepherd_Jeffrey_A_DA-0752-19-0322-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFFREY A. SHEPHERD,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
DA-0752-19-0322-I-1
DATE: May 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Julia E. Miller , Kyle, Texas, for the appellant.
Bridgette M. Gibson , Esquire, and Christian M. Kramer , Esquire, Dallas,
Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed as untimely filed his appeal of the agency’s removal action. On
review, the appellant challenges the administrative judge’s finding that he did not
show good cause for the delay in filing his appeal because, even if he was not
required to use the Board’s appeal form to file his appeal, he needed to obtain
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 information regarding the Board’s regulations to ensure that his appeal
complied with the regulations, which caused additional delay in filing the appeal.
Petition for Review File, Tab 1, Tab 6 at 1-2, 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 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 | Shepherd_Jeffrey_A_DA-0752-19-0322-I-1 Final Order.pdf | 2024-05-31 | JEFFREY A. SHEPHERD v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DA-0752-19-0322-I-1, May 31, 2024 | DA-0752-19-0322-I-1 | NP |
1,289 | https://www.mspb.gov/decisions/nonprecedential/Edwards_Tracy_L_AT-3443-19-0726-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRACY LAVETTE EDWARDS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-3443-19-0726-I-1
DATE: May 31, 2024
THIS ORDER IS NONPRECEDENTIAL1
Tracy Lavette Edwards , Columbus, Georgia, pro se.
Kimberly Kaye Ward , Decatur, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her nonselection appeal for lack of Board jurisdiction. For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
initial decision, and REMAND the case to the Atlanta Regional 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
The appellant identified herself below as an Advanced “MSA” at the
agency’s Veterans Health Administration.2 Initial Appeal File (IAF), Tab 1 at 1.
She asserted that she is preference eligible. Id. She filed an appeal with the
Board challenging her nonpromotion to a Lead MSA position with the
Department of Veterans Affairs (VA). Id. at 5. She argued that she had more
experience and knowledge than all three of the individuals selected for the
position. Id. She further argued that two of the individuals were preselected for
the position and were given the interview questions beforehand. Id. In addition
to expressing her superior knowledge and experience, the appellant asserted that,
unlike herself, none of the individuals selected were veterans. Id. Finally, she
suggested that family members of other VA employees receive preferential
treatment in selection decisions. Id.
The administrative judge informed the appellant in an acknowledgment
order that the Board generally lacks jurisdiction over nonselections and
nonpromotions. IAF, Tab 2 at 2. The administrative judge additionally informed
the appellant of six exceptions to this general rule. Id. at 2-5. As relevant here,
she informed the appellant that the Board has jurisdiction over discrimination
based on uniformed service and violations of a candidate’s veterans’ preference
rights. Id. at 5. The agency subsequently argued that the appeal should be
dismissed because it was untimely, the appellant already elected her remedy by
filing a grievance with the union, and the Board lacks jurisdiction over her
nonpromotion. IAF, Tab 6 at 4-5.
The administrative judge issued an initial decision dismissing the appeal
for lack of jurisdiction. IAF, Tab 8, Initial Decision (ID) at 1. She declined to
address the agency’s arguments that the appellant untimely filed the appeal and
that she had previously elected a different forum. ID at 1 n.1, 2 n.3. Rather, the
administrative judge found that the appellant failed to allege an exception to the
2 Neither party here explained the MSA acronym. 2
general rule that nonpromotions are not actions within the Board’s jurisdiction.
ID at 2.
The appellant filed a petition for review. Petition For Review (PFR) File,
Tab 4. In her petition she argues, among other things, that the agency disregarded
veterans’ preference in making its selections for the position at issue. Id. at 6.
The agency has responded to the appellant’s petition for review. PFR File, Tab 6.
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. Dale v. Department of Veterans
Affairs, 102 M.S.P.R. 646, ¶ 6 (2006). Generally, a nonselection is not an action
directly appealable to the Board. Id., ¶ 7. However, the Board might have
jurisdiction over a nonselection under either the Uniformed Services Employment
and Reemployment Rights Act of 1994 (USERRA) or the Veterans Employment
Opportunities Act of 1998 (VEOA). 5 U.S.C. § 3330a(a)(1)(A); 38 U.S.C.
§ 4311(a); Gossage v. Department of Labor , 118 M.S.P.R. 455, ¶ 11 (2012);
Dale, 102 M.S.P.R. 646, ¶ 7. As relevant here, if an appellant raises a VEOA
claim, she must receive adequate notice regarding her rights and burdens under
VEOA before the Board can dismiss the appeal for lack of jurisdiction. Searcy v.
Department of Agriculture , 115 M.S.P.R. 260, ¶ 11 (2010).
A VEOA claim should be liberally construed and an allegation, in general
terms, that an appellant’s veterans’ preference rights were violated is sufficient to
meet the requirement of a nonfrivolous allegation establishing Board jurisdiction.
Id. The appellant here claimed that she had more experience and knowledge than
the three individuals selected for the position in question. IAF, Tab 1 at 5. She
further claimed that, unlike herself, none of the three persons selected for the
position were veterans. Id. Moreover, on review, the appellant explicitly alleges
that the agency violated veterans’ preference rights by not selecting her or other
veterans who applied for the position. PFR File, Tab 4 at 6; see Pirkkala v.3
Department of Justice , 123 M.S.P.R. 288, ¶ 5 (2016) (explaining that jurisdiction
can be raised at any time, including on review). The appellant’s reference to
VEOA, claim of veterans’ preference, and allegation that the agency disregarded
her status as a veteran in making its selections is sufficient to require that this pro
se appellant receive notice of how to establish jurisdiction over her VEOA claim.
See Searcy, 115 M.S.P.R. 260, ¶¶ 12-13 (finding a pro se appellant’s reference to
VEOA, claim of veterans’ preference, and allegation that the agency violated his
veterans’ preference rights was sufficient to require his receipt of jurisdictional
notice). The record shows, however, that the administrative judge did not inform
the appellant of the elements and her burden to establish VEOA jurisdiction over
her appeal.3 See Burgess v. Merit Systems Protection Board , 758 F.2d 641,
643-44 (Fed. Cir. 1985) (finding an appellant must receive explicit information
on what is required to establish an appealable jurisdictional issue).
To establish Board jurisdiction over a veterans’ preference appeal brought
under VEOA,4 an appellant must (1) show that she exhausted her remedy with the
Department of Labor (DOL); and (2) make nonfrivolous allegations that (i) she is
a preference eligible within the meaning of VEOA, (ii) the actions at issue took
place on or after October 30, 1998, and (iii) the agency violated her rights under a
statute or regulation relating to veterans’ preference. Searcy, 115 M.S.P.R. 260,
¶ 13. The record below is insufficiently developed for us to address these
requirements on review. Therefore, on remand, the administrative judge must
provide the appellant with appropriate jurisdictional notice regarding her VEOA
3 The acknowledgment order states that an appellant may establish jurisdiction by
nonfrivolously alleging that she was not selected in violation “of the candidate’s
veterans’ preference rights.” IAF, Tab 2 at 4 -5. However, this notice is insufficient
because it does not state the elements necessary to establish VEOA jurisdiction over her
appeal. See Searcy, 115 M.S.P.R. 260, ¶¶ 12-13 (finding jurisdictional notice
insufficient when an administrative judge did not inform the appellant of the elements
and his burden to establish VEOA jurisdiction over his appeal).
4 As a current Federal employee, the appellant is not entitled to corrective action for an
alleged denial of the right to compete under VEOA. Oram v. Department of the Navy ,
2022 MSPB 30, ¶ 17.4
claim and the opportunity to submit evidence and argument to establish the
Board’s jurisdiction under VEOA. We observe, without making a finding, that
the appellant denied in her initial appeal that she filed a complaint with DOL.
IAF, Tab 1 at 4.
Further, this pro se appellant, in referencing that none of the three
individuals selected were veterans while she and several other candidates were
veterans, may be attempting to raise a USERRA claim rather than a VEOA claim.
See Henson v. U.S. Postal Service , 110 M.S.P.R. 624, ¶¶ 9-10 (2009) (remanding
for further adjudication concerning a potential USERRA claim, even though the
appellant never explicitly raised such a claim and only completed sections of the
initial appeal form pertaining to VEOA). The assertion that an employer took or
failed to take certain actions based on an individual’s military status or
obligations constitutes a nonfrivolous allegation entitling the appellant to Board
consideration of his claim. Hammond v. Department of Veterans Affairs ,
98 M.S.P.R. 359, ¶ 8 (2005). USERRA does not impose a time limit for filing an
appeal with the Board, and an appellant can file a USERRA complaint directly to
the Board without filing a complaint with DOL. Nahoney v. U.S. Postal Service ,
112 M.S.P.R. 93, ¶ 19 (2009); Becker v. Department of Veterans Affairs ,
107 M.S.P.R. 327, ¶ 12 (2007). Accordingly, on remand, the administrative judge
should also provide the appellant with adequate notice of what is required to
establish Board jurisdiction under USERRA.5 Id.
5 The acknowledgment order here states that an appellant may establish jurisdiction by
alleging that her nonselection was “the product of discrimination based on uniformed
service.” IAF, Tab 2 at 4-5. However, as with VEOA, the acknowledgment order does
not set forth the elements of proof. To establish Board jurisdiction over a USERRA
claim arising under 38 U.S.C. § 4311(a), an appellant must make nonfrivolous
allegations that (1) she performed duty or has an obligation to perform duty in a
uniformed service of the United States; (2) the agency denied her initial employment,
reemployment, retention, promotion, or any benefit of employment; and (3) the denial
was due to the performance of duty or obligation to perform duty in the uniformed
service. Hau v. Department of Homeland Security , 123 M.S.P.R. 620, ¶ 11 (2016), aff’d
sub nom. Bryant v. Merit Systems Protection Board , 878 F.3d 1320, 1325-26 (Fed. Cir.
2017).5
Should the appellant sufficiently establish Board jurisdiction, the
administrative judge should also address the issues regarding timeliness and the
election of remedies, as appropriate. See Rivera v. Department of the Air Force ,
110 M.S.P.R. 564, ¶ 12 (2009) (explaining that an appellant may bring a
USERRA appeal even if he is otherwise covered by a collective bargaining
agreement).
To the extent the appellant is alleging that her nonpromotion was the
product of a prohibited personnel practice not in connection with VEOA or
USERRA, we observe that prohibited personnel practices under 5 U.S.C.
§ 2302(b) are not independent sources of Board jurisdiction. Pridgen v. Office of
Management and Budget , 117 M.S.P.R. 665, ¶ 7 (2012). Further, the Board
cannot obtain jurisdiction over prohibited personnel practice claims through
USERRA or VEOA. Goldberg v. Department of Homeland Security , 99 M.S.P.R.
