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1,300 | https://www.mspb.gov/decisions/nonprecedential/Wright_Margaret_E_AT-0831-19-0179-A-1__Split_Vote_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARGARET E. WRIGHT,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency. DOCKET NUMBER
AT-0831 -19-0179- A-1
DATE: May 30, 2024
Vicki J. Bowers, Jacksonville, Florida, for the appellant.
Cynthia Reinhold and Michael Shipley, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Chairman Harris issues a separate opinion.
Vice Chairman Limon issues a separate opinion.
ORDER
The appellant has filed a petition for review of the addendum initial
decision, which denied her petition for attorney fees. T he two Board members
cannot agree on the disposition of the petition for review. Therefore, the
addendum initial decision now becomes the final decision of the Merit Systems
Protection Board on the issue of attorney fees. Title 5 of the Code of Federal
Regulations, section 1200.3(b) (5 C.F.R. § 1200.3(b)). This decision shall not be
considered as precedent by the Board in any other case. 5 C.F.R. § 1200.3(d).
2
NOTICE OF APPEAL RIGHTS1
You may obtain review of the 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 the 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:
1 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 the final 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
4
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) 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
5
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.2 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
2 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:
Washington, D.C. /s/
Gina K. Grippando
Clerk of the Board
SEPARATE OPINION OF CATHY A. HARRIS
in
Margaret E. Wright v. Office of Personnel Management
MSPB Docket No. AT-0831- 19-0179 -A-1
For the following reasons, I would grant the appellant’s motion for
attorney fees.
The appellant is the surviving spouse of a Civil Service Retirement System
annuitant. Wright v. Office of Personnel Management, MSPB Docket
No. AT-0831- 19-0179 -I-1, Initial Appeal File (IAF), Tab 5 at 23, 29- 30, 32. The
appellant’s husband retired in 2005 and elected a maximum survivor annuity in
favor of the appellant. Id. at 32 -35. The couple divorced in 2010, but remarried
each other in 2015. Id. at 29- 30, 39 -44. Throughout this entire time, the
appellant’s husband continued to receive a reduced annuity. Id. at 23- 24. When
her husband passed away in 2016, the appellant applied for a survivor annuity.
Id. at 25-28.
The Office of Personnel Management (OPM) issued a final decision
denying the appellant’s application. OPM found that the 2010 divorce extinguished the 2005 survivor annuity election, and the appellant’s husband never made further provision for a survivor annuity, either in the divorce decree or by a new election. Id . at 5- 7. On appeal, the administrative judge reversed
OPM’s final decision and ordered OPM to grant the appellant’s application on the basis that OPM failed to show that it satisfied its stat utory notice obligation for
both of the relevant time periods. IAF, Tab 14, Initial Decision (ID); see
5 U.S.C. § 8339 note (Annual Notice to Annuitant of Rights of Election Under
2
Subsecs. (j) and (k)(2) of this Section).1 The initial decision became final when
neither party petitioned for review. See 5 C.F.R. § 1201.113.
The appellant filed a motion for attorney fees. Wright v. Office of
Personnel Management, MSPB Docket No. AT -0831- 19-0179 -A-1, Attorney Fee
File (AFF), Tab 1. After the record closed, the administrative judge issued an
addendum initial decision denying the appellant’s request on the basis that fees were not warranted in the interests of justice. AFF, Tab 8, Addendum Initial Decision (AID). The appellant has filed a petition for review, the agency has
replied to the petition for review, and the appellant has filed a reply to the
agency’s response. Petition for Review (PFR) File, Tabs 1, 4- 5.
To establish entitlement to an award of attorney fees under 5 U.S.C.
§ 7701(g)(1), an appellant must show that: (1) she was the prevailing party;
(2) she incurred attorney fees pursuant to an existing attorney- client relationship;
(3) an award of fees is warranted in the interest of justice; and (4) the amount of
fees claimed is reasonable. Hart v. Department of Transportation, 115 M.S.P.R. 10, ¶ 13 (2010). In this case, the administrative judge found that the appellant
was the prevailing party in the appeal and that she incurred attorney fees pursuant
to an existing attorney- client relationship. AID at 4. The agency does not
challenge these findings, and for the reasons explained in the addendum initial
1 Within 2 years of a post-retirement divorce, an annuitant may elect to provide a
survivor annuity for his former spouse. 5 U.S.C. § 8339(j)(3). Within 2 years of a post-
retirement remarriage, an annuitant may elect to provide a survivor annuity for his
current spouse. 5 U.S.C.§ 8339(j)(5)(C)(i). The statutory notice obligation requires
OPM to inform each annuitant annually of the requirements under 5 U.S.C. § 8339(j) for
electing a survivor annuity benefit. Brush v. Office of Personnel Management , 982 F.2d
1554, 1559- 60 (Fed. Cir. 1992). If OPM fails to show both that it actually sent the notice
during the relevant time period and that the notice was substantively adequate, then the
annuitant’s manifest intent to provide a survivor annuity will be sufficient to award such
an annuity even absent a timely election. See Vallee v. Office of Personnel Management ,
58 F.3d 613, 615- 16 (Fed. Cir. 1995).
3
decision, we agree. Therefore, the only issues in this case are whether attorney
fees are warranted in the interest of justice, and if so, whether the amount of fees claimed is reasonable.
An attorney fee award by the Board may be warranted in the interest of
justice when, for example: (1) the agency engaged in a prohibited personnel practice; (2) the agency action was clearly without merit or wholly unfounded, or the employee was substantially innocent of the charges; (3) the agency initiated the action in bad faith; (4) the agency committed a gross procedural error; or (5) the agency knew or should have known that it would not prevail on the merits.
Allen v. U.S. Postal Service , 2 M.S.P.R. 420, 434 -35 (1980). “[T]he Board is
accorded substantial discretion in determining when an award is warranted.” Id.
at 433. In this case, the appellant argued that fees were warranted in the interest of justice under Allen categories 2 (clearly without merit or wholly unfounded)
and 5 (the agency knew or should have known that it would not prevail). AFF, Tab 7 at 4- 6. Regarding Allen category 2, the administrative judge found that
OPM’s decision was not clearly without merit or wholly unfounded, and for the reasons explained in the addendum initial decision, I agree. AID at 7. Regarding
Allen category 5, the administrative judge found that the appellant failed to prove
that OPM knew or should have known at the time it issued its final decision that it would not prevail on the merits. ID at 4 -7. I agree with the administrative
judge’s analysis of Allen category 5 as far as it goes. However, for the reasons
explained below, I would find that the administrative judge took too narrow a
view of this category.
Based on a careful analysis of the legislative history of 5 U.S.C.
§ 7701(g)(1), the Board in Allen formulated a list of circumstances, viz. the five
“Allen categories,” to serve as a guide for determining whether the interest of
justice standard has been met in a given case. 2 M.S.P.R. at 428- 35. The fifth
category is most relevant to the instant appeal and provides that fees may be
warranted in the interest of justice “[w]here the agency ‘knew or should have
4
known that it would not prevail on the merits’ when it brought the proceeding.”
Allen , 2 M.S.P.R. at 435 (quoting Senator Mathias, Transcript of Senate
Committee on Governmental Affairs’ Mark- up Session on S. 2640, 95th Cong.,
2d Sess., 124 (1978)). Because the main text of the Allen decision discusses the
circumstances that existed “when [the agency] brought the proceeding,” the administrative judge focused his analysis on the information known or readily available to OPM at the time it issued its final decision. AID at 4- 7.
Nevertheless, the Board in Allen explicitly noted that category 5 “may include
circumstances in which the agency prepared or presented its case so negligently as to make it a foregone conclusion that the action could not be sustained on the
record established before the Board.” 2 M.S.P.R. at 435 n.37. Such
circumstances are present here. The Board has never explicitly found that the
Allen footnote does not apply to OPM, and I believe that it should apply,
particularly in these circumstances.
An appellant seeking retirement benefits bears the burden of proving
entitlement to those benefits by preponderant evidence. Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140 -41 (Fed. Cir. 1986); 5 C.F.R.
§ 1201.56(a). Apart from providing the standard agency response required under
5 C.F.R. § 1201.25, essentially all that OPM had to do to prevail in this appeal was file copies of the annual election notices that it sent to all annuitants in the 2 years following the 2010 divorce and the 2 years following the 2015
remarriage, along with a sworn statement that the notices were sent.
2 OPM’s
response file contained evidence sufficient to show that it sent election notices to
all annuitants on its rolls every December during the relevant time period. ID
at 5; IAF, Tab 5 at 21- 22. OPM’s response file also contains a copy of its
2 This assumes that OPM’s 2010 and 2011 notices were sufficient to notify annuitants of
their election rights. If this assumption is incorrect, then this case would still fall
under Allen category 5 on the basis that OPM knew or should have known that it would
not prevail before the Board.
5
December 2015 election notice, which was substantively sufficient to satisfy the
notice requirements of 5 U.S.C. § 8339.3 ID at 5; IAF, Tab 5 at 8- 10. However,
the agency file did not contain copies of the election notices that it mailed in 2010 and 2011. At the prehearing conference, the administrative judge explicitly
informed OPM that the annual notices would be an issue, and he specifically told
OPM that it needed to file copies of the annual notices for the 2 years following the 2010 divorce. IAF, Tab 9 at 3- 4 & n.1. This notice went beyond that which
an agency can normally expect to receive in a Board appeal, but OPM still neglected to file the evidence that the administrative judge identified. The Board has found, in similar circumstances, that attorney fees were warranted in the interest of justice. See e.g. , Cox v. U.S. International Trade Commission ,
15 M.S.P.R. 455, 460 (1983) (finding fees in the interest of justice when, in a
restoration appeal, the agency relied on a provision of the Federal Personnel Manual that did not actually exist and which the Board had rejected); Compton v.
Department of Energy, 9 M.S.P.R. 450, 451- 52 (1982) (finding fees in the interest
of justice when the agency failed to provide any evidence that the reduction in force competitive area designated for the appellant was one “in which employees
are assigned under a single a dministrative authority,” as required under 5 C.F.R.
§ 351.402(b)). As the Board stated in Trowell v. U.S. Postal Service :
If an agency is not prepared to take a[n] action seriously enough to
present its case with at least a minimal degree of competence, then in
the interest of justice to all concerned it should not initiate the action to begin with. The interest of justice does not warrant the imposition
on appellants of the legal costs of such an unnecessary and
unjustified burden.
2 M.S.P.R. 600, 603 (1980).
3 The appellant’s husband passed away in August 2016, which was before the 2016
election notice would have been sent, so the contents of that notic e are immaterial. IAF,
Tab 5 at 25.
6
For these reasons, I would find that attorney fees are warranted in the
interest of justice and remand for the administrative judge to determine the
appropriate amount of fees to award.
/s/
Cathy A. Harris
Chairman
SEPARATE OPINION OF RAYMOND A. LIMON
in
Margaret E. Wright v. Office of Personnel Management
MSPB Docket No. AT-0831- 19-0179 -A-1
The
key issue in this case is whether the appellant, who prevailed in her
retirement appeal, has shown that attorney fees are warranted in the interest of
justice under Allen v. U.S. Postal Service , 2 M.S.P.R. 420, 434 -35 (1980).
Category 5 of Allen, which is most applicable here, provides that attorney fees are
warranted in the interest of justice if the agency knew or should have known that
it would not prevail on the merits when it brought the proceeding. Id. at 435.
The Board has approached the “knew or should have known” question in
retirement cases differently from the way it has addressed that inquiry in adverse
action cases, taking into account the fact that the Allen categories were developed
within the context of an adverse action appeal. See Simmons v. Office of
Personnel Management, 31 M.S.P.R. 559, 564 -65 (1986). Moreover, it is the
appellant, rather than the agency, who initiates the proceedings in the retirement
context and who submits most of the record evidence in the employee -initiated
application for retirement. Id. at 566; see Kent v. Office of Personnel
Management , 33 M.S.P.R. 361, 366- 67 (1987). Thus, the Board has long held
that it looks at the evidence that was before the Office of Personnel Management
(OPM) when it made its decision in determining whether OPM knew or should
have known that it would not prevail on the merits in a Board appeal, and that it is “concerned with the nature and the weight of evidence provided by an
appellant to OPM to establish his entitlement to a retirement annuity, as well as
OPM’s evaluation of that evidence.” Kent, 33 M.S.P.R. at 367; see, e.g., Holmes
v.O
ffice of Personnel Management, 99 M.S.P.R. 330, ¶ 9 (2005). In determini ng
whet
her an award is warranted under this category, the Board will consider
2
whether OPM was negligent in processing the application, lacked a reasonable or
supportable explanation for its position, or ignored clear, unrebutted evidence that the appellant satisfied the criteria for a benefit. Holmes , 99 M.S.P.R. 330,
¶ 9.
Here, the administrative judge reversed OPM’s decision on the merits
based upon a finding that, when the case was being adjudicated before the Board, OPM did not submit into the record a copy of the 2010 -11 notices it had sent to
the decedent, and thus was unable to prove that the content of those notices was adequate to inform the decedent of the election requirements. The notice that OPM did submit from 2015 was deemed not sufficient as to the earlier notices because the form on which the 2015 notice was printed indicated that it had been
revised in 2015. Despite this finding on the merits, the administrative judge
denied the appellant’s motion for attorney fees. I would affirm the addendum
initial decision.
As found by the administrative judge, OPM had a reasonable and
supportable basis for denying the appellant’s application for a survivor annuity because the divorce decree did not provide for one and the decedent did not elect such an annuity, either within 2 years after his divorce or within 2 years after his
remarriage. As the administrative judge further noted, the appellant never argued
before OPM in her request for reconsideration that the decedent had failed to make such an election because he did not receive adequate notice of the election requirements. OPM, therefore, did not have a basis to look into its notices when it issued its final decision. Under these circumstances, I agree with the administrative judge that OPM was not negligent in processing the retirement
application, nor did it lack a reasonable or supportable explanation for denying
the application or ignore clear, unrebutted evidence that the appellant satisfied
the criteria for a benefit.
Even assuming that all of the statements set forth in Allen apply equally to
retirement cases, this case does not present a situation in which OPM prepared or
3
presented its case so negligently as to make it a foregone conclusion that the
action could not be sustained on the record established before the Board. See Allen , 2 M.S.P.R. at 435 n.37. Cases awarding fees on that basis in the adverse
action context have involved situations in which the agency utterly failed to
provide any evidence in support of its action or provided “extremely little
evidence” in support of its action. Compton v. Department of Energy, 9 M.S.P.R.
450, 451- 52 (1982); see, e.g., Trowell v. U.S. Postal Service, 2 M.S.P.R. 600,
601- 02 (1980). By contrast, the Board has found that fees are not warranted
in
the in
terest of justice under this standard when an agency met part of its burden
of proof but not all of it, or presented evidence in support of its charges but thatevidence was found to be lacking in probative value when compared with the
appellant’s presentation. See, e.g., Anderson v. Department of Health and Huma
n
S
ervices , 25 M.S.P.R. 33, 35 (1984); Borninkhof v. Department of Justice, 11
M.S.
P.R. 177, 179 (1982) .
Here,
as found by the administrative judge, the agency established that it
sent out notices to the decedent during both relevant periods, and that the notice
for the second period was adequate. But OPM did not provide the actual notice for the first period, so the administrative judge found that its adequacy could not
be determined. That, together with the appellant’s proof that the decedent intended to continue the survivor annuity, was enough to satisfy the appellant’s burden of proof as to entitlement to the survivor annuity. Any failure by OPM here, even if an adverse- action type analysis is applied, is more similar to the
situations that the Board addressed in Anderson and Borninkhof than the total
failure or bad faith scenarios in Compton and Trowell. OPM did not, therefore,
act so negligently as to make it a foregone conclusion that its action could not be
sustained.
4
Accordingly, I agree with the administrative judge that fees are not
warranted under the “knew or should have known” category contemplated in
Allen .
/s/
Raym
ond A. Limon
Vice Chairman | Wright_Margaret_E_AT-0831-19-0179-A-1__Split_Vote_Order.pdf | 2024-05-30 | MARGARET E. WRIGHT v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0831, May 30, 2024 | AT-0831 | NP |
1,301 | https://www.mspb.gov/decisions/nonprecedential/Wood_TanyaDA-1221-19-0128-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TANYA WOOD,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DA-1221-19-0128-W-1
DATE: May 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Eloise R. Stripling , Cibolo, Texas, for the appellant.
Heather Hathaway and Charles Raymond Vaith , Randolph AFB, 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 her individual right of action appeal as barred by res judicata and for
lack of jurisdiction. On petition for review, the appellant disputes the
administrative judge’s finding that she failed to nonfrivolously allege that the
agency subjected her to a personnel action appealable to the Board under the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Whistleblower Protection Act. 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 | Wood_TanyaDA-1221-19-0128-W-1__Final_Order.pdf | 2024-05-30 | TANYA WOOD v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DA-1221-19-0128-W-1, May 30, 2024 | DA-1221-19-0128-W-1 | NP |
1,302 | https://www.mspb.gov/decisions/nonprecedential/Torres_ChristianAT-0752-19-0133-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTIAN TORRES,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
AT-0752-19-0133-I-1
DATE: May 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alexander Martin , Esquire, and Tyler Sroufe , Esquire, Dallas, Texas, for
the appellant.
Julie Anne Miles , Esquire, and Lisa Zito , Esquire, Miami, Florida, 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. 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).
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 | Torres_ChristianAT-0752-19-0133-I-1__Final_Order.pdf | 2024-05-30 | CHRISTIAN TORRES v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. AT-0752-19-0133-I-1, May 30, 2024 | AT-0752-19-0133-I-1 | NP |
1,303 | https://www.mspb.gov/decisions/nonprecedential/Strausbaugh_StephenDA-1221-19-0323-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEPHEN STRAUSBAUGH,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-1221-19-0323-W-1
DATE: May 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stephen Strausbaugh , Carriere, Mississippi, pro se.
Brandi M. Powell , New Orleans, Louisiana, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action appeal for lack of jurisdiction. On
petition for review, the appellant argues that he made protected disclosures of a
violation of law in the grievances he filed with the agency. 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 | Strausbaugh_StephenDA-1221-19-0323-W-1__Final_Order.pdf | 2024-05-30 | STEPHEN STRAUSBAUGH v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-1221-19-0323-W-1, May 30, 2024 | DA-1221-19-0323-W-1 | NP |
1,304 | https://www.mspb.gov/decisions/nonprecedential/Steinberg_JeffreyNY-0752-19-0094-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFFREY STEINBERG,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
NY-0752-19-0094-I-1
DATE: May 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael Ranis , Esquire, Goshen, New York, for the appellant.
Josh Hildreth and Michael Gridley , Alexandria, 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 adverse action appeal with prejudice for failure to prosecute.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
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).
BACKGROUND
The appellant filed the instant appeal arguing that the agency forced him to
involuntarily retire or resign from his position as a GS-13 Patent Examiner.2
Initial Appeal File (IAF), Tab 1 at 1, 7. In processing the appeal, the
administrative judge issued an order instructing the parties to attend a telephonic
status conference. IAF, Tab 6. She then issued a second order directing the
appellant to file evidence and argument amounting to a nonfrivolous allegation
that his claim of involuntary resignation or retirement was within the Board’s
jurisdiction. IAF, Tab 14 at 3. The appellant failed to appear for the status
conference and did not submit a response to the administrative judge’s order to
file evidence and argument. IAF, Tab 15. The administrative judge then issued a
third order which contained two separate orders—one order to the appellant to
file a pleading demonstrating good cause for his failure to comply with the
scheduling order and another order to both parties instructing them to attend a
rescheduled status conference. Id. The appellant did not respond to the order and
did not appear for the rescheduled status conference. IAF, Tab 16. The
2 In one place in his initial appeal form, the appellant stated that he suffered a
“termination of employment and involuntary retirement,” and in another place, he
checked a box indicating that he suffered an “involuntary resignation.” Initial Appeal
File, Tab 1 at 7. 2
administrative judge issued an order and summary of the conference call
indicating that, because the appellant had failed to follow four Board orders, she
planned to dismiss his appeal. Id. She provided both parties with 5 days to
object and informed them that her orders and findings therein would become final
and would not be modified without a showing of good cause. Id. The appellant
did not object to the administrative judge’s order and findings, and, 6 days later,
the administrative judge issued an initial decision dismissing his appeal for
failure to prosecute. IAF, Tab 17, Initial Decision (ID).
The appellant, through his attorney, has filed a petition for review of the
initial decision. Petition for Review (PFR) File, Tab 1. The attorney explains
that he experienced personal hardship because his wife had experienced serious
health issues for the prior 6 months, and he was her primary caretaker. Id. at 4.
According to the attorney, this led to a lack of care in reviewing the appellant’s
case.3 Id. The agency has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
An administrative judge may impose the sanction of dismissal with
prejudice if a party fails to prosecute or defend an appeal. Leseman v.
Department of the Army , 122 M.S.P.R. 139, ¶ 6 (2015); Chandler v. Department
of the Navy, 87 M.S.P.R. 369, ¶ 6 (2000); 5 C.F.R. § 1201.43(b). The imposition
of such a severe sanction must be used only when necessary to serve the ends of
justice, as when a party has failed to exercise basic due diligence in complying
with an order, or has exhibited negligence or bad faith in his efforts to comply.
Chandler, 87 M.S.P.R. 369, ¶ 6; see Leseman, 122 M.S.P.R. 139, ¶ 6. When an
appellant’s repeated failure to respond to multiple Board orders reflects a failure
to exercise basic due diligence, the imposition of the sanction of dismissal for
failure to prosecute has been found appropriate. Turner v. U.S. Postal Service ,
3 The petition for review also discusses the merits of the alleged involuntary
resignation. PFR File, Tab 1 at 5. Because we affirm the initial decision dismissing the
appellant’s appeal, we do not reach the merits of the appellant’s appeal. 3
123 M.S.P.R. 640, ¶ 16 (2016), aff’d, 681 F. App’x 934 (Fed. Cir. 2017);
Williams v. U.S. Postal Service , 116 M.S.P.R. 377, ¶ 9 (2011); Heckman v.
Department of the Interior , 106 M.S.P.R. 210, ¶ 16 (2007). Absent a showing of
abuse of discretion, the Board will not reverse an administrative judge’s
determination regarding the imposition of sanctions, including the sanction of
dismissal with prejudice. See Holland v. Department of Labor , 108 M.S.P.R.
599, ¶ 9 (2008).
Here, the administrative judge did not abuse her discretion in imposing the
sanction of dismissal for failure to prosecute. The record supports her finding
that the appellant failed to respond to four Board orders, despite an indication in
the final order prior to the issuance of the initial decision that dismissal for
failure to prosecute would result if he did not establish good cause for failing to
respond to the prior orders. IAF, Tabs 6, 14, 15-16. The Board has affirmed the
dismissal of an appeal for failure to prosecute under similar circumstances.
Benton v. Department of the Interior , 47 M.S.P.R. 200, 203 (1991) (finding no
error in the administrative judge’s dismissal for failure to prosecute when the
appellant repeatedly failed to comply with Board orders despite being placed on
notice that his appeal might be dismissed on the continuing failure to comply with
orders).
Although the appellant’s counsel has urged the Board to consider the
failure to comply with the administrative judge’s orders to be his error and not
the appellant’s, it is well-settled that an appellant is responsible for the error,
action, or inaction of a chosen representative. Smith v. U.S. Postal Service ,
111 M.S.P.R. 341, ¶ 9 (2009); Sofio v. Internal Revenue Service , 7 M.S.P.R. 667,
670 (1981). A limited exception exists where an appellant has proven that his
diligent efforts to prosecute his case were thwarted by the representative’s
deception and negligence. Miller v. Department of Homeland Security ,
110 M.S.P.R. 258, ¶ 11 (2008); Dunbar v. Department of the Navy , 43 M.S.P.R.
640, 643-45 (1990). In this case, the appellant has not asserted nor shown that he4
independently and diligently made efforts to prosecute his case but that his
counsel prevented him from doing so. Therefore, he is bound by his
representative’s inaction. See Smith, 111 M.S.P.R. 341, ¶ 9.
Even considering the appellant’s counsel’s explanation that he had to care
for his ill wife, however, the Board has held that an appellant’s attorney’s need to
assist his wife during her illness does not constitute good cause. See, e.g.,
Murphy v. Department of the Treasury , 91 M.S.P.R. 239, ¶ 8 (2002) (considering
“good cause” in the context of the timeliness of a petition for review). While we
are sympathetic to the appellant’s counsel’s hardships as a result of his wife’s
illness, an appellant nonetheless has a personal duty to keep abreast of his appeal
and to take personal responsibility for prosecuting it. See Rowe v. Merit Systems
Protection Board , 802 F.2d 434, 438 (Fed. Cir. 1986) (stating that an appellant
has “a personal duty to monitor the progress of his appeal at all times and not
leave it entirely to his attorney”). In this case, he did not so do, and we agree
with the administrative judge that dismissal for failure to prosecute is the
appropriate disposition of the appeal.
Accordingly, we DENY the appellant’s 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
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
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.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. 8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 9
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 | Steinberg_JeffreyNY-0752-19-0094-I-1__Final_Order.pdf | 2024-05-30 | JEFFREY STEINBERG v. DEPARTMENT OF COMMERCE, MSPB Docket No. NY-0752-19-0094-I-1, May 30, 2024 | NY-0752-19-0094-I-1 | NP |
1,305 | https://www.mspb.gov/decisions/nonprecedential/Sosa_RolandoDA-0752-19-0146-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROLANDO SOSA,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DA-0752-19-0146-I-1
DATE: May 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Megan Grube , Esquire, and Daniel Murphy , Esquire, Austin, Texas, 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
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
military pay status or his fitness for duty; (2) the administrative judge
impermissibly expanded the meaning of fitness for duty beyond the ability 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).
meet the medical standards or the physical requirements of a position; 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).
¶2Although the appellant argues that the administrative judge impermissibly
expanded the meaning of fitness for duty, the statute defines the phrase and it has
a much broader meaning than the appellant claims. Specifically, the statute
defines “fitness for duty in the reserve components” as referring “only to
military-unique service requirements that attend to military service generally,
including service in the reserve components or service on active duty.” 32 U.S.C.
§ 709(j)(2). Here, the administrative judge concluded, and we agree, that the
determination by the Enlisted Qualitative Retention Board not to retain the
appellant concerns a “military-unique service requirement” attending to the
appellant’s military service as contemplated by the statute. Initial Appeal File,
Tab 18, Initial Decision at 9; see Dyer v. Department of the Air Force , 971 F.3d
1377, 1382 (Fed. Cir. 2020) (finding that an employee’s separation from dual
status employment as a result of his separation from the National Guard following2
the recommendation of a selective retention review board concerned fitness for
duty in the reserve components). 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.2 See 32 U.S.C. § 709(f)(4); Dyer, 971 F.3d at 1382.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
2 Absent an otherwise appealable action, the Board lacks jurisdiction over the
appellant’s due process claim. See Bryant v. Department of the Army , 2022 MSPB 1,
¶ 10.
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
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,4
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 5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Sosa_RolandoDA-0752-19-0146-I-1__Final_Order.pdf | 2024-05-30 | ROLANDO SOSA v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-0752-19-0146-I-1, May 30, 2024 | DA-0752-19-0146-I-1 | NP |
1,306 | https://www.mspb.gov/decisions/nonprecedential/Shen_Michael_Z_CH-0432-20-0544-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL Z. SHEN,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
CH-0432-20-0544-I-1
DATE: May 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael Z. Shen , Troy, Michigan, pro se.
Tiffany J. Hall , Warren, Michigan, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal for unacceptable performance under the agency’s
demonstration project and found that the appellant had proven national origin
discrimination. On petition for review, the agency disputes the finding that it did
not provide the appellant with a reasonable opportunity to improve. The agency
also asserts that the administrative judge erred in finding that the appellant’s
supervisor displayed a bias against the appellant’s national origin. Generally, we
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review.2 Except as
expressly MODIFIED to apply the correct standards for proving a claim of
national origin discrimination, we AFFIRM the initial decision.
¶2In finding that the appellant proved discrimination based on national origin,
the administrative judge relied upon the standard set forth in Savage v.
Department of the Army , 122 M.S.P.R. 612, ¶¶ 36-37 (2015), overruled in part by
Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 23-25. Initial
Appeal File, Tab 105 at 30-31, 33-34. Since the issuance of the initial decision,
however, the Board has issued Pridgen, which clarified and overruled Savage,
and Wilson v. Small Business Administration , 2024 MSPB 3, which otherwise
2 The appellant has filed a petition for enforcement of the administrative judge’s interim
relief order. Petition for Review File, Tab 4. The Board will not entertain a petition for
enforcement of an interim relief order before a final decision is issued; rather, it will
treat such a petition as a motion to dismiss the agency’s petition for review. See
Johnson v. Department of Veterans Affairs , 2023 MSPB 9, ¶ 7. Here, the agency
returned the appellant to his position effective September 1, 2022, has since been
paying him, and has advised him that it intended to process his back pay and associated
benefits effective the date of the initial decision. Under these circumstances, we
decline to dismiss the agency’s petition for review. Upon issuance of this final Board
order, however, the appellant may file a petition for enforcement with the regional
office, in accordance with the order below, if he still believes that the agency has not
provided full interim relief. 5 C.F.R. § 1201.116(g).2
clarified the burdens of proof in Title VII disparate treatment discrimination
claims that arise before the Board. Upon consideration of the facts of this case
under the standards set forth in those more recent cases, we find that the outcome
of this appeal would be the same as that arrived at by the administrative judge.
ORDER
¶3We ORDER the agency to cancel the appellant’s removal and to restore the
appellant effective October 15, 2018. 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.
¶4We 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.
¶5We 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).
¶6No 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 not3
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).
¶7For 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
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your compensatory
damages, including pecuniary losses, future pecuniary losses, and nonpecuniary
losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss
of enjoyment of life. To be paid, you must meet the requirements set out at
42 U.S.C. § 1981a. The regulations may be found at 5 C.F.R. §§ 1201.201,4
1201.202, and 1201.204. If you believe you meet these requirements, you must
file a motion for 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 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
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
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.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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
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).10
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. 11 | Shen_Michael_Z_CH-0432-20-0544-I-1__Final_Order.pdf | 2024-05-30 | MICHAEL Z. SHEN v. DEPARTMENT OF THE ARMY, MSPB Docket No. CH-0432-20-0544-I-1, May 30, 2024 | CH-0432-20-0544-I-1 | NP |
1,307 | https://www.mspb.gov/decisions/nonprecedential/Rodriguez_Kuauhtemoc_I_DE-1221-19-0016-W-3__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KUAUHTEMOC I. RODRIGUEZ,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-1221-19-0016-W-3
DATE: May 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tom Devine , Esquire, Jack Kolar , Esquire, Elizabeth Paukstis , Esquire, and
Don Aplin , Esquire, Washington, D.C., for the appellant.
Alfred Steinmetz , Esquire, Washington, D.C., for the agency.
Maxine N. Romero , Esquire, Phoenix, Arizona, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1The appellant has filed a petition for review and the agency has filed a cross
petition for review of the initial decision, which granted in part and denied in part
the appellant’s request for corrective action in this individual right of action
(IRA) appeal. The appellant initially presented approximately 40 alleged
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).
whistleblowing disclosures or activities spanning July 2014 to April 2017, and
even more alleged retaliatory personnel actions over roughly the same period for
consideration. Rodriguez v. Department of Veterans Affairs , MSPB Docket No.
DE-1221-19-0016-W-3, Refiled Appeal File, Tab 96, Initial Decision (ID) at 5-9.
He eventually withdrew most of the alleged personnel actions to narrow the issues
for adjudication. ID at 19-20. Of those which remained, the administrative judge
found that the appellant met his jurisdictional burden for 36 alleged disclosures or
activities, ID at 12-16, and 13 alleged personnel actions, ID at 18-20.
¶2On the merits, the administrative judge found that the appellant met his
burden of proving that 32 of his disclosures or activities were protected,
ID at 54-56, and that his whistleblowing was a contributing factor in 5 personnel
actions, ID at 121-22. The administrative judge then found that the agency
proved that it would have taken some but not all those same personnel actions in
the absence of the appellant’s whistleblowing. In particular, he found that the
agency did not meet its burden regarding a “fully successful” rating in the
appellant’s fiscal year (FY) 2016 performance evaluation, ID at 126-29, and
another “fully successful” rating in the appellant’s FY 2017 performance
evaluation, ID at 129-33. Conversely, the administrative judge found that the
agency did meet its burden regarding an April 2016 denial of temporary
promotion, ID at 133-40, an April 2016 denial of detail assignment, ID at 140-47,
and a March 2017 proposed reprimand, ID at 147-53.
¶3On petition for review, the appellant argues that the agency did not meet its
burden of rebutting his prima facie case of whistleblower reprisal regarding the
April 2016 denial of temporary promotion, the April 2016 denial of detail
assignment, Rodriguez v. Department of Veterans Affairs , MSPB Docket
No. DE-1221-19-0016-W-3, Petition for Review (PFR) File, Tab 3 at 8-27, or the
March 2017 proposed reprimand, id. at 27-28.2 He also argues that the Board
2 Many of the appellant’s arguments on review are based on assertions that the
administrative judge ignored or overlooked important evidence. E.g., PFR File, Tab 3
at 10, 12, 15. But an administrative judge’s failure to mention all of the evidence of2
should remand his claim of a retaliatory hostile work environment for further
adjudication. Id. at 6-7 n.1 (citing ID at 105-07). The appellant does not
challenge any of the administrative judge’s other findings about jurisdiction or
the merits.
¶4In its cross petition, the agency argues that the appellant’s IRA appeal was
untimely filed and that the administrative judge erred by applying equitable
tolling. PFR File, Tab 8 at 5-6. The agency does not otherwise challenge the
initial decision or the administrative judge’s partial grant of corrective action.
¶5Generally, we 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
record does not mean that he did not consider it in reaching his decision. Marques v.
Department of Health and Human Services , 22 M.S.P.R. 129, 132 (1984), aff’d,
776 F.2d 1062 (Fed. Cir. 1985) (Table). Many other arguments concern the motive to
retaliate for his protected disclosures and activities. E.g., PFR File, Tab 3 at 17-28. On
that point, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has
cautioned against taking too narrow a view of the motive to retaliate for whistleblowing
and has explained that “[t]hose responsible for the agency’s performance overall may
well be motivated to retaliate even if they are not directly implicated by the disclosures,
and even if they do not know the whistleblower personally, as the criticism reflects on
them in their capacities as managers and employees.” Whitmore v. Department of
Labor, 680 F.3d 1353, 1370 (Fed. Cir. 2012). Similarly, the court has instructed the
Board not to limit its consideration of a motive to retaliate to the appellant’s
supervisors, but to examine whether a retaliatory motive could be imputed more broadly
to other officials or entities involved in the decision and that, while there may not be a
personal motive to retaliate, it is error not to consider whether the agency decision
makers had a “professional retaliatory motive” because the appellant’s disclosures
“implicated the capabilities, performance, and veracity of [agency] managers and
employees.” Robinson v. Department of Veterans Affairs , 923 F.3d 1004, 1019 (Fed.
Cir. 2019); Miller v. Department of Justice , 842 F.3d 1252, 1261-62 (Fed. Cir. 2016).
However, although the Federal Circuit has directed the Board to consider the possibility
of a professional retaliatory motive, it has not mandated that we find such motive in
every whistleblower appeal. For instance, in Robinson, after taking into consideration
the administrative judge’s demeanor-based credibility determinations, the court agreed
with the administrative judge that there was no retaliatory motive, either professional or
personal, and found that this factor weighed in favor of the agency. Robinson, 923 F.3d
at 1019-20. Having reviewed all the appellant’s arguments, along with the evidence he
has referenced throughout his petition, we are not persuaded that the administrative
judge ignored evidence or otherwise erred in his analysis.3
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 neither party has
established any basis under section 1201.115 for granting the petition or cross
petition for review. Therefore, we DENY the petition for review and the cross
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
ORDER
¶6Consistent with the administrative judge’s order, we ORDER the agency to
CANCEL the appellant’s FY 2016 and FY 2017 performance evaluations and
provide the appellant with new FY 2016 and FY 2017 performance evaluations by
individuals who are untainted by retaliatory bias, based solely on his performance
during those fiscal years, and adhering to the agency’s performance management
policies, which were in effect at the relevant time. Further, in the event either or
both the appellant’s ratings are increased, we ORDER the agency to provide him
with any associated bonus and any other award, monetary or otherwise, he would
have been entitled to receive. See Kerr v. National Endowment for the Arts ,
726 F.2d 730 (Fed. Cir. 1984). The agency must complete these actions no later
than 20 days after the date of this decision.
¶7We 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). 4
¶8No 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).
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, reasonable5
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 RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 7
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 8
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 9
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C10
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. | Rodriguez_Kuauhtemoc_I_DE-1221-19-0016-W-3__Final_Order.pdf | 2024-05-30 | KUAUHTEMOC I. RODRIGUEZ v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-1221-19-0016-W-3, May 30, 2024 | DE-1221-19-0016-W-3 | NP |
1,308 | https://www.mspb.gov/decisions/nonprecedential/Robinson_Sheri_T_NY-0752-19-0024-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHERI T. ROBINSON,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
NY-0752-19-0024-I-1
DATE: May 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence A. Berger , Esquire, Glen Cove, New York, for the appellant.
Susan C. Amundson , Arlington, 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 that
sustained her reduction in grade and pay under 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 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).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you3
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 4
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Robinson_Sheri_T_NY-0752-19-0024-I-1__Final_Order.pdf | 2024-05-30 | SHERI T. ROBINSON v. DEPARTMENT OF JUSTICE, MSPB Docket No. NY-0752-19-0024-I-1, May 30, 2024 | NY-0752-19-0024-I-1 | NP |
1,309 | https://www.mspb.gov/decisions/nonprecedential/Nastri_Damian_R_DC-1221-18-0420-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAMIAN NASTRI,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-1221-18-0420-W-1
DATE: May 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Damian R. Nastri , Springfield, Virginia, pro se.
Lauren Adkins , Alexandria, Virginia, 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
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
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. Except as expressly MODIFIED to
provide an alternate basis for dismissing the appeal for lack of jurisdiction, we
AFFIRM the initial decision.
BACKGROUND
¶2In March 2014, the appellant filed a complaint with the Office of Special
Counsel (OSC) alleging that the agency took personnel actions against him in
retaliation for making protected disclosures. Initial Appeal File (IAF), Tab 1
at 54, 65. On January 23, 2018, OSC issued the appellant a close-out letter,
informing him of his right to seek corrective action from the Board. Id. In the
letter, OSC indicated that the appellant alleged that the agency “retaliated against
[him] for disclosing information described in our whistleblower statute, 5 U.S.C.
§ 2302(b)(8),” and that the “disclosures of information and personnel actions that
form the bases of [his] OSC complaint are set forth in [his] original complaint
and the numerous submissions [he has] made to this office since that filing.” Id.
¶3The appellant subsequently filed the present appeal, which the
administrative judge found to be timely filed. IAF, Tabs 1, 13. Thereafter, the
administrative judge issued a detailed jurisdictional order, explaining the
appellant’s jurisdictional burden and instructing him to produce evidence and
argument establishing the Board’s jurisdiction over his appeal. IAF, Tab 15.
In the order, she specifically instructed the appellant to provide evidence that he2
exhausted his whistleblower claims with OSC, emphasizing that the Board may
only consider the precise whistleblowing disclosures and personnel actions that
were brought to the attention of OSC. Id. at 3. She also informed him that he
must show that he raised with OSC the protected disclosures, protected activity,
and personnel actions that he sought to litigate before the Board and that there
were no exceptions to this requirement. Id. at 9. The administrative judge
granted the appellant’s request for an extension of time to respond to the
jurisdictional order, providing him a 90-day extension. IAF, Tab 26 at 4.
The appellant timely submitted a response, but he did not substantively address
the jurisdictional issue. IAF, Tab 39. As a result, the agency moved the
administrative judge to dismiss the appeal for lack of jurisdiction.
IAF, Tabs 39-40.
¶4As explained in detail by the administrative judge in the initial decision,
during the course of the proceedings below, the appellant filed several motions
and other pleadings in which he, among other things, requested to stay
proceedings and remand his appeal to OSC, requested several protective orders,
sought to recuse agency counsel, sought reconsideration of his request for
protective orders, requested that the administrative judge certify an interlocutory
appeal on all of these matters, sought a dismissal without prejudice, requested
that the administrative judge disqualify herself from the appeal, and again
requested that the administrative judge certify an interlocutory appeal on these
matters. IAF, Tabs 1, 4, 12, 20-21, 29, 36, 39, 42, 45, Initial Decision (ID).
The administrative judge denied these requests. IAF, Tabs 14, 25-26, 30, 34, 38,
41, 44.
¶5Without holding a hearing, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction. ID at 1. She found that,
although the appellant established that he filed a complaint with OSC in
March 2014, he failed to specify what particular claims he raised in his complaint
vis-à-vis the claims he raised in his appeal. ID at 6. She indicated that the3
appellant referenced a letter that he alleged that he received from OSC in 2016,
stating that his initial OSC “complaint memorandum was 221 single-spaced pages
long and was supplemented . . . totaling several thousand pages,” and included
“multiple violations of 5 U.S.C. § 2302(b)(1), (4), (5), (6), (8), (9), (10), (11),
(12), (13); 5 U.S.C. § 2302(c); and 5 U.S.C. § 1216(a)(3).” ID at 7; IAF, Tab 1
at 62. She also indicated that the appellant alleged that the letter concluded,
“[d]ue to the volume of [his] complaint and the breadth of [his] allegations,
OSC focused the investigation on two sets of substantive, discrete personnel
actions.” ID at 7; IAF, Tab 1 at 62-63. She further stated that the appellant
referenced another, undated letter from OSC in which OSC indicated, “[b]ecause
[he had] alleged hundreds of prohibited personnel practices in [his] complaint, it
is not practical for me to list them all here.” ID at 7; IAF, Tab 1 at 63.
She concluded that, even if the appellant submitted voluminous documentation to
OSC, his appeal did not contain enough information to ascertain what particular
claims he exhausted in that forum. ID at 7. In response to the appellant’s
argument that he could not be expected to provide the Board with evidence of
exhaustion due to the breadth of his claims and the alleged thousands of pages he
submitted to OSC during its investigation, the administrative judge noted that she
granted far more time than typically allotted to respond to her jurisdictional
notice and that the requirements set forth in her order were clear, reasonable, and
necessary. ID at 8. She concluded that, because the appellant failed to
substantively respond to her order or otherwise provide the required information,
he failed to prove that he exhausted with OSC and that, therefore, the appeal must
be dismissed. Id.
¶6The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has replied in opposition. PFR File, Tab 3. 4
DISCUSSION OF ARGUMENTS ON REVIEW
¶7To establish jurisdiction over an IRA appeal, an appellant must show that he
exhausted his administrative remedies before OSC and make the following
nonfrivolous allegations: (1) that he made a protected disclosure described under
5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) that 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 under 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. §§ 1214(a)(3), 1221(e)
(1). Conclusory, vague, or unsupported allegations are insufficient to qualify as
nonfrivolous allegations of IRA jurisdiction. Mason v. Department of Homeland
Security, 116 M.S.P.R. 135, ¶ 7 (2011). If the appellant establishes Board
jurisdiction over his IRA appeal by exhausting his remedies before OSC and
making the requisite nonfrivolous allegations, he has the right to a hearing on the
merits of his claim. Id.
¶8Under 5 U.S.C. § 1214(a)(3), an appellant 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). To satisfy this requirement,
an appellant must provide to OSC a sufficient basis to pursue an investigation that
might lead to corrective action. Chambers v. Department of Homeland Security ,
2022 MSPB 8, ¶ 10. The Board’s jurisdiction is limited to issues raised before
OSC. See Ellison v. Merit Systems Protection Board , 7 F.3d 1031, 1037 (Fed.
Cir. 1993); Coufal v. Department of Justice , 98 M.S.P.R. 31, ¶ 14 (2004). An
appellant may demonstrate exhaustion through his initial OSC complaint,
evidence that he amended the original complaint, including but not limited to
OSC’s determination letter and other letters from OSC referencing any amended
allegations, and the appellant’s written responses to OSC referencing the5
amended allegations. Mason, 116 M.S.P.R. 135, ¶ 8; see McCarthy v. Merit
Systems Protection Board , 809 F.3d 1365, 1374 (Fed. Cir. 2016).
¶9On review, the appellant makes several arguments concerning, among other
things, the administrative judge’s procedural rulings below and her alleged bias
against him, but he fails to challenge the administrative judge’s ruling that he did
not establish that he exhausted his claims with OSC. PFR File, Tab 1. Rather, as
to exhaustion, he claims that the administrative judge’s orders instructing him to
file evidence and argument at the jurisdictional stage were impossible to satisfy,
unlawful, and harassing. Id. at 12-18. In particular, he alleges that the
administrative judge’s instruction for him to provide the Board evidence of
exhaustion at the jurisdictional stage is unlawful because he does not need to
prove the elements of his claim until he receives a hearing on the merits.
Id. at 15-18.
¶10The appellant’s arguments are unpersuasive, as it is well settled that, to
receive a hearing on the merits in an IRA appeal, an appellant must, inter alia,
prove exhaustion by a preponderance of the evidence. Mason, 116 M.S.P.R. 135,
¶ 9; see Miller, 122 M.S.P.R. 3, ¶ 10 (stating that seeking corrective action with
OSC is an important statutory prerequisite to an IRA appeal before the Board).
Here, the administrative judge properly determined that the appellant failed to
meet his burden. Specifically, the lone piece of correspondence from OSC that
the appellant submitted in the appeal was his close-out letter, which referenced
only unidentified disclosures of information under 5 U.S.C. § 2302(b)(8) and
unidentified personnel actions. IAF, Tab 1 at 65. Moreover, the appellant failed
to otherwise identify the whistleblowing disclosures and personnel actions that
were brought to the attention of OSC. Under these circumstances, the
administrative judge properly concluded that the appellant failed to prove that he
exhausted his claims with OSC because he failed to show which of his several
alleged protected disclosures and personnel actions he raised before OSC.
ID at 6-8; see Boechler v. Department of the Interior , 109 M.S.P.R. 638, ¶¶ 9-126
(2008) (dismissing an IRA appeal for failure to exhaust when the appellant’s
evidence of exhaustion did not show that he raised before OSC the same issues
raised in his Board appeal), aff’d, 328 F. App’x 660 (Fed. Cir. 2009).
¶11Nevertheless, even if the appellant could show that he exhausted his
administrative remedies before OSC concerning the disclosures and personnel
actions generically referenced in the close-out letter, he cannot establish that the
Board has jurisdiction over his IRA appeal because he failed to nonfrivolously
allege that he made a protected disclosure under 5 U.S.C. § 2302(b)(8). In the
appellant’s lengthy initial appeal, he alleged that he made over 100 disclosures
concerning the agency’s unlawful, unethical, and criminal actions over a long
period of time, but he did not provide specific information concerning the alleged
disclosures in any coherent manner. IAF, Tab 1. As a result, the administrative
judge issued a jurisdictional order, which provided explicit instructions to the
appellant regarding what he needed to allege to make a nonfrivolous allegation of
a protected disclosure, including the need to identify each disclosure by number,
and indicate the date, substance, and recipients of each disclosure. IAF, Tab 15
at 7. The appellant failed to do so, and we find that his vague and conclusory
allegations contained in the initial appeal do not amount to a nonfrivolous
allegation that he made a protected disclosure under section 2302(b)(8). See, e.g.,
Johnson v. Merit Systems Protection Board , 583 F. App’x 908, 909 (Fed. Cir.
2014) (Table) (finding that it is neither the Board’s nor our reviewing court’s
responsibility to wade through hundreds of pages of materials in search of
allegations establishing jurisdiction);2 Keefer v. Department of Agriculture ,
92 M.S.P.R. 476, ¶ 18 n.2 (2002) (holding that it is not the Board’s obligation to
pore through the record or to construe and make sense of allegations based on
various parts of a voluminous file).
2 The Board has held that it may rely on unpublished decisions of the U.S. Court of
Appeals for the Federal Circuit if it finds the court’s reasoning persuasive. See Herring
v. Department of the Navy , 90 M.S.P.R. 165, ¶ 13 n. * (2001).7
¶12As to the appellant’s arguments on review concerning the administrative
judge’s procedural rulings below and her alleged bias against him, we find them
without merit.3 See, e.g., Defense Intelligence Agency v. Department of Defense ,
122 M.S.P.R. 444, ¶ 16 (2015) (explaining that administrative judges have broad
discretion to regulate the proceedings before them and, absent an abuse of
discretion, the Board will not find reversible error in such rulings); Young v. U.S.
Postal Service, 115 M.S.P.R. 424, ¶ 19 (2010) (stating 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); Keefer v. Department of Agriculture , 92 M.S.P.R. 476, ¶ 7 (2002)
(finding an administrative judge acted within his discretion in declining to certify
a ruling on a recusal motion based on “other disqualification” as an interlocutory
appeal because, on its face, the issue did not involve an important question of
policy or law).
¶13We have reviewed the appellant’s remaining arguments and determined that
they provide no basis to disturb the initial decision.
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
3 In explaining his bias claim, the appellant states that the administrative judge
“recognized [his] handicapped nature” and subsequently retaliated against him during
the proceedings. PFR File, Tab 1 at 22. To the extent that the appellant is raising an
allegation that the administrative judge discriminated against him on the basis of
disability under 5 C.F.R. § 1207.170, he has provided insufficient information
explaining or supporting such a claim. Accordingly, we find that this argument
provides no basis to disturb the initial decision.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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.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 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 | Nastri_Damian_R_DC-1221-18-0420-W-1__Final_Order.pdf | 2024-05-30 | DAMIAN NASTRI v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-1221-18-0420-W-1, May 30, 2024 | DC-1221-18-0420-W-1 | NP |
1,310 | https://www.mspb.gov/decisions/nonprecedential/Jones_Deborah_D_DC-0752-19-0374-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEBORAH D. JONES,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-0752-19-0374-I-1
DATE: May 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Deborah D. Jones , Upper Marlboro, Maryland, pro se.
John T. Koerner , Esquire, 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
sustained her indefinite suspension from her position as a GS-14 Security
Specialist due to the suspension of her access to classified information. On
petition for review, the appellant states that she is not “willing to accept any law”
that prohibits her from Government employment if she does not have a security
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).
clearance. Petition for Review (PFR) File, Tab 1 at 4. She also claims to have
evidence that was not submitted before the record closed below, stating that she
had not received the documents until July 17, 2019. Id. 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.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
2 Despite the appellant’s claim that she has evidence that was not submitted before the
record closed below, and that she was not in receipt of those documents until
July 17, 2019, PFR File, Tab 1 at 3, she has not included any documents in her petition
for review for the Board to determine whether they constitute new and material
evidence.
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
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
http://www.mspb.gov/probono for information regarding pro bono representation3
for Merit Systems Protection Board appellants before the 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,
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 | Jones_Deborah_D_DC-0752-19-0374-I-1__Final_Order.pdf | 2024-05-30 | DEBORAH D. JONES v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-0752-19-0374-I-1, May 30, 2024 | DC-0752-19-0374-I-1 | NP |
1,311 | https://www.mspb.gov/decisions/nonprecedential/Hull_Nicki_L_CH-0831-19-0267-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NICKI L. HULL,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-0831-19-0267-I-1
DATE: May 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Nicki L. Hull , Ankeny, Iowa, pro se.
Alison Pastor , 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 for lack of jurisdiction her appeal of the denial of her application for a
deferred annuity after the Office of Personnel Management (OPM) rescinded the
final decision underlying the appeal. 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, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On petition for review, the appellant does not make any arguments relevant
to jurisdiction. For the reasons discussed in the initial decision, we find that the
administrative judge properly dismissed this appeal for lack of jurisdiction.
Initial Appeal File (IAF), Tab 20, Initial Decision (ID) at 2.2 If the appellant is
dissatisfied with any subsequent OPM reconsideration or final decision regarding
her application for a deferred annuity under either the Civil Service Retirement
System or the Federal Employees’ Retirement System, she may appeal that
decision to the Board. See 5 U.S.C. §§ 8347(d), 8461(e); 5 C.F.R. §§ 831.110,
2 Although OPM’s final decision pertained to the appellant’s eligibility for a deferred
annuity under the Civil Service Retirement System, the initial decision stated that OPM
denied the appellant’s application for a deferred annuity under the Federal Employees’
Retirement System. IAF, Tab 10 at 6-7; ID at 1. However, because the relevant
regulatory provisions regarding Board jurisdiction in retirement matters under either
system are nearly identical, compare 5 C.F.R. § 831.110, with 5 C.F.R. § 841.308, this
misstatement is immaterial to the outcome of this appeal, 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). 2
841.308. Any future appeal must be filed within the time limits set forth in the
Board’s regulations. See 5 C.F.R. § 1201.22(b)(1).3
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
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
3 Although the appellant stated on her initial appeal form that she was appealing OPM’s
January 7, 2016 final decision, she also checked numerous boxes ostensibly indicating
that she was appealing additional agency personnel actions unrelated to her application
for a deferred annuity. IAF, Tab 1 at 2. To the extent the appellant seeks to raise these
claims against her former agency employer, she may do so by filing a new appeal with
the appropriate regional office. We make no findings herein regarding the timeliness
of, or the Board’s jurisdiction over, any such appeal.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
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.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. 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 | Hull_Nicki_L_CH-0831-19-0267-I-1__Final_Order.pdf | 2024-05-30 | NICKI L. HULL v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0831-19-0267-I-1, May 30, 2024 | CH-0831-19-0267-I-1 | NP |
1,312 | https://www.mspb.gov/decisions/nonprecedential/DeBerry_Myron_T_AT-0752-19-0160-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MYRON T. DEBERRY,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
AT-0752-19-0160-I-1
DATE: May 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Christopher D. Brown , Nashville, Tennessee, 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 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
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
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; 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).
We find it undisputed that the appellant’s Unit Commander in the
Tennessee National Guard notified him that he would not be granted an extension
or reenlistment as a result of his physical training failures. Initial Appeal File
(IAF), Tab 7 at 22, Tab 12, Initial Decision (ID) at 3, 5. We further find that the
Tennessee National Guard’s decision to deny the appellant reenlistment as a
result of those failures concerns “military -unique service requirements” attending
to service in the reserve components. See 32 U.S.C. § 709(j)(2); Dyer v.
Department of the Air Force , 971 F.3d 1377, 1382-84 (Fed. Cir. 2020).
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 Board2
consequently lacks jurisdiction over the appeal.2 See 32 U.S.C. § 709(f)(4);
Dyer, 971 F.3d. at 1384.
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
2 The administrative judge found that the appellant failed to raise a nonfrivolous
allegation of jurisdiction. ID at 6. However, because the appellant withdrew his
request for a hearing, he needed to prove jurisdiction by a preponderance of the
evidence, and we find that he did not. IAF, Tab 11; see Axsom v. Department of
Veterans Affairs, 110 M.S.P.R. 605, ¶ 10 (2009 ).
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
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.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | DeBerry_Myron_T_AT-0752-19-0160-I-1__Final_Order.pdf | 2024-05-30 | MYRON T. DEBERRY v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-0752-19-0160-I-1, May 30, 2024 | AT-0752-19-0160-I-1 | NP |
1,313 | https://www.mspb.gov/decisions/nonprecedential/Dean_Donna_J_CH-0841-22-0362-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DONNA DEAN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-0841-22-0362-I-1
DATE: May 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
S. Daniel Coen , Coulterville, Illinois, for the appellant.
Alison Pastor , 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 Office of Personnel Management’s (OPM) reconsideration decision
denying the appellant survivor annuity benefits. On petition for review, the
appellant argues that the administrative judge failed to consider her late
husband’s (the annuitant’s) mental and physical health limitations, which, she
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).
asserts, resulted in his inability to properly elect her as a beneficiary of a survivor
annuity. Petition for Review (PFR) File, Tab 1 at 3-4. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to find that the appellant failed to establish a basis for
waiver of the statutory election requirement, we AFFIRM the initial decision.
Title 5, United States Code, section 8416(b)(1) allows a Federal Employees
Retirement System (FERS) annuitant who was married at the time of retirement
and remarries after retirement to elect, within two years after the remarriage or, if
later, within two years after the death of the former spouse, a survivor annuity for
his new spouse. In the initial decision, the administrative judge correctly found
that it was undisputed that the FERS annuitant—here, the appellant’s deceased
spouse—failed to make such an election. Initial Appeal File (IAF), Tab 31,
Initial Decision (ID) at 4. He considered the appellant’s arguments that OPM
misinformed the deceased annuitant that he could not designate the appellant as a
beneficiary to a survivor annuity until after his former spouse died and failed to
provide him with the forms to make an election or notices regarding the right of
election, but the administrative judge concluded that those arguments “do not
furnish grounds for awarding the appellant a survivor annuity under FERS.” ID2
at 6. In arriving at this conclusion, the administrative judge did not consider
whether the appellant’s arguments constitute a basis for a waiver of the statutory
election requirement set forth in 5 U.S.C. § 8416(b)(1). See Blaha v. Office of
Personnel Management , 106 M.S.P.R. 265, ¶¶ 8-9 (2007) (explaining that
equitable estoppel is available as a possible basis for waiver when a claim for
money from the U.S. Treasury would not result in contravention of law). We do
so here.
The Board has recognized three bases for waiving an election or filing
requirement prescribed by statute or regulation: (1) the statute or regulation may
provide for a waiver under specified circumstances; (2) an agency’s affirmative
misconduct may preclude enforcing the requirement under the doctrine of
equitable estoppel; and (3) an agency’s failure to provide a notice of rights and
the applicable requirements, where such notice is required by statute or
regulation, may warrant waiver of the requirement . See Perez Peraza v. Office of
Personnel Management, 114 M.S.P.R. 457, ¶ 7 (2010). Regarding the first basis,
the statute does not provide for a specific waiver. See 5 U.S.C. § 8416(b).
Concerning the third basis, the administrative judge correctly stated that,
although OPM is obligated under FERS to provide notice to annuitants of election
rights and the procedures and deadlines applicable to making such elections, it is
not required to do so annually. ID at 5. The record suggests that such notice was
provided.2 IAF, Tab 12 at 15-21. Thus, the remaining issue is whether OPM’s
alleged misinformation and failure to provide the deceased annuitant with the
election forms constitute affirmative misconduct such that the doctrine of
2 The appellant disputes that OPM ever provided such notice. IAF, Tab 30, Hearing
Recording (testimony of the appellant). However, OPM submitted an affidavit from an
employee who administers the contract for printing and distribution of forms and
notices for retirement services, wherein the employee certifies that general notices
regarding survivor elections were sent to all annuitants during the period in question in
this appeal. IAF, Tab 12 at 15. The United States Court of Appeals for the Federal
Circuit has regarded such an affidavit as sufficient to satisfy a notice requirement.
See Schoemakers v. Office of Personnel Management , 180 F.3d 1377, 1380-81 (Fed.
Cir. 1999). 3
equitable estoppel applies. The Board has held that negligent provision of
misinformation does not constitute affirmative misconduct, Perez Peraza,
114 M.S.P.R. 457, ¶ 10, and the appellant has not alleged that the OPM
representative knew that the information provided was false. Additionally, we do
not construe any failure on the part of OPM to provide the appropriate election
forms as affirmative misconduct, as those forms are available on OPM’s website,
and the appellant has not asserted that they were inaccessible. Nor has she
alleged that OPM ignored reasonable continued efforts to obtain the forms.
Accordingly, we modify the initial decision to find that the appellant failed to
establish a basis to waive the statutory election requirement.
Regarding the appellant’s argument on review that the administrative judge
failed to consider the deceased annuitant’s mental and physical health limitations
due to his Alzheimer’s disease, we find this argument to be without merit. The
administrative judge explicitly mentioned the deceased annuitant’s Alzheimer’s
disease diagnosis. ID at 2. Further, the Board has held that a retiree’s mental
incompetence during the period in question does not absolve him of a statutory
requirement to elect a survivor annuity during a prescribed timeframe.
See Shaughnessy v. Office of Personnel Management , 43 M.S.P.R. 633, 638
(1990) (explaining that the Board will not inject into a statute an exception for
mentally incompetent persons that would have the effect of excusing a failure to
comply with a statutory provision when the statute provides no such exception,
and the Board is bound by the clear language of the statute); see also
Schoemakers v. Office of Personnel Management , 180 F.3d 1377, 1381-82 (Fed.
Cir. 1999).
Based on the foregoing, we affirm the initial decision as modified. 4
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s7
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Dean_Donna_J_CH-0841-22-0362-I-1__Final_Order.pdf | 2024-05-30 | DONNA DEAN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0841-22-0362-I-1, May 30, 2024 | CH-0841-22-0362-I-1 | NP |
1,314 | https://www.mspb.gov/decisions/nonprecedential/Courtney_Kathy_J_DC-3443-19-0773-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KATHY J. COURTNEY,
Appellant,
v.
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Agency.DOCKET NUMBER
DC-3443-19-0773-I-1
DATE: May 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kathy J. Courtney , Raleigh, North Carolina, pro se.
Anabia Hasan and Yolanda Bruce , 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 with prejudice following her withdrawal of the 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b).
BACKGROUND
On August 22, 2019, the appellant filed an appeal with the Board
indicating, among other things, that she had filed an equal employment
opportunity (EEO) complaint with the agency on May 29, 2018, but had yet to
receive a response. Initial Appeal File (IAF), Tab 1 at 5. With her appeal, the
appellant provided a copy of a July 23, 2019 notice of proposed removal wherein
the agency proposed to remove her from her position as a GS-12 Equal
Opportunity Investigator on the basis of misconduct for absence without leave
(AWOL). Id. at 7-15. She also provided a copy of an August 16, 2019 complaint
addressed to the agency’s Office of the Inspector General wherein she had
alleged, among other things, that the agency’s proposed removal was in reprisal
for her disclosure that the agency was failing to meet assistive technology
industry standards. Id. at 53-54. The appellant requested a hearing on the matter.
Id. at 2.
2 In her initial decision, the administrative judge stated that the Board had jurisdiction
over this matter pursuant to 5 U.S.C. chapter 75; however, because we find that the
appellant withdrew her appeal, the Board need not make a finding on jurisdiction.
Initial Appeal File, Tab 12, Initial Decision at 1. 2
The administrative judge issued an acknowledgment order explaining that it
appeared that the Board lacked jurisdiction over the matter, and she ordered the
appellant and the agency to file evidence and argument regarding jurisdiction.
IAF, Tab 2 at 2-5. The administrative judge further explained that, if the
appellant lacked the requisite evidence and argument necessary to establish Board
jurisdiction, she could elect to withdraw her appeal; however, any such
withdrawal would be an act of finality that would remove the appeal from the
Board’s jurisdiction. Id. at 5-6. The appellant did not timely respond to this
order. The agency responded, contending that the appellant’s proposed removal
was not an appealable action and, to the extent the appellant sought to file an
individual right of action appeal, she had failed to meet the jurisdictional
requirement that she first exhaust her remedies with the Office of Special Counsel
(OSC).3 IAF, Tab 6 at 4-5.
Thereafter, the appellant filed a motion to withdraw her Board appeal,
explaining that she wished to instead proceed with a whistleblower complaint.
IAF, Tab 7 at 6-7. In response, the administrative judge issued a notice denying
the appellant’s request to withdraw because the request was not clear and
unequivocal. IAF, Tab 8 at 1-2. The administrative judge again explained that
the withdrawal of an appeal is an act of finality that removes an appeal from the
Board’s jurisdiction, and she advised the appellant that she could refile her
withdrawal request. Id. Thereafter, the appellant thrice filed an additional
motion to withdraw her Board appeal. IAF, Tab 9 at 5, Tab 10 at 5, Tab 11 at 5.
3 The appellant indicated on her initial appeal form that she had filed a whistleblowing
complaint with OSC on August 16, 2019. IAF, Tab 1 at 4. However, the record does
not contain any evidence that she initiated any matter with that independent agency,
which, among other things, investigates complaints of whistleblower reprisal against
Federal employees. IAF, Tab 8 at 2-3; see 5 U.S.C. § 1214. The appellant has
submitted correspondence dated August 16, 2019, which she apparently considers to be
her whistleblower complaint, but that correspondence is addressed to the Equal
Employment Opportunity Commission’s Office of the Inspector General. IAF, Tab 1
at 53-54, Tab 7 at 9-10. 3
On October 1, 2019, the administrative judge issued an initial decision dismissing
the matter with prejudice. IAF, Tab 12, Initial Decision (ID) at 1-2.
The appellant has filed a petition for review, the agency has responded in
opposition, and the appellant has filed a reply to the agency’s response.
Petition for Review (PFR) File, Tabs 1, 3, 6, 8. In her petition and reply, the
appellant alleges the following: (1) a clarification from her ophthalmologist
made her realize that she had misread prior Board filings; (2) she became aware
of two affidavits written by agency employees that evinced an “inclination to
cover the truth”; and (3) had she known that the agency was represented by a
particular agency attorney she would have hired legal counsel. PFR File, Tab 1
at 10-14, Tab 8 at 4-5. The appellant also provides, for the first time, the two
subject affidavits as well as medical records both predating and postdating the
initial decision. PFR File, Tab 3 at 11-29, 31-57, 59-76. With her reply, the
appellant also provides a copy of the agency’s December 2, 2019 notice of final
decision removing her from her position on the basis of misconduct for continued
AWOL.4 PFR File, Tab 8 at 7-14.
DISCUSSION OF ARGUMENTS ON REVIEW
Generally, the withdrawal of an appeal is an act of finality that has the
effect of removing the appeal from the Board’s jurisdiction. See
Gibson-Michaels v. Federal Deposit Insurance Corporation , 111 M.S.P.R. 607,
¶ 16 (2009). Absent unusual circumstances, such as misinformation or new and
material evidence, the Board will not reinstate an appeal once it has been
withdrawn. Id. However, a relinquishment of one’s right to appeal to the Board
must be by clear, unequivocal, and decisive action. Rose v. U.S. Postal Service ,
106 M.S.P.R. 611, ¶ 7 (2007).
4 On February 26, 2020, the Office of the Clerk of the Board referred this filing to the
Washington Regional Office as a potential new appeal. PFR File, Tab 12 at 1. 4
The appellant’s contention regarding her October 23, 2019 ophthalmological
diagnosis is unavailing.
The appellant contends that an October 23, 2019 clarification from her
ophthalmologist that her ocular disease “is typical of that seen in diabetics made
[her] realize that [her] successive readings” of prior Board filings had been
incorrect. PFR File, Tab 1 at 11. She avers that she thought her withdrawal
“would be set aside” until she had either exhausted the whistleblower process or
received a decision on the notice of proposed removal. Id.
The appellant’s contention does not warrant reinstating her appeal. Here,
the administrative judge twice explained the preclusive effect of withdrawing a
Board appeal, and the appellant nonetheless explicitly requested to withdraw her
appeal. IAF, Tab 2 at 5-6, Tab 7 at 6-7, Tab 8 at 1-2, Tab 9 at 5, Tab 10 at 5,
Tab 11 at 5; see Conde v. Department of the Army , 86 M.S.P.R. 226, ¶ 5 n.1
(2000) (finding unavailing the appellant’s assertion that he did not understand
that his withdrawal was with prejudice when the administrative judge had
repeatedly informed him as much). To the extent the appellant had difficulty
reading or understanding the administrative judge’s two orders regarding the
preclusive effect of withdrawal, she could have raised this issue with the
administrative judge or sought clarity on the issue; however, she did not. See
Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980) (explaining
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). To the extent she
contends that she could not have raised this issue before the administrative judge
because she was unaware of her visual impairment or her reading difficulties until
her October 23, 2019 ophthalmological appointment, we find her contention
unavailing insofar as the corresponding October 23, 2019 medical record that she
provides describes her vision as “stable” and notes “no changes” since her
previous ophthalmological appointment. PFR File, Tab 3 at 11. 5
The appellant’s assertions regarding untruthful affidavits do not warrant
reinstating her appeal.
The appellant alleges that, following the issuance of the initial decision,
she became aware of two untruthful affidavits written by agency employees.