660, ¶ 11 (2005).6
ORDER
For the reasons discussed above, we REMAND this case to the Atlanta
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 | Edwards_Tracy_L_AT-3443-19-0726-I-1__Remand_Order.pdf | 2024-05-31 | TRACY LAVETTE EDWARDS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-3443-19-0726-I-1, May 31, 2024 | AT-3443-19-0726-I-1 | NP |
1,290 | https://www.mspb.gov/decisions/nonprecedential/Berg_GeorgeCH-0714-20-0119-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GEORGE BERG,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-0714-20-0119-I-1
DATE: May 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carson Bridges , Esquire, Dallas, Texas, for the appellant.
Gregory White , Detroit, Michigan, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The agency has filed a petition for review of the initial decision, which
reversed the appellant’s 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 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).
2
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 on different grounds that the agency failed to prove its
charges by substantial evidence, we AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s request for interim relief is denied.
Under 5 U.S.C. § 7701(b)(2)(A), an employee or applicant for employment
who prevails in an appeal to the Board must be granted interim relief provided in
the initial decision, if a petition for review of the initial decision is filed with the
Board. However, the Department of Veterans Affairs Accountability and
Whistleblower Protection Act of 2017, Pub. L. No. 115-41, §202(a), 131 Stat.
862, 869-73 (codified as amended at 38 U.S.C. § 714), provides that, from the
date a covered individual appeals a removal taken under 38 U.S.C. § 714 until the
U.S. Court of Appeals for the Federal Circuit issues a final decision on the
appeal, the individual “may not receive any pay, awards, bonuses, incentives,
allowances, differentials, student loan repayments, special payments, or benefits
related to the employment of the individual by the [agency].” 38 U.S.C. § 714(d)
(7).
The Board has held that 38 U.S.C. § 714(d)(7) controls in these types of
cases and precludes an award of interim relief. Schmitt v. Department of
Veterans Affairs , 2022 MSPB 40, ¶ 16. Additionally, the appellant’s arguments
3
in this regard are now moot, because interim relief would be in effect only
pending the disposition of a petition for review. See 5 U.S.C. § 7701(b)(2)(A);
Garcia v. Department of State , 106 M.S.P.R. 583, ¶ 7 (2007). Accordingly, we
deny the appellant’s request.
Legal standard under 38 U.S.C. § 714
Under 38 U.S.C. § 714(a), the Secretary of the Department of Veterans
Affairs may remove, demote, or suspend a covered employee upon the Secretary’s
determination that the employee’s performance or misconduct warrants such
removal. A covered employee may appeal a removal, demotion, or suspension of
greater than 14 days to the Board. 38 U.S.C. § 714(c)(4)(A). The statute further
provides that the administrative judge must sustain the agency’s decision to
remove if it is supported by substantial evidence. See 38 U.S.C. § 714(d)(2)(A).
The Board’s regulations define substantial evidence as the degree of relevant
evidence that a reasonable person, considering the evidence 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).
The statute further provides that, if the agency’s decision is supported by
substantial evidence, the administrative judge may not mitigate the penalty.
38 U.S.C. 714(d)(2)(B). However, our reviewing court has clarified that
section 714 nonetheless “requires the Board to review for substantial evidence the
entirety of the [agency’s] decision—including the penalty—rather than merely
confirming that the record contains substantial evidence that the alleged conduct
actually occurred.” Sayers v. Department of Veterans Affairs , 954 F.3d 1370,
1376 (Fed. Cir. 2020).
The administrative judge erred in considering the appellant’s due process claim in
her analysis of the charges.
It is well established that denial of constitutional due process is an
affirmative defense for which the appellant bears the burden of proof. See, e.g.,
Mattison v. Department of Veterans Affairs , 123 M.S.P.R. 492, ¶12 (2016)
4
(finding that the appellant failed to prove his due process affirmative defense);
Hulett v. Department of the Navy , 120 M.S.P.R. 54, ¶¶ 10-11 (2013) (remanding
for further adjudication of the appellant’s due process claim, including notice of
his burden of proof); see also 5 C.F.R. § 1201.56(b)(2)(i)(C) (providing that the
appellant bears the burden of proving affirmative defenses by a preponderance of
the evidence). Hence, contrary to the analysis in the initial decision, the question
of whether the agency denied the appellant due process is ordinarily distinct from
the question of whether the agency met its burden of proving the charged
misconduct. As discussed below, however, we find on other grounds that the
agency failed to meet its burden of proving the charges by substantial evidence.
The agency failed to prove the charge of failure to follow purchase card
requirements.
Under the charge of failure to follow purchase card requirements, the
agency set forth the following specifications:
SPECIFICATION 1 : Due to an investigation of the use of purchase
cards, vendor agreements, and service contract management in the
Facilities Management Service an Administrative Investigation
Board (AIB) was convened on August 21, 2019. During this
investigation it was determined that you were aware of utility
services being paid with a Government Purchase Card (GPC) due to a
lapsed contract. This is a violation of Service Contract Labor
Standards.
SPECIFICATION 2: Due to an investigation of the use of purchase
cards, vendor agreements, and service contract management in the
Facilities Management Service an Administrative Investigation
Board (AIB) was convened on August 21, 2019. During this
investigation it was determined that you are aware of your
subordinate, [the Administrative Officer], using split purchases to
pay bills over the purchase card threshold for services that were
covered by lapsed contracts. This is a violation of Purchase Card
Policies.
SPECIFICATION 3: Due to an investigation of the use of purchase
cards, vendor agreements, and service contract management in the
Facilities Management Service an Administrative Investigation
Board (AIB) was convened on August 21, 2019. During this
5
investigation it was determined that you approved eighteen (18)
transactions between 1/31/2018 and 8/8/2019 for [Maurer’s] Textile
Rental Service through Government Purchase Card (GPC) program
totaling $37,276.93. This is a violation of Purchase Card Policies.
SPECIFICATION 4 : Due to an investigation of the use of purchase
cards, vendor agreements, and service contract management in the
Facilities Management Service an Administrative Investigation
Board (AIB) was convened on August 21, 2019. During this
investigation it was determined that you are aware of your
subordinate, [the Administrative Officer], us[ing] his Government
Purchase Card (GPC) for services already included in contracts with
the facility. This is a violation of Purchase Card Policies.
Initial Appeal File (IAF), Tab 8 at 31-32.
The Board is required to review the agency’s decision on an adverse action
solely on the grounds invoked by the agency, and may not substitute what it
considers to be a more adequate or proper basis . Gottlieb v. Veterans
Administration, 39 M.S.P.R. 606, 609 (1989). Hence, in order to prove the
specifications as written, the agency must show by substantial evidence that the
appellant engaged in the alleged conduct. The agency must show that the
appellant’s conduct constituted failure to follow purchase card policies, and not
some other form of misconduct that it could have charged but did not.
As for the agency’s supporting evidence, it is not our obligation to sift
through more than 5,000 pages of unlabeled, unindexed documents. See Keefer v.
Department of Agriculture , 92 M.S.P.R. 476, ¶ 18 n.2 (2002) (“[I]t is not the
Board’s obligation to ‘pore through the record’ . . . or to construe and make
sense of allegations . . . set forth at various parts of an extremely voluminous case
file.”) A party whose submissions lack clarity risks being found to have failed to
meet its burden of proof. Luecht v. Department of the Navy , 87 M.S.P.R. 297, ¶ 8
(2000). Accordingly, in assessing whether the specifications are supported by
substantial evidence, we will consider only those portions of the record which the
agency explicitly identified by tab and page number in its closing submission
below.
6
With regard to specification 1, even assuming that the appellant was aware
of utility services being paid with a Government Purchase Card (GPC) due to a
lapsed contract, the agency has not explained how such awareness would itself
constitute a violation of Service Contract Labor Standards. Accordingly,
specification 1 is NOT SUSTAINED.
As to specifications 2 and 4, the agency has not explained how the
appellant’s awareness of the Administrative Officer’s conduct would itself
constitute a violation of Purchase Card Policies. Accordingly, specifications 2
and 4 are NOT SUSTAINED.
With regard to specification 3, the agency cites a portion of the evidence
file purportedly showing that the appellant approved the transactions in question.
IAF, Tab 54 at 5-11, Tab 91 at 17. However, while the transaction records bear
the name of the Administrative Officer, the cited documents do not indicate that
the appellant personally approved the transactions. IAF, Tab 54 at 5-11.
Accordingly, specification 3 is NOT SUSTAINED. Because the agency has not
established any of the underlying specifications by substantial evidence, the
charge of failure to follow purchase card requirements is NOT SUSTAINED.
The charge of failure to properly follow supervisory functions is not sustained.
Under the charge of failure to properly follow supervisory functions, the
agency set forth the following specifications:
SPECIFICATION 1 : Due to an investigation of the use of purchase
cards, vendor agreements, and service contract management in the
Facilities Management Service an Administrative Investigation
Board (AIB) was convened on August 21, 2019. During this
investigation it was determined that you were aware of a Community
Based Outpatient Clinic losing power due to failure to pay for
utilities and took no remedial action. As [the Administrative
Officer’s] supervisor, your conduct is unacceptable.
SPECIFICATION 2 : Due to an investigation of the use of purchase
cards, vendor agreements, and service contract management in the
Facilities Management Service an Administrative Investigation
Board (AIB) was convened on August 21, 2019. During this
7
investigation it was determined that you signed an audit documenting
[the Administrative Officer’s] deficiency in purchase card
management and failed to take appropriate action. As [the
Administrative Officer’s] supervisor, your conduct is unacceptable.
SPECIFICATION 3 : Due to an investigation of the use of purchase
cards, vendor agreements, and service contract management in the
Facilities Management Service an Administrative Investigation
Board (AIB) was convened on August 21, 2019. During this
investigation it was determined that you were aware of utility
contracts under [the Administrative Officer’s] responsibility that
lapsed. As [the Administrative Officer’s] supervisor, your conduct is
unacceptable.
SPECIFICATION 4: Due to an investigation of the use of purchase
cards, vendor agreements, and service contract management in the
Facilities Management Service an Administrative Investigation
Board (AIB) was convened on August 21, 2019. During this
investigation it was determined that you were aware of contracts that
have lapsed under [the Administrative Officer’s] responsibility for
cable services. As [the Administrative Officer’s] supervisor, your
conduct is unacceptable.
SPECIFICATION 5: Due to an investigation of the use of purchase
cards, vendor agreements, and service contract management in the
Facilities Management Service an Administrative Investigation
Board (AlB) was convened on August 21, 2019. During this
investigation it was determined that you were aware of contracts that
have lapsed under [the Administrative Officer’s] responsibility for
internet services. As [the Administrative Officer’s] supervisor, your
conduct is unacceptable.
SPECIFICATION 6: Due to an investigation of the use of purchase
cards, vendor agreements, and service contract management in the
Facilities Management Service an Administrative Investigation
Board (AlB) was convened on August 21, 2019. During this
investigation it was determined that you were aware of contracts that
have lapsed under [the Administrative Officer’s] responsibility for
waste management services. As [the Administrative Officer’s]
supervisor, your conduct is unacceptable.
SPECIFICATION 7: Due to an investigation of the use of purchase
cards, vendor agreements, and service contract management in the
Facilities Management Service an Administrative Investigation
8
Board (AlB) was convened on August 21, 2019. During this
investigation it was determined that you were aware of contracts that
have lapsed under [the Administrative Officer’s] responsibility for
automatic doors maintenance. As [the Administrative Officer’s]
supervisor, your conduct is unacceptable.
SPECIFICATION 8: Due to an investigation of the use of purchase
cards, vendor agreements, and service contract management in the
Facilities Management Service an Administrative Investigation
Board (AlB) was convened on August 21, 2019. During this
investigation it was determined that you were aware of contracts that
have lapsed under [the Administrative Officer’s] responsibility for
PACS security systems. As [the Administrative Officer’s]
supervisor, your conduct is unacceptable.
SPECIFICATION 9: Due to an investigation of the use of purchase
cards, vendor agreements, and service contract management in the
Facilities Management Service an Administrative Investigation
Board (AlB) was convened on August 21, 2019. During this
investigation it was determined that you were aware of contracts that
have lapsed under [the Administrative Officer’s] responsibility for
networking. As [the Administrative Officer’s] supervisor, your
conduct is unacceptable.
IAF, Tab 8 at 32-33.
As with the specifications underlying the first charge, for the same reasons
discussed above, we decline to pore over the more than 5,000 pages of unlabeled,
unindexed documents contained in the evidence file, and will limit our attention
to the portions of the record explicitly cited in the agency’s closing submission.
Keefer, 92 M.S.P.R. 476, ¶ 18 n.2; Luecht, 87 M.S.P.R. 297, ¶ 8.
Regarding specifications 1 and 2, the agency has not identified where the
Board may find supporting evidence for these specifications in the voluminous
case file. See Keefer, 92 M.S.P.R. 476, ¶ 18 n.2; Luecht, 87 M.S.P.R. 297, ¶ 8.
For example, the findings and conclusions set forth in the Report of Investigation
(ROI) do not include the conduct alleged under specifications 1 and 2. Compare
IAF, Tab at 32 (notice of proposed removal), with Tab 21 at 131-38 (ROI).
Because the agency has not shown by substantial evidence that the alleged facts
9
were “determined” during the AIB investigation, specifications 1 and 2 are NOT
SUSTAINED.
Specifications 3 through 9 list seven instances in which the appellant was
allegedly aware that a particular contract, under the responsibility of the
Administrative Officer, had lapsed. IAF, Tab 8 at 32-33. The contracts listed
include contracts for utilities (specification 3), cable services (specification 4),
internet services (specification 5), waste management services (specification 6),
automatic door maintenance (specification 7), security systems (specification 8),
and networking (specification 9). Id. In its closing submission, the agency states
in support of each specification that the appellant “admitted that he was aware of
these contracts having lapsed in his service,” and cites to the same page of the
transcript of the appellant’s AIB interview. IAF, Tab 90 at 19-23; see IAF, Tab
71 at 47.2 On that page of the transcript, the appellant generally states that he had
conversations with the Administrative Officer concerning lapsed contracts, but
his statement does not indicate whether he was aware of any of the specific lapsed
contracts identified in specifications 3 through 9. IAF, Tab 71 at 47. Nor has the
agency cited other evidence speaking to the appellant’s knowledge of those
particular lapsed contracts. Moreover, the agency has not explained how the
appellant’s awareness of lapsed contracts would, by itself, constitute a failure to
properly follow supervisory functions. Accordingly, specifications 3 through 9
are NOT SUSTAINED. Because the agency has not established any of the
underlying specifications by substantial evidence, the charge of failure to
properly perform supervisory functions is NOT SUSTAINED.
Having found that the agency failed to prove its charges by substantial
evidence, we affirm the reversal of the appellant’s removal. We do not reach the
2 The agency cites to “IAF, Tab 71 at 44,” which does not contain relevant information.
We generously assume that the agency intended to cite to the portion of the interview
found at page 47 of the same tab, corresponding to page 30 of the original interview
transcript. See IAF, Tab 21 at 133 (ROI, finding of fact #14) (citing page 30 of the
interview transcript).
10
merits of the parties’ arguments concerning due process and the reasonableness of
the penalty.
ORDER
We ORDER the agency to cancel the removal and retroactively restore the
appellant effective December 10, 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.
We 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.
We 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).
No 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.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
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
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.
12
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
13
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,
14
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 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,
15
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.
16
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.
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. | Berg_GeorgeCH-0714-20-0119-I-1 Final Order.pdf | 2024-05-31 | GEORGE BERG v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-0714-20-0119-I-1, May 31, 2024 | CH-0714-20-0119-I-1 | NP |
1,291 | https://www.mspb.gov/decisions/nonprecedential/Williams_RalphPH-0752-20-0051-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RALPH WILLIAMS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-0752-20-0051-I-1
DATE: May 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ralph Williams , Baltimore, Maryland, pro se.
Shelly S. Glenn , Esquire, Baltimore, Maryland, for the agency.
Diane Tardiff , Bedford, Massachusetts, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant challenges the merits of the agency’s decision to
terminate him and restates his argument that his termination was discriminatory .
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).
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).
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
2 The agency filed a response to the appellant’s petition for review dated
January 8, 2020. Petition for Review (PFR) File, Tab 3. Because the response appeared
to be untimely filed, the Clerk of the Board issued an order informing the agency that
its response was untimely and instructing it to 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, on or before January 23, 2020. PFR File, Tab 4 at 1. A blank
sample motion was attached to the order. Id. at 4. The agency did not file a response to
the order or submit the motion as instructed. Accordingly, we have not considered the
agency’s response to the petition 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
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.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. 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 | Williams_RalphPH-0752-20-0051-I-1 Final Order.pdf | 2024-05-31 | RALPH WILLIAMS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-0752-20-0051-I-1, May 31, 2024 | PH-0752-20-0051-I-1 | NP |
1,292 | https://www.mspb.gov/decisions/nonprecedential/Kingsley_Doreen_K_SF-0845-19-0522-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DOREEN K. KINGSLEY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0845-19-0522-I-1
DATE: May 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Doreen K. Kingsley , Norco, California, pro se.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the decision of the Office of Personnel Management (OPM) finding that
she had received an annuity overpayment and was not entitled to a waiver.
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 suffered a compensable injury in January 2012, and received
Federal Employees’ Compensation Act (FECA) disability benefits from
the Office of Workers’ Compensation Programs (OWCP) beginning February 28,
2012. Initial Appeal File (IAF), Tab 5 at 72-73. Thereafter, the appellant applied
for disability retirement benefits from OPM, and OPM approved her application
in October 2015. Id. at 160-70, 179-81. On November 16, 2015, the appellant
elected to receive FECA benefits in lieu of FERS disability benefits. Id. at 98. In
March 2018, the appellant changed her election, opting to receive FERS
retirement benefits instead of FECA benefits, effective at the end of that month.
Id. at 89. On April 18, 2018, OWCP notified OPM of the appellant’s new
election, and instructed OPM to commence her monthly annuity payments on
April 1, 2018. Id. at 87-88.
On July 25, 2018, OPM authorized interim payments to the appellant while
it processed her application for benefits, issuing a gross payment of $19,411.00
covering the period from October 11, 2017, to July 30, 2018. Id. at 42. Less than2
3 weeks later, on August 14, 2018, OPM notified the appellant that it had
overpaid her $12,549.44 in annuity benefits. Id. at 46. OPM set a repayment
schedule of 36 monthly payments of $348.59 and a final payment of 20 cents. Id.
at 40. The appellant requested that OPM reconsider the existence or the amount
of the overpayment and either waive the overpayment or allow her to repay it in
lower installments. Id. at 40-41. OPM issued a May 1, 2019 final decision
affirming its initial decision finding an overpayment of $12,549.44, but reducing
the collection schedule from $348.59 to $250.00 a month. Id. at 21-24.
The appellant subsequently filed this appeal. IAF, Tab 1. Among other
things, she argued that she was without fault with regard to the overpayment, and
that recovery would be unconscionable. IAF, Tab 7 at 2. The appellant argued
that the repayment schedule caused her financial hardship as it required her to
borrow from her family to survive. Id. at 4. She also contended that OPM
miscalculated her disability retirement annuity, which she argued contributed to
the amount of the overpayment, asserting that OPM should have paid her 60% of
her former salary, not 40%, after her OWCP payments stopped and she began
receiving OPM disability retirement benefits at the end of March 2018. Id. at 3.
The administrative judge held a telephonic hearing. IAF, Tab 18.
She found that OPM established the existence of the overpayment, in the amount
of $12,549.44. IAF, Tab 19, Initial Decision (ID) at 3-5. She also found that the
appellant was not entitled to a waiver of the overpayment, determining that the
appellant failed to establish by substantial evidence that she was not without fault
in creating it, because she should have known that OPM’s interim payment was
for more than she was entitled. ID at 5-6. Lastly, the administrative judge found
that adjustment of the repayment schedule was not warranted because the
appellant’s income exceeded her monthly expenses. ID at 6-10. Thus, the
administrative judge affirmed OPM’s reconsideration decision. ID at 10.
In her petition for review, the appellant argues that the administrative judge
failed to consider that her income has been reduced by OPM’s collection of the3
overpayment.2 Petition for Review (PFR) File, Tab 2 at 4. She asserts that the
monthly expenses considered by the administrative judge did not account for
taxes or a 10% tithe she contributes to her church. Id. at 5-6. The appellant also
argues that, because she turned 62 in April 2019, OPM should pay her a regular,
not disability, retirement annuity, but has failed to do so. Id. at 4-5.
She provides a calculation of what she believes should be her annuity at age 62,
which she acknowledges differs from OPM’s calculation, and she requests that
the Board have OPM resolve the discrepancy. Id. at 4-5, 17. The agency has
filed a response to the appellant’s petition for review. PFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly found that OPM proved the existence and
amount of the overpayment.
OPM bears the burden of proving the existence and amount of an annuity
overpayment by preponderant evidence. Vojas v. Office of Personnel
Management, 115 M.S.P.R. 502, ¶ 10 (2011); 5 C.F.R. § 845.307(a).
The administrative judge found that OPM met its burden to establish the
existence and amount of the overpayment, $12,549.44, which she determined had
resulted from OPM issuing the appellant an interim annuity payment that included
payment of FERS benefits covering a time period for which she had already
received FECA payments from OWCP, October 11, 2017, to March 31, 2018.
ID at 5-6; IAF, Tab 5 at 42, 72. On review, the appellant does not challenge the
existence or amount of the overpayment. PFR File, Tabs 1-2. We agree with the
administrative judge that OPM’s error as to the date on which to switch the
appellant from FECA benefits to OPM benefits resulted in the appellant’s
overpayment. ID at 5-6.
2 The appellant contends that OPM collected $348.59 from her annuity payment before
it suspended its collection efforts, and that, as of the October 25, 2019 date of her
petition for review, had not repaid her. Petition for Review (PFR) File, Tab 2 at 5.
However, OPM has submitted evidence with its response to the appellant’s petition for
review indicating that it repaid the $348.59 to the appellant on October 29, 2019.