PFR File, Tab 1 at 10, 13 -14, Tab 3 at 31-57, 59-76. She avers that, had she been
aware of these affidavits earlier, she “would not have considered withdrawal of
[her] MSPB [a]ppeal for any reason.” PFR File, Tab 1 at 14. We find this
assertion unavailing. The affidavits postdate the initial decision, and thus are
new evidence. The appellant has not shown how these affidavits are material to
either her underlying case or her decision to withdraw her appeal. We note as
well that at the time she withdrew her appeal, the appellant had not yet received
the EEO Report of Investigation, and could have waited until such evidence was
produced before deciding to withdraw. IAF, Tab 1, at 18. In addition, although
the appellant challenges the veracity of the affidavits and questions the motives
of the affiants as related to her claims of disability discrimination and reprisal,
PFR File, Tab 1 at 10, 13 -14, she does not allege, nor do the affidavits suggest,
that the agency misled her with regards to the withdrawal of her appeal or
otherwise improperly caused her to withdraw her appeal, see Gibson-Michaels ,
111 M.S.P.R. 607, ¶ 16.
The appellant’s assertion regarding the involvement of an agency attorney is
unclear and unavailing.
Lastly, the appellant avers that she did not realize that a particular agency
attorney was involved with her appeal until she received the initial decision and
his name was included in the case caption. PFR File, Tab 1 at 10-11; ID at 1.
She asserts that, had she known of his involvement sooner, she “would have,
without doubt, hired an attorney as well.” PFR File, Tab 1 at 11. We find this
assertion unavailing.
Here, the appellant provides no explanation as to how she was harmed by
the involvement of this particular attorney or why prior knowledge of his6
involvement would have prompted her to engage legal counsel. To the extent she
argues that the agency was unjustly advantaged because it was represented by a
licensed attorney whereas she was not, we find her contention unavailing. See
Walton v. Tennessee Valley Authority , 48 M.S.P.R. 462, 469 (1991)
(finding unavailing an appellant’s suggestion that he was disadvantaged because
the administrative judge “allowed” the agency to be represented by an attorney
when he was represented by a nonattorney representative). Indeed, an agency
may choose to be represented by an attorney or a nonattorney, at its discretion.5
Id.
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
5 On December 2, 2019, and January 3, 2020, the appellant filed requests for leave to
file additional pleadings. PFR File, Tab 7 at 5-6, Tab 10 at 4-5. In her December 2,
2019 request, the appellant neither describes her proffered additional evidence nor
explains how the evidence is material to the outcome of her appeal. PFR File, Tab 7
at 5-6; see 5 C.F.R. § 1201.114(k). We therefore deny the appellant’s December 2,
2019 request. In her January 3, 2020 request, the appellant indicates that she submitted
the agency’s notice of final decision on her proposed removal to the Board on
December 6, 2019, and she explains that she wishes to file a pleading in response to this
notice. PFR File, Tab 10 at 4. Insofar as neither the agency’s notice of final decision
nor the appellant’s response thereto is material to the outcome of this appeal, we deny
the appellant’s January 3, 2020 request for leave. See 5 C.F.R. § 1201.114(k).
However, as stated, the Office of the Clerk of the Board referred the appellant’s
December 6, 2019 pleading, which was placed in the record as a reply to the agency’s
response, to the Washington Regional Office as a potential new appeal. PFR File,
Tab 12 at 1.
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
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The8
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file9
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
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
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Courtney_Kathy_J_DC-3443-19-0773-I-1__Final_Order.pdf | 2024-05-30 | KATHY J. COURTNEY v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, MSPB Docket No. DC-3443-19-0773-I-1, May 30, 2024 | DC-3443-19-0773-I-1 | NP |
1,315 | https://www.mspb.gov/decisions/nonprecedential/Arnold_Karen_L_CH-0752-17-0543-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KAREN L. ARNOLD,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
CH-0752-17-0543-I-1
DATE: May 30, 2024
THIS ORDER IS NONPRECEDENTIAL1
Sterling Deramus , Esquire, Birmingham, Alabama, for the appellant.
A. Katharine J. Kiss , Monique S. Jones , and Eric R. Hammerschmidt ,
Redstone Arsenal, Alabama, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed her removal for absence without leave (AWOL). For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
initial decision, and REMAND the case to the regional office for further
adjudication in accordance with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
¶2The appellant was a GS-14 Attorney Advisor for the agency’s Surface
Deployment and Distribution Command (SDDC) in Brunswick, North Carolina.
Initial Appeal File (IAF), Tab 37 at 3. On August 11, 2014, the appellant
suffered a compensable injury to her foot, and in November 2014, she began
medical telework on a fulltime basis from her family home in Bethlehem,
Pennsylvania. IAF, Tab 10 at 102, Tab 11 at 33, 35, 57-59, Tab 38 at 4.
Meanwhile, due to sequestration budget cuts, SDDC eliminated the appellant’s
position in North Carolina and, on June 12, 2015, offered her an equivalent
position at Scott Air Force Base in Illinois. IAF, Tab 10 at 5-16, 27-29, Tab 37
at 3-4. The agency afforded the appellant multiple extensions to decide on the
offer, and on April 22, 2016, the appellant accepted. IAF, Tab 10 at 27-28,
30-31, 38-45. The agency also afforded the appellant multiple extensions
to report to her new position until it finally arrived at a report date of
March 6, 2017. IAF, Tab 10 at 48, 51, 58, 63-64, 72, Tab 31 at 38, Tab 37 at 4,
Tab 38 at 5. The appellant continued to telework from Pennsylvania in the
interim. IAF, Tab 10 at 93.
¶3The appellant never reported for duty at Scott Air Force Base. IAF, Tab 37
at 4. Instead, each morning beginning on March 6, 2017, the appellant would
email her supervisor simply stating, “I’m out sick today.” IAF, Tab 10 at 76-77,
Tab 19 at 48-50. Eventually, the agency determined that at least some of the
appellant’s absences were unauthorized, and it charged her with 24 hours of
AWOL, removing her on that basis effective August 5, 2017. IAF, Tab 10
at 74-83.
¶4The appellant filed the instant appeal with the Board’s Central Regional
Office in Chicago, Illinois. IAF, Tab 1. She raised affirmative defenses of age
discrimination, sex discrimination, disability discrimination, and harmful
procedural error. IAF, Tab 37 at 5-8. The appellant requested a hearing but later
withdrew it after the administrative judge denied her request to participate2
telephonically. IAF, Tab 1 at 2, Tab 48. The administrative judge issued an
initial decision on the written record affirming the appellant’s removal. IAF,
Tab 60, Initial Decision (ID). She sustained the AWOL charge, finding that the
agency had a legitimate management reason for directing the appellant’s
reassignment and the absences at issue were unauthorized. ID at 8-10. The
administrative judge further found that the removal penalty was reasonable, and
that the appellant failed to prove any of her affirmative defenses. ID at 10-27.
¶5The appellant has filed a petition for review, challenging some of the
administrative judge’s findings and arguing that she was effectively deprived of
her right to a hearing. Petition for Review (PFR) File, Tab 1. The agency has not
filed a response.
ANALYSIS
¶6Under 5 U.S.C. § 7701(a)(1), an appellant has a right to a hearing on the
merits in an appeal that is within the Board’s jurisdiction. Jordan v. Office of
Personnel Management , 108 M.S.P.R. 119, ¶ 20 (2008); 5 C.F.R. § 1201.24(d).
This right to a hearing belongs to the appellant, and there are strong policy
considerations in favor of granting an appellant a hearing on the merits. Callahan
v. Department of the Navy , 748 F.2d 1556, 1558 (Fed. Cir. 1984); Rossett v.
Office of Personnel Management , 87 M.S.P.R. 415, ¶ 5 (2001). The agency,
conversely, has no statutory right to a hearing. Callahan, 748 F.2d at 1558. An
appellant who has requested a hearing may withdraw her request and have the
administrative judge adjudicate her appeal on the written record. Shingles v. U.S.
Postal Service, 90 M.S.P.R. 245, ¶ 10 (2001). Nevertheless, an appellant may
waive her right to a hearing only by clear, unequivocal, or decisive action, and
the waiver must be an informed one. Id. An appellant’s waiver of the right to a
hearing is informed when she has been fully apprised of the relevant adjudicatory
requirements and options in her appeal. Id.3
¶7In this case, it is undisputed that the instant appeal is timely, within the
Board’s jurisdiction, and subject to the procedures of 5 U.S.C. § 7701. IAF,
Tab 1, Tab 10 at 14; ID at 1; see 5 U.S.C. §§ 7511(a)(1)(C)(ii), 7512(1), 7513(d);
5 C.F.R. § 1201.22(b)(1). Therefore, the appellant had a statutory right to a
hearing on the merits. See Conway v. Department of the Navy , 71 M.S.P.R. 502,
504 (1996). The appellant requested a hearing in her initial appeal form, and on
April 10, 2018, the administrative judge issued a hearing order, proposing that the
hearing be conducted by video teleconference. IAF, Tab 1 at 2, Tab 28. The
agency located a room on Scott Air Force Base with compatible video
teleconference equipment and reserved the room for the parties’ use during the
hearing. IAF, Tab 29. The appellant made no objection at the time. Id.
¶8On April 27, 2018, the administrative judge conducted a prehearing
conference. IAF, Tab 37 at 1. According to the appellant’s sworn and unrebutted
statement on petition for review, she informed the administrative judge that her
physical and financial limitations made it burdensome for her to travel to Illinois
for the hearing, and she requested to participate from a location closer to her
home in Bethlehem, Pennsylvania. PFR File, Tab 1 at 9. The administrative
judge and the agency both were amenable, and the administrative judge directed
the appellant to work out the details with the Board paralegal handling the
hearing logistics. Id. The appellant contacted the paralegal, who informed her
that there were no potential videoconference sites for this particular hearing apart
from those already established at the Board’s Central Regional Office in Chicago
and the agency’s office at Scott Air Force Base. Id. at 9-10. The appellant
proposed that she could participate by telephone or by Skype, but the paralegal
informed the appellant that she would need to get the administrative judge’s
approval for either of these alternative arrangements. Id. at 10.
¶9On May 17, 2018, the appellant filed a motion for telephonic testimony,
explaining the physical and financial burden that travel to Illinois would entail for
her. IAF, Tab 40. She requested to be allowed to participate in the hearing via4
telephone or Skype instead. Id. The agency opposed the appellant’s motion on
the basis that “telephonic testimony would deny the Agency’s right to cross
examine the Appellant in person and would hamper the Administrative Judge’s
ability to determine the Appellant’s credibility.” IAF, Tab 41. The
administrative judge ruled that “[b]ecause credibility is a key issue in the case,
the appellant’s request to testify by telephone, based on physical and
financial hardship, is DENIED.” IAF, Tab 45 (emphasis in original). On
October 4, 2018, the appellant withdrew her hearing request in favor of a decision
on the written record. IAF, Tab 48. The appellant now argues that, “Rather than
lose by default as a ‘no show’ Appellant, I was forced to withdraw my request for
a hearing and proceed on the record.” PFR File, Tab 1 at 11.
¶10We credit the appellant’s sworn and unrebutted assertion that her financial
constraints and well-documented physical limitations prevented her from
traveling from her home in eastern Pennsylvania to either of the two approved
video teleconference hearing locations in Illinois. PFR File, Tab 1 at 9-10.
These are the same reasons that the appellant gave in support of her motion for
telephonic testimony below. IAF, Tab 40. That being the case, the
administrative judge’s ruling that the appellant could not participate by
alternative means effectively denied her the right to participate in the hearing at
all. We find that, under these circumstances, the appellant’s decision to withdraw
her hearing request was reasonable because her failure to appear at the hearing
would likely have resulted in a decision on the written record in any case, see
Callahan, 748 F.2d at 1559-1600, and it was in her best interest to withdraw her
hearing request in order to have the opportunity to develop the written record
further.
¶11An administrative judge has broad discretion in controlling the proceedings
before her. Butler v. Defense Commissary Agency , 77 M.S.P.R. 631, 634 (1998).
The administrative judge’s decisions regarding the parameters of and
procedures for the hearing are subject to an abuse of discretion standard. See5
Ryan v. Department of the Air Force , 117 M.S.P.R. 362, ¶ 5 (2012).
Furthermore, in -person or videoconference testimony is generally preferable to
telephonic testimony to the extent that telephonic testimony limits the
administrative judge’s ability to make demeanor-based credibility determinations.
See Robertson v. Department of Transportation , 113 M.S.P.R. 16, ¶ 13 (2009).
However, these considerations must be balanced against the appellant’s statutory
right to a hearing in her appeal. See Naekel v. Department of Transportation ,
21 M.S.P.R. 11, 13 (1984) (“The presiding official’s discretion in controlling the
course of the hearing . . . must be balanced with the appellant’s right to be
heard.”).
¶12Although the Board has ruled in multiple cases that an administrative judge
may not order a telephonic hearing over an appellant’s objection that the
hearing be in person or by videoconference,2 see, e.g., Evono v. Department of
Justice, 69 M.S.P.R. 541, 545 (1996); McGrath v. Department of Defense ,
64 M.S.P.R. 112, 114-15 (1994), we are unaware of any cases in which the Board
has ruled that an administrative judge erred in holding a telephonic hearing over
the agency’s objection.
¶13In support of its objection to the appellant’s motion to testify by telephone,
the agency relied on Purcell v. Department of Agriculture , 55 M.S.P.R. 305
(1992). IAF, Tab 41 at 4. In Purcell, the Board found that the administrative
judge did not abuse his discretion in denying the appellant’s request that two of
his witnesses be allowed to testify by telephone or by deposition. 55 M.S.P.R.
at 310 n.5. In support of its ruling, the Board cited, among other things, “the
agency’s valid objections that allowing telephone testimony would deny the
agency’s ‘right to cross examine [the witnesses] in person and would hamper the
administrative judge’s ability to determine their credibility.’” Id. However, we
find that Purcell is distinguishable from the instant appeal for several reasons.
2 There is a significant exception to this rule for cases that hinge on legal argument and
do not involve disputes of material fact. Jordan, 108 M.S.P.R. 119, ¶ 21.6
First, it appears that these witnesses’ unavailability for in-person testimony was
caused by the appellant’s failure to serve them the subpoenas that the
administrative judge provided. Id. In contrast, the appellant’s inability to travel
to Illinois in this case was largely outside her control. Second, in Purcell, the
Board noted the “lateness of the appellant’s request” for telephonic testimony,
id., whereas the appellant in this case requested to testify by telephone a full
5 months before the hearing was scheduled to occur, IAF, Tabs 40, 45. Third, the
result of the administrative judge’s ruling in Purcell was that two of the
appellant’s witnesses provided no hearing testimony, whereas the result of the
ruling in this appeal was that the appellant was unable to have any hearing at all.
¶14We find that the instant appeal is more akin to Siman v. Department of the
Air Force, 80 M.S.P.R. 306, ¶¶ 5-7 (1998), Oribio v. Office of Personnel
Management, 47 M.S.P.R. 588, 591-92 (1991), Sincero v. Office of Personnel
Management, 41 M.S.P.R. 239, 242-43 (1989), and Sweat v. Office of Personnel
Management, 40 M.S.P.R. 84, 87 (1989). In these cases, the appellants initially
requested hearings but later withdrew their requests, citing financial difficulties,
physical impairment, or other issues that prevented them from traveling to the
designated hearing locations. Similarly, in Manoharan v. Office of Personnel
Management, 103 M.S.P.R. 159, ¶ 11 (2006), and Rossett, 87 M.S.P.R. 415,
¶¶ 5-6, the appellants did not request a hearing but instead indicated their
inability to travel for a hearing and expressed a desire to speak with a Board
official about the matter. In all six of these appeals, the administrative judges
found that the appellants waived their right to hearings and issued decisions on
the written record. In all six of these appeals, the Board vacated and remanded,
finding that the appellants’ purported waivers were invalid because they were not
knowing and informed since the appellants had not been apprised of the
alternatives to attending in-person hearings at the designated locations, including
the opportunity for telephonic hearings. Manoharan, 103 M.S.P.R. 159, ¶¶ 11,
19; Rossett, 87 M.S.P.R. 415, ¶¶ 6-7; Siman, 80 M.S.P.R. 306, ¶¶ 6-7;7
Oribio, 47 M.S.P.R. at 591-92; Sincero, 41 M.S.P.R. at 243; Sweat, 40 M.S.P.R.
at 87-88. The necessary implication is that an appellant has the right to choose a
telephonic hearing in her appeal, at least when circumstances would prevent her
participation by other means, which is the case here. Notably, in none of these
cases did the Board require, as a condition of remand, that the appellant
demonstrate that lack of a hearing prejudiced her substantive rights. Cf.
Karapinka v. Department of Energy , 6 M.S.P.R. 124, 127 (1981) ( “The
administrative judge’s procedural error is of no legal consequence unless it is
shown to have adversely affected a party’s substantive rights.”). Rather, the
Board views the erroneous deprivation of that right as harmful per se. For these
reasons, we find that the appellant’s withdrawal of her hearing request was
invalid because it was not knowing and informed. Rather, it was based on a
choice between two false alternatives, namely, a hearing in Illinois or no hearing
at all. See Gutierrez v. U.S. Postal Service , 90 M.S.P.R. 604, ¶ 9 (2002) (finding,
in the context of an alleged constructive adverse action, that a choice between
false alternatives can support a decision that the choice was involuntary). On
remand, the administrative judge shall conduct the appellant’s requested hearing,
including by telephone if necessary.
¶15We note that the appellant has indicated on review that she would be willing
to travel to the Board’s Northeastern Regional Office in Philadelphia,
Pennsylvania, which is closer to her home, and participate in the hearing from
that location. PFR File, Tab 1 at 11. On remand, the administrative judge may
consider this or any alternative hearing arrangements within the administrative
judge’s sound discretion. We do not discount any concern the administrative
judge may have regarding being able to observe witness demeanor at the hearing,
and we expect both parties to cooperate in good faith in making arrangements to
facilitate that objective. Nevertheless, if circumstances dictate that the hearing
must be conducted telephonically, the principles for resolving credibility issues as
set forth in Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987), may8
be adapted to the situation, see Goode v. Defense Logistics Agency , 45 M.S.P.R.
671, 674 n.2 (1990).
¶16In light of our findings here, we do not reach the appellant’s arguments
regarding the merits of her case. PFR File, Tab 1 at 6-15.
ORDER
¶17For 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.9 | Arnold_Karen_L_CH-0752-17-0543-I-1__Remand_Order.pdf | 2024-05-30 | KAREN L. ARNOLD v. DEPARTMENT OF THE ARMY, MSPB Docket No. CH-0752-17-0543-I-1, May 30, 2024 | CH-0752-17-0543-I-1 | NP |
1,316 | https://www.mspb.gov/decisions/nonprecedential/Andreski_Christopher_J_CH-1221-22-0418-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTOPHER J. ANDRESKI,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
CH-1221-22-0418-W-1
DATE: May 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Scott Graham , Esquire, Portage, Michigan, for the appellant.
Simon Caine and Cedric D. Bullock , Washington, D.C., 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
dismissed his individual right of action (IRA) appeal for lack of jurisdiction based
on the failure to exhaust his administrative remedies with the Office of Special
Counsel (OSC). 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 generally asserts that the
administrative judge failed to correctly apply the law to the facts. Petition for
Review File, Tab 1 at 4. However, the petition for review does not directly
challenge the findings in the initial decision and does not make any assertions
related to the Board’s jurisdiction over his whistleblower reprisal complaint. We
agree with the administrative judge’s findings that the appellant’s four alleged
protected disclosures were not exhausted before OSC. Initial Appeal File,
Tab 23, Initial Decision at 5-7. Accordingly, the Board lacks jurisdiction over the
appellant’s IRA appeal.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
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
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
http://www.mspb.gov/probono for information regarding pro bono representation3
for Merit Systems Protection Board appellants before the 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,
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
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
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.6 | Andreski_Christopher_J_CH-1221-22-0418-W-1__Final_Order.pdf | 2024-05-30 | CHRISTOPHER J. ANDRESKI v. DEPARTMENT OF JUSTICE, MSPB Docket No. CH-1221-22-0418-W-1, May 30, 2024 | CH-1221-22-0418-W-1 | NP |
1,317 | https://www.mspb.gov/decisions/nonprecedential/Abbott_MichaelAT-0752-15-0427-I-1__Split_Vote_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL ABBOTT,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.
DOCKET NUMBER
AT-0752 -15-0427- I-1
DATE: May 30, 2024
M. Jefferson Euchler , Esquire, Virginia Beach, Virginia, for the appellant.
Alexis Conway Zaloudek , Metairie, Louisiana, for the agency.
BEFORE
Cathy A. Harris, Ch airman
Raymond A. Limon, Vice Chairman
Chairman Harris issues a separate opinion.
Vice Chairman Limon issues a separate opinion.
ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the appellant’s removal. The two Board members cannot agree on the
disposition of the petition for review. Therefore, the initial decision now
becomes the final decision of the Merit Systems Protection Board in this appeal.
Title 5 of the Code of Federal Regulations, section 1200.3(b) (5 C.F.R.
§ 1200.3(b)). This decision shall not be considered as precedent by the Board in
any other case. 5 C.F.R. § 1200.3(d).
2
NOTICE OF APPEAL RIGHTS1
You may obtain review of the 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 the 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:
1 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 the final 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
4
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) 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
5
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.2 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
2 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:
Washington, D.C. /s/
Gina K. Grippando
Clerk of the Board
SEPARATE OPINION OF CATHY A. HARRIS
in
Michael Abbott v. Department of Health and Human Services
MSPB Docket No. AT- 0752- 15-0427 -I-1
The appellant, a GS -12 Auditor, requested that he be transferred due to his
disability. For the reasons set forth below, the agency failed to accommodate his
disability.
An agency is required to make reasonable accommodation to the known
physical and mental limitations of an otherwise qualified individual with a
disability unless the agency can show that accommodation would cause an undue hardship on its business operations. Miller v. Department of the Army ,
121 M.S.P.R. 189, ¶ 13 (2014); 29 C.F.R. § 1630.9(a). In order to establish
disability discrimination based on a failure to accommodate, an employee must
show the following: (1) he is an individual with a disability, as defined by
29 C.F.R. § 1630.2(g); (2) he is a qualified individual with a disability, as defined
by 29 C.F.R. § 1630.2(m); and (3) the agency failed to provide a reasonable
accommodation. Miller, 121 M.S.P.R. ¶ 13.
Here, the administrative judge found that the appellant established that he
had two medical conditions, depression and anxiety, which demonstrated that the
appellant was a person with a disability during the time that he requested an
accommodation. Initial Appeal File (IAF ), Tab 83, Initial Decision (ID) at 25.
However, the administrative judge determined that the agency did not fail to accommodate his disability. Id . I disagree.
After the appellant emailed the agency’s Inspector General in April 2014
stating that his work environment was making him physically and mentally ill, and that he “pray[ed] every day that [he would] be reassigned,” the agency
promptly followed up with instructions for requesting an accommodation. IAF,
2
Tab 9 at 81, Tab 11 at 43- 45, 84 -86. On or about September 15, 2014, the
appellant provided a letter, dated September 12, 2014, from his psychiatrist,
stating that the appellant was experiencing “symptoms” of depression and anxiety, and that these symptoms were exacerbated by the appellant’s workplace
environment. IAF, Tab 11 at 80. The letter also identified the requested
accommodation (a transfer). Id.
In a September 19, 2014 letter, the appellant’s psychiatrist provided the
diagnoses (Major Depressive Disorder and Anxiety Disorder not otherwise specified). Id. at 81. Although the appellant’s psychiatrist stated that the
appellant was currently able to perform the essential functions of his job, he also
opined that the appellant might not be able to do so if his symptoms worsened,
and he again stated that the working environment was exacerbating the
appellant’s symptoms. Id .
Following receipt of the September 19, 2014 letter, the agency opted to
send the letter to the Federal Occupational Health Service (FOH) for review and
assistance in determining whether the appellant needed an accommodation, and if so, what kind of accommodation. Id. at 70- 72. This process was to take several
weeks, and the agency provided the appellant with a temporary accommodation to
telework. Id. at 57- 58. Then, just over a month later, on October 24, 2014, the
agency rescinded its temporary accommodation, citing the appellant’s decline in
work product. Id. at 63. At this juncture, the agency did not offer any other
temporary accommodation, such as leave, reassignment, or increased supervision to assist the appellant with the decline in his work product. Finally, on October 31, 2014, FOH provided a letter finding the medical information insufficient to support the requested accommodation at that time. Id . at 7-8.
Meanwhile, on October 30, 2014, following the rescission of the
appellant’s temporary accommodation, the agency issued the appellant a 14- day
suspension for two specifications of unprofessional conduct based on two emails the appellant had sent. IAF, Tab 9 at 14, Tab 10 at 7 n.1. During the meeting
3
held to provide the appellant with that proposal, the appellant allegedly engaged
in unprofessional conduct. IAF, Tab 10 at 7 n.1. On December 4, 2014, the
agency proposed to remove the appellant for unprofessional conduct and damage to Government property. IAF, Tab 1 at 8- 15. These charges were in large part
based on the appellant’s alleged misconduct during the October 30, 2014 meeting. Id. The agency effected his removal on February 21, 2015. IAF, Tab 8 at 52.
The appellant filed a Board appeal in which he claimed, among other
things, that the agency had failed to accommodate him. IAF, Tab 1. Following a hearing, the administrative judge affirmed the removal action. ID. The appellant has filed a petition for review arguing, among other things, that the agency discriminated against him based on his disability and improperly delayed
providing him a reasonable accommodation while his medical assessment was
pending. Petition for Review (PFR) File, Tab 1. The appellant contends that, had
he been accommodated, the events of October 30, 2014 would not have occurred.
Id.
It was error for the agency to rescind the appellant’s temporary
accommodation on October 24, 2014, based on the appellant’s alleged decline in
work product and not offer any other temporary accommodation, such as leave,
reassignment, or increased supervision. The agency’s temporary accommodation
was not effective as it became apparent that it was not enabling the appellant to
perform the essential functions of his position. See U.S. Airways v. Barnett,
535 U.S. 391, 400 (2002) (stating that “the word ‘accommodation’. . . conveys
the need for effectiveness”). Thus, at that juncture, the agency should have
considered alternate accommodations. See Lorenzo v. U.S. Postal Service, EEOC Appeal No. 01973337, 2000 WL 732106, *3 (May 25, 2000) (determining that the
agency should have provided the complainant with an interim accommodation and that it was not reasonable for the agency to expect the complainant to work without an accommodation of any type).
4
I also agree with appellant that the lengthy amount of time it took for the
agency to obtain a medical review opinion from FOH is not an excuse. It is the
agency’s choice as to whom it selected for its medical review. In any event, when the temporary accommodation was not effective, the agency should have offered
another if it truly needed the additional time. Doria R. v. National Science
Foundation, EEOC Appeal No. 0120152916, 2017 WL 5564360, * 11 (Nov. 9,
2017) (noting that “an employer should respond expeditiously to a request for
reasonable accommodation” and finding the agency’s delay in granting the complainant ’s request for additional telework days violated the Rehabilitation
Act).
Moreover, FOH’s October 31, 2014 letter contained errors. First, in
response to the question of whether the appellant’s medical condition affected his
ability to perform the essential duties of his position, the FOH Occupational
Medicine Consultant concluded that “[b]ased on a review of the available medical
information and my interaction with the treating healthcare provider, the medical condition should not affect the appellant’s current ability to perform the essential functions and/or duties of his job.” IAF, Tab 11 at 7. This did not acknowledge the fact that the appellant’s psychiatrist had said that the symptoms could worsen
to the point of affecting the appellant’s ability to perform the essential functions
of his job were his environment not to change, as well as the fact that the
appellant’s work deteriorated when he was teleworking. The FOH Occupational Medicine Consultant further concluded that, because “difficulty interacting with a co-worker or supervisor(s) is not generally considered a reason for
accommodation under the [American with Disabilities Act Amendments Act], the medical information is insufficient to support the requested accommodation at
this time.” However, as the appellant points out in his petition for review, the
appellant’s disabilities— depression and anxiety —were the reasons for the need
for the accommodation. PFR File, Tab 1. Under the circumstances, the agency should have considered other accommodations, such as reassignment. See Bryce
5
A. v. Export -Import Bank of the United States, EEOC Appeal No. 2019004342,
2021 WL 4477019, * 13 (Sept. 23, 2021) (finding that the agency should have
conducted additional research to ascertain an effective accommodation for the complainant instead of simply relying on the FOH doctor’s assessment).
Based on the foregoing, the appellant established that the agency failed to
provide him with a reasonable accommodation. While I do not condone the
appellant’s alleged behavior, the agency must still fulfill its obligations under the Rehabilitation Act, which has incorporated the standards of the Americans with Disabilities Act (ADA). The ADA provides that it is illegal for an employer to “discriminate against a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). There may be certain misconduct which, by its very nature, takes an
employee outside the scope of protecting legislation because the misconduct
prevents the employee from meeting all of their job requirements, therefore
rendering them not “qualified.” However, this is not the case here. Accordingly,
the appellant’s petition for review should be granted and the initial decision
reversed.
/s/
Cathy A. Harris
Chairman
SEPARATE OPINION OF RAYMOND A. LIMON
in
Michael Abbott v. Department of Health and Human Services
MSPB Docket No. AT-0752- 15-0427 -I-1
For the following reasons, I agree with the administrative judge’s initial
decision sustaining the appellant’s removal and finding that he failed to prove his
affirmative defenses. I would, therefore, deny his petition for review.
The agency removed the appellant from his GS- 12 Auditor position with
the agency’s Office of Audit Services, Office of Inspector General, based on
(1) unprofessional conduct (seven specifications), and (2) damage to Government
property. Among other things, the agency alleged that, after an October 30, 2014
meeting at which the agency issued the appellant a proposed 14- day suspension
for unprofessional conduct relating to the first two of the seven specifications, the
appellant returned to his cubicle, repeatedly slammed his Government laptop on
his desk with great force, thereby damaging it, yelled at his first- level supervisor
using vulgar language, including such statements as “YOU BITCH! YOU LIAR!
YOU ARE SUCH A LIAR,” and charged at the supervisor with his fists clenched,
causing her to fear that he was going to attack her before veering around her.
Initial Appeal File (IAF), Tab 8 at 54- 64, Tab 10 at 7- 11.
On appeal and after a hearing, the administrative judge found that the
agency proved six of the seven specifications of the unprofessional conduct
charge, including the allegations set forth above, as well as the damage to
Government property charge. IAF, Tab 83, Initial Decision (ID) at 5- 21. The
administrative judge found that the appellant’s testimony denying the charged misconduct was inherently improbable and unworthy of belief. ID at 12- 21. The
administrative judge also held that the appellant did not prove, among other
things, disability discrimination based on a failure to accommodate his
2
disabilities (Major Depressive Disorder and Anxiety Disorder). ID at 22 -31. The
administrative judge further found that there was a nexus between the misconduct
and the efficiency of the service and that the penalty of removal was reasonable.
ID at 31- 34. On review, the appellant reasserts, among other things, his claim
that the action was based on a failure to accommodate his disability.1
To the extent that the appellant alleges that the agency should have
provided him with a different supervisor as a form of accommodation, the agency had no such obligation. Davina W. v. Department of the Treasury , EEOC Appeal
No. 0120160978, 2018 WL 3416030, at *4 (June 29, 2018); Equal Employment
Opportunity Commission (EEOC) Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act ,
EEOC Notice No. 915.002 (Oct. 17, 2002) (EEOC Guidance), Response to
Question 33 (“An employer does not have to provide an employee with a new supervisor as a reasonable accommodation.”),
2 available at
https://www.eeoc.gov/laws/guidance/enforcement- guide- reasonable -
accommodation- and-undue- hardship -under- ada#reassignment; see Lewis v.
Department of the Army, 38 M.S.P.R. 91, 96 (1988) (holding that an agency is not required to assign a disabled employee to an encumbered position). Although a
reasonable accommodation may include reassignment to a vacant, funded position, e.g., Desjardin v. U.S. Postal Service, 2023 MSPB 6, ¶¶ 28- 29, the
appellant has not identified such a position, e.g., Petition for Review File, Tab 7;
see Desjardin, 2023 MSPB 6, ¶ 29 n.13 (holding that even an agency’s failure to conduct a proper search does not relieve the appellant of the burden to establish
1 I would find that the appellant has shown no error by the administrative judge in
sustaining the charges, finding nexus, and finding the penalty of removal reasonable.
2 Although the appellant’s claim of disability discrimination arises under the
Rehabilitation Act, the standards under the Americans with Disabilities Act have been
incorporated by reference into the Rehabilitation Act. See Miller v. Department of the
Army , 121 M.S.P.R. 189, ¶ 13 n.3 (2014).
3
the existence of a position to which he could have been reassigned). An agency
does not have to bump an employee from a job to create a vacancy, nor does it
have to create a new position. EEOC Guidance; see Davis v. U.S. Postal Service,
120 M.S.P.R. 122, ¶ 17 (2013), overruled on other grounds by Cronin v. U.S.
Postal Service, 2022 MSPB 13 ; Larraine S. v. Department of Agriculture , EEOC
Appeal No. 0120180647, 2019 WL 4011692, at *5 (Aug. 15, 2019).
I would further find that the agency did not unreasonably delay in
addressing the appellant’s accommodation request, but instead engaged in the interactive process in good faith and in a timely fashion. The appellant’s
psychiatrist submitted the requested documentation to support the accommodation request on September 19, 2014, identifying the appellant’s disability and
indicating that it “does not currently affect his ability to carry out his duties, but
if not improved it may worsen[] in the future.” IAF, Tab 11 at 81; ID at 26. The
psychiatrist also indicated that, if possible, a change in the appellant’s workplace environment or a transfer would aid his recovery. IAF, Tab 11 at 81. On
September 24, 2014, the agency asked the Federal Occupational Health Service (FOHS) to review the documentation and assist the agency in determining what accommodations, if any, might be needed. Id. at 70. On October 6, 2014, the
appellant’s first- level supervisor informed the appellant that, because the
accommodation process may take several weeks, she would grant him a temporary accommodation of flexiplace, which the appellant accepted. Id. at 57.
On October 8, 2014, the supervisor also provided the appellant with information
regarding taking leave under the Family and Medical Leave Act (FMLA), assistance that could be provided to him by the Employee Assistance Program, and an offer for a medical examination at no cost to the appellant . Id. at 60- 61.
The appellant declined the medical examination offer, id . at 60, and did not
provide documentation regarding an FMLA leave request until November 3, 2014, by which time he had been placed on administrative leave due to the events of October 30, 2014, IAF, Tab 9 at 99- 105. On October 24, 2014, the appellant’s
4
first-level supervisor notified him that flexiplace would no longer be permitted
because of his diminished work product, and asked him if there were any other
accommodations he would like to request. IAF, Tab 11 at 63. In the meantime,
an FOHS Occupational Medicine Consultant had contacted the appellant’s
psychiatrist during the week of October 27, 2014. IAF, Tab 10 at 77. The
appellant engaged in the misconduct underlying part of the reason for his removal
on October 30, 2014. One day later, the FOHS Occupational Medicine
Consultant determined that, based on the available medical information and his
discussion with the appellant’s psychiatrist, “the medical condition should not affect the employee’s current ability to perform the essential functions and/or duties of his job.” Id. He further determined, consistent with the prior written
assessment of the psychiatrist, that a “prognosis for future impact on job performance cannot be determined at this time.” Id. Under these circumstances,
I would find that the agency acted appropriately and there was no improper denial of accommodation.
The EEOC’s regulations provide that agencies must adopt and implement a
plan addressing reasonable accommodations and explaining that, “when all the facts and circumstances known to the agency make it reasonably likely that an
individual will be entitled to a reasonable accommodation,” but the
accommodation cannot be provided immediately, the agency shall provide an
interim accommodation that allows the individual to perform some or all of the essential functions of his or her job, if it is possible to do so without imposing an undue hardship on the agency. 29 C.F.R. § 1614.203(d)(3)(i)(Q). Here, I would
find that the agency was not obligated to offer an interim accommodation. As set
forth above, the appellant’s psychiatrist indicated in writing and in discussions
with the FOHS Occupational Medicine Consultant that the appellant could
perform the essential functions of his position without an accommodation.
Therefore, all of the facts and circumstances known to the agency at the time did
5
not make it reasonably likely that the appellant would be entitled to a reasonable
accommodation, and no interim accommodation was required.
For all of the above reasons, I would deny the appellant’s petition for
review and affirm the initial decision.
/s/
Raymond A. Limon
Vice Chairman | Abbott_MichaelAT-0752-15-0427-I-1__Split_Vote_Order.pdf | 2024-05-30 | MICHAEL ABBOTT v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. AT-0752, May 30, 2024 | AT-0752 | NP |
1,318 | https://www.mspb.gov/decisions/nonprecedential/Woodroof_Rosanne_DC-0432-15-0585-C-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROSANNE WOODROOF,1
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
DC-0432-15-0585-C-1
DATE: May 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL2
Rosanne L. Woodroof , Warrenton, Virginia, pro se.
Benjamin M. Goldstein and Matthew Blake Huffman , 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 compliance initial
decision, which denied her petition for enforcement. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 We have corrected the spelling of the appellant’s first name from Roseann to Rosanne.
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).
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. For the
reasons set forth below, we VACATE the initial decision and DENY the
appellant’s petition for enforcement.
BACKGROUND
In April 2015, the appellant filed a Board appeal challenging her removal
from the agency for unacceptable performance. Woodroof v. Department of
Commerce, MSPB Docket No. DC-0432-15-0585-I-1, Appeal File (AF), Tab 1.
In resolution of that appeal, the parties entered into a settlement agreement under
which, among other things, the agency agreed to change the appellant’s standard
form 50 to reflect a resignation instead of a removal, provide the appellant with a
neutral reference, and expunge certain documents from her employment record,
including her performance improvement plan (PIP), proposed removal, and
removal decision. AF, Tab 14 at 6-8. The agreement also contained a
confidentiality provision under which the parties agreed not to disclose the terms
of the agreement, except as specified. Id. at 8.
On September 19, 2018, the appellant filed a petition for enforcement of
the settlement agreement. Woodroof v. Department of Commerce , MSPB Docket
No. DC-0432-15-0585-C-1, Compliance File (CF), Tab 1. The appellant
contended that the agency breached the confidentiality provision of the settlement2
agreement by asking her questions concerning her PIP and removal on
cross-examination when she served as a witness in another employee’s Board
appeal on November 7, 2017. Id. at 9-13. In response, the agency contended that
it did not violate the settlement agreement because it did not question the
appellant about the specific terms of the settlement agreement itself and/or its
actions were permitted under the routine use exception to the Privacy Act. CF,
Tab 4 at 5-6.
On February 19, 2019, the administrative judge issued a compliance initial
decision denying the appellant’s petition for enforcement. CF, Tab 15,
Compliance Initial Decision (CID). The administrative judge construed the
appellant’s claim as alleging that her own testimony about the PIP and removal
violated the settlement agreement and found that the appellant’s conduct in
accurately answering questions about events that occurred during her prior
employment did not disclose a term of the agreement. CID at 6. Thus, he found
that the appellant’s responses as a hearing witness under oath to questions about
her prior employment fell outside the area of information covered by the
confidentiality clause of her settlement agreement. CID at 7.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 5. The agency has opposed the appellant’s petition, and the appellant
has filed a reply. PFR File, Tabs 7-8.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant argues that the administrative judge improperly
construed her claim by focusing on her responses during the hearing instead of
the agency attorney’s conduct and questions on cross-examination. PFR File,
Tab 5 at 6-7. We agree. The crux of the appellant’s claim is that the agency
attorney’s conduct during the hearing, in questioning her about her PIP and
removal, violated the terms of the settlement agreement in which the agency
agreed to provide her with a clean record. CF, Tab 1 at 9-11.3
As the appellant correctly notes in her petition, when an agency has
contractually agreed to provide an employee with a clean record, the U.S. Court
of Appeals for the Federal Circuit has held that the clean record agreement
contains an implied provision that precludes the agency’s disclosure of
information regarding the rescinded adverse action to third parties. Conant v.
Office of Personnel Management , 255 F.3d 1371, 1376 (Fed. Cir. 2001); PFR
File, Tab 5 at 10. The Board has interpreted the U.S. Court of Appeals decision
in Conant as “creating the general rule that if an agency discloses information
regarding the rescinded adverse action to any third party, then the agency has
materially breached the clean record settlement.” Allen v. Department of
Veterans Affairs , 112 M.S.P.R. 659, ¶ 15 (2009), aff’d, 420 F. App’x. 980 (Fed.
Cir. 2011). Furthermore, the Board has found that the appellant need not show
actual harm to establish that the agency’s disclosure of such information
constituted a material breach. See Allison v. Department of Transportation ,
111 M.S.P.R. 62, ¶ 17 (2009); Poett v. Department of Agriculture , 98 M.S.P.R.
628, ¶ 17 (2005).
Here, the record reflects that, during the hearing, on direct examination by
her former coworker, the appellant discussed the details of her March 2014 PIP
and her belief that it was unreasonable and an attempt to force her out. PFR File,
Tab 5, Hearing Transcript (HT) at 7-10.3 Thereafter, on cross-examination, the
agency attorney also asked the appellant questions about her PIP. HT at 55-56.
Additionally, the agency attorney asked the appellant who the proposing and
deciding officials were for her removal action. HT at 42-45.
Under Conant, the general clean record provisions of the settlement
agreement broadly prohibited the agency from disclosing PIP and removal-related
information to any third party. However, the parties also included language that
was not contained in the Conant agreement, which expressly carves out
3 However, the appellant specifically declined to answer a question about whether she
had been removed. HT at 6.4
exceptions to this prohibition. AF, Tab 14 at 8. In particular, the parties agreed
that the appellant could disclose the terms of the agreement to “the MSPB,”
among other disclosures, and that the agency would “treat this agreement in
accordance with the Privacy Act.” Id. Thus, although the parties agreed to keep
the terms of the settlement agreement confidential, it is clear that they did not
intend to render the details of the appellant’s PIP and removal unusable for all
purposes. Based on these exceptions and to the extent the appellant voluntarily
chose to participate as a witness in her coworker’s hearing and answered
questions on direct examination relating to her PIP, we find that the agency’s
conduct in questioning the appellant for the purpose of defending itself in
litigation did not amount to a material breach of the agreement . See
Allen, 112 M.S.P.R. 659, ¶¶ 14-27 (finding that the agency did not breach a
settlement agreement by disclosing the appellant’s removal-related information to
the Office of Workers’ Compensation Program based on language in the
settlement agreement that carved out an exception to the general confidentiality
provision allowing disclosure as required by law); see also King v. Department of
the Navy, 112 F. App’x 750, 753 (Fed. Cir. 2004) (finding that a clean record
settlement agreement permitted the agency to maintain information regarding the
appellant’s removal for the purpose of defending itself in litigation, and to use
that information if it became necessary to do so in the course of the litigation).4
Accordingly, we deny the appellant’s petition for enforcement.5
4 The Board may rely on unpublished decisions of the U.S. Court of Appeals for the
Federal Circuit if it finds the court’s reasoning persuasive. Mauldin v. U.S. Postal
Service, 115 M.S.P.R. 513, ¶ 12 (2011).
5 In light of our decision, we do not address the timeliness of the appellant’s petition for
enforcement.5
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.6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any7
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s8
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 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 | Woodroof_Rosanne_DC-0432-15-0585-C-1_Final_Order.pdf | 2024-05-30 | null | DC-0432-15-0585-C-1 | NP |
1,319 | https://www.mspb.gov/decisions/nonprecedential/Little_Kathy_L_DC-0351-17-0747-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KATHY L. LITTLE,
Appellant,
v.
CORPORATION FOR NATIONAL
AND COMMUNITY SERVICE,
Agency.DOCKET NUMBER
DC-0351-17-0747-I-1
DATE: May 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
E. Neal , Esquire, Annapolis, Maryland, for the appellant.
Diane Bradley , Esquire, 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
sustained her separation by reduction in force (RIF). 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).
The appellant held the excepted service position of Program Assistant for
the agency’s AmeriCorps Volunteers in Service to America (VISTA) program, in
Washington, D.C. Initial Appeal File (IAF), Tab 7 at 81. In March 2015, the
agency notified her that the position was being eliminated due to reorganization.
Id. The agency further explained that, pursuant to RIF procedures, she did not
have an assignment right to another position and would be separated. Id.
The appellant retired on the date of her scheduled RIF separation. Id.
at 81, 93. She then challenged the RIF in an equal employment opportunity
(EEO) complaint, which was dismissed after the appellant filed the instant Board
appeal, challenging the RIF and raising EEO affirmative defenses. Id.
at 58-59, 76-79. After developing the record in this appeal, the appellant
withdrew her hearing request. IAF, Tab 85. Accordingly, the administrative
judge issued a decision based on the written record. IAF, Tab 130, Initial
Decision (ID).
The administrative judge first found that the Board had jurisdiction over
the RIF action, notwithstanding the appellant’s retirement. ID at 3 n.1. He also
denied several pending motions, including the appellant’s requests for an adverse
inference or other sanction. ID at 4-5.2
Turning to the merits of the appeal, the administrative judge found that the
agency met its burden of proof. ID at 5-27. Most notably, he made the following
findings: (1) the agency invoked a proper basis for the RIF, ID at 7-12; (2) the
agency properly established the competitive area, ID at 12-15; (3) the agency
placed the appellant in the proper competitive level or, in the alternative, any
associated error did not impact the appellant’s substantive rights, ID at 15-22; and
(4) the appellant was not denied priority reemployment or consideration
following her separation, ID at 23-27. The administrative judge further found
that the appellant failed to prove her claims of EEO disparate treatment, ID
at 27-33, harmful procedural error, ID at 33-34, or retaliation for engaging in
activity protected by 5 U.S.C. § 2302(b)(9)(B), ID at 34-35.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response, and the appellant has replied. PFR
File, Tabs 3-4.
The appellant’s motion to submit an additional pleading is denied.
After the petition for review, response, and reply, the appellant filed a
motion for leave to submit an additional pleading. PFR File, Tab 6. In short, the
appellant’s representative asserts that he uncovered new and material evidence for
the instant appeal while adjudicating the RIF separation of another agency
employee. Id. at 4-5. The agency filed a motion in opposition to the request.
PFR File, Tab 9.
The Board’s regulations provide for only four types of pleadings on review:
a petition for review, a cross petition for review, a response, and a reply to a
response. 5 C.F.R. § 1201.114(a)(1)-(4). The Board will not accept any other
pleading unless the party files a motion and obtains leave from the Clerk of the
Board to make such filing. 5 C.F.R. § 1201.114(a)(5). That motion must
describe the nature and need for the pleading. Id.
While the appellant did provide some description of the nature and need for
her additional pleading, we are not persuaded. The appellant presents a lengthy3
list of conclusory assertions regarding the content of evidence she would like to
submit, why it is material, and why it was previously unavailable. PFR File,
Tab 6 at 4-11. Like many contained in her petition for review, these assertions
are presented without identifying any evidentiary support. In fact, the appellant’s
lengthy motion does not contain a single citation to the record.
To illustrate our point with an example, the appellant summarily states that
the new evidence—which reportedly consists of deposition testimony and some
additional documents—was previously unavailable because the agency should
have but failed to disclose a particular employee’s involvement in its RIF actions.
Id. at 6. Yet she has not directed us to anything regarding discovery requests and
responses, or other evidence about who was involved in the appellant’s RIF. The
appellant also asserts that the new evidence she wishes to submit “reveals the
agency built its case on false testimony and declarations.” Id. at 5. Yet she has
not directed us to the alleged false testimony or declarations.
The same is true for each of the appellant’s numerous assertions about her
request to submit an additional pleading. Among other things, she asserts or
insinuates that her new evidence demonstrates that the agency had ulterior
motives in conducting the RIF; that the agency altered pertinent records; that the
agency lied about relevant competitive area; that her duties remained despite the
RIF; that the agency should have, but failed to, give her priority reemployment;
and that the agency still has records previously thought to be destroyed. Id.
at 6-11. We are cognizant of the fact that the appellant could not cite to the
purported new evidence, since it was not yet part of the record. Nevertheless, the
appellant’s motion amounts to little more than an extensive list of bare assertions
of improprieties. As such, we deny her motion for leave to submit additional
arguments and evidence.4
The administrative judge did not abuse his discretion in denying the appellant’s
request for sanctions.
The appellant filed multiple requests for sanctions below. E.g., IAF,
Tabs 43, 45. One of those requests concerned the alleged spoliation of evidence.
In particular, the appellant noted that the agency’s former Director of Personnel
Operations provided deposition testimony indicating that she usually took
handwritten notes in meetings—which presumably included meetings during
which the appellant’s RIF was discussed—but probably threw all her notes away
when she separated from the agency. IAF, Tab 43 at 5 (referencing IAF, Tab 24
at 53-56). The administrative judge denied the appellant’s sanctions requests. ID
at 4-5, 22 n.9.
On review, the appellant argues that the administrative judge erred in
failing to grant her request for sanctions in the form of an adverse inference for
the destroyed handwritten notes.2 PFR File, Tab 1 at 19-23. We are not
persuaded. See Leseman v. Department of the Army , 122 M.S.P.R. 139, ¶ 6
(2015) (recognizing that the Board will not reverse an administrative judge’s
determination regarding sanctions absent an abuse of discretion).
Both below and on review, the appellant’s arguments in favor of an adverse
inference rely on an assumption that the handwritten notes at issue should have
been maintained as a matter of law, regulation, or agency policy. E.g., IAF,
Tab 43 at 6; PFR File, Tab 1 at 19-21. However, the appellant has not directed us
to anything establishing the same. For example, the appellant refers to the
2 Within her arguments about spoliation and sanctions, the appellant included some
assertions, such as a claim that “[t]he agency, in bad-faith, altered a page by redacting
critical information from the competitive level code book.” PFR File, Tab 1 at 20.
However, it is unclear how this and other similar assertions relate to the surrounding
arguments about the administrative judge’s ruling on spoliation and sanctions. More
importantly, they amount to little more than bare and cursory assertions, unaccompanied
by citations to the record or pertinent law. As such, we will not address them further.
See Weaver v. Department of the Navy , 2 M.S.P.R. 129, 133 (1980 ) (finding that, before
the Board will undertake a complete review of the record, the petitioning party must
explain why the challenged factual determination is incorrect and identify the specific
evidence in the record that demonstrates the error).5
agency’s document retention handbook, but she does so without identifying where
that exists in the record, if at all. PFR File, Tab 1 at 22. The appellant’s petition
also includes several regulatory citations in support of her document retention
argument, but each appears to contain a typo or some other error, as they do not
correspond with actual regulations. Id. (citing 36 C.F.R. §§ 1222.42, .401;
36 C.F.R. § 1228.104).
Even if we assume that the agency should have but failed to preserve the
Director of Personnel Operations’ handwritten notes, we are not convinced that
the administrative judge abused his discretion in denying the request for
sanctions. Both below and on review, the appellant relies on our reviewing
court’s decision in Kirkendall v. Department of the Army , 573 F.3d 1318 (Fed.
Cir. 2009) to support her argument in favor of an adverse inference. Yet that case
is distinguishable from the circumstances at hand. In Kirkendall, the underlying
claim involved the rejection of a disabled veteran’s application for a vacant
position. Kirkendall, 573 F.3d at 1320. The court found that an adverse
inference was appropriate when the agency had destroyed the applications and
associated materials for other applicants. Id. at 1325-27. Among other things,
the court noted that the destroyed documents were undoubtedly relevant, and their
absence hampered or imperiled the appellant’s ability to compare his treatment to
the treatment of others and show that his rights were violated. Id. at 1326-27.
Here, the relevance and importance of the Director of Personnel
Operations’ handwritten notes is far less apparent. The deposition testimony the
appellant referred to suggests that the Director of Personnel Operations
oftentimes took a notebook to meetings, in which she took “notes to jog [her]
memory on something that [she] needed to do.” IAF, Tab 24 at 55. In other
words, she may have taken some RIF-related notes, but we are left to speculate as
to whether those notes were of any evidentiary value in this appeal. There is no
indication that the destroyed notes were the only, or even a primary, record of the
appellant’s RIF. Instead, the limited information the appellant has directed us to6
suggests that the destroyed notes consisted of little more than lists of to-dos or
other memory joggers, which is dissimilar to the destroyed evidence at issue in
Kirkendall.
The administrative judge properly sustained the appellant’s RIF.
In a RIF appeal such as this, the agency must establish by preponderant
evidence that it invoked the RIF regulations for an approved reason and
properly implemented the pertinent regulations, including those concerning
the establishment of an appellant’s competitive area and competitive level.
5 C.F.R. §§ 351.201(a)(2), .402, .403; see Abakan v. Department of
Transportation, 98 M.S.P.R. 662, ¶ 6 (2005). The appellant presents a number of
arguments or assertions that touch on these requirements, which we will address
in turn.
The reason for the RIF
Again, the agency’s burden includes proving that it invoked the RIF
regulations for an approved reason. Section 351.201(a)(2) lists the permissible
reasons to include, among other things, a lack of work or reorganization. See
Losure v. Interstate Commerce Commission , 2 M.S.P.R. 195, 199 (1980)
(describing an older iteration of the regulation that similarly included lack of
work and reorganization as permissible reasons for a RIF). The administrative
judge found that the agency proved that it invoked the RIF regulations for those
reasons—lack of work and reorganization. ID at 7-12. He credited a declaration
from the Director of VISTA, which contained an extensive description of the
appellant’s duties in her Program Assistant position, her workload, and an overall
need for reorganization of the VISTA program. ID at 8; IAF, Tab 114 at 7-10.
We note that this is further supported by, inter alia, a contemporaneous
memorandum describing the reorganization. IAF, Tab 53 at 63-64.
The administrative judge found no merit to the appellant’s various rebuttal
arguments. ID at 9-12; see Abakan, 98 M.S.P.R. 662, ¶ 6 (explaining that an7
agency may establish a prima facie case on the bona fides of its decision by
coming forward with evidence showing a RIF was undertaken for one of the
approved reasons, after which the burden of going forward with rebuttal evidence,
but not the burden of persuasion, shifts to the employee). Among other things, he
recognized that the appellant had identified some evidence of the agency posting
and filling vacancies before and after her separation, but that evidence did not
invalidate the agency’s rationale for the RIF because it involved agency-wide
recruitment, not recruitment specific to the appellant’s VISTA unit in
Washington, D.C. ID at 9-10 (referencing IAF, Tab 57 at 64-83, Tab 58 at 61-67,
Tab 87 at 66).
On review, the appellant again refers to the agency hiring other employees
as if that shows the agency’s reason for the RIF was invalid, PFR File, Tab 1
at 16, but she has not presented any basis for us to reach a conclusion different
than the administrative judge. She has not, for example, directed us to any
evidence showing what the agency hired new employees to do, where they were
hired, or why their hiring would rebut the agency’s two-fold rationale for the RIF
—lack of work and reorganization. See Weaver v. Department of the Navy ,
2 M.S.P.R. 129, 133 (1980 ). The appellant separately argues that the
administrative judge “changed the agency’s rationale for the RIF, from lack of
clerical support to automation, even though that was rebutted by [the] appellant’s
first-line supervisor.” PFR File, Tab 1 at 16 (citing IAF, Tab 61 at 72-73, 76-77).
In doing so, she cites some specific deposition testimony of her supervisor, but it
is not apparent to us how that testimony, which generally discusses the evolution
of the appellant’s position over a number of years, bears any relevance to the
question of whether the agency invoked the RIF regulations for an approved
reason. IAF, Tab 61 at 72-73, 76 -77. Moreover, despite the appellant’s
assertion, we find no inconsistency between the agency’s rationale, as described
in the VISTA Director’s statement, made under the penalty of perjury, and the8
administrative judge’s discussions of the same. Compare ID at 8, with IAF,
Tab 114 at 7-10.
Competitive area
The pertinent regulations provide that, in conducting a RIF, an agency must
delineate one or more competitive areas in which employees compete for
retention. 5 C.F.R. § 351.402(a). A competitive area must be defined solely in
terms of the agency’s organizational units and geographical location, and the
minimum competitive area is a subdivision of the agency under separate
administration within the local commuting area. 5 C.F.R. § 351.402(b).
The agency identified the competitive area for its RIF as the VISTA office
in Washington, D.C. E.g., IAF, Tab 7 at 81. To the extent that the appellant
argued that the competitive area should have or did also include the VISTA office
in Austin, Texas, where a vacant position was eliminated around the same time as
the appellant’s separation by RIF, the administrative judge was not persuaded. ID
at 13-14. He further found that there was no evidence that the appellant would
have been retained, even if the competitive area had included the VISTA Austin
office. ID at 14-15. Finally, the administrative judge found that, even if the
agency violated 5 C.F.R. § 351.402(c), which requires that a description of the
competitive area be submitted to the Office of Personnel Management (OPM) for
approval if the competitive level will be in effect less than 90 days prior to the
effective date of a RIF, the error did not affect the appellant’s substantive
entitlements. ID at 15; see Foster v. Tennessee Valley Authority , 87 M.S.P.R. 48,
¶¶ 10, 13 (2000) (stating that the Board will not reverse a RIF action if an agency
fails to comply with the RIF regulations but the error had no adverse effect on the
employee’s substantive entitlements).
On review, the appellant reasserts that the competitive area for her RIF did
include VISTA Austin, despite her RIF notice and other evidence reflecting
otherwise. PFR File, Tab 1 at 10-11. She does so, in part, by alleging that the
aforementioned reorganization memorandum listed the competitive area as9
including VISTA Austin. However, that is a mischaracterization of the evidence.
While the memorandum the appellant cites does discuss reorganization of both
offices, the memorandum is silent regarding the designated competitive area for
the RIF. IAF, Tab 53 at 63-65. The other evidence the appellant referred us to,
which indicates that some positions outside of VISTA DC were eliminated around
the same time as the appellant’s, is similarly silent regarding the competitive area
for the appellant’s RIF. IAF, Tab 58 at 72, Tab 61 at 198-99. Further, while the
appellant presents a bare assertion that she would have been retained over VISTA
Austin employees if that office were included in the competitive area, PFR File,
Tab 1 at 10-11, she has identified no evidence to show that the administrative
judge erred in concluding otherwise, see Weaver, 2 M.S.P.R. at 133.
Elsewhere in her petition, the appellant asserts that there is “substantial
evidence showing the agency defined the competitive area on the basis of where
[the] appellant’s work was performed, which is prohibited.” PFR File, Tab 1
at 16-17. Setting aside whether the appellant is accurately characterizing
the limitations on an agency’s establishment of a competitive area, she has
again failed to identify what evidence supports her claim. See Weaver,
2 M.S.P.R. at 133. The lone record citation the appellant provided appears to be
a typo, because it refers to a discussion of reemployment rights, not the
applicable competitive area. PFR File, Tab 1 at 17 (citing IAF, Tab 60 at 20).
In what appears to be her final argument pertaining to the competitive area
of her RIF, the appellant reasserts that the agency failed to comply with
5 C.F.R. § 351.402(c), the provision requiring OPM approval if a competitive
level is established less than 90 days before a RIF. PFR File, Tab 1 at 23-24.
However, she failed to present any argument about the administrative judge’s
findings concerning the same, i.e., that any such error on the part of the agency
did not affect the appellant’s substantive entitlements. ID at 15. Therefore, we
will not address the matter further.10
Competitive level
The agency bears the burden of proving that the appellant’s competitive
level was properly drawn. McKenna v. Department of the Navy ,
105 M.S.P.R. 373, ¶ 10 (2007). To meet its burden, the agency must establish
distinguishing features between positions in separate competitive levels that are
sufficient as a matter of law to find that the positions are not “similar enough in
duties, qualifications requirements, pay schedules, and working conditions so that
an agency may reassign the incumbent of one position to any of the other
positions in the level without undue interruption.” Id. (quoting 5 C.F.R.
§ 351.403(a)(1)). “Without undue interruption” means without any loss to
productivity beyond that normally expected in the orientation of any new, but
fully qualified employee. Id., ¶ 10 & n.2; see 5 C.F.R. § 351.203. Absent
evidence of patent unfairness or bad faith, the Board may properly defer to an
agency’s determination of the requirements an individual must satisfy to qualify
for a particular position. Hayes v. Department of Health and Human Services ,
829 F.2d 1092, 1100 (Fed. Cir. 1987).
The agency assigned the appellant to competitive level 0005. IAF, Tab 7
at 81. According to the agency and its documentation of the VISTA Washington
D.C. office, there were no employees for the appellant to compete with for
retention; she was the only Program Assistant, the only employee in her grade
and classification series, and the only employee in her competitive level. Id.
at 11, 96-118, 122.
Both below and on review, the appellant has argued that she should have
been placed in competitive level 0013, not 0005, where she would have competed
with, and been retained over, one other individual—a temporary appointee in a
Program Support Assistant position. E.g., PFR File, Tab 1 at 6-10. The
administrative judge found that the record presented a muddled picture
concerning the appellant’s competitive level, or at least its coding. ID at 16.
Among other things, he recognized and considered conflicting documentation11
about the coding number identified as the appellant’s competitive level, i.e., 0005
or 0013. ID at 16-18. Nevertheless, the administrative judge found that the
appellant’s Program Assistant position was not mutually interchangeable with the
Program Support Assistant position. ID at 18-21. Among other things, he noted
that the former included a broad scope of duties and required a broad set of
abilities. ID at 19-20. To illustrate, one of the many duties of the appellant’s
Program Assistant position was to “[a]ssist[] in the development, management,
and implementation of grant programs and initiatives in conjunction with
[agency] priorities.” IAF, Tab 50 at 45. An associated job requirement was
“[k]nowledge of grants management including program and proposal
development; program implementation and management.” Id. at 46. Another job
requirement was “basic working knowledge of the procurement fundamentals
related to a large government or non-profit environment.” Id. In contrast, all of
the duties and job requirements for the Program Support Assistant position
generally involved event planning and coordinating. IAF, Tab 53 at 44-45.
Therefore, regardless of coding numbers, the administrative judge concluded that
the agency properly determined that the Program Assistant and Program Support
Assistant did not belong in the same competitive level. ID at 21.
The appellant’s arguments on review do not persuade us otherwise.
Throughout her petition, the appellant reiterates that the temporary Program
Support Assistant would have been separated before or instead of her if their two
positions had been in the same competitive level. PFR File, Tab 1 at 7-10, 15-16.
She also directs us to inconsistencies in the record regarding the coding for her
position, like those specifically discussed by the administrative judge. Id.
at 6-10. However, the appellant has failed to present any substantive argument
about the underlying question—whether her Program Assistant position was
mutually interchangeable with the Program Support Assistant position or any
other position in VISTA Washington D.C., such that they belonged in the same
competitive level. Instead, the appellant summarily asserts that the12
administrative judge abused his discretion in finding that her Program Assistant
position and that of the Program Support Assistant were not interchangeable. Id.
at 10. We will not address this bare assertion any further. See Weaver,
2 M.S.P.R. at 133.
Uniform and consistent application of the RIF provisions
Separate from her arguments about the reason for the RIF, the competitive
area, and the competitive level, the appellant argues that the RIF was improper
because it was not carried out in the same way as other agency RIFs. PFR File,
Tab 1 at 14-15 (referencing 5 C.F.R. § 351.201(c)). Specifically, the appellant
alleges that other RIFs were both proposed and approved, while the RIF that led
to her separation was merely proposed, without ever being formally approved. Id.
As an initial matter, it is not apparent to us that the appellant preserved this
argument by raising it below. See Banks v. Department of the Air Force ,
4 M.S.P.R. 268, 271 (1980) (stating that the Board generally will not consider an
argument raised for the first time in a petition for review absent a showing that it
is based on new and material evidence not previously available despite the party’s
due diligence). The issue is not identified below in her written submission
identifying the issues for adjudication, the administrative judge’s close of record
order, or the initial decision. IAF, Tab 86 at 1-2, Tab 87 at 15; ID at 7.
Moreover, even if the appellant both preserved the argument and accurately
identified a difference among the agency’s RIFs, her reliance on 5 C.F.R.
§ 351.201 is misplaced. The regulation provides that an “agency is responsible
for assuring that the [RIF] provisions . . . are uniformly and consistently applied
in any one reduction in force .” 5 C.F.R. § 351.201(c) (emphasis added). It is
silent as to inconsistencies between separate RIFs.
The administrative judge made proper findings regarding priority consideration
and reemployment.
In addition to disputing the merits of her separation by RIF, the appellant
presented an alternative argument. She asserted that, if her RIF separation was13
proper, the agency should have but failed to give her priority consideration and
reemployment. E.g., IAF, Tab 87 at 80-82. The administrative judge disagreed
for several reasons. ID at 23-26. Among other things, he found that, while
agency policy did provide for priority consideration in certain circumstances, the
appellant failed to complete the associated paperwork and failed to apply for any
position, both of which were required under the agency’s policies. ID at 24-25;
IAF, Tab 6 at 41, Tab 7 at 91.
On review, the appellant summarily asserts that she did complete the
appropriate paperwork. PFR File, Tab 1 at 11. Yet she has failed to identify
where we might find that paperwork in the record. And the reemployment
priority list registration form we have located is incomplete, just as the
administrative judge found. ID at 25; IAF, Tab 7 at 91. The appellant provided
some basic biographical information, but she failed to otherwise complete the
form by identifying the positions for which she wished to be considered. IAF,
Tab 7 at 91.
The appellant also suggests that it was not her responsibility to search for
and apply to vacant positions. Instead, she argues that the agency should have
notified her of any positions that became available during the 1-year
reemployment period, and deposition testimony proves as much. PFR File, Tab 1
at 11-12. According to the appellant, the agency stated it was obligated to notify
her of vacant positions. Id. at 12. We disagree. In deposition testimony she has
referred us to, the Chief Human Capital Officer explained that, if the appellant
had completed the appropriate paperwork and was qualified for a position that
became available, “[he] would assume that they would have notified her.” IAF,
Tab 60 at 77, 116. He then noted, though, that he did not know whether the
agency was obligated to do so. Id. at 116. And the written policies we located in
the record contain no such obligation. IAF, Tab 6 at 41, Tab 7 at 40. As a result,
we discern no basis for disagreeing with the administrative judge’s conclusion;
the appellant was not improperly denied priority consideration and reemployment.14
We are not persuaded by the appellant’s arguments or the ambiguous deposition
testimony to which she has referred.
The appellant’s remaining arguments are unavailing.
The appellant has presented a number of other arguments, but we are not
persuaded by any of them. To illustrate, she asserts that the administrative judge
erred in denying her affirmative defense of age and race discrimination. PFR
File, Tab 1 at 12-13. However, in doing so, the appellant has simply claimed that
she presented evidence relevant to her discrimination claims, without providing
relevant citations to the record and without identifying any specific error by the
administrative judge. Id.; see Weaver, 2 M.S.P.R. at 133. Other arguments, such
as one that her separation by RIF was motivated by agency bias and disdain for
her, personally, fail for the same reason. PFR File, Tab 1 at 24-28.
We separately note the appellant’s assertion that she offered proof of prior
inconsistent and conflicting statements of agency officials, but the administrative
judge ignored the same. Id. at 17-19. In making this argument, the appellant did
not specifically identify any inconsistent or conflicting statements that the
administrative judge should have further considered. Instead, she refers us to a
portion of her closing argument from below, wherein the appellant presented
extensive allegations of inconsistencies and improprieties. Id. at 17 (citing IAF,
Tab 87 at 46-62, Tab 122 at 5-6). For example, the first of those arguments from
below is that the agency provided conflicting statements about whether a
particular agency official was her second or third level supervisor. IAF, Tab 87
at 47-48. The next is an insinuation that, based in part on his pay history, this
same official was biased and unqualified. Id. at 48. While the aforementioned
arguments are of little or no apparent relevance to the issues at hand, some others
are unavailing because they amount to bare assertions, unsupported by citations to
evidence. Id. at 48-49. More importantly, in the absence of more specific
arguments and citations to the record in her petition for review, we will not pore
over the appellant’s extensive closing argument from below to compare it with15
the initial decision in search of errors. See 5 C.F.R. § 1201.114(b) (a petition for
review states a party’s objections to the initial decision, including all of the
party’s legal and factual arguments, and must be supported by references to
applicable laws or regulations and by specific references to the record); see also
Marques v. Department of Health and Human Services , 22 M.S.P.R. 129, 132
(1984) (stating that the administrative judge’s failure to mention all of the
evidence of record does not mean that he did not consider it in reaching his
decision), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
In conclusion, the appellant’s petition for review presents no basis for
reaching a conclusion different than that of the administrative judge, sustaining
the appellant’s separation.