PFR File, Tab 5 at 6. The appellant has not challenged OPM’s assertion. 4
The appellant also does not challenge the administrative judge’s finding
that OPM properly paid her a disability retirement annuity comprising 40% of her
average pay once she began receiving OPM retirement benefits instead of FECA
benefits on April 1, 2018. ID at 4-5. As the administrative judge observed,
because OPM granted the appellant’s disability retirement effective in
October 2015, had she not opted for OWCP benefits, she would have received
60% of her average salary for 12 months from that date, and then 40% of her
average salary until she reached 62 years of age. Id.; IAF, Tab 5 at 179-81; see
5 C.F.R. §§ 844.301, 844.302(b)(1), (c)(1). Because she chose to begin receiving
OPM disability retirement benefits as of April 1, 2018, which was more than
12 months after the approval of her disability retirement application,
OPM properly calculated her disability annuity as 40% of her average salary.
IAF, Tab 5 at 87-89, 179-80; 5 C.F.R. §§ 844.301, 844.302(b)(1), (c)(1).
Thus, we agree with the administrative judge that OPM correctly calculated the
appellant’s disability retirement annuity. ID at 4-5. As noted above, the
appellant does not challenge these findings on review, and we discern no reason
to disturb the administrative judge’s findings on these issues.
The administrative judge correctly found that the appellant is not entitled to a
waiver of the overpayment .
If OPM meets its burden, the appellant then has the burden of proving by
substantial evidence that she is entitled to a waiver or adjustment of the
overpayment. Vojas, 115 M.S.P.R. 502, ¶ 18; 5 C.F.R. §§ 845.307(b), 1201.56(b)
(2)(ii). Recovery of an overpayment may be waived when the annuitant is
without fault and recovery would be against equity and good conscience.
5 U.S.C. § 8470(b); Vojas, 115 M.S.P.R. 502, ¶ 18; 5 C.F.R. § 845.301. A
recipient of an overpayment is without fault if she performed no act of
commission or omission that resulted in the overpayment. Vojas, 115 M.S.P.R.
502, ¶ 19; 5 C.F.R. § 845.302. Recovery is against equity and good conscience
when it would cause financial hardship, the annuitant can show that she5
relinquished a valuable right or changed positions for the worse, or recovery
would be unconscionable under the circumstances. Boone v. Office of Personnel
Management, 119 M.S.P.R. 53, ¶ 5 (2012); 5 C.F.R. § 845.303.
The administrative judge observed that OPM had inexplicably based its
July 25, 2018 interim payment to the appellant on a start date of
October 11, 2017, instead of the April 1, 2018 start date that OWCP instructed it
to use based on the appellant’s election to receive benefits under FERS rather
than FECA. ID at 5; IAF, Tab 5 at 42. 87, 89. For that reason, as noted above,
she found that the appellant should have known that OPM’s interim payment was
for more than she was entitled. ID at 5-6. OPM policy provides that individuals
who know or suspect that they are receiving overpayments are expected to set
aside the amount overpaid pending recoupment, and that in the absence of
exceptional circumstances, which do not include financial hardship, recovery in
these cases is not against equity and good conscience. Boone, 119 M.S.P.R. 53,
¶ 6.
Because the appellant indicated on her March 2018 election form that she
understood that she may not receive FECA and FERS benefits concurrently,
IAF, Tab 5 at 89, and OPM’s interim annuity payment indicated that it was based
on an October 11, 2017 start date, id. at 42, 72, we agree with the administrative
judge that the appellant should have suspected that she received an overpayment
and set it aside pending recoupment, ID at 6; Boone, 119 M.S.P.R. 53, ¶ 6.
Accordingly, there is no basis to waive recovery of the overpayment.
In her petition for review, the appellant asserts that the adjusted monthly
payments of $250.00, which OPM established in its final decision, are still too
much for her to afford. PFR File, Tab 2 at 5; IAF, Tab 5 at 23. She asserts that
the expenses reviewed by the administrative judge to determine her ability to
repay the overpayment neglected to consider taxes of $75.00 per month and a
$200.00 monthly tithe that she contributes to her church. PFR File, Tab 2 at 5.
The administrative judge found that the circumstances did not warrant adjustment6
of the repayment schedule because the appellant’s monthly income exceeded her
reasonable monthly expenses. ID at 6-10. Specifically, she found that the
appellant had $3,178.00 in income, $2,021.00 from her FERS annuity and
$1,157.00 from Social Security, and that she had $2,348.27 in approved expenses,
such that her income exceeded her approved expenses by $829.73. ID at 7-9.
Thus, even if we were to add the $275.00 in additional expenses identified by the
appellant on review, her monthly income would still exceed her monthly expenses
by $554.73 ($3,178.00 - $2,623.27). Additionally, we observe that even adding
the $250.00 monthly installment established by OPM to repay the overpayment,
the appellant’s income still exceeds her approved expenses.
The Board lacks jurisdiction over the appellant’s claim that OPM has failed to
redetermine her annuity after age 62 .
Under 5 U.S.C. § 8452(b), a disability annuitant’s benefit is “redetermined”
upon reaching age 62 so that it would equal the regular annuity she would be
entitled to under 5 U.S.C. § 8415, if she had remained an employee during the
time she was receiving disability retirement benefits. The appellant turned 62 in
April 2019. ID at 7 n.5; PFR File, Tab 2 at 4, 9. At the hearing, the appellant
raised the redetermination issue, arguing that the income used to determine her
ability to pay was not accurate because OPM did not correctly recompute her
income at age 62. ID at 7 n.5; IAF, Tab 18, Hearing Compact Disc (testimony of
the appellant). The administrative judge observed that the appellant may seek an
adjustment of her repayment schedule in the future in accordance with OPM’s
guidelines. ID at 7 n.5.
On review, the appellant claims that OPM has still not redetermined her
annuity, despite her emails and phone calls requesting that it do so. PFR File,
Tab 2 at 4-5. She reiterates her argument that the administrative judge
determined her ability to repay the overpayment based on her disability
retirement income, not the income she expects to receive once her annuity is
redetermined based on her reaching 62 years of age. Id. at 5. She requests that7
the Board either guarantee that her income will not be reduced, which she
acknowledges may cause another overpayment, or to “[o]therwise, fix it.”
Id. at 5.
However, the Board does not have the authority to order OPM to calculate
and pay an annuity absent a final decision by OPM, and, with exceptions not
pertinent in this matter, the Board generally lacks jurisdiction to hear an appeal of
a retirement matter when OPM has not issued a reconsideration decision on the
matter. See Ramirez v. Office of Personnel Management , 114 M.S.P.R. 511, ¶ 7
(2010). The record does not reflect that OPM has issued a final decision
concerning this issue, the calculation of the appellant’s regular retirement annuity
at age 62. When OPM does so, the appellant may appeal that decision to the
Board.3 See 5 U.S.C. § 8461(e); 5 C.F.R. § 841.308.
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 also argues on review, as she did below, that OWCP withheld more for
her life insurance premiums than it should have. PFR File, Tab 2 at 6; IAF, Tab 7
at 22-23. However, the Board lacks jurisdiction over such a claim. Kostishak v. Office
of Personnel Management , 101 M.S.P.R. 422, ¶ 5 (2006) (Board jurisdiction under
FERS does not authorize appeals from claims relating to the Federal Employees Group
Life Insurance Act, chapter 87, title 5, U.S. Code).
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
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. 9
(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: 10
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. 11
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.12 | Kingsley_Doreen_K_SF-0845-19-0522-I-1 Final Order.pdf | 2024-05-31 | DOREEN K. KINGSLEY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0845-19-0522-I-1, May 31, 2024 | SF-0845-19-0522-I-1 | NP |
1,293 | https://www.mspb.gov/decisions/nonprecedential/Huang_Cynthia_SF-844E-22-0573-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CYNTHIA HUANG,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-844E-22-0573-I-1
DATE: May 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jennifer Duke Isaacs , Esquire, Atlanta, Georgia, for the appellant.
Linnette L. Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management to deny the
appellant’s application for disability retirement 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
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).
¶2On review, the appellant argues that the administrative judge erred in
finding that she did not establish that her medical conditions caused her conduct
deficiencies and reiterates her argument that her anxiety and belief that her
supervisor had been going through documents in her desk and office caused her to
take personally identifiable information (PII) away from her office, resulting in
the misconduct that formed the basis for her removal. Petition for Review File,
Tab 1 at 8-10. After considering the appellant’s arguments on review and
reviewing the record, we discern no reason to disturb the initial decision. In
particular, we agree with the administrative judge’s finding that the appellant
failed to show that her medical conditions caused a deficiency in conduct or were
incompatible with useful and efficient service. Initial Appeal File, Tab 18, Initial
Decision at 11-12. To the extent the appellant argues that her anxiety caused her
to engage in misconduct by removing documents containing PII from her office,
neither she nor her medical providers have explained how or why this occurred or
how or why her medical conditions worsened around the time of her misconduct,
especially as the record indicates she suffered from anxiety, depression, and
post-traumatic stress disorder for years before the relevant misconduct.2
See Johnson v. Office of Personnel Management, 87 M.S.P.R. 192, ¶¶ 14, 19
(2000) (finding that the appellant did not show entitlement to a disability annuity
where there was no evidence that her disability caused the alleged misconduct);
cf. Powitz v. Office of Personnel Management, 82 M.S.P.R. 56, ¶ 8 (1999)
(finding that the appellant established that he was entitled to disability retirement
where the evidence showed that his Obsessive-Compulsive disorders caused the
misconduct for which he was terminated); Peterson v. Office of Personnel
Management, 81 M.S.P.R. 211, ¶ 5-6 (1999) (finding that the appellant
established that he was entitled to disability retirement where the evidence
showed that his severe mental condition included delusions that caused his
discipline as well as caused him to be a danger to himself or others). Therefore,
for the reasons explained in the initial decision, we agree with the administrative
judge that the appellant failed to show that her medical conditions caused a
deficiency in her performance, attendance, or conduct, or that they were
incompatible with useful and efficient service or retention in her position.
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. 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 | Huang_Cynthia_SF-844E-22-0573-I-1_Final_Order.pdf | 2024-05-31 | CYNTHIA HUANG v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-844E-22-0573-I-1, May 31, 2024 | SF-844E-22-0573-I-1 | NP |
1,294 | https://www.mspb.gov/decisions/nonprecedential/Jabbour_KahtanDC-831M-19-0001-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KAHTAN JABBOUR,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-831M-19-0001-I-1
DATE: May 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Nicholas Jabbour , Bethesda, Maryland, for the appellant.
Karla W. Yeakle , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal challenging the Office of Personnel Management (OPM)’s
reconsideration decision denying his request for a waiver of the collection of
payment of life insurance premiums that had not been deducted from his Civil
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).
Service Retirement System (CSRS) annuity.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. Except as expressly
MODIFIED to include an analysis of OPM’s evidence that the appellant was
returned to the status quo ante following its rescission of the reconsideration
decision, we AFFIRM the initial decision.