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.16
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 obtain17
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 18
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. 19
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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.20 | Little_Kathy_L_DC-0351-17-0747-I-1__Final_Order.pdf | 2024-05-29 | KATHY L. LITTLE v. CORPORATION FOR NATIONAL AND COMMUNITY SERVICE, MSPB Docket No. DC-0351-17-0747-I-1, May 29, 2024 | DC-0351-17-0747-I-1 | NP |
1,320 | https://www.mspb.gov/decisions/nonprecedential/Akerman_MartinDC-3443-22-0639-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARTIN AKERMAN,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-3443-22-0639-I-1
DATE: May 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Martin Akerman , Arlington, Virginia, pro se.
William R. Kraus , Alexandria, 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,
dismissing his appeal of the decision by the Office of the Inspector General for
the Intelligence Community (IC OIG) declining to review the closure of his
Department of Defense Office of the Inspector General complaint for lack of
jurisdiction. The appellant has filed a petition for review,2 stating that this appeal
“is a continuation of PPD-19 claims which were brought back to MSPB under
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
authority granted to handle 2302(b)(8) claims.” Petition for Review (PFR) File,
Tab 1 at 4. He also argues that he is entitled to default judgment because the
agency did not respond to the jurisdictional order, and requests that the Board
issue a final decision in his favor.3 Id. at 3, 5. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
2 On June 26, 2023, the appellant filed a pleading entitled “Request to Withdraw PFR,”
stating that he was “respectfully requesting the withdrawal of [his] petition for review.”
Petition for Review (PFR) File, Tab 14 at 3. Consistent with Board policy, the Office
of the Clerk of the Board responded to the appellant, informing him that “to ensure the
appellant’s request to withdraw his petition for review is knowing and voluntary, the
appellant is ordered to submit a brief pleading within 7 days of the date of this Order
confirming that his request to withdraw his petition for review is voluntary and that he
understands the withdrawal is with prejudice to refiling with the Board.” PFR File,
Tab 15 at 2 (emphasis removed). Thereafter, the Office of the Clerk of the Board
issued a second order again informing the appellant of the steps necessary to withdraw
his petition for review. PFR File, Tab 17. That order also informed the appellant that if
he did not file a pleading confirming his intent to withdraw his petition for review, the
Office of the Clerk of the Board would not act on his request to withdraw the petition
for review, and the Board would instead issue a decision. Id. at 1-2. The appellant
filed multiple pleadings which were rejected as noncompliant by the Office of the Clerk
of the Board, but to date, the appellant has not filed a pleading confirming his intent to
withdraw his petition for review. PFR File, Tabs 16, 18-20. Therefore, the Board is
issuing this decision addressing the appellant’s petition for review.
3 The appellant also filed two motions for leave to file new evidence, claiming that he
had evidence of due process violations and harmful error, and stating that he consents to
the intervention of the Office of Special Counsel (OSC). PFR File, Tabs 10, 12. As an
initial matter, OSC has not requested to intervene in this matter. Regarding the new
evidence the appellant seeks to file, the appellant has not provided any details regarding
the evidence he wishes to submit, or the relevancy thereof, and thus we deny the
appellant’s motions. 5 C.F.R. § 1201.114(k). 2
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The administrative judge found that the appellant failed to present any
evidence or argument establishing the Board’s jurisdiction over IC OIG’s
decision. Initial Appeal File (IAF), Tab 7, Initial Decision at 3-4. On review, the
appellant has presented no basis to disturb the administrative judge’s findings.4
See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997) (stating that 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); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (same). However, to the extent that the appellant
contends that the issues in this appeal should be considered in his appeals in
MSPB Docket Nos. DC-1221-22-0257-W-2 and DC-1221-22-0445-W-2, the
appellant may raise that argument with the administrative judge, in a manner that
is both consistent with Board regulations and any instructions set forth by the
administrative judge.
4 Although we agree with the administrative judge that the appellant failed to establish
jurisdiction over his appeal, she applied the nonfrivolous allegation standard, when, per
the Board’s regulations, the appellant is required to prove jurisdiction by preponderant
evidence. Initial Decision (ID) at 3-4; 5 C.F.R. § 1201.56(b)(2)(i)(A). However,
because we agree with the administrative judge that the appellant failed to meet the less
rigorous nonfrivolous allegation standard, he cannot meet the more stringent
preponderant evidence standard. ID at 3-4. Therefore, the administrative judge’s error
does not serve as a basis to disturb the initial decision. 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).3
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s6
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Akerman_MartinDC-3443-22-0639-I-1__Final_Order.pdf | 2024-05-29 | MARTIN AKERMAN v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-3443-22-0639-I-1, May 29, 2024 | DC-3443-22-0639-I-1 | NP |
1,321 | https://www.mspb.gov/decisions/nonprecedential/Jadue_GeorgeDE-0752-21-0062-I-2__Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GEORGE JADUE,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency. DOCKET NUMBER
DE-0752 -21-0062- I-2
DATE: May 29 , 2024
Dominick D. Schumacher, Esquire, and James M. Eisenmann, Esquire,
Washington, D.C., for the appellant.
Sung Lee, Esquire, Houston, Texas, for the agency.
Larry Zieff, Esquire, Irving, Texas, for the agency.
Michelle Morton, Esquire, El Paso, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Chairman Harris issues a separate opinion.
Vice Chairman Limon issues a separate opinion.
ORDER
The appellant has filed a petition for review of the initial decision which
sustained his removal. The two Board members cannot agree on the disposition
of the petition for review. Therefore, the initial decision now becomes the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the
Code of Federal Regulations, section 1200.3(b) (5 C.F.R. § 1200.3(b)). This
decision shall not be considered as precedent by the Board in any other case.
5 C.F.R. § 1200.3(d).
2
NOTICE OF APPEAL RIGHTS1
You may obtain review of the 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 the 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:
1 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 the final 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
4
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) 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
5
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.2 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
2 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:
Washington, D.C. /s/
Gina K. Grippando
Clerk of the Board
SEPARATE OPINION OF CATHY A. HARRIS
in
George Jadue v. Department of Homeland Security
MSPB Docket No. DE- 0752- 21-0062 -I-2
On Ap
ril 14, 2018, the agency removed the appellant based on
11 specifications of lack of candor, all of which concerned information that the
appellant provided or failed to provide about the circumstances under which he
left his previous employment. Jadue v. Department of Homeland Security, MSPB
Docket No. DE- 0752- 21-0062-I- 1, Initial Appeal File (IAF), Tab 11 at 5- 11,
Tab 15 at 5 -12. The appellant contacted an equal employment opportunity (EEO)
counselor, and then, on August 18, 2018, he filed a timely formal complaint of
discrimination. IAF, Tab 28 at 5- 13. On September 4, 2018, the agency accepted
the complaint on the issues of whether the appellant’s removal was based on race, color, religion, or national origin discrimination, or was in retaliation for prior
EEO activity. Id. at 176- 80. On May 22, 2019, the EEO investigator assigned to
the case completed the report of investigation (ROI) and submitted it to the
agency. Id . at 185. Approximately 11 months later, on April 6, 2020, the agency
forwarded a copy of the report to the appellant. IAF, Tab 5 at 5. On October 28,
2020, the agency issued a final agency decision (FAD) finding no discrimination, and on October 30, 2020, it served a copy of that decision on the appellant. Id .
at 4-8. The appellant timely filed the instant mixed- case appeal. IAF, Tab 1; see
5 C.F.R. § 1201.154(b)(1).
After a hearing, the administrative judge issued an initial decision
sustaining the appellant’s removal. Jadue v. Department of Homeland Security, MSPB Docket No. DE- 0752 -21-0062-I- 2, Appeal File, Tab 56, Initial Decision.
The appellant has filed a petition for review, contesting among other things the administrative judge’s ruling on a motion for sanctions that he filed related to the
2
agency’s processing of his EEO complaint. Petition for Review (PFR) File,
Tab 3. For the following reasons, I would remand this appeal for the
administrative judge to reconsider the appellant’s motion.
The appellant’s motion for sanctions was based on the agency’s
“unjustified and unexplained” delay in producing a ROI and FAD. IAF, Tab 17. He argued that the agency was required under 29 C.F.R. § 1614.108(f) to provide
him with a copy of its investigative file within 180 days of the date that he filed his formal complaint. However, it took the agency in this case 612 days to do so. Id. at 13. The appellant further argued that the agency was required under 29
C.F.R. § 1614.302(d)(2), to issue a final decision within 45 days of the ROI’s
completion. Id . at 9. However, the agency was again untimely and did not issue
its decision until 162 days after it was due, thereby compounding its previousdelay in issuing the ROI. Id. at 14. The appellant argued that Equal Employment
Opportunity Commission (EEOC) precedent supports a sanction of defaultjudgment in these circumstances, and he requested that the administrative judgeissue a default judgment, or in the alternative, sanction the agency by excludingcertain evidence or arguments, or making adverse inferences. Id . at 14 -24.
The administrative judge denied the appellant’s motion, explaining that,
when an agency fails to issue a FAD in a mixed case within 120 days, the employee’s remedy is to appeal the matter directly to the Board. IAF, Tab 18 at 1; see 5 U.S.C. § 7702(e)(2); 5 C.F.R. § 1201.154(b)(2). Considering the
absence of Board precedent for sanctions in this situation, he declined “to fashion an additional remedy.” Id .
The Board’s Authority to Issue Sanctions
The Board’s regulations are broadly written to permit an administrative
judge to “impose sanctions upon the parties to serve the ends of justice.” 5 C.F.R. §1201.43. The regulation provides examples of situations in which an
administrative judge may impose sanctions, including when a party fails to comply with a Board order, fails to prosecute or defend an appeal, fails to make a
3
timely filing, or engages in contumacious conduct or conduct prejudicial to the
administration of justice. Id. Notably, the regulation provides that the sanctions
authority “includes, but is not limited to” the aforementioned examples. Id . An
administrative judge may issue a wide range of sanctions, including dismissal of
the appeal for failure to prosecute, or ruling in favor of the appellant for failure to
defend.1 5 C.F.R. § 1201.43(b). Possible sanctions for disobeying an
administrative judge’s order include drawing an inference in favor of the requesting party with regard to the information sought, prohibiting the party failing to comply with an order from introducing evidence concerning the information sought or from otherwise relying upon testimony related to that information, permitting the requesting party to introduce secondary evidence
concerning the information sought, and eliminating from consideration any
appropriate part of the pleadings or other submissions of the party that fails to comply with the order. 5 C.F.R. § 1201.143(a). For a failure to make a timely
filing, an administrative judge may refuse to consider any motion or other pleading that is not filed within the applicable time limit. 5 C.F.R.
§1201.143(c). Before issuing sanctions, the administrative judge should prov
ide
appr
opriate prior warning, allow a response to the actual or proposed sanction
when feasible, and document the reasons for any resulting sanction in the reco rd.
5 C.
F.R. § 1201.43.
Sanctions in Nonmixed Cases
The EEOC’s regulations require agencies to “[p]rovide for the prompt, fair,
and impartial processing of [discrimination and retaliation] complaints” and to
“develop an impartial and appropriate factual record upon which to make
1 Although the Board lacks authority to issue summary judgments in appeals governed
by 5 U.S.C. § 7701, Crispin v. Department of Commerce , 732 F.2d 919, 922- 24 (Fed.
Cir. 1984), the Board’s authority to issue dispositive sanctions has never been
questioned.
4
findings” within 180 days. 29 C.F.R. §§ 1614.102(a)(2), 1614.108(b), (e)- (f).
These regulations provide that “[t]he agency shall complete its investigation
within 180 days of the date of filing of an individual complaint.” 29 C.F.R. §1614.108(e). Further, the agency is required to “provide the complainant with
a
copy
of the investigative file” within that 180- day period. 29 C.F.R.
§1614.108(f). The EEOC deems an investigation to be timely and complete
when, among other actions, the agency provides the complainant with a copy of
the in
vestigative file, including a summary of the investigation, within the
applicable time period. EEO Management Directive (MD) 110, ch. V § 5.D
(Aug
ust 5, 2015).
In nonmixed cases, the EEOC’s Management Directive specifically
contemplates sanctions in the event the ROI is not completed within the regulatory timeframe:
If after reviewing the file, the Administrative Judge determines
that the investigation is inadequate due to the agency’s failure to
complete the investigation within the time limits . . ., or the agency
has not cooperated in the discovery process . . . the Administrative
Judge may take the following actions:
1.
Subject the agency to adverse inference findings in favor of the
complainant;
2. Co
nsider the issues to which the requested information or
testimony pertains to be favorable to the complainant;
3. E
xclude other evidence offered by the agency;
4. P
ermit the complainant to obtain a summary disposition in
his/
her favor (that is, default judgment) on some or all of the
issu
es without a hearing; or
5. Tak
e other action deemed appropriate, including, but not
limited to, requiring the agency to pay any costs incurred by t he
comp
lainant in taking depositions or in conducting any other form
of discovery.
. . . .
However, before an Administrative Judge may sanction an agency
for failing to develop an impartial and appropriate factual record or
for not cooperating in the discovery process, the Administrative
5
Judge must issue an order to the agency or request the documents,
records, comparative data, statistics, or affidavits. Such order or
request shall make clear that sanctions may be imposed and the type
of sanction that could be imposed for failure to comply with the
order unless the agency can show good cause for that failure. In
appropriate circumstances, the order or request may provide the
agency with an opportunity to take such action as the Administrative Judge deems necessary to correct the deficiencies in the record
within a specified reasonable period of time. Only on the failure of
the agency to comply with the Administrative Judge’s order or
request and the notice to show cause may the Administrative Judge
impose a sanction or the sanctions identified in the order or request.
EEO MD 110, ch. 7 § III.A (citations omitted). Nevertheless, the EEOC’s
Handbook for Administrative Judges (AJ) states that an administrative judge does
not need to issue a show cause order when the agency has failed to comply with
the EEOC’s regulations and the agency was on notice that its conduct could be
sanctioned. See EEOC AJ Handbook, ch. § 6.II.a. Further, “[a]n Order to Show
Cause is not necessary where a party has filed a motion for specific sanctions and the non- moving party has had an opportunity to respond.” Id .
The EEOC has found an entry of default judgment in favor of a
complainant to be an appropriate sanction in cases where the agency failed to investigate the complaint within 180 days in violation of the EEOC’s regulations.
For example, in Reading v. Department of Veterans Affairs, EEOC Appeal
No. 07A40125, 2006 WL 2992420 (Oct. 12, 2006), the EEOC upheld the
administrative judge’s entry of default judgment as an appropriate sanction for a
violation of 29 C.F.R. § 1614.108(e), because the agency did not dispute that an investigation was completed or even conducted within the 180- day period.
Likewise, in Royal v. Department of Veterans Affairs, EEOC Appeal No. 0720070045, 2009 WL 3163287 (Sept. 25, 2009), the EEOC upheld an entry
of default judgment against the agency for failure to complete the investigation within 180 days. The EEOC looked at four factors in determining whether the sanction of default judgment was warranted: (1) the extent and nature of the
6
noncompliance, including the justification presented by the noncomplying party;
(2)the prejudicial effect of the noncompliance on the opposing party; (3) the
consequences resulting from the delay in justice, if any; and (4) the effect on theintegrity of the EEO process. Id .
The EEOC observed as follow:
[G]iven the length of time that the processing of a federal sector
EEO complaint can take, any delays past the time frames in the
regulations can impact the outcome of complainant's claims
.
Witn
esses may retire or leave the agency, often without notice, or
documents may be misplaced or destroyed (either intentionally ornot) when the responsible party is not notified to maintai
n the
docu
ments as relevant to an ongoing EEO investigation. The
agency’s assertion that complainant did not suffer any prejudice isspeculative, at best.
Royal, 2009 WL 3163287, at *6. The EEOC continued:
[W]e find that in the case where an agency has not initiated an
investigation that could reasonably be completed within the 180- da
y
time
frame, the fourth factor, the effect on the integrity of the EEO
proce
ss, is paramount. Protecting the integrity of the 29 C.F.R. Part
1614 process is central to the Commission’s ability to carry out itscharge of eradicating discrimination in the federal sector. As we
noted in our previous decision, the Commission has the inherent
power to protect its administrative process from abuse by either
party and must insure that agencies, as well as complainants, abide
by its regulations. We have previously issued cases in which wehave affirmed actions taken by [administrative judges] which
were
desi
gned to bring to account an agency’s non -compliance with the
regulations or with Orders issued by an [administrative judge].
Id. (emphasis added). The EEOC concluded:
Thus, we find that a sanction in the form of a default judgment is the appropriate sanction in this case. This decision turns on the fact that
the agency failed to commence an EEO investigation that could
reasonably be completed within the 180 -day period following the
filing of the formal complaint, as required by the regulations.
Id.; see also Adkins v. Federal Deposit Insurance Corporation, EEOC Appeal
No. 0720080052, 2012 WL 169813 (Jan. 13, 2012) (finding that the
administrative judge did not abuse his discretion in issuing a decision fully in
7
favor of the complainant as a sanction for the agency’s excessive delay in
completing the investigation); Lomax v. Department of Veterans Affairs, EEOC
Appeal No.0720070039, 2007 WL 2981091 (Oct. 2, 2007) (upholding an entry of default judgment against the agency for its failure to conduct the investigation in
the 180- day period); Montes -Rodriquez v. Department of Agriculture , EEOC
Appeal No. 0120080282, 2012 WL 252677 (Jan. 12, 2012) (entering default
judgment for the complainant where the EEOC ordered an investigation completed in 150 days and the agency delayed 202 days before initiating the formal investigation, noting “[o]ur decision to issue a default judgment will effectively emphasize to the Agency the need to comply with EEOC orders in a timely manner, as well as ensure that future Agency investigations are adequately
developed for adjudication”); Ricardo K. v Department of Veterans Affairs,
EEOC Appeal No. 2020003751, 2021 WL 5890146 (Nov. 6, 2021) (summarily
affirming default judgment where the ROI was approximately 6 months late).
As noted by the EEOC in Cox v. Social Security Administration :
An agency which treats the deadlines in the hearings process, and the
requirement to produce an adequately developed ROI, as optional, based on when its staffing and resources may allow it comply, has a
negative effect on the outcome not only of the immediate case, but
also of any other cases under its jurisdiction, as well as those under
the jurisdiction of annuitant AJ. The Commission must [e]nsure that
agencies, as well as complainants, abide by its regulations and the Orders of its [administrative judges].
EEOC Appeal No. 0720050055, 2009 WL 5223778, *10 (Dec. 24, 2009); see also
Talahongva -Adams v. Department of the Interior, 0120081694, 2010 WL
2253800, *4 (May 28, 2010) (noting “the agency’s delay in completing the investigation within the 180 -day regulatory period is no small non- compliance
matter”). In Montes- Rodriguez, the EEOC found:
Protecting the integrity of the 29 C.F.R. Part 1614 process is central
to the Commission’s ability to carry out its charge of eradicating
discrimination in the federal sector. An agency which treats the time
deadlines for production of an adequately developed investigation as
8
optional has a negative effect on the outcome not only of the
immediate case, but also of any other cases under its jurisdiction.
The Commission must insure that all parties abide by its regulations
and orders. Our decision to issue a default judgment will effectively
emphasize to the Agency the need to comply with Commission
orders in a timely manner, as well as ensure that future Agency
investigations are adequately developed for adjudication.
2012 WL 252677, at * 7 (citations omitted).
In Dalton E. v. Department of Housing and Urban Development ., EEOC
Appeal No. 0720170038, 2018 WL 6599708 (Nov. 30, 2018), modified on
recons., EEOC Request No. 2019001739 (Sept. 29, 2022), the EEOC found that
sanctions were appropriate where the agency did not learn that a complaint had
been filed and that an ROI had not been produced until about 18 months after the fact. The formal complaint had been filed as a conflict complaint with a different agency, and the agency blamed the other agency for the delay in processing. Dalton E., 2018 WL 65991739, at *3. However, the EEOC rejected this argument stating, “[t]he regulations found at 29 C.F.R. § 1614.108(b) squarely
place the responsibility for an accurate, complete investigation, completed within
180 days, upon the Agency.” Id. While the EEOC initially granted default
judgment, it revised its sanction on reconsideration finding that “the evidentiary
sanction of excluding the Report serves to remedy the Agency’s conduct. Further, once the Report is excluded from evidence, the Agency has not met its burden to offer a legitimate, nondiscriminatory explanation for its actions. Summary judgment for the Complainant therefore is appropriate.” Dalton E .,
EEOC Request No. 2019001739, 2022 WL 10369699, at *4.
In sum, the EEOC has long issued sanctions for an agency’s failure to issue
ROIs in a timely manner. As such, agencies have been on notice for many years that they may be subject to sanctions for their failure to comply with the EEOC’s regulations regarding timely completion of ROIs.
9
The Board’s authority to issue sanctions to serve the ends of justice extends to
the situation in which an agency fails to issue a ROI or FAD within the regulatory
deadlines.
The Board’s authority to adjudicate discrimination claims arises from the
“integrated scheme of administrative and judicial review” contained in the Civil
Service Reform Act (CSRA) of 1978. Hess v. U.S. Postal Service , 124 M.S.P.R.
40, ¶ 9 (2016) ( citing United States v. Fausto , 484 U.S. 439, 445, 108 S. Ct. 668,
98 L.Ed.2d 830 (1988) (finding that a former Federal employee without Board
appeal rights was not entitled to seek judicial review of his suspension), superseded by statute on other grounds as stated in Kaplan v. Conyers, 733 F.3d
1148 (Fed. Cir. 2013)); CSRA, Pub. L. No. 95- 454, 92 Stat. 1111 (codified as
amended in relevant part at 5 U.S.C. §§ 7701- 7703).
The CSRA “provides diverse procedural routes for an employee’s pursuit
of a mixed case” before the Board. Perry v. Merit Systems Protection Board ,
582 U.S. 420, 424 (2017). As the Board observed in Hess , a Senate Report on the
CSRA expressed the intent that the Board consider discrimination claims together with “the employee’s inefficiency or misconduct” as “two sides of the same question.” S. Rep. No. 95- 969, at 53 (1978), as reprinted in 1978 U.S.C.C.A.N.
2723, 2775; Hess , 124 M.S.P.R. 40, ¶ 15. This would permit a “single unified
personnel policy which took into account the requirements of all the various laws and goals governing Federal personnel management.” Hess , 124 M.S.P.R. 40,
¶ 9. The mixed -case appeal process was intended to streamline adjudication,
avoid “forum shopping and inconsistent decisions,” and ensure that “the Board and the [EEOC] work together to resolve any differences.” Id .
Similarly, a joint statement by a Senate and House conference committee
expressed the goal to “maintain[ ] the principle of parity between the MSPB and
EEOC” in the mixed -case appeal process. H.R. Rep. No. 95- 1717, at 139 (1978)
(Conf. Rep.), as reprinted in 1978 U.S.C.C.A.N. 2860, 2873. Therefore, the
Board’s decision in a mixed- case appeal was to “include . . . any remedial order
10
the [EEOC] . . . may impose under law.” H.R. Rep. No. 95- 1717, at 140, as
reprinted in 1978 U.S.C.C.A.N., at 2873. The EEOC was to determine whether
the Board correctly interpreted the laws “over which the EEOC has jurisdiction”
and awarded an appropriate remedy. H.R. Rep. No. 95- 1717, at 140, as reprinted
in 1978 U.S.C.C.A.N. at 2873- 74; Hess , 124 M.S.P.R. 40, ¶ 16.
Regardless of the route taken, an employee’s only right to an evidentiary
hearing in a mixed case is before the Board. Hess , 124 M.S.P.R. 40, ¶ 18. If the
employee chooses to first file an EEO complaint with the agency in a mixed case, the agency is required by statute to “resolve such matter within 120 days.” 5 U.S.C. § 7702(a)(2). Thereafter, the employee must file an “appeal within
30 days after the appellant receives the agency resolution or final decision on the
discrimination issue; or (2) If the agency has not resolved the matter or issued a final decision on the formal complaint within 120 days, the appellant may appeal the matter directly to the Board at any time after the expiration of 120 calendar days. Once the agency resolves the matter or issues a final decision on the formal complaint, an appeal must be filed within 30 days after the appellant receives the agency resolution or final decision on the discrimination issue.” 5 C.F.R. §1201.154(b).
Although a mixed- case complainant may appeal to the Board prior to the
issuance of a FAD once 120 days have passed, the complainant may wish and has the right to await the issuance of an ROI and then a FAD. In that case, the EEOC’s regulations state that the agency has 180 days from the date of the filing of the formal complaint to issue its ROI. 29 C.F.R. §1614.108(f). However,
given the statutory imperative that the matter be concluded either through resolution or a FAD at the Agency level within 120 days, 5 U.S.C. § 7702(a)(2),
the ROI and FAD should both be completed well before 180 days to ensure
compliance with the statute.
The Board, in applying substantive discrimination law, defers to the EEOC.
Hess , 124 M.S.P.R. 40 ¶ 10; Southerland v. Department of Defense, 122 M.S.P.R.
11
51, ¶ 12 (2014) (observing that the Board generally defers to the EEOC on
substantive discrimination law). The Board should therefore defer to the EEOC that agencies should be held to complete ROIs within 180 days. This meets Congress’s interest that the Board and the EEOC ensure parity in proceedings and
a streamlining of adjudication in the mixed- case appeals process. As a practical
matter, it does not make sense that employees with claims pending before the
EEOC may expect enforcement of this deadline, whereas employees with mixed- case claims pending before the Board may not. Agencies should not be
incentivized to skip or delay investigations of discrimination complaints just because the types of personnel actions at issue may differ.
As mentioned above, although employees may choose to appeal to the
Board on a mixed -case claim after only 120 days have passed since the filing of a
formal discrimination complaint, 29 C.F.R. § 1614.302(d)(1), the employee also has the right to await the issuance of the ROI and a FAD. When the employee exercises that right, the employee also has the right to expect that the agency will comply with its regulatory obligations to complete its ROI within at least 180 days and issue a FAD 45 days thereafter. 29 C.F.R. § 1614.108;
1614.302(d)(2). Choosing the immediate route to a Board appeal may be
advantageous for certain individuals; indeed, an employee need not even file a
formal complaint in a mixed case prior to proceeding to a Board appeal. But for others, they retain the right to timely receive the complete ROI and a FAD. The FAD may end the matter if the employee is satisfied with the result, obviating the need for further administrative litigation or civil actions. Putting aside the strategic, financial, and practical reasons that an employee may choose one route or the other, the rights are embedded in both statute and regulation.
To ensure the integrity of the process, agencies must be held accountable
when they fail to comply with the deadlines set in the regulations, regardless of whether the employee’s EEO complaint is mixed. The law disfavors a right without a remedy, see Peck v. Jenness, 48 U.S. 612, 623 (1849), and a
12
complainant’s ability to file directly with the Board after 120 days is not a
remedy, but a failsafe, see 5 U.S.C. § 7702(e)(2). Moreover, the Board’s refusal
or failure to impose sanctions in concert with the EEOC would have the perverse effect of incentivizing agencies to prioritize investigations into less serious
personnel actions that are not appealable to the Board.
2
In this case, the appellant exercised his right to await the delivery of both
the ROI and the FAD. The administrative judge denied the appellant’s motion for
sanctions on the grounds that the appellant could have appealed to the Board after 120 days. However, the appellant should not be penalized for exercising his right to await the ROI and FAD. In so waiting, the appellant did not relinquish his right to expect that the agency timely delivered both documents, as required by
statute. 5 U.S.C. § 7702(a)(2)(B). I appreciate the administrative judge’s
reluctance to extend sanctions to the matter given the lack of Board precedent on this issue. However, given the broad nature of the Board’s sanctions regulation, the EEOC’s precedent on the matter, and the egregious delay by the agency in this case, I would find that the administrative judge should consider the merits of the appellant’s motion according to the criteria set forth below.
Criteria for Issuing Sanctions
It would be appropriate for the Board to adopt the Royal factors in
considering a motion for sanctions regarding an agency’s failure to comply with its obligations in completing a ROI or a FAD in a timely fashion. Specifically, an administrative judge should consider (1) the extent and nature of the
2 I recognize that the appellant could petition the EEOC to consider the Board’s
decision under 5 U.S.C. § 7702(b) to seek sanctions even if it were the case that the
Board does not possess such authority. However, it would be unnecessarily cumbersome to force an appellant to do so given the intention to have a single unified personnel policy and maintain the parity between EEOC and the MSPB in such cases. See Hess , 124 M.S.P.R. 40, ¶ 15. As such, I would find that the broad language of the
Board’s sanctions regulation encompasses such authority here.
13
noncompliance, including the justification presented by the noncomplying party;
(2)
the prejudicial effect of the noncompliance on the opposing party; (3) the
consequences resulting from the delay in justice, if any; and (4) the effect on the
integrity of the EEO process.
I recognize that the process for a Federal sector hearing at the EEOC
differs in some respects from a mixed -case hearing before the Board. For
example, before the Board, witnesses may be subpoenaed, whereas the EEOC does not currently have subpoena power. Thus, the prejudicial effect due to witnesses leaving Federal service may be weighed differently. The passage of time is still a pertinent factor in terms of considering the prejudicial effect caused by memory loss and the unavailability of information.
So too, I recognize that such motions for sanctions may not be appropriate
in all mixed cases in which a ROI has not been produced at the time that the appeal is filed before the Board. For example, employees may choose to appeal directly to the Board without filing an EEO complaint. Johnson v. Department of
Justice, 30 M.S.P.R. 141, 142 (1986); see 5 U.S.C. § 7702(a). In those instances,
a ROI or a FAD would not be expected to be issued. Or, in other instances, employees may choose to file their appeals after 120 days have passed since the
filing of the formal complaint. In those cases, the agency’s deadline to complete
the ROI would not have yet tolled.
I agree with the EEOC that the last Royal factor, the effect on the integrity
of the EEO process, is the most important. Equal opportunity lies at the core of the merit systems. Although the EEOC is the primary administrator of Federal sector antidiscrimination laws, the process of enforcing those laws depends on the active cooperation of every Federal agency. It is therefore essential that public
employees and the public at large be confident that individual agencies share this
commitment. As the EEOC stated in Adkins, 2012 WL 169813, at *11, “When federal agencies fail to abide by the most basic and fundamental tenets enshrined in the EEOC’s regulations, the public’s confidence in the integrity and soundness
14
of the EEO process erodes.” As such, we reiterate that the Board will remain
stalwart in ensuring adherence to merit system principles, including antidiscrimination.
I would also have the administrative judge consider the Board’s precedent
on issuing sanctions, including that sanctions may be imposed only insofar as warranted to preserve the ends of justice.
3 Montee v. Department of Justice,
84 M.S.P.R. 1, ¶ 12 (1999). Good faith efforts falling short of full compliance
with an order are to be considered in determining whether a sanction is appropriate. See Crespo v. U.S. Postal Service , 53 M.S.P.R. 125, 130- 31 (1992);
see also Macon v. Department of the Air Force, 46 M.S.P.R. 410, 415 (1990) (explaining that, although the appellant did not show good cause for his complete
failure to comply with certain of the administrative judge’s orders, the fact that
he had made “some effort” to comply with the orders was a reason not to impose sanctions).
Conclusion
In conclusion, I would remand this appeal for the administrative judge to
reconsider the appellant’s motion for sanctions and allow the parties to submit updated briefing and argument on whether sanctions are appropriate, taking into account the Royal factors and the Board’s criteria for issuing sanctions, as well as
the current posture of the case, including that the parties completed discovery and a hearing. Were the administrative judge to determine that sanctions are appropriate, he should consider in the first instance what particular sanction is
3 Sanctions are normally levied for a party’s actions or inactions after the appeal is
filed. However, levying sanctions for some types of pre -litigation conduct, such as
spoliation of evidence or failure to timely process an EEO complaint , would
undoubtedly be appropriate under some circumstances.
15
best suited for the matter. Although a ruling in favor of the appellant may be
appropriate in some circumstances, a lesser sanction may also be imposed.
/s/
Cath
y A. Harris
Chairman
SEPARATE OPINION OF RAYMOND A. LIMON
in
George Jadue v. Department of Homeland Security
MSPB Docket No. DE- 0752- 21-0062 -I-2
Whil
e working in a prior job with the U.S. State Department, the appellant
had his security clearance suspended based on his failure to report in his
background investigation forms that he was a dual citizen and held a passport
from a country other than the United States. As a result, he was indicted in
Federal court on two charges of making false statements and one charge of obstruction of justice. The appellant then entered into an agreement with the U.S. Attorney’s Office in which he agreed to resign from the State Department in exchange for the dismissal of the criminal charges against him.
The appellant thereafter was not fully candid regarding those events when
completing his Department of Homeland Security application and background
forms, as well as during his response to agency interrogatories and interviews.
The agency therefore removed him from his Criminal Investigator position based on a charge of lack of candor supported by 11 specifications.
On appeal after the agency issued a final decision following the appellant’s
equal employment opportunity (EEO) complaint, the Board’s administrative judge sustained the charge (4 of the 11 specifications), found the appellant’s affirmative defenses unproven, and affirmed the removal. The administrative
judge also denied the appellant’s motion for sanctions against the agency. The
appellant had requested sanctions in the form of a default judgment in his favor, the exclusion of certain evidence or arguments, or an adverse inference, based on the agency’s delayed processing of his EEO complaint before the Board appeal was filed, including delays in providing a copy of its investigative file and issuing a final decision. I would affirm the initial decision as modified, to clarify
2
the appropriate standards for the appellant’s discrimination and retaliation
affirmative defenses, and find no abuse of discretion by the administrative judge in denying sanctions.
Regarding the sanctions question, I firmly believe that Federal agencies
must comply with the regulations issued by the Equal Employment Opportunity Commission (EEOC) in terms of providing for the prompt, fair, and impartial processing of discrimination and retaliation complaints. Such timely compliance is essential to the integrity of the EEO process and the mission of eradicating discrimination and retaliation in the Federal sector, and lessens the risk that a processing delay will impact the outcome of a complainant’s claim through, for example, the retirement or departure of witnesses or the loss or destruction of
documents. The agency’s failure to comply with the EEOC’s regulations in this
case is reprehensible. Nevertheless, I also believe that the Board does not currently have the authority to impose sanctions based on such conduct, and that any remedy in that regard must be sought before the EEOC.
Under 5 U.S.C. § 7702(a)(1), the Board “shall . . . decide both the issue of
discrimination and the appealable action in accordance with the Board’s appellate procedures under section 7701 of this title and this section.” There is nothing
within sections 7701- 7702 that permits the Board to “decide” an issue of
discrimination and the appealable action by means of a default judgment sanction,
for example, when an agency does not follow the EEOC’s regulations before an appeal is filed. In fact, Congress spoke to the manner in which agency processing delays would be addressed when it indicated that an agency’s failure to issue a judicially reviewable action in a mixed case within 120 days entitles an employee to appeal the matter to the Board. 5 U.S.C. § 7702(e)(2). Congress could have
set forth other remedies for an employee in that situation but did not. The
EEOC’s regulations similarly provide for a remedy when an agency does not provide a copy of its investigative file within 180 days from the filing of the complaint:
3
If the agency does not send the notice required in paragraph (f) of
this section within the applicable time limits, it shall, within those
same time limits, issue a written notice to the complainant informing
the complainant that it has been unable to complete its investigation
within the time limits required by § 1614.108(f) and estimating a
date by which the investigation will be completed. Further, the
notice must explain that if the complainant does not want to wait until the agency completes the investigation, he or she may request a
hearing in accordance with paragraph (h) of this section, or file a
civil action in an appropriate United States District Court in
accordance with § 1614.407(b). Such notice shall contain
information about the hearing procedures.
29 C.F.R. § 1614.108(g); 29 C.F.R. § 1614.302(d) (providing that the procedures
set forth in “subpart A” shall generally govern the processing of mixed -case
complaints). I further note that, if an appellant in a mixed case is unhappy with
the Board’s ruling on a motion for sanctions for an agency’s failure to comply
with an EEOC regulation, the Board’s final decision may be appealed to the EEOC, where the sanctions issue can be addressed. See Justin R. v. Equal Employment Opportunity Commission , EEOC Doc. No. 0120162687, 2019 WL
7170730 (Nov. 27, 2019) (responding to the complainant’s motion for sanctions
based on an agency’s failure to develop an impartial and appropriate factual record under 29 C.F.R. § 1614.108(b) by noting that, if the Board does not
address the motion to his satisfaction, “then Complainant may raise it with the Commission should he file a petition for consideration by the EEOC from the MSPB’s decision”).
Moreover, there appears to be no express statutory grant of authority for
the Board to impose a sanction. Instead, 5 U.S.C. § 7701(k) and 5 U.S.C. § 1204(h) generally provide that the Board may prescribe such regulations to carry out the purpose of section 7701 and perform the Board’s functions. Pursuant to
those authorities, the Board promulgated 5 C.F.R. § 1201.43. Any potential basis
for a sanction does not, in my view, fall within the authority set forth in that regulation.
4
Section 1201.43 provides as follows:
The judge may impose sanctions upon the parties as necessary to
serve the ends of justice. This authority covers, but is not limited to, the circumstances set forth in paragraphs (a), (b), (c), (d), and (e) of
this section. Before imposing a sanction, the judge shall provide
appropriate prior warning, allow a response to the actual or proposed
sanction when feasible, and document the reasons for any resulting
sanction in the record.
The examples in paragraphs (a)- (e) all involve actions taken by a party
while their appeal is pending before the Board, including failure to comply with
an order, failure to prosecute or defend the appeal, failure to make a timely filing,
and engaging in contumacious conduct. This is consistent with the Board’s
authority under 5 U.S.C. § 1204(a)(2) to order any Federal agency or employee to comply with any order or decision issued by the Board under the authority granted by statute for the Board to hear and adjudicate cases within its jurisdiction, and to enforce compliance with any such order by, for example, threatening to impose a sanction. Although section 1201.43 indicates that the sanction authority is not limited to the circumstances described, a general
principle of statutory or regulatory interpretation, ejusdem generis, is that general
or collective words or phrases that follow the enumeration of specific things will be held to refer to, and interpreted in light of, things of the same kind and with common attributes as those shared by the specified items. See, e.g., Bissonnette
v. LePa
ge Bakeries Park St., LLC ., 601 U.S. 246, 255 (2024) (holding that
specific terms in a statute limit a residual clause, and that a residual clause doesnot “swallow[] up” a statute’s narrower terms); King v. Department of the Ai
r
Forc
e, 122 M.S.P.R. 531, ¶ 7 n.4 (2015). Thus, I interpret section 1201.43 as
authorizing sanctions for behavior by a party that occurs after a Board appeal has
been filed, not behavior that predates the Board appeal. In keeping with thisinterpretation, the regulation contemplates the administrative judge providing an“appropriate prior warning” before imposing a sanction, thereby implying that th
e
warn
ing is intended to persuade the party to change the improper behavior or fa ce
5
the possibility of a sanction. A Board- issued warning provided to an agency for a
delay in providing a copy of an investigative file or issuing a final decision on an
EEO complaint would, by contrast, be essentially meaningless, as it would not likely induce the agency to complete an investigation or issue a final decision
once the Board appeal had already been filed. See 29 C.F.R. § 1614.107(a)(4)
(providing that an agency shall dismiss a complaint when the complainant has
raised the matter in a mixed- case appeal to the Board); 29 C.F.R. §
1614.302(c)(1).
This interpretation is also consistent with the Board’s intent when it
promulgated the sanction regulation in 1979. At that time, section 1201.43 similarly provided that “[t]he presiding official may impose sanctions upon the
parties as necessary to serve the ends of justice, including but not limited to the
instances set forth in paragraphs (a), (b), and (c) of this section,” which included a failure to comply with an order, failure to prosecute or defend, and failure to make a timely filing. 44 Fed. Reg. 38,342, 38,353 (June 29, 1979). In explaining
the amendments to the proposed rule, the Board noted that the section had been revised “to make clear that these sanctions will not be imposed if the parties can demonstrate good cause for their failure to take an action.” Id. at 38,345. The
Board indicated that, while it was sympathetic to the problems that may “arise in the course of a proceeding,” delay “in the proceedings” that harms other parties will not be tolerated, and in order to avoid sanctions, all parties must meet the burden of moving forward in a manner “consistent with these regulations.” This commentary shows that it is behavior by the parties in the course of the proceedings before the Board that may warrant the imposition of sanctions, and that such behavior must be inconsistent with “these regulations,” i.e., the Board’s
regulations, not EEOC regulations.
Interpreting section 1201.43 as permitting the Board to impose sanctions
for actions that pre -date the Board appeal raises similar concerns to those
expressed by the court in King v. Jerome, 42 F.3d 1371, 1373, 1375 -76 (Fed. Cir.
6
1994). In that case, the Board held that an agency’s undue disruption
determination that was made after the issuance of an interim relief order was subject to a “bad faith” review by the Board. The court disagreed and reasoned as follows:
The board argues that these remedies [i.e., alleging a prohibited
personnel practice before the Office of Special Counsel or filing a
discrimination complaint based on an allegedly retaliatory undue
disruption determination] do not give the employee as effective and
efficient relief as its review does. It argues that “review of agency
undue disruption determinations is the most effective and efficient
means of ensuring that agencies do not take retaliatory actions
against employees in the guise of providing interim relief,” and that it would be “absurd to require the time and expense of an additional
administrative action to protect an employee from abuse in the
interim relief process when the Board can effectively protect the
employee at little or no marginal cost.” The answer to this argument
is that the board does not have the authority to determine the most
efficient and effective means to prevent agency retaliation – it has
only as much authority as Congress chooses to give it. Cowan , 710
F.2d at 805; Van Werry, 995 F.2d at 1050. Congress did not grant itthe authority to review an agency’s determination made under
section 7710(b)(2), and it is not for the board to supplant the
remedies Congress expressly provided or create new remedies which
it believes Congress overlooked. See United States v. Fausto, 484
U.S. 439, 108 S. Ct. 668, 98 L.Ed.2d 830 (1988); Carter v. Gibbs
,
909 F.2
d 1452 (Fed. Cir. 1990).
Id. at 1375- 76.
Although it could be argued that it would be more effective and efficient
for the Board to have the same sanction authority as the EEOC when an agency
does not comply with the EEOC’s regulations before an appeal is filed, Congress
did not grant it that authority, and it is not for the Board to create new remedies
that it believes Congress overlooked. Instead, Congress chose to permit employees in those situations to appeal the matter to the Board. As set forth above, the Board’s regulations, in their present form, do not contemplate such sanctions.
7
In sum, while I agree that agencies must comply with the EEOC’s
regulations by completing investigations and issuing final decisions within the
EEOC’s regulatory timeframe, I am not convinced that a remedy for such a violation, which is not an independently appealable action before the Board, lies
with the Board. An administrative judge’s ruling on sanctions is subject to an
abuse of discretion standard, see Social Security Administration v. Levinson, 2023 MSPB 20, ¶ 53, and in light of the foregoing, I see no abuse of discretion
here.
/s/
Raymond
A. Limon
Vice Chairman | Jadue_GeorgeDE-0752-21-0062-I-2__Final Order.pdf | Date not found | null | DE-0752 | NP |
1,322 | https://www.mspb.gov/decisions/nonprecedential/Fitzpatrick_James_F_NY-1221-19-0126-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES FRANCIS FITZPATRICK,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
NY-1221-19-0126-W-1
DATE: May 29, 2024
THIS ORDER IS NONPRECEDENTIAL1
Neal Rosenberg , Esquire, New York, New York, for the appellant.
Daniel Piccaluga , Washington, D.C., 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 his individual right of action (IRA) appeal, finding that it was barred
by the doctrine of res judicata. For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision, and REMAND this
appeal to the New York Field Office for jurisdictional notice and an opportunity
to provide evidence and argument on the issue of Board 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 began his term appointment with the agency as a General
Schedule, grade 7, Miscellaneous Assistant on July 22, 2018.1 Fitzpatrick v.
Department of Homeland Security , MSPB Docket No. NY-1221-19-0126-W-1,
Initial Appeal File (0126 IAF), Tab 17 at 36-38. The appellant’s term
appointment was subject to the satisfactory completion of a 1 -year probationary
period. Id. at 36. Effective October 13, 2018, the agency terminated the
appellant during his probationary period for post -appointment reasons related to
his conduct and work performance. Id. at 17-22.
On October 21, 2018, the appellant filed an appeal with the Board
contesting his probationary termination. Fitzpatrick v. Department of Homeland
Security, MSPB Docket No. NY-315H-19-0019-I-1 ( Fitzpatrick I). The appellant
withdrew his appeal, and the administrative judge subsequently dismissed
Fitzpatrick I with prejudice. Fitzpatrick I, Initial Decision at 1-3 (Nov. 14,
2018). The appellant then filed a petition for review with the Board in
Fitzpatrick I. The Board issued a final order affirming the initial decision in
Fitzpatrick I that dismissed the appeal as withdrawn. Fitzpatrick I, Final Order
at 1-3 (Feb. 20, 2024).
Subsequent to Fitzpatrick I being dismissed by the administrative judge,
the appellant filed an IRA appeal with the Board, alleging that in reprisal for
being a whistleblower, the agency terminated him during his probationary period.
Fitzpatrick v. Department of Homeland Security , MSPB Docket No. NY-1221-19-
0098-W-1 (Fitzpatrick II). The administrative judge dismissed Fitzpatrick II,
finding that the appeal was barred by res judicata based on the initial decision in
Fitzpatrick I that dismissed with prejudice the appellant’s Board appeal of his
probationary termination. Fitzpatrick II, Initial Decision at 1-5 (Apr. 4, 2019).
1 The appellant’s position title is referred to as a Sighted Assistant in some documents,
but a Standard Form 50 in the record and his termination letter refer to the position as a
Miscellaneous Assistant. Fitzpatrick v. Department of Homeland Security , MSPB
Docket No. NY-1221-19-0126-W-1, Initial Appeal File, Tab 17 at 17, 36, 48.2
The administrative judge further held that notwithstanding her finding that the
appeal was barred by res judicata, the appellant failed to satisfy his burden of
proving that he exhausted administrative remedies with the Office of Special
Counsel (OSC) before pursuing his IRA appeal in Fitzpatrick II. Id. at 3-4. The
appellant then filed a petition for review in Fitzpatrick II. The Board issued a
final order in Fitzpatrick II, vacating the portion of the initial decision barring the
appeal on res judicata grounds, and dismissing the appeal for lack of Board
jurisdiction because the appellant failed to prove that he exhausted administrative
remedies with OSC. Fitzpatrick II, Final Order at 1-7 (May 24, 2024).
During the pendency of his petitions for review in Fitzpatrick I and II, the
appellant filed this IRA appeal with the Board, again alleging that his
probationary termination was taken by the agency in reprisal for him being a
whistleblower. 0126 IAF, Tab 1, Tab 7 at 4 (pleading filed by the appellant
clarifying that he seeks the Board to rule on the “whistleblowing aspect” through
this appeal). The administrative judge advised the appellant that this appeal
appeared to be barred by the doctrine of res judicata, and provided him with the
opportunity to demonstrate why his appeal should be permitted to move forward.
0126 IAF, Tab 15. After the appellant responded, the administrative judge issued
an initial decision, dismissing this appeal based on res judicata. 0126 IAF,
Tabs 17-18, Tab 19, Initial Decision (ID) at 1-5. The appellant then filed a
petition for review, to which the agency filed a response and the appellant filed a
reply.2 Petition for Review (PFR) File, Tabs 1, 7, 8.
2 Subsequent to the filing of his petition for review in this case, the appellant filed a
motion with the Board seeking permission to file an additional pleading. Petition for
Review (PFR) File, Tab 4. At this stage of adjudication, the Board’s regulations
generally do not provide for pleadings beyond a petition for review, a cross petition for
review, a response to a petition or cross petition for review, and a reply to a response to
a petition for review. 5 C.F.R. § 1201.114(a)(5). For the Board to consider an
additional pleading, the party must seek leave and describe the nature of and need for it.
Id. We DENY the appellant’s motion, as he did not outline his need to file another
pleading, nor did he describe the pleading’s anticipated content or relevance. PFR File,
Tab 4. 3
ANALYSIS
The doctrine of res judicata prevents repetitious litigation, as it precludes
parties from relitigating claims that were, or could have been, raised in prior
actions. Hooker v. Department of Veterans Affairs , 122 M.S.P.R. 551, ¶ 10
(2015). Res judicata applies when (1) the prior judgment was rendered by a
forum with competent jurisdiction, (2) the prior judgment was final and on the
merits, and (3) the same cause of action and the same parties or their privies were
involved in both cases. Id.
The record in this IRA appeal is not sufficiently developed to determine
whether it is barred by res judicata. The doctrine of res judicata serves as a basis
to dismiss an appeal over which the Board has jurisdiction. Merzweiler v. Office
of Personnel Management , 100 M.S.P.R. 442, ¶ 7 (2005). Yet, when Board
jurisdiction over an appeal is lacking, this doctrine generally will not serve as
appropriate grounds for dismissal. Id. Rather, the appeal should be dismissed for
lack of jurisdiction. Id., ¶¶ 1, 8. For the reasons outlined herein, the question of
whether the Board has jurisdiction over this IRA appeal is an unresolved issue;
and until this issue is resolved, it is not appropriate to apply res judicata to this
appeal. Accordingly, we vacate the initial decision’s conclusion that this appeal
is barred by res judicata.
Both the U.S. Court of Appeals for the Federal Circuit and the Board have
repeatedly held that an appellant must receive explicit information on what is
required to establish an appealable jurisdictional issue. Burgess v. Merit Systems
Protection Board , 758 F.2d 641, 643 -44 (Fed. Cir. 1985); Smyth v. Department of
the Interior, 85 M.S.P.R. 552, ¶ 5 (2000). To establish Board jurisdiction over an
IRA appeal, an appellant must prove that he exhausted his administrative
remedies before OSC and make nonfrivolous allegations that (1) he made a
whistleblowing 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 whistleblowing disclosure or protected activity was a contributing4
factor in the agency’s decision to take or fail to take a personnel action outlined
in 5 U.S.C. § 2302(a). Graves v. Department of Veterans Affairs , 123 M.S.P.R.
434, ¶ 12 (2016).
In this instant case, however, the administrative judge did not notify the
appellant of this jurisdictional requirement, nor did she provide him with an
opportunity to prove that he satisfied such a requirement. Although the
administrative judge issued an order to show cause regarding res judicata, it did
not contain any notice of the Board’s jurisdictional requirements in an IRA
appeal. 0126 IAF, Tab 15. The administrative judge’s error was not cured by the
agency’s submissions or the initial decision. Milam v. Department of Agriculture ,
99 M.S.P.R. 485, ¶ 10 (2005). Thus, we remand this appeal to provide the
appellant with notice of his jurisdictional burden in an IRA appeal and an
opportunity to establish jurisdiction. See Roach v. Department of the Army ,
86 M.S.P.R. 4, ¶¶ 14-15, 19 (2000) (remanding an IRA appeal because the
administrative judge failed to inform the appellant of the Board’s jurisdictional
requirements prior to dismissing the appeal for lack of jurisdiction).
ORDER
For the reasons discussed above, we grant the appellant’s petition for
review, vacate the initial decision, and remand this case to the New York Field
Office. On remand, the administrative judge shall provide the appellant with 5
jurisdictional notice in an IRA appeal and the opportunity to establish jurisdiction
over this appeal.3
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
3 Our final order dismissing the appellant’s IRA appeal in Fitzpatrick II for lack of
Board jurisdiction for failing to exhaust administrative remedies with OSC does not
impact our disposition regarding this appeal. See Bump v. Department of the Interior ,
64 M.S.P.R. 326, 331-33 (1994) (holding that a jurisdictional dismissal of a prior IRA
appeal for failure to exhaust administrative remedies with OSC did not bar a second
IRA appeal of the same claim after OSC remedies were exhausted).6 | Fitzpatrick_James_F_NY-1221-19-0126-W-1__Remand_Order.pdf | 2024-05-29 | JAMES FRANCIS FITZPATRICK v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. NY-1221-19-0126-W-1, May 29, 2024 | NY-1221-19-0126-W-1 | NP |
1,323 | https://www.mspb.gov/decisions/nonprecedential/Chang_Ching_F_SF-0752-17-0466-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHING F. CHANG,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
SF-0752-17-0466-I-1
DATE: May 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ching F. Chang , Hercules, California, pro se.
Cary Elizabeth Zuk and Jacqueline J. Jackson , Esquire, San Francisco,
California, 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 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 appellant 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 did not commit a procedural error in considering the
appellant’s prior discipline and that, even if it did, such an error would not have
been harmful; to find that the appellant did not make a protected disclosure or
engage in protected activity when she was involved with litigation with the
Department of Justice (DOJ) and contacted the agency’s Office of Professional
Responsibility (OPR); to apply the Board’s more recent standards for proving
discrimination and retaliation claims; and to supplement the analysis of the
contributing factor criterion as to the appellant’s whistleblower reprisal
affirmative defense, we AFFIRM the initial decision.
BACKGROUND
The appellant was employed as a GS-8 Enforcement and Removal Assistant
with the agency’s U.S. Immigration and Customs Enforcement (ICE). Initial
Appeal File (IAF), Tab 8 at 26. On August 29, 2016, the agency instructed the
appellant to log in to the Electronic Questionnaires for Investigations Processing
(e-QIP) system to complete the necessary information to facilitate her
reinvestigation. IAF, Tab 9 at 134-42. The appellant did not do so and instead
questioned why she was required to be reinvestigated or to complete the
information. Id. at 134-35, 138-41. On September 12, 2016, the appellant’s2
second-level supervisor instructed her to log in to e-QIP to complete the required
information by close of business on that day. Id. at 129-130. The appellant did
not complete the necessary information at that time. Id. at 60-61, 127-29. In
response, on September 30, 2016, the Deputy Field Office Director issued the
appellant an official Letter of Reprimand for her “willful refusal to comply with
instructions of a supervisor or other management officials.” IAF, Tab 9 at 38-41.
The appellant also did not follow her second-line supervisor’s instruction on
October 3, 2016, to log in to e-QIP to complete the required information by close
of business on October 7, 2016. Id. at 15, 56. Thus, on December 21, 2016, the
agency proposed to suspend the appellant for 14 days and, after considering her
response, imposed the suspension from February 12-25, 2017. Id. at 4-13.
On February 27, 2017, the appellant’s supervisor emailed the appellant
requesting that she complete the required information in e-QIP by close of
business on February 28, 2017. Id. at 105. The appellant responded that she had
outstanding questions regarding the forms. Id. at 100-04.
On March 31, 2017, the Deputy Field Office Director proposed the
appellant’s removal for failure to comply with supervisory instructions on the
basis that she failed to follow her second-line supervisor’s instructions to
complete the e-QIP questionnaire by close of business on February 28, 2017.
IAF, Tab 8 at 38-41. The appellant submitted a written reply to the proposal. Id.
at 33. On May 5, 2017, the agency imposed the removal. Id. at 27-32, 34-37.
The appellant filed the instant appeal challenging the removal. IAF, Tab 1.
After conducting the appellant’s requested hearing, the administrative judge
issued an initial decision sustaining the removal. IAF, Tab 24, Initial Decision
(ID). She found that the agency proved its charge of failure to follow
instructions; the appellant did not establish her affirmative defenses of
discrimination on the bases of sex or national origin, equal employment
opportunity (EEO) or whistleblower retaliation, harmful procedural error, or a
violation of her right to due process; and the agency established that there was a3
nexus between the appellant’s misconduct and the efficiency of the service and
that the penalty was reasonable.2 ID at 4-18.
The appellant has filed a petition for review, the agency has responded in
opposition to the appellant’s petition, and the appellant has replied. Petition for
Review (PFR) File, Tabs 3-6, 8-10.3
DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved the charge of failure to comply with supervisory instructions
to complete the information in e-QIP.
On review, the appellant challenges the administrative judge’s decision to
sustain the charge of failure to follow supervisory instructions to complete the
information in e-QIP. PFR File, Tab 6 at 7-13. Specifically, she asserts that she
had valid questions as to why the agency sought to reinvestigate her and who had
ordered the reinvestigation and that the agency did not provide her with a
reasonable time to complete the necessary forms. Id. She also states that agency
2 The appellant has not challenged the administrative judge’s findings that the agency
proved nexus, that the appellant did not prove harmful procedural error in the selection
of the proposing official, and that the penalty was reasonable. We see no reason to
disturb these findings on review. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98,
106 (1997) (finding no reason to disturb the administrative judge’s findings when she
considered the evidence as a whole, drew appropriate inferences, and made reasoned
conclusions on issues of credibility).
3 The appellant has submitted additional evidence on review in the form of multiple
emails that are dated before she filed this appeal. PFR File, Tabs 3-5, 10. She also
submitted one set of emails from June 2017, which was after she filed her appeal but
before the record closed below, in which she inquired about the status of complaints
that she made with OPR. PFR File, Tab 5 at 260-65. She notes that she brought a hard
drive with this information to the hearing, but she did not present the evidence at that
time. PFR File, Tab 6 at 6. The Board generally will not consider evidence submitted
for the first time on review absent a showing of the following: (1) the documents and
the information contained in the documents were unavailable before the record closed
despite due diligence; and (2) the evidence is of sufficient weight to warrant an outcome
different from that of the initial decision. See Cleaton v. Department of Justice ,
122 M.S.P.R. 296, ¶ 7 (2015), aff’d, 839 F.3d 1126 (Fed. Cir. 2016). The appellant has
not demonstrated that these documents were unavailable before the record closed below,
and, even if she did, we would not consider them because they are not outcome
determinative.4
officials provided her some incorrect information about the investigation. Id.
at 19.
We find that the appellant’s arguments are unpersuasive because the agency
gave her a valid instruction, and, even if it had not done so, she was not entitled
to ignore the instruction. To prove a charge of failure to follow instructions, an
agency must establish that (1) the employee was given proper instructions, and
(2) the employee failed to follow the instructions, regardless of the employee’s
intent. E.g., Powell v. U.S. Postal Service , 122 M.S.P.R. 60, ¶ 5 (2014).
We agree with the administrative judge that the agency provided a valid
instruction, pursuant to its regulations, an Executive Order, and internal policy.
ID at 5. As the administrative judge found, 5 C.F.R. § 731.106, Executive Order
13,488, and ICE policy require the agency to perform periodic reinvestigations of
each ICE employee every 5 years. Id.; IAF, Tab 8 at 79, 86-88. The Office of
Personnel Management conducted the appellant’s last investigation and closed the
investigation on June 13, 2006. IAF, Tab 12 at 41 . Thus, when the agency sent
the email to the appellant in August 2016, it had been more than 5 years since her
last investigation. IAF, Tab 9 at 134-42. Accordingly, the agency provided a
valid instruction to the appellant to provide the requested information in e-QIP.
Further, even if we did not find that the instruction was proper, we still
would sustain the charge. The Board has held that an employee does not have the
unfettered right to disregard an order, even if there is substantial reason to believe
that the order is not proper. See, e.g., Bowen v. Department of the Navy ,
112 M.S.P.R. 607, ¶ 15 (2009), aff’d, 402 F. App’x 521 (Fed. Cir. 2010). Rather,
except in certain limited circumstances wherein obedience would place the
employee in a clearly dangerous situation, or when complying with the order
would cause irreparable harm, the employee must first comply with the order and
then register a complaint or grievance. Id. The appellant has not asserted that
obeying the order to complete the necessary information in e-QIP would have5
placed her in a clearly dangerous situation or that doing so would have caused her
irreparable harm.4
Additionally, we find that her assertion that the agency did not provide her
with sufficient time to complete the required information is without merit. Even
if we disregard the fact that the agency initially requested that the appellant
complete the required information in August 2016, we find that her supervisor
provided her with sufficient time to complete the information when he emailed
her in the morning on February 27, 2017, and instructed her to complete the
information by close of business on February 28, 2017. IAF, Tab 9 at 105.
Accordingly, we find that the agency proved its charge of failure to comply with
supervisory instructions to complete the information in e-QIP. See Archerda v.
Department of Defense , 121 M.S.P.R. 314, ¶¶ 21-23 (2014) (sustaining the charge
of failure to follow instructions when the appellant failed to provide the
additional medical information that the agency requested as part of a periodic
medical examination).
We modify the initial decision to the extent that it found that the agency
committed a procedural error in considering the appellant’s prior discipline and
find that, even if it did commit a procedural error, the error was not harmful.
The appellant argues that the agency violated a prior settlement agreement
when it described past discipline in the proposed removal. PFR File, Tab 6
at 15-17. The administrative judge found that, although it is undisputed that the
agency erred in considering the appellant’s prior discipline, the appellant has not
4 Under 5 U.S.C. § 2302(b)(9)(D), it is a protected activity to refuse to obey an order
that would require an individual to violate a statute. Fisher v. Department of the
Interior, 2023 MSPB 11, ¶ 11. On June 14, 2017, the President signed the Follow the
Rules Act (FTRA), Pub. L. No. 115-40, 131 Stat. 861 (2017), into law. The FTRA
expanded the scope of the protections under section 2302(b)(9)(D) to include refusing
to obey an order that would require the violation of a law, rule, or regulation. Fisher,
2023 MSPB 11, ¶ 12. This expansion does not apply here. The Board has determined
that the expansion does not apply retroactively to events that occurred before it was
enacted. Id., ¶ 19. In any event, the appellant has not claimed that following the
instruction to complete information in e-QIP required her to violate any statutes, rules,
or regulations.6
shown that this constituted harmful error or a violation of her right to due
process. ID at 12-13. As discussed below, we disagree with the administrative
judge to the extent that she found that the agency committed an error because we
find that the agency did not improperly cite prior discipline. However, even if
the agency had committed an error in citing the discipline at issue, the appellant
has failed to prove that the agency committed a harmful procedural error.
We find that the agency did not commit an error when it cited the
appellant’s prior discipline in the proposal and removal decisions because a
settlement agreement allowed it to do so. The record contains a March 2010
settlement agreement in which the parties agreed to expunge the evidence of a
September 2009 removal action and replace it with a 14-day suspension. IAF,
Tab 9 at 143-46. The parties also agreed in that settlement to demote the
appellant from a law enforcement position to her previously held Enforcement
and Removal Assistant position. Id. at 144. Although both the proposing and
deciding officials considered the appellant’s demotion, IAF, Tab 8 at 27, 40, this
did not constitute the agency’s considering the expunged removal. Accordingly,
we find that the agency did not err by citing the demotion as prior discipline.5
Nevertheless, even if the agency committed an error by citing the
appellant’s prior discipline, including her removal, such an error was not harmful.
It is well established that harmful error cannot be presumed; an agency error is
harmful only when the record shows that it 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. LeMaster v. Department of Veterans Affairs , 123 M.S.P.R.
5 An agency may consider an employee’s prior disciplinary record in determining
whether an enhanced penalty for the current charge(s) against the employee is
warranted. See, e.g., Huettner v. Department of the Army , 54 M.S.P.R. 472, 475 (1992).
We find that the prior discipline at issue met the relevant Bolling criteria. Bolling v.
Department of the Air Force , 9 M.S.P.R. 335, 339-40 (1981) (explaining that the
Board’s review of a prior disciplinary action is limited to determining whether that
action was clearly erroneous, if the employee was informed of the action in writing, if
the action is a matter of record, and if the employee was permitted to dispute the
charges before a higher level of authority than the one that imposed the discipline). 7
453, ¶ 14 (2015); 5 C.F.R. § 1201.4(r). The appellant has failed to demonstrate
how not citing her prior discipline would have changed the result in this case.6
We agree with the administrative judge that the agency did not impose double
punishment.
The appellant also asserts that the agency improperly subjected her to
“double jeopardy” by disciplining her multiple times for the same underlying
misconduct. PFR File, Tab 6 at 14. It is true that an agency may not discipline
an employee twice for the same misconduct. See, e.g., Frederick v. Department
of Homeland Security , 122 M.S.P.R. 401, ¶ 6 (2015). However, if successive
disciplinary actions have different bases, although they may be related, they are
not barred from the prohibition against double punishment. See Bowen,
112 M.S.P.R. 607, ¶ 13.
Here, we agree with the administrative judge that the appellant committed
separate instances of misconduct such that the agency properly took multiple
adverse actions against her. ID at 14. The agency reprimanded the appellant for
her failure to complete the required information by close of business on
September 12, 2016. IAF, Tab 9 at 38-40, 60-61, 127-30. The agency proposed a
14-day suspension when she refused to complete the required information by
close of business on October 7, 2016. Id. at 4-12, 15, 56. Finally, the agency
imposed her removal on the basis of her failure to follow instructions to complete
the required information by February 28, 2017. Id. at 100-05; IAF, Tab 8
at 27-41. Thus, the removal at issue here was in response to the latest instance of
the appellant’s refusal to complete the required information. Accordingly, we
find that the agency did not discipline the appellant more than once for the same
6 We find no reason to disturb the administrative judge’s finding that the agency did not
violate the appellant’s right to due process through the deciding official’s considering
new and material ex parte information regarding the prior discipline. ID at 13; see
Ward v. U.S. Postal Service , 634 F.3d 1274, 1279-90 (Fed. Cir. 2011); Stone v. Federal
Deposit Insurance Corporation , 179 F.3d 1368, 1376-77 (Fed. Cir. 1999). Even if the
agency improperly considered the past discipline, the proposing official informed the
appellant that it would be considered. IAF, Tab 8 at 40. 8
misconduct. See Bowan, 112 M.S.P.R. 607, ¶ 13 (finding that the agency did not
subject the appellant to double punishment when it issued a letter of reprimand
for one instance of refusing to use his Government credit card and imposed his
removal based on his continued refusal to comply with orders to use the card and
the fact that he closed the credit card account).
The administrative judge properly concluded that the appellant did not prove that
discrimination or EEO retaliation were motivating factors in her removal.
The administrative judge determined that the appellant did not prove that
her national origin, sex, or prior EEO activity were motivating factors in her
removal. ID at 5-7. The parties do not challenge these findings on review.
Nevertheless, after the initial decision was issued in this case, the Board
clarified the evidentiary standards and burdens of proof applicable to EEO
discrimination and retaliation claims in Pridgen v. Office of Management and
Budget, 2022 MSPB 31. An appellant may prove a claim of discrimination or
retaliation under Title VII by proving, as relevant here, that discrimination based
on her national origin or sex, or retaliation based on her prior EEO activity, was a
motivating factor in her removal. IAF, Tab 8 at 18-19, Tab 14 at 2; see Pridgen,
2022 MSPB 31, ¶¶ 20-22, 30 (citations omitted). An appellant may rely on any
combination of direct or circumstantial evidence to prove her claim. Pridgen,
2022 MSPB 31, ¶¶ 23-24.
Although the administrative judge did not have the benefit of the Board’s
decision in Pridgen, her analysis and findings regarding the appellant’s EEO
claims were consistent with that decision. She found no evidence that the agency
treated other individuals who failed to follow supervisory instructions more
favorably than the appellant, that the agency was dishonest as to the reasons for
removing the appellant or generally treated employees outside of the appellant’s
protected groups more favorably, or of discriminatory or retaliatory comments.
ID at 6-7; see Pridgen, 2022 MSPB 31, ¶ 24 (providing examples of potentially
relevant circumstantial evidence of discrimination, such as ambiguous behavior or9
comments directed at other employees in the protected group, comparator
evidence, suspicious timing, or evidence that the agency’s claimed reason for its
actions is pretextual). She also noted that there was no evidence that the
individuals who proposed and decided the appellant’s removal had knowledge of
her prior EEO activity. ID at 7. We discern no basis to disturb the administrative
judge’s consideration of this evidence or her well-reasoned conclusions.
We modify the administrative judge’s analysis of the appellant’s whistleblower
retaliation claim but agree with the administrative judge that the appellant is not
entitled to corrective action.
The appellant asserts that she had been assisting and cooperating with DOJ
as it pursued litigation filed by a detainee, but that unusual events began to occur
when, in August 2016, DOJ asked her to sign a protective order and she was
hesitant to do so based on her concern that signing it could prejudice her rights to
obtain certain documents. PFR File, Tab 6 at 22; IAF, Tab 7 at 5, 25-27. She
also states that in February 2017 she sent a report to OPR because unusual issues
had occurred since an initial report to that office in 2015. PFR File, Tab 6 at 23.