BACKGROUND
According to the appellant, he retired from Federal service in 2006, after
which he was a rehired annuitant through 2008. Initial Appeal File (IAF), Tab 1
at 5. He claims that, in 2013, he noticed that his monthly retirement statements
did not contain a line item deduction for his life insurance coverage and contacted
OPM about his concern. Id. On August 31, 2017, OPM issued an initial decision
indicating that the appellant owed $28,627.91 for life insurance premiums that
were never deducted from his monthly retirement annuity and set a collection
schedule of 36 monthly installments of $791.21 and a final payment of $0.35.
2 The administrative judge stated that the appeal concerned the appellant’s Federal
Employees’ Retirement System annuity. Initial Appeal File (IAF), Tab 26, Initial
Decision at 1. Upon close examination of the record, it appears that the appellant was
in CSRS. IAF, Tab 13 at 4-6, 10-11. This distinction does not affect the outcome of
the appeal. 2
IAF, Tab 12 at 7, 10. The appellant requested reconsideration of this decision,
seeking a waiver of the payments. IAF, Tab 13 at 26. On August 27, 2018, OPM
issued a reconsideration decision, denying the appellant’s request for a waiver
and finding the appellant responsible for the underpayment of his life insurance
premiums. IAF, Tab 12 at 4-6.
On September 29, 2018, the appellant filed the instant appeal challenging
OPM’s reconsideration decision. IAF, Tab 1. On February 12, 2019, while the
appeal was pending before the administrative judge, OPM submitted a pleading
indicating that it was rescinding its reconsideration decision. IAF, Tab 25 at 4.
OPM further indicated that it would review the appellant’s claims again and
“address them accordingly.” Id. at 5 (emphasis removed). The next day, the
administrative judge dismissed the appeal for lack of jurisdiction. IAF, Tab 26,
Initial Decision.
On March 20, 2019, the appellant filed a petition for review, arguing that
the dismissal was improper because OPM had not returned him to the status quo
ante by refunding the money it had already collected from him prior to the
rescission of the reconsideration decision. Petition for Review (PFR) File, Tab 1
at 4, 8-9. He identified the amount improperly collected as $795.21. Id. at 7.
OPM filed a response, asserting that, on April 1, 2019, it issued a refund to the
appellant in the amount of $795.21. PFR File, Tab 4 at 5. OPM included a
computer printout supporting its assertion. Id. at 6. The appellant did not file a
reply to OPM’s response addressing its claim that it refunded him the collected
overpayment amount. On August 1, 2019, the Office of the Clerk of the Board
issued an order requiring the appellant to submit evidence and argument
addressing OPM’s assertion that it had refunded him the appropriate amount and
whether his petition for review had been rendered moot. PFR File, Tab 5 at 2.
The Office of the Clerk of the Board informed the appellant that, if he failed to
respond to the order, “the Board may accept OPM’s submission as accurate.” Id.
The appellant did not file any such evidence or argument. 3
DISCUSSION OF ARGUMENTS ON REVIEW
If OPM completely rescinds a reconsideration decision, its rescission
divests the board of jurisdiction over the appeal in which that reconsideration
decision is at issue. Campbell v. Office of Personnel Management , 123 M.S.P.R.
240, ¶ 7 (2016). A complete rescission requires OPM to return the appellant to
the status que ante. Id. Status quo ante means placing the injured party, as near
as possible, in the position that he would have held had “the wrong not been
committed.” Id. 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.
The sole issue before the Board is whether OPM “completely” rescinded its
reconsideration decision. The appellant identified the amount at issue in his
petition for review. PFR File, Tab 1 at 7. OPM responded, claiming that it had
refunded the appellant the identified amount and submitting documentary
evidence to that effect.3 PFR File, Tab 4 at 5-6. As stated above, the Office of
the Clerk of the Board provided the appellant with an opportunity to dispute
OPM’s claim that it had refunded the payment and informed him that if he did not
respond the Board may accept OPM’s submission as accurate. PFR File, Tab 5.
The appellant did not respond to this order. Based on the foregoing, we find that
OPM’s assertion that it refunded the $795.21 and the documentary evidence in
support thereof are sufficient to establish that it returned the appellant to the
status quo ante. Accordingly, we find that OPM completely rescinded the
reconsideration decision. See Campbell, 123 M.S.P.R. 240, ¶ 8. We modify the
initial decision to include an analysis of OPM’s evidence that the appellant was
returned to the status quo ante.
3 Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted
for the first time on 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, the document submitted on review is dated April 1,
2019, and appears to contain information that was not available when the record closed
below. Accordingly, we have considered it. 4
We deny the appellant’s petition for review and affirm the initial decision’s
dismissal for lack of jurisdiction. Id., ¶ 7 (stating that if OPM rescinds its final
decision the Board is divested of jurisdiction). If OPM issues a new
reconsideration decision adverse to the appellant, he may file a new appeal with
the Board consistent with its regulations.
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.
Court of Appeals for the Federal Circuit, which must be received by the court
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
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 file6
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 | Jabbour_KahtanDC-831M-19-0001-I-1 Final Order.pdf | 2024-05-31 | KAHTAN JABBOUR v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-831M-19-0001-I-1, May 31, 2024 | DC-831M-19-0001-I-1 | NP |
1,295 | https://www.mspb.gov/decisions/nonprecedential/Girault_NicoleAT-844E-19-0666-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NICOLE GIRAULT,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-844E-19-0666-I-1
DATE: May 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Nicole Girault , Columbia, South Carolina, pro se.
Linnette Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her 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; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
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).
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, the appellant does not challenge, and we discern no
reason to disturb, the administrative judge’s finding that the appellant’s appeal
was untimely filed by more than 1 month. Petition for Review (PFR) File, Tab 1
at 3; Initial Appeal File (IAF), Tab 8, Initial Decision (ID) at 1-2; see 5 C.F.R.
§ 1201.22(b)(1). Instead, the appellant argues for the first time on review that her
medical conditions and pro se status have made it difficult for her to follow the
Board’s appeal process. PFR File, Tab 1 at 3. 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. Banks v. Department of the Air Force ,
4 M.S.P.R. 268, 271 (1980). Nevertheless, even considering the appellant’s
arguments on review, we find that they do not warrant a different outcome in this
appeal for the following reasons.
As properly set forth in the initial decision, the Board may waive the
deadline for filing an appeal if the appellant shows good cause for the untimely
filing. ID at 2; see Walls v. Merit Systems Protection Board , 29 F.3d 1578, 1581
(Fed. Cir. 1994). In making a good cause determination, the Board will consider
the factors set forth in Moorman v. Department of the Army , 68 M.S.P.R. 60,2
62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table). ID at 3. The Board
has held that a party’s medical condition may provide good cause for an untimely
filing. ID at 3; see Lacy v. Department of the Navy , 78 M.S.P.R. 434, 437 (1998).
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 or a request for an extension of time.2 Lacy, 78 M.S.P.R. at 437.
Here, other than the appellant’s unsworn assertions on review, there is
nothing in the record to suggest that she suffered from any illness during the
relevant filing period. PFR File, Tab 1 at 3. Although the appellant alleges that
she had to wait for hospital records that never came, she has failed to provide any
evidence to support her illness claim. Id.; see Osborne v. Small Business
Administration, 81 M.S.P.R. 357, ¶ 6 (1999) (observing that, in determining
whether good cause exists based on an illness, the Board will accept nonmedical
supporting evidence if the appellant explains why medical evidence is not
available). Thus, we find that the appellant has failed to show that the filing
delay was the result of an illness.
Moreover, although the appellant’s pro se status is a factor weighing in her
favor, we find that it is outweighed by the other Moorman factors.
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, we agree with the administrative judge’s finding that the appellant’s
filing delay of more than 1 month is lengthy. ID at 2, 4; see Summerset v.
Department of the Navy , 100 M.S.P.R. 292, ¶ 7 (2005) (finding a 33-day filing
delay significant) . Further, the appellant has not presented any evidence of
2 The administrative judge correctly informed the appellant of this criteria in the order
on timeliness. IAF, Tab 4 at 4.3
circumstances beyond her control or of unavoidable casualty or misfortune that
prevented her from timely filing the appeal. See Moorman, 68 M.S.P.R. at 63.
Therefore, we discern no basis to disturb the administrative judge’s finding that
the appellant has not shown good cause for the filing delay. ID at 4.
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.
(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
(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 | Girault_NicoleAT-844E-19-0666-I-1 Final Order.pdf | 2024-05-31 | NICOLE GIRAULT v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-844E-19-0666-I-1, May 31, 2024 | AT-844E-19-0666-I-1 | NP |
1,296 | https://www.mspb.gov/decisions/nonprecedential/Casarez_GuadalupeSF-0845-19-0563-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GUADALUPE CASAREZ,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0845-19-0563-I-1
DATE: May 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Guadalupe Casarez , Downey, California, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) finding that she received an overpayment of $61,531.00 in disability
retirement annuity benefits under the Federal Employees’ Retirement System
(FERS) and that she is not eligible for a waiver of the overpayment or 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).
adjustment of the recovery schedule. 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 administrative judge’s analysis regarding the
appellant’s argument that OPM miscalculated the overpayment and the issue of
whether she is entitled to an adjustment of the recovery schedule, we AFFIRM
the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
As properly set forth in the initial decision, OPM bears the burden of
proving by preponderant evidence2 the existence and amount of an annuity
overpayment. Initial Appeal File (IAF), Tab 11, Initial Decision (ID) at 4; see
5 C.F.R. § 845.307(a). An appellant bears the burden of proving by substantial
evidence3 that she is entitled to a waiver of the overpayment or an adjustment of
2 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 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). This is a
lower standard of proof than preponderance of the evidence. Id.2
the recovery schedule. ID at 4-5; see Dorrello v. Office of Personnel
Management, 91 M.S.P.R. 535, ¶ 7 (2002); 5 C.F.R. § 845.307(b).
We affirm the administrative judge’s findings that OPM proved the existence and
amount of the overpayment, as modified to supplement her analysis regarding the
appellant’s argument that OPM miscalculated the overpayment.
On petition for review, the appellant does not challenge, and we discern no
basis to disturb, the administrative judge’s finding that OPM proved the existence
of the overpayment at issue that occurred as a result of the appellant’s entitlement
to disability insurance benefits from the Social Security Administration (SSA)
during the period from November 2014 through February 2018. Petition for
Review (PFR) File, Tab 1 at 1-2; ID at 3, 5-7; see 5 U.S.C. § 8452(a)(2); 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). Instead, the appellant challenges the
administrative judge’s finding that OPM proved the amount of the overpayment,
reasserting her argument that the overpayment should be reduced for the
following reasons: (1) the SSA offset her SSA benefits based on her entitlement
to workers’ compensation benefits from the Office of Workers’ Compensation
Programs (OWCP) during the period from November 2014 through January 2015,
and she did not actually receive such OWCP benefits; and (2) OPM improperly3
withheld the cost of health insurance premiums from her FERS annuity.4 PFR
File, Tab 1 at 1-2; IAF, Tab 1 at 9-10, Tab 6 at 2-3; ID at 6-7.
The administrative judge addressed, but was not persuaded by, the
appellant’s argument because she found that OPM’s evidence of its calculation of
the overpayment reflects that OPM did not rely on the appellant’s OWCP benefits
or consider any deductions for her health insurance. ID at 6-7. Thus, the
administrative judge essentially concluded that the appellant failed to rebut
OPM’s evidence proving that it correctly calculated the overpayment. Id.
Although we agree with that conclusion, we modify the initial decision as follows
to supplement the administrative judge’s analysis regarding the appellant’s
argument that OPM miscalculated the overpayment.
First, we will address the appellant’s claim that OPM failed to consider that
the SSA offset her SSA benefits during the period from November 2014 through
January 2015 based on her entitlement to OWCP benefits that she did not actually
receive. PFR File, Tab 1 at 1; IAF, Tab 6 at 3. If, during any month within the
first year after an annuitant becomes entitled to a FERS disability retirement
annuity, she also is entitled to SSA benefits, her FERS annuity for such month
must be reduced by 100% of her “assumed disability insurance benefit” for that
month. 5 U.S.C. § 8452(a)(1)(A)(i), (a)(2)(A)(i); see Maxwell, 78 M.S.P.R.
4 With her petition for review, the appellant has resubmitted documentation that was a
part of the record before the administrative judge. Compare PFR File, Tab 1 at 3-4,
10-11, 13-14, 16, 21-25, with IAF, Tab 1 at 18-19, 21-22, Tab 5 at 19-20, 25-26, 56-58,
Tab 6 at 6. Further, the appellant has included additional documentation for the first
time on review. PFR File, Tab 1 at 5-9, 12, 15, 17-20, 26. The appellant has failed to
explain why, despite her due diligence, she was unable to submit such evidence prior to
the close of the record before 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). Even
considering such additional documentation, however, we find that it does not change the
outcome of this appeal. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349
(1980) (observing that the Board generally 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).4
at 355; Johnston, 70 M.S.P.R. at 113. The U.S. Court of Appeals for the Federal
Circuit has interpreted the “assumed disability insurance benefit” to mean the full
amount of SSA benefits to which an annuitant is entitled under section 223 of the
Social Security Act (codified at 42 U.S.C. § 423) before any adjustments for
OWCP benefits. Leighton v. Office of Personnel Management , 529 F.3d 1071,
1073 & n.1, 1074-76 (Fed. Cir. 2008); see 5 U.S.C. § 8452(a)(2)(B)(i)(I).
Here, the appellant submitted an OWCP letter documenting her entitlement
to workers’ compensation benefits during the period from November 2014
through January 2015. IAF, Tab 1 at 18-19. She further submitted an SSA letter
documenting her entitlement to SSA benefits beginning in August 2014. Id.
at 20. The SSA explained in its letter that it was reducing the appellant’s
monthly SSA benefits based on her workers’ compensation payment during the
period from November 2014 through January 2015, and that it was paying her
SSA benefits at the full rate beginning in February 2015. Id. The appellant has
submitted on review additional SSA documentation suggesting that she became
entitled to approximately $2,132 in monthly SSA benefits beginning in
August 2014 until her SSA benefits were reduced for workers’ compensation
payments from November 2014 through January 2015, and that her SSA benefits
increased from February 2015. PFR File, Tab 1 at 5. The dates and amounts of
SSA benefits described in such SSA documentation are consistent with those
contained in OPM’s submission of an “SSA Response Screen.” Compare id., with
IAF, Tab 5 at 19. Considering the evidence described above as a whole, we find
that it is more likely than not that, before the SSA reduced the appellant’s SSA
benefits based on her OWCP benefits, she was entitled to $2,132 of monthly SSA
benefits during the period from November 2014 through January 2015.
Moreover, because that 3-month period occurred within the first year after
the appellant’s entitlement to FERS annuity benefits commenced in
November 2014, OPM was required to reduce her FERS annuity for those
3 months by 100% of the SSA benefits to which she was entitled during that5
period. IAF, Tab 5 at 11; see 5 U.S.C. § 8452(a)(1)(A)(i), (2)(A)(i). OPM’s
evidence of its calculation of the overpayment reflects that, from November 2014
through January 2015, OPM used an “old” monthly FERS annuity rate of $3,990
and a “new” monthly rate of $1,858. IAF, Tab 5 at 32. Thus, it is apparent that
OPM reduced the “old” monthly rate by $2,132 to get the “new” monthly rate.
Id. Based on the foregoing, we find that OPM correctly reduced the appellant’s
FERS annuity for the period from November 2014 through January 2015 by 100%
of the full amount of SSA benefits to which she was entitled during that period
(i.e., $2,132 per month), notwithstanding the offset of her SSA benefits for
OWCP benefits that she allegedly did not receive. See, e.g., Leighton, 529 F.3d
at 1073, 1076.
Next, we will address the appellant’s claim that OPM improperly withheld
the cost of health insurance premiums from her FERS annuity. PFR File, Tab 1
at 1-2; IAF, Tab 1 at 9-10. A FERS disability retirement annuity is calculated
pursuant to 5 U.S.C. § 8452(a) as a percentage of an annuitant’s “average pay.”
The term “average pay” means “the largest annual rate resulting from averaging
an employee’s or Member’s rates of basic pay in effect over any 3 consecutive
years of service.” 5 U.S.C. § 8401(3). This is known as the “high-3” average
pay. Nichol v. Office of Personnel Management , 108 M.S.P.R. 286, ¶ 13 (2008).
The term “basic pay” is defined as including certain types of pay but excluding
bonuses, allowances, overtime pay, and military pay. 5 U.S.C. §§ 8401(4),
8331(3). OPM’s regulations define “basic pay” as “the pay an employee receives
that is subject to deductions under FERS.” 5 C.F.R. § 844.102. Based on these
statutes and regulations, we discern no requirement for OPM to consider any
deductions for health insurance in calculating the appellant’s FERS annuity for
purposes of determining the overpayment amount. Indeed, OPM’s evidence of its
calculation of the overpayment expressly states, “These are GROSS rates and may
be more than the amount you actually received due to deductions for health
benefits, life insurance, tax, etc.” IAF, Tab 5 at 32 (emphasis in original).6
Moreover, the appellant does not dispute OPM’s determination that her “high-3”
average salary is $79,815. Id. at 11, 45, 52. Therefore, we find that OPM
correctly used gross rates without considering any deductions for health insurance
in calculating the amount of the overpayment.
The Board’s jurisdiction over final decisions of OPM in administering
FERS derives from 5 U.S.C. § 8461(e)(1), which provides that “an administrative
action or order affecting the rights or interests of an individual . . . under the
provisions of this chapter administered by [OPM] may be appealed to the
[Board].” Fletcher v. Office of Personnel Management , 118 M.S.P.R. 632, ¶ 7
(2012). The Board has interpreted the plain language of 5 U.S.C. § 8461(e)(1) as
meaning that the Board’s authority under that provision extends only to OPM
actions or orders that adversely affect an individual’s rights or interests under
FERS. Fletcher, 118 M.S.P.R. 632, ¶ 7. The Federal Circuit has rejected the
argument that any reduction in a retiree’s annuity payments affects the rights or
interests of the annuitant under the retirement statute and therefore is reviewable
by the Board. Miller v. Office of Personnel Management , 449 F.3d 1374, 1379-80
(Fed. Cir. 2006). The court found that this theory would give the Board very
broad authority over a wide variety of substantive claims simply because of the
mechanism used to collect the obligations stemming from the claims, contrary to
Congressional intent. Id. Therefore, to the extent the appellant is contesting the
SSA’s offset of her SSA benefits for OWCP benefits and OPM’s withholding for
health insurance premiums, these issues are beyond the scope of our review of
OPM’s reconsideration decision. See, e.g., Hudson v. Office of Personnel
Management, 114 M.S.P.R. 669, ¶¶ 2, 10 (2010) (finding that the Board could not
consider the merits of the appellant’s claim that he was entitled to a refund from
OPM for an overcharge of health insurance premiums).7
We affirm the administrative judge’s finding that the appellant failed to establish
her entitlement to a waiver of the overpayment.
In addition, the appellant challenges the administrative judge’s finding that
she failed to establish her entitlement to a waiver of the overpayment because,
although she was without fault in causing the overpayment, recovery of the
overpayment is not against equity and good conscience. PFR File, Tab 1 at 1-2;
ID at 7-10. In particular, the appellant reasserts her claim that she was unaware
of the overpayment. PFR File, Tab 1 at 1; IAF, Tab 1 at 9, Tab 6 at 2-3.
However, we discern no reason to disturb the administrative judge’s finding that
the appellant was aware when she received payment of retroactive SSA benefits
in June 2018 that she was required to set aside that payment to repay OPM. ID
at 9. Thus, the administrative judge properly applied the set-aside rule, which
required the appellant to show exceptional circumstances warranting waiver of
the overpayment. ID at 8-9; see Dorrello, 91 M.S.P.R. 535, ¶ 7 (observing that,
if an appellant is aware of the set-aside requirement, the collection of the
overpayment cannot be waived absent exceptional circumstances). The
appellant’s reassertion on review that she had to borrow money due to the lengthy
delay in receiving her FERS annuity does not describe exceptional circumstances.
PFR File, Tab 1-2; IAF, Tab 1 at 10, Tab 6 at 3; see Dorrello, 91 M.S.P.R. 535,
¶ 7 (explaining that exceptional circumstances involve OPM’s egregious errors or
delays—not financial hardship). Therefore, we discern no reason to disturb the
administrative judge’s finding that the appellant failed to establish her entitlement
to a waiver of the overpayment. ID at 10.
We affirm the administrative judge’s finding that the appellant failed to establish
her entitlement to an adjustment of the recovery schedule, as modified to
supplement the administrative judge’s analysis.
In determining that the appellant failed to establish her entitlement to an
adjustment of the recovery schedule, the administrative judge found that the
appellant did not seek a reduction in the scheduled amount of monthly repayment
or indicate that financial hardship warranted the reduction of that amount. ID8
at 9-10. However, the record reflects that the appellant requested lower
installments from OPM, IAF, Tab 5 at 25, and that she raised the issue of her
entitlement to an adjustment before the administrative judge, IAF, Tab 6 at 2.
Thus, we modify the initial decision to supplement the administrative judge’s
analysis on this issue as follows.
As properly discussed in the initial decision, an annuitant who is ineligible
for a waiver may be entitled to an adjustment in the recovery schedule if she
shows that it would cause her financial hardship to make payments at the
scheduled rate. ID at 4-5; see Malone v. Office of Personnel Management ,
113 M.S.P.R. 104, ¶ 4 (2010); 5 C.F.R. § 845.301. Pursuant to OPM’s
regulations, financial hardship may exist when the annuitant needs substantially
all of her income and liquid assets to meet current ordinary and necessary living
expenses and liabilities. Malone, 113 M.S.P.R. 104, ¶ 4; 5 C.F.R. § 845.304.