The administrative judge found that the appellant did not show by preponderant
evidence that her protected activities in contacting OPR, the Office of Special
Counsel (OSC), the Office of the Inspector General (OIG), or DOJ were a
contributing factor in her removal because she did not demonstrate that any of the
officials involved in the action knew about her contacts with OPR, OSC, or OIG
or that the DOJ attorneys had any connection with her periodic investigation or
her removal. ID at 11-12. As discussed below, we modify the initial decision to
find that the appellant’s report to OPR and participation with DOJ did not
constitute protected disclosures or activity and affirm the initial decision to the
extent that it found that the appellant did not demonstrate that her disclosures to
OIG and OSC were contributing factors to her removal.
In a removal appeal, an appellant’s claim of whistleblowing reprisal is
treated as an affirmative defense. 5 U.S.C. § 1221(e)(1)-(2),(i); Ayers v.10
Department of the Army , 123 M.S.P.R. 11, ¶ 12 (2015); Alarid v. Department of
the Army, 122 M.S.P.R. 600, ¶ 12 (2015); 5 C.F.R. § 1201.56(c)(2). In such an
appeal, once the agency proves its initial case, the appellant must show by a
preponderance of the evidence that she 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)(A)(i),(B),(C), or (D), and that the disclosure or activity was a contributing
factor in the agency’s personnel action.7 Ayers, 123 M.S.P.R. 11, ¶ 12; Alarid,
122 M.S.P.R. 600, ¶ 12. If the appellant establishes a prima facie case of
whistleblower reprisal, the burden of persuasion shifts to the agency to show by
clear and convincing evidence that it would have taken the same personnel action
absent the protected disclosure or activity.8 Ayers, 123 M.S.P.R. 11, ¶ 14; Alarid,
122 M.S.P.R. 600, ¶ 12.
We modify the initial decision to find that the appellant did not
engage in protected activity with DOJ or OPR.
To the extent that the appellant is asserting that she participated in
protected activity with DOJ or OPR, we find that such activity is not protected.
An activity is protected under 5 U.S.C. § 2302(b)(9)(A)(i) if the appellant claims
retaliation for the exercise of any appeal, complaint, or grievance right granted by
any law, rule, or regulation regarding a violation of 5 U.S.C. § 2302(b)(8).
However, the Board has held that participation in a process that (1) does not
constitute an initial step toward taking legal action against the agency for a
perceived violation of employment rights, or (2) does not involve an entity that
has the power to grant relief for any personnel action related to the investigation,
is not included in these categories of activities. See, e.g., Graves v. Department
of Veterans Affairs , 123 M.S.P.R. 434, ¶¶ 18-20 (2016). The appellant
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 Clear and convincing evidence is that measure or degree of proof that produces in the
mind of the trier of fact a firm belief as to the allegations sought to be established.
5 C.F.R. § 1209.4(e). It is a higher standard than preponderance of the evidence. Id.11
participated in a detainee lawsuit with DOJ attorneys and made separate
complaints to OPR about completing the information for her investigation. There
is no evidence that the appellant’s actions in this regard could have resulted in
legal action against the agency or that the entities could have granted relief to her.
We find that such participation is not protected activity.9 Id. (finding that the
appellant’s testimony before the Administrative Investigation Board, which
collects and analyzes evidence to determine what actually happened and why it
happened, so that individuals and systemic deficiencies can be identified and
effectively corrected, was not protected under 5 U.S.C. § 2302(b)(9)(B) as
testimony or other lawful assistance of another individual in the exercise of rights
under 5 U.S.C. § 2302(b)(9)(A)(i), or (ii)).
We modify the initial decision to find that the appellant did not make
a protected disclosure to DOJ or OPR.
To the extent that the appellant is alleging that she made a protected
disclosure to DOJ or OPR, we can find no such disclosure. A protected
disclosure is a disclosure of information that the appellant reasonably believes
evidences a violation of any law, rule, or regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety. 5 U.S.C. § 2302(b)(8); Shannon v. Department of
Veterans Affairs , 121 M.S.P.R. 221, ¶ 22 (2014). The appellant has not explained
what disclosure she made to DOJ or OPR and how she reasonably believed that it
evidenced one of these categories. Accordingly, we find that she failed to
establish that the agency retaliated against her for assisting DOJ or sending a
report to OPR.
9 After the issuance of the initial decision, Congress passed section 1097(c)(1) of the
National Defense Authorization Act of 2018, Pub. L. No. 115-91, 131 Stat. 1283, 1618
(2017), which amended 5 U.S.C. § 2302(b)(9)(C) to provide protections for individuals
who cooperate or disclose information to an agency “component responsible for internal
investigation or review .” However, as we found in Edwards v. Department of Labor ,
2022 MSPB 9, ¶¶ 29-33, this amendment is not retroactive. Accordingly, the Board
does not have jurisdiction over the appellant’s claim to the extent that she is arguing
that the agency retaliated against her for her activity with DOJ or OPR.12
The appellant’s disclosures to OSC and OIG were not a contributing
factor in her removal.
The administrative judge found that the appellant did not prove that
protected activity was a contributing factor in her removal under the
knowledge/timing test. ID at 11-12. Although the appellant does not explicitly
challenge this finding on review, we supplement the administrative judge’s
findings. One way an appellant may establish the contributing factor criterion is
the knowledge/timing test, under which he submits evidence showing that the
official taking 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. Pridgen, 2022 MSPB 31, ¶ 63.
Under the version of 5 U.S.C. § 2302(b)(9)(C) in effect at the time of the
removal action, see supra p. 12 n.9, it is a prohibited personnel practice to “take
or fail to take, or threaten to take or fail to take, any personnel action” against an
individual for “cooperating with or disclosing information to the Inspector
General of an agency, or the Special Counsel, in accordance with applicable
provisions of law.” The appellant stated that she had a phone interview with OSC
on November 1, 2016, and that she later submitted documents to that office
regarding her September 2016 reprimand and the agency’s continuing to order her
to complete the e-QIP. IAF, Tab 7 at 81-82; ID at 10. She also stated that she
contacted OIG on December 22, 2016, and tried to follow up in January 2017. Id.
at 16. However, she has not shown that any officials involved in her
investigation or removal became aware of her disclosures to OSC and OIG. In
fact, the administrative judge found credible the testimony of the proposing
official and the Supervisory Personnel Security Specialist involved in the
background investigation, who both denied that they had any knowledge of the
appellant’s communications with OSC and OIG. ID at 9. Accordingly, we find
no reason to disturb the administrative judge’s finding that the appellant failed to13
establish the contributing factor standard under the knowledge/timing test. ID
at 11-12.
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 taking the action, and
whether these individuals had a desire or motive to retaliate against the appellant.
Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 15 (2012). To the extent
that the administrative judge did not consider this evidence, we do so here, but
still find no reason to disturb the administrative judge’s finding that the appellant
failed to meet the contributing factor standard with respect to her communications
with OSC and OIG.
As discussed above, we agree with the administrative judge’s finding that
the agency presented strong evidence that it gave a valid instruction to the
appellant to provide the requested information in e-QIP and that the appellant
failed to do so, especially considering that the appellant had previously been
reprimanded and suspended for failing to complete the same required information
on separate occasions. ID at 4-5.
The appellant has not alleged or provided any evidence that she named or
implicated the officials who proposed and decided to remove her in her OSC and
OIG complaints. Nonetheless, 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. Aquino v. Department of Homeland Security ,
121 M.S.P.R. 35, ¶ 19 (2014). The U.S. Supreme Court has adopted the term
“cat’s paw” to describe a case in which a particular management official, acting
because of an improper animus, influences an agency official who is unaware of14
the improper animus when implementing a personnel action. Id. (citing Staub v.
Proctor Hospital , 562 U.S. 411, 415-16, 421-22 (2011)).
Here it is unclear what the nature of the appellant’s disclosures were, such
that we can infer any retaliatory motive. The appellant generally alleged that her
communications with OIG or OSC concerned her reprimand and being ordered to
complete the e-QIP. IAF, Tab 7 at 81-82; ID at 10. Her second-level supervisor
ordered her to complete the e-QIP information underlying her removal. IAF,
Tab 9 at 21-22, 105. Also, the same Supervisory Personnel Security Specialist
was responsible for the reinvestigation that led to the reprimand and removal.
IAF, Tab 8 at 39, 55. Thus, the actions of these individuals led to the appellant’s
ultimate removal. Nevertheless, even if we assume that the appellant complained
that her second-level supervisor and the Supervisory Personnel Security
Specialist engaged in wrongdoing by instructing her to complete the e-QIP
information and disciplining her for failing to do so, there is no information as to
whether she named these officials to OSC or OIG or exactly what she stated
regarding their actions.
Further, the administrative judge credited the Supervisory Personnel
Security Specialist’s testimony that he did not know the appellant or harbor any
bias towards her, that the appellant’s local management had no input into her
selection for reinvestigation, that no one requested that the Personnel Security
Unit reinvestigate her, and that she was selected for reinvestigation based on the
amount of time that had lapsed since her last investigation. ID at 10-11. Indeed,
the fact that the appellant had previously been reprimanded for not providing
requested information in e-QIP in September 2016, prior to her November 2016
OSC contact and December 2016 OIG contact, is further evidence that her
complaints were not a contributing factor in her removal. IAF, Tab 9 at 38.
Thus, we find no reason to disturb the administrative judge’s finding that the
appellant failed to meet the contributing factor standard. ID at 11-12; see
Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997) (finding no reason to15
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).
For the first time on review, the appellant asserts that the agency violated
her rights under the First Amendment by not allowing her to present questions
about the reinvestigation. PFR File, Tab 6 at 10-11. 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, and the appellant has made no such showing.10
Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980). The
appellant’s remaining arguments—such as that the agency treats her unfairly for
not being in a clique and because of favoritism by supervisors, and that there
were issues with her time and attendance—do not provide a reason for disturbing
the initial decision. PFR File, Tab 1 at 25-27.
NOTICE OF APPEAL RIGHTS11
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
10 However, even if we did consider this argument, we would find that the agency did
not violate her rights. In addressing the issue of whether employee speech is protected
by the First Amendment, the Board must determine the following: (1) whether the
speech addressed a matter of public concern; and, if so, (2) whether the agency’s
interest in promoting the efficiency of the service outweighs the employee’s interest as
a citizen. Smith v. Department of Transportation , 106 M.S.P.R. 59, ¶¶ 46, 49 (2007).
The appellant has not alleged that her speech addressed a matter of public concern.
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.16
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 at17
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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,18
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.12 The court of appeals must receive your petition for
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. 115-195,19
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. 20
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.21 | Chang_Ching_F_SF-0752-17-0466-I-1__Final_Order.pdf | 2024-05-29 | CHING F. CHANG v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-0752-17-0466-I-1, May 29, 2024 | SF-0752-17-0466-I-1 | NP |
1,324 | https://www.mspb.gov/decisions/nonprecedential/Hebert_Russell_A_DA-1221-19-0218-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RUSSELL A. HEBERT,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DA-1221-19-0218-W-1
DATE: May 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Russell A. Hebert , Charleston, South Carolina, pro se.
Casey Keppler , Joint Base Andrews, 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 request for corrective action in an individual right of action (IRA)
appeal as untimely filed. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous 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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
For the first time on review, the appellant argues that his IRA appeal was
timely filed because the Board was closed during a furlough, which prevented
him from “entering [his] case.” Petition for Review (PFR) File, Tab 1 at 3-5. He
also contends that he has been denied the opportunity to have his case heard and
argues the merits of his IRA appeal. Id. at 3-18. The Board generally will not
consider evidence or argument submitted for the first time with the petition
for review absent a showing that it was unavailable before the record was
closed, despite the party’s due diligence. Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d). The appellant alleges that
he previously raised his argument that his IRA appeal was timely, but the record
does not reflect that he raised this argument below. PFR File, Tab 1 at 4.
Even if we were to consider the appellant’s argument regarding timeliness,
we nevertheless find that his appeal was untimely filed. Under 5 U.S.C.
§ 1214(a)(3)(A), an appellant may file an IRA appeal with the Board once the
Office of Special Counsel (OSC) closes its investigation into his complaint and
no more than 60 days have elapsed since notification of the closure was provided
to him. Heimberger v. Department of Commerce, 121 M.S.P.R. 10, ¶ 6 (2014).
Under the Board’s regulations at 5 C.F.R. § 1209.5(a)(1) implementing that
statutory time limit, an IRA appeal must be filed no later than 65 days after the2
date that OSC issues its close-out letter, or, if the letter is received more than
5 days after its issuance, within 60 days of the date of receipt. Id. The Board
cannot waive the statutory time limit for filing an IRA appeal for good cause
shown because there is no statutory mechanism for doing so. Id., ¶ 9. However,
the Board may invoke the doctrine of equitable tolling to suspend the filing
period for equitable reasons, such as when the appellant has been induced or
tricked by his adversary’s misconduct in allowing the deadline to pass or filed a
defective pleading during the statutory period. Id., ¶ 10; 5 C.F.R. § 1209.5(b).
The Board only applies this remedy in unusual circumstances and generally
requires a showing that the litigant has been pursuing his rights diligently and
some extraordinary circumstances stood in his way. Heimberger, 121 M.S.P.R.
10, ¶ 10; 5 C.F.R. § 1209.5(b).
In arguing that his appeal was timely, the appellant appears to allege that
the Government shutdown that affected the Board prevented him from filing his
IRA appeal. PFR File, Tab 1 at 3-4. At midnight on December 22, 2018, the
Board ceased all operations due to a partial government shutdown. Press Release,
U.S. Merit Systems Protection Board, Status of the U.S. Merit Systems Protection
Board During a Partial Government Shutdown (Dec. 21, 2018),
https://www.mspb.gov/publicaffairs/press_releases/Status_of_the_MSPB_During
_a_Partial_Government_Shutdown_1580906.pdf (last visited May 28, 2024). The
Board issued a press release that notified the public that all filing and processing
deadlines would be extended by the number of calendar days that the Board was
shut down. Id. On January 26, 2019, the Board resumed operations after being
shut down for 35 days.
OSC issued its close-out letter on December 18, 2018, thus the appellant’s
deadline to file an IRA appeal was February 21, 2019. Initial Appeal File (IAF),
Tab 1 at 127-29; see 5 U.S.C. § 1214(a)(3)(A); 5 C.F.R. § 1209.5(a)(1). He filed
his IRA appeal on March 17, 2019, twenty-four days after the time period to file
an appeal had ended. IAF, Tab 1. Although the 35-day shutdown occurred3
during the 65-day time period in which the appellant was required to file his IRA
appeal, his deadline to file an appeal ended well after the shutdown concluded.
Following the Board’s resumption of operations on January 26, 2019, the
appellant still had 26 days to file an IRA appeal that would be considered timely.
The appellant fails to explain why he could not have filed his IRA appeal by the
statutorily-imposed deadline. We do not find that the appellant has demonstrated
that unusual circumstances exist that warrant the tolling of the statutory time limit
to file an IRA appeal, thus we affirm the administrative judge’s dismissal of his
IRA appeal as untimely filed.
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 | Hebert_Russell_A_DA-1221-19-0218-W-1__Final_Order.pdf | 2024-05-29 | RUSSELL A. HEBERT v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DA-1221-19-0218-W-1, May 29, 2024 | DA-1221-19-0218-W-1 | NP |
1,325 | https://www.mspb.gov/decisions/nonprecedential/Akerman_MartinDC-1221-22-0445-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARTIN AKERMAN,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DC-1221-22-0445-W-1
DATE: May 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
M
artin Akerman , Arlington, Virginia, pro se.
Matthew John Mackey and Robert P. Erbe , Joint Base Andrews, 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 individual right of action (IRA) appeal without prejudice, subject to
automatic refiling. 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). Because the
period of dismissal has ended, we FORWARD the appeal to the Washington
Regional Office for docketing and adjudication as a refiled appeal.2
BACKGROUND
The appellant, who was a GS-15 Information Technology Specialist with
the National Guard Bureau (NGB),3 filed an appeal with the Board alleging
whistleblower reprisal. Akerman v. Department of the Army , MSPB Docket
No. DC-1221-22-0257-W-1, Initial Appeal File (0257 IAF), Tab 1 at 4, Tab 7 at
5. During the processing of that appeal, the appellant raised several objections to
the fact that the Department of the Army was listed as the agency respondent,
asserting, at various times, that the Department of the Air Force, Department of
Defense, the National Guard Bureau Joint Staff, and National Security Agency
should be added as agency respondents. 0257 IAF, Tab 7 at 4, Tab 14 at 13,
Tab 59 at 3. Initially, the administrative judge denied the appellant’s request to
2 The petitions for review filed by the appellant in MSPB Docket Nos. DC-1221-22-
0257-W-1, DC-1221-22-0459-W-1, DC-0752-22-0376-I-1, and DC-3443-22-0296-I-1,
have been addressed or will be addressed in separate decisions.
3 The appellant stated that he worked at NGB until June 6, 2022. Akerman v.
Department of the Air Force , MSPB Docket No. DC-1221-22-0445-W-1, Petition for
Review, Tab 1 at 5.2
add additional parties. 0257 IAF, Tab 17 at 1. However, based on the appellant’s
responses to her jurisdictional order in MSPB Docket No. DC-1221-22-0257-
W-1, the administrative judge found it appropriate to docket this IRA appeal as a
separate appeal against the Department of the Air Force. Akerman v. Department
of the Air Force , MSPB Docket No. DC-1221-22-0445-W-1, Initial Appeal File
(0445 IAF), Tab 23 at 1.
Thereafter, in both appeals, the appellant filed a pleading entitled “Notice
of Civil Action in District Court,” stating that he had “elected to take cases
[MSPB Docket No.] DC-1221-22-0257-W-1 and DC-1221-22-0445-W-1 out of
the administrative machinery of [the Board] and into the judicial forum of the
[U.S.] District Courts.” 0257 IAF, Tab 67 at 3; 0445 IAF, Tab 36 at 3. Although
the administrative judge explained several times that a district court case did not
impact the processing of his pending IRA appeals, the appellant continued to
assert that the cases were no longer before the Board. 0257 IAF, Tab 70 at 1,
Tab 85 at 8, Tab 86 at 3, Tab 87 at 1; 0445 IAF, Tab 40 at 3. Therefore,
the administrative judge issued an order in both appeals requesting that the
appellant select from the following three options: (1) withdraw his Board appeals
with prejudice; (2) continue to process his appeals with his full participation; or
(3) dismiss his Board appeals without prejudice to pursue his district court case.
0257 IAF, Tab 87 at 1-2; 0445 IAF, Tab 41 at 1-2. The appellant responded that
the “case is entirely before District Court and no longer before [the Board].”
0257 IAF, Tab 90 at 3.
On November 23, 2022, the administrative judge issued an initial decision
dismissing the above-captioned appeal without prejudice for a period of up to
120 days, subject to automatic refiling, to allow the appellant to pursue his claims
in district court.4 0445 IAF, Tab 45, Initial Decision. The appellant filed a
4 On November 8, 2022, the administrative judge issued an initial decision in MSPB
Docket No. DC-1221-22-0257-W-1, dismissing the appeal without prejudice for a
period of up to 120 days. 0257 IAF, Tab 91, Initial Decision. The appellant has filed a
petition for review in that case, which has been or will be addressed in a separate order.3
petition for review asserting, among other things, that additional agencies should
have been added as respondents, that MSPB Docket Nos. DC-1221-22-0257-W-1
and DC-1221-22-0445-W-1 should be joined, and that the agency attempted to
sabotage his case by providing proof of discrimination and whistleblower
retaliation.5 Akerman v. Department of the Army , MSPB Docket No. DC-1221-
22-0445-W-1, Petition for Review (PFR) File, Tab 1 at 4-7. The agency
responded in opposition to the appellant’s petition for review. PFR File, Tab 4.6
DISCUSSION OF ARGUMENTS ON REVIEW
An administrative judge has wide discretion to dismiss an appeal without
prejudice in the interests of fairness, due process, and administrative efficiency,
and may order such a dismissal at the request of one or both parties, or to avoid a
lengthy or indefinite continuance. Thomas v. Department of the Treasury ,
115 M.S.P.R. 224, ¶ 7 (2010). We find that the appellant’s assertions on review
fail to demonstrate that the administrative judge abused that considerable
discretion.7 Despite the efforts of the administrative judge, the appellant did not
5 The appellant attached several documents to his petition for review, including copies
of filings from MSPB Docket No. DC-1221-22-0257-W-1, filings from his district court
complaint, and filings that are part of the record in this instant appeal. PFR File, Tab 1
at 8-142. The appellant has not explained the relevancy of these documents, and they
provide no basis for disturbing the initial decision. 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).
6 On May 22, 2024, the appellant filed a pleading, “Motion for Recusal of Mr. Henry J.
Kerner in Pending MSPB Cases relating to OSC,” requesting that Mr. Kerner recuse
himself from this matter and several of the appellant’s other cases pending before the
Board, PFR File, Tab 7; however, Mr. Kerner has not been sworn in as a member of the
Board as of the date of this decision.
7 Regarding the appellant’s bias claim, we discern nothing to suggest that the
administrative judge harbored any bias against the appellant. We will not infer bias
based on an administrative judge’s case-related rulings. Vaughn v. Department of the
Treasury, 119 M.S.P.R. 605, ¶ 18 (2013); see Oliver v. Department of Transportation ,
1 M.S.P.R. 382, 386 (1980) (stating 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). 4
clearly select one of the three options presented by the administrative judge.
0445 IAF, Tab 41 at 1-2. Instead, the appellant left it to the administrative judge
to interpret his intentions from his filings. However, it was clear that
the appellant was not willing to participate in his Board appeals while
he was pursuing his claims in district court. 0257 IAF, Tab 67 at 3, Tab 86 at 3,
Tab 88 at 3, Tab 90 at 3; 0445 IAF, Tab 36 at 3, Tab 40 at 3. Thus, the
administrative judge, in the interest of administrative efficiency, selected the
option that was least detrimental to the appellant, i.e., dismissal without
prejudice.
We find that, given the circumstances, a dismissal without prejudice was
reasonable, and the appellant has presented no evidence that such decision
constituted an abuse of discretion. In fact, the appellant’s arguments on review
are essentially an attempt to reach either the merits of the appeal, or the merits of
other procedural rulings, both of which are irrelevant to the issue here of whether
the administrative judge abused her discretion in dismissing the appeal without
prejudice to refiling. See Gingery v. Department of the Treasury , 111 M.S.P.R.
134, ¶ 11 (2009) (explaining that the Board will not consider arguments raised on
review concerning matters that should be considered by the administrative judge
once the appeal has been refiled).
Accordingly, we discern no basis to disturb the initial decision. Therefore,
we deny the appellant’s petition for review. Because the initial decision
dismissed the appeal for a period of up to 120 days, and over 120 days have
passed, we forward the appeal to the Washington Regional Office for docketing
and adjudication as a refiled appeal.8
8 If the appellant wishes to withdraw his Board appeal with prejudice to refiling, he
should inform the administrative judge in a clear, decisive, and unequivocal statement.
Such a withdrawal is final and permanently removes the appeal from the Board’s
jurisdiction.5
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.
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:
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. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any7
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s8
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.10 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 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Akerman_MartinDC-1221-22-0445-W-1_Final_Order.pdf | 2024-05-29 | MARTIN AKERMAN v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DC-1221-22-0445-W-1, May 29, 2024 | DC-1221-22-0445-W-1 | NP |
1,326 | https://www.mspb.gov/decisions/nonprecedential/Vilayvong_Sadka_T_AT-0752-19-0161-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SADKA T VILAYVONG,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
AT-0752-19-0161-I-1
DATE: May 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Steven Almeida and Marion L Williams , Warner Robins, Georgia, for the
appellant.
Frank M. Wood , Robins Air Force Base, Georgia, 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 this removal appeal on the basis 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 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).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).
2 In his petition for review, the appellant submitted no argument; rather, he simply
attached the 2019 initial decision. Petition for Review (PFR) File, Tab 1. The agency
submitted a response opposing the petition. PFR File, Tab 3. The appellant filed a
reply on June 16, 2019. PFR File, Tab 4. Among other things, the appellant requests
permission to present the results of a polygraph examination, which would take place on
June 19, 2019, and which would indicate that he was not involved in the 2006 appeal.
Id. at 5. On June 21, 2019, the appellant submitted the results of the polygraph
examination. PFR File, Tab 5. The Office of the Clerk of the Board thereafter issued
an order stating that the appellant’s request would be treated as a motion to supplement
the reply, the supplement would be allowed into the record, and the record on review
was closed. PFR File, Tab 6 at 1.
Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted
for the first time with a petition for review absent a showing that it was unavailable
before the record was closed before the administrative judge despite the party’s due
diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980). Here, the
appellant has not shown why he could not have gone through with and presented the
polygraph examination results below. Thus, he has not shown that it is new evidence,
and we need not consider it.
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 | Vilayvong_Sadka_T_AT-0752-19-0161-I-1__Final_Order.pdf | 2024-05-29 | SADKA T VILAYVONG v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-0752-19-0161-I-1, May 29, 2024 | AT-0752-19-0161-I-1 | NP |
1,327 | https://www.mspb.gov/decisions/nonprecedential/Akerman_MartinDC-1221-22-0459-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARTIN AKERMAN,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-1221-22-0459-W-1
DATE: May 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
M
artin Akerman , Arlington, Virginia, pro se.
Gonzalo Pinacho , Esquire, Arlington, 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 individual right of action (IRA) appeal for lack of jurisdiction
because he failed to make a nonfrivolous allegation that the agency took or
threatened to take a personnel action as defined by 5 U.S.C. § 2302(a)(2)(A). In
his petition for review, the appellant does not challenge any of these findings.2
Petition for Review (PFR) File, Tab 1. Rather, he asserts that Congress has
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).
passed laws requiring a higher degree of transparency and accountability across
the Government, argues that the initial decision was “late” because he had already
filed a case in district court, and requests that the Board confirm that he may
continue to district court.3 Id. at 3-5. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
2 The appellant also filed a motion for leave to file an additional pleading requesting
that the Board reopen the record based on new and material evidence, and initiate a new
IRA appeal against the National Guard Bureau. Petition For Review (PFR) File,
Tab 12. Specifically, the appellant asserts that findings from the Office of Personnel
Management, which are connected to his pending disability retirement appeal, prove
that the case should have been against the National Guard Bureau. Id. at 1-2. He
further asserts that because a retirement action is appealable to the Board, he does not
need to exhaust his remedies with the Office of Special Counsel (OSC). Id. at 2. The
appellant has not specifically explained how this evidence is material or related to the
Board’s jurisdiction here, and therefore, it does not serve as a basis to grant the
appellant’s petition for review. Russo v. Veterans Administration , 3 M.S.P.R. 345, 349
(1980) (explaining that the Board will not grant a petition for review based on new
evidence absent a showing that it is of sufficient weight to warrant an outcome different
from that of the initial decision). Therefore, the appellant’s motion is denied. To the
extent that the appellant wishes to file a separate IRA appeal against the National Guard
Bureau, he must first exhaust his administrative remedies with OSC. 5 U.S.C.
§ 1214(a)(3); see Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 10
(stating that 5 U.S.C. § 1214(a)(3) requires that an appellant in an IRA appeal exhaust
his administrative remedies by seeking corrective action from OSC before seeking
corrective action from the Board).
3 The Board is unable to provide the appellant legal advice about his district court
litigation. See 5 U.S.C. § 1204(h) (providing that the Board is unable to provide
advisory opinions).2
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review4 and AFFIRM the initial
decision, which is now the Board’s final decision.5 5 C.F.R. § 1201.113(b).
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.
4 On May 22, 2024, the appellant filed a pleading, “Motion for Recusal of Mr. Henry J.
Kerner in Pending MSPB Cases relating to OSC,” requesting that Mr. Kerner recuse
himself from this matter and several of the appellant’s other cases pending before the
Board, PFR File, Tab 15; however, Mr. Kerner has not been sworn in as a member of
the Board as of the date of this decision.
5 The petitions for review filed by the appellant in MSPB Docket Nos. DC-1221-22-
0257-W-1, DC-1221-22-0445-W-1, DC-0752-22-0376-I-1, and DC-3443-22-0296-I-1,
have been addressed or will be addressed in separate decisions.
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.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.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. 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 | Akerman_MartinDC-1221-22-0459-W-1_Final_Order.pdf | 2024-05-29 | MARTIN AKERMAN v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-1221-22-0459-W-1, May 29, 2024 | DC-1221-22-0459-W-1 | NP |
1,328 | https://www.mspb.gov/decisions/nonprecedential/Akerman_MartinDC-1221-22-0257-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARTIN AKERMAN,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-1221-22-0257-W-1
DATE: May 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
M
artin Akerman , Arlington, Virginia, pro se.
Gonzalo Pinacho , Esquire, Arlington, 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 individual right of action (IRA) appeal without prejudice, subject to
automatic refiling. 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 review2 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). Because the
period of dismissal has ended, we FORWARD the appeal to the Washington
Regional Office for docketing and adjudication as a refiled appeal.3
BACKGROUND
The appellant, who was a GS-15 Information Technology Specialist with
the National Guard Bureau (NGB),4 filed this appeal with the Board alleging
whistleblower reprisal. Akerman v. Department of the Army , MSPB Docket
No. DC-1221-22-0257-W-1, Initial Appeal File (0257 IAF), Tab 1 at 4, Tab 7 at
5. During the processing of the appeal, the appellant raised several objections to
2 On May 22, 2024, the appellant filed a pleading, “Motion for Recusal of Mr. Henry J.
Kerner in Pending MSPB Cases relating to OSC,” requesting that Mr. Kerner recuse
himself from this matter and several of the appellant’s other cases pending before the
Board, Akerman v. Department of the Army , MSPB Docket No. DC-1221-22-0257-W-1,
Petition for Review File, Tab 13; however, Mr. Kerner has not been sworn in as a
member of the Board as of the date of this decision.
3 The petitions for review filed by the appellant in MSPB Docket Nos. DC-1221-22-
0445-W-1, DC-1221-22-0459-W-1, DC-0752-22-0376-I-1, and DC-3443-22-0296-I-1,
have been addressed or will be addressed in separate decisions.
4 The appellant stated that he worked at NGB until June 6, 2022. Akerman v.
Department of the Air Force , MSPB Docket No. DC-1221-22-0445-W-1, Petition for
Review, Tab 1 at 5.2
the fact that the Department of the Army was listed as the agency respondent,5
asserting, at various times, that the Department of the Air Force, Department of
Defense, the National Guard Bureau Joint Staff, and National Security Agency
should be added as agency respondents. 0257 IAF, Tab 7 at 4, Tab 14 at 12-13,
Tab 59 at 3. Initially, the administrative judge denied the appellant’s request to
add additional parties. 0257 IAF, Tab 17 at 1. However, based on the appellant’s
responses to her jurisdictional order, the administrative judge found it appropriate
to docket a separate IRA appeal against the Department of the Air Force.
Akerman v. Department of the Air Force , MSPB Docket No. DC-1221-22-0445-
W-1, Initial Appeal File (0445 IAF), Tab 23 at 1.
Thereafter, in both appeals, the appellant filed a pleading entitled “Notice
of Civil Action in District Court,” stating that he had “elected to take cases
[MSPB Docket No.] DC-1221-22-0257-W-1 and DC-1221-22-0445-W-1 out of
the administrative machinery of [the Board] and into the judicial forum of the
[U.S.] District Courts.” 0257 IAF, Tab 67 at 3; 0445 IAF, Tab 36 at 3. Although
the administrative judge explained several times that a district court case did not
impact the processing of his pending IRA appeals, the appellant continued to
assert that the cases were no longer before the Board. 0257 IAF, Tab 70 at 1,
Tab 85 at 8, Tab 86 at 3, Tab 87 at 1; 0445 IAF, Tab 40 at 3. Therefore, the
administrative judge issued an order in both appeals requesting that the appellant
select from the following three options: (1) withdraw his Board appeals with
prejudice; (2) continue to process his appeals with his full participation; or
(3) dismiss his Board appeals without prejudice to pursue his district court case.
0257 IAF, Tab 87 at 1-2; 0445 IAF, Tab 41 at 1-2. The appellant responded that
the “case is entirely before District Court and no longer before [the Board].”
0257 IAF, Tab 90 at 3.
5 Originally, the appeal listed the Department of Defense as the agency respondent.
0257 IAF, Tab 3 at 1. However, the agency confirmed that the Department of the Army
was the proper Federal agency, and the case caption was corrected. 0257 IAF, Tab 8
at 4, Tab 11 at 1 n.1. 3
On November 8, 2022, the administrative judge issued an initial decision
dismissing the above-captioned appeal without prejudice for a period of up to
120 days, subject to automatic refiling, to allow the appellant to pursue his claims
in district court.6 0257 IAF, Tab 91, Initial Decision. The appellant filed a
petition for review asserting, among other things, that the Department of the
Army was not the correct agency respondent, that the docketing of MSPB Docket
No. DC-1221-22-0445-W-1 evidenced a deep-seated favoritism or bias on the part
of the administrative judge, and that the matter was no longer before the Board.
Akerman v. Department of the Army , MSPB Docket No. DC-1221-22-0257-W-1,
Petition for Review (PFR) File, Tab 1 at 3-5. The agency responded in
opposition to the appellant’s petition for review, PFR File, Tab 5, and the
appellant filed a reply to the agency’s response,7 PFR File, Tab 7.
DISCUSSION OF ARGUMENTS ON REVIEW
An administrative judge has wide discretion to dismiss an appeal without
prejudice in the interests of fairness, due process, and administrative efficiency,
and may order such a dismissal at the request of one or both parties, or to avoid a
lengthy or indefinite continuance. Thomas v. Department of the Treasury ,
115 M.S.P.R. 224, ¶ 7 (2010). We find that the appellant’s assertions on review
fail to demonstrate that the administrative judge abused that considerable
discretion.8 Despite the efforts of the administrative judge, the appellant did not
6 On November 23, 2022, the administrative judge issued an initial decision in
MSPB Docket No. DC-1221-22-0445-W-1, dismissing the appeal without prejudice for
a period of up to 120 days. 0445 IAF, Tab 45, Initial Decision. The appellant has filed
a petition for review in that case, which has been or will be addressed in a separate
order.
7 The appellant also filed a motion to strike the agency’s cross petition for review, PFR
File, Tab 6, and the agency replied, confirming that it had not filed a cross petition for
review, PFR File, Tab 8.
8 Regarding the appellant’s bias claim, we discern nothing to suggest that the
administrative judge harbored any bias against the appellant. We will not infer bias
based on an administrative judge’s case-related rulings. Vaughn v. Department of the
Treasury, 119 M.S.P.R. 605, ¶ 18 (2013); see Oliver v. Department of Transportation ,4
clearly select one of the three options presented by her. 0257 IAF, Tab 87 at 1-2.
Instead, the appellant left it to the administrative judge to interpret his intentions
from his filings. However, it was clear that the appellant was not willing to
participate in his Board appeals while he was pursuing his claims in district court.
0257 IAF, Tab 67 at 3, Tab 86 at 3, Tab 88 at 3, Tab 90 at 3; 0445 IAF, Tab 36
at 3, Tab 40 at 3. Thus, the administrative judge, in the interest of administrative
efficiency, selected the option that was least detrimental to the appellant,
i.e., dismissal without prejudice.
We find that, given the circumstances, a dismissal without prejudice was
reasonable, and the appellant has presented no evidence that such decision
constituted an abuse of discretion. In fact, the appellant’s arguments on review
are essentially an attempt to reach either the merits of the appeal, or the merits of
other procedural rulings, both of which are irrelevant to the issue here of whether
the administrative judge abused her discretion in dismissing the appeal without
prejudice to refiling. See Gingery v. Department of the Treasury , 111 M.S.P.R.
134, ¶ 11 (2009) (explaining that the Board will not consider arguments raised on
review concerning matters that should be considered by the administrative judge
once the appeal has been refiled).
Accordingly, we discern no basis to disturb the initial decision. Therefore,
we deny the appellant’s petition for review. Because the initial decision
dismissed the appeal for a period of up to 120 days, and over 120 days have
passed, we forward the appeal to the Washington Regional Office for docketing
and adjudication as a refiled appeal.9
1 M.S.P.R. 382, 386 (1980) (stating 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).
9 If the appellant wishes to withdraw his Board appeal with prejudice to refiling, he
should inform the administrative judge in a clear, decisive, and unequivocal statement.
Such a withdrawal is final and permanently removes the appeal from the Board’s
jurisdiction.5
NOTICE OF APPEAL RIGHTS10
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:
10 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any7
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s8
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.11 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
11 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Akerman_MartinDC-1221-22-0257-W-1_Final_Order.pdf | 2024-05-29 | MARTIN AKERMAN v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-1221-22-0257-W-1, May 29, 2024 | DC-1221-22-0257-W-1 | NP |
1,329 | https://www.mspb.gov/decisions/nonprecedential/Akerman_MartinDC-0752-23-0457-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARTIN AKERMAN,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-0752-23-0457-I-1
DATE: May 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Martin Akerman , Arlington, Virginia, pro se.
Gonzalo Pinacho , Esquire, Arlington, Virginia, 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
dismissed his appeal for lack of jurisdiction, finding, among other things, that the
appellant did not make a nonfrivolous allegation that his protected activity under
the Uniformed Services Employment and Reemployment Rights Act of 1994
(codified as amended at 38 U.S.C. §§ 4301-4335) was a motivating factor in his
involuntary retirement . 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).
¶2On review, the appellant clarifies his allegation, stating that the agency
retaliated against him for engaging in protected activity by not responding to the
Office of Personnel Management (OPM) and interfering with his disability
retirement application.2 Petition for Review (PFR) File, Tab 2 at 4-5. We need
not decide whether the agency’s lack of response to OPM constitutes an adverse
employment action because we agree with the administrative judge that the
appellant did not nonfrivolously allege that his protected activity was a
2 The appellant attached to his petition for review multiple documents, including filings
from this Board appeal, as well as his filings with the United States Court of Appeals
for the Fourth Circuit, the Supreme Court of Nevada, the United States District Court
for the Eastern District of Virginia, copies of his Standard Form 50s, the agency’s
notice of proposed indefinite suspension, the agency’s decision on the proposed
indefinite suspension, and emails regarding the appellant’s request for sick leave. PFR
File, Tab 2 at 6-68. The appellant has not shown that these documents were unavailable
prior to the close of the record below, nor has he explained the relevance of these
documents to the dispositive issues in his appeal. Thus, they provide no basis to disturb
the initial decision. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980)
(explaining that the Board will not grant a petition for review based on new evidence
absent a showing that it is of sufficient weight to warrant an outcome different from
that of the initial decision).2
motivating factor in the agency action. Initial Appeal File (IAF), Tab 57, Initial
Decision (ID) at 9-10. Specifically, the appellant stated in his initial appeal that
the agency refused to respond to OPM beginning in November 2022. IAF, Tab 1
at 4. The appellant’s protected activity occurred approximately 6 months later, in
or around May 2023, when he submitted a complaint to the Department of Labor,
stating that he had “new information” and “new evidence” that led him to believe
the rights of a uniformed servicemember had been violated. IAF, Tab 50
at 15-16. Therefore, it is temporally impossible that the appellant’s protected
activity was a motivating factor in the agency’s refusal to respond to OPM. Cf.
Sherman v. Department of Homeland Securit y, 122 M.S.P.R. 644, ¶ 8 (2015)
(stating that, under whistleblowing statutes, a disclosure that occurs after a
personnel action was taken cannot be considered a contributing factor in that
personnel action). Accordingly, we discern no basis to disturb the initial decision
dismissing the appeal for lack of jurisdiction.3
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
3 On review, the appellant alleges that the administrative judge denied him various
procedures, including a hearing and status conferences, and that the administrative
judge failed to provide him with clear instructions or a chance to respond. PFR File,
Tab 2 at 3. The appellant’s claims are incorrect, as the administrative judge gave the
appellant ample opportunity to clarify his claims and produce evidence of jurisdiction,
as well as responded to the motions filed by the appellant. IAF, Tabs 2-4, 9, 11-12, 14,
20, 25-26, 28, 30, 32, 34, 36-37, 39, 41, 43, 45-48, 51. Furthermore, because the
appellant did not make a nonfrivolous allegation of Board jurisdiction, he is not entitled
to a hearing. See, e.g., Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994).
Accordingly, there is no evidence that the administrative judge abused his discretion in
his handling of this appeal. Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 9
(explaining that administrative judges have substantial discretion to control the
proceedings before them, and the Board will not find reversible error absent a showing
of abuse of discretion).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 4
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the5
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Akerman_MartinDC-0752-23-0457-I-1_Final_Order.pdf | 2024-05-29 | MARTIN AKERMAN v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-0752-23-0457-I-1, May 29, 2024 | DC-0752-23-0457-I-1 | NP |
1,330 | https://www.mspb.gov/decisions/nonprecedential/Moss_David_A_SF-0752-98-0693-C-4__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID A MOSS,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-0752-98-0693-C-4
DATE: May 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David A. Moss , San Diego, California, pro se.
Katerina L. Chau , San Diego, California, 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 compliance initial
decision, which denied his petition for enforcement (PFE). 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. Except as
expressly MODIFIED to incorporate our analysis of the appellant’s pre-2005
claims, we AFFIRM the initial decision, which is now the Board’s final decision.
5 C.F.R. § 1201.113(b).
¶2In 1998, the parties settled the appellant’s appeal of his removal.
Compliance File (CF), Tab 6 at 15-16, 20-30. The appellant has previously filed
three petitions for enforcement, one regarding the payment of attorney fees, one
regarding the reimplementation of his health benefits, and a third concerning a
2005 14-day suspension. CF, Tab 6 at 87-89, Tab 8 at 45-49, 91-92. On
October 13, 2018, the appellant filed the instant PFE with the Board, and again
claimed that various actions taken by the agency were in violation of the 1998
settlement agreement. CF, Tab 1.
¶3The administrative judge issued a compliance initial decision denying the
appellant’s petition for enforcement. CF, Tab 15, Compliance Initial Decision.
We have considered the arguments that the appellant raises on review and see no
basis for disturbing the initial decision .2
2 In his reply, the appellant presents new arguments. Compliance Petition for Review
File, Tab 5. For example, he challenges a letter of caution received in 1998 following
his reinstatement to work as well as his transfer from the night shift to the day shift in
2019. Id. at 6-8. He also attaches documents to his reply. Id. at 9-19. We decline to
consider these new arguments and the attachments. Under 5 C.F.R. § 1201.114(a)(4), a
reply is limited to the factual and legal issues raised in the response to the petition for
review and may not raise new allegations of error. Boston v. Department of the Army ,
122 M.S.P.R. 577, ¶ 5 n.3 (2015). 2
¶4Both on review and below, the appellant challenges matters previously
raised in prior PFEs. In the instant PFE, he claims that, in breach of the
settlement agreement, the agency suspended him for 14 days and placed
restrictions on where he could go and to whom he could talk when he returned to
work following his 1998 removal. CF, Tab 8 at 1, 9-13; Compliance Petition for
Review File, Tab 1 at 8-11. The administrative judge did not address these
claims and thus we modify the initial decision to incorporate the following
analysis.
¶5These claims regarding breach, which the appellant raised or could have
raised in his PFE from 2005, are barred by the doctrine of res judicata. Under
this doctrine, 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. Hicks v.
U.S. Postal Service , 114 M.S.P.R. 232, ¶ 11 (2010). 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. Id.
¶6Both the Board and the Federal Circuit previously adjudicated the
appellant’s 14-day suspension, finding that, on the merits, the appellant failed to
meet his burden of proving that the suspension violated the settlement agreement.
Moss v. Department of the Navy , 208 F. App’x 892, 893-95 (Fed. Cir. 2006); CF,
Tab 6 at 87-89, 94 -95, 99-102. By challenging the underlying nature of the
suspension, claiming that the suspension demonstrates the agency’s
noncompliance with the settlement, and seeking back pay for the suspension, the
appellant is attempting to relitigate the merits of his 2005 PFE, and we therefore
find that this claim is barred on the grounds of res judicata. Although it is
unclear whether the alleged restriction on where he could go and to whom he
could talk was actually raised in his 2005 PFE, it is clear that he could have3
raised the matter in his 2005 PFE of the settlement agreement. CF, Tab 8
at 56-65, Tab 12 at 6, 16-19; see Carson v. Department of Energy , 109 M.S.P.R.
213, ¶¶ 25-27 (2008) (declining to consider claims that an appellant could have
raised in a prior PFE), aff’d per curiam , 357 F. App’x 293 (Fed. Cir. 2009). As
such, his claim that the alleged bar on him amounts to a breach of the settlement
agreement is similarly barred by res judicata.
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.
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
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,5
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 6
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Moss_David_A_SF-0752-98-0693-C-4__Final_Order.pdf | 2024-05-29 | DAVID A MOSS v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0752-98-0693-C-4, May 29, 2024 | SF-0752-98-0693-C-4 | NP |
1,331 | https://www.mspb.gov/decisions/nonprecedential/Gordon_Andrew_S_AT-315H-19-0480-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW SCOTT GORDON,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
AT-315H-19-0480-I-1
DATE: May 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew Scott Gordon , Fleming Island, Florida, pro se.
Jennifer Ann Misciagna , Jacksonville, Florida, 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. 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).
BACKGROUND
The following facts are undisputed. On July 23, 2018, the agency
appointed the appellant to the competitive service position of GS-05 Production
Controller, subject to a 2-year initial probationary period. Initial Appeal File
(IAF), Tab 5 at 44. Effective April 15, 2019, the agency terminated the appellant
for post-appointment attendance reasons. Id. at 26-30.
The appellant filed a Board appeal and requested a hearing. IAF, Tab 1
at 2. He contested the merits of the termination, alleging that the agency failed to
train him properly, mishandled some leave-related matters, and targeted him for
termination in violation of an unspecified prohibited personnel practice. Id. at 4,
6. The administrative judge issued a jurisdictional order, notifying the appellant
of how to establish jurisdiction over a probationary termination appeal under
5 C.F.R. part 315, subpart H and a removal appeal under 5 U.S.C. chapter 75.
IAF, Tab 3 at 2-4. She ordered the appellant to file evidence and argument on the
issue. Id. at 4-5. The appellant did not respond, and the agency moved to dismiss
the appeal for lack of jurisdiction. IAF, Tab 5.
The administrative judge issued an initial decision dismissing the
appeal for lack of jurisdiction. IAF, Tab 6, Initial Decision (ID). She found that2
the appellant was serving an initial 2-year probationary period under 10 U.S.C.
§ 1599e, the agency terminated him during that period for post-appointment
reasons, the appellant was not an employee with chapter 75 appeal rights, and the
appellant did not allege that his termination was based on marital status or
partisan political reasons. ID at 2-4.
The appellant has filed a petition for review, stating that he did not receive
the jurisdictional order until after the initial decision was issued. Petition for
Review (PFR) File, Tab 1 at 4-5. He alleges that, prior to his appointment to the
competitive service, he worked as a contractor at the same location doing
essentially the same job. Id. at 6. He also contests the merits of his termination
and explains that the agency failed to afford him the Disabled Veteran Leave to
which he was entitled. Id. The appellant has attached documentation to support
his allegations. Id. at 8-28. The agency has filed a response in opposition to the
petition for review.2 PFR File, Tab 3.
ANALYSIS
To establish Board jurisdiction under chapter 75, an individual covered
under 10 U.S.C. § 1599e must show that he is not serving the 2-year initial
probationary period prescribed under that section or that he has completed 2 years
of current continuous service. Bryant v. Department of the Army , 2022 MSPB 1,
¶¶ 8-9; see 5 U.S.C. § 7511(a)(1)(A).3 Prior Federal civilian service can be
2 The appellant was granted two extensions of time to reply to the agency’s response,
but he ultimately declined to file a reply. PFR File, Tabs 4-7.
3 Section 1599e provided, inter alia, that an individual appointed to a permanent
competitive-service position at the Department of Defense (DOD) was subject to a
2-year probationary period and only qualified as an “employee” under 5 U.S.C.
§ 7511(a)(1)(A)(ii) (2016) if he completed 2 years of current continuous service. 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. Pub. L. No. 117-81, § 1106, 135 Stat. 1541,
1950. The 2022 NDAA is not applicable here because, as set forth above, the
appellant’s competitive service appointment was made on July 23, 2018. IAF, Tab 5
at 44.3
credited towards completion of a later probationary or trial period in a
competitive service position if the employee shows that: (1) the prior service was
performed in the same agency; (2) it was performed in the same line of work;
and (3) it was completed with no more than one break in service of less than
30 days. McCrary v. Department of the Army , 103 M.S.P.R. 266, ¶ 10 (2006);
5 C.F.R. § 315.802(b)
On review, the appellant appears to argue that his previous employment as
a contractor in a similar line of work could be tacked onto his service as a
Production Controller in order to satisfy the 2-year probationary period.
PFR File, Tab 1 at 6-7. However, we find that employment as a Government
contractor is not “Federal civilian service” that may be credited toward the
completion of a probationary period. 5 C.F.R. § 315.802(b); see generally
5 U.S.C. § 2101(a) (defining “civil service” as “all appointive positions in the
executive, judicial, and legislative branches of the Government of the United
States, except positions in the uniformed services”). There is nothing in the
record to indicate that the appellant ever held a civil service position prior to his
most recent appointment, much less a position in which his service could be
counted toward the completion of his probationary period or toward 2 years of
current continuous service. We therefore affirm the administrative judge’s
finding that the appellant lacks Board appeal rights under chapter 75. ID at 3-4;
see Bryant, 2022 MSPB 1, ¶ 9.
For individuals terminated for post-appointment reasons, there is a
regulatory right of appeal under 5 C.F.R. § 315.806, but this is limited to cases
in which the appellant alleges that the termination resulted from discrimination
based on marital status or partisan political reasons. See Mastriano v. Federal
Aviation Administration , 714 F.2d 1152, 1155 (Fed. Cir. 1983); Cunningham v.
Department of the Army , 119 M.S.P.R. 147, ¶ 8 (2013). The appellant in this case
has not raised any such allegation, and we therefore agree with the administrative
judge that the Board lacks jurisdiction over this appeal under 5 C.F.R. § 315.806.4
ID at 3; see Honea v. Department of Homeland Security , 118 M.S.P.R. 282, ¶ 10
(2012), aff’d, 524 F. App’x 623 (Fed. Cir. 2013). The appellant’s arguments on
review concerning the merits of his termination and his entitlement to Disabled
Veteran Leave are immaterial to the jurisdictional issue.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
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 on6
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) or7
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
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 | Gordon_Andrew_S_AT-315H-19-0480-I-1__Final_Order.pdf | 2024-05-29 | ANDREW SCOTT GORDON v. DEPARTMENT OF THE NAVY, MSPB Docket No. AT-315H-19-0480-I-1, May 29, 2024 | AT-315H-19-0480-I-1 | NP |
1,332 | https://www.mspb.gov/decisions/nonprecedential/Turk_John_Z_CH-3443-20-0118-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN Z. TURK,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-3443-20-0118-I-1
DATE: May 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
John Z. Turk , Eastlake, Ohio, pro se.
Amber Groghan , Esquire, Akron, Ohio, 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 on the grounds of adjudicatory efficiency. For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
initial decision, and FORWARD the appellant’s claims to the Central Regional
Office for docketing as a petition for enforcement of the settlement agreement
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).
entered in Turk v. Department of Veterans Affairs , MSPB Docket No. CH-1221-
18-0186-W-1.
BACKGROUND
On January 26, 2018, the appellant filed an individual right of action
appeal, Turk v. Department of Veterans Affairs , MSPB Docket No. CH-1221-18-
0186-W-1, and, during the pendency of the appeal, the parties executed a
settlement agreement. The administrative judge entered the agreement into the
record for enforcement purposes and dismissed the appeal as settled. Turk v.
Department of Veterans Affairs , MSPB Docket No. CH-1221-18-0186-W-1,
Initial Decision at 2 -3 (Apr. 24, 2018). The appellant filed a petition for review,
alleging that he lost a job offer because an agency employee informed his
prospective employer that he was terminated and forced to resign from the
agency.2 Turk v. Department of Veterans Affairs , MSPB Docket No. CH-1221-
18-0186-W-1, Petition for Review (0186 PFR) File, Tab 1 at 4. The appellant
also alleged that, because the settlement agreement contained a no-admission-of-
fault provision, the Standard Form (SF) 50 documenting his resignation should
specifically state that he voluntarily resigned.3 Id.
Thereafter, the appellant applied for and was not selected for a position as a
Medical Technologist with the agency at the Cleveland Veterans Affairs
2 On May 23, 2018, the appellant filed a pleading that was docketed as a petition for
enforcement of the initial decision in MSPB Docket No. CH-1221-18-0186-W-1 . In a
July 12, 2018 initial decision, an administrative judge dismissed the petition as
withdrawn and forwarded the May 23, 2018 pleading to the Office of the Clerk of the
Board for docketing as a petition for review of the initial decision in MSPB Docket No.
CH-1221-28-0186-W-1. Turk v. Department of Veterans Affairs , MSPB Docket No.
CH-1221-18-0186-C-1, Compliance Initial Decision (July 12, 2018).
3 In a May 3, 2024 Final Order in Turk v. Department of Veterans Affairs , MSPB
Docket No. CH-1221-18-0186-W-1 , the Board denied the appellant’s petition for
review, affirmed the initial decision dismissing the appeal as settled, and forwarded the
appellant’s claim that the agency breached the settlement agreement to the regional
office for docketing as a petition for enforcement, which is currently pending before an
administrative judge in Turk v. Department of Veterans Affairs , MSPB Docket No.
CH-1221-18-0186-C-2. 2
Medical Center. Turk v. Department of Veterans Affairs , MSPB Docket
No. CH-3443-20-0118-I-1, Initial Appeal File (0118 IAF), Tab 1 at 5.
On December 9, 2019, the appellant filed the instant appeal challenging his
nonselection. Id. The administrative judge explained that the Board generally
lacks jurisdiction over nonselection appeals with certain limited exceptions and
ordered the appellant to file evidence and argument regarding jurisdiction.
0118 IAF, Tab 4. In response, the appellant argued that his nonselection for the
Medical Technologist position violated the settlement agreement that was filed
with the Board in Turk v. Department of Veterans Affairs , MSPB Docket No.
CH-1221-18-0186-W-1. 0118 IAF, Tab 9 at 4.
The administrative judge issued an initial decision that dismissed the
appeal on the grounds of adjudicatory efficiency. 0118 IAF, Tab 11, Initial
Decision (ID) at 4. Specifically, the administrative judge determined that the
appellant raised in the instant appeal what is essentially the same argument as the
one he raised in his petition for review in the prior appeal: the no-admission-of-
fault provision in his settlement agreement obligated the agency to take future
conduct not otherwise spelled out in that settlement agreement. ID at 4.
The administrative judge also noted that the appellant made no argument that
would bring this appeal within the Board’s jurisdiction. ID at 4.
The appellant has filed a petition for review of the initial decision.
0118 PFR File, Tab 1. The agency responded in opposition, 0118 PFR File,
Tab 4, to which the appellant replied, 0118 PFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge erred in dismissing the appeal based on adjudicatory
efficiency.
In his petition for review of the prior appeal, the appellant alleged that he
lost a job offer because of statements made by an agency employee to a
prospective employer and that the SF-50 documenting his resignation should
specifically state that he resigned voluntarily. 0186 PFR File, Tab 1 at 4. In the3
instant appeal, the appellant alleged that, because the settlement agreement
contained a no-admission-of-fault provision, the agency should have granted him,
at minimum, an interview for a Medical Technologist position for which he
applied, even if it did not select him. 0118 IAF, Tab 1 at 5, Tab 9 at 4.
The administrative judge stated that the allegations raised in the instant appeal
were essentially the same as those raised in the petition for review in the prior
appeal and determined that dismissal was appropriate on the grounds of
adjudicatory efficiency. ID at 4.
When an appellant files an appeal that raises claims raised in a prior appeal
after the initial decision in the prior appeal has been issued, but before the Board
has acted on the appellant’s petition for review, it is appropriate to dismiss the
subsequent appeal on the grounds of adjudicatory efficiency. Bean v. U.S. Postal
Service, 120 M.S.P.R. 447, ¶ 5 (2013). In other words, the Board will dismiss an
appeal based on adjudicatory efficiency where an identity of issues exists and the
controlling issues in the appeal will be determined in a prior appeal. Id.
Here, the claim raised in the petition for review in the prior appeal and the
claim raised in the instant appeal lack the requisite identity of issues.
The circumstances surrounding the appellant not being selected are different, the
claims appear to involve different jobs and may even involve different employers,
and the appellant makes different allegations in the instant appeal as to how the
agency purportedly breached the settlement agreement. 0186 PFR, Tab 1 at 4;
0118 IAF, Tab 9 at 4. Thus, after a careful review of the record, we find that it
was not appropriate for the administrative judge to dismiss the appeal on the
grounds of adjudicatory efficiency. We, therefore, vacate the initial decision.
The appellant’s allegations regarding noncompliance with the settlement
agreement in MSPB Docket No. CH-1221-18-0186-W-1 are forwarded for
processing as a petition for enforcement.
The appellant argues in the instant appeal that the agency’s nonselection
decision, among other things, was in breach of a settlement agreement that was4
entered into the record in the prior appeal and which the Board has the authority
to enforce. 0118 PFR File, Tab 1 at 4. In so doing, the appellant expressed
an intent to file a petition for enforcement of the settlement agreement. When
issues are raised concerning the interpretation of a settlement agreement that is
enforceable by the Board and whether a party has breached the agreement, such
claims are properly addressed in the first instance by the administrative judge via
a petition for enforcement. Secrist v. U.S. Postal Service , 115 M.S.P.R. 199, ¶ 8
(2010); 5 C.F.R. § 1201.182(a). Accordingly, while the appellant’s assertions on
his initial appeal form appeared to challenge directly a nonselection, we find that
his arguments in subsequent pleadings are more properly interpreted as
compliance claims. Thus, as set forth above, we vacate the initial decision. We
also forward the appellant’s claims to the regional office for processing as a
petition for enforcement of the settlement agreement in Turk v. Department of
Veterans Affairs , MSPB Docket No. CH-1221-18-0186-W-1 .
In the compliance proceeding, the administrative judge shall provide the
parties with appropriate notice regarding the burdens of proof and shall afford the
parties an opportunity to fully develop the record.4 To the extent that it would
expedite the processing of the appellant’s compliance claims without adversely
affecting the parties, following docketing as MSPB Docket No. CH-1221-18-
0186-C-3, the administrative judge may join MSPB Docket No. CH-1221-18-
0186-C-3 with MSPB Docket No. CH-1221-18-0186-C-2. 5 C.F.R. § 1201.36(a)
(2), (b).
4 A party may breach a settlement agreement by acting in bad faith concerning a
settlement term, and an appellant may establish that an agency breached the settlement
agreement by showing that the agency’s post-settlement harassment and retaliation
against the appellant constituted bad-faith noncompliance with a term of the agreement.
Burke v. Department of Veterans Affairs , 121 M.S.P.R. 299, ¶ 15 (2014). In
considering the appellant’s petition for enforcement, among other things, the
administrative judge shall afford the appellant an opportunity to provide evidence and
argument as to this issue.5
ORDER
For the reasons discussed above, we forward the appellant’s compliance
claims to the regional office for docketing as a petition for enforcement of the
settlement agreement in Turk v. Department of Veterans Affairs , MSPB Docket
No. CH-1221-18-0186-W-1.
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).
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
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.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. 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 | Turk_John_Z_CH-3443-20-0118-I-1_Final_Order.pdf | 2024-05-29 | JOHN Z. TURK v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-3443-20-0118-I-1, May 29, 2024 | CH-3443-20-0118-I-1 | NP |
1,333 | https://www.mspb.gov/decisions/nonprecedential/Rea_Mary_C_CH-1221-18-0397-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARY C. REA,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-1221-18-0397-W-1
DATE: May 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mary C. Rea , Chesterfield, Missouri, pro se.
Erin E. Milligan , Esquire, 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
dismissed her individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
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. We VACATE the administrative
judge’s analysis of whether the appellant exhausted her administrative remedies
and FIND instead that the appellant exhausted her administrative remedies. We
AFFIRM the administrative judge’s conclusion that the appellant did not make a
nonfrivolous allegation of a whistleblowing disclosure, and thus, the Board lacks
jurisdiction over the appeal. Except as expressly modified by this Order, we
AFFIRM the initial decision.
BACKGROUND
The appellant was employed by the agency as a Veterans Claims Examiner.
Initial Appeal File (IAF), Tab 5 at 3. On April 17, 2017, the appellant filed a
complaint of possible prohibited personnel practice or other prohibited activity
with the Office of Special Counsel (OSC). Petition for Review (PFR) File, Tab 6
at 7-14. Among other things, the appellant alleged that her supervisor committed
privacy violations and engaged in other improper conduct, that she confronted her
supervisor about some of this conduct, and that she believed she was about to be
suspended or terminated. Id. at 12-14. Effective August 20, 2017, the appellant
was removed from her position on charges of absence without leave, misuse of
Government equipment, and failure to follow instructions. IAF, Tab 1 at 7,
Tab 14 at 2, 4. On March 30, 2018, OSC closed its investigation into the
3
appellant’s complaint and informed her of her right to seek corrective action with
the Board. IAF, Tab 5 at 5. The appellant thereafter filed this IRA appeal. IAF,
Tab 1.
The administrative judge informed the appellant of how to establish the
Board’s jurisdiction in an IRA appeal. IAF, Tab 3. In his initial decision, the
administrative judge found that the appellant failed to nonfrivolously allege that
she made a whistleblowing disclosure that was exhausted with OSC, and he
therefore dismissed her IRA appeal for lack of jurisdiction. IAF, Tab 21, Initial
Decision (ID) at 4, 9-12. On petition for review, the appellant indicates that she
never intended to allege that she suffered reprisal for whistleblowing, and she
asks for the Board to appoint an attorney for her, to replace the agency attorney,
and to provide her additional time to submit evidence. PFR File, Tab 1 at 10.
The agency has filed a response.2 PFR File, Tab 3. The appellant has also filed a
supplement to her petition, which includes her OSC complaint and some of her
correspondence with OSC regarding a Freedom of Information Act (FOIA)
request.3 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 . Maddox v. Merit Systems
Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). To establish Board
2 The agency asserts that the appellant admitted that her petition for review was
untimely filed. PFR File, Tab 3 at 4. However, the Office of the Clerk of the Board has
already determined that her petition for review was timely filed. PFR File, Tab 2.
3 The appellant filed a sworn statement below, claiming that she never received a copy
of the agency’s proposal or decision letters. IAF, Tab 14 at 4. In light of the due
process and election of remedies implications, the Board issued a show cause order
directing the agency to submit evidence and argument on the issue. PFR File, Tab 7. In
response to the order, the agency submitted evidence showing that it timely delivered
both the proposal and decision letters to the appellant’s home address. PFR File,
Tab 8 at 47-72. The appellant does not dispute this evidence. To the extent that the
evidence shows that the appellant refused these deliveries, we find that she
constructively received the subject documents under 5 C.F.R. § 1201.22(b)(3).
4
jurisdiction over an IRA appeal, the appellant must exhaust her administrative
remedies before OSC and make nonfrivolous allegations that (1) she made a
whistleblowing disclosure under 5 U.S.C. § 2302(b)(8) or engaged in protected
activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the
disclosure or protected activity was a contributing factor in the agency’s decision
to take, fail to take, or threaten to take a personnel action as defined by 5 U.S.C.
§ 2302(a). Yunus v. Department of Veterans Affairs , 242 F.3d 1367, 1371 (Fed.
Cir. 2001); Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016).
We will consider the appellant’s evidence on petition for review.
For the first time on review, the appellant submits a number of documents,
including her April 2017 OSC complaint, and October and November 2018
correspondence with OSC about FOIA requests that she filed. PFR File, Tab 1
at 13-14, Tab 6 at 7-17. 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); see Delgado v. Merit Systems Protection Board ,
880 F.3d 913, 920-21 (7th Cir. 2018) (discussing the difficulties an individual
may have in obtaining a copy of their OSC complaint). Accordingly, we have
considered the documents submitted by the appellant on review.
Based on our review of her petition for review submissions, we find that the
appellant exhausted her administrative remedy with OSC. 4
Under 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
4 In the initial decision, the administrative judge noted that the appellant failed to make
a nonfrivolous allegation of a protected disclosure that was exhausted with OSC. E.g.,
ID at 1-2, 4, 9, 12. We believe that these statements improperly conflate the
requirement to prove exhaustion and the requirement to make a nonfrivolous allegation
of a protected disclosure. Accordingly, we modify the initial decision to vacate the
administrative judge’s exhaustion analysis, find instead that the appellant exhausted her
administrative remedies with OSC, and affirm the administrative judge’s conclusion
that she did not make a nonfrivolous allegation of a whistleblowing disclosure.
5
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. 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).
In her OSC complaint, the appellant stated that she suffered retaliation
because her supervisor “was called out for [a] privacy violation” on March 4,
2016. PFR File, Tab 6 at 12. The appellant also informed OSC that, on or about
February 18, 2016, a coworker sent her an email concerning her “work load
which immediately revealed that [the supervisor] was violating [the appellant’s]
privacy by discussing [her and her] workload with [the coworker].” Id. at 13.
OSC’s close-out letter stated that the appellant asserted reprisal for her disclosure
that her privacy was violated when her coworker sent her an email on
February 18, 2016, about her workload. IAF, Tab 5 at 5.5 We therefore modify
the initial decision to find that the appellant exhausted her administrative
remedies with OSC.6
5 OSC’s letter further stated that the appellant alleged that the agency had placed her in
absence without leave status and subsequently removed her in reprisal for her
disclosure. IAF, Tab 5 at 5.
6 The appellant alleged below that “two disclosure emails” that she sent on August 17,
2016, and December 29, 2016, could have been a contributing factor in everything that
happened to her thereafter. IAF, Tab 19 at 5, 9, 11. The appellant further indicated that
she was retaliated against for threatening to have her supervisor arrested in or about
December 2016. IAF, Tab 1 at 7-9. Although the appellant indicates that she filed
“[a]dditional complaints” with OSC after April 17, 2017, PFR File, Tab 6 at 3-4, the
record contains no evidence of such filings, any other correspondence between the
6
The appellant failed to nonfrivolously allege that she made a whistleblowing
disclosure.
After determining that the appellant proved exhaustion, we must next
consider whether the appellant has nonfrivolously alleged that she made a
whistleblowing disclosure or engaged in protected activity. See Salerno,
123 M.S.P.R. 230, ¶ 5; Carney v. Department of Veterans Affairs , 121 M.S.P.R.
446, ¶ 5 (2014). A nonfrivolous allegation of a protected disclosure is an
allegation of fact that, if proven, would show that the appellant disclosed a matter
that a reasonable person in her position would believe evidenced one of the
categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). See Salerno,
123 M.S.P.R. 230, ¶ 6. 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. The disclosures must be specific and detailed, not
vague allegations of wrongdoing. Id.
To make a protected disclosure of a violation of law, rule, or regulation, an
individual ordinarily must identify the specific law, rule, or regulation that was
violated. Ayers v. Department of the Army , 123 M.S.P.R. 11, ¶ 24 (2015).
However, an employee need not identify a statutory or regulatory provision by a
title or number when the statements and the circumstances surrounding the
making of those statements “clearly implicate an identifiable violation of law,
rule, or regulation.” Id. (quoting Langer v. Department of the Treasury , 265 F.3d
appellant and OSC regarding her complaints, or any statements made under penalty of
perjury regarding the nature of the additional complaints that she made to OSC.
Accordingly, because there is no evidence whatsoever that the appellant informed OSC
about the purported disclosures that she made in August and December 2016, or of the
threat of arrest she made against her supervisor, the Board lacks jurisdiction over any
claim of reprisal she may have suffered for such actions.
7
1259, 1266 (Fed. Cir. 2001)). These requirements apply equally to pro se
appellants. Langer, 265 F.3d at 1262, 1266.
Here, the record reflects that the appellant disclosed to her supervisor that
she (the supervisor) violated her privacy by discussing her workload with one of
her coworkers. IAF, Tab 19 at 5; PFR File, Tab 6 at 12-13. The appellant does
not state what, specifically, the supervisor revealed about her workload, or
explain why she believed that she had a right to have that information kept
private. The appellant has not identified any specific law, rule, or regulation that
her supervisor’s actions would have violated, nor are we aware of any laws, rules,
or regulations which are implicated by the alleged acts. Accordingly, we find that
the appellant has failed to nonfrivolously allege that her disclosure evidenced a
violation of any law, rule, or regulation. See Ayers, 123 M.S.P.R. 11, ¶ 24
(finding that the appellant’s allegation of an improper relationship was not a
protected disclosure).