Here, even considering the appellant’s submissions on review together with the
record before the administrative judge, we find that the appellant has failed to
provide substantial evidence sufficient to establish financial hardship. In
particular, the appellant has failed to set forth her current income, liquid assets,
ordinary and necessary living expenses, and liabilities, or otherwise set forth in
detail any current circumstances establishing that it would cause her financial
hardship to make payments at the scheduled rate. PFR File, Tab 1 at 1-2, 12;
IAF, Tab 1 at 9-10, Tab 6 at 2-3.
Accordingly, we affirm the initial decision, as modified.
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
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.9
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 particular10
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 . 11
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 of12
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. 13
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 | Casarez_GuadalupeSF-0845-19-0563-I-1 Final Order.pdf | 2024-05-31 | GUADALUPE CASAREZ v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0845-19-0563-I-1, May 31, 2024 | SF-0845-19-0563-I-1 | NP |
1,297 | https://www.mspb.gov/decisions/nonprecedential/Lawson_Rocita_M_DC-0845-14-0588-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROCITA M. LAWSON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0845-14-0588-I-1
DATE: May 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rocita M. Lawson , Washington, D.C., pro se.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of the Office of Personnel Management’s reconsideration
decision denying her request to waive collection of her overpayment as untimely
filed. For the reasons set forth below, the appellant’s petition for review 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).
DISMISSED as untimely filed without good cause shown. 5 C.F.R.
§ 1201.114(e), (g).
In the July 31, 2014 initial decision, the administrative judge instructed the
appellant that the initial decision would become final on September 4, 2014,
unless a petition for review was filed by that date. Initial Appeal File (IAF),
Tab 6, Initial Decision (ID) at 4-5. On September 3, 2019, roughly 5 years after
the finality date, the appellant filed her petition for review. Petition for Review
(PFR) File, Tab 1 at 23.
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
she received the initial decision more than 5 days after it was issued, within
30 days after she 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 she received the initial decision more than 5 days after it was
issued. PFR File, Tab 1. Thus, the deadline to file a petition for review was
September 4, 2014. Her September 2019 petition for review of the initial
decision was untimely filed by roughly 5 years. ID at 4-5; 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 filing delay. Palermo, 120 M.S.P.R. 694,
¶ 4; 5 C.F.R. §§ 1201.113(d), 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 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 shows a causal relationship to her inability to timely file her petition. Id. 2
In her petition for review, the appellant addressed the untimeliness of her
April 2014 initial appeal, which was dismissed as untimely filed, but not the
untimeliness of her petition for review. PFR File, Tab 1 at 1-6; IAF, Tab 1;
ID at 1. She further attaches documents seemingly addressing the merits of her
initial appeal. PFR File, Tab 1 at 10-21. In an acknowledgment letter dated
September 5, 2019, the Acting Clerk of the Board informed the appellant that her
petition for review was untimely filed, and that an untimely filed 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 sample “Motion to Accept Filing as Timely or to Waive Time Limit”
form, and allowed the appellant until September 20, 2019, to submit the motion.
Id. at 2, 7-8. Furthermore, the Acting Clerk expressly informed the appellant
that, if she did not timely submit the motion, “the Board [might] issue an order
dismissing [her] 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 in the allotted
time, and never provided any such motion. Rather, the appellant submitted a
request to withdraw her petition for review. PFR File, Tab 4. The Acting Clerk
informed the appellant that, pursuant to agency policy, the Office of the Clerk of
the Board was unable to grant the withdrawal of a petition for review that was
untimely filed, and that the Board would address her request following restoration
of a quorum. PFR File, Tab 6 at 1.
An appellant’s relinquishment of her right to appeal to the Board must be
by clear, unequivocal, and decisive action. Rosso v. Department of Homeland
Security, 113 M.S.P.R. 271, ¶ 9 (2010). However, we need not reach that issue,
as we find her petition for review was untimely filed without good cause shown.
The appellant’s roughly 5-year delay in filing in this case is significant.
See Wirzberger v. Department of the Treasury , 101 M.S.P.R. 448, ¶ 8 (2006)3
(finding that a year-long delay in filing a petition for review was significant),
review dismissed , 212 F. App’x 965 (Fed. Cir. 2006). Because the appellant has
not shown that she exercised due diligence or ordinary prudence under the
particular circumstances of the case, her petition for review must be dismissed as
untimely filed without good cause shown.
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 untimeliness of her initial 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.
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 | Lawson_Rocita_M_DC-0845-14-0588-I-1 Final Order.pdf | 2024-05-31 | ROCITA M. LAWSON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0845-14-0588-I-1, May 31, 2024 | DC-0845-14-0588-I-1 | NP |
1,298 | https://www.mspb.gov/decisions/nonprecedential/Credle_Jeffery_T_DC-3443-19-0256-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFFERY TRAVIS CREDLE,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DC-3443-19-0256-I-1
DATE: May 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeffery Travis Credle , Waldorf, Maryland, pro se.
Candace D. Embry , Landover, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA) for failure to state a claim upon
which relief can be granted. 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
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).
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 agency’s Employee and Labor Relations Manual (ELM) does not
provide a basis for relief, we AFFIRM the initial decision.
On review, the appellant, a retired U.S. Postal Service employee, renews
his arguments that he is entitled to an extra 66 days of paid military leave
pursuant to O’Farrell v. Department of Defense , 882 F.3d 1080 (Fed. Cir. 2018).
Initial Appeal File (IAF), Tab 1 at 1, 5; Petition for Review File, Tab 1 at 2.
As set forth in the initial decision, the appellant cannot obtain relief under
5 U.S.C. § 6323, the statute addressed in O’Farrell, because U.S. Postal Service
employees are excluded from the application of 5 U.S.C. § 6323. IAF, Tab 10
at 3; see Welshans v. U.S. Postal Service , 550 F.3d 1100, 1102-03 (Fed. Cir.
2008) (providing that U.S. Postal Service employees are excluded from the
application of 5 U.S.C. § 6323).
The appellant also argued that the agency’s ELM § 517.431 provides for
the leave to which he claims he is entitled, but the administrative judge did not
address whether the appellant could obtain relief under the ELM. IAF, Tab 9
at 2. Although 5 U.S.C. § 6323 does not apply to employees of the U.S. Postal
Service, the agency’s employees are entitled to military leave under the ELM.
Welshans, 550 F.3d at 1103. In examining a claim for relief under USERRA, the
Board will enforce employee rights derived from agency rules, regulations,2
procedures, and collective bargaining agreements. Miller v. U.S. Postal Service ,
105 M.S.P.R. 89, ¶ 11 (2007). The ELM is widely available to the public, thus
we take administrative notice of the ELM provisions provided by the agency in
the record below.2 IAF, Tab 6 at 17-21; see Azdell v. Office of Personnel
Management, 88 M.S.P.R. 319, 323 (2001) (providing that the Board may take
administrative notice of public documents).
We have considered the appellant’s argument that ELM § 517.431 entitles
him to 22 additional days of military leave per fiscal year, but find that he has
failed to state a claim upon which relief can be granted in this respect. To obtain
relief under USERRA, the appellant must show that, as a result of the agency’s
improper administration of military leave, he was forced to use annual leave or
leave without pay in order to fulfill his military duty. Miller, 105 M.S.P.R. 89,
¶ 12. Under ELM § 517.431, an employee who is a member of the National
Guard is only granted additional paid military leave “if they are ordered by
appropriate authority to provide military aid to enforce the law of their contracted
state or their chartered jurisdiction” as set forth in section 517.431a1 and will not
be granted leave “when military orders do not specify one or more of the duties
and statutory requirements referenced in 517.431a1[.]” The appellant’s orders
calling him to active military duty during the relevant time period only specify
that the appellant is ordered to full-time National Guard duty for “Operational
Support” and do not specify any of the duties set forth in ELM § 517.431a1.3
2 Although the agency provided a copy of the ELM in effect as of September 2018,
several previous versions of the ELM were in effect during the time period in which the
appellant alleges that he is entitled to additional military leave. IAF, Tab 6 at 17-21;
United States Postal Service, Employee and Labor Relations Manual ELM Archives ,
https://about.usps.com/manuals/elm/elmarch.htm (last visited May 31, 2024).
However, our review of previous versions of the ELM reflect that the agency has not
made substantive changes to ELM § 517.431 during the relevant time period.
3 ELM § 517.431a1 provides, in relevant part:
Military aid to enforce the law means engagement in the suppression of
riots, violent assembly, widespread looting, and civil disorder where the
guardsman is ordered to perform state military duty under a state law that3
IAF, Tab 5 at 10-15. Even if we accept the appellant’s allegations as true, he can
prove no set of facts in support of his claim that would entitle him to relief under
the ELM. See Alford v. Department of Defense , 113 M.S.P.R. 263, ¶ 11 (2010),
aff’d, 407 F. App’x 458 (Fed. Cir. 2011) (providing that dismissal for failure to
state a claim is appropriate only if, taking the appellant’s allegations as true and
drawing all reasonable inferences in his favor, he cannot prevail as a matter of
law). Accordingly, we affirm the dismissal of the appeal for failure to state a
claim upon which relief can be granted.
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.
specifically confers law enforcement powers on the guardsman or under
the authority of an executive order of the governor (or the highest
authority of the jurisdiction) pursuant to state law that specifically confers
on the governor the authority to confer law enforcement powers on
activated guardsmen.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
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 you5
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.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. 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. 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 | Credle_Jeffery_T_DC-3443-19-0256-I-1 Final Order.pdf | 2024-05-31 | JEFFERY TRAVIS CREDLE v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DC-3443-19-0256-I-1, May 31, 2024 | DC-3443-19-0256-I-1 | NP |
1,299 | https://www.mspb.gov/decisions/nonprecedential/Wyatt_David_L_CH-0752-19-0271-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID L. WYATT,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
CH-0752-19-0271-I-1
DATE: May 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David L. Wyatt , Portage, Michigan, pro se.
Maryl Rosen , St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained the agency’s removal action pursuant to 5 U.S.C. chapter 75.
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
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 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 asserts that he was unaware that a particular material witness
would not be testifying “until the day of the hearing,” and he contends that the
agency’s decision not to call this witness “was a direct underhanded move . . . to
deny due process.” Petition for Review (PFR) File, Tab 4 at 9, Tab 9 at 4-5. The
record reflects that both parties sought, and the administrative judge approved,
the testimony of this particular witness. Initial Appeal File (IAF), Tab 17 at 7,
Tab 18 at 15, Tab 19 at 5. During the hearing, agency counsel explained that she
had contacted the subject witness and requested that she appear; however, the
witness, who had retired from Federal service, ultimately declined to participate.
IAF, Tab 22, Hearing Recording (HR) at 20:35 to 21:05, 21:29 to 22:12
(statements of agency counsel, file 5). The appellant’s prehearing statement
indicates that the appellant knew the witness had retired. IAF, Tab 17 at 7.
When asked whether he had contacted or otherwise attempted to ensure the
presence of this witness, the appellant’s counsel indicated only that he had asked
a colleague to contact the witness, but the colleague had not received a response.