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 herself or
preferred other persons. Pasley v. Department of the Treasury , 109 M.S.P.R.
105, ¶ 18 (2008). There is no de minimis standard for abuse of authority as a
basis of a protected disclosure. Id. Harassment or intimidation of other
employees may constitute an abuse of authority. Id. A supervisor’s use of her
influence to denigrate other staff members in an abusive manner and to threaten
the careers of staff members with whom she disagrees constitutes abuse of
authority. Id.
Here, the appellant has provided virtually no details about what,
specifically, the supervisor allegedly said to the coworker about the appellant’s
workload. IAF, Tab 19 at 5; PFR File, Tab 6 at 12-13. We therefore find that a
disinterested observer could not reasonably conclude that the supervisor’s alleged
statement constituted an abuse of authority. See Mc Corcle v. Department of
8
Agriculture, 98 M.S.P.R. 363, ¶ 24 (2005) (finding that vague allegations of
wrongdoing, lacking in specific detail, fail to rise to the level of nonfrivolous
allegations of a protected disclosure).
Gross mismanagement means a management action or inaction that creates
a substantial risk of significant adverse impact on the agency’s ability to
accomplish its mission. Swanson v. General Services Administration ,
110 M.S.P.R. 278, ¶ 11 (2008). Here, a reasonable person could not conclude
that the supervisor’s alleged statements about the appellant’s workload
constituted gross mismanagement. We also are not persuaded that the appellant’s
disclosure constituted a nonfrivolous allegation of a substantial and specific
danger to public health or safety. Accordingly, we find that the appellant has
failed to make a nonfrivolous allegation of a whistleblowing disclosure and has
therefore failed to establish the Board’s jurisdiction over this appeal.7 Because of
this finding, we need not address whether the appellant made a nonfrivolous
allegation of contributing factor.
The appellant has failed to establish any other basis for granting the petition for
review.
On review, the appellant states the following:
In its closeout letter, OSC characterized my claims as a result of
whistleblowing reprisal along with numerous misstatements of facts.
They are not and have never been. I completed Form OSC-11 which
is for “COMPLAINT OF POSSIBLE PROHIBITED PERSONNEL
PRACTICE OR OTHER PROHIBITED ACTIVITY.” Part 2 of that
form, “Reprisal for Whistle blowing[,]” was never completed by me.
I also did not complete Form OSC-12 “INFORMATION ABOUT
FILING A WHISTLEBLOWER DISCLOSURE WITH THE OFFICE
OF SPECIAL COUNSEL”.
7 Additionally, in her OSC complaint, the appellant indicated that she filed a complaint
with the Equal Employment Opportunity Commission in September 2016, filed a
grievance in December 2016, her spouse reported her issues to the agency Inspector
General in December 2016, and she would “soon” report her issues to a member of
Congress. PFR File, Tab 6 at 8. The appellant has not specifically alleged in this
appeal that she suffered reprisal for these activities.
9
PFR File, Tab 1 at 10 (grammar and capitalization as in original). We construe
the appellant’s statements on review as an indication that she never intended to
allege that she suffered reprisal for whistleblowing; rather, it appears that she is
seeking adjudication of the underlying removal action. In an IRA appeal, the
Board lacks the authority to adjudicate the merits of the underlying personnel
action; rather, our jurisdiction is limited to adjudicating the whistleblower
allegations. Lu v. Department of Homeland Security , 122 M.S.P.R. 335, ¶ 7
(2015). Accordingly, to the extent that the appellant asks the Board to adjudicate
the underlying removal in this IRA appeal, we lack jurisdiction to do so.
In her petition for review submission, the appellant asks “to resume this
appeal in July or August 2019,” after she recovers from surgery scheduled in
March 2019. PFR File, Tab 6 at 3. This request appears moot. As of the date of
this Order, the appellant has not provided any additional evidence.
On review, the appellant also requests that the Board appoint an attorney to
represent her. PFR File, Tab 1 at 10. It is the appellant’s obligation to secure
representation because there is no law, rule, or regulation requiring the Board to
appoint counsel for her. See Rosado v. Department of the Air Force , 46 M.S.P.R.
539, 541 n.1 (1991). Her request is therefore denied.
The appellant additionally requests a copy of the agency file, and that the
agency attorney, whom she claims failed to comply with the administrative
judge’s order to produce the agency file, be replaced. PFR File, Tab 1 at 10. In
his May 25, 2018 acknowledgement order, the administrative judge ordered the
agency to produce the materials listed on an enclosed schedule, along with other
information required by 5 C.F.R. § 1201.25, within 20 calendar days. IAF, Tab 2
at 6-7. In its June 5, 2018 motion to dismiss and to stay deadlines, the agency
requested a stay of its deadlines pending a decision on jurisdiction. IAF, Tab 7
at 12. The administrative judge did not rule on that request, and the agency never
produced the required documentation.
10
The Board will normally only consider an argument raised for the first time
on review if it is based on new and material evidence not previously available
despite the petitioner’s due diligence. Banks v. Department of the Air Force ,
4 M.S.P.R. 268, 271 (1980); 5 C.F.R. § 1201.115(d). In none of the 12 pleadings
that the appellant filed with the Board between when the agency file was due and
the issuance of the initial decision did she argue that the agency failed to comply
with the acknowledgement order by failing to submit the agency file or otherwise
argue that the agency representative should be disqualified. IAF, Tabs 8-12,
14-20. Even if we consider this argument, the appellant has not explained how
production of the agency file would enable her to make a nonfrivolous allegation
of Board jurisdiction. We therefore deny her request. We also deny her request
to replace the agency attorney.
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.
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.
11
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 you
12
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:
13
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.
14
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. | Rea_Mary_C_CH-1221-18-0397-W-1__Final_Order.pdf | 2024-05-29 | MARY C. REA v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-18-0397-W-1, May 29, 2024 | CH-1221-18-0397-W-1 | NP |
1,334 | https://www.mspb.gov/decisions/nonprecedential/Bunch_Gloria_A_AT-3443-21-0482-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GLORIA A. BUNCH,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-3443-21-0482-I-1
DATE: May 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gloria A. Bunch , Little Rock, Arkansas, pro se.
Johnston B. Walker , Esquire, and LaTasha C. Clark , Jackson, Mississippi,
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
dismissed her nonselection appeal for lack of jurisdiction.2 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).
2 The appellant attached a number of exhibits to her petition for review, all of which
were included in the record below, so we have not considered them. Compare Petition
for Review (PFR) File, Tab 1 at 10-31, with Initial Appeal File, Tab 7 at 14-37; see
Okello v. Office of Personnel Management , 112 M.S.P.R. 563, ¶ 10 (2009) (noting that
review, the appellant reasserts that the agency engaged in discrimination in
connection with her nonselection and that she was not selected for the position in
retaliation for protected whistleblowing activity.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).
¶2After 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.4 Therefore, we DENY the petition for review and AFFIRM
under 5 C.F.R. § 1201.115(d), the Board will not consider evidence submitted for the
first time with a petition for review absent a showing that it is both new and material);
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).
3 The appellant alleges, for the first time on review, that she “filed Complaints with the
Office of Special Counsel [OSC],” and requests that the Board refer her complaint to
OSC if it determines that her administrative remedies “have not been properly
exhausted.” PFR File, Tab 1 at 8. If the appellant desires to file an individual right of
action appeal, she may do so with the Board’s regional office in accordance with the
Board’s procedures. See 5 C.F.R. §§ 1209.5-1209.6.
4 In her reply to the agency’s response in opposition to the petition for review, the
appellant alleges that the agency falsely certified that it filed its response to the petition
for review on September 13, 2021, even though the response was not sent by mail via
the U.S. Postal Service until September 16, 2021, and requests that the agency’s
response be “quashed” and the agency be sanctioned for its false statement. PFR File,
Tab 4 at 2-4. As an initial matter, the appellant filed her reply to the agency’s response
on October 6, 2021, which was more than 10 days after the date she acknowledges that
she received the agency’s response on September 23, 2021, so her reply is untimely and
we need not consider it. Id. at 1, 3. Regardless, the appellant has not shown that she
was harmed by the agency’s service, so any error in the agency’s service does not
provide a basis for reversing the initial decision. See Kukish v. U.S. Postal Service ,2
the initial decision, which is now the Board’s final decision.5 5 C.F.R.
§ 1201.113(b).
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.
68 M.S.P.R. 360, 362 (1995) (concluding that the agency’s error in service provided no
basis for granting employee’s petition for review because no harm accrued, and
employee made no showing in support of his claim that he was harmed by the failure of
service).
5 Following the close of the record on review, the appellant submitted a motion for
leave to file an additional pleading, requesting to submit medical records demonstrating
that she was “incapacitated” due to various conditions and therefore was unable to
understand and timely respond to Board orders in prosecuting her appeal. PFR File,
Tab 6. The appellant has not provided any indication of what new medical record
evidence she would like to submit and how any new evidence would have any bearing
on her nonselection appeal, which was dismissed for lack of jurisdiction. Accordingly,
the motion is denied. See 5 C.F.R. §§ 1201.114(k), 1201.115(d).
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.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.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. 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 | Bunch_Gloria_A_AT-3443-21-0482-I-1__Final_Order.pdf | 2024-05-29 | GLORIA A. BUNCH v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-3443-21-0482-I-1, May 29, 2024 | AT-3443-21-0482-I-1 | NP |
1,335 | https://www.mspb.gov/decisions/nonprecedential/Hawks_Timothy_W_PH-0831-19-0053-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY W. HAWKS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0831-19-0053-I-1
DATE: May 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Timothy W. Hawks , Baltic, Connecticut, pro se.
Jane Bancroft , 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 final decision of the Office of Personnel Management (OPM)
denying his request to recalculate or waive the interest on his belated deposit for
post-1956 military service that he had paid to receive credit for that period of
service under the Civil Service Retirement System. On petition for review, the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
appellant repeats his assertion that OPM had “unfairly treated” him by requiring
him to pay the full amount of interest owed, because an administrative error
committed by his employing agency had caused the significant delay in his
military service deposit. Petition for Review (PFR) File, Tab 1 at 1-3; Initial
Appeal File, Tab 1 at 4. He argued that “laws are not absolute and an injustice
[could] be corrected while staying within the law,” and he stated that a period of
interest of 1 to 3 years would be fair, in contrast to the “30 plus years” of interest
that he had paid. PFR File, Tab 1 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
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 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. 115-195,5
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 | Hawks_Timothy_W_PH-0831-19-0053-I-1__Final_Order.pdf | 2024-05-29 | TIMOTHY W. HAWKS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0831-19-0053-I-1, May 29, 2024 | PH-0831-19-0053-I-1 | NP |
1,336 | https://www.mspb.gov/decisions/nonprecedential/Gunn_OrlanthiaAT-0841-20-0064-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ORLANTHIA GUNN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0841-20-0064-I-1
DATE: May 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Orlanthia Gunn , Wilsonville, Alabama, pro se.
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 for lack of jurisdiction her appeal alleging an improper reduction in
annuity payments due to her under the Federal Employees’ Retirement System
(FERS). Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
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).
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).
We agree with the administrative judge’s finding that the Office of
Personnel Management (OPM) had not issued the appellant a final decision
appealable to the Board and thus the Board lacks jurisdiction over the appellant’s
appeal. Initial Appeal File, Tab 7, Initial Decision; 5 U.S.C. § 8461(e)(1); Okello
v. Office of Personnel Management, 120 M.S.P.R. 498, ¶¶ 13-14
(2014); 5 C.F.R. § 841.308. The appellant attached to her petition for review an
explanation from OPM of her annuity calculation, but there is no indication that
this constituted OPM’s final decision. Petition for Review File, Tab 1 at 10-12.
Because the calculation did not constitute a final decision, it does not create
Board jurisdiction. 5 U.S.C. § 8461(e)(1); Okello, 120 M.S.P.R. 498,
¶¶ 13-14; 5 C.F.R. § 841.308. Upon receipt of a final decision from OPM
affecting her rights and interests under FERS, the appellant may file another
appeal with the appropriate regional office consistent with the Board’s
regulations. 2
NOTICE OF APPEAL RIGHTS1
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:
1 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.2 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.
2 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 | Gunn_OrlanthiaAT-0841-20-0064-I-1__Final_Order.pdf | 2024-05-29 | ORLANTHIA GUNN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0841-20-0064-I-1, May 29, 2024 | AT-0841-20-0064-I-1 | NP |
1,337 | https://www.mspb.gov/decisions/nonprecedential/Bunch_Gloria_A_DA-0841-20-0350-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GLORIA A. BUNCH,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-0841-20-0350-I-1
DATE: May 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gloria A. Bunch , Little Rock, Arkansas, pro se.
Michael Shipley , Washington, D.C., 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
dismissed her appeal of the Office of Personnel Management’s (OPM)
reconsideration decision for lack of jurisdiction. On petition for review, the
appellant argues that the dismissal of her appeal constituted harmful procedural
error and that her appeal is a “mixed case,” and she restates her arguments that
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).
she was incapacitated at the time she applied for disability retirement benefits,
that she engaged in protected whistleblowing, and that she was unlawfully
removed from Federal service. However, the appellant does not challenge
the administrative judge’s finding concerning the dispositive jurisdictional issue.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b).
2 The appellant has included a number of documents with her petition for review.
Petition for Review (PFR) File, Tab 1 at 10-54. 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. See Avansino v. U.S.
Postal Service, 3 M.S.P.R. 211, 214 (1980 ); 5 C.F.R. § 1201.115(d). We have reviewed
this evidence, and we find that the appellant has not shown that it is either new or
material. See Okello v. Office of Personnel Management , 112 M.S.P.R. 563, ¶ 10
(2009) (concluding that under 5 C.F.R. § 1201.115(d) the Board will not consider
evidence submitted for the first time with a petition for review absent a showing that it
is both new and material). As an initial matter, all of the documents the appellant
provided were included in the record below. Compare PFR File, Tab 1 at 10-54, with
Initial Appeal File, Tab 14 at 12-56. Additionally, the appellant has not explained how
these documents, the bulk of which are comprised of medical records or other
documents related to her disability retirement application, are relevant to the
jurisdictional matter at issue in this appeal. Accordingly, we have not considered them.
Finally, following the close of the record on review, the appellant submitted a motion
for leave to file an additional pleading, requesting to submit additional medical records2
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).
demonstrating that she was “incapacitated” due to various conditions and therefore was
unable to understand and timely respond to Board orders in prosecuting her appeal.
PFR File, Tab 6. However, she has not provided any indication of what new medical
record evidence she would like to submit and how any new evidence would have any
bearing on the relevant issue in this appeal, which is the Board’s lack of jurisdiction
over the appellant’s attempt to challenge OPM’s decision denying her request to change
her Federal Employees’ Group Life Insurance coverage election. Accordingly, the
motion is denied. See 5 C.F.R. §§ 1201.114(k), 1201.115(d).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on4
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Bunch_Gloria_A_DA-0841-20-0350-I-1__Final_Order.pdf | 2024-05-29 | GLORIA A. BUNCH v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0841-20-0350-I-1, May 29, 2024 | DA-0841-20-0350-I-1 | NP |
1,338 | https://www.mspb.gov/decisions/nonprecedential/Akerman_MartinDC-3443-22-0296-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARTIN AKERMAN,
Appellant,
v.
OFFICE OF SPECIAL COUNSEL,
Agency.DOCKET NUMBER
DC-3443-22-0296-I-1
DATE: May 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
M
artin Akerman , Arlington, Virginia, pro se.
Amy Beckett , Esquire, and Hnin Khaing , Esquire, 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 with prejudice at his request. For the reasons set forth
below, the appellant’s petition for review is DISMISSED as untimely filed
without good cause shown.2 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
On March 13, 2022, the appellant filed an appeal with the Board against the
Office of Special Counsel (OSC), asserting that OSC had engaged in “neglect of
duty-malfeasance in office” and challenging OSC’s processing of his OSC
complaint. Initial Appeal File (IAF), Tab 1 at 3. The administrative judge issued
a jurisdictional order, notifying the appellant that the Board may not have
jurisdiction over his appeal, setting forth the applicable legal standard, and
affording him the opportunity to produce evidence or argument establishing
jurisdiction over his appeal. IAF, Tab 3. Before the appellant responded to the
jurisdictional order, he filed a request to dismiss the appeal with prejudice,
explaining that he wanted “to remove any burden . . . from an already busy OSC
staff and [himself].” IAF, Tab 8 at 3. He then reiterated his request to dismiss
his appeal with prejudice. Id.
Subsequently, the administrative judge issued an April 21, 2022 initial
decision dismissing the appeal with prejudice. IAF, Tab 10, Initial Decision (ID).
The initial decision notified the appellant of the deadline to file a petition for
review, i.e., May 26, 2022, and included explicit instructions on how to file a
petition for review. ID at 2-5. Nearly a year later, on May 23, 2023, the
2 Pursuant to the Board’s Delegations Manual at § 2.3.5.1, the Office of the Clerk of the
Board has delegated authority to grant a petitioner’s request to withdraw his petition for
review. Chairman Cathy A. Harris, Vice Chairman Raymond A. Limon, and former
Member Tristan L. Leavitt issued a policy effective June 28, 2022, stating that the Clerk
may exercise the delegated authority to grant a withdrawal of a petition for review when
requested by the petitioner if there was no apparent untimeliness of the petition and if
no other party objects to the withdrawal. On July 19, 2023, the appellant filed a request
to withdraw his petition for review, citing the June 28, 2022 policy. Petition for
Review (PFR) File, Tab 9 at 3, Tab 10 at 3. The then-Acting Clerk of the Board
advised the appellant that the Office of the Clerk of the Board was unable to grant his
request because, as noted in its June 8, 2023 acknowledgement letter, his petition for
review appeared to be untimely filed. PFR File, Tab 11 at 1. The appellant responded,
reiterating his request to withdraw his petition for review, referencing the June 28, 2022
policy, and asserting that his petition for review was timely in consideration of the
Board’s restored quorum. PFR File, Tab 12 at 3. Because we find that the appellant’s
petition for review was untimely filed without good cause shown, we deny the
appellant’s request to withdraw his petition for review. 2
appellant filed a petition for review, requesting that the Board reopen his appeal
based on new evidence, attaching a May 3, 2023 letter from OSC correcting the
file number included in correspondence sent to the appellant 1 year prior.
Petition for Review (PFR) File, Tab 1 at 3-4. The then-Acting Clerk of the Board
(Acting Clerk) issued a letter requesting that the appellant confirm whether
he intended to file a petition for review of the initial decision. PFR File, Tab 2.
The appellant responded, stating that his intention was to introduce new evidence
so that the Board would reopen the record and reconsider the appeal pursuant to
5 C.F.R. § 1201.118, and attaching email correspondence with OSC regarding the
typographical error. PFR File, Tab 3 at 4-5.3
Thereafter, the Acting Clerk issued a letter acknowledging the appellant’s
filing as a petition for review, notifying him that his petition for review appeared
to be untimely filed, and explaining that the Board’s regulations require that
an untimely petition for review be accompanied by a motion to accept the filing
as timely and/or to waive the time limit for good cause. PFR File, Tab 5 at 1-2.
The appellant timely filed a motion to accept the petition for review as timely,
repeating that he was filing new evidence so that the Board would reopen the
appeal pursuant to 5 C.F.R. § 1201.118. PFR File, Tab 6 at 4. He asserted that
the May 3, 2023 letter from OSC correcting the file number had significant
repercussions because, among other things, it did not allow OSC to represent him
and impaired his ability to demonstrate that he had exhausted his administrative
remedies in a case that is now pending in the U.S. Court of Appeals for the Fourth
Circuit. Id. at 5-6. The agency responded in opposition to the appellant’s
petition for review and motion to accept the petition for review as timely,
PFR File, Tab 7, and the appellant replied to the agency’s response, PFR File,
Tab 8.4
3 The appellant also provided email correspondence with his former employing agency
that he apparently included with his email to OSC. PFR File, Tab 3 at 6-12.
4 On May 22, 2024, the appellant filed a pleading, “Motion for Recusal of Mr. Henry J.
Kerner in Pending MSPB Cases relating to OSC,” requesting that Mr. Kerner recuse3
DISCUSSION OF ARGUMENTS ON REVIEW
A petition for review generally must be filed within 35 days after the date
of the issuance of the initial decision or, if the appellant shows that the initial
decision was received more than 5 days after the initial decision was issued,
within 30 days after the date the appellant received the initial decision. 5 C.F.R.
§ 1201.114(e). The Board will waive a petition for review time limit only upon a
showing of good cause for the delay in filing. 5 C.F.R. § 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. Rivera v. Social Security Administration ,
111 M.S.P.R. 581, ¶ 4 (2009) (citing 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. Rivera, 111 M.S.P.R. 581, ¶ 4. The appellant bears the
burden of proof with regard to timeliness, which he must establish by
preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(B); McPherson v. Department
of the Treasury, 104 M.S.P.R. 547, ¶ 4 (2007) (stating that the appellant bears the
burden of proof with regards to timeliness, which he must establish by
preponderant evidence).
Here, the deadline for filing a petition for review was May 26, 2022, and
the appellant filed his petition for review on May 23, 2023, almost 1 year late.
ID at 2; PFR File, Tab 1. The appellant has not alleged that he did not receive the
initial decision, or that he received it more than 5 days after it was issued.
himself from this matter and several of the appellant’s other cases pending before the
Board, PFR File, Tab 14; however, Mr. Kerner has not been sworn in as a member of
the Board as of the date of this decision.4
Furthermore, the appellant has failed to show good cause for this untimely filing.
Notwithstanding the appellant’s pro se status, his nearly 1-year delay in filing
was significant. Scali v. Office of Personnel Management , 106 M.S.P.R. 409,
¶¶ 6, 8 (2007) (finding that 1 year was a significant filing delay); Duncan v. U.S.
Postal Service, 96 M.S.P.R. 448, ¶¶ 5, 7 (2004) (finding that, even in light of the
appellant’s pro se status, an approximately 1-year filing delay was significant).
Furthermore, the appellant has failed to offer a persuasive excuse, show that
he acted with diligence, or set forth circumstances beyond his control that
affected his ability to comply with the filing limit. PFR File, Tab 1 at 3, Tab 6
at 4-9.
Although the appellant did not assert in a written narrative that a medical
condition prevented him from timely filing his petition for review, he attached a
medical report to his motion to accept his petition for review as timely filed.5
PFR File, Tab 6 at 10-13. To establish good cause for untimely filing based on
illness, an appellant must: (1) identify the time period during which he suffered
from the illness; (2) submit medical evidence showing that he suffered from the
alleged illness during that time period; and (3) explain how the illness prevented
him from timely filing his petition for review. Lacy v. Department of the Navy ,
78 M.S.P.R. 434, 437 (1998). Although the appellant’s medical evidence
establishes that he suffers from medical conditions, neither the report, nor the
appellant, has explained how such conditions prevented him from timely filing
his petition for review. PFR File, Tab 6 at 10-13. Indeed, any claim of
incapacitation due to illness is further undermined by the fact that the appellant
5 The appellant also attached a series of communications with an artificial intelligence
system which assisted him in drafting his pleading, and a report from Lexis listing
decisions from various venues citing Board regulations, including 5 C.F.R. § 1201.118.
PFR File, Tab 6 at 10-38. The appellant has not explained the relevancy of these
documents, and they provide no basis for disturbing the initial decision. 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). 5
was able to file multiple petitions for review during this same time frame in his
other pending appeals before the Board, including MSPB Docket Nos. DC-1221-
22-0257-W-1, DC-1221-22-0445-W-1, DC-0752-0376-I-1, and DC-1221-22-
0459-W-1.6 Thus, we find that the appellant’s evidence does not demonstrate that
his medical conditions were severe enough to have prevented him from timely
filing a petition for review.
Finally, we find no basis to grant the appellant’s request for the Board to
reopen and reconsider this appeal pursuant to 5 C.F.R. § 1201.118. PFR File,
Tab 1 at 3, Tab 6 at 4-9. The Board has the authority to reopen and reconsider
appeals in which it has rendered a final decision. 5 U.S.C. § 7701(e)(1)(B);
5 C.F.R. § 1201.118. In deciding whether to reopen a closed appeal, the Board
will balance the desirability of finality against the public interest in reaching the
right result and will exercise its authority to reopen only in unusual or
extraordinary circumstances. Nohr v. U.S. Postal Service , 112 M.S.P.R. 220, ¶ 10
(2009). We discern no such unusual or extraordinary circumstances here, as this
new evidence merely establishes that OSC made a clerical error. PFR File, Tab 1
at 4. Additionally, a request to reopen must be filed within a reasonable period of
time, measured in weeks. Nohr, 112 M.S.P.R. 220, ¶ 10. Here, the appellant
filed his reopening request almost 1 year after the initial decision became final.
PFR File, Tab 1; ID at 2. Moreover, the appellant’s petition for review is
untimely for the reasons set forth above, and the Board will not normally reopen
an appeal to cure an untimely petition for review. Nohr, 112 M.S.P.R. 220, ¶ 10.
Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the dismissal of the appeal with prejudice.
6 The petitions for review filed by the appellant in the identified cases have been
addressed or will be addressed in separate decisions.6
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.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.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. 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 | Akerman_MartinDC-3443-22-0296-I-1_Final_Order.pdf | 2024-05-29 | MARTIN AKERMAN v. OFFICE OF SPECIAL COUNSEL, MSPB Docket No. DC-3443-22-0296-I-1, May 29, 2024 | DC-3443-22-0296-I-1 | NP |
1,339 | https://www.mspb.gov/decisions/nonprecedential/Rodriguez_Mabel_A_SF-0752-18-0408-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MABEL A. RODRIGUEZ,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-0752-18-0408-I-2
DATE: May 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stephen Millard , Grand Terrace, California, for the appellant.
Catherine V. Meek , Long Beach, California, 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 her removal for conduct and performance reasons. 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).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you3
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 4
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Rodriguez_Mabel_A_SF-0752-18-0408-I-2__Final_Order.pdf | 2024-05-29 | MABEL A. RODRIGUEZ v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0752-18-0408-I-2, May 29, 2024 | SF-0752-18-0408-I-2 | NP |
1,340 | https://www.mspb.gov/decisions/nonprecedential/Hall_Darlena_E_CH-0752-19-0098-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DARLENA E. HALL,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
CH-0752-19-0098-I-1
DATE: May 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Donna L. Drake , Markham, Illinois, for the appellant.
Deborah L. Lisy , Chicago, Illinois, 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 her removal from Federal service based on the charge of unacceptable
conduct. On petition for review, the appellant argues that the agency failed to
prove its charge, claiming that there is no evidence that she hid old mail in a
storage room or in her office, and challenging the administrative judge’s
credibility determinations. Petition for Review File, Tab 3 at 11-21. She also
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).
reasserts her affirmative defense of reprisal for filing two prior equal employment
opportunity complaints. Id. at 21. 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 | Hall_Darlena_E_CH-0752-19-0098-I-1__Final_Order.pdf | 2024-05-29 | DARLENA E. HALL v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-0752-19-0098-I-1, May 29, 2024 | CH-0752-19-0098-I-1 | NP |
1,341 | https://www.mspb.gov/decisions/nonprecedential/Berisha_ValbonaPH-0752-19-0325-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VALBONA BERISHA,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
PH-0752-19-0325-I-1
DATE: May 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Thomas Tierney , Norwalk, Connecticut, for the appellant.
Ingrid Merritt , Windsor, Connecticut, 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 agency’s demotion action based on the charge of unacceptable
conduct. 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).
We decline to consider the appellant’s untimely objection to the administrative
judge’s ruling denying her requested witnesses.
On petition for review, the appellant argues that the administrative judge
improperly denied her requested witnesses. Petition for Review (PFR) File,
Tab 1 at 1, Tab 2 at 2, Tab 9 at 4-7. In the Order and Summary of Second
Prehearing Conference, the administrative judge denied two of the appellant’s
requested witnesses because she determined that the appellant’s cumulative offer
of proof did not demonstrate they had knowledge relevant to the issues in the
appeal. Initial Appeal File (IAF), Tab 19 at 3. The appellant challenges this
ruling regarding one of the disallowed witnesses, claiming that he would have
provided testimony relevant to specification 4 of the agency’s charge and to the
credibility of the agency’s witnesses.2 PFR File, Tab 9 at 4-7. However, despite
having been advised that she could object to the administrative judge’s summary
within 5 days of the order, the appellant, who was represented by an attorney, did
not do so. IAF, Tab 19 at 1, 3-4. Further, the appellant’s attorney did not raise
any objection at the hearing to the administrative judge’s witness ruling. IAF,
Tab 21, Hearing Compact Disc (HCD). We find that the appellant’s failure to
2 The appellant has resubmitted a handwritten statement signed by the disallowed
witness. PFR File, Tab 9 at 9; IAF, Tab 13 at 8.2
timely object to the administrative judge’s witness ruling precludes her from
raising any such objection on review. See, e.g., Germino v. Department of
Defense, 61 M.S.P.R. 683, 690 (1994) (declining to consider the appellant’s
untimely objection on review to the administrative judge’s ruling denying his
witnesses), aff’d, 52 F.3d 345 (Fed. Cir. 1995) (Table); Tarpley v. U.S. Postal
Service, 37 M.S.P.R. 579, 581 (1988 ) (finding that the appellant’s failure to
object at the hearing to the administrative judge’s witness rulings precluded him
from raising such an objection on petition for review) ; see also Christensen v.
Department of Health and Human Services , 11 M.S.P.R. 209, 211 (1982) (finding
that the appellant was responsible for the actions or inactions of her designated
representative who failed to renew her requests for witnesses during the hearing).
We discern no reason to disturb the initial decision based on the appellant’s claim
of an “accountability” issue in the office regarding stamps.
In addition, the appellant claims that the administrative judge did not allow
her to discuss an “accountability” issue that allegedly concerned a Sales and
Service Associate providing express stamps to the Postmaster for 1 year. PFR
File, Tab 1 at 1, Tab 2 at 2. The appellant further claims that she was “set up” by
the Postmaster and the clerks to cover up this accountability issue in the office.
PFR File, Tab 2 at 2. Contrary to the appellant’s assertions on review, the
administrative judge allowed the appellant to testify regarding her suspicion of an
accountability issue, even asking her clarifying questions on the issue. HCD
(testimony of the appellant). Further, the administrative judge acknowledged the
appellant’s testimony on the issue in the initial decision, but she found it
immaterial because the appellant admitted she had no proof to support her
suspicion. ID at 6 n.1, 8. To the extent the appellant believes the administrative
judge improperly limited her testimony on the accountability issue, she does not
specify what additional testimony she would have provided and how it would
have affected the outcome of the appeal. See Thomas v. U.S. Postal Service ,
116 M.S.P.R. 453, ¶ 4 (2011) (finding that the appellant failed to prove that the3
administrative judge abused her discretion in excluding evidence by making the
required showing that the disallowed evidence would have affected the outcome
of the appeal). Thus, we discern no abuse of discretion by the administrative
judge or a reason to disturb the initial decision.
We discern no reason to disturb the administrative judge’s credibility
determinations.
The appellant further argues on review that, in determining that the
Postmaster’s testimony was more credible than her own testimony, the
administrative judge failed to consider that the Postmaster allowed the appellant
to continue working at the postal facility for several weeks after the alleged
misconduct occurred and before placing her on administrative leave. PFR File,
Tab 1 at 1, Tab 2 at 2, Tab 9 at 7-8; ID at 4-6, 8-9; IAF, Tab 7 at 23. In addition,
the appellant claims that the Postmaster’s actions described above were in
violation of the agency’s own policies. PFR File, Tab 1 at 1, Tab 2 at 2, Tab 9
at 7-8.
Even assuming, without deciding, that the Postmaster violated the agency’s
policies as the appellant alleges, we discern no reason to disturb the
administrative judge’s credibility determinations. 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. Haebe v. Department of Justice , 288 F.3d 1288, 1301
(Fed. Cir. 2002) . The Board may overturn such determinations only if it has
“sufficiently sound” reasons for doing so. Id. Here, the administrative judge
heard live testimony and found the appellant’s testimony less credible than the
Postmaster’s testimony based, in part, on the appellant’s demeanor. ID at 4-6,
8-9. Further, the unrebutted record reflects that the Postmaster reported the
appellant’s alleged misconduct to the U.S. Postal Inspection Service and to upper
management within at least 2 days after such misconduct. IAF, Tab 7 at 17, 25,
Tab 15 at 6. Thus, we do not agree with the appellant’s claim that the4
Postmaster’s actions should undermine his credibility. PFR File, Tab 9 at 7-8.
Based on the foregoing, we find that the appellant’s allegations do not provide a
sufficiently sound reason to overturn the administrative judge’s demeanor-based
credibility determinations. See Rapp v. Office of Personnel Management ,
108 M.S.P.R. 674, ¶ 13 (2008) ( observing that the Board may overturn
demeanor-based credibility determinations when the administrative judge’s
findings are incomplete, inconsistent with the weight of the evidence, and do not
reflect the record as a whole).
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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 | Berisha_ValbonaPH-0752-19-0325-I-1__Final_Order.pdf | 2024-05-28 | VALBONA BERISHA v. UNITED STATES POSTAL SERVICE, MSPB Docket No. PH-0752-19-0325-I-1, May 28, 2024 | PH-0752-19-0325-I-1 | NP |
1,342 | https://www.mspb.gov/decisions/nonprecedential/Reyes_LenaAT-0845-19-0216-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LENA REYES,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0845-19-0216-I-1
DATE: May 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lena Reyes , Safety Harbor, Florida, 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
dismissed for lack of Board jurisdiction her appeal of a reconsideration decision
issued by the Office of Personnel Management (OPM) finding that she received
an overpayment of benefits under the Federal Employees’ Retirement System
(FERS). Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. However, we VACATE the initial
decision, as the appellant did not receive her jurisdictional notice and an
opportunity to establish Board jurisdiction prior to its issuance. We FIND that on
review, after the appellant received explicit information on what was required to
establish jurisdiction, she failed to meet her burden of establishing Board
jurisdiction, as OPM completely rescinded its reconsideration decision.
BACKGROUND
On January 11, 2019, OPM issued a reconsideration decision, affirming its
earlier finding that the appellant received an overpayment of FERS benefits.
Initial Appeal File (IAF), Tab 5 at 12-17. After accounting for adjustments, OPM
determined that the appellant received a $10,901.79 overpayment, and set forth a
collection schedule to begin on April 1, 2019.2 Id. at 13-17. The appellant timely
filed this instant Board appeal contesting OPM’s reconsideration decision. IAF,
Tab 1; see 5 C.F.R. § 1201.22(b)(1).
2 The collection schedule was 33 monthly installments of $321, with a final installment
of $308.79, to be collected against the monthly FERS benefit payment made to the
appellant. IAF, Tab 5 at 14. 2
On March 28, 2019, during the adjudication of this appeal, OPM filed a
pleading with the Board advising that it rescinded its January 11, 2019
reconsideration decision, and would remand the appellant’s case to the
appropriate OPM office for further development. IAF, Tab 7 at 4. In response,
the appellant sought the Board to retain jurisdiction over her appeal. IAF, Tab 9.
The administrative judge then issued an initial decision, finding that because
OPM rescinded its reconsideration decision, the Board lacked jurisdiction to
adjudicate the merits of this appeal. IAF, Tab 10, Initial Decision (ID) at 1-2.
The appellant filed a petition for review of the initial decision to which
OPM responded. Petition for Review (PFR) File, Tabs 1, 4. Then, on July 29,
2019, the Office of the Clerk of the Board issued the parties an order addressing
two issues. PFR File, Tab 6. First, evidence in the record suggested that OPM
started collecting the overpayment from the appellant prior to the March 28, 2019
notice that it rescinded its reconsideration decision. IAF, Tab 5 at 8, 12-14,
Tab 7 at 4; PFR File, Tab 6 at 1-2. It was unclear if OPM reimbursed the
appellant any of the collected amount after rescission of its reconsideration
decision. Second, a review of the record revealed that the appellant did not
receive notice of her jurisdictional burden and an opportunity to establish Board
jurisdiction over this appeal, so the order provided such notice. PFR File, Tab 6
at 2-3. The Clerk of the Board provided both parties with the opportunity to file
argument and evidence on these issues.3 Id. at 3. Both parties responded to the
order. PFR File, Tabs 7-8.
3 The parties had an opportunity to file a response to any pleading filed by the opposing
party. PFR File, Tab 6 at 3. 3
DISCUSSION OF ARGUMENTS ON REVIEW
We vacate the initial decision because the appellant did not receive her
jurisdictional notice and an opportunity to establish Board jurisdiction prior to its
issuance.
The U.S. Court of Appeals for the Federal Circuit and the Board have
repeatedly held that an appellant must receive explicit information on what is
required to establish an appealable jurisdictional issue before the Board, i.e., a
Burgess notice, and an opportunity to prove jurisdiction. Burgess v. Merit
Systems Protection Board , 758 F.2d 641, 643 -44 (Fed. Cir. 1985); see
Kent v. Office of Personnel Management , 123 M.S.P.R. 103, ¶ 10 (2015). Here,
the administrative judge erred, as she failed to provide the appellant with the
proper Burgess notice and an opportunity for the appellant to prove that she
satisfied her jurisdictional burden before issuing the initial decision dismissing
this appeal for lack of jurisdiction. ID at 1-2; see Frank v. Office of Personnel
Management, 113 M.S.P.R. 164, ¶¶ 4-5 (2010) (outlining that after OPM
rescinded its final decision, the administrative judge ordered the appellant to
demonstrate why his Board appeal should not be dismissed for lack of jurisdiction
and/or mootness and provided him with an opportunity to respond prior to
dismissing the appeal). Although the administrative judge issued an order
outlining the parties’ burdens in regards to the merits applicable to this appeal, it
did not contain any notice of the Board’s jurisdictional requirements. IAF, Tab 3.
On review, the appellant, proceeding pro se, states that she does not understand
why the initial decision dismissed her appeal for lack of jurisdiction and that she
is unaware of the Board’s “processes and procedures.” PFR File, Tab 1 at 1.
Because the appellant did not receive her jurisdictional notice followed by
an opportunity to establish Board jurisdiction prior to the issuance of the initial
decision, nor was this error cured by other prescribed means, we must vacate the
initial decision. See Alvarez v. Department of Homeland Security , 112 M.S.P.R.
434, ¶¶ 1, 9-10 (2009) (vacating an initial decision because the administrative
judge did not issue the appellant a Burgess notice with an opportunity to show4
Board jurisdiction); Scott v. Department of Justice , 105 M.S.P.R. 482, ¶ 6 (2007)
(outlining the ways to cure a Burgess notice defect). On review, the Clerk of the
Board issued the appellant an order containing explicit information on her
jurisdictional burden in this appeal and provided her with an opportunity to
submit argument and evidence to meet her burden, satisfying Burgess. PFR File,
Tab 6 at 2-3. The appellant responded to the order. PFR File, Tab 8. As a result,
this appeal is now ripe for a jurisdictional determination.
OPM completely rescinded its reconsideration decision, divesting the Board of
jurisdiction over this appeal.
The Board generally has jurisdiction to review an OPM determination
affecting an appellant’s rights or interests under a retirement system only after
OPM issues a final or reconsideration decision. Tatum v. Office of Personnel
Management, 82 M.S.P.R. 96, ¶ 7 (1999). An appellant bears the burden of
establishing Board jurisdiction over an appeal contesting an OPM reconsideration
decision by preponderant evidence.4 Miller v. Office of Personnel Management ,
123 M.S.P.R. 68, ¶ 7 (2015); 5 C.F.R. § 1201.56(b)(2)(i)(A). If OPM completely
rescinds a reconsideration decision, the rescission divests the Board of
jurisdiction over the appeal in which the reconsideration decision is at issue.
Martin v. Office of Personnel Management , 119 M.S.P.R. 188, ¶ 8 (2013).
OPM’s unilateral modification of a reconsideration decision after a Board appeal
has been filed cannot divest the Board of jurisdiction unless the appellant
consents to such divestiture or unless OPM completely rescinds the decision
being appealed.5 Id. In order for the rescission of an OPM reconsideration
decision to be complete, an appellant must be restored to status quo ante, and if
she has not been, the appeal remains within the Board’s jurisdiction. Id., ¶ 10.
This means that any monies collected by OPM against an overpayment as
4 Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
5 There is no evidence in the record that the appellant consented to any divestiture. 5
determined in a reconsideration decision must be repaid to an appellant before
rescission is complete. Id.
The record reflects that on August 2, 2019, OPM finished completely
rescinding its reconsideration decision at issue. The record, to include the
pleadings filed by the parties on review, shows: (1) OPM issued the appellant
notice that it was rescinding its reconsideration decision concerning her
overpayment of FERS benefits; (2) OPM ceased its collection of the overpayment
against the appellant; (3) OPM refunded the appellant $1,926—the amount it
collected against the overpayment—and the appellant received the refund;6 and
(4) OPM restored the appellant to status quo ante. IAF, Tab 7 at 4; PFR File,
Tab 7 at 4-7, Tab 8 at 1-2. Therefore, we find that OPM completely rescinded its
reconsideration decision regarding the appellant receiving an overpayment of
FERS benefits, leaving the Board without jurisdiction to adjudicate the merits of
this appeal.7 See Glasgow v. Office of Personnel Management , 103 M.S.P.R. 531,
¶ 5 (2006).
NOTICE OF APPEAL RIGHTS8
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
6 From February 2019 through July 2019, OPM collected $321 per month from the
appellant, which reflects the collection amount from the rescinded reconsideration
decision. PFR File, Tab 7 at 4, 6; see IAF, Tab 5 at 14.
7 If OPM issues a new reconsideration decision, the appellant may file an appeal with
the appropriate Board office if she disagrees with that reconsideration decision. See
Rorick v. Office of Personnel Management , 109 M.S.P.R. 597, ¶¶ 5-7 (2008).
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.6
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. The7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file8
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.9 The court of appeals must receive your petition for
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. 9
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 10
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Reyes_LenaAT-0845-19-0216-I-1__Final_Order.pdf | 2024-05-28 | LENA REYES v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0845-19-0216-I-1, May 28, 2024 | AT-0845-19-0216-I-1 | NP |
1,343 | https://www.mspb.gov/decisions/nonprecedential/Mathews_Jose_CH-1221-17-0223-W-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSE MATHEWS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-1221-17-0223-W-2
DATE: May 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ariel E. Solomon , Esquire, Washington, D.C., for the appellant.
Beth K. Donovan , Esquire, 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
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
clarify the appropriate standard for disclosures of gross mismanagement, we
AFFIRM the initial decision.
BACKGROUND
The appellant is the Chief of Psychiatry for the agency’s St. Louis Medical
Center. E.g., Mathews v. Department of Veterans Affairs , MSPB Docket No. CH-
1221-17-0223-W-1, Initial Appeal File (IAF), Tab 1 at 6; Mathews v. Department
of Veterans Affairs , MSPB Docket No. CH-1221-17-0223-W-2, Refiled Appeal
File (RAF), Tab 13 at 20. In April 2014, he filed a complaint with the Office of
Special Counsel (OSC), alleging that the agency engaged in whistleblower
retaliation by placing him in a detail assignment while it conducted an
investigation about complaints from subordinates. RAF, Tab 6 at 6-21, Tab 13
at 21-31. In December 2016, OSC closed its investigation. RAF, Tab 8 at 4.
After OSC’s closeout, the appellant filed this timely IRA appeal. IAF,
Tab 1. At his request, the administrative judge dismissed the appeal, without
prejudice and for automatic refiling at a later date, to accommodate scheduling
conflicts. IAF, Tab 10. After that refiling, the administrative judge developed
the record and dismissed the appeal for lack of jurisdiction, without a hearing.
RAF, Tab 16, Initial Decision (ID). She found that the appellant met the2
exhaustion requirement for nine disclosures and one personnel action but no
others. ID at 3-6. She further found that the appellant failed to nonfrivolously
allege that any of the disclosures he exhausted with OSC were protected. ID
at 6-11.
The appellant has filed a petition for review. Mathews v. Department of
Veterans Affairs , MSPB Docket No. CH-1221-17-0223-W-2, Petition for Review
(PFR) File, Tab 4. The agency has filed a response. PFR File, Tab 8.
ANALYSIS
The appellant met his burden of proving the timeliness of his petition for review.
The initial decision noted that it would become final on September 4, 2017,
unless the appellant filed a petition for review by that date. ID at 12. Days
before that deadline, the appellant requested an extension. PFR File, Tabs 1-2.
The Office of the Clerk of the Board granted the request, permitting the appellant
to file his petition on or before October 5, 2017. PFR File, Tab 3. The Board did
not receive the appellant’s petition until October 24, 2017, well after that
deadline. PFR File, Tab 4 at 1.
The appellant bears the burden of showing that his petition for review was
timely filed. Corum v. U.S. Postal Service , 118 M.S.P.R. 288, ¶ 12 (2012).
Given the unexplained late receipt of the appellant’s petition, the agency argued
that we should dismiss it as untimely filed without good cause. PFR File, Tab 8
at 11-12. The Clerk of the Board issued an order instructing the appellant to
present argument and evidence regarding the timeliness of his petition. PFR File,
Tab 9. In doing so, he suggested that the appellant address several pertinent
facts. These facts included that the envelope accompanying the petition
suggested that the appellant or his attorney used their own equipment to print a
1-day priority shipping label on October 4, 2017, a day before the designated
deadline, but the envelope contained no postmark to show when he placed the
package in the stream of mail or otherwise explain the Board’s receipt 20 days3
later. PFR File, Tab 4 at 32. He also noted, inter alia, that the agency’s copy of
the petition contained similar discrepancies when comparing the date the shipping
label was printed, the speed of service selected, and the ultimate receipt of the
package. PFR File, Tab 6 at 4, 6, 10, 12.
The appellant’s attorney responded to the timeliness order with a sworn
affidavit. PFR File, Tab 10 at 6-9. Among other things, appellant’s counsel
asserts that he deposited the petition for review into the stream of mail on
October 4, 2017, using a U.S. Postal Service collection box within just a few
blocks of both his office and the offices of the Board. Id. at 7, 9. He suggests
that any delay between that October 4 deposit into the stream of mail and the
Board’s receipt, on October 24, must have been caused by the Postal Service. Id.
at 8-9.
Although the agency continues to argue that we should reject the
appellant’s petition for review as untimely, it has not presented any evidence to
rebut the sworn statement of appellant’s counsel. PFR File, Tab 11. Therefore,
that sworn declaration is sufficient to establish that the petition was timely filed.
See Jordan v. Department of Justice , 54 M.S.P.R. 609, 611 (1992) (explaining
that sworn statements that are not rebutted are competent evidence of the matters
asserted therein). Accordingly, we find that the appellant has met his burden to
prove that his petition for review was timely filed.
The appellant met his burden of proving exhaustion for only nine disclosures.
As previously mentioned, the administrative judge found that the appellant
met his burden of proving exhaustion concerning nine alleged disclosures. ID
at 3-6. On review, the appellant does not specifically identify any other alleged
disclosures that were exhausted. PFR File, Tab 4 at 10-11. However, he alludes
to a sworn statement that he submitted below, RAF, Tab 5 at 4-19, and the
administrative judge’s conclusion that he failed to prove exhaustion for any
additional disclosures discussed within that statement, ID at 6 (referencing IAF,
Tab 1 at 17-20; RAF, Tab 5 at 11-12, 14-19). 4
To establish the Board’s jurisdiction over an IRA appeal, such as this, an
appellant must have exhausted his administrative remedies before OSC and
present nonfrivolous allegations of the following: (1) he engaged in
whistleblowing by making a protected disclosure under 5 U.S.C. § 2302(b)(8), or
engaged in other protected activity as specified in 5 U.S.C. § 2302(b)(9)(A)(i),
(B), (C), or (D); and (2) the disclosure or activity was a contributing factor in the
agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302(a)(2)(A). 5 U.S.C. §§ 1214(a)(3), 1221(a); Williams v. Department of
Defense, 2023 MSPB 23, ¶ 8.
The Board recently clarified the substantive requirements of exhaustion.
Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶¶ 10-11. The
requirements are met when an appellant has provided OSC with sufficient basis to
pursue an investigation. Id., ¶ 10. The Board’s jurisdiction is limited to those
issues that have been previously raised with OSC. Id. (citation omitted).
However, an appellant may give a more detailed account of his whistleblowing
activities before the Board than he did to OSC. Id. (citation omitted).
An appellant may demonstrate exhaustion through his initial OSC
complaint or correspondence with OSC. Id., ¶ 11. An appellant may also
establish exhaustion through other sufficiently reliable evidence, such as an
affidavit or declaration attesting that the appellant raised with OSC the substance
of the facts in the Board appeal. Id. (citation omitted). To establish Board
jurisdiction, the appellant must prove exhaustion with OSC by preponderant
evidence, not just present nonfrivolous allegations of exhaustion. Id.; 5 C.F.R.
§ 1201.57(c)(1).
We agree that the appellant met his burden of proving exhaustion for the
nine disclosures identified by the administrative judge. ID at 3-6. The
exhaustion of those matters was proven by the appellant’s initial OSC complaint,
which he provided. RAF, Tab 6 at 16-20. The question that remains is whether
the appellant proved that he exhausted any other disclosures with OSC—ones not5
identified in his initial OSC complaint. Like the administrative judge, we find
that he did not.
With his initial appeal, the appellant attached a lengthy narrative and
argument in support of his whistleblower retaliation claim. IAF, Tab 1 at 15-22.
Among other things, the narrative describes a number of alleged disclosures and
retaliatory personnel actions in varying detail. Id. at 16-20. However, most
importantly, this recounting of alleged disclosures and retaliatory personnel
actions does not indicate whether the appellant exhausted the same with OSC.2
Id. at 15-22.
The appellant’s next substantive pleading summarily asserts that he
exhausted his administrative remedies with OSC, while citing to a sworn
statement and his initial OSC complaint. RAF, Tab 4 at 13 (referencing RAF,
Tabs 5-6). The sworn statement describes numerous alleged disclosures and
retaliatory personnel actions, once again in varying detail. RAF, Tab 5 at 8-19.
Among other things, the statement is rather ambiguous about whether the
appellant made all of the described disclosures. The appellant specifically takes
responsibility for some disclosures, while he is less clear as to others. In an
example to illustrate the latter, the appellant alleged that “many of the below
disclosures were also investigated by the Office of Inspector General . . .:
psychiatrists were not respecting their tour of duty time commitments.” Id. at 11.
Aside from the ambiguity regarding who made some of the disclosures
described in the appellant’s sworn statement, it goes on to include the following
assertion regarding the exhaustion requirement:
Through counsel, I filed a complaint with the Office of Special
Counsel (OSC) on or around May 22, 2014, and I amended my
complaint as necessary following additional retaliation July 18,
2 Even if this statement did address the exhaustion requirement, it would be of little
consequence because the statement is undated, unsigned, unsworn, and seemingly
drafted by the appellant’s attorney. IAF, Tab 1 at 15-22; see Hendricks v. Department
of the Navy, 69 M.S.P.R. 163, 168 (1995) (recognizing that the statements of a party’s
representative in a pleading do not constitute evidence). 6
2014, and April 20, 2015. In each complaint and amended
complaint, I specifically delineated my protected disclosures and the
myriad of prohibited personnel practices to which I was subjected as
a result of those disclosures.
Id. at 19.
We first note that while this statement may imply that additional
disclosures and personnel actions were exhausted through amendments to his
initial OSC complaint, it does not clearly articulate and evidence the same. The
statement is, instead, noticeably ambiguous. It does indicate that the appellant
“specifically delineated [his] disclosures” in each of his OSC complaints, but it
does not clearly indicate whether that includes each and every disclosure
discussed in his sworn statement, some of them, or just those presented in his
original OSC complaint. RAF, Tab 5 at 4-19. And as discussed below, the
appellant failed to present supportive evidence that would have cleared up that
ambiguity.
Although the appellant cited a July 18, 2014 amendment to his initial OSC
complaint, he failed to submit a copy of that document or describe its contents.
Id. at 19. The appellant did submit a letter from his attorney to his employing
agency dated August 5, 2014, alleging various improprieties. RAF, Tab 7 at 4-6.
However, to the extent that this letter could be associated with his alleged
July 18, 2014 amendment to his OSC complaint, the appellant did not claim that
he provided the letter to OSC. Compare RAF, Tab 5 at 19, with RAF, Tab 7
at 4-6.
Turning to his alleged April 20, 2015 amendment to his OSC complaint, the
appellant submitted a letter from his attorney to his employing agency with the
same date. RAF, Tab 5 at 19, Tab 7 at 7-12. The letter includes what appears to
be the email address of an individual at OSC as a recipient to be carbon copied,
but we found no corresponding email message or other indication that the letter
was actually provided to that individual. RAF, Tab 7 at 11-12. Assuming,
without deciding, that the letter to his employing agency was provided to7
someone at OSC, that individual is not the investigator who signed off on OSC’s
close-out letter. Compare RAF, Tab 7 at 11-12, with RAF, Tab 8 at 4. Further
calling into question the relevance of this letter to the exhaustion requirement, it
does not include pertinent information, such as the appellant’s OSC file number,
MA-14-2840, instead referencing “Our File No. 13-1091.” Compare RAF, Tab 7
at 7-12, with RAF, Tab 8 at 4. Next, while the letter does describe three alleged
disclosures, they appear unrelated to those identified in the appellant’s sworn
statement. Compare RAF, Tab 5 at 8-12, with RAF, Tab 7 at 8-9. Finally,
although the appellant did submit this letter, he did not reference it when arguing
that he met the exhaustion requirement. Instead, when arguing that he met the
exhaustion requirement, the appellant referenced only the pleading containing his
initial OSC complaint and his sworn statement. RAF, Tab 4 at 13 (referencing
RAF, Tabs 5-6). His petition for review is similarly silent as to the relevance of
the April 20, 2015 letter, citing only his sworn statement for purposes of
exhaustion. PFR File, Tab 4 at 11 (referencing RAF, Tab 5 at 4-19).
The final piece of evidence provided for purposes of the exhaustion
requirement is OSC’s close-out letter. IAF, Tab 1 at 23; RAF, Tab 8 at 4.
However, that letter is silent as to the substance of the matters the appellant
raised before OSC. The close-out letter references OSC’s predetermination letter,
“that set forth [OSC’s] factual and legal determinations,” but the
predetermination letter is not in the record, so we are unable to consider it for
purposes of exhaustion. IAF, Tab 1 at 23; RAF, Tab 8 at 4.
After considering the appellant’s arguments and evidence, we agree with
the administrative judge that the appellant did not meet his burden of proving
exhaustion for any disclosures beyond those described in his initial OSC
complaint. Although the appellant’s sworn statement could be read as indicating
that additional disclosures were exhausted with OSC, it does not clearly articulate
and evidence the same. RAF, Tab 5 at 4-19. The letter to his employing agency
with a carbon copy to an OSC email address fares no better, given the ambiguity8
of whether that letter reached relevant officials and its inconsistency with the
allegations presented in this IRA appeal. RAF, Tab 7 at 7-12.
Both below and on review, the appellant indicated that he is awaiting the
results of a pending Freedom of Information Act (FOIA) request with OSC to
obtain materials relevant to the exhaustion requirement. RAF, Tab 4 at 13; PFR
File, Tab 4 at 29-30. However, the appellant failed to present any corresponding
documentation, such as his initial FOIA request or a response from OSC.
Moreover, the appellant has failed to adequately explain why he cannot prove
exhaustion without the results of his FOIA request. Among other things, the
appellant has not explained why he lacks copies of OSC’s predetermination letter
or other correspondence with OSC, despite being represented by an attorney since
filing his initial OSC complaint. RAF, Tab 5 at 19.
In sum, the appellant met his burden of proving exhaustion for the nine
disclosures identified by the administrative judge because those were included in
the initial OSC complaint he provided below. He has not met his burden of
proving that he exhausted any additional disclosures by preponderant evidence.3
The appellant failed to nonfrivolously allege that the disclosures he exhausted
with OSC were protected.
The administrative judge found that the appellant failed to present
nonfrivolous allegations that the nine alleged disclosures exhausted before OSC
(Disclosure A through Disclosure I) were protected. ID at 6-11. The
administrative judge found that Disclosures A, B, C, D, and G were emails
discussing policy in which the appellant did not claim wrongdoing under
section 2302(b)(8). ID at 8-9. For Disclosures E and H, the administrative judge
found that the appellant made recommendations about managerial actions, with
no indication that the agency’s proposed alternative approaches fell within any
3 Because we find that the appellant failed to nonfrivolously allege that any of the
disclosures he exhausted with OSC were protected, we need not address the appellant’s
arguments concerning exhaustion of additional personnel actions beyond the one
identified by the administrative judge. PFR File, Tab 4 at 19-22.9
category of wrongdoing protected under section 2302(b)(8). ID at 9. Finally, she
found that Disclosure F was a robust discussion of what approach or policy to
apply, but not a protected disclosure, and Disclosure I was not a disclosure at all
because the appellant was merely a passive participant in the email discussion.
ID at 10-11.
A protected disclosure is a disclosure of information that an appellant
reasonably believes evidences a violation of any law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. Linder v. Department of Justice ,
122 M.S.P.R. 14, ¶ 12 (2014). To establish that an appellant made a protected
disclosure, he need not prove that the matter disclosed actually established one of
the categories of wrongdoing listed under 5 U.S.C. § 2302(b)(8); rather, he must
show that the matter disclosed was one that a reasonable person in his position
would believe evidenced any of the specified categories of wrongdoing. Webb v.
Department of the Interior , 122 M.S.P.R. 248, ¶ 6 (2015). Again, for purposes of
establishing jurisdiction, the appellant need not prove that he made a protected
disclosure, but he must present nonfrivolous allegations of a protected disclosure.
Supra p. 5; see 5 C.F.R. § 1201.4(s) (defining a nonfrivolous allegation as one
that, if proven, could establish the matter at issue). As the U.S. Court of Appeals
for the Federal Circuit explained, “the question of whether the appellant has non-
frivolously alleged protected disclosures [or activities] that contributed to a
personnel action must be determined based on whether the employee alleged
sufficient factual matter, accepted as true, to state a claim that is plausible on its
face.” Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1364, 1369
(Fed. Cir. 2020).4
4 The Hessami decision further held that the Board “may not deny jurisdiction by
crediting the agency’s interpretation of the evidence as to whether the alleged
disclosures fell within the protected categories or whether the disclosures were a
contributing factor to an adverse personnel action.” Hessami, 979 F.3d at 1369. In this
instant appeal, the agency submitted just a single pleading about Board jurisdiction,
RAF, Tab 13, and the administrative judge only cited it to give some background10
On review, the appellant argues that he met his jurisdictional burden of
presenting nonfrivolous allegations because he reasonably believed that the
agency’s actions constituted gross mismanagement, violations of law, rule or
regulation, abuses of authority, and dangers to public health or safety. PFR File,
Tab 4 at 12-19. He broadly asserts, among other things, a “depraved indifference
for human life,” “knowing and continuing malpractice,” “knowing and
uncorrected misdiagnoses of life threatening diseases,” and “unnecessary
surgeries.” PFR File, Tab 4 at 18-19. We are not persuaded. As further detailed
below, the appellant has overstated the significance and content of his
communications, which he submitted while attempting to meet his jurisdictional
burden. E.g., RAF, Tab 6 at 17-19; PFR File, Tab 4 at 13-14.
The appellant described Disclosure A as one referencing excessive wait
times and the willful failure of management to initiate corrective measures. E.g.,
RAF, Tab 6 at 17-18; PFR File, Tab 4 at 13. Like the administrative judge, we
find that this mischaracterizes what the appellant actually revealed. ID at 4 &
n.3. The email the appellant identified as Disclosure A is one to the Chief of
Staff, discussing plans of flexibly deploying one psychiatrist, psychiatrist
salaries, and the appellant’s hopes of making his department run more effectively.
RAF, Tab 6 at 17-18, Tab 15 at 26-28. On that last point, the email does refer to
his department as “a total disaster” and a “mess.” RAF, Tab 15 at 27. It also
generally references a history of individuals not being held accountable. Id.
However, these references were in the context of the appellant’s plans to oversee
improvement. Nothing in this email reveals specific wrongdoing protected under
section 2302(b)(8). See, e.g., Mc Corcle v. Department of Agriculture ,
98 M.S.P.R. 363, ¶ 24 (2005) (recognizing that vague allegations of wrongdoing
do not rise to the level of nonfrivolous allegations of a protected disclosure).
information, ID at 2. Consistent with Hessami, the administrative judge relied on the
appellant’s arguments and evidence, not the agency’s, to find that the appellant did not
establish jurisdiction. ID at 3-11.11
The appellant described Disclosure B as revealing inadequate medical care
to veterans. RAF, Tab 6 at 18; PFR File, Tab 4 at 16. But again, the actual email
at issue contains no revelation of the type of wrongdoing protected under
section 2302(b)(8). As the administrative judge recognized, when the appellant
took over as Chief of Psychiatry, he proposed changes that would effectively
place more emphasis on quantitative measures, such as the number of patients
seen per day. ID at 2; e.g., RAF, Tab 15 at 32-33. When one clinician emailed
him concerns that this might negatively impact the quality of care rendered, RAF,
Tab 15 at 31-32, the appellant responded with an explanation of his “vision for
[the] Department,” id. at 30-31. That email, Disclosure B, does make arguments
about how he believed it was both possible and ethically required that the agency
serve more patients per day, rather than provide extraordinary care to some at the
expense of others having “unacceptable” wait times. Id. But the email is best
summarized as a general discussion of how the agency should balance quantity
and quality of care, not a disclosure of specific wrongdoing cognizable under
section 2302(b)(8). Id. Such general philosophical or policy disagreements are
not protected unless they separately constitute a protected disclosure of one of the
categories of wrongdoing under section 2302(b)(8). Webb, 122 M.S.P.R. 248, ¶ 8
(finding further that an appellant’s disagreement with the agency’s directive
separating and reassigning duties of an agency subunit did not evidence the type
of wrongdoing specified in section 2302(b)(8)).5
The appellant described Disclosure C as revealing a dangerous failure to
increase access to care and a failure of management to address poor performance.
RAF, Tab 6 at 18; PFR File, Tab 4 at 16. The actual email at issue is one that
5 To the extent that the administrative judge suggested that the appellant’s policy
disagreements must be more than “debatable,” we modify this finding. ID at 8, 11. An
appellant alleging gross mismanagement is not required to prove that it is not
“debatable among reasonable people.” Webb, 122 M.S.P.R. 248, ¶ 9. Although the
administrative judge referred to such a requirement, she did not discount any disclosure
on this basis. ID at 9. Instead, she found that the appellant did not disclose any
wrongdoing under section 2302(b)(8). ID at 9-11.12
further discusses his plans for quantitative measurements of performance,
indicates that clinicians had expressed resistance to such measurements, and
requests input about his plan for achieving quantitative goals. RAF, Tab 15
at 35-37. So, again, the communication is a discussion of policy, but there
appears to be nothing in that discussion that evidences the type of wrongdoing
protected by section 2302(b)(8).
The appellant described Disclosure D as revealing the improper and
unethical denial of care to a particular veteran. RAF, Tab 6 at 18; PFR File,
Tab 4 at 16. The actual emails at issue explain how a patient seeking hormone
replacement therapy to transition a gender identity was contesting the
recommendations of a psychologist and, as a result, the appellant was asked to
review the psychologist’s report. RAF, Tab 6 at 41-45, Tab 15 at 46-47. The
appellant’s messages describe perceived shortcomings in the psychologist’s
evaluation or, more precisely, the psychologist’s report about the evaluation.
RAF, Tab 6 at 41-45. One example of the perceived shortcomings is that the
psychologist first referred to this patient by using the title, “Mr.,” before
apologizing for having done so. Id. at 44. Another example, which the appellant
described as the “most troubling aspect” of the psychologist’s evaluation, is that
she reportedly failed to corroborate the patient’s claim that the patient’s family
supported the patient’s desire to undergo hormone therapy. Id. at 45.
In another case involving patient care, the Board found that several
disclosures made by a nurse were protected because they revealed a substantial
and specific danger to public health and safety. Chavez v. Department of
Veterans Affairs , 120 M.S.P.R. 285 (2013). Some examples of those protected
disclosures included a failure to properly maintain medical carts, which was
likely to cause harmful delays for patients in need of immediate treatment; a
failure to change patient dressings, which was likely to result in infections; and a
coworker’s request that the appellant in that case administer both narcotics and
other pre-drawn syringes that had been prepared by another nurse, which was13
likely to cause patients to receive the wrong medications. Id., ¶¶ 9, 19-21, 23.
The Board reached a similar conclusion in another case involving patient care.
Parikh v. Department of Veterans Affairs , 116 M.S.P.R. 197 (2011). The
appellant therein disclosed several specific instances of misdiagnoses and patients
receiving treatment that was not commensurate with the severity of their
conditions, e.g., staff misdirecting a patient to the general medical floor instead
of the intensive care unit, resulting in that patient deteriorating to the point that
he required intubation. Id., ¶¶ 12-18 .
Disclosure D, which amounted to a recommendation that the patient’s
request for a second opinion be granted, appears to be notably dissimilar—less
serious—when compared to those examples in terms of the likelihood of harm,
whether such harm is expected in the foreseeable future, and its anticipated
severity. See Chambers v. Department of the Interior , 602 F.3d 1370, 1376 (Fed.
Cir. 2010) (recognizing those factors as relevant in determining whether a
disclosure qualifies as a substantial and specific danger to public health or
safety). The appellant did not, for example, indicate that the patient was
misdiagnosed or denied urgently needed treatment. In fact, the appellant
concluded his message by emphasizing that he was not commenting on the
patient’s diagnoses or suitability for hormone replacement, but rather was
expressing concern that the psychologist’s report did not adequately answer
pertinent questions. RAF, Tab 6 at 45. Accordingly, while the appellant’s
messages may reveal valid disagreement with the sufficiency of another
clinician’s evaluation report, they do not reveal a substantial and specific danger
to public health and safety or any other wrongdoing protected under the
whistleblower statute.
The appellant described Disclosure E as revealing the deaths of two
veterans related to their denial of medical care and the absence of a proper
investigation into those deaths. RAF, Tab 6 at 18; PFR File, Tab 4 at 16. The
actual email at issue acknowledges the appellant’s prior request for a root cause14
analysis of two veterans’ cases. RAF, Tab 15 at 50. It further acknowledges that
a root cause analysis was occurring for one but officials determined that no such
analysis was indicated for the other. Id. The message generally refers to the
appellant’s feeling “that there were systemic issues that needed to be resolved,”
and refers to one of the veterans being “not assessed appropriately,” but provides
little else in terms of details. Id. It does not contain specific allegations of
wrongdoing. See Mc Corcle, 98 M.S.P.R. 363, ¶ 24.
The appellant described Disclosure F as revealing that certain agency
officials improperly turned away a veteran seeking care. RAF, Tab 6 at 19; PFR
File, Tab 4 at 17. The actual email chain at issue reflects a less troublesome
story. The email chain begins with an outpatient clinic note documenting a
veteran’s interaction with a registered nurse who also served as a mental health
treatment coordinator. RAF, Tab 15 at 55-56. That note indicates that the patient
was taking medications as prescribed and he denied any mental health issues at
the time, but arrived as a walk-in because he needed to schedule an appointment
and get medication refills. Id. at 55. During this visit, the veteran complained
that he tried to schedule the appointment over the telephone but was unable to
reach the proper person or leave a message, resulting in his hanging up in
frustration. Id. The note concludes with the nurse authorizing a clerk to schedule
an appointment for the veteran and more broadly recommending that the clinic
reinstate a voicemail answering service. Id. at 55.
The appellant responded to the message containing the aforementioned note
by asking a couple of agency employees to contact the veteran, make sure his
needs had been met, and explain how he can get in touch in the future. Id. at 54.
The appellant further asked for an explanation as to what strategy would prevent
recurrence of this type of complaint and improve access. Id. A recipient of the
appellant’s email replied, suggesting that nursing staff should have tried to have
the veteran seen by his treating clinicians on the spot, during his walk-in visit,
rather than scheduling an appointment for him at a later date. Id. at 54. The15
appellant then asked that recipient to look into the matter further by determining
how busy the providers were at the time. Id. at 53. However, we note that the
complaint itself does not clearly indicate that the veteran wanted to be seen that
day; the veteran is quoted as arriving at the clinic in person “so [he] could make
an appointment.” Id. at 55. Moreover, while the email chain indicates that the
veteran was not seen on that particular day, it contains no indication that the
veteran was altogether denied care or subjected to a wait that endangered his
health. Again, the veteran denied mental health issues and indicated that he was
taking medications as prescribed. So while Disclosure F may call into question
whether the agency could have provided more efficient service, it does not
disclose the type of wrongdoing protected under the whistleblower statute.
The appellant described Disclosure G as revealing unethical treatment of a
hallucinating veteran that later assaulted another veteran and agency errors that
led to that assault. RAF, Tab 6 at 19; PFR File, Tab 4 at 17. In fact, the email
was instead the appellant’s response to another clinician’s message about the
incident in the context of ongoing discussions about measuring care quantitatively
versus qualitatively. RAF, Tab 15 at 61-67. The appellant’s message was yet
another instance of him discussing plans to increase the number of patients seen
per day. Id. at 61-63. More specifically, the appellant’s message described how
psychiatrists were seeing an average of 6.1 patients per 8 hours of work, but he
wanted that number to more than double, so the clinic could reduce the average
wait time for patient visits below its current 24.35 to 29.5 days,6 and possibly
6 The appellant has not identified, and we are not aware of, any law, rule, or regulation
setting the maximum allowable wait time when the appellant sent this June 2013 email.
The agency has since implemented regulations generally setting a wait time goal of
30 days or less from the date a patient wishes to be seen. Expanded Access to Non-VA
Care Through the Veterans Choice Program, 79 Fed. Reg. 65571, 65585 (Nov. 5, 2014)
(codified as amended at 38 C.F.R. § 17.1505). The agency set this goal pursuant to the
Veterans Access, Choice, and Accountability Act of 2014, Pub. L. No. 113-146,
§ 101(s), 128 Stat. 1754, 1764-65. Even assuming a 30-day wait time goal existed in
June 2013, and that failure to meet this goal was a regulatory or statutory violation, the
information the appellant provided in his email suggests that his unit was exceeding the
goal. RAF, Tab 15 at 61.16
reduce attrition. Id. at 61-62. The appellant acknowledged that this would
require psychiatrists to spend less time with patients during each visit. Id.
at 62-63. But according to the appellant, veterans would be better served by
seeing them more often, even if it required that their visits be more cursory. Id.
We recognize that the message at issue in this disclosure, like several
others, includes language indicating that the appellant was attempting to portray
his view emphatically. For example, the appellant suggests that employees
should visualize a loved one when considering whether they are providing the
best care possible, and he indicated that they “MUST know ALL of [their]
patients,” they “MUST know” which ones need more intensive care, and “[t]his
can ONLY happen” by increasing the frequency of patient visits, even if doing so
resulted in shorter visits. Id. Ultimately, though, the message amounts to general
philosophical or policy disagreement with other clinicians in terms of balancing
quality and quantity of patient visits, not the type of specific wrongdoing
protected under section 2302(b)(8). Webb, 122 M.S.P.R. 248, ¶ 8; cf. Parikh,
116 M.S.P.R. 197, ¶¶ 12-15, 19-22 (finding that disclosures of systemic problems
at an agency medical center that resulted in untimely and inadequate patient care,
with specific examples, were protected).
The appellant described Disclosure H as revealing the agency’s attempt to
cover up a suicide attempt, the lack of corresponding investigation, and the
failure to implement corrective measures the appellant suggested. RAF, Tab 6
at 19; PFR File, Tab 4 at 17. The actual email chain at issue is one between the
appellant and the Acting Chief of Mental Health (ACMH) the day after the
suicide attempt, wherein the appellant recommended the probationary termination
of a particular employee. RAF, Tab 15 at 70-75.
The email chain began with the appellant recounting that the agency
admitted a patient for inpatient treatment following suicidal ideations. Id. at 73.
One afternoon, following several days of treatment, the patient reported to a nurse
that he was again experiencing suicidal ideations. Id. That nurse evaluated the17
patient, talked with him at length, and paged a psychiatrist to inform her of the
patient’s condition. Id. Without personally seeing the patient, the psychiatrist
changed his status so that the patient would receive one-on-one observation,
presumably to ensure his safety. Id. At some unidentified time that same
afternoon or evening, the patient began to pull down a ventilation grate, in an
apparent attempt to prepare to hang himself. Id. at 74. The observing nurse
diffused the situation, reported it to the psychiatrist, and continued to observe
him. Id. As of a 9:00 a.m. huddle with the appellant the next morning, the
psychiatrist had not yet seen the patient. Id. However, according to the
appellant, the psychiatrist first claimed that she had, then claimed that she had
not. Id. According to the appellant, the psychiatrist also indicated that the
appellant had been unable to view her report about the incident because she
simply failed to close the report by signing it, but that simply was not true. Id.
at 74-75. The appellant recommended probationary termination of the
psychiatrist based on his concerns about her delivery of care and candor. Id.
at 75.
The ACMH responded to the appellant’s message by recommending that he
counsel the psychiatrist, closely monitor her work, and take care to document her
shortcomings. Id. at 72. He also expressed some agreement that probationary
termination may be appropriate. Id. The appellant replied, expressing a
reluctance to counsel the psychiatrist or otherwise delay removing her. Id.
at 71-72. The ACMH then responded, again, noting some possible pitfalls in
moving forward with termination based on this one incident, but suggesting that
they could seek input from the Chief of Staff before making a final determination.
Id. at 71.
Although the appellant has suggested that this email chain shows that he
disclosed an attempt to conceal a suicide attempt, it actually reflects management
discussions of human resources decisions—discussions that all occurred just
1 day after the suicide attempt. We are cognizant of the grave consequences that18
could result depending on the sufficiency of the probationary psychiatrist’s
treatment. However, by the appellant’s own recounting, the psychiatrist
responded to the patient’s suicidal ideations by placing him under one-on-one
observation, which may have saved his life. While the appellant’s emails suggest
that the psychiatrist also should have visited the patient and completed her report
hours earlier than she did, we are unable to conclude that this amounts to
wrongdoing protected under the whistleblower statute.
The appellant described Disclosure I as revealing a clinician’s delay that
was contrary to agency regulation and protocol. RAF, Tab 6 at 19. As the
administrative judge recognized, and the appellant appears to no longer dispute,
the actual emails identified as Disclosure I were sent to the appellant, not from
the appellant. ID at 10; RAF, Tab 15 at 77-79. Therefore, regardless of their
content, they do not constitute a disclosure of any kind by the appellant.
In an argument that appears to implicate Disclosure E and Disclosure H,
the appellant asserts that a protected disclosure does not lose its protected status
just because the disclosure also includes a proposed fix to the violation of law,
rule, regulation, or other wrongdoing, and the administrative judge erred in
finding otherwise. PFR File, Tab 4 at 15; ID at 9. However, this argument
mischaracterizes the administrative judge’s findings. The administrative judge
did not find that an otherwise protected disclosure lost its protected status
because the appellant proposed corrective measures; she found that the
appellant’s communications were not protected because they simply discussed the
exercise of managerial discretion or policy disagreements, without any specific
assertion of wrongdoing protected under section 2302(b)(8). ID at 4-11.
In another argument that appears to implicate Disclosure A through
Disclosure H, the appellant asserts that the administrative judge erroneously
replaced her judgment with that of the appellant, a trained forensic psychiatrist,
for purposes of determining whether he had a reasonable belief that he was
disclosing the type of wrongdoing covered under section 2302(b)(8). PFR File,19
Tab 4 at 15-16. He suggests that expert testimony from a medical provider would
support his conclusions. Id. at 18. But again, the appellant’s argument
mischaracterizes the administrative judge’s findings. As our discussion above
demonstrates, the appellant has overstated the content and significance of his
disclosures. The administrative judge’s analysis reflects the same, and she
applied the correct standard of a reasonable person in the appellant’s position. ID
at 4-11; see supra p. 10.
The appellant’s remaining arguments are unavailing.
On review, the appellant argues that he has established the contributing
factor criterion. PFR File, Tab 4 at 22-24. But we need not address the
contributing factor criterion in the absence of a nonfrivolous allegation of a
protected disclosure. Chianelli v. Environmental Protection Agency , 86 M.S.P.R.
651, ¶ 17 (2000), aff’d per curiam , 8 F. App’x 971 (Fed. Cir. 2001).
The appellant also argues that the administrative judge erred in closing the
record on jurisdiction before providing him an opportunity to rebut the agency’s
arguments. PFR File, Tab 4 at 24-25 (referencing 5 C.F.R. § 1201.59(c)
(providing that once the record closes, additional evidence and argument will not
be accepted unless, as relevant here, it is in rebuttal to new argument or evidence
submitted by the other party just before the close of record)). However, that
argument misrepresents the record, by implication. In fact, while the
administrative judge’s jurisdictional orders did contemplate generally only the
appellant’s argument and evidence to meet his burden and the agency’s response,
it also noted that the Board’s regulations required that a party be able to rebut
new argument or evidence presented just before the close of record. IAF, Tab 3
at 7-8; RAF, Tab 3 at 7-8; see 5 C.F.R. § 1201.59(c). There is nothing in the
record suggesting that the appellant attempted to do so.
Finally, the appellant argues that due process requires that he be allowed to
engage in discovery on the issue of jurisdiction. PFR File, Tab 4 at 25-26. The
administrative judge informed the parties that they could immediately begin20
engaging in discovery approximately 4 months prior to the ultimate deadline for
his jurisdictional response. IAF, Tab 2 at 3; RAF, Tab 3 at 7-8. Thus, in the
absence of a motion to compel, the appellant does not state a basis to grant
review. See Szejner v. Office of Personnel Management , 99 M.S.P.R. 275, ¶ 5
(2005) (declining to consider an appellant’s argument on review that the agency
failed to respond to his discovery requests because he did not file a motion to
compel), aff’d, 167 F. App’x 217 (Fed. Cir. 2006).
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.
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.21
(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 you22
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. 23
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 review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
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. 24
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.25 | Mathews_Jose_CH-1221-17-0223-W-2__Final_Order.pdf | 2024-05-28 | JOSE MATHEWS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-17-0223-W-2, May 28, 2024 | CH-1221-17-0223-W-2 | NP |
1,344 | https://www.mspb.gov/decisions/nonprecedential/Young_Carol_L_DE-0752-20-0075-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CAROL YOUNG,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-0752-20-0075-I-1
DATE: May 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carol Young , Tucson, Arizona, pro se.
Anita Varma , Phoenix, Arizona, 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 demotion appeal for lack of jurisdiction. On petition
for review, the appellant argues that her acceptance of the agency’s offer of
reassignment to a lower-graded position was the involuntary result of
(1) misrepresentations made by agency human resources personnel and (2) the
agency’s failure to provide her with sufficient time with which to decide whether
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
to accept its offer of reassignment. Petition for Review (PFR) File, Tab 1 at 4-6,
Tab 4 at 4-7. 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).
For the reasons set forth in the initial decision, we agree with the
administrative judge’s finding that the appellant failed to meet her burden of
making a nonfrivolous allegation1 of Board jurisdiction over her constructive
demotion appeal. Initial Appeal File, Tab 10, Initial Decision (ID) at 10;
see Garcia v. Department of Homeland Security , 437 F.3d 1322, 1344 (Fed. Cir.
2006) (en banc) (explaining that an appellant generally is entitled to a
jurisdictional hearing if he raises a nonfrivolous allegation of Board jurisdiction
over the appeal); see also Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶¶ 7-8,
11 (2013) (observing that an employee may establish Board jurisdiction over an
alleged involuntary action as a constructive action by proving, among other
things, that the employee lacked a meaningful choice in the matter and it was the
agency’s wrongful actions that deprived the employee of that choice). To this
1 A nonfrivolous allegation of Board jurisdiction is an allegation of fact that, if proven,
could establish that the Board has jurisdiction over the matter at issue. Ferdon v. U.S.
Postal Service, 60 M.S.P.R. 325, 329 (1994); 5 C.F.R. § 1201.4(s).2
end, we discern no basis to disturb the administrative judge’s conclusion that the
appellant failed to make a nonfrivolous allegation that agency personnel
misinformed her in any material way. ID at 9-10. Indeed, the appellant failed to
allege any misleading statement or wrongful action on the part of agency
personnel, much less a misrepresentation that deprived her of meaningful choice.
See Bean, 120 M.S.P.R. 397, ¶¶ 8, 11.
The appellant contends that the agency failed to provide her with sufficient
time within which to decide whether to accept its offer of reassignment to a
lower-graded position. PFR File, Tab 1 at 4-5. She asserts, for the first time, that
the agency’s reasonable accommodation coordinator informed her that if she did
not accept the agency’s offer on September 27, 2019, the date on which the offer
was made, then the position would be filled by another qualified candidate. Id.
at 5. Insofar as the appellant did not make this factual allegation before the
administrative judge, a different outcome is not warranted. See Burke v.
Department of the Treasury , 53 M.S.P.R. 434, 439 n.4 (1992) (declining to
consider the appellant’s contention that the agency deprived him of information
relevant to his allegedly involuntary retirement when the appellant neither made
such an allegation before the administrative judge nor showed that his argument
was based on new and material evidence not previously available despite due
diligence); see also Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271
(1980) (explaining that the Board generally will not consider an argument raised
for the first time in a petition for review absent a showing that it is based on new
and material evidence not previously available despite the party’s due diligence).
Accordingly, we affirm the initial decision. 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 | Young_Carol_L_DE-0752-20-0075-I-1__Final_Order.pdf | 2024-05-28 | CAROL YOUNG v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-0752-20-0075-I-1, May 28, 2024 | DE-0752-20-0075-I-1 | NP |
1,345 | https://www.mspb.gov/decisions/nonprecedential/Mathews-Anderson_Hakesa_PH-0752-19-0116-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HAKESA MATHEWS-ANDERSON,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-0752-19-0116-I-1
DATE: May 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dionne Larrel Wade , Esquire, Clifton, New Jersey, for the appellant.
Christine Beam , Esquire, Pittsburgh, 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 the appeal of her probationary termination for lack of jurisdiction, or
alternatively, as untimely filed without good cause shown 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 restates her argument that her position was not
subject to a probationary period, and thus she was an “employee” with Board
appeal rights pursuant to 5 U.S.C. § 7511(a)(1) at the time she was terminated
based on the fact that she received a “Tentative Offer of Employment” and a
“Firm Offer of Employment” from Human Resources personnel prior to the
effective date of her appointment, identifying her probationary or trial period as
“None” or “N/A.” Petition for Review (PFR) File, Tab 1 at 4-11, 42 -43, 45. The
appellant also reasserts her argument that good cause exists for her delay in filing
her Board appeal. Id. at 12-14.
Upon review, we discern no error in the administrative judge’s
determination to dismiss this appeal for lack of jurisdiction. An appellant bears
the burden of proving Board jurisdiction by preponderant evidence. 5 C.F.R.
§ 1201.56(b)(2)(i)(A). The Board has jurisdiction over appeals of adverse actions
filed by an “employee” as defined in 5 U.S.C. § 7511(a)(1). 5 U.S.C. §§ 7512,
7513(d); see Anderson v. General Services Administration , 56 M.S.P.R. 316, 318,
aff’d, 12 F.3d 1069 (Fed. Cir. 1993). An “employee” under 5 U.S.C. § 7511(a)(1)
(B)(i) is defined as “a preference eligible in the excepted service who has2
completed 1 year of current continuous service in the same or similar
positions . . . in an Executive agency . . . .” Prior Federal service can be credited
towards the completion of a trial period in the excepted service where: (1) the
prior service was performed in the same agency; (2) it was performed in the same
line of work; and (3) it was completed with no more than one break in service of
less than 30 days. McCrary v. Department of the Army , 103 M.S.P.R. 266, ¶ 12
(2006).
In this case, the agency terminated the appellant, a preference eligible,
from her excepted-service position as an Advanced Medical Support Assistant for
postappointment reasons prior to her completion of 1 year of current continuous
service in the same or similar positons. Initial Appeal File (IAF), Tab 5 at 10;
PFR File, Tab 1 at 56-57. The appellant’s prior Federal service in this same
position with the agency from December 2011 through December 2013 does not
count towards the completion of her trial period, as she had a break in service of
more than 30 days prior to her appointment to the position from which she was
terminated. PFR File, Tab 1 at 25-27. Thus, the administrative judge correctly
concluded that the appellant does not meet the definition of an “employee” under
5 U.S.C. § 7511(a)(1) and is not entitled to appeal her trial period termination to
the Board. See Goodman v. U.S. Postal Service , 36 M.S.P.R. 127, 130 (1988)
(holding that because the appellant did not show that he was an “employee” under
5 U.S.C. § 7511(a)(1)(B), the administrative judge properly dismissed his appeal
for lack of Board jurisdiction).
Regarding the appellant’s argument that agency officials erroneously
informed her that her position was not subject to a 1-year probationary or trial
period, as the administrative judge correctly observed, the Standard Form 50
documenting the appointment at issue in this appeal clearly identifies the position
as subject to completion of a 1-year probationary/trial period. IAF, Tab 5 at 10;
IAF, Tab 6, Initial Decision (ID) at 1-2. Further, even if the offer letters the
appellant received prior to the effective date of her appointment did incorrectly3
indicate that the appointment was not subject to a probationary or trial period,
neither the appellant’s acceptance of the agency’s offer, nor the agency’s alleged
failure to notify her that her position was to serve a trial period, can confer
jurisdiction over her probationary termination when none otherwise exists. See
Winns v. U.S. Postal Service , 124 M.S.P.R. 113, ¶ 17 (2017) (stating that parties
cannot confer jurisdiction by a contract or agreement where none otherwise
exists), aff’d sub. nom. Williams v. Merit Systems Protection Board , 892 F.3d
1156 (Fed. Cir. 2018); Calixto v. Department of Defense , 120 M.S.P.R. 557, ¶ 17
n.6 (2014) (observing that the failure to inform an individual of her probationary
status, without more, does not confer employee status on the individual).
Accordingly, the initial decision dismissing the appeal for lack of jurisdiction is
affirmed.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
2 As the administrative judge observed, the initial appeal appears to be untimely filed by
over 3 years, but we need not reach the issue of timeliness because we agree with the
administrative judge that the Board lacks jurisdiction over this appeal. ID at 6-7. For
the same reason, we also need not determine whether the appellant made a binding
election to grieve her termination prior to filing her Board appeal. ID at 5-6; IAF,
Tab 1 at 16-21; see 5 U.S.C. § 7121(e)(1) (noting that matters covered by 5 U.S.C.
§ 7512 that also fall within the coverage of a negotiated grievance procedure may be
raised, at the discretion of the aggrieved employee, either under the appellate
procedures of 5 U.S.C. § 7701 or under the negotiated grievance procedure, but not
both).
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
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.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. 7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Mathews-Anderson_Hakesa_PH-0752-19-0116-I-1__Final_Order.pdf | 2024-05-28 | null | PH-0752-19-0116-I-1 | NP |
1,346 | https://www.mspb.gov/decisions/nonprecedential/Kirk_GloriaAT-0752-19-0448-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GLORIA KIRK,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0752-19-0448-I-1
DATE: May 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gloria Kirk , Hollywood, Florida, pro se.
Joved Gonzalez-Rivera , Esquire, Mayaguez, Puerto Rico, 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
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,2 we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to address the appellant’s reference to her veterans’
preference rights, we AFFIRM the initial decision.
The appellant, a preference-eligible in the excepted service, does not
challenge the administrative judge’s finding that the undisputed facts demonstrate
that she did not have 1 year of current continuous service or otherwise meet the
definition of an “employee” for purposes of 5 U.S.C. chapter 75 appeal rights.
Petition for Review (PFR) File, Tab 1 at 4 -10; Initial Appeal File (IAF), Tab 10,
Initial Decision (ID) at 3; see 5 U.S.C. § 7511(a)(1)(B)(i). Rather, she maintains
that she has submitted to the Board all of the relevant documentation supporting
her termination appeal and she repeats her statement that the agency “fired”
her a “few days” prior to the end of her first year of employment. PFR File,
Tab 1 at 4, 9; IAF, Tab 7 at 4. She repeats her arguments challenging the result
of her equal employment opportunity (EEO) complaint against the agency.
PFR File, Tab 1 at 4-10. The appellant also resubmits copies of her initial appeal
and extensive documentation related to her EEO complaint. Id. at 11-181; IAF,
Tab 1 at 4-177.
2 We have not considered the agency’s response to the petition for review because the
agency filed it 1 day late and failed to request an extension of time or file a motion
showing good cause for the untimely filing, as required by the Board’s regulations.
Petition for Review File, Tab 2 at 1, Tab 3; see Sapla v. Department of the Navy ,
118 M.S.P.R. 551, ¶ 6 n.* (2012); 5 C.F.R. § 1201.114(e)-(g).2
The administrative judge correctly found that, because the appellant
undisputedly lacks 1 year of current continuous service, she has not made a
nonfrivolous allegation that she is an “employee” under 5 U.S.C. § 7511(a)(1)(B),
and the Board therefore lacks jurisdiction over her appeal pursuant to 5 U.S.C.
chapter 75. ID at 2-3; see Allen v. Department of the Navy , 102 M.S.P.R. 302, ¶ 9
(2006); Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994) (holding that
an appellant is entitled to a jurisdictional hearing if she presents nonfrivolous
allegations3 of Board jurisdiction). As set forth in the initial decision, the Board
lacks jurisdiction over the appellant’s discrimination and retaliation claims absent
an otherwise appealable action. ID at 3 (citing 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));
see Penna v. U.S. Postal Service , 118 M.S.P.R. 355, ¶ 13 (2012).
The appellant has alleged generally that the agency “violated the law
related to Veterans’ Preference of my 10% preference,” and she has stated that
she would “like to file a case with DOL/VETS.” IAF, Tab 1 at 6-7; PFR File,
Tab 1 at 6-7.4 The Veterans Employment Opportunities Act of 1998 (VEOA),
codified at 5 U.S.C. § 3330a, provides a process to seek a remedy regarding
allegations of a violation of veterans’ preference rights, which begins with a
complaint to the Secretary of Labor within 60 days after the date of the alleged
violation. The appellant’s own pleadings indicate that she has not filed such a
complaint. Thus, the Board lacks jurisdiction over this matter as a VEOA appeal.
See, e.g., Lazaro v. Department of Veterans Affairs , 666 F.3d 1316, 1319
(Fed. Cir. 2012) (explaining that, to establish jurisdiction over a VEOA appeal,
an appellant must, among other things, show that she exhausted her remedies with
the Department of Labor); see also Clark v. Department of the Army , 93 M.S.P.R.
3 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
4 The nature of her allegation is unclear, particularly as veterans’ preference rules
appear only to apply to hiring and retention during a reduction in force.
See Livingston v. Office of Personnel Management , 105 M.S.P.R. 314, ¶ 15 (2007).3
563, ¶ 9 (2003) (finding it unnecessary to remand for a jurisdictional show-cause
order when the appellant’s own allegations and unrefuted evidence demonstrated
that the Board lacked jurisdiction), aff’d, 361 F.3d 647 (Fed. Cir. 2004).
The Uniformed Services Employment and Reemployment Rights Act of
1994 (codified as amended at 38 U.S.C. §§ 4301-4335) (USERRA) prohibits
discrimination based on a person’s service—or application or obligation for
service—in a uniformed service. 38 U.S.C. § 4311; 5 C.F.R. § 1208.2(a). To the
extent that the appellant believes her termination was based on such prohibited
discrimination, she may file a USERRA appeal directly with the Board or may
file a complaint with the Secretary of Labor under 38 U.S.C. § 4322.
See 38 U.S.C. § 4324; 5 C.F.R. §§ 1208.11 (explaining the choice of procedure
under USERRA), 1208.12 (regarding the time for filing a USERRA appeal). Her
expression of interest in “fil[ing] a case with DOL/VETS,” IAF, Tab 1
at 6-7; PFR File, Tab 1 at 6-7, suggests she may wish to avail herself of the latter
process rather than a direct Board appeal. In any event, we refer the appellant to
the Board’s regulations at 5 C.F.R. part 1208, subparts A-B, which provide
additional information about practices and procedures for USERRA appeals,
which she should follow to the extent she wishes to pursue such a claim.
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
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
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
http://www.mspb.gov/probono for information regarding pro bono representation5
for Merit Systems Protection Board appellants before the 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,
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.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. 7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Kirk_GloriaAT-0752-19-0448-I-1__Final_Order.pdf | 2024-05-28 | GLORIA KIRK v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-19-0448-I-1, May 28, 2024 | AT-0752-19-0448-I-1 | NP |
1,347 | https://www.mspb.gov/decisions/nonprecedential/Dean_RenaySF-0714-18-0311-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RENAY DEAN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-0714-18-0311-I-1
DATE: May 28, 2024
THIS ORDER IS NONPRECEDENTIAL1
Renay Dean , Los Angeles, California, pro se.
Julianne Ference , North Las Vegas, Nevada, 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 his removal appeal as untimely filed without good cause shown for the
delay. For the reasons discussed below, we GRANT the appellant’s petition for
review, VACATE the initial decision, and FIND that the appeal was timely filed.
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 REMAND the case to the Western Regional Office for further adjudication in
accordance with this Remand Order.
BACKGROUND
Effective February 3, 2018, the agency removed the appellant from his
Motor Vehicle Operator position under the authority of 38 U.S.C. § 714. Initial
Appeal File (IAF), Tab 9 at 12, 16. In its decision letter, the agency advised the
appellant that he could file an appeal with the Board challenging the removal
decision no later than 10 business days after his receipt of the decision. Id. at 17.
The appellant received the decision on January 31, 2018. IAF, Tab 1 at 3. He
filed the present appeal on March 3, 2018. Id. at 1.
The agency subsequently filed a motion to dismiss, arguing that the
appellant failed to timely file his appeal. IAF, Tab 9 at 7. As a result, the
administrative judge issued a timeliness order, informing the appellant that his
appeal appeared to be untimely filed and instructing him to submit evidence and
argument showing either that his appeal was timely filed or that good cause
existed for the delay. IAF, Tab 11. The appellant replied, arguing that his appeal
was timely filed within 30 calendar days of the effective date of his removal, as
stated on the Board’s website, and, in the alternative, that good cause existed for
his delay as a result of his disability. IAF, Tab 15 at 4-5.
After consideration of the pleadings, the administrative judge issued an
initial decision, dismissing the appeal as untimely filed. IAF, Tab 25, Initial
Decision (ID). He found that the appellant’s appeal was untimely filed by
15 calendar days under the deadline set forth in 38 U.S.C. § 714(c)(4)(B).
ID at 3. As to the appellant’s argument regarding the 30-day deadline posted on
the Board’s website, he found that the appellant failed to explain why he believed
that the general information contained on the Board’s website took precedence
over the specific notice in the decision letter of his statutory deadline under
38 U.S.C. § 714(c)(4)(B). ID at 5. The administrative judge concluded that the2
appellant failed to show that he exercised due diligence or ordinary prudence in
filing his appeal. ID at 4-5. As to his argument regarding his disability, the
administrative judge found that, even if it had continued through the time period
for filing an appeal, the appellant failed to explain how his disability prevented
him from timely filing an appeal or requesting an extension of time to do so.
ID at 6. As a result, he found that the appellant failed to establish good cause for
the filing delay. ID at 7.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has responded in opposition. PFR File, Tab 3.
On review, the appellant continues to argue that his appeal should not
be dismissed as untimely filed because he filed it within 30 calendar days of
the effective date of his removal, as posted on the Board’s website. PFR File,
Tab 1 at 5, 7-8; IAF, Tab 15 at 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
After the initial decision in this matter was issued, the Board held that
when the agency takes an action under 38 U.S.C. § 714, and the appellant files a
mixed-case appeal,2 the procedures contained within 5 U.S.C. § 7702 and the
Board’s implementing regulations apply. Davis v. Department of Veterans
Affairs, 2022 MSPB 45, ¶¶ 17, 19. Under those regulations, if the appellant has
not filed a formal discrimination complaint with the agency and raises his
discrimination claim for the first time with the Board, an appeal is due 30 days
after the effective date of the agency’s action or 30 days after the date of the
appellant’s receipt of the agency’s decision, whichever is later. Id., ¶¶ 17-19;
5 C.F.R. § 1201.154(a).
2 A mixed-case appeal is when, as here, an appellant seeks review of a matter within the
Board’s appellate jurisdiction and also raises a claim of discrimination or retaliation in
violation of equal employment opportunity statutes. Wilson v. Department of Veterans
Affairs, 2022 MSPB 7, ¶¶ 12, 25. 3
Here, the appellant received the decision on the removal on
January 31, 2018, and the effective date of his removal was February 3, 2018.
IAF, Tab 1 at 3, Tab 9 at 12. The appellant raised a claim of disability
discrimination in connection with his removal in his initial appeal, and he did not
file a formal discrimination complaint regarding his removal. IAF, Tab 1 at 5,
Tab 4 at 1, Tab 9 at 11. Therefore, the appellant’s 30-day time period for filing a
Board appeal began on February 3, 2018. The appellant filed his mixed-case
appeal on March 3, 2018, and, therefore, it was timely filed. Accordingly, we
remand this appeal to the Western Regional Office for adjudication on the merits
in accordance with this Remand Order.
ORDER
For the reasons discussed above, we remand this case to the Western
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.4 | Dean_RenaySF-0714-18-0311-I-1__Remand_Order.pdf | 2024-05-28 | RENAY DEAN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0714-18-0311-I-1, May 28, 2024 | SF-0714-18-0311-I-1 | NP |
1,348 | https://www.mspb.gov/decisions/nonprecedential/Romine_MichellePH-0752-18-0248-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHELLE ROMINE,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
PH-0752-18-0248-I-2
DATE: May 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michelle Romine , Huntington, West Virginia, pro se.
Rayetta Wilcoxon Waldo , Esquire, Huntington, 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
affirmed 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
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
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).
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
(1) apply the correct analytical framework to the appellant’s affirmative defense
of disparate treatment disability discrimination and find that she established that
she has a disability, and (2) consider the appellant’s length of service and medical
conditions as mitigating factors in the penalty determination, we AFFIRM the
initial decision.
BACKGROUND
In October 2016, the appellant transferred to the agency as a GS-07
Contract Specialist. Romine v. Department of the Army , MSPB Docket
No. PH-0752-17-0373-I-1, Initial Appeal File (0373 IAF), Tab 6 at 55.2 One
month later, after acquiring the flu and developing bronchitis, she began using
sick leave3 and annual leave, as well as leave without pay (LWOP). Id. at 27-33,
41, 44-45, 48-49. The appellant also invoked the Family and Medical Leave Act
(FMLA), and exhausted her FMLA-protected leave on February 16, 2017. Id. at
41. She was informed that she would be documented as absent without leave
(AWOL) for absences after that date. Id.
2 The Board may take official notice of matters that can be verified, including
documents or actions in other Board appeals. Wofford v. Department of Justice ,
115 M.S.P.R. 468, ¶ 5 n.4 (2010); see 5 C.F.R. § 1201.64.
3 By her own admission, the appellant transferred to the agency with a negative sick
leave balance of well over 100 hours. Romine v. Department of the Army , MSPB
Docket No. PH-0752-18-0248-I-2, Appeal File, Tab 18, Hearing Compact Disc
at 3:27:50 (testimony of the appellant).2
After requesting a reasonable accommodation, the appellant submitted a
letter from an advanced practice registered nurse who indicated that the appellant
would need to absent herself from work for at least 12 months due to psychiatric
issues, and a letter from a psychologist who indicated that the appellant could
continue working so long as her work schedule could accommodate her
approximately 3 hours of therapy per week. 0373 IAF, Tab 16 at 14, 18-19, 43.
On June 19, 2017, the agency informed the appellant that she needed to submit
additional medical documentation to clarify the inconsistent recommendations.
Id. at 14.
On June 30, 2017, the agency removed the appellant based on her physical
inability to perform the duties of her position. 0373 IAF, Tab 6 at 13-14. One
week later, the agency received a letter from the appellant’s psychologist stating
that the appellant could continue to work so long as certain accommodations were
made. 0373 IAF, Tab 16 at 12-13. On July 11, 2017, the agency denied her
request for reasonable accommodation because she had already been removed.
Id. at 8.
The appellant appealed her removal to the Board, asserting that the agency
failed to provide her with a reasonable accommodation. 0373 IAF, Tab 1. The
agency thereafter canceled her removal and returned her to her position effective
October 10, 2017. 0373 IAF, Tab 11 at 6. On January 18, 2018, the agency and
the appellant entered into a settlement agreement requiring, inter alia, the
appellant to withdraw her Board appeal and the agency to provide her back pay
for the period from August 6, 2017, through September 30, 2017. 0373 IAF,
Tab 21 at 4-5. On January 19, 2018, the administrative judge found that the
parties understood and freely accepted the terms of the agreement, that the parties
wanted the agreement entered into the record so that the Board would retain3
jurisdiction to enforce its terms, and that the agreement was lawful. 0373 IAF,
Tab 23. He therefore dismissed the appeal a settled.4 Id.
Also on January 19, 2018, the agency proposed the appellant’s removal
based on 112 specifications of AWOL and 34 specifications of failure to follow
leave-requesting procedures. Romine v. Department of the Army , MSPB Docket
No. PH-0752-18-0248-I-1, Initial Appeal File (IAF), Tab 4 at 29-50. The
appellant was charged with AWOL for the period between February 17, 2017, and
June 29, 2017, as well as for the period between October 19, 2017, and
November 15, 2017. Id. at 30-42. She was also charged with failure to follow
leave-requesting procedures for the period between November 16, 2017, and
January 5, 2018. Id. at 42-46.
The agency removed the appellant based on these charges effective
March 2, 2018. Id. at 8, 11-14. The appellant then filed this appeal, asserting
that she was removed because of her disability and in retaliation for her
whistleblowing and prior Board appeal. IAF, Tab 1 at 5. After holding the
appellant’s requested hearing, the administrative judge5 found that the agency
proved all of its specifications under both charges. Romine v. Department of the
Army, MSPB Docket No. PH-0752-187-0248-I-2, Appeal File (I-2 AF), Tab 19,
Initial Decision (ID) at 3-6. He also found that the appellant failed to establish
her affirmative defenses of retaliation for filing a prior Board appeal, disability
discrimination, and whistleblower reprisal. ID at 6-14. The administrative judge
4 The appellant thereafter filed a petition for enforcement, which the administrative
judge granted after finding that the agency materially breached the settlement
agreement by failing to provide the appellant with the full amount of back pay she was
due. Romine v. Department of the Army , MSPB Docket No. PH-0752-17-0373-C-1,
Initial Decision (Mar. 8, 2019). That finding of noncompliance was referred to the
Board’s Office of General Counsel to obtain compliance. The Board found the agency
in compliance and therefore dismissed the petition for enforcement. Romine v.
Department of the Army , MSPB Docket No. PH-0752-17-0373-X-1, Final Order (May
17, 2023)
5 The administrative judge in the instant appeal was not the administrative judge in the
appellant’s 2017 appeal.4
further found that the agency established nexus and the reasonableness of the
penalty, and he therefore upheld the appellant’s removal. ID at 14-16.
The appellant has filed a petition for review, arguing that the agency
improperly disciplined her for her absences that occurred before her prior
removal, which was rescinded. Petition for Review (PFR) File, Tab 2. She also
alleges that she was medically incapacitated for the period between October 19,
2017, and November 15, 2017, and asserts that the agency ordered her back to
work without a reasonable accommodation. Id. The agency has filed a response
to the petition for review. PFR File, Tab 4.6
DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved its AWOL charge.
The agency is not precluded as a result of the first removal action
from charging the appellant with AWOL for the period prior to
June 30, 2017.
Before considering whether the agency proved its charge of AWOL, we
first address the appellant’s argument that the agency is precluded from
disciplining her for the 93 specifications of AWOL pertaining to the time period
before her first removal—on June 30, 2017. IAF, Tab 10 at 4; PFR File, Tab 1 at
4. For the reasons discussed below, we find the appellant’s argument without
merit.
When an agency imposes an adverse action based on an employee’s
misconduct, it is barred from subsequently taking another adverse action for the
same reason. Adamek v. U.S. Postal Service , 13 M.S.P.R. 224, 226 (1982).
However, if successive disciplinary actions have different bases, although they
may be related, they are not barred by the prohibition against double punishment.
See Bowen v. Department of the Navy , 112 M.S.P.R. 607, ¶ 13, (2009) (upholding
the agency’s charge of insubordination based on the appellant’s refusal to obey an
6 After the record closed on review, a number of corrections were made regarding the
placement of particular pleadings filed below under particular tab numbers. We cite to
the record as it exists at the time of the issuance of this final decision. 5
order on five dates, despite the fact that he had already been reprimanded for a
similar refusal on another date in between those five dates), aff’d, 402 F. App’x
521 (Fed. Cir. 2010).
Here, the first removal action was based on the appellant’s medical
inability to perform the duties of her position and was non -disciplinary in nature.
0373 IAF, Tab 6 at 13-14, 16-18. As the first proposal notice stated, the
appellant told the agency in May 2017 that she would be unable to return to work
until “at least May 2018.” Id. at 18. Although the appellant’s absences between
November 2016 and May 2017 and the fact that she was being carried in AWOL
status were noted in the proposal notice, these were not the bases of her removal.
Id. at 16-18.
The second removal action, by contrast, was based on the appellant’s
AWOL and failure to follow leave-requesting procedures. IAF, Tab 4 at 11. In
the second removal action, the agency did not charge the appellant with being
medically unable to perform the duties of her position. Id. at 11-14, 29-50.
Accordingly, we find that the agency is not barred, by virtue of its prior removal
action, from bringing the instant removal action that is based, in part, on the
appellant’s AWOL prior to the June 30, 2017 first removal action. See Bowen,
112 M.S.P.R. 607, ¶ 13.
The agency is not precluded by the settlement agreement resolving
the appellant’s first appeal from charging the appellant with AWOL.
Regarding whether the settlement agreement in the appellant’s first appeal
precludes the agency from charging the appellant with AWOL, we find that it
does not.7 The Board has found that when an agency settled two employees’
appeals of their discipline for “threatening behavior” during a meeting, and the
7 The appellant also asserts that she never would have entered into a settlement
agreement if she knew the agency was going to take steps to remove her “the very next
day.” PFR File, Tab 2 at 5. The appropriate method for challenging the validity of a
settlement agreement is to file a petition for review of the decision dismissing the
appeal as settled. Lange v. Department of the Interior , 98 M.S.P.R. 146, ¶ 3 (2005).
The appellant has not filed such a petition for review.6
settlement agreement provided that it “resolved the issues raised in these
appeals,” the agency was precluded from disciplining them again for
their “disrespectful and abusive conduct” during that same meeting.
Davis v. Department of Veterans Affairs , 69 M.S.P.R. 627, 629-30 (1996). In
construing the terms of a settlement agreement, the words of the agreement itself
are of paramount importance to determine the intent of the parties at the time they
contracted. Id. at 630. The Board will not imply a term into an agreement that is
unambiguous, and will not hear a party’s objections about matters that were not
included in a settlement agreement. Id.
Here, the agency and the appellant entered into an “agreement in full
settlement of [the prior 2017] appeal.” 0373 IAF, Tab 21 at 4. The agreement
was otherwise silent as to whether it resolved “the issues” raised in the appeal.
Id. at 4-5. The agreement did not explicitly prohibit, for instance, the agency
from taking a new adverse action against the appellant for her absences prior to
her first removal. Id. Accordingly, we will not imply such a term into the
agreement, and we instead find that the settlement agreement does not preclude
the agency’s AWOL charge in this case. See Davis, 69 M.S.P.R. at 630.
The agency proved 93 specifications of AWOL for the dates prior to
June 30, 2017.
Having determined that the agency is not precluded from bringing its
AWOL charge, we now consider whether the agency has proven the charge. To
prove an AWOL charge, an agency must demonstrate that the employee was
absent without authorization and, if the employee requested leave, that the request
was properly denied. Savage v. Department of the Army , 122 M.S.P.R. 612, ¶ 28
n.5 (2015), overruled in part by Pridgen v. Office of Management and Budget ,
2022 MSPB 31, ¶¶ 23-25. If an employee has sufficient sick leave to cover the
period in question, the agency must grant a leave request when the employee has
provided administratively acceptable evidence of incapacitation due to illness or
injury, regardless of whether the employee has complied with applicable leave7
procedures. Patterson v. Department of the Air Force , 74 M.S.P.R. 648, 652
(1997). When an employee has exhausted all leave, an agency may deny LWOP
and place the employee on AWOL when there is no foreseeable end to the
employee’s absence and the absence is a burden to the agency. Id.
The agency’s time and attendance records reflect that the appellant was
carried in AWOL status on each of the 112 dates she was charged with being
AWOL. IAF, Tab 4 at 30-42, 54-57. Importantly, the administrative judge found
it to be undisputed that the appellant had no annual or sick leave balances during
the periods she was listed as AWOL and had also exhausted all of her
FMLA-protected leave. ID at 3. The appellant has not challenged these findings
on review. PFR File, Tab 2. Nor has the appellant challenged the administrative
judge’s finding that she admitted to being absent on the dates she was charged
with AWOL and that the proposing official testified that the appellant was not
authorized to be absent on those dates and/or did not have any leave balances to
use for those absences. ID at 4.
In this appeal, the appellant has not asserted, regarding any of the dates
specified in the first 93 specifications of AWOL (pertaining to her absences
between February 17, 2017, and June 29, 2017), that her absences were due to
medical incapacitation. IAF, Tab 10 at 4; PFR File, Tab 1 at 4. She has therefore
not shown that she was entitled to LWOP or any other form of leave for her
absences on these dates. See Patterson, 74 M.S.P.R. at 652. We therefore sustain
the first 93 specifications under the agency’s charge of AWOL and sustain the
charge of AWOL.
We need not decide whether the agency proved specifications 94 through 112 of
AWOL or its charge of failure to follow leave-requesting procedures.
Specifications 94 through 112 of the agency’s AWOL charge pertain to the
appellant’s absences between October 19, 2017, and November 15, 2017. IAF,
Tab 4 at 40-42. All of the specifications under the charge of failure to follow
leave-requesting procedures pertain to the appellant’s absences between8
November 16, 2017, and January 5, 2018. Id. at 42-46. The appellant argued that
she was “medically incapacitated from October 19, 2017 to January 14, 2018.”
IAF, Tab 10 at 4.
As indicated above, under certain circumstances an agency may be
required to grant an employee LWOP or other leave for her absences, rather than
charge her with AWOL, when she is medically incapacitated.
See Patterson, 74 M.S.P.R. at 652. Similarly, when an employee is unable to
follow leave-requesting procedures because of restrictions arising from an illness
or injury, an agency may not discipline her for the failure to follow leave-
requesting procedures. Cf. Allen v. Department of the Army , 76 M.S.P.R. 564,
569 (1997) (finding that an agency may not charge an appellant with
insubordination for refusing an order when the record shows that the appellant
was unable to carry out the order due to restrictions arising from illness or
injury). Medical documentation demonstrating incapacitation may be deemed
administratively sufficient to require the granting of leave when it provides
details regarding the employee’s diagnosis, prognosis, dates of incapacitation,
restrictions from duty, and expected return to duty. See New-Howard v.
Department of Veterans Affairs , 590 F. App’x 972, 974 (Fed. Cir. 2014);8 Young
v. U.S. Postal Service , 79 M.S.P.R. 25, 32-35 (1998).
Here, most significantly, the appellant’s evidence of medical incapacitation
includes a letter from an advanced practice registered nurse, dated January 24,
2018, and an FMLA certification form dated May 17, 2018, signed by a
physician. IAF, Tab 10 at 77-78, 87-90. Although these documents do not
present a precise diagnosis, they indicate that the appellant was ill between
approximately October 19, 2017, and January 14, 2018, was hospitalized from
November 6 to November 9, 2017, and suffered from, inter alia, the following
symptoms: confusion, anxiety, dizziness, memory loss, and hallucinations. Id.
8 The Board may follow a nonprecedential decision of the U.S. Court of Appeals for the
Federal Circuit when it finds its reasoning persuasive. Morris v. Department of the
Navy, 123 M.S.P.R. 662, ¶ 13 n.9 (2016).9
at 77-78, 88. The nurse’s letter stated that the appellant “was in absolutely no
condition to work, communicate with anyone or even function in society for that
matter,” id. at 78, while the physician indicated that the appellant was medically
incapacitated beginning on October 19, 2017, id. at 88.
The appellant’s medical evidence seems to meet some, though not all, of
the requirements to be deemed administratively sufficient such as to require the
granting of leave. See New-Howard, 590 F. App’x at 974; Young, 79 M.S.P.R.
at 32-35. We need not resolve this issue, and whether the agency proved the
remaining specifications of AWOL and the charge of failure to follow
leave-requesting procedures, because, as discussed below, we find that the
appellant’s removal is within the bounds of reasonableness based on the sustained
93 specifications of the AWOL charge. See Alaniz v. U.S. Postal Service ,
100 M.S.P.R. 105, ¶ 10 (2005) (finding that the Board need not reach the merits
of some charges and specifications when other proven charges and specifications
are sufficient to warrant the appellant’s removal).
The appellant failed to establish her affirmative defense of disability
discrimination.
Before the administrative judge, the appellant raised affirmative defenses
of disability discrimination, reprisal for filing a prior Board appeal, and reprisal
for whistleblowing. I-2 AF, Tab 15 at 2. On review, the appellant alleges that
the agency discriminated against her because of her disability and asserts that
after the agency cancelled the first removal she was ordered back to work without
a reasonable accommodation. PFR File, Tab 2 at 4-5. She does not otherwise
challenge the administrative judge’s conclusion that she failed to establish her
affirmative defenses. Id.
It is unlawful for an agency to “discriminate against a qualified individual
on the basis of disability.” 42 U.S.C. § 12112(a). A qualified individual is a
person who “satisfies the requisite skill, experience, education and other
job-related requirements of the employment position the individual holds or10
desires and, with or without reasonable accommodation, can perform the essential
functions of such position.” Clemens v. Department of the Army , 120 M.S.P.R.
616, ¶ 10 (2014) (citing 29 C.F.R. § 1630.2(m)).
A disability is defined, in pertinent part, as “a physical or
mental impairment that substantially limits one or more major life activities.”
McNab v. Department of the Army , 121 M.S.P.R. 661, ¶ 7 (2014) (quoting 42
U.S.C. § 12102(1)). Having a record of such an impairment, or being regarded as
having such an impairment, is also included within the definition of a disability.
42 U.S.C. § 12102(1). Major depressive disorder should easily be found to
substantially limit a major life activity, and therefore be found to constitute a
disability. See McNab, 121 M.S.P.R. 661, ¶¶ 7-8; 29 C.F.R. § 1630.2(j)(3)(iii).
Here, the administrative judge found that the appellant failed to prove that
she has a disability. ID at 11-12. On review, the appellant asserts that proof of
her mental health disability is included in her prior Board appeal. PFR File,
Tab 2 at 4. The record in the appellant’s prior appeal indeed includes, inter alia,
a letter from her psychologist dated May 17, 2017, noting that she was currently
diagnosed with major depressive disorder and personality disorder.9 0373 IAF,
Tab 8 at 7. Based on the appellant’s diagnosis of major depressive disorder, we
find that she established that she has a disability. See McNab, 121 M.S.P.R. 661,
¶¶ 7-8; 29 C.F.R. § 1630.2(j)(3)(iii).
The administrative judge in this appeal found that “[t]he appellant
presented no direct evidence of discriminatory animus, nor evidence of similarly
situated non-disabled employees who were treated more favorably, that the
agency lied about its reason for taking the removal action, that the agency’s
9 If the appellant wanted the administrative judge in the instant appeal to consider this
document, she should have submitted it into the record of this appeal, or at least
informed him about the existence of this document from her prior appeal that she
wished for him to consider. We nevertheless exercise our discretion to consider it. See
Lopes v. Department of the Navy , 119 M.S.P.R. 106, ¶ 9 (2012) (finding that the Board
and its administrative judges routinely incorporate the record from one matter filed by
an appellant into the record in a second matter filed by the same appellant). 11
explanation was inconsistent, that the agency failed to follow its established
procedures, that the agency generally treats disabled employees less favorably, or
of any incriminating statements.” ID at 13. He therefore concluded that she
failed to establish that any disability she had was a motivating factor in her
removal. Id. On review, the appellant does not challenge these findings, PFR
File, Tab 2. 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 or retaliation was a “but -for” cause of the agency’s
decisions. See Pridgen, 2022 MSPB 31, ¶¶ 20-22, 29-33.
The law also requires an agency to provide reasonable accommodation to
a qualified individual with an actual disability or a record of a disability.
Fox v. Department of the Army , 120 M.S.P.R. 529, ¶ 34 (2014). In order to
establish a disability-based failure to accommodate claim, an appellant
must show that: (1) she is an individual with a disability, as defined by
29 C.F.R. § 1630.2(g)(1)(i)-(ii); (2) she is a qualified individual with a disability,
as defined by 29 C.F.R. § 1630.2(m); and (3) the agency failed to provide a
reasonable accommodation. Miller v. Department of the Army , 121 M.S.P.R. 189,
¶ 13 (2014); 29 C.F.R. § 1630.2( o)(4).
Nevertheless, an agency is not required to provide an accommodation that
would cause an undue hardship on its business operations. Miller, 121 M.S.P.R.
189, ¶ 13 (citing 29 C.F.R. § 1630.9(a)). Additionally, an appellant cannot
establish her claim without showing that she actually requested an
accommodation that would have allowed her to meet the requirements of her
position. Henson v. U.S. Postal Service , 110 M.S.P.R. 624, ¶ 7 (2009).
Moreover, an agency’s obligation to provide a reasonable accommodation arises
only after an employee has established her status as a qualified employee with a
disability, at which point the agency is entitled to a reasonable period of time in
which to conduct its assessments and arrive at a conclusion regarding the request12
for accommodation. See McConnell v. Department of the Army , 61 M.S.P.R. 163,
169-70 (1994).
On review, the appellant does not specify what reasonable accommodation
the agency failed to provide her with, but simply alleges that the agency ordered
her back to work without a reasonable accommodation.10 PFR File, Tab 2 at 5.
As previously noted, after cancelling the prior removal, the agency returned the
appellant to her position effective October 10, 2017. 0373 IAF, Tab 11 at 6. By
letter dated November 2, 2017, the agency informed the appellant that it agreed to
provide her with noise-cancelling headphones and the ability to use a flexible
work schedule and personal leave, including LWOP, to attend therapy sessions.
I-2 AF, Tab 8 at 10. The letter indicated that these were the specific
accommodations the appellant requested during a meeting on October 18, 2017.
Id. On January 19, 2018, the appellant confirmed that she was not requesting any
additional accommodations. Id. at 14.
To the extent that the appellant argues that the agency failed to reasonably
accommodate her by not granting her these accommodations sooner, we find that
she has failed to show that the agency unreasonably delayed in evaluating and
ultimately granting her request for accommodations. See McConnell, 61 M.S.P.R.
at 167-70. Accordingly, we find that the appellant failed to establish her
affirmative defense that the agency failed to reasonably accommodate her.
The agency established nexus and the reasonableness of the penalty.
As the administrative judge found, it is well settled that unauthorized
absence from duty is inherently connected to the efficiency of the service. ID
at 15; Davis v. Veterans Administration , 792 F.2d 1111, 1112-13 (Fed. Cir. 1986).
10 Below, the appellant noted that she was requesting a reasonable accommodation prior
to her first removal. I-2 AF, Tab 3 at 4. Because the appellant does not argue on
review that the agency improperly denied her a reasonable accommodation prior to her
first removal, as she argued in her prior appeal, we decline to consider that issue.
See Roche v. Department of Transportation , 110 M.S.P.R. 286, ¶ 13 (2008) (finding that
the Board generally does not consider issues that are not raised on review), aff’d, 596
F.3d 1375 (Fed. Cir. 2010).13
We therefore find that the agency established a nexus between its charge of
AWOL and the efficiency of the service.
When the Board does not sustain all of the agency’s charges, it will
carefully consider whether the sustained charges merit the agency’s imposed
penalty. Boo v. Department of Homeland Security , 122 M.S.P.R. 100, ¶ 17
(2014). In such a case, the Board may mitigate the agency’s penalty to the
maximum reasonable penalty so long as the agency has not indicated in either its
final decision or in proceedings before the Board that it desires that a lesser
penalty be imposed on fewer charges. Lachance v. Devall , 178 F.3d 1246, 1260
(Fed. Cir. 1999); Boo, 122 M.S.P.R. 100, ¶ 17. Here, the deciding official has not
given such an indication, and has instead only indicated that the penalty of
removal would be reasonable for the two charges even if there had been fewer
specifications under each charge. IAF, Tab 4 at 11. Accordingly, the Board must
apply the relevant Douglas factors to determine the maximum reasonable penalty
for the appellant’s sustained misconduct.11 See Boo, 122 M.S.P.R. 100, ¶ 17.
The most important of the Douglas factors is the nature and seriousness of
the offense. Id., ¶ 18. Among the considerations included in this factor is the
relationship of the offense to the employee’s duties, position, and responsibilities,
including whether the offense was intentional or was frequently repeated. Id.
The appellant’s supervisor indicated, in the proposal notice, that the
appellant’s AWOL required the agency to redistribute her work to other
employees and that her excessive absences resulted in her not completing
required training. IAF, Tab 4 at 46. In addition to adopting the Douglas factors
analysis set forth in the proposal notice, the deciding official emphasized that—in
conjunction with the fact that the appellant was a new employee to the agency—
the appellant’s absences made her unable to receive the systems access required
to perform her duties. Id. at 12. It is apparent that the appellant’s AWOL, which
11 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of 12 factors, both aggravating and mitigating, that are
relevant to the penalty determination in adverse action cases. 14
was continuous over an approximately 4-month period, prevented her from
performing in her position. Accordingly, we find that the appellant’s AWOL was
a serious offense. See Bowman v. Small Business Administration ,
122 M.S.P.R. 217, ¶ 12 (2015) (noting that the Board has recognized that being
AWOL is a serious offense that warrants a severe penalty).
Notably, the appellant was advised in a letter sent on February 23, 2017,
that her continued absences would be documented as AWOL and could be used as
a basis to take disciplinary action, up to and including removal. IAF, Tab 4 at 99.
In an email to the appellant, an agency official stated that evidence revealed that
the appellant received this letter on February 24, 2017. IAF, Tab 4 at 95.
Eighty-eight of the sustained incidents of AWOL occurred thereafter. Id.
at 30-40. The appellant’s continued AWOL after receiving a letter warning her
about such misconduct is an aggravating factor. See Tyler v. Department of the
Army, 38 M.S.P.R. 85, 88-89 (1988) (finding that the appellant’s prior counseling
sessions and warnings for engaging in specific misconduct could properly have
been used as a basis for imposing an enhanced penalty for similar future
misconduct).
The agency’s table of penalties provides that removal may be appropriate
for a first offense of AWOL if the absence is prolonged. IAF, Tab 4 at 102. We
find that the appellant’s 4-month absence was a prolonged absence, and that
the imposed penalty was therefore consistent with the table of penalties. See
Dunn v. Department of the Air Force , 96 M.S.P.R. 166, ¶ 18 (2004) (sustaining
an agency’s penalty determination when, among other things, it was consistent
with the agency’s table of penalties), aff’d, 139 F. App’x 280 (Fed. Cir. 2005).
The appellant’s past work record was considered to be an aggravating
factor, apparently in part because she should have been very knowledgeable about
working for the Federal government after approximately 11 years of Federal
service. IAF, Tab 4 at 47. To the extent that the deciding official adopted this
contention and thereby considered the appellant’s 11 years of Federal service as15
an aggravating factor, we note that longer terms of Federal service are properly
considered as more mitigating than shorter terms. See Wentz v. U.S. Postal
Service, 91 M.S.P.R. 176, ¶ 19 (2002). Accordingly, we consider the appellant’s
11 years of Federal service as a mitigating factor. See id.
Evidence that an employee’s medical condition or mental impairment
played a part in the charged conduct is ordinarily entitled to considerable weight
as a mitigating factor. Thom v. Department of the Army , 114 M.S.P.R. 169, ¶ 7
n.5 (2010). Additionally, the Board has found that an appellant’s seeking
treatment for her medical problems indicates a potential for rehabilitation.
Vitanza v. U.S. Postal Service , 89 M.S.P.R. 319, ¶ 6 (2001). Here, the appellant’s
psychologist stated in a letter dated May 17, 2017, that she had been treating the
appellant’s depression and personality disorder since February 17, 2017, and she
indicated that the appellant’s symptoms had been worsening. 0373 IAF, Tab 8
at 7. Although the appellant has not argued during the course of this appeal that
her medical condition played a part in her AWOL between February 17, 2017,
and June 29, 2017, we nevertheless consider her medical conditions—and her
decision to seek treatment for them—to be mitigating factors deserving of
considerable weight. See Thom, 114 M.S.P.R. 169, ¶ 7; Vitanza, 89
M.S.P.R. 319, ¶ 6.
Despite such considerable mitigating factors, we recognize that “[a]n
essential element of employment is to be on the job when one is expected to be
there.” Davis, 792 F.2d at 1113. The Board has found removal to be a
reasonable penalty for significantly shorter periods of AWOL than the
approximately 4 -month period of AWOL at issue here. See, e.g., Thom,
114 M.S.P.R. 169, ¶¶ 2, 7 (upholding the appellant’s removal for 1 month of
AWOL, despite considering his medical conditions as a mitigating factor); Jones
v. U.S. Postal Service , 110 M.S.P.R. 674, ¶¶ 2, 8 (2009) (upholding the
appellant’s removal for 11 instances of unscheduled absences over a 3-month
period when the appellant had been warned that such conduct would result in16
discipline); Maddux v. Department of the Air Force , 68 M.S.P.R. 644, 645 -46
(1995) (upholding the appellant’s removal for 21 consecutive calendar days of
AWOL, despite 20 years of Federal service); Young v. U.S. Postal Service ,
14 M.S.P.R. 549, 551 (1983) (upholding the appellant’s removal for 40.75 hours
of AWOL over an approximately 6-week period, despite 17 years of Federal
service and satisfactory performance, when he was placed on AWOL after
exhausting all his leave and his absences resulted in increased costs to the agency
for the payment of overtime to other employees and employee shortages in other
departments). Under the circumstances of this case, even considering such
mitigating factors as the appellant’s 11 years of Federal service and her medical
conditions, we find that it is within the bounds of reasonableness to remove her
based on the sustained 93 days of AWOL. We therefore affirm the appellant’s
removal.
NOTICE OF APPEAL RIGHTS12
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
12 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions 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. 17
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. 18
(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: 19
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439 20
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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.21 | Romine_MichellePH-0752-18-0248-I-2__Final_Order.pdf | 2024-05-28 | MICHELLE ROMINE v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-0752-18-0248-I-2, May 28, 2024 | PH-0752-18-0248-I-2 | NP |
1,349 | https://www.mspb.gov/decisions/nonprecedential/Bonner_Carroll_J_AT-0752-19-0164-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARROLL J. BONNER,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-0752-19-0164-I-1
DATE: May 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Gary B. Davenport and Guy E. Reinecke , Saint Augustine, Florida, 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 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
military pay status or his fitness for duty; (2) he lost his military membership
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 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. Except as expressly MODIFIED to
address the application of 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 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 Florida National Guard denied the
appellant’s reenlistment as a result of him failing multiple fitness assessments.
Initial Appeal File (IAF), Tab 10 at 5, 8, Tab 14, Initial Decision at 3, 5.
Thereafter, the appellant was terminated because of his loss of military
membership. IAF, Tab 10 at 12. 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
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
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
http://www.mspb.gov/probono for information regarding pro bono representation4
for Merit Systems Protection Board appellants before the 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,
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 | Bonner_Carroll_J_AT-0752-19-0164-I-1__Final_Order.pdf | 2024-05-28 | CARROLL J. BONNER v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-0752-19-0164-I-1, May 28, 2024 | AT-0752-19-0164-I-1 | NP |
1,350 | https://www.mspb.gov/decisions/nonprecedential/Jackson_Tannie_S_AT-1221-18-0334-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TANNIE S. JACKSON,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-1221-18-0334-W-1
DATE: May 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tannie S. Jackson , Columbia, South Carolina, pro se.
Eric J. Teegarden , 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
denied her request for corrective action in connection with her individual right of
action (IRA) 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
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 to
supplement the administrative judge’s analysis in support of his finding that the
agency met its burden of proof, we AFFIRM the initial decision.
BACKGROUND
The appellant filed a whistleblowing complaint with the Office of Special
Counsel (OSC) regarding what she described as the toxic leadership of her
immediate supervisor, the Director of the Department of Human Resources
(DHR), and the Chief of the 81st Readiness Division, about which she had filed a
complaint with the agency’s Office of Inspector General (OIG). Initial Appeal
File (IAF), Tab 1 at 11, Tab 15 at 9. She alleged to OSC that, because of her OIG
complaint, the agency had directed her lateral reassignment from her current
supervisory position to a nonsupervisory position. IAF, Tab 1 at 14-16.
After OSC notified the appellant that it had ended its inquiry into her allegations,
id. at 20, she filed a Board appeal, IAF, Tab 1. Following the hearing she
requested, the administrative judge issued an initial decision in which he denied
the appellant’s request for corrective action. IAF, Tab 28, Initial Decision (ID)
at 1, 19. The administrative judge found that the appellant proved that she
engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C) when she filed her
OIG complaint, and that, based on knowledge and timing, she also proved that
that activity was a contributing factor in the agency’s decision to reassign her.2
ID at 8-9. The administrative judge found, however, that the agency proved by
clear and convincing evidence that it would have reassigned the appellant, even
absent her protected activity. ID at 13-19.
On review, the appellant challenges the administrative judge’s finding that
the agency met its burden of proof.2 Petition for Review (PFR) File, Tab 4
at 5-12. The agency has responded to the appellant’s petition. PFR File, Tab 9.
ANALYSIS
In finding that the agency proved by clear and convincing evidence that it
would have reassigned the appellant even absent her protected activity, the
administrative judge acknowledged that the Board applies the factors set forth by
our reviewing court in Carr v. Social Security Administration , 185 F.3d 1318
(Fed. Cir. 1999). Phillips v. Department of Transportation , 113 M.S.P.R. 73,
¶ 11 (2010); ID at 7. Those factors are: (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 agency officials who were involved in the decision; and (3) any
evidence that the agency takes similar actions against employees who are not
whistleblowers but who are otherwise similarly situated. Carr, 185 F.3d at 1323.
Regarding Carr factor (1), the strength of the agency’s evidence in support
of the appellant’s reassignment, the administrative judge found that the agency’s
evidence was supported by the independent findings of the individual assigned to
conduct the OIG investigation. ID at 11; IAF, Tab 6 at 38-47. The administrative
judge quoted substantially from the investigating officer’s report, including her
finding that a number of the witnesses she interviewed stated that the appellant
did not always treat subordinates with dignity and respect, as evidenced by
accounts of meetings and one-on-one interactions with her as well as email
traffic, and that this behavior negatively impacted the climate of the command;
2 We have not considered the two supplements the appellant filed after she filed her
petition, Petition for Review File, Tabs 5-6, because they are untimely with no good
cause shown, see 5 C.F.R. § 1201.114(g).3
that she failed to ensure the well-being of her subordinates, and that, at times, she
could be perceived as overbearing and authoritarian; that she sometimes
admonished personnel in a harsh manner, evidencing a lack of supervisory skills;
that her behavior created fear, intimidation, and avoidance among staff; and that
her frequent criticism of her supervisor and the Division Chief caused a negative
climate within the Division. ID at 13-15; IAF, Tab 6 at 40-42.
The administrative judge considered the testimony of the investigating officer,
Hearing Compact Disc (HCD) (testimony of the investigating officer), which was
in accord, finding it to be succinct, forthright, and completely credible. ID at 16.
The administrative judge also considered the testimony of the Chief of Staff who
directed the appellant’s reassignment to the effect that there were two other bases
for his taking the action against her besides the results of the investigation, that
is, a 2015 “climate study” that revealed problems in the manner in which she
managed her subordinates, and a letter of admonishment he issued her for her
hiring practices. HCD (testimony of the Chief of Staff); ID at 17.
The administrative judge determined that the Chief of Staff’s testimony was
credible and persuasive. ID at 18. The administrative judge concluded that the
agency presented strong evidence in support of its action. ID at 13.
On review, the appellant argues that the investigating officer was not
independent because she reported to the Chief of Staff. PFR File, Tab 4 at 5.
As noted, the administrative judge found the investigating officer’s testimony to
be credible. ID at 16; see Hillen v. Department of the Army , 35 M.S.P.R. 453,
458 (1987). It is well established that the Board must give due deference to an
administrative judge’s credibility findings when, as here, they are based explicitly
or implicitly on the observed demeanor of witnesses at a Board hearing, and that
the Board may overturn such determinations only when it has sufficiently sound
reasons for doing so. Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed.
Cir. 2002). The appellant’s claim that negative implications necessarily arise
because the investigating officer reported to the Chief of Staff is speculative and4
does not provide a sufficiently sound reason not to defer to the administrative
judge’s credibility findings.
The appellant also challenges on review certain features of the
investigation. For example, she argues that the individual interviewed whose
statement was identified as Statement D and who allegedly complained about the
appellant, IAF, Tab 6 at 40-42, did not mention her by name, PFR File, Tab 4
at 10, and, in fact, the appellant appears to be correct as to this individual,
IAF, Tab 18 at 75-82. The appellant also alleges that others who were
interviewed during the investigation and who allegedly complained about her,
Statements G, I, O, and P, did not have daily contact with her.
She acknowledges, however, that they expressed negative opinions about her.
PFR File, Tab 4 at 10-12. And, the appellant questions the investigator’s reliance
on the statements made by the appellant’s immediate supervisor and the Division
Chief, PFR File, Tab 4 at 12, because those individuals were the subject of the
investigation.
On review, the appellant maintains that the climate survey “was nothing
more than a venue for a disgruntled employee to complain,” and found no issues
with her performance. PFR File, Tab 4 at 16. She testified during the hearing,
however, that she was told that some of her subordinates believed that she
displayed favoritism toward certain employees.3 HCD (testimony of the
appellant). The appellant has not provided a genuine challenge to the testimony
of the Chief of Staff regarding this survey, testimony which, as we have noted,
the administrative judge found credible and persuasive. ID at 18.
The admonishment the Chief of Staff issued to the appellant on
June 18, 2015, IAF, Tab 20 at 109, was for conducting a prohibited personnel
practice in violation of 5 U.S.C. § 2302(b)(12) (taking a personnel action in
violation of any law, rule, or regulation implementing or directly concerning the
3 The administrative judge found that no documentary evidence of this survey was cited
by the parties, and that he could not locate it in the record. ID at 17. Nor can we.5
merit system principles of 5 U.S.C. § 2301). Specifically, according to the
admonishment, the appellant, in communications with a staffer, gave the
appearance that she had been “preselected” for a particular position. Id.
On review, the appellant states only that the admonishment was to appease her
supervisor who wanted the appellant suspended for trying to correct an erroneous
transaction. PFR File, Tab 4 at 15. She does not, however, directly address the
basis for the admonishment.
In any event, to the extent the appellant challenges the agency’s assessment
of how she performed as a supervisor, the relevant inquiry in an IRA appeal is not
whether the appellant committed any actual misconduct, but whether the agency
had strong evidence to support its personnel action. See Yunus v. Department of
Veterans Affairs , 84 M.S.P.R. 78, ¶ 12 (1999), aff’d, 242 F.3d 1367 (Fed. Cir.
2001). An agency may direct an employee’s reassignment, without a reduction in
grade or pay, in a manner consistent with its rules and regulations and any
applicable collective bargaining agreement, as long as the reassignment is based
on legitimate management reasons. Shenwick v. Department of State ,
92 M.S.P.R. 289, ¶ 11 (2002). The Chief of Staff’s testimony reflects that his
decision was influenced by the results of the investigation, the climate survey,
and the letter of admonishment he issued to the appellant. HCD (testimony of the
Chief of Staff). Having reviewed all the evidence of record, we find that the
appellant has not shown error in the administrative judge’s finding that the
agency presented strong evidence in support of its legitimate business reasons for
the appellant’s reassignment.