HR at 22:13 to 22:32 (statement of the appellant’s counsel, file 5). The
administrative judge explained that, because neither party had subpoenaed this
particular witness and the deadline to do so had passed, the witness could not be
called. HR at 22:35 to 22:58 (statement of the administrative judge, file 5).2
Thus, the appellant was not deprived of his right to question this witness insofar
as he could have subpoenaed her, but he failed to do so. See Lohr v. Department
of the Air Force , 24 M.S.P.R. 383, 386 (1984). Moreover, if the appellant was
surprised by the agency’s failure to call this witness at the hearing, he could have
requested a continuance in order to obtain her testimony; however, he did not. Id.
To the extent the appellant faults his attorney for failing to either subpoena the
witness or request a continuance, PFR File, Tab 4 at 9, his contention is
unavailing as the Board has routinely held that appellants are responsible for the
actions and inactions of their chosen representatives, see, e.g., Sparks v. U.S.
Postal Service, 32 M.S.P.R. 422, 425 (1987).2
The appellant contends that the administrative judge erred by “limiting
[his] witnesses.” PFR File, Tab 4 at 5. The appellant initially suggests that he
requested the testimony of two witnesses, but the administrative judge denied his
request. Id. However, he later concedes that, through his attorney, he agreed to
withdraw these two witnesses. Id. at 10. Further, following a prehearing
conference in which both the appellant and his representative participated, the
administrative judge issued an order wherein she summarized, among other
things, the appellant’s withdrawal of these two proffered witnesses. IAF, Tab 19
at 1, 6. The administrative judge advised the parties to “carefully review [the]
summary and order,” explaining that, if either party believed that her summary
was incorrect, they must notify her by a specific date. Id. at 1, 8. She explained
that, in the absence of such notice and good cause, the order would not be
modified. Id. at 8. The appellant never filed such notice or otherwise indicated
that the administrative judge’s summary was incorrect. See Parker v. Department
of Veterans Affairs , 122 M.S.P.R. 353, ¶ 20 (2015) (finding the appellant’s
2 The appellant provides written statements from this witness dated after the issuance of
the initial decision. PFR File, Tab 9 at 6-9. Insofar as these statements do not
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.”).3
contention that the administrative judge had improperly denied two of her witness
requests unavailing when the appellant did not object to the administrative
judge’s summary of the parties’ prehearing conference, which indicated that the
appellant had not requested any witnesses). To the extent the appellant faults his
attorney for either withdrawing these witnesses or failing to object to the
administrative judge’s order, his contention is unavailing. See Sparks,
32 M.S.P.R. at 425.
The appellant alleges that the agency failed to timely provide certain
documents. PFR File, Tab 4 at 5, 10-11. The appellant appears to be reasserting
an argument that he first raised at the hearing, i.e., that his due process rights
were violated because the deciding official relied on information that the agency
failed to timely provide him. IAF, Tab 20 at 1-3. We believe he contends that,
although the agency timely provided him with the Report of Investigation (ROI)
issued by the agency’s Office of the Inspector General (OIG), it did not timely
provide him with five handwritten sworn witness statements that were exhibits to
the ROI. PFR File, Tab 4 at 11; IAF, Tab 10 at 52-53, 75-78, 131-38, 148-59,
236-38, 241-44.3 The Board has found that a deciding official violates an
employee’s constitutional due process rights when he relies on new and material
ex parte information as a basis for his decision on either the merits of a proposed
charge or the penalty to be imposed. See Mathis v. Department of State ,
122 M.S.P.R. 507, ¶ 6 (2015). Here, we discern no basis to disturb the
administrative judge’s conclusion that the appellant failed to show that the agency
violated his due process rights. ID at 29-33. The administrative judge found,
based on a credibility determination, that the deciding official considered only
information that the agency had timely provided to the appellant, i.e., the
deciding official did not consider any ex parte information. ID at 17, 32. The
deciding official specifically testified that he could not recall reviewing any
3 The appellant references sworn statements from five witnesses, PFR File, Tab 4 at 11;
however, one of the five witnesses that he enumerates declined to provide a sworn
written statement, IAF, Tab 10 at 140. 4
handwritten witness statements. IAF, Tab 26, Hearing Recording at 5:12 to 5:35
(testimony of the deciding official, file 1). The Board must defer to an
administrative judge’s credibility determinations when they are based, explicitly
or implicitly, on the observation of the demeanor of witnesses 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). We find no reason to overturn the administrative judge’s findings on
this issue.
The appellant avers that the agency committed harmful procedural error by
improperly using information from events that transpired between 2006 and 2008.
PFR File, Tab 4 at 12. Here, we believe the appellant is alleging that, in 2006, he
cooperated with an agency OIG investigation, after which he became a
“management scapegoat” and a retaliatory sexual harassment claim was levied
against him. PFR File, Tab 4 at 12, Tab 9 at 16-18; IAF, Tab 10 at 181-222. The
appellant alleges that he was ultimately “exonerated on all charges” related to this
claim, and that, in 2008, the agency agreed to destroy the “case records files”
related to this claim; however, the agency provided these documents as part of its
response file, thereby evincing that it had failed to destroy the documents. PFR
File, Tab 4 at 12, Tab 9 at 10-14; IAF, Tab 10 at 181-222, Tab 16 at 4. Pursuant
to 5 U.S.C. § 7701(c)(2)(A), the Board will not sustain an agency’s decision if the
appellant “shows harmful error in the application of the agency’s procedures in
arriving at such decision.” A procedural error is harmful when the record shows
that an error by the agency was likely to have caused the agency to reach a
conclusion different from the one it would have reached in the absence or cure of
the error. Pumphrey v. Department of Defense , 122 M.S.P.R. 186, ¶ 10 (2015);
5 C.F.R. § 1201.4(r). Here, to the extent the appellant alleges that the agency’s
failure to destroy these documents constituted harmful procedural error, we find
his contention unavailing. Indeed, the appellant provides the parties’ 2008
agreement and associated documents; however, nothing therein supports his5
assertion that the agency relied on information that should have been purged from
its records. PFR File, Tab 9 at 10-14. The settlement agreement indicates only
that the agency would “remove all discipline from [the appellant’s] current and
past records.” Id. at 13. In imposing his removal, the agency did not rely on any
“discipline” or incidents from 2006-2008. IAF, Tab 8 at 52-56, Tab 9 at 7-19.
The record reflects that the OIG interviewed a witness in November 2017 who
referred to her 2007 complaint alleging inappropriate behavior by the appellant.
IAF, Tab 10 at 39-40, 179-80. The ROI summarized this interview and identified
the memorandum of that interview and a 2007 fact-finding investigation as
exhibits. Id. at 39-40, 51-52, 179-222. The appellant has failed to show that the
agency committed any error in this regard. In particular, we find that the
appellant has shown no error under the 2008 settlement agreement. Moreover,
even assuming that the agency erred by failing to purge the subject documents,
the appellant has failed to explain how this alleged failure caused the agency to
reach a different conclusion. There is no indication that the deciding official
received the underlying investigatory documents or considered the 2007 claim to
constitute prior discipline.4 IAF, Tab 8 at 55-56. Thus, we discern no basis to
disturb the initial decision.
The appellant states in his petition that he “has now requested 3 times for a
Whistle-blowers investigation to be done.” PFR File, Tab 4 at 12 (punctuation as
in original). With his reply, he indicates that he “had initially requested a
Whistle-Blowers investigation on the Proposed Letter of Removal,” and he
explains that, following the issuance of the initial decision, he appealed for
intervention from Attorney General William Barr because he feels that he has
4 The decision letter references the appellant’s “lack of active discipline.” IAF, Tab 8
at 56 (emphasis added). Based on the record, we do not believe that the deciding
official considered any prior discipline, much less anything related to the events
transpiring between 2006 and 2008; rather, we believe that the deciding official made
this statement in response to the appellant’s written reply to the notice of proposed
removal wherein the appellant proffered that he “ha[d] no active discipline on record.”
Id. at 64 (emphasis added). 6
“been retaliated due to [his] previous Whistle -Blowers cooperation with the
[agency] OIG.” PFR File, Tab 9 at 15-19 (grammar and punctuation as in
original). To the extent the appellant is alleging that the agency’s removal action
was in reprisal for his cooperation with the 2006 OIG investigation, a different
outcome is not warranted as he fails to explain why he did not raise this argument
before the administrative judge.5 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).
The appellant disagrees with many of the administrative judge’s factual
findings and he contends that the agency failed to prove its charges; indeed, a
substantial portion of his petition for review is devoted to his alternative version
of events and his independent assessment of the credibility of the testifying
witnesses. PFR File, Tab 4 at 5-11. We have considered his assertions in their
entirety; however, his arguments do not warrant a different outcome. 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 made reasoned conclusions); Broughton
v. Department of Health & Human Services , 33 M.S.P.R. 357, 359 (1987).
The appellant also provides, for the first time, medical records tending to
show that he was experiencing physical ailments, to include high blood pressure,
on November 7, 2016. PFR File, Tab 4 at 14-17. The appellant seemingly
provides these documents to show that he was not at work during some of the
5 At the bottom of the agency’s notice of proposed removal, the appellant wrote that he
was “Requesting Whistle blowers Protection” because an OIG Special Agent harbored
retaliatory animus against him. IAF, Tab 9 at 19 (punctuation as in original). However,
a different outcome is not warranted as the appellant, who was represented by counsel
before the administrative judge, did not raise this issue on his initial appeal form, IAF,
Tab 1, in his affirmative defenses pleading, IAF, Tab 16 at 4, or in his prehearing
submission, IAF, Tab 17 at 4-7. Accordingly, the administrative judge did not address
this allegation in her initial decision.7
events underlying the agency’s charges against him. Id. at 5. However, the
records predate the initial decision, and the appellant provides no explanation as
to why he did not file this evidence with 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 medical records are immaterial
insofar as the agency did not allege, and the administrative judge did not find,
that the appellant was at work on the date in question; rather, the appellant
contacted subordinate management officials remotely via telephone and text
message. IAF, Tab 8 at 38-39; 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).
The appellant also provides documents suggesting that, after the issuance
of the initial decision, the agency took personnel actions involving two other
agency employees. PFR File, Tab 4 at 18-19. The appellant seemingly provides
one of these documents to suggest that an agency management official involved
in the investigation “took a downgrade” after the issuance of the initial decision;
however, the appellant does not clearly allege the basis for the downgrade and he
provides no discernable explanation as to the relevance of this personnel action.
Id. at 11, 18. Thus, we find that these documents are not of sufficient weight to
warrant a different outcome.6 See Russo, 3 M.S.P.R. at 349.
6 The appellant also provides a page of math homework, which was presumptively
included in error. PFR File, Tab 4 at 13.8
NOTICE OF APPEAL RIGHTS7
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:
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
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.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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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
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 | Wyatt_David_L_CH-0752-19-0271-I-1__Final_Order.pdf | 2024-05-31 | DAVID L. WYATT v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-0752-19-0271-I-1, May 31, 2024 | CH-0752-19-0271-I-1 | NP |
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