Regarding Carr factor (2), the existence and strength of any motive to
retaliate on the part of the agency officials involved in the decision, the
administrative judge stated that he perceived no retaliatory motive on the part of
the agency officials involved. ID at 19. He considered the Chief of Staff’s
testimony that, although it was recommended that the command take disciplinary
action against the appellant up to removal, he elected only to reassign her because6
he viewed her as an intelligent and valued employee who greatly contributed to
the organization, but that, based on the results of the investigation, the climate
survey, and the admonishment, he concluded that she was not well-suited for a
supervisory position. The administrative judge also considered the Chief of
Staff’s testimony that he consulted with the Commanding General and the Staff
Judge Advocate’s Office before directing the appellant’s reassignment.
HCD (testimony of the Chief of Staff); IAF, Tab 6 at 35-36.
On review, the appellant essentially counters the administrative judge’s
assessment of a lack of retaliatory motive, claiming that the OIG complaint
reflected poorly on the Chief of Staff as the “senior official in the building on a
day to day basis” because he allowed “the situation” to escalate. PFR File, Tab 4
at 18. Although the Chief of Staff was not implicated in the IG complaint,
IAF, Tab 5 at 38, it is reasonable that the appellant’s comments that were
generally critical of her supervisor and the Division Chief would reflect poorly on
upper management, see Chavez v. Department of Veterans Affairs , 120 M.S.P.R.
285, ¶ 33 (2013). Therefore, while we acknowledge the administrative judge’s
finding that the Chief of Staff testified credibly regarding his view of the
appellant’s contributions to the organization, we find that he had at least a slight
motive to retaliate against her for filing the OIG complaint.
Finally, the administrative judge made no findings as to Carr factor (3),
any evidence that the agency takes similar actions against employees who are not
whistleblowers but who are otherwise similarly situated. However, the only other
individuals called out during the investigation for bad work-related deeds, but
who were not whistleblowers, were not similarly situated to the appellant because
she engaged in other misconduct. For example, the investigator recommended that
the appellant’s supervisor be issued an Official Written Reprimand for failure to
address improper treatment of staff or other inappropriate conduct within DHR
and allowing nepotism to influence an award submission for the husband of the
Division Chief, and that the Division Chief be suspended from duty for7
committing a prohibited personnel practice. IAF, Tab 6 at 46. Instead, the Chief
of Staff issued Memoranda of Concern to both the appellant’s supervisor and the
Division Chief for their failure to foster a healthy command climate within the
directorate. IAF, Tab 19 at 56, 58. While the appellant’s directed reassignment
was harsher than the Memoranda of Concern that were issued to her supervisor
and the Division Chief, unlike those individuals, the appellant’s reassignment was
also based on other factors, specifically, the climate survey that revealed
problems with her management of her subordinates and her prior admonishment.
HCD (testimony of the Chief of Staff). For that reason, those two individuals are
not similarly situated to the appellant.4 Therefore, Carr factor (3) is insignificant.
Runstrom v. Department of Veterans Affairs , 123 M.S.P.R. 169, ¶ 18 (2016)
(finding that, due to the lack of evidence that there were any employees similarly
situated to the appellant, the third Carr factor was not significant for the analysis
of that case).
Weighing the three Carr factors together, and notwithstanding the slight
motive to retaliate on the part of the Chief of Staff, we find, based on the strength
of the agency’s evidence in support of the appellant’s reassignment and the
insignificance of Carr factor (3), that the agency demonstrated by clear and
convincing evidence that it would have reassigned the appellant absent her
protected activity. We therefore find that the administrative judge properly
denied the appellant’s request for corrective action.5
4 On review, the appellant refers to a WG-10 Heavy Mobile Equipment Mechanic
Inspector who she claims received a reduced suspension for discourtesy. PFR File,
Tab 4 at 18. The limited information the appellant has provided regarding this
individual suggests that he also is not similarly situated to her.
5 Because we agree with the administrative judge’s ultimate disposition, we have made
no findings on the timeliness of the appellant’s petition for review.8
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).
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.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.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. 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 | Jackson_Tannie_S_AT-1221-18-0334-W-1__Final_Order.pdf | 2024-05-28 | TANNIE S. JACKSON v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-1221-18-0334-W-1, May 28, 2024 | AT-1221-18-0334-W-1 | NP |
1,351 | https://www.mspb.gov/decisions/nonprecedential/Scere_John_A_NY-0752-14-0157-X-1__NY-0752-14-0157-C-1.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN ALLAN SCERE,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBERS
NY-0752-14-0157-X-1
NY-0752-14-0157-C-1
DATE: May 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jonathan Bell, Esquire, Syosset, New York, for the appellant.
Julie Kitze, Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant filed a petition for enforcement of the Board’s September 9,
2016 final decision in the underlying matter, Scere v. Department of Homeland
Security, MSPB Docket No. NY-0752-14-0157-I-1, Order (Sept. 9, 2016). The
administrative judge granted the petition for enforcement, finding the agency in
noncompliance with the Board’s final decision. Scere v. Department 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).
Homeland Security , MSPB Docket No. NY-0752-14-0157-C-1, Compliance File,
Tab 14, Compliance Initial Decision. The agency petitioned for review of the
compliance initial decision, and the Board issued a nonprecedential, nonfinal
decision denying the petition for review and ordering the agency to comply with
the relief ordered in the compliance initial decision. Scere v. Department of
Homeland Security , MSPB Docket No. NY-0752-14-0157-C-1, Compliance
Petition for Review File, Tab 9, Order. For the reasons set forth below, we now
DISMISS the petition for enforcement as settled.
On August 15, 2023, the parties submitted a document entitled “Amended
Settlement Agreement and Release.” Scere v. Department of Homeland Security ,
MSPB Docket No. NY-0752-14-0157-X-1, Compliance Review File (CRF),
Tab 10.2 The document provides, among other things, for the dismissal of the
petition for enforcement. Id. at 4-5.
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 Massey v.
Office of Personnel Management , 91 M.S.P.R. 289 (2002), ¶ 4, overruled on
other grounds by Delorme v. Department of the Interior , 124 M.S.P.R. 123,
¶¶ 11-21 (2017) (holding that the Board may enforce settlement agreements that
have been entered into the record, independent of any prior finding of Board
jurisdiction over the underlying matter being settled).
2 The parties had filed a previous settlement agreement in May 2023, captioned under
the docket number of the appellant’s related attorney fee case, Scere v. Department of
Homeland Security , NY-0752-14-0157-A-1. CRF, Tab 8. We find that this settlement
agreement is superseded by the August 15, 2023 settlement agreement, which is
specifically designated an “amended” agreement and—unlike the original agreement—
expressly addresses relief in both the instant matters. 2
Here, 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. CRF, Tab 10 at 4-7. Accordingly, we find that
dismissing the petition for enforcement 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.
This is the final decision of the Merit Systems Protection Board in these
joined appeals. 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 not
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
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
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. 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.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. 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 | Scere_John_A_NY-0752-14-0157-X-1__NY-0752-14-0157-C-1.pdf | 2024-05-28 | JOHN ALLAN SCERE v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. of, May 28, 2024 | of | NP |
1,352 | https://www.mspb.gov/decisions/nonprecedential/Gonzalez_DanielSF-0752-19-0024-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL GONZALEZ,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
SF-0752-19-0024-I-1
DATE: May 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Daniel Gonzalez , La Grande, Oregon, pro se.
Kevin L. Owen , Esquire, Silver Spring, 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 for medical inability to perform. 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. Except as
expressly MODIFIED to incorporate and apply the proper legal standard for the
appellant’s disparate treatment disability discrimination affirmative defense, we
AFFIRM the initial decision.
The following facts, as further detailed in the record and initial decision,
appear to be undisputed. The appellant held the position of Wildlife Biologist for
the Forest Service. Initial Appeal File (IAF), Tab 69, Initial Decision (ID) at 2.
He was assigned to the Pacific Northwest Region’s Wallowa-Whitman National
Forest, Whitman Ranger District, with a duty station of Baker City, Oregon. Id.;
IAF, Tab 6 at 200.
In November 2017, the appellant began providing the agency with a series
of medical notes, along with a leave application under the Family Medical Leave
Act (FMLA), indicating that he was at least temporarily incapacitated due to
depression, posttraumatic stress disorder, and anxiety. ID at 2-3; e.g., IAF,
Tab 28 at 21-31. This documentation culminated with a series of January and
February 2018 letters from the appellant’s psychiatrist. ID at 3-4. The first
indicated that it was “absolutely essential that [the appellant] not return to work
in Baker City[,] which is a trigger for his [condition,] and he may not be able to
work anywhere.” IAF, Tab 28 at 32. The next provided that the appellant
“certainly cannot work in Forest Service Region 6.[2] Ideally[,] he would take a
2 “Forest Service Region 6” is otherwise known as the “Pacific Northwest Region.”
Compare IAF, Tab 28 at 33 (psychiatrist’s reference to Region 6), with IAF, Tab 6
at 146-48 (agency documents listing the offices within “REGION 6 (PACIFIC2
virtual or remote position in which his duty station would be his home or an
independent office in Union County[,] outside the influences of the Wallowa
Whitman National Forest.” Id. at 33. Soon thereafter, the appellant’s psychiatrist
provided the following, more detailed, explanation:
While I cannot be certain that [the appellant] will ever get over his
conditions to the point of being able to return to work in Baker City
or the Wallowa Whitman National Forest, I can say with certainty
that it is probable he will need a year off this type of work (from
today’s date) to engage in appropriate psychotherapy without the
stress of trauma triggering work. He would be able to work much
earlier if assigned to a different region in a remote capacity which
would not be trauma triggering.
Id. at 34. Within the accompanying FMLA forms, the psychiatrist once again
indicated that the appellant would be incapacitated for a year, “unable to perform
even the least stressful job functions.” Id. at 36. He also warned that the
appellant had “ongoing symptomology including rage at his place of
employment” and that rage “could result in harm to self or others.” Id. at 37.
As a result of these reports from his psychiatrist, the agency asked the
appellant what, if any, reasonable accommodation he was seeking. ID at 4; IAF,
Tab 28 at 39. After receiving the appellant’s response, the agency conducted a
search but found no vacant funded position that was consistent with the
appellant’s limitations. ID at 4-5; e.g., IAF, Tab 6 at 226-27, 236-38, 242,
Tab 35 at 9, 11.
In July 2018, the agency proposed the appellant’s removal for medical
inability to perform the essential duties of his position. ID at 5; IAF, Tab 6
at 210-12. The agency effectuated his removal in October 2018, and this appeal
followed. ID at 5; IAF, Tab 6 at 200-03. The administrative judge developed the
record and held the requested hearing before sustaining the removal action.3 ID
NORTHWEST REGION)” to include Wallowa-Whitman National Forest).
3 Though not expressly stated in the initial decision, we recognize that, at the start of
the hearing, the administrative judge issued a ruling to exclude a number of late
submissions from both parties. IAF, Tab 63, Hearing File, Day 1. In particular, the3
at 1. She found that the agency met its burden of proving the charge, nexus, and
penalty. ID at 7-10, 19. The administrative judge also found that the appellant
failed to prove his failure to accommodate and disparate treatment disability
discrimination claims. ID at 11-19.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He has also filed several other pleadings with additional evidence.
PFR File, Tabs 2-5. For example, the appellant submitted affidavits from two
agency employees, dated months before the initial decision in this appeal, PFR
File, Tab 2 at 4-17, Tab 5 at 6-12, documents from 1998 detailing the appellant’s
appointment, PFR File, Tab 3 at 4-5, and documents from various years about
performance plans and standards, PFR File, Tab 3 at 6-8, Tab 4 at 4-10. The
agency has filed a response to the appellant’s petition for review, and the
appellant has replied. PFR File, Tabs 7-8.
The administrative judge properly found that the agency proved its charge.
When, as here, the appellant does not occupy a position with medical
standards or physical requirements or subject to medical evaluation programs, to
establish a charge of physical inability to perform, an agency must prove a nexus
between the employee’s medical condition and observed deficiencies in his
performance or conduct or a high probability, given the nature of the work
involved, that his condition may result in injury to himself or others. Miller v.
Department of the Army , 121 M.S.P.R. 189, ¶ 11 (2014); see Haas v. Department
of Homeland Security , 2022 MSPB 36, ¶¶ 15-16 (recognizing this standard and
comparing it with the differing standard that applies in the context of an
employee’s removal from a position with medical standards based solely on
his/her medical history). The Board has otherwise described this standard as
requiring that the agency establish that the appellant’s medical condition prevents
him from being able to safely and efficiently perform the core duties of his
administrative judge determined that evidence found at IAF, Tab 43 at 10-39,
Tabs 44-56, would not be considered.4
position. Haas, 2022 MSPB 36, ¶¶ 15, 20. In determining whether the agency
has met its burden, the Board will consider whether a reasonable accommodation,
short of reassignment, exists that would enable the employee to safely and
efficiently perform the core duties of the position. Id., ¶ 25.
Once more, the appellant’s own psychiatrist indicated that he was
medically incapacitated from his position of record and would likely remain so
for a year or more. Accordingly, we agree with the administrative judge’s
conclusion that the agency met its burden of proof; the appellant could not
perform any functions of his position with or without accommodation. ID
at 7-10.
On review, the appellant alludes to an assertion he presented below—that
he might have been able to perform his position if he had been permitted to
telework 100% of the time. PFR File, Tab 1 at 7-10; ID at 10. In doing so, the
appellant argues that the agency had effectively permitted such an arrangement
for him in years past, aside from the rare in-person meeting, even though he had
no telework agreement reflecting the same. PFR File, Tab 1 at 7-8. Yet, as the
administrative judge recognized, even if 100% telework was available, it is not
consistent with the medical restrictions delineated by the appellant’s own medical
provider—namely, the appellant’s inability to work for Wallowa-Whitman
National Forest or, more broadly, the Pacific Northwest Region. To the extent
that the appellant is suggesting that his medical condition did not preclude him
from working in the Pacific Northwest Region, contrary to the opinion of his own
medical provider, we are not persuaded. The appellant did not identify any
substantive and supportive evidence of the lesser restrictions he now suggests.5
The appellant did not prove his disability discrimination claims. 4
As previously mentioned, the administrative judge found that the appellant
did not prove his failure to accommodate and disparate treatment disability
discrimination claims. ID at 11-19. She determined that the former failed
because, inter alia, the appellant was not a qualified individual with a disability.
ID at 11-13. The administrative judge found that the disparate treatment claim
was unavailing because the appellant failed to identify any similarly situated
individuals who were treated less harshly and there was no credible evidence that
his removal was based on a discriminatory animus. ID at 13-19. We affirm the
administrative judge’s conclusions, while modifying her disparate treatment
analysis to incorporate and apply the correct standard.
4 In his initial appeal and subsequent submissions, the appellant alluded to both prior
equal employment opportunity (EEO) activity and retaliation. IAF, Tab 1 at 5. In
doing so, he alleged that his medical condition—not his removal—was the product of
“long-term discrimination, harassment, retaliation, and reprisal from managers named in
[his] EEO complaints.” Id. It appears that the administrative judge initially construed
the appellant’s statements as a possible EEO reprisal affirmative defense, and she
therefore gave him the proper notice of the corresponding burden of proof. IAF, Tab 8
at 4, Tab 9 at 1, 9. Notably, in response to the administrative judge’s affirmative
defenses order, the appellant only identified claims of failure to accommodate and
disparate treatment disability discrimination. IAF, Tab 10. He did not identify a claim
of EEO reprisal. In the initial decision, the administrative judge noted that the
appellant had ongoing EEO complaints of discrimination and retaliation, and she stated
that she did not consider such claims in this matter. ID at 7 n.2.
The appellant does not specifically challenge the administrative judge’s decision
regarding EEO reprisal. He argues generically that there was “reprisal” and
“retaliation,” but those arguments largely appear to arise in the context of actions
different than the removal action at issue. PFR File, Tab 1. We are mindful of the
appellant’s pro se status. See Melnick v. Department of Housing and Urban
Development, 42 M.S.P.R. 93, 97 (1989 ) (stating that a pro se appellant’s pleadings are
to be liberally construed), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table). However, in
the absence of a specific challenge to the administrative judge’s finding in the initial
decision that she need not address any claims involving EEO reprisal, we need not
address such claims on review. See Tines v. Department of the Air Force ,
56 M.S.P.R. 90, 92 (1992) (stating that a petition for review must contain sufficient
specificity to enable the Board to ascertain whether there is a serious evidentiary
challenge justifying a complete review of the record).6
The Board adjudicates claims of disability discrimination raised in
connection with an otherwise appealable action under the substantive standards of
section 501 of the Rehabilitation Act. Pridgen v. Office of Management
and Budget, 2022 MSPB 31, ¶ 35. The Rehabilitation Act has incorporated the
standards of the Americans with Disabilities Act (ADA), as amended. Id.
Therefore, we apply those standards here to determine if there has been a
Rehabilitation Act violation. Id. In particular, the ADA provides that it is illegal
for an employer to “discriminate against a qualified individual on the basis of
disability.” 42 U.S.C. § 12112(a); Haas, 2022 MSPB 36, ¶ 28. An employer is
also required to provide reasonable accommodation to an otherwise qualified
individual with a disability. 42 U.S.C. § 12112(b)(5); Haas, 2022 MSPB 36,
¶ 28. Thus, both a claim of disability discrimination based on an individual’s
status as disabled and a claim based on an agency’s failure to reasonably
accommodate that disability require that the individual be “qualified.” Haas,
2022 MSPB 36, ¶ 28. In other words, if the administrative judge was correct that
the appellant was not a “qualified” individual for purposes of a reasonable
accommodation claim, then the appellant necessarily cannot prove his disparate
treatment claim either.
A qualified individual with a disability is one who can “perform the
essential functions of the . . . position that such individual holds or desires” with
or without reasonable accommodation. 42 U.S.C. § 12111(8); Haas, 2022 MSPB
36, ¶ 28. Once more, although the appellant has suggested that he may have been
able to continue in his existing position if given the accommodation of 100%
telework, he has not identified any supportive evidence, and his own psychiatrist
concluded otherwise. In addition, the agency provided evidence that it searched
for, but was unable to find, a position to which the appellant could be reassigned.
E.g., IAF, Tab 6 at 226-27, 236-38, 242, Tab 35 at 9, 11. On review, the
appellant has not presented any argument or evidence to the contrary.
Accordingly, we agree with the administrative judge that the appellant is not a7
qualified individual with a disability. ID at 12-13. He could not perform the
essential functions of his position, or one that he desires, with or without
reasonable accommodation. For this reason, the appellant has not proven either
his reasonable accommodation or disparate treatment discrimination claims.
The appellant’s remaining arguments provide no basis to disturb the initial
decision.
As reflected in the examples provided below, the appellant has presented a
number of additional arguments on review. We have considered the appellant’s
arguments, but we find that none of them warrant a different result in this appeal.
The appellant’s petition begins with arguments that the Wallowa-Whitman
Forest Supervisor and Acting District Ranger were not credible. PFR File, Tab 1
at 4-7. However, as an initial matter, the appellant has not clearly identified
material testimony from these two officials that he is disputing. Instead, it
appears that he has largely disputed tangential matters, such as the degree to
which these officials were involved in a prior suspension, and the duties they
would have assigned the appellant if he had been working. Id. at 4-6. In
addition, the administrative judge’s credibility determinations are entitled to
deference. See Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed.
Cir. 2002) (indicating that the Board must defer to an administrative judge’s
credibility determinations when they are based, explicitly or implicitly, on
observing the demeanor of witnesses testifying at a hearing; the Board may
overturn such determinations only when it has “sufficiently sound” reasons for
doing so). Finally, the appellant’s credibility arguments rely on either his own
statements, unsupported by evidence of record, or the evidence he submitted for
the first time on review, which we have not considered because it is not new and
material. PFR File, Tab 1 at 4-7, Tabs 2-5; see Bucci v. Department of
Education, 42 M.S.P.R. 47, 55 (1989) (stating that evidence offered merely to
impeach a witness’s credibility generally is not considered new and material).
For example, the appellant suggests that some of the evidence he submitted on8
review reveals inconsistencies in the testimony of pertinent officials that testified
in this appeal, and the agency has long had access to that evidence by virtue of
his equal employment opportunity complaints. Yet, the agency’s prior access is
of no consequence. The appellant has not shown that the evidence he submitted
for the first time on review is new and material. 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 the petition for
review absent a showing that it was unavailable before the record was closed
despite the party’s due diligence); 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). For these reasons, we decline to disturb the administrative judge’s
credibility determinations.
The appellant next argues that the agency selectively enforced policies,
including ones concerning telework and performance appraisals. PFR File, Tab 1
at 7-8. He also argues that the agency “played games” regarding discovery
requests and, if the agency had been more forthright, additional evidence would
have been available, including records pertaining to agency meetings and the
appellant’s prior absence without leave charge. Id. at 8-9. The appellant then
presents a detailed timeline covering the period between December 2016 and his
October 2018 removal; a timeline that includes various allegations of wrongdoing
ranging from false accusations to harassing emails. Id. at 10-16. However, the
appellant has not explained how these various arguments and assertions relate to
the matters at issue in this appeal—whether the agency met its burden of proof for
his removal and whether the appellant met his burden of proof concerning his
affirmative defenses to that removal.
As a final note, we recognize the appellant’s assertion that he was confused
by the appeal process. Id. at 16-17. In particular, he states that he avoided
calling any witnesses of his own because he believed that he would have to pay9
for their participation and any associated expenses, thereby preventing him from
directly examining any witnesses. Id. Yet, the administrative judge’s
acknowledgment order informed the appellant that 5 C.F.R. part 1201 contained
detailed information about Board proceedings. IAF, Tab 2 at 6. It also noted that
those regulations were available in a number of places, including the Board’s
website. Id. In a subsequent hearing order, the administrative judge specifically
explained that the agency must provide for the appearance of its employees who
are approved as witnesses, while the requesting party is responsible for paying
appropriate fees for other individuals. IAF, Tab 7 at 3-4; see 5 C.F.R.
§ 1201.37(a) (Federal employees receive no fees for testifying before the Board),
(b)-(c) (for any other witness, the requesting party must pay the same fee and
mileage allowances which are paid to subpoenaed witnesses in the courts of the
United States). We find that these instructions were sufficiently clear.
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 | Gonzalez_DanielSF-0752-19-0024-I-1__Final_Order.pdf | 2024-05-24 | DANIEL GONZALEZ v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. SF-0752-19-0024-I-1, May 24, 2024 | SF-0752-19-0024-I-1 | NP |
1,353 | https://www.mspb.gov/decisions/nonprecedential/Beckett_HowardAT-1221-22-0236-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HOWARD BECKETT, III,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
AT-1221-22-0236-W-1
DATE: May 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Howard Beckett, III , Sumter, South Carolina, pro se.
Timothy Paul Murphy , Esquire, and Ashley Geisendorfer , Washington,
D.C, 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
denied him corrective action in his individual right of action (IRA) appeal. On
petition for review, the appellant, among other things, challenges the
administrative judge’s credibility determinations and accuses the administrative
judge of bias. 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 MODIFIED to
supplement the administrative judge’s analysis of the contributing factor
criterion, we AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly found that the appellant did not make a
protected disclosure, and the appellant offers no sufficiently sound reason to
overturn the credibility determinations on which that finding was based.
¶2The Board must defer to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observing the
demeanor of witnesses testifying at a hearing; the Board may overturn such
determinations only when it has “sufficiently sound” reasons for doing so. Haebe
v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002). The appellant’s
challenges to the administrative judge’s credibility determinations, which were
based on the administrative judge’s observation of witnesses’ demeanors, do not
provide sufficiently sound reasons for overturning those determinations. It was
appropriate for the administrative judge to compare the credibility of the agency
witnesses who terminated the appellant with that of the appellant—who
demonstrated himself to be not credible regarding the significant issue of his
reason for not working—and credit the agency witnesses to find that the appellant2
did not establish that he made a disclosure to them.2 See Hillen v. Department of
the Army, 35 M.S.P.R. 453, 458 (1987) (stating that, to resolve credibility issues,
an administrative judge must, among other things, identify the factual questions in
dispute and state which version he believes); Initial Appeal File (IAF), Tab 75,
Initial Decision (ID) at 10-11.
¶3In addition, we agree with the administrative judge that the appellant’s other
statements in this matter bolster the conclusion that the interaction in which the
appellant was allegedly encouraged to commit timecard fraud did not occur. ID
at 11. The appellant stated in his complaint to the Office of Special Counsel
(OSC) that, “after [he] completed training for some reason, [he] was not getting
cases and had to speak with [his direct supervisor] a lot trying to get cases
assigned.” IAF, Tab 1 at 8. He claimed that his direct supervisor encouraged him
to commit timecard fraud during those conversations. Id. On review, the
appellant similarly claims that he “never was able to have cases because they
couldn’t be assigned” and that his supervisor told him in the meantime that “she
was stealing and once [he got] cases [he] will be too.” Petition for Review (PFR)
File, Tab 1 at 4.
¶4The record contradicts the appellant’s assertion that he was never assigned
cases. A document related to the appellant’s termination shows that he completed
Enumerator training on August 13, 2020, and posted his availability to work on
August 14, 16, 17, 18, and 30, 2020. IAF, Tab 5 at 5. The appellant confirmed
during the hearing that he posted his availability to work on several of those dates
on August 12, 2020, before completing training. IAF, Tab 68, Hearing Recording
(HR) Day 1 (testimony of the appellant). He also testified that, based on his
posting of his availability, he received cases to work on those dates. Id. In a
written statement, the appellant’s direct supervisor described an email or text
message exchange with the appellant on August 14, 2020, the day after he
2 Further, the appellant’s attempts to explain his demeanor during the hearing do not
demonstrate why any of the factors which he claims affected his demeanor prevented
him from testifying credibly. Petition for Review File, Tab 1 at 5-6.3
completed training, in which he stated that he had cases that day, which he
ultimately did not complete because, as he later claimed, “he had something to
do.” IAF, Tab 9 at 39. Because the appellant was assigned cases to work
promptly after completing training, it is not credible that he would have had the
discussions with his supervisor about lacking cases in which he was allegedly
encouraged to commit fraud. We therefore agree with the administrative judge
that the appellant did not establish that his direct supervisor ever encouraged him
to commit fraud, and that he thus did not establish that he made a disclosure
protected under 5 U.S.C. § 2302(b)(8).
The administrative judge correctly found that, even if the appellant did make a
protected disclosure, he did not establish that it was a contributing factor in his
termination.
¶5The administrative judge found in the alternative that, even if the appellant
did make a protected disclosure, he did not establish that it was a contributing
factor in his termination. ID at 11 n.10. In so concluding, the administrative
judge explained, among other things, that the officials who terminated the
appellant credibly testified that they were unaware of his fraud allegation, that the
appellant thus did not meet the knowledge/timing test, and that the agency’s
reasons for terminating the appellant, namely his nonperformance of work and
refusal to participate in a performance observation, were overwhelmingly strong.
Id. We agree.
¶6Nevertheless, the Board has held that, if an administrative judge determines
that an appellant has failed to satisfy the knowledge/timing test, he shall consider
other evidence, such as, in addition to 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.
Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 15 (2012). The
administrative judge only considered the first of these factors, so we address the4
remainder here. As further evidence of lack of contributing factor, the appellant’s
fraud allegation was personally directed at his direct supervisor and not at the
officials responsible for his termination, and there is no credible indication that
those officials had any desire or motive to retaliate against him. We find the
appellant’s speculative testimony that the officials responsible for his termination
“had to sign off” on falsified timecards due to the scale of the alleged fraud
unpersuasive. IAF, Tab 72, HR Day 2 (testimony of the appellant). We thus
conclude, considering all of the Dorney factors, that even if the appellant did
make a protected disclosure, he did not establish that it was a contributing factor
in his termination.
The appellant’s additional claims on review do not warrant disturbing the initial
decision.
¶7The appellant claims that the administrative judge was biased against him
due to his personal appearance and accent. PFR File, Tab 1 at 4, 6, 11, 14. In
making a claim of bias 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). The party must show that any such bias constitutes extrajudicial conduct
rather than conduct arising in the administrative proceedings before him.
Schneider v. Department of Homeland Security , 98 M.S.P.R. 377, ¶ 7 (2005).
Moreover, an administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication only if the administrative judge’s
comments or actions evidence “a deep-seated favoritism or antagonism that would
make fair judgment impossible.” Bieber v. Department of the Army , 287 F.3d
1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540,
555 (1994)). Our review of the record does not reveal any such extrajudicial
conduct, deep-seated favoritism, or antagonism on the administrative judge’s part.
The appellant’s claims of bias, which are merely speculative, thus do not5
overcome the presumption of honesty and integrity that accompanies an
administrative judge.
¶8Finally, despite the appellant’s discussion of the administrative judge’s
denials of his motion to compel discovery, motion to sanction the agency, and
motions to disqualify or exclude the agency’s representative, PFR File, Tab 1
at 4, 6, 8-9, 11-14, we discern no abuse of discretion in those rulings in our
review of the record, leaving us no reason to disturb them. See Social Security
Administration v. Levinson , 2023 MSPB 20, ¶ 53 (stating that the Board will not
reverse an administrative judge’s determination regarding sanctions absent an
abuse of discretion); Parker v. Department of Housing and Urban Development ,
106 M.S.P.R. 329, ¶ 9 (2007) (stating that the Board will not reverse an
administrative judge’s rulings on discovery matters absent an abuse of
discretion); White v. Department of the Air Force , 71 M.S.P.R. 607, 613 (1996)
(stating that the Board may not disqualify an agency’s representative on any basis
not provided for at 5 C.F.R. § 1201.31(b) (conflict of interest or conflict of
position)).3
3 It appears that the agency executed a purported correction of the appellant’s
termination Standard Form 50 at some point by canceling his termination and replacing
it with a resignation. PFR File, Tab 1 at 14; IAF, Tab 39 at 11. Neither the agency nor
the administrative judge addressed this fact. Nevertheless, we find the cancelation of
the appellant’s termination immaterial to the disposition of this appeal. The appellant
exhausted the issue of his separation from the agency with OSC, IAF, Tab 1 at 14-19, a
cancelation of the termination would not moot the appeal because of the remaining
damages issue, and however the appellant’s separation is characterized, we agree with
the administrative judge that the appellant did not establish a prima face case of
whistleblower reprisal.
The appellant claims that his third-level supervisor “implied” during the hearing that
she terminated him partly because he helped someone file an equal employment
opportunity (EEO) complaint. PFR File, Tab 1 at 4. It does not appear that the
appellant exhausted a claim of retaliation for assisting another employee with an EEO
complaint under 5 U.S.C. § 2302(b)(9)(B) with OSC. See Chambers v. Department of
Homeland Security , 2022 MSPB 8, ¶ 10 (stating that the Board’s jurisdiction over an
IRA appeal is limited to those issues that have been previously raised with OSC); IAF,
Tab 1 at 14-19, Tab 6 at 11-17. The administrative judge thus found that the only issue
within the Board’s jurisdiction was the appellant’s claim that the agency terminated him
after he disclosed that his first-level supervisor encouraged him to commit timecard6
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
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
fraud. IAF, Tab 10. We find no reason to disturb this ruling.
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
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 on8
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) or9
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 10
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 | Beckett_HowardAT-1221-22-0236-W-1__Final_Order.pdf | 2024-05-24 | null | AT-1221-22-0236-W-1 | NP |
1,354 | https://www.mspb.gov/decisions/nonprecedential/Smith_Branden_S_DE-315H-20-0117-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRANDEN S. SMITH,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DE-315H-20-0117-I-1
DATE: May 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Branden S. Smith , Clinton, Utah, pro se.
Christine Yen , Esquire, Stockton, California, 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 for lack of jurisdiction his appeal of his termination from his position
in the excepted service during his probationary/trial period. On petition for
review, the appellant avers that he “did not receive any notification that [he] was
supposed to confirm [he] was an employee” and alleges that his removal was the
result of discrimination. Petition for Review File, Tab 1 at 4. Generally, we
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to clarify the appropriate jurisdictional standard, we
AFFIRM the initial decision.
Only an “employee,” as defined under 5 U.S.C. chapter 75, can appeal an
adverse action to the Board. Winns v. U.S. Postal Service , 124 M.S.P.R. 113, ¶ 8
(2017), aff’d sub. nom. Williams v. Merit Systems Protection Board , 892 F.3d
1156 (Fed. Cir. 2018); see 5 U.S.C. §§ 7511(a)(1), 7513(d). As a nonpreference
eligible who was terminated from a position in the excepted service, the appellant
may appeal his termination to the Board only if he qualifies as an “employee”
under 5 U.S.C. § 7511(a)(1)(C). Martinez v. Department of Homeland Security ,
118 M.S.P.R. 154, ¶ 5 (2012); see 5 U.S.C. § 7513(d). Under this section, an
“employee” is defined as the following:
[A]n individual in the excepted service (other than a preference
eligible)—(i) who is not serving a probationary or trial period under
an initial appointment pending conversion to the competitive service;
or (ii) who 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).2
Here, although the administrative judge correctly stated that only an
“employee” as defined under 5 U.S.C. § 7511(a)(1) can appeal an adverse action
to the Board, she erroneously analyzed the appeal pursuant to the definition
applicable to individuals in the competitive service. Initial Appeal File (IAF),
Tab 6, Initial Decision (ID) at 4-6; cf., 5 U.S.C. § 7511(a)(1)(A).2 However,
insofar as the appellant failed to nonfrivolously allege either (1) that he was not
serving a probationary/trial period at the time of his termination3 or (2) that he
had 2 years of current continuous service prior to his removal, this error was
harmless and a different outcome is not warranted.4 ID at 5; see 5 U.S.C.
§ 7511(a)(1)(C); see also Panter v. Department of the Air Force , 22 M.S.P.R.
281, 282 (1984) (explaining that an adjudicatory error that is not prejudicial to a
party’s substantive rights provides no basis for reversal of an initial decision).
NOTICE OF APPEAL 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
2 Although a probationary Department of Defense employee in the competitive service
who has not completed 2 years of continuous service has no statutory right of appeal, he
has a regulatory right of appeal in certain limited circumstances. See 5 U.S.C.
§ 7511(a)(1)(A); 10 U.S.C. § 1599e(d); 5 C.F.R. §§ 315.805-.806.
3 Assuming without deciding that the appellant was serving under an initial appointment
pending conversion to the competitive service, he qualifies as an employee under
5 U.S.C. § 7511(a)(1)(C)(i) if and only if he was not serving a probationary or trial
period at the time of his termination. See Martinez, 118 M.S.P.R. 154, ¶ 6 & n.2; see
also Forest v. Merit Systems Protection Board , 47 F.3d 409, 412 (Fed. Cir. 1995)
(holding that section 7511(a)(1)(C)(i) covers only excepted service employees serving
“under an initial appointment pending conversion to the competitive service”).
4 The agency’s response to the administrative judge’s jurisdictional order provided the
appellant with notice of the correct jurisdictional standard, i.e., it informed him that he
must meet the definition of “employee” under 5 U.S.C. § 7511(a)(1)(C). IAF, Tab 5
at 15-17; see Scott v. Department of Justice , 105 M.S.P.R. 482, ¶ 6 (2007).
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.3
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 particular4
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 . 5
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 of6
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Smith_Branden_S_DE-315H-20-0117-I-1__Final_Order.pdf | 2024-05-24 | BRANDEN S. SMITH v. DEPARTMENT OF DEFENSE, MSPB Docket No. DE-315H-20-0117-I-1, May 24, 2024 | DE-315H-20-0117-I-1 | NP |
1,355 | https://www.mspb.gov/decisions/nonprecedential/Labbat_John_PaulNY-1221-17-0003-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN PAUL LABBAT,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
NY-1221-17-0003-W-1
DATE: May 24, 2024
THIS ORDER IS NONPRECEDENTIAL1
Jonathan Bell , Esquire, and Brian Bodansky , Esquire, Garden City,
New York, for the appellant.
J. Douglas Whitaker , Esquire, Omaha, Nebraska, for the agency.
Lena Golovnin , New York, New York, 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 his individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the petition for review, AFFIRM 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 findings on exhaustion, VACATE the remainder of the
initial decision, and REMAND the case to the field office for further adjudication
in accordance with this Remand Order.
BACKGROUND
The agency employed the appellant as a Criminal Investigator with the
Bureau of Immigration and Customs Enforcement (ICE). Initial Appeal File
(IAF), Tab 1 at 7. On or around March 15, 2016, the appellant filed a complaint
with the Office of Special Counsel (OSC) alleging that the agency retaliated
against him for his protected whistleblowing activity by denying his leave,
initiating an investigation against him, reassigning him, and subjecting him to a
hostile work environment. IAF, Tab 1 at 8, Tab 15 at 18-19, 27-28, 34. OSC
issued the appellant a close-out letter informing him that it was closing the file on
his complaint and advising him of his right to file a Board appeal. IAF, Tab 15
at 34-35. This appeal followed. IAF, Tab 1.
The administrative judge issued an order explaining the appellant’s burden
to establish jurisdiction over an IRA appeal and directing him to submit evidence
and argument supporting his claim. IAF, Tab 3. In response, the appellant
submitted two sworn declarations describing his alleged protected disclosures and
the agency’s purported retaliatory treatment of him. IAF, Tab 15 at 14-19,
Tab 19 at 11-14. In sum, the appellant alleged that, in 2012, he was assigned to
work with the U.S. Secret Service (USSS). IAF, Tab 15 at 14. During that time,
certain USSS agents physically assaulted his Confidential Informant (CI) and, as
a result, he filed a complaint with the Office of Inspector General (IG) concerning
the assault. Id. at 14-15. Thereafter, in February 2016, the appellant learned that
he could be assigned to another special detail under the supervision of the USSS
during a time for which he already had been approved annual leave to attend a
college basketball tournament. IAF, Tab 15 at 15-16, 27-28, Tab 19 at 13. He
pleaded with his chain of command to allow him to keep his leave during the2
requested period, first arguing the significance and the cost of the basketball
games he had planned to attend on those dates and then explaining that he
believed it would be dangerous for him to take the assignment given his 2012 IG
complaint and the intimidation that followed his complaint. IAF, Tab 15
at 16-17. Concerning his allegations that the assignment would be dangerous for
him, the appellant asserted that, during a March 22, 2016 conversation with the
Acting Deputy Special Agent in Charge (DSAC) and the Assistant Special Agent
in Charge (ASAC), he described the assault on his CI, informed them of his IG
complaint, and explained the intimidation that followed. Id. at 17. He
memorialized the conversation the following day in an email sent to the Acting
DSAC, the ASAC, and the Group Supervisor (GS). Id. at 27-28. In his sworn
declarations, the appellant further asserted that, despite other ICE agents being
excused from the USSS assignment, the DSAC informed him that everybody had
to report and that he was no exception. Id. at 17-18. He claimed that, in addition
to the ultimate denial of his leave request, the agency also subjected him to a
groundless investigation. Id. at 18. The appellant did not report for the USSS
assignment, but he asserted that he worked at his office on those days. IAF,
Tab 19 at 13.
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the IRA appeal for lack of jurisdiction. IAF,
Tab 1 at 2, Tab 20, Initial Decision (ID). She found that only two of the
personnel actions that the appellant complained about were covered under the
whistleblower protection statutory scheme: the agency’s decision to reassign him
and its decision to deny his leave requests. ID at 12-13. She also found that the
appellant exhausted his administrative remedies with OSC as to the covered
personnel actions and the alleged protected disclosures. ID at 14. Concerning his
alleged protected disclosures, she found that he failed to make a nonfrivolous
allegation that his disclosures were protected. Specifically, she found that his
disclosures amounted to no more than a recitation of what he previously reported3
to the IG in 2012 and did not amount to a disclosure of a violation of any law,
rule, or regulation, gross mismanagement, gross waste of funds, abuse of
authority, or a substantial and specific danger to public health or safety. ID
at 14-16. She further found that, even if the appellant had made a nonfrivolous
allegation of a protected disclosure, he failed to make a nonfrivolous allegation
that it was a contributing factor in the personnel actions at issue. ID at 17. As to
the denial of leave, she found that the agency decided to deny his leave requests
before the appellant made his disclosures. ID at 18-19. As to the reassignment,
she found that, even if the agency decided to reassign the appellant shortly after
becoming aware of his disclosures, the appellant did not allege any other
circumstantial evidence that the Acting DSAC was motivated by reprisal. ID
at 19. She therefore dismissed the appeal.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 3. The agency has responded in opposition. PFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over an IRA appeal if the appellant has
exhausted his administrative remedies before OSC, and makes nonfrivolous
allegations that (1) 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)(A)(i), (B), (C), or (D);
and (2) the protected disclosure or 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). Gabel v. Department of Veterans Affairs , 2023 MSPB 4, ¶ 5. The
U.S. Court of Appeals for the Federal Circuit has found that, in the context of an
IRA appeal, a nonfrivolous allegation is an allegation of “sufficient factual
matter, accepted as true, to state a claim that is plausible on its face.” Hessami v.
Merit Systems Protection Board , 979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020).
Once an appellant establishes jurisdiction over his IRA appeal, he is entitled to a
hearing on the merits of his claim, which he must prove by preponderant4
evidence. Rebstock Consolidation v. Department of Homeland Security ,
122 M.S.P.R. 661, ¶ 9 (2015). For the reasons discussed below, we find that the
appellant established Board jurisdiction over his IRA appeal.
The appellant nonfrivolously alleged that he engaged in protected activity within
the scope of the Board’s IRA jurisdiction.
The Whistleblower Protection Enhancement Act of 2012 (WPEA), which
became effective on December 27, 2012, expanded the scope of the Board’s IRA
jurisdiction to include alleged reprisal based on certain protected activity as
defined in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), and (D). 5 U.S.C. § 1221(a);
Rebstock Consolidation , 122 M.S.P.R. 661, ¶ 5. The Board has declined to give
retroactive effect to this expanded grant of jurisdiction when both the protected
activity and the personnel actions took place prior to the WPEA’s December 27,
2012 effective date because doing so would increase a party’s liability for its past
conduct. Rebstock Consolidation , 122 M.S.P.R. 661, ¶ 7; Colbert v. Department
of Veterans Affairs , 121 M.S.P.R. 677, ¶ 7 (2014). However, the Board has held
that the WPEA applies to situations in which the protected activity occurred prior
to its effective date but the personnel actions took place after that date because
the agency knew of the parties’ rights, liabilities, and duties under the WPEA
when it took, or failed to take, the personnel actions. See Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶¶ 50-51; Rebstock Consolidation ,
122 M.S.P.R. 661, ¶¶ 7-9.
Under 5 U.S.C. § 2302(b)(9)(C), an employee engages in protected activity
when he cooperates with or discloses information to an agency’s IG in accordance
with applicable provisions of law.2 Here, the appellant filed an IG complaint in
2 Prior to December 12, 2017, the whistleblower protection statutory scheme provided
that “cooperating with or disclosing information to the Inspector General of an agency,
or the Special Counsel, in accordance with applicable provisions of law,” was protected.
5 U.S.C. § 2302(b)(9)(C); Edwards v. Department of Labor , 2022 MSPB 9, ¶ 29, aff’d,
No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023). Effective December 12,
2017, the National Defense Authorization Act of 2018 (NDAA for 2018) amended
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 internal5
early 2012 concerning the alleged assault of his CI. IAF, Tab 15 at 15, Tab 17
at 6. Because the alleged personnel actions at issue here took place in 2016—
after the WPEA’s December 27, 2012 effective date—we find that the appellant
has nonfrivolously alleged that he engaged in protected activity under
section 2302(b)(9)(C) when he filed his IG complaint. See Pridgen, 2022 MSPB
31, ¶¶ 50-51.
Even if we found that the appellant had failed to nonfrivolously allege that
he engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C), however, we
would find that he nonfrivolously alleged that his disclosures were protected
under section 2302(b)(8).3 Protected whistleblowing occurs when an appellant
makes a disclosure that he reasonably believes evidences a violation of law, rule,
or regulation, gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health and safety. Mason
v. Department of Homeland Security , 116 M.S.P.R. 135, ¶ 17 (2011). The proper
test for determining whether an employee had a reasonable belief that his
disclosures were protected is whether a disinterested observer with knowledge of
the essential facts known to and readily ascertainable by the employee could
investigation or review” also is protected. Pub. L. No. 115-91, § 1097(c)(1), 131 Stat.
1283, 1618 (2017). The NDAA for 2018 amendment to section 2302(b)(9)(C) is not
retroactive. Edwards, 2022 MSPB 9, ¶¶ 29-33. The expansion of
section 2302(b)(9)(C) does not affect the outcome of this appeal because all of the
relevant events occurred prior to December 12, 2017.
3 Under the broadly worded provision of 5 U.S.C. § 2302(b)(9)(C), disclosures of
information to an agency’s IG are protected regardless of their content, as long as such
disclosures are made “in accordance with applicable provisions of law.” Fisher v.
Department of the Interior , 2023 MSPB 11, ¶ 8. However, the nature of the disclosures
to the IG may be relevant at the merits stage of an IRA appeal, when an appellant must
prove the contributing factor element by preponderant evidence and the agency can
defend itself by providing clear and convincing evidence that it would have taken the
same personnel action absent the protected activity. Id., ¶ 8 n.1; see Carr v. Social
Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999) (discussing the factors
relevant to whether an agency has shown by clear and convincing evidence that it would
have taken the same personnel action in the absence of whistleblowing, including the
existence and strength of any motive to retaliate on the part of the agency officials who
were involved in the decision).6
reasonably conclude that the actions evidenced a violation of a law, rule, or
regulation, or one of the other conditions set forth in 5 U.S.C. § 2302(b)(8). Id.
At the jurisdictional stage, the appellant need only assert nonfrivolous
allegations, i.e., allegations that are not vague, conclusory, or facially
insufficient, and that the appellant reasonably believes to be true. Piccolo v.
Merit Systems Protection Board , 869 F.3d 1369, 1371 (Fed. Cir. 2017).
The appellant alleged in a sworn declaration that his disclosures included
informing the Acting DSAC, the ASAC, and the GS in March 2016 that the USSS
agents assaulted his CI in 2012. IAF, Tab 15 at 14-17. The Board has held that
an assault is a violation of criminal law, and a disclosure that an assault occurred
is a disclosure of a violation of law, rule, or regulation. Lewis v. Department of
Commerce, 101 M.S.P.R. 6, ¶ 11 (2005). Here, the administrative judge
discredited the appellant’s disclosures, given that the alleged wrongdoing took
place 4 years before his March 2016 disclosures and involved the USSS and not
his employing agency, ICE. ID at 15. However, those facts do not preclude a
finding that the appellant nonfrivolously alleged that he made a protected
disclosure. See Molinar v. Department of Veterans Affairs , 80 M.S.P.R. 248,
¶¶ 9-10 (1998) (finding that the appellant’s motive for making the disclosure and
the fact that the alleged wrongdoer was not in a position to retaliate against her
did not preclude a finding that the appellant had made a protected disclosure of a
violation of law); Berkley v. Department of the Army , 71 M.S.P.R. 341, 352
(1996) (explaining that, even if some of the appellant’s disclosures concerned
trivial matters, there is no de minimis exception for the violation-of-law aspect of
the protected disclosure standard). Accordingly, we find that the appellant raised
a nonfrivolous allegation that a person in his position could reasonably conclude
that he disclosed evidence of a violation of a law during his March 22, 2016
conversation with the Acting DSAC and ASAC and in the March 23, 2016 email
memorializing the conversation.7
The appellant nonfrivolously alleged that the agency took at least two personnel
actions against him.
The definition of “personnel action” includes, among other things: a detail,
transfer, or reassignment; a decision about pay or benefits; and any other
significant change in duties, responsibilities, or working conditions. 5 U.S.C.
§ 2302(a)(2)(A). Here, the administrative judge found, and we agree, that the
agency subjected the appellant to personnel actions when it denied his leave
requests and reassigned him pending the outcome of the Office of Professional
Responsibility (OPR) investigation against him. ID at 13; see Paul v. Department
of Agriculture, 66 M.S.P.R. 643, 650 (1995) (finding that a reassignment is a
personnel action under 5 U.S.C. § 2302(a)(2)(A)(iv)); Marren v. Department of
Justice, 50 M.S.P.R. 369, 373 (1991) (holding that a denial of annual leave
constitutes a decision concerning benefits under 5 U.S.C.
§ 2302(a)(2)(A)(ix)). The administrative judge also found, and we agree, that the
agency’s initiation of an investigation against him did not constitute a personnel
action over which the Board has IRA jurisdiction. ID at 3; see Sistek v.
Department of Veterans Affairs , 955 F.3d 948, 955 (Fed. Cir. 2020) (concluding
that an investigation is not per se a personnel action under 5 U.S.C.
§ 2302(a)(2)(A)); Spivey v. Department of Justice , 2022 MSPB 24, ¶ 10 (citing
Sistek for this proposition). The administrative judge did not address, however,
the appellant’s allegation that the agency subjected him to a hostile work
environment.
The Board has found that the creation of a hostile work environment may
constitute a personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii). Skarada v.
Department of Veterans Affairs , 2022 MSPB 17, ¶¶ 13, 16. To constitute an
actionable hostile work environment under whistleblower protection statutes, an
agency’s actions must, individually or collectively, have practical and significant
effects on the overall nature and quality of an employee’s working conditions,
duties, or responsibilities. Id., ¶ 16. Allegations that do not individually8
constitute a covered personnel action may together have a cumulative effect that
constitutes a significant change in working conditions. Id., ¶ 18.
In this case, the appellant claims that a hostile work environment was
created through the cumulative effect of numerous agency actions, including
being unable to perform any enforcement action, being “pulled from upcoming
operations and arrests,” being “called a liar,” being referred to OPR for an
investigation,4 and being barred from any communications with his CI. IAF,
Tab 1 at 5, Tab 15 at 19. Because the administrative judge did not have the
benefit of the Board’s decision in Skarada when she issued the initial decision, on
remand, she should consider whether the appellant has made a nonfrivolous
allegation that these circumstances comprised a hostile work environment for
purposes of a personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii).
The appellant has nonfrivolously alleged that his protected disclosures and
activity were a contributing factor in the agency’s decision to take personnel
actions against him.
To satisfy the contributing factor criterion, an appellant need only raise a
nonfrivolous allegation that the fact or content of the protected disclosure or the
protected activity was one factor that tended to affect the personnel action in any
way. See Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶¶ 13-14
4 Although an investigation is not a personnel action on its own under 5 U.S.C.
§ 2302(a)(2)(A), on remand, the administrative judge should consider it in the context
of the appellant’s hostile work environment claim. See Sistek, 955 F.3d at 955
(recognizing that “a retaliatory investigation could contribute toward the creation of a
hostile work environment that is actionable as a significant change in working
conditions”); see, e.g., Spivey, 2022 MSPB 24, ¶¶ 10-11, 13 (agreeing with an
administrative judge that an appellant failed to nonfrivolously allege that an
investigation amounted to a significant change in working conditions when she offered
no allegations or evidence concerning any practical or significant effects that the
investigation had on the overall nature and quality of her working conditions, duties, or
responsibilities). Also, because the appellant alleged here that the investigation was
initiated as a direct result of his protected disclosures, the administrative judge should
consider such evidence in making her determinations concerning whether the agency
met its burden of showing that it would have taken the personnel actions at issue in the
absence of his disclosures. See Sistek, 955 F.3d at 956-57; Russell v. Department of
Justice, 76 M.S.P.R. 317, 323-24 (1997).9
(2016). One way to establish this criterion is by using the knowledge/timing test,
under which an employee may nonfrivolously allege that the disclosure or activity
was a contributing factor in a personnel action through circumstantial evidence,
such as evidence that the official taking 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 id.
Here, the appellant alleged that he informed the Acting DSAC and the
ASAC of his protected activity of filing an IG complaint on March 22, 2016, and
that he informed the GS of this protected activity in an email dated March 23,
2016. IAF, Tab 15 at 17, 27. He also alleged that he made protected disclosures
to the Acting DSAC, the ASAC, and the GS on those dates. Id. The appellant
further asserted that a combination of these individuals denied his leave,
reassigned him, and created a hostile work environment from immediately to
within a few weeks of when they first learned of his protected activity and of
when he made the protected disclosures. IAF, Tab 1 at 5, Tab 15 at 18, 23,
27-28, Tab 16 at 148, 200.
As to the denial of leave, the administrative judge determined that, even if
the appellant had nonfrivolously alleged that he made a protected disclosure, he
did not make a nonfrivolous allegation that it was a contributing factor in the
action because she found that he did not make his disclosures until after he was
told that his leave would be denied. ID at 18. However, the appellant made
several allegations in his sworn declaration that the decision concerning his leave
request was fluid, as other special agents who had been initially assigned to the
USSS assignment were later permitted to decline the detail or take leave, even
though, unlike the appellant, they had not requested leave prior to the assignment.
IAF, Tab 15 at 18. Moreover, the formal denial did not take place until
March 29, 2016, one week after the appellant alleges the responsible officials
first learned of his protected activity and he made the protected disclosures. Id.10
at 23. Under these circumstances, we find that the appellant has nonfrivolously
alleged that the denial of leave occurred within a period of time such that a
reasonable person could conclude that his protected activity and disclosures were
a contributing factor in the personnel action under the knowledge/timing test. See
Schnell v. Department of the Army , 114 M.S.P.R. 83, ¶ 22 (2010) (finding that a
personnel action taken within approximately 1 to 2 years of the appellant’s
disclosures satisfies the knowledge/timing test); see also MaGowan v.
Environmental Protection Agency , 119 M.S.P.R. 9, ¶ 10 (2012) (finding a
nonfrivolous allegation of contributing factor when the appellant alleged that an
agency official asked about her 2003 disclosures shortly before taking a personnel
action against her in 2010).
As to the reassignment, the administrative judge found that, even if the
Acting DSAC decided to reassign the appellant shortly after becoming aware of
his disclosures, the appellant did not allege, and the record does not reflect, any
other circumstantial evidence that he was motivated by reprisal. ID at 19.
However, once an appellant has made a nonfrivolous allegation that the
knowledge/timing test has been met, he has met his jurisdictional burden as to the
contributing factor criterion, and any analysis concerning the supervisors’
motivation would be inappropriate at this stage. See Mason, 116 M.S.P.R. 135,
¶ 26. Because the record reflects that the appellant was reassigned on or about
April 28, 2016, we find that the appellant has nonfrivolously alleged that the
reassignment occurred within a period of time such that a reasonable person could
conclude that his protected activity and disclosures were a contributing factor in
the personnel action under the knowledge/timing test. See Schnell, 114 M.S.P.R.
83, ¶ 22.
Finally, should the administrative judge find that the appellant has
nonfrivolously alleged that the agency subjected him to a hostile work
environment under 5 U.S.C. § 2302(a)(2)(A)(xii), we find that the appellant has
nonfrivolously alleged that the actions comprising his claim occurred within a11
period of time such that a reasonable person could conclude that his protected
activity and disclosures were a contributing factor in the personnel action under
the knowledge/timing test.5 IAF, Tab 1 at 5, Tab 15 at 18-19, Tab 16 at 200; see
Schnell, 114 M.S.P.R. 83, ¶ 22.
Because we conclude that the appellant has made a nonfrivolous allegation
through the knowledge/timing test that his protected activity and disclosures were
a contributing factor in at least two personnel actions, the Board has jurisdiction
over his appeal, and he is entitled to a hearing on the merits. See Salerno,
123 M.S.P.R. 230, ¶ 14.
ORDER
For the reasons discussed above, we remand this case to the field office for
further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
5 We also find that the appellant raised these allegations of a hostile work environment
with OSC. See e.g., IAF, Tab 15 at 34.12 | Labbat_John_PaulNY-1221-17-0003-W-1_Remand_Order.pdf | 2024-05-24 | JOHN PAUL LABBAT v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. NY-1221-17-0003-W-1, May 24, 2024 | NY-1221-17-0003-W-1 | NP |
1,356 | https://www.mspb.gov/decisions/nonprecedential/Fitzpatrick_James_F_NY-1221-19-0098-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES F. FITZPATRICK,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
NY-1221-19-0098-W-1
DATE: May 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
James F. Fitzpatrick , Bronx, New York, pro se.
Daniel Piccaluga , 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 individual right of action (IRA) 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
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 appellant’s petition
for review. However, we VACATE the portion of the initial decision barring this
appeal on res judicata grounds. We AFFIRM the portion of the initial decision
concluding that the Board lacks jurisdiction over this IRA appeal due to the
appellant’s failure to prove that he exhausted his administrative remedies with the
Office of Special Counsel (OSC).
BACKGROUND
The appellant began his term appointment with the agency as a GS-07
Miscellaneous Assistant on July 22, 2018.2 Fitzpatrick v. Department of
Homeland Security , MSPB Docket No. NY-1221-19-0098-W-1, Initial Appeal
File (0098 IAF), Tab 1 at 20. The appellant’s term appointment was subject to a
1-year probationary period. Id. Effective October 13, 2018, the agency
terminated the appellant during his probationary period for post -appointment
reasons related to his conduct and work performance. 0098 IAF, Tab 14 at 20-23.
On October 21, 2018, the appellant filed an appeal with the Board contesting his
probationary termination. Fitzpatrick v. Department of Homeland Security
(Fitzpatrick I), MSPB Docket No. NY-315H-19-0019-I-1, Initial Appeal File
(0019 IAF), Tab 1. The appellant withdrew his appeal, and the administrative
2 The appellant’s position title is referred to as a Sighted Assistant in some documents,
but an SF-50 in the record and his termination letter refer to the position title as a
Miscellaneous Assistant. Fitzpatrick v. Department of Homeland Security , MSPB
Docket No. NY-1221-19-0098-W-1, Initial Appeal File, Tab 1 at 13, 20, Tab 14
at 20-23. 2
judge subsequently dismissed Fitzpatrick I with prejudice. 0019 IAF, Tab 11
at 1-3. The appellant then filed a petition for review with the Board in
Fitzpatrick I.3
During the pendency of his petition for review in Fitzpatrick I, the
appellant filed this IRA appeal, alleging that in reprisal for being a whistleblower,
the agency terminated him during his probationary period. 0098 IAF, Tab 1.
Because it appeared that the Board lacked jurisdiction over this IRA appeal, the
administrative judge issued a jurisdictional notice advising the appellant of his
burden and the types of argument and evidence that he had to file to establish
Board jurisdiction. 0098 IAF, Tab 4. After both parties responded, the
administrative judge issued an initial decision dismissing this appeal. 0098 IAF,
Tabs 6-8, 12-15, 17, Initial Decision (ID) at 1-5. The administrative judge first
found that this appeal was barred by res judicata based on the initial decision in
Fitzpatrick I that dismissed with prejudice the appellant’s Board appeal of his
probationary termination. ID at 2-3. The administrative judge further held that
notwithstanding her finding that the appeal was barred by res judicata, the
appellant failed to satisfy his burden of proving that he exhausted administrative
remedies with OSC before pursuing this IRA appeal. Id. at 3-4. The appellant
has filed a petition for review, to which the agency has responded in opposition,
and the appellant has replied. Petition for Review (PFR) File, Tabs 1-2, 7-8.
ANALYSIS
We vacate the administrative judge’s determination that this appeal is barred by
res judicata.
The doctrine of res judicata serves as a basis to dismiss an appeal over
which the Board has jurisdiction. Merzweiler v. Office of Personnel
Management, 100 M.S.P.R. 442, ¶ 7 (2005). Yet, when Board jurisdiction over
3 The Board has since denied the appellant’s petition for review and affirmed the initial
decision in Fitzpatrick I that dismissed the appeal as withdrawn. Fitzpatrick v.
Department of Homeland Security , MSPB Docket No. NY-315H-19-0019-I-1, Final
Order at 1-3 (Feb. 20, 2024) 3
an appeal is lacking, this doctrine generally will not serve as appropriate grounds
for dismissal. Id. Rather, the appeal should be dismissed for lack of jurisdiction.
Id., ¶¶ 1, 8. As detailed herein, this instant appeal does not fall under the Board’s
jurisdiction and should be dismissed accordingly. Thus, we vacate the initial
decision’s conclusion that this appeal is barred by res judicata.
We affirm the administrative judge’s conclusion that the Board lacks jurisdiction
over this IRA appeal because the appellant failed to prove that he exhausted his
administrative remedies with OSC.
The Board has jurisdiction over an IRA appeal if, inter alia, an appellant
exhausts his administrative remedies before OSC. Graves v. Department of
Veterans Affairs , 123 M.S.P.R. 434, ¶ 12 (2016); see 5 U.S.C. § 1214(a)(3). The
Board, in Chambers v. Department of Homeland Security , 2022 MSPB 8,
¶¶ 10-11, clarified the substantive requirements of exhaustion. The requirements
are met when an appellant has provided OSC with a sufficient basis to pursue an
investigation. The Board’s jurisdiction is limited to those issues that were
previously raised with OSC. However, appellants may give a more detailed
account of their whistleblowing activities before the Board than they did to OSC.
Id. Appellants may demonstrate exhaustion through their initial OSC complaint;
evidence that they amended the original complaint, including but not limited to
OSC’s determination letter and other letters from OSC referencing any amended
allegations; and, their written responses to OSC referencing the amended
allegations. Id. Appellants also may establish exhaustion through other
sufficiently reliable evidence, such as an affidavit or a declaration attesting that
they raised with OSC the substance of the facts in the Board appeal. Id. An
appellant may file an IRA appeal with the Board within 60 days of notification
from OSC that it has closed its investigation, or 120 days after the filing of a
request for corrective action if the appellant has not been notified if OSC will
take action. 5 U.S.C. § 1214(a)(3)(A), (a)(3)(B). If an appellant fails to meet his
burden in proving this exhaustion requirement, the Board shall dismiss the appeal4
for lack of jurisdiction. Boechler v. Department of the Interior , 109 M.S.P.R.
638, ¶¶ 5, 12-13, 16 (2008), aff’d, 328 F. App’x. 660 (Fed. Cir. 2009) (Table).
As the administrative judge correctly found in the initial decision, the
appellant failed to meet his burden of establishing Board jurisdiction over this
IRA appeal, as he did not prove that he exhausted his administrative remedies
with OSC prior to filing this appeal. ID at 3-4. Despite being apprised of this
requirement and what was necessary to meet his burden, the appellant failed to
submit any piece of evidence through his numerous submissions before the
administrative judge outlining his purported whistleblowing disclosure(s) and/or
protected activity and the retaliatory prohibited personnel practice(s) that he
first included in an OSC complaint seeking corrective action or any
subsequent correspondence with OSC related to that complaint. 0098 IAF,
Tabs 4, 6-8, 12-13, 15. As the administrative judge determined, the evidence
before her did not even indicate that the appellant filed a whistleblower reprisal
complaint with OSC before pursuing this IRA appeal. ID at 4.
The appellant’s petition for review includes voluminous documentation in
an attempt to show that he exhausted his administrative remedies with OSC
before filing his IRA appeal in this case.4 PFR File, Tabs 1-2, 8. Many of the
appellant’s submissions on review are duplicative of what he submitted before the
administrative judge or are irrelevant to the question of Board jurisdiction.
The Board has held that it is not required to pore through the record in
order to construe or make sense of pleadings filed by a party. See, e.g.,
Keefer v. Department of Agriculture , 92 M.S.P.R. 476, ¶ 18 n.2 (2002). An
appellant’s submissions that lack clarity run the risk of being found to have failed
4 For the first time on review, the appellant appears to claim that issues with uploading
documents on the Board’s e-appeal system prevented him from proving that he
exhausted his administrative remedies with OSC. PFR File, Tab 8 at 4. The appellant
provides no additional information regarding this allegation, and thus, we find it
insufficient to grant his petition for review. 5
to meet the requisite burden of proof. Luecht v. Department of the Navy ,
87 M.S.P.R. 297, ¶ 8 (2000).
However, the appellant submits two documents on review that he did not
submit before the administrative judge–a November 7, 2018 complaint that the
appellant filed with OSC alleging that an agency official engaged in prohibited
political activity in violation of the Hatch Act5 and an undated retyped email
purportedly from an OSC investigator asking follow-up questions on an
unreferenced OSC complaint that the appellant filed. PFR File, Tab 1 at 6-7,
Tab 2 at 36-41.
The Board will generally 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 failed to show that
circumstances exist for us to consider either of these documents for the first time
on review. The Hatch Act complaint filed by the appellant is dated and signed
November 7, 2018, which is more than 4 months before the jurisdictional record
closed before the administrative judge in this case. 0098 IAF, Tab 4 at 1, 8; PFR
File, Tab 2 at 36. Further, the apparent retyped email from an OSC investigator
is undated and the appellant did not provide any other information in order for us
to ascertain when it became available to him. PFR File, Tab 1 at 6-7.
Notwithstanding, 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
5 The Hatch Act, as amended, limits certain political activities of Federal employees, as
well as some state, D.C., and local government employees, who work with federally
funded programs. https://osc.gov/Services/Pages/HatchAct.aspx (last visited May 23,
2024); Hatch Act of 1939, Pub. L. No. 76-252, 53 Stat. 1147 (Aug. 2, 1939); Hatch Act
Modernization Act of 2012, Pub. L. No. 112-230, 126 Stat. 1616 (Dec. 28, 2012). The
law’s objectives are to ensure that Federal programs are administered in a nonpartisan
fashion, to protect Federal employees from political coercion in the workplace, and to
ensure that Federal employees are advanced based on merit and not based on political
affiliation. https://osc.gov/Services/Pages/HatchAct.aspx .6
Administration, 3 M.S.P.R. 345, 349 (1980). Even when considering these
additional documents as new evidence, the appellant still has not established that
he exhausted administrative remedies with OSC before filing this IRA appeal.
Proof that the appellant filed a complaint with OSC alleging that an agency
official engaged in prohibited political activity in violation of the Hatch Act does
not prove that he also filed a whistleblower reprisal complaint with OSC in which
he gave OSC a sufficient basis to pursue an investigation which might lead to
corrective action.6 Even if the appellant intended for his Hatch Act complaint to
be construed as a whistleblower reprisal complaint, he does not sufficiently allege
therein that the agency terminated him during his probationary period in reprisal
for making a whistleblowing disclosure and/or engaging in protected activity.
PFR File, Tab 2 at 36-41. The purported retyped email from an OSC investigator
mentions that the appellant was terminated, but it does not indicate the nature of
the complaint that he filed with OSC, the date it was filed, or if OSC is taking
action or closing its investigation, nor does it identify any alleged whistleblowing
disclosure(s) and/or protected activity. PFR File, Tab 1 at 6-7.
Therefore, we find no reason to disturb the portion of the initial decision
holding that the Board lacks jurisdiction over this IRA appeal because the
appellant failed to meet his burden of proving that he exhausted his
administrative remedies with OSC. Boechler, 109 M.S.P.R. 638, ¶¶ 5, 12-13, 16.
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
6 The process of filing a complaint with OSC alleging a violation of the Hatch Act is
distinct from the OSC complaint process seeking corrective action for an action
allegedly taken in reprisal for making a whistleblowing disclosure and/or engaging in
protected activity. 5 C.F.R. § 1800.1(c), (d).
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 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
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 particular8
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 9
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. The court of appeals must receive your petition for10
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Fitzpatrick_James_F_NY-1221-19-0098-W-1__Final_Order.pdf | 2024-05-24 | JAMES F. FITZPATRICK v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. NY-1221-19-0098-W-1, May 24, 2024 | NY-1221-19-0098-W-1 | NP |
1,357 | https://www.mspb.gov/decisions/nonprecedential/Beauchamp_RobertPH-0752-19-0403-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT BEAUCHAMP,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
PH-0752-19-0403-I-1
DATE: May 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Irene K. Gorczyca , Walpole, Massachusetts, for the appellant.
Jason A. Van Wagner , Esquire, Joint Base Andrews, 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 the appellant’s constructive removal appeal for lack of jurisdiction. On
petition for review, the appellant argues that the administrative judge mistakenly
found that the agency had issued a final decision, that his indefinite suspension
violated a contract between him and the agency concerning his placement on
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
administrative leave, and that the administrative judge was biased. 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 | Beauchamp_RobertPH-0752-19-0403-I-1__Final_Order.pdf | 2024-05-24 | ROBERT BEAUCHAMP v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. PH-0752-19-0403-I-1, May 24, 2024 | PH-0752-19-0403-I-1 | NP |
1,358 | https://www.mspb.gov/decisions/nonprecedential/Castro_Laureano_Eleazar_I_NY-0752-19-0132-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ELEAZAR I. CASTRO LAUREANO,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
NY-0752-19-0132-I-1
DATE: May 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jose B. Velez Goveo , Esquire, Bayamon, Puerto Rico, for the appellant.
Robert John Steeves, Jr. , Esquire, New York, New York, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal. On petition for review, the appellant argues that he was
unable to obtain the evidence that he needed to support his argument that
problems with the agency’s new phone system were to blame for the bad or
dropped calls.2 He also challenges the administrative judge’s findings on each
specification, generally arguing that the recordings of the calls support his
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
version of events, rather than the agency’s, and contending that the agency
therefore failed to prove the charge. 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 The record shows that the appellant filed discovery requests with the agency. Initial
Appeal File, Tabs 7, 11. He did not file a motion to compel discovery. To the extent
that the appellant is arguing that he was denied discovery, because he did not file a
motion to compel below, his argument that he was denied discovery provides no basis
for reversal of the initial decision. See Szejner v. Office of Personnel Management ,
99 M.S.P.R. 275, ¶ 5 (2005 ) (finding that an appellant’s failure to file a motion to
compel discovery precluded him from raising an agency’s failure to respond to
discovery for the first time on petition for review), aff’d, 167 F. App’x 217 (Fed. Cir.
2006).
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 | Castro_Laureano_Eleazar_I_NY-0752-19-0132-I-1__Final_Order.pdf | 2024-05-24 | ELEAZAR I. CASTRO LAUREANO v. DEPARTMENT OF THE TREASURY, MSPB Docket No. NY-0752-19-0132-I-1, May 24, 2024 | NY-0752-19-0132-I-1 | NP |
1,359 | https://www.mspb.gov/decisions/nonprecedential/Williams_DwightAT-0752-19-0388-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DWIGHT WILLIAMS, SR.,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0752-19-0388-I-1
DATE: May 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tiombe Tallie Carter , Esquire, Montebello, New York, for the appellant.
Amee Patel , Decatur, Georgia, 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 the appeal of his removal taken under 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). For the reasons set forth below, 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 is DISMISSED as untimely filed without good cause shown. 5 C.F.R.
§ 1201.114(e), (g).
BACKGROUND
On February 11, 2019, the agency issued the appellant a decision notice
removing him pursuant to 38 U.S.C. § 714 for performance and conduct-related
reasons. Initial Appeal File (IAF), Tab 10 at 9-11. The removal was to take
effect on March 1, 2019. However, 1 day prior to the effective date of the
removal, the appellant retired. Id. at 8-9. Subsequently, on March 30, 2019, the
appellant filed the instant Board appeal, alleging that he was forced to retire.
IAF, Tab 1 at 5. After providing the appellant with notice of the applicable
standards for proving timeliness and an opportunity to establish that the appeal
was timely filed or that the delay should be excused, the administrative judge
issued an initial decision dismissing the appeal as untimely filed under the
10-business-day deadline prescribed by 38 U.S.C. § 714(c)(4)(B). IAF, Tab 11
at 2-3, Tab 14, Initial Decision (ID) at 1-3.
The initial decision specifically stated that the deadline to file a petition for
review was July 24, 2019. ID at 3. The appellant’s representative filed this
petition for review on July 25, 2019, at 1:06 a.m. Eastern Daylight Time (EDT).
Petition for Review (PFR) File, Tab 1. The Board’s online form notified the
appellant’s representative that the petition was untimely filed, set forth the
criteria to show good cause for an untimely filing, asked her to provide any facts
or circumstances related to the untimely filing, and invited argument as to why
the Board should find good cause for the delay. Id. at 3. In response, the
appellant’s representative stated that she was late “because [she] was using the
state of Georgia timezone (sic), which is the original timezone (sic) for this
appeal.” Id. at 4. Later, she filed a motion to waive the time limit, reiterating
that she was “operating under the time zone for the state of Georgia,” which she2
asserted is Central Standard Time (CST). PFR File, Tab 3 at 4. The agency has
not responded to the appellant’s petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
A petition for review generally must be filed within 35 days after the date
of the issuance of the initial decision or, if the appellant shows that the initial
decision was received more than 5 days after the initial decision was issued,
within 30 days after the date the appellant received 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. § 1201.114(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.
Rivera v. Social Security Administration, 111 M.S.P.R. 581, ¶ 4 (2009) (citing
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.
Rivera, 111 M.S.P.R. 581, ¶ 4 (citing 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)).
The deadline for filing a petition for review in this appeal was July 24,
2019. ID at 3. The appellant’s representative filed the petition for review on
July 25, 2019, at 1:06 a.m. EDT. PFR File, Tab 1. While the delay here is
approximately 1 hour, the Board has consistently denied a waiver of its filing
deadline when the delay is minimal but a good reason for the delay is not shown.
Gaetos v. Department of Veterans Affairs, 121 M.S.P.R. 201, ¶ 6 (2014)
(dismissing a petition for review that was filed just over 3 hours late because the3
appellant did not submit any evidence or argument addressing the untimeliness of
the petition or the existence of good cause for the filing delay); see Dade v. Office
of Personnel Management, 45 M.S.P.R. 12, 14-15 (1990) (refusing to waive a
1-day filing delay when the appellant offered no credible basis for his assertion
that he had deposited his petition in the mailbox earlier than the postmark
indicated), aff’d, 923 F.2d (Fed. Cir. 1990) (Table). This is especially true when,
as in this appeal, the appellant is represented, and even a minimal filing delay
will not outweigh an appellant’s failure to show that he acted with due diligence
in filing his petition for review. See Gaetos, 121 M.S.P.R. 201, ¶ 6; see also
Sofio v. Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981) (stating that an
appellant is responsible for the errors of his counsel because he chose the
representative).
Here, the appellant’s representative has not offered a persuasive excuse,
showed that she acted with diligence, or set forth circumstances beyond her
control that affected her ability to comply with the filing limit. The only
explanation provided by the appellant’s representative is a befuddling claim that
she was filing pursuant to Georgia’s time zone, which she appears to believe is in
the Central Time Zone. PFR File, Tab 1 at 4, Tab 3 at 4. She is mistaken, as the
entirety of Georgia is in the Eastern Time Zone, which is the same time
zone as Washington, D.C., and New York, where she is located. See
https://www.timetemperature.com/tzus/eastern_time_zone.shtml (last visited
May 24, 2024); IAF, Tab 8 at 3. Even if the appellant’s representative was
correct in her understanding of time zones, it is irrelevant, as she is located in
New York, and it is well established that the timeliness of a pleading filed
through e-Appeal Online is based on the time zone where the pleading is being
filed. 5 C.F.R. § 1201.14(m)(1) (2019) (explaining that, while all pleadings will
be time stamped with Eastern Time by the e-Appeal Online system, the timeliness
of pleadings is determined based on the time zone from which the pleading was
submitted); see Henderson v. National Aeronautics and Space Administration,4
116 M.S.P.R. 96, ¶ 8 (2011) (finding an agency’s petition to be timely filed
because it was filed before 12:00 a.m. CST, and the agency was located in the
Central Time Zone).
The appellant’s representative erred not only in her placement of Georgia
in the Central Time Zone, but also in her failure to recognize that the Board’s
regulations provide that the time of filing through e-Appeal Online is determined
based on the location from which the pleading was filed, which in this case was
New York, in the Eastern Time Zone. 5 C.F.R. § 1201.14(m)(1) (2019). A
review of the Board’s regulations would have rectified this error. Accordingly,
we find that the untimely filing of the petition for review was due solely to a lack
of due diligence and ordinary prudence on the part of the appellant’s
representative and thus find that the appellant has not established good cause for
the untimely filing of his petition for review.
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 removal 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
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
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. 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.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. 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 | Williams_DwightAT-0752-19-0388-I-1__Final_Order.pdf | 2024-05-24 | null | AT-0752-19-0388-I-1 | NP |
1,360 | https://www.mspb.gov/decisions/nonprecedential/Carroll-Harris_JCH-1221-15-0543-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
J. CARROLL-HARRIS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-1221-15-0543-W-1
DATE: May 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Benjamin Whitfield, Jr. , Esquire, Detroit, Michigan, for the appellant.
Amy C. Slameka , Detroit, Michigan, 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 her request for corrective action. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was formerly employed as a GS-5 Medical Support Assistant
(MSA) at the John D. Dingell Veterans Affairs Medical Center in Detroit,
Michigan. Initial Appeal File (IAF), Tab 1 at 1, 9. She was removed, effective
March 13, 2015, for inappropriate and unprofessional behavior, failure to follow a
direct order, and absence without leave. IAF, Tab 1 at 13-15, Tab 9 at 12.
Following her removal, the appellant filed a complaint with the Office of Special
Counsel (OSC) alleging that the agency’s decisions to remove her and to take a
number of other personnel actions against her prior to her removal were in
retaliation for her disclosure and protected activities during the period from 2004
through 2014. IAF, Tab 1 at 20-32. After receiving OSC’s close-out letter
informing her of her right to seek corrective action from the Board, IAF, Tab 11
at 57, the appellant timely filed the instant individual right of action (IRA)
appeal, IAF, Tab 1.
After holding the requested hearing, the administrative judge issued an
initial decision denying the appellant’s request for corrective action. IAF,
Tab 62, Initial Decision (ID) at 1, 17. In the decision, the administrative judge
determined that the appellant’s complaint to the agency’s Office of Inspector2
General (OIG) in 2004 or 2005 was a protected disclosure. ID at 7-8. However,
she found that the appellant’s complaints to the Department of Labor (DOL) in
2012 and the agency’s Equal Employment Opportunity (EEO) office in 2014 were
not protected disclosures or activities. ID at 8-11.
Regarding the personnel actions taken against the appellant, the
administrative judge determined that the November 2014 reassignment was
voluntary and made at the appellant’s request, and thus was not a personnel
action. ID at 11-13. Concerning the two remaining personnel actions—the
appellant’s 2012 nonselection for an MSA position and her March 2015 removal
—the administrative judge determined that the appellant failed to meet her burden
of proving that her OIG complaint was a contributing factor in the agency’s
decision to take, or not to take, either personnel action. ID at 13-16. Because the
administrative judge found that the appellant failed to meet her burden, she
denied the appellant’s request for corrective action. ID at 16-17. Finally, the
administrative judge did not address the appellant’s claim that the agency
committed harmful procedural error by removing her, noting that the Board does
not have independent jurisdiction over claims of harmful procedural error in the
context of an IRA appeal. ID at 17 n.5.
DISCUSSION OF ARGUMENTS ON REVIEW2
The appellant has filed a timely petition for review challenging the
administrative judge’s findings that her DOL and EEO complaints were not
protected activities and that her November 2014 reassignment was voluntary.
Petition for Review (PFR) File, Tab 1 at 4-7, 13-14. She also challenges the
administrative judge’s finding that her protected activity of filing a complaint
with OIG was not a contributing factor in her nonselection and removal,
rearguing that the deciding official had constructive knowledge of her disclosure.
Id. at 8-10. Additionally, the appellant argues that the agency’s witnesses were
2 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.3
not credible. Id. at 10. Finally, she challenges the merits of the agency’s
removal decision and of a number of other personnel actions taken against her
prior to her removal, argues that the penalty of removal was unreasonable, and
reasserts her claim that the agency committed harmful error in enacting her
removal. PFR File, Tab 1 at 9-12. The agency has filed a response in opposition
to the petition for review, and the appellant has not filed a reply to the agency’s
response. PFR File, Tab 2.
The appellant’s 2014 EEO complaint was not a protected activity.
The Board has jurisdiction over an IRA appeal if the appellant exhausts her
administrative remedies before OSC and makes nonfrivolous allegations that
(1) she made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in
protected activity as described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C),
or (D), and (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).
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 her position would believe evidenced one of
the categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). Id., ¶ 6. 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.
In response to the administrative judge’s order to show cause, the appellant
submitted a copy of her close-out letter from OSC which notified her of her
Board appeal rights. IAF, Tab 6, Tab 11 at 57. After reviewing the close-out
letter as well as the appellant’s OSC complaint, the administrative judge issued an4
order finding that the appellant had exhausted her administrative remedies with
OSC regarding the following disclosures or activities: (1) her complaint to the
OIG in 2004 or 2005; (2) her 2012 complaint to the DOL; and (3) her 2014 EEO
complaint. IAF, Tab 1 at 20-32, Tab 44 at 3. Additionally, she found that the
appellant proved OSC exhaustion regarding the following personnel actions:
(1) her 2012 nonselection; (2) her November 18, 2014 reassignment or transfer;
and (3) her 2015 removal. Neither party challenges the administrative judge’s
determination that the appellant exhausted these claims with OSC, and we see no
reason to disturb this finding. IAF, Tab 44 at 3.
Although difficult to discern, the appellant appears to argue on review that
the administrative judge’s finding that her EEO and DOL complaints were not
protected activities was erroneous because both complaints were directed at
remedying violations of “law, rule or regulation.” PFR File, Tab 1 at 5-6.
Specifically, regarding her 2014 EEO complaint in which the appellant alleged
violations of her right to reasonable accommodation, she argues that because her
complaint asserted that she was treated unequally and was denied equal
employment opportunities, it evidenced wrongdoing under section 2302(b)(8).
Id. at 5.
The Board lacks IRA jurisdiction over claims of retaliation for an
individual’s appeals, complaints, grievances, and disclosures alleging that she
was the victim of discrimination in violation of the Rehabilitation Act of 1973
(Rehabilitation Act). McCray v. Department of the Army , 2023 MSPB 10, ¶¶ 12,
15-22, 25-30; see Edwards v. Department of Labor , 2022 MSPB 9, ¶¶ 10-25
(concluding that allegations of retaliation for disclosures and claims of Title VII
violations do not fall within the scope of section 2302(b)(8) or section 2302(b)(9)
(A)(i)), aff’d, No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023). An
allegation that an appellant was denied reasonable accommodation arises under
the Rehabilitation Act. Haas v. Department of Homeland Security , 2022 MSPB
36, ¶ 28. Therefore, we agree with the administrative judge that the Board lacks5
jurisdiction over the appellant’s EEO complaints and disclosures related to the
alleged denial of reasonable accommodation. ID at 10-11.
On review, aside from reasserting her argument that seeking vindication for
her own personal EEO-related complaints and perceived claims of discrimination
“could reasonably evidence a violation of law, rule or regulation,” she has not
offered any new support for her argument that her EEO complaint disclosed a
violation of section 2302(b)(8). Accordingly, we find no error in the
administrative judge’s findings that the appellant’s EEO complaint did not
constitute protected activity.
The appellant has not demonstrated that her reassignment was involuntary.
On review, the appellant also reasserts that her November 17, 2014
relocation from the MSA position in the nursing home unit to the same day
surgery unit was a “transfer” and not a “reassignment” because the positions were
in the same job series, and that the transfer was involuntary. PFR File, Tab 1
at 6-7, 13-14; IAF, Tab 45 at 4. W e find no error in the administrative judge’s
determination that this was a “reassignment” and that it was voluntary and was
thus not a personnel action because it was undertaken as a result of the
appellant’s request for a reasonable accommodation. ID at 11-13. The record
reflects that, starting in September 2014, the appellant initiated a reasonable
accommodation request, and the resulting interactive process culminated in the
recommendation that the appellant be transferred to a different unit as a
reasonable accommodation. IAF, Tab 40 at 85-100. The appellant agreed to the
transfer, which became effective on November 17, 2014. Id. at 105-06.3
3 On cross-examination at the hearing, the appellant testified that she included a written
note below her signature on the reasonable accommodation request form, IAF, Tab 40 at
106, but admitted that she could not read what her note said. IAF, Tab 60, Hearing
Compact Disk 2 (testimony of the appellant). She did not argue below, nor does she
argue on review, that she signed the form under protest or that the illegible note reflects
any statement of protest against, or disagreement with, the terms of the transfer
agreement. She also acknowledged on cross-examination that her transfer to the new
position did not result in a reduction in pay or grade. Id. Reassignments not involving
a reduction in pay or grade are not appealable to the Board. Liebeck v. Department of6
The administrative judge carefully considered, and rejected, the appellant’s
argument that her consent to the reassignment was involuntary or coerced. ID
at 11-13. Whether the resulting move could be more accurately described as a
“reassignment” or a “transfer” is inconsequential; the change in the appellant’s
duty location was undertaken voluntarily, at her request, and with her consent .
As the administrative judge noted, a voluntary reassignment does not constitute a
“personnel action” under section 2302(a)(2)(A). ID at 11-12; see Jay v.
Department of the Navy , 90 M.S.P.R. 635, ¶ 12 (2001) (acknowledging that a
voluntary action does not constitute a “personnel action” under 5 U.S.C.
§ 2302(a)(2)(A)), aff’d per curiam , 51 F. App’x 4 (Fed. Cir. 2002); Comito v.
Department of the Army , 90 M.S.P.R. 58, ¶ 13 (2001) (determining that a
separation pursuant to a voluntary resignation is not a personnel action under
5 U.S.C. § 2302(a)(2)). Accordingly, we discern no reason to disturb the
administrative judge’s well-reasoned findings in this regard. See Crosby v. U.S.
Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the
administrative judge’s findings when the administrative judge considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (same).
The administrative judge correctly determined that the appellant’s complaint to
DOL in 2012 was not protected activity under 5 U.S.C. § 2302(b)(9)(A)(i).
Regarding the appellant’s complaint to DOL in 2012 challenging her
nonselection for a number of vacancies, she reasserts her argument raised below
that because her complaint implicated the proper application of veterans’
preference laws—including the pass-over notification requirement—it was
directed at remedying a violation of section 2302(b)(8), and consequently,
constituted protected activity under 5 U.S.C. § 2302(b)(9)(A)(i).4 PFR File,
Tab 1 at 5-6, 13-14; IAF, Tab 38 at 6. The administrative judge concluded that
Veterans Affairs, 77 M.S.P.R. 696, 698 (1998).7
the substance of the appellant’s complaint to DOL in 2012 did not encompass any
of the types of wrongdoing identified in section 2302(b)(8) and that asserting a
Veterans Employment Opportunities Act of 1998 (VEOA) violation did not
automatically merit section 2302(b)(8) protection because disclosing individual
violations of VEOA did not “serve the public interest” or invoke broad public
interest concerns. ID at 8-10 (citing Spruill v. Merit Systems Protection Board ,
978 F.2d 679, 692 (Fed. Cir. 1992)). We agree.
Only appeals, complaints, and grievances seeking to remedy whistleblower
reprisal are covered under section 2302(b)(9)(A)(i). Bishop v. Department of
Agriculture, 2022 MSPB 28, ¶ 15; Mudd v. Department of Veterans Affairs ,
120 M.S.P.R. 365, ¶ 7 (2013). Filing a complaint in which the appellant did not
seek to remedy whistleblower reprisal is outside the scope of section 2302(b)(9)
(A)(i), even if the complaint disclosed wrongdoing under section 2302(b)(8).
Bishop, 2022 MSPB 28, ¶¶ 15-16. As the administrative judge correctly noted,
the substance of the appellant’s complaint to DOL concerned her allegation that
the agency violated her individual veterans’ preference rights under VEOA by
failing to select her for a number of positions. ID at 8-10; IAF, Tab 57 at 16
(identifying the appellant’s complaint that she had been “passed over several
times in the past two years” in a correspondence to DOL), Tab 59 at 18-19
(complaining to DOL that she had applied for several positions and had been
“continuously denied” employment). Such a complaint is not directed at
4 As the administrative judge noted, the appellant filed her DOL complaint the day
before the Whistleblower Protection Enhancement Act of 2012 (WPEA) became
effective, and DOL acknowledged receipt the following day. ID at 8 n.2; IAF, Tab 59
at 15. However, all of the information gathered by DOL regarding the complaint was
compiled over the following 4 months, and the allegedly retaliatory act—the appellant’s
removal—was not until 2015. IAF, Tabs 57-59; ID at 8 n.2. Accordingly, we agree
that the administrative judge correctly applied the WPEA in analyzing this alleged
protected activity. See Pridgen v. Office of Management and Budget , 2022 MSPB 31,
¶¶ 49-51 (finding that when an appellant engaged in activities falling within the
expanded scope of the WPEA before its December 27, 2012 effective date, and the
agency took personnel actions after that date, the Board would apply the WPEA).8
remedying whistleblower reprisal, and thus does not constitute protected activity
under section 2302(b)(9)(A)(i).5
The administrative judge properly concluded that the appellant’s OIG complaint
was not a contributing factor in her nonselection or removal.
The administrative judge found that, even though the appellant’s complaint
to OIG in 2004 or 2005 was protected, she nonetheless failed to prove that it was
a contributing factor in the agency’s decisions not to select her for the MSA
position in 2012, and to remove her in 2015. ID at 7-8, 13-16.6 Because the
administrative judge found that the appellant failed to meet her burden of
establishing a prima facie case of whistleblowing retaliation, she denied the
appellant’s request for corrective action. ID at 16-17.
To prevail in an IRA appeal, an appellant also must prove by preponderant
evidence that her disclosure was a contributing factor in a personnel action.
5 U.S.C. § 1221(e)(1); Smith v. Department of the Army , 2022 MSPB 4, ¶ 19. To
prove that a disclosure was a contributing factor in a personnel action, the
appellant need only demonstrate the fact of, or the content of, the disclosure was
one of the factors that tended to affect the personnel action in any way.
Covington v. Department of the Interior , 2023 MSPB 5, ¶ 43. One way to
establish contributing factor is the knowledge/timing test. Smith, 2022 MSPB 4,
¶ 19. The appellant can satisfy the test by proving that the official taking the
5 On December 12, 2017, the National Defense Authorization Act of 2018 amended
5 U.S.C. § 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” is also protected. Edwards, 2022 MSPB 9, ¶ 29. All
of the relevant events in this appeal took place prior to December 12, 2017. We need
not decide whether the appellant’s 2012 DOL complaint falls within the coverage of the
amended section 2302(b)(9)(C) because the statutory provision is not retroactive. Id.,
¶¶ 29-33.
6 Because the administrative judge properly found that the appellant’s disclosure to the
OIG was protected under 5 U.S.C. § 2302(b)(9)(8), we need not consider whether it was
also a protected activity under 5 U.S.C. § 2302(b)(9)(C). See Pridgen, 2022 MSPB 31,
¶ 62 (clarifying that under 5 U.S.C. § 2302(b)(9)(C), any disclosure of information to
an agency’s OIG is protected, regardless of the content).9
action had actual or constructive knowledge of the disclosure, and the action
occurred within a period of time such that a reasonable person could conclude
that the disclosure was a contributing factor in the personnel action. See id.
(addressing proof of actual knowledge); Abernathy v. Department of the Army ,
2022 MSPB 37, ¶ 15 (indicating that the knowledge portion of the
knowledge/timing test can be met with allegations of either actual or constructive
knowledge). However, the knowledge/timing test is not the only way to prove
contributing factor. Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 14
(2012). The Board will also 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 towards the officials
taking the action, and whether these individuals had a desire or motive to retaliate
against the appellant. Id., ¶ 15.
In finding that the appellant failed to meet her burden of proving
contributing factor, the administrative judge determined that the appellant failed
to prove contributing factor based on the knowledge/timing test, citing hearing
testimony from all of the agency officials involved in the 2012 nonselection and
2015 removal decisions stating, unequivocally, that they had no knowledge of the
appellant’s complaint to OIG, which occurred at least 7 years before the earlier of
the two personnel actions. ID at 14-15. Specifically, the administrative judge
noted that the removal proposing official, who was also the selecting official for
the 2012 nonselection vacancy and the appellant’s second-level supervisor,
convincingly testified that she had no knowledge of the appellant’s OIG
complaint. ID at 14; IAF, Tab 60, Hearing Compact Disk (HCD) 2 (testimony of
the removal proposing official). The administrative judge also cited as persuasive
the removal deciding official’s testimony that she was unaware of the OIG
complaint, and the fact that she did not become the Medical Director until at least
3 years after the disclosure, when the appellant was no longer employed by the
agency. ID at 14-15; HCD 2 (testimony of the removal deciding official). 10
The administrative judge also concluded that to whatever extent the
appellant was arguing that either official had constructive knowledge of her OIG
complaint, nothing in the record indicated that anyone conveyed any information
about the OIG complaint to either official in an effort to influence their decisions
to take either personnel action against the appellant. ID at 15-16. Additionally,
she specifically rejected the appellant’s testimony that an agency EEO official
commented about her purported whistleblowing activity, noting that nothing in
the record supported the appellant’s claim that the official made the statement and
the appellant had not alleged that the official conveyed that information to any of
the agency officials responsible for the taking the challenged personnel actions.
ID at 15-16. Consequently, the administrative judge concluded that nothing in
the record or documentary evidence suggested that the agency officials involved
in the appellant’s 2012 nonselection or her 2015 removal had constructive
knowledge of the appellant’s OIG complaint or were otherwise influenced by any
official with knowledge of her protected activity. ID at 16. The administrative
judge’s findings in this regard are implicitly based upon the demeanor of these
individuals when they testified at the hearing, and thus, we defer to her findings.
See Purifoy v. Department of Veterans Affairs , 838 F.3d 1367, 1373 (Fed. Cir.
2016) (stating that the Board must defer to an administrative judge’s
determinations when they are “necessarily intertwined” with an analysis of the
witness’s demeanor).
Regarding other potential evidence, including the strength or weakness of
the agency’s reasons for taking the personnel action, whether the whistleblowing
was personally directed towards the officials taking the action, and whether these
individuals had a desire or motive to retaliate against the appellant, we have
reviewed the record and still conclude that the appellant did not prove
contributing factor. Dorney, 117 M.S.P.R. 480, ¶ 15. With respect to the
appellant’s 2012 nonselection, the removal proposing official denied any
knowledge about the decision not to select the appellant. HCD 3 (testimony of11
the removal proposing official). The removal deciding official also testified that
she had no role in the 2012 nonselection decision. HCD 2 (testimony of the
removal deciding official).
Additionally, although the agency improperly failed to select the appellant
for the 2012 MSA position in favor of a non-veteran without requesting pass-over
authority from the Office of Personnel Management, the record reflects that this
determination was the result of the agency’s mistaken belief that the pass-over
requirement did not apply to the “hybrid” Title 38 hiring authority used for the
position, and not because of any retaliatory motive. IAF, Tab 57 at 2-7, 17-18.
The agency later issued new interim procedures clarifying that pass-over
notification was required for all hybrid Title 38 vacancies. Id. at 31-35, 37. The
fact that the removal proposing official later selected the appellant for the MSA
position under another vacancy announcement in April 2013 further supports that
the appellant’s 2012 nonselection was the result of a mistaken misapplication of
the pass-over procedures, as opposed to any potential retaliatory motive by
agency officials. IAF, Tab 40 at 337-40; HCD 2 (testimony of the removal
proposing official).
The agency’s stated reasons for removing the appellant were also strong.
The agency removed the appellant for charges of inappropriate and
unprofessional behavior, failure to follow a direct order, and absence without
leave. IAF, Tab 9 at 16, 20-22. The removal deciding official testified without
contradiction that her decision to sustain the removal was based solely on the
charged misconduct. HCD 2 (testimony of the removal deciding official). She
reviewed each of the specifications of each charge and explained how each
instance of misconduct was supported by the provided evidence. HCD 2
(testimony of the removal deciding official); IAF, Tab 1 at 9-15. She also
testified that she considered the relevant factors set forth in Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981), in deciding to remove the
appellant, that the appellant’s misconduct was “egregious,” and that the ongoing12
nature of her misconduct, despite repeated counseling, supported her conclusion
that removal was warranted. HCD 2 (testimony of the deciding official); IAF,
Tab 1 at 13; see Coyle v. Department of the Treasury , 62 M.S.P.R. 241, 246-47
(sustaining the appellant’s removal based on a charge of continuous
unprofessional conduct); Hernandez v. Department of Agriculture , 83 M.S.P.R.
371, ¶¶ 2,7-13 (1999) (finding that failure to follow instructions is a serious
charge and, together with a charge of fiscal irregularities, warranted an
appellant’s removal); Wilkinson v. Department of the Air Force , 68 M.S.P.R. 4, 7
(1995) (acknowledging that a failure to follow leave requesting procedures can be
a serious act of misconduct); Redfearn v. Department of Labor , 58 M.S.P.R. 307,
316 (1993) (holding that an employee’s deliberate refusal to follow supervisory
instructions constitutes serious misconduct that cannot be condoned).
Finally, the appellant’s OIG complaint was not directed at any of the
officials responsible for taking either challenged personnel action. The 2004 OIG
complaint concerned the improper handling of patient records. IAF, Tab 1 at 26,
Tab 11 at 63, Tab 26 at 90. The removal proposing official testified without
contradiction that she was in a different reporting chain and did not manage
MSAs at the time of the appellant’s purported OIG disclosure, and there is no
other indication in the record that this disclosure was personally directed at the
removal proposing or deciding officials. HCD 2 (testimony of the removal
proposing official).
Aside from generally arguing that the administrative judge erred in making
these findings and taking issue with her credibility findings, the appellant does
not otherwise directly challenge these findings on review, and we see no reason to
disturb them. See Crosby, 74 M.S.P.R. at 106; Broughton, 33 M.S.P.R. at 359.
Accordingly, we find no error in the administrative judge’s finding that the
appellant failed to prove that her OIG complaint was a contributing factor in her
2012 nonselection and 2015 removal. 13
The appellant’s remaining arguments do not provide a basis for Board review.
Finally, on review, the appellant raises a number of additional arguments,
including generally questioning the credibility of the agency’s witnesses,
challenging the merits of the underlying removal action and the individual acts of
misconduct detailed in the removal proposal and decision letters, and alleging
harmful error and due process violations in the agency’s removal decision. PFR
File, Tabs 10-12. As previously noted, the administrative judge found the
testimony of the agency witnesses credible, and we must defer to those findings.
Purifoy, 838 F.3d at 1373. Regarding the challenges to the merits of the removal
action and other personnel actions, the Board lacks the authority in an IRA appeal
to adjudicate the merits of the underlying personnel action; rather, our
jurisdiction is limited to adjudicating the whistleblower allegations.7 Lu v.
Department of Homeland Security , 122 M.S.P.R. 335, ¶ 7 (2015). Regarding the
appellant’s harmful error and due process claims, as the administrative judge
correctly noted, the Board does not have jurisdiction over such claims in the
context of an IRA appeal. ID at 17 n.5; see Benton-Flores v. Department of
Defense, 121 M.S.P.R. 428, ¶ 6 n.1 (2014); McCarthy v. International Boundary
and Water Commission , 116 M.S.P.R. 594, ¶ 27 (2011), aff’d, 497 F. App’x 4
7 As the administrative judge correctly noted, an employee who is subjected to an
appealable personnel action and claims whistleblowing retaliation may elect to pursue
one, and only one, of the following remedies: (1) an appeal to the Board; (2) a
grievance filed under the provisions of a negotiated grievance procedure; or (3) a
complaint seeking corrective action from OSC. Requena v. Department of Homeland
Security, 2022 MSPB 39, ¶ 7; 5 C.F.R. § 1209.2(d)(1). The remedy first sought by an
aggrieved employee is deemed an election of that procedure and precludes pursuing the
matter in other fora. Requena, 2022 MSPB 39, ¶ 8. We agree with the administrative
judge’s determination that the appellant elected to seek corrective action from OSC, and
that consequently, the Board only has jurisdiction to consider her appeal as an IRA
appeal. ID at 3-4. After the initial decision was issued in this case, the Board clarified
that the election of forum procedures do not apply to supervisory employees. Requena,
2022 MSPB 39, ¶¶ 11-14. Because there is no evidence that the appellant was a
supervisor, we find that the Requena decision does not affect the administrative judge’s
reasoning.14
(Fed. Cir. 2012). For the foregoing reasons, we deny the petition for review and
affirm the initial decision.
NOTICE OF APPEAL RIGHTS8
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:
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.15
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 any16
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’s17
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 18
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.19 | Carroll-Harris_JCH-1221-15-0543-W-1__Final_Order.pdf | 2024-05-24 | null | CH-1221-15-0543-W-1 | NP |
1,361 | https://www.mspb.gov/decisions/nonprecedential/Caneda_Manuel_T_SF-0831-22-0528-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MANUEL CANEDA,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0831-22-0528-I-1
DATE: May 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rufus F. Nobles , Zambales, Philippines, for the appellant.
Carla Robinson and Jane Bancroft , Washington, D.C., 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
affirmed the Office of Personnel Management’s reconsideration decision
regarding the appellant’s request for a Civil Service Retirement System (CSRS)
annuity. On petition for review, the appellant argues that he never contributed to
the CSRS during his service at Subic Bay, Philippines, or in the years since, but
he should have been allowed to make a deposit into the CSRS, and his failure 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).
do so should merely reduce the amount of the CSRS annuity he seeks. 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, 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 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. 4
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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 | Caneda_Manuel_T_SF-0831-22-0528-I-1__Final_Order.pdf | 2024-05-24 | MANUEL CANEDA v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0831-22-0528-I-1, May 24, 2024 | SF-0831-22-0528-I-1 | NP |
1,362 | https://www.mspb.gov/decisions/nonprecedential/Sumlin_CharlesAT-0752-19-0263-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARLES SUMLIN,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
AT-0752-19-0263-I-1
DATE: May 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Odis Williams , Esquire, Marietta, Georgia, for the appellant.
Natalie Liem , Esquire, Atlanta, Georgia, 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 removal appeal as untimely filed. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was employed with the agency as a GS-11 Claims Specialist.
Initial Appeal File (IAF), Tab 1 at 1, 9. On September 20, 2018, the agency
effected his removal based on the charge of absence without leave
(160 specifications). Id. at 9-27. On February 8, 2019, the appellant filed the
instant appeal disputing his removal and asserting that it was in retaliation for his
having filed equal employment opportunity (EEO) complaints. Id. at 6. The
administrative judge issued an order on timeliness, indicating that the appellant’s
appeal may have been untimely filed and ordering the appellant to file evidence
and argument showing that he timely filed his appeal, and, if not, evidence and
argument showing that good cause existed for the delay in filing. IAF, Tab 5.
After the appellant failed to respond to the order, the administrative judge issued
an initial decision dismissing the appeal as untimely filed. IAF, Tab 7, Initial
Decision (ID). The appellant has filed a petition for review of the initial
decision, and the agency has filed a response. Petition for Review (PFR) File,
Tabs 1, 3. 2
DISCUSSION OF ARGUMENTS ON REVIEW
An appellant bears the burden of proving by preponderant evidence that his
appeal was timely filed.2 5 C.F.R. § 1201.56(b)(2)(i)(B). When an appellant has
been subjected to an action appealable to the Board and raises issues of
prohibited discrimination, he may either file a timely formal complaint of
discrimination with the agency, or a timely appeal with the Board, but not both.
5 C.F.R. § 1201.154(a). Whichever he files first is deemed an election to proceed
in that forum. Augustine v. Department of Justice , 100 M.S.P.R. 156, ¶ 7 (2005).
However, an appellant who has only filed an informal EEO complaint or pursued
informal counseling has not elected either remedy and, thus, is not precluded
from filing a Board appeal. Gonzales v. U.S. Postal Service , 11 M.S.P.R. 574,
575-76 (1982). If the appellant elects to file with the Board in the first instance,
he must do so within 30 days of the effective date of the action being appealed or
the date of receipt of the agency decision on the appealable action, whichever is
later. 5 C.F.R. § 1201.154(a). If he elects to file a formal complaint of
discrimination with the agency, he has 30 days after receipt of the
agency’s resolution or final decision to file an appeal with the Board.
5 C.F.R. § 1201.154(b)(1).
On review, the appellant argues that, following his removal, he filed an
EEO complaint for “wrongful termination.”3 PFR File, Tab 1 at 3. He claims
that, in relation to the EEO complaint, he was informed on November 29, 2018,
that he had 45 days to appeal to the Board. Id. He also asserts that the 35-day
partial Government shutdown affected the filing deadline. Id. He has included
the November 29, 2018 correspondence from the agency with his petition for
review. Id. at 5. Thus, he implicitly argues that the administrative judge relied
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 The appellant has not indicated anywhere in the record the basis for his EEO
complaint. 3
on an incorrect date in calculating the due date of an appeal to the Board because
he had additional time to file due to his filing of the EEO complaint and the
partial Government shutdown. Id. at 3.
The appellant did not raise this argument below. IAF, Tab 1. The Board
will generally not consider an argument raised or evidence submitted 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);
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980). The appellant has
not explained why he could not have made this argument below or why the
November 29, 2018 correspondence from the agency was not available to him
when he filed his appeal with the Board on February 8, 2019.
Nevertheless, even considering this argument, we find that it would not
change the outcome of his appeal. The only evidence in the record regarding the
appellant’s discrimination claim is the November 29, 2018 correspondence, which
states that the appellant had “the right to file a formal EEO complaint of
discrimination if [he chose] to do so.”4 PFR File, Tab 1 at 5. The record does not
indicate that the appellant filed a formal complaint of discrimination with the
agency; rather, it appears that he only filed an informal complaint. Id. In
the absence of a formal EEO complaint, the deadlines set forth in
5 C.F.R. § 1201.154(b)(1), which provide individuals with additional time to file
a Board appeal following the agency’s resolution of an EEO complaint, are
inapplicable to the appellant. See Cranston v. U.S. Postal Service , 106 M.S.P.R.
290, ¶ 8 & n.1 (2007) (observing that the time limit applicable to a mixed -case
appeal did not apply because the appellant did not file a formal EEO complaint).
Because the appellant did not contest timely receiving the removal decision, he
had 30 days from the effective date of his removal, until October 22, 2018, to
4 The November 29, 2018 letter does not state that the appellant had additional time to
file a Board appeal; it does not address an appeal to the Board. PFR File, Tab 1 at 5. 4
appeal directly to the Board.5 See 5 C.F.R. §§ 1201.22(b)(1), 1201.23, 1201.154
(a); IAF, Tab 1 at 23. It is undisputed that he did not file his appeal until
February 8, 2019. IAF, Tab 1. Thus, we agree with the administrative judge that
the appeal was untimely by over 3½ months.6 ID at 2.
If an appellant fails to file within the Board’s time limits, as is the case
here, the appeal may be dismissed as untimely filed unless good cause is shown
for the delay. Cranston, 106 M.S.P.R. 290, ¶ 8; 5 C.F.R. § 1201.22(c). 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). If the appellant establishes
good cause, waiver of the filing deadline is appropriate absent a showing of
substantial prejudice to the agency. Boyd v. Department of Veterans Affairs ,
111 M.S.P.R. 116, ¶ 12 (2009).
Here, the appeal was filed over 3½ months after the filing deadline. IAF,
Tab 1. This is considerably more than a minimal delay. See, e.g.,
5 Thirty days from the effective date of the removal was technically October 20, 2018.
However, because October 20, 2018, was a Saturday, the appellant’s official filing
deadline was the following Monday, October 22, 2018. See 5 C.F.R. § 1201.23.
6 The administrative judge specifically found that the appeal was untimely filed by
111 days. ID at 2. He stated that the due date was October 20, 2018, ID at 2, and he
did not consider the 2-day extension pursuant to 5 C.F.R. § 1201.23. Given the actual
due date of October 22, 2018, the appellant’s February 8, 2019 appeal was untimely by
109 days.5
Lima v. Department of the Air Force , 101 M.S.P.R. 64, ¶ 8 (2006) (finding that a
9-day delay was not minimal); Allen v. Office of Personnel Management ,
97 M.S.P.R. 665, ¶ 8 (2004) (concluding that a 14-day delay was not minimal).
The appellant was not pro se and has not alleged that circumstances existed
beyond his control that prevented him from filing an appeal on time. IAF, Tab 1;
PFR File, Tab 1 at 3. Moreover, in the removal decision, the agency informed the
appellant that, if he elected to appeal the removal to the Board, such an appeal
must be filed no later than 30 calendar days after the effective date of the
removal. IAF, Tab 1 at 25. Thus, the appellant was on notice of the filing
deadline.
On review, the appellant argues that his lawyer failed to provide
“evidence” to the administrative judge. PFR File, Tab 1 at 3. It is unclear if the
appellant is referring to evidence on the issue of timeliness or evidence regarding
the merits of his removal appeal. Regardless, an appellant is responsible for the
errors of his chosen representative unless he shows that his diligent efforts to
prosecute his appeal were thwarted, without his knowledge, by his attorney’s
deceptions and negligence. See, e.g., Belcher v. U.S. Postal Service ,
101 M.S.P.R. 58, ¶ 7 (2006). In this instance, the appellant has not alleged that
his attorney attempted to thwart his efforts to file a timely appeal. Based on the
foregoing, we find that good cause does not exist to waive the appellant’s late
filing.
Therefore, we deny the appellant’s petition for review and affirm the initial
decision.
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
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.6
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 7
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(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 the8
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 of9
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. 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 | Sumlin_CharlesAT-0752-19-0263-I-1__Final_Order.pdf | 2024-05-23 | CHARLES SUMLIN v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. AT-0752-19-0263-I-1, May 23, 2024 | AT-0752-19-0263-I-1 | NP |
1,363 | https://www.mspb.gov/decisions/nonprecedential/Palacios_Christina_G_NY-315H-19-0067-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTINA G. PALACIOS,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
NY-315H-19-0067-I-1
DATE: May 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christina G. Palacios , Brooklyn, New York, pro se.
David B. Myers , Baltimore, Maryland, for the agency.
Johanny Santana , New York, New York, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction because she was not an “employee”
with appeal rights to the Board. 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, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
Effective September 15, 2014, the agency appointed the appellant, a
non-preference eligible, to the position of Legal Administrative Specialist
(Benefit Authorizer), pursuant to the Schedule D excepted service appointing
authority in 5 C.F.R. § 213.3402(b), the Recent Graduates Program. Initial
Appeal File (IAF), Tab 13 at 14-15, 19-23. The appellant’s appointment was
subject to the completion of a 2-year trial period beginning on
September 15, 2014. Id. at 14-15, 21, 25; see 5 C.F.R. § 362.303(f) (stating that
the duration of the Recent Graduates appointment in the excepted service is a trial
period). On April 22, 2015, the agency notified the appellant that she was
terminated, effective at the close of business that day.2 IAF, Tab 1 at 74-77.
Instead, that same day, the appellant resigned from her position. IAF, Tab 1
at 11, Tab 12 at 29-30, Tab 13 at 16-17.
2 In its notice of termination, the agency listed two effective dates—April 20, 2015, and
April 22, 2015—for the appellant’s termination. IAF, Tab 1 at 74. It appears that the
date of April 20, 2015, was a typographical error because the record shows, and the
appellant does not dispute, that the agency intended her termination to be effective on
April 22, 2015. IAF, Tab 14 at 30.2
In her Board appeal, the appellant identified the termination during her trial
period and her involuntary resignation as the actions that she was appealing. IAF,
Tab 1 at 3. She requested a hearing. Id. at 2. Based on the information the
appellant provided in her initial appeal form, the administrative judge informed
the appellant that the Board may lack jurisdiction over her appeal, set forth the
jurisdictional standard for a termination from a competitive service position
during a probationary or trial period, and ordered the appellant to submit evidence
and argument to make a nonfrivolous allegation of Board jurisdiction.
IAF, Tab 3. In her response, the appellant asserted, among other things, that the
Board has jurisdiction over her probationary termination appeal because she
satisfied the criteria set forth in 5 C.F.R. §§ 315.805-.806. IAF, Tab 12 at 7-12.
The agency moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 13.
The administrative judge issued an Order to Show Cause, noting that the agency
had supplied evidence that the appellant occupied an excepted service position.
IAF, Tab 15 at 1. The administrative judge set forth the standard for the Board’s
jurisdiction over an appeal from a non -preference eligible excepted service
employee under 5 U.S.C. § 7511(a)(1)(C), and she afforded the appellant
additional time to submit evidence and argument to make a nonfrivolous
allegation of jurisdiction over the appeal. Id. at 1-2. The appellant did not
respond to the Order to Show Cause.
Without holding a hearing, the administrative judge issued an initial
decision that dismissed the appeal for lack of jurisdiction. IAF, Tab 16, Initial
Decision (ID) at 1-2, 5. She found that the appellant had not nonfrivolously
alleged that she completed 2 years of current, continuous service, as required in
5 U.S.C. § 7511(a)(1)(C); thus, she was not an “employee” with a right to file an
appeal with the Board. ID at 3-5.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has responded in opposition, and the
appellant has replied. PFR File, Tabs 3-4.3
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has not made a nonfrivolous allegation of Board jurisdiction. 3
The Board’s jurisdiction is not plenary; it is limited to those matters over
which it has been given jurisdiction by law, rule, or regulation . Maddox v. Merit
Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). A voluntary action,
such as a resignation, is generally not appealable to the Board under chapter 75.
Parrott v. Merit Systems Protection Board , 519 F.3d 1328, 1332 (Fed. Cir. 2008).
An involuntary resignation, however, is equivalent to a forced removal within the
Board’s jurisdiction under chapter 75. Id. In an involuntary resignation appeal,
an appellant is entitled to a jurisdictional hearing only if she makes a
nonfrivolous allegation of Board jurisdiction. Id.
The appellant does not challenge on review the agency’s evidence, which
clearly showed that she was appointed to an excepted service position. As a
non-preference eligible individual in the excepted service, the appellant may
appeal an adverse action, such as an involuntary resignation, to the Board only if
she qualifies as an “employee” under 5 U.S.C. § 7511(a)(1)(C). Martinez v.
Department of Homeland Security , 118 M.S.P.R. 154, ¶ 5 (2012). An “employee”
under 5 U.S.C. § 7511(a)(1)(C)(i)-(ii) is defined as an individual in the excepted
service (other than a preference eligible) “who is not serving a probationary or
trial period under an initial appointment pending conversion to the competitive
service” or “who 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.” Id. The Board has jurisdiction if either
section 7511(a)(1)(C)(i) or (ii) is satisfied. Id. Based on her submissions below
and on review, the appellant has not made a nonfrivolous allegation that she
satisfied either criterion. It is undisputed that she was serving a trial period at the
3 Although the administrative judge stated that the appellant failed to “show” that the
Board has jurisdiction over the appeal, ID at 3, we assume that this was a typographical
error because she properly held elsewhere that the appellant failed to make a
nonfrivolous allegation of Board jurisdiction, ID at 3, 5.4
time of her resignation. As the administrative judge noted, she has neither
alleged that she completed 2 years of current, continuous service in her position,
nor identified any prior Federal service that could be tacked on toward the
completion of her trial period. ID at 3-4; see IAF, Tab 13 at 14-15, 18, 24; see
Martinez, 118 M.S.P.R. 154, ¶ 6 (explaining that an individual’s prior service
may be tacked toward the completion of the probationary or trial period in the
excepted service when the prior service was performed in the same agency,
performed in the same line of work, and completed with no more than one break
in service of less than 30 days). Therefore, the administrative judge properly
dismissed her appeal for lack of jurisdiction because the appellant has not made a
nonfrivolous allegation that she is an “employee” under 5 U.S.C. § 7511(a)(1)
(C).4
Because of this disposition, we also lack jurisdiction to hear the merits of
her claims that the agency improperly terminated her during her trial period,
forced her to resign, violated merit system principles, and committed prohibited
personnel practices. PFR File, Tab 1 at 4, Tab 4 at 4-11; see, e.g., Davis
v. Department of Defense , 105 M.S.P.R. 604, ¶ 15 (2007) (stating that the merit
system principles do not provide an independent basis for Board jurisdiction);
Pollard v. Office of Personnel Management , 52 M.S.P.R. 566, 569 (1992) (noting
that the legislative history of the merit system principles indicate that they were
not intended to be self -executing); Wren v. Department of the Army ,
2 M.S.P.R. 1, 2 (1980) (finding that prohibited personnel practices under 5 U.S.C.
§ 2302(b) are not an independent source of Board jurisdiction), aff’d, 681 F.2d
867, 871-73 (D.C. Cir. 1982). Because the appellant did not make a nonfrivolous
allegation of jurisdiction, she was not entitled to a hearing.
4 In the initial decision, the administrative judge addressed the appellant’s claim that
she has regulatory appeal rights pursuant to 5 C.F.R. § 315.806. ID at 4-5; IAF, Tab 12
at 10, 12, Tab 14 at 9-10, 20. The Board need not reach the issue of whether the
appellant satisfies the conditions of 5 C.F.R. § 315.806 because that regulation applies
only to individuals in the competitive service. Barrand v. Department of Veterans
Affairs, 112 M.S.P.R. 210, ¶ 13 (2009). 5
Based on our review of the record, the appellant raised an involuntary
resignation claim in 2015 before the Equal Employment Opportunity
Commission, which found that the agency did not discriminate against her on the
basis of national origin, sex, or retaliation for prior equal employment
opportunity activity. IAF, Tab 1 at 79-96, 98-101, Tab 12 at 37-39. In the initial
decision, the administrative judge stated that she need not address the election of
remedies issue raised by the agency in its jurisdictional response. ID at 5 n.2;
IAF, Tab 13 at 10-11. Because we agree with the administrative judge that the
appellant is not an “employee” with appeal rights to the Board, we need not reach
this issue.
We deny the appellant’s request to seal or redact the record or, alternatively,
to grant her anonymity.
The appellant requests that the Board “seal the record or redact it” because
it contains “damaging” information. PFR File, Tab 1 at 4. The Board’s
consideration of a sealed-record request is circumscribed by the Freedom of
Information Act. 5 U.S.C. § 552; Nefcy v. Environmental Protection Agency ,
94 M.S.P.R. 435, ¶ 5 (2003). Public policy does not favor sealing records, and
the burden is on the party making such a request to demonstrate why the record
should be sealed. Nefcy, 94 M.S.P.R. 435, ¶ 5.
In Nefcy, 94 M.S.P.R. 435, ¶¶ 5-7, the Board addressed the appellant’s
sealed-record request because the record contained information about her medical
condition and disability. The Board denied her request because such documents
were already protected by the Privacy Act. Id., ¶ 7. By contrast, the appellant
admits here that the record contains no medical information. PFR File, Tab 1
at 4. Nor does the initial decision contain any medical or disability-related
information. Because the appellant has not advanced a compelling reason that
warrants a Board order to seal or redact the record, we deny her request. Social
Security Administration v. Doyle, 45 M.S.P.R. 258, 262 (1990). Even if the6
appellant limits the scope of her request to the initial decision, we are not
persuaded that such an action is appropriate.
We have alternatively considered that the appellant may be seeking to
proceed anonymously before the Board. The Board has not adopted a rigid,
mechanical test for determining whether to grant anonymity but instead applies
certain general principles and considers several factors in making such
determinations. Pinegar v. Federal Election Commission , 105 M.S.P.R. 677, ¶ 10
(2007). Those factors include whether identification creates a risk of retaliatory
physical or mental harm, whether anonymity is necessary to preserve privacy in a
matter of a sensitive and highly personal nature, or whether the anonymous party
is compelled to admit her intention to engage in illegal acts, thereby risking
criminal prosecution. Id.
A party seeking anonymity must overcome the presumption that parties’
identities are public information. Id., ¶ 11. Anonymity should be granted to
litigants before the Board only in unusual circumstances, and the determination
whether to grant anonymity must depend on the particular facts of each case. Id.
A litigant must present evidence establishing that harm is likely, not merely
possible, if her name is disclosed. Id. Even when some harm is likely, the Board
grants anonymity only when the likelihood and extent of harm to the appellant
significantly outweighs the public interest in the disclosure of the parties’
identities. Id.
Here, the appellant has presented nothing more than a bare allegation that
the initial decision contains “damaging” information. PFR File, Tab 1 at 4. She
opines that the administrative judge’s statements could be misinterpreted by
individuals who are unfamiliar with the facts of the case. Id. The appellant’s
speculative claim about the harm she may suffer if some unidentified third party
misinterprets the administrative judge’s statement about the agency’s stated
reason for her termination is insufficient to justify shielding her identity. See,
e.g., Pinegar, 105 M.S.P.R. 677, ¶ 19 (noting that the appellant has not explained7
why harm is likely and has offered no evidence to support his allegation); Ortiz
v. Department of Justice , 103 M.S.P.R. 621, ¶ 11 (2006) (rejecting the appellant’s
claim that his identity should be hidden because the facts concerning his medical
condition “might be misinterpreted and/or otherwise used to deny him
employment opportunities”). Because she has not shown that harm is likely if her
name is disclosed, and she has not rebutted the presumption that her identity is
public information in this Board appeal, we conclude that the appellant should not
be permitted to proceed anonymously.
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.
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
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,9
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 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 | Palacios_Christina_G_NY-315H-19-0067-I-1__Final_Order.pdf | 2024-05-23 | CHRISTINA G. PALACIOS v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. NY-315H-19-0067-I-1, May 23, 2024 | NY-315H-19-0067-I-1 | NP |
1,364 | https://www.mspb.gov/decisions/nonprecedential/Cable_JeremySF-844E-19-0033-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEREMY CABLE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-844E-19-0033-I-1
DATE: May 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Steven E. Brown , Esquire, Westlake Village, California, for the appellant.
Albert Pete Alston, Jr. , 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) that denied his application for disability retirement benefits under the
Federal Employees’ Retirement System (FERS). Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was employed by the National Aeronautics and Space
Administration. Initial Appeal File (IAF), Tab 9 at 64. On March 14, 2017, he
filed an application for disability retirement benefits under FERS, asserting that
he had asthma, chronic sinus infections, sinusitis, allergic rhinitis, and
“[e]rythematons conjuctira.”2 Id. at 72-74. He alleged that his medical
conditions made it “nearly impossible” to perform his assigned duties and made it
difficult for him to attend work daily. Id. at 73. The appellant resigned, effective
May 12, 2017, due to health reasons. Id. at 4.
OPM issued an initial decision denying the appellant’s application for
disability retirement because he did not have a service deficiency due to his
medical conditions. Id. at 48-52. After the appellant requested reconsideration,
2 Sinusitis is an inflammation or swelling of the tissue lining the sinuses.
https://www.webmd.com/allergies/sinusitis-and-sinus-infection (last visited May 22,
2024). Rhinitis is when a reaction occurs that causes nasal congestion, runny nose,
sneezing, and itching. https://www.hopkinsmedicine.org/health/conditions-and-
diseases/rhinitis (last visited May 22, 2024). No information could be found regarding
“[e]rythematons conjuctira.” However, OPM noted in its reconsideration decision that
the appellant’s primary care physician documented “erythematous conjunctiva” on
occasion, but it was not supported as a disabling medical condition. IAF, Tab 9 at 8.2
OPM issued a September 25, 2018 reconsideration decision, which concluded that
the initial decision was correct. Id. at 5-9.
The appellant filed this appeal with the Board. IAF, Tab 1. The
administrative judge held a telephonic hearing. IAF, Tab 20, Hearing Compact
Disc (HCD). The administrative judge found that the appellant failed to prove
that he became disabled because of his medical conditions; she noted that his
conditions did not result in a deficiency in performance, conduct, or attendance,
nor were they incompatible with useful and efficient service or retention in his
former position. IAF, Tab 21, Initial Decision (ID) at 7-14. Specifically, she
found that the only deficiencies he identified occurred in his attendance, and she
held that attendance problems alone do not establish entitlement to disability
retirement under FERS without some corroborating evidence showing impaired
performance of duties. ID at 11-12. She further found that his medical
documentation did not show that he was restricted from performing the essential
functions of his position or that his medical conditions were incompatible with
useful and efficient service. ID at 12-13. She therefore affirmed OPM’s
reconsideration decision. ID at 14.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. In it, he argues, among other things, that the administrative judge
misinterpreted evidence, improperly credited the testimony of the Equal
Employment Opportunity (EEO) Specialist on medical issues, did not factor in
the effect of his absences on his performance, ignored the agency’s failure to
replace the “old, moldy/mildewed” carpet, and ignored the significance of his
environmental limitations. Id. at 7-9. He also asserts that most of his evidence
focused on inability to render useful and efficient service. Id. at 8. The appellant
further argues that the administrative judge wrongly concluded that his ability to
perform some of his duties disqualified him from disability retirement, and his
environmental work limitations can constitute a disability. Id. at 9-12. OPM has
not filed a response.3
DISCUSSION OF ARGUMENTS ON REVIEW
In an appeal from an OPM decision denying a voluntary disability
retirement application, the appellant bears the burden of proof by preponderant
evidence.3 Christopherson v. Office of Personnel Management , 119 M.S.P.R.
635, ¶ 6 (2013). To be eligible for a disability retirement annuity under FERS, an
employee must show the following: (1) he completed at least 18 months of
creditable civilian service; (2) while employed in a position subject to FERS, he
became disabled because of a medical condition, resulting in a deficiency in
performance, conduct, or attendance, or, if there is no such deficiency, the
disabling medical condition is incompatible with either useful and efficient
service or retention in the position; (3) the disabling medical condition is
expected to continue for at least 1 year from the date that the application for
disability retirement benefits was filed; (4) accommodation of the disabling
medical condition in the position held must be unreasonable; and (5) he did
not decline a reasonable offer of reassignment to a vacant position. Id.;
see 5 U.S.C. § 8451(a).
The administrative judge properly found that criteria (1) and (5) were
satisfied. ID at 6; IAF, Tab 9 at 62-64, 67. The administrative judge also
correctly found that the appellant’s medical conditions were expected to continue
for at least 1 year from the date that the disability retirement application was
filed. ID at 6. The appellant filed his disability retirement application on
March 14, 2017. IAF, Tab 9 at 78. The appellant’s medical records show that, on
April 9, 2018, he continued to see his physician about, among other things, “an
ongoing cough” and “shortness of breath.” IAF, Tab 10 at 10. In a May 4, 2018
letter, the appellant’s doctor stated that he saw the appellant regularly for “mixed
obstructive and restrictive ventilatory defect, asthmatic bronchitis and persistent
3 Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).4
ethmoid sinusitis.”4 Id. at 9. During his testimony, given on February 20, 2019,
the appellant stated that he still had some of the same symptoms, but they were
not as severe. HCD, Track 1 at 1:07:15 (testimony of the appellant). We affirm
the administrative judge’s finding that the appellant proved criterion (3).
The administrative judge noted that this appeal hinged on whether the
appellant satisfied the second criterion for establishing a right to disability
retirement benefits. ID at 7. Although the administrative judge should have
addressed the fourth criterion – whether accommodation of the disabling medical
condition in the appellant’s position was unreasonable – her adjudicatory error is
not prejudicial to the appellant’s substantive rights and provides no basis for
reversal of the initial decision. Panter v. Department of the Air Force ,
22 M.S.P.R. 281, 282 (1984). For the following reasons, we affirm the initial
decision.
The appellant failed to prove criterion (2).
An appellant may meet the statutory requirement that he “be unable,
because of disease or injury, to render useful and efficient service” in his position
by (a) showing that the medical condition caused a deficiency in performance,
attendance, or conduct, as evidenced by the effect of his medical condition on his
ability to perform specific work requirements, or his medical condition prevented
him from being regular in attendance, or caused him to act inappropriately, or
(b) showing that the medical condition is incompatible with useful and efficient
service or retention in the position by demonstrating that his medical condition is
inconsistent with working in general, in a particular line of work, or in a
particular type of work setting. Christopherson, 119 M.S.P.R. 635, ¶ 6. The
4 People with obstructive lung disease have shortness of breath due to difficulty
exhaling all the air from the lungs, while people with restrictive lung disease cannot
fully fill their lungs with air. https://www.webmd.com/lung/obstructive-and-restrictive-
lung-disease (last visited May 22, 2024). Ethmoid sinuses refer to the sinuses located
between the nose and eyes. https://www.healthline.com/human-body-maps/ethmoid-
sinus#1 (last visited May 22, 2024).5
Board considers all pertinent evidence including objective clinical findings,
diagnoses and medical opinions, subjective evidence of pain and disability, and
all evidence showing the effect of his condition on his ability to perform the
duties of his position. Smith v. Office of Personnel Management , 100 M.S.P.R.
500, ¶ 5 (2005).
On review, the appellant suggests that he had attendance and performance
deficiencies and, in the alternative, that he was unable to render useful and
efficient service in his position. As previously stated, the record reflects that the
appellant asserted in his disability retirement application that he had numerous
medical conditions during the relevant time frame. IAF, Tab 9 at 72-73. OPM
also considered in its reconsideration decision additional conditions such as
dyspnea, reactive airway disease,5 mixed obstructive and restrictive ventilatory
defect, asthmatic bronchitis, and persistent ethmoid sinusitis, among other
conditions. Id. at 5-9.
The appellant stated that shortly after he began working in the Range
Control Office (RCO),6 he developed such problems as difficulty breathing,
issues with his sinuses, watery eyes, and headaches. Id. at 30, 42; HCD, Track 1
at 0:04:30 (testimony of the appellant). The appellant’s wife stated that she
observed the appellant on a daily basis with sinus problems, bloodshot eyes, and a
raspy and scratchy voice, and his symptoms worsened as the work week
progressed. IAF, Tab 9 at 45; HCD, Track 2 at 0:37:15 (testimony of the
appellant’s wife). The appellant’s supervisor testified that he observed the
appellant with watery eyes. HCD, Track 2 at 1:22:30 (testimony of the
supervisor). One of the appellant’s coworkers confirmed that he observed the
5 Reactive airway disease is a term that healthcare providers use to describe breathing
symptoms that are similar to asthma, but they’re not sure of the exact cause.
https://my.clevelandclinic.org/health/diseases/24661-reactive-airway-disease (last
visited May 22, 2024).
6 The administrative judge found that the appellant was assigned the position of Range
Control Specialist on December 13, 2015. ID at 2. The appellant does not challenge
this finding on review. PFR File, Tab 1 at 5.6
appellant with increased nasal-related allergies. IAF, Tab 9 at 47; HCD, Track 2
at 0:09:00, 0:13:00 (testimony of the coworker).
The record included numerous reports from the appellant’s medical
providers regarding the appellant’s visits between April 2016 and July 2018.
E.g., IAF, Tab 10 at 5-61. These reports generally indicate that the appellant
complained about breathing and sinus problems, although the handwriting in
several of these reports is illegible.
According to the appellant’s position description, as a GS-12 Range
Control Specialist, some of his duties included analyzing organizational
priorities, developing and implementing administrative policies and procedures,
attending informative meetings to remain current on systems capabilities and
configurations, and insuring efficient and timely support of flight research
projects. IAF, Tab 9 at 91-92. Among other things, the appellant’s position
required knowledge and skill in applying analytical and evaluative methods and
techniques to issues or studies concerning the efficiency and effectiveness of
program operations, and interpersonal skills in presenting staffing
recommendations and negotiating solutions to disputed recommendations. Id.
at 93. The appellant and OPM stipulated that his position required memory and
concentration. IAF, Tab 13 at 6, Tab 14 at 5.
The appellant testified that his symptoms interfered with his ability to do
his job because his job required concentration, his headaches made it difficult to
think, he was short of breath, and he was always so focused on his symptoms that
it was difficult to accomplish his duties. HCD, Track 1 at 0:50:00 (testimony of
the appellant). In an unsworn statement, the appellant wrote that he suffered from
“memory and concentration” problems as a result of his medical conditions, and
“frequently made mistakes” in the scheduling system, resulting in a reprimand
from his lead and trainer. IAF, Tab 9 at 21. More specifically, he stated that he
had “a difficult time memorizing and recalling” what steps he needed to take to
schedule a mission. Id. The appellant added that he had difficulty overseeing a7
mission in the control room because the mission required high concentration. Id.
He further stated that he had to use allergy eye drops in order to see what he was
doing in the control room because his eyes would become watery and itchy. Id.
The appellant also stated that he was “late to work or meetings on a regular basis,
due to being so tired and lethargic from the allergic reactions.” Id. at 22.
The appellant’s statements about deficiencies in his performance are
largely contradicted by the record. For the rating period of May 1, 2015, to April
30, 2016, the appellant’s overall performance was rated as “Level
4”/“Accomplished,” which was the second highest performance rating. Id. at 95.
The appellant was rated Level 5, Substantially Exceeds Expectations—the highest
performance rating—in the critical elements of teamwork and communication.
Id. at 100-03. In the supporting narrative for the rating, the appellant’s
supervisor mentioned no deficiencies at all in the appellant’s performance, and
instead only had positive things to say about him. Id. at 104-05. The supervisor
testified that up until the appellant’s separation, the appellant’s performance was
acceptable and he had no issues with it. HCD, Track 2 at 1:22:00 (testimony of
the supervisor).
Moreover, the appellant’s coworker—who was the appellant’s witness—
testified that he never observed a deficiency in the appellant’s work performance
due to his symptoms. HCD, Track 2 at 0:17:15 (testimony of the coworker).
Although the appellant refers to the coworker’s September 2016 letter for
support, PFR File, Tab 1 at 7 (citing IAF, Tab 9 at 24), the only support that that
unsworn statement provides is that the appellant’s reaction to the work
environment “is impacting his overall health and hindering his full potential.” To
the extent the coworker’s statements are inconsistent, live testimony is generally
entitled to more weight than unsworn statements. Dubiel v. U.S. Postal Service ,
54 M.S.P.R. 428, 432 (1992); Jefferson v. Defense Logistics Agency , 22 M.S.P.R.
10, 13 (1984).8
The appellant also argues on review that his absences due to illness prove
his disability. PFR File, Tab 1 at 10-11 (citing Arnone v. Office of Personnel
Management, 7 M.S.P.R. 212 (1981)). In Arnone, 7 M.S.P.R. at 214-15, the
Board found that the evidence established that the appellant suffered from
chemical poisoning through her laboratory work, her numerous absences were due
to illness, she was prevented her from performing the duties of her job, she was
totally disabled for useful and efficient service in her position, and she was
entitled to a disability retirement annuity. There, the appellant presented
persuasive evidence from a doctor who specializes in the toxic effect of chemicals
on the body and wrote multiple letters of support to show residual neurological
damage without any treatment for this poisoning. Id. This case is distinguishable
from Arnone because there is no medical evidence that the work environment
caused the appellant’s medical conditions, and by extension, his absences.
The appellant submitted a chart purporting to show his leave usage from
April 19, 2015, through May 27, 2017. IAF, Tab 13 at 13-23. By the appellant’s
calculations, he used 1012 hours of leave during this time due to his respiratory
symptoms. Id. at 6. The appellant testified that he missed work because of his
symptoms, to recover from his symptoms, and for medical appointments. HCD,
Track 1 at 1:14:45 (testimony of the appellant). However, absence from work
alone does not establish entitlement to disability retirement without
some corroborating evidence establishing impaired performance of duties.
Harris v. Office of Personnel Management , 110 M.S.P.R. 249, ¶ 17 (2008). The
agency acknowledged in the Supervisor’s Statement that the appellant’s
attendance became unacceptable on May 1, 2017, IAF, Tab 9 at 69, a mere
11 days before his resignation. The agency also stated that his absences required
his coworkers to “take up the work” that he was unable to do, which “put[] a
strain on the office.” Id. The agency’s single sentence, written about the 11 days
between when his absences became unacceptable and the date of his resignation,
does not warrant a finding that his performance was impaired. To the contrary,9
the agency indicated in the Supervisor’s Statement that the appellant’s
performance was not less than fully successful in any critical element. Id. at 68.
An employee’s subjective evidence of disability is entitled to consideration
and weight in a disability retirement case when it is supported by competent
medical evidence. Christopherson, 119 M.S.P.R. 635, ¶ 13. There appears to be
no dispute that the appellant suffered from numerous medical conditions during
the relevant time frame. However, medical evidence does not show – let alone
prove by preponderant evidence – that any of his conditions were disabling.
Therefore, the appellant’s subjective evidence of disability is only entitled to
limited weight.
Finally, we recognize that the Board has held that an employee can satisfy
his burden to show that he was unable to render useful and efficient service by
showing that the medical condition(s) is/are inconsistent with working in general,
in a particular line of work, or in a particular type of work setting. Id., ¶ 6.
However, the appellant has not made such a showing.
We have considered the appellant’s remaining arguments on review, but
none warrant a different outcome. Regarding the appellant’s argument that the
administrative judge ignored his environmental limitations and the fact that his
doctors imposed permanent work restrictions against him working in moldy or
damp environments, PFR File, Tab 1 at 7, we are not persuaded that a different
outcome is warranted. The May 4, 2018 letter from his doctor to which he cites
on review did not mention any work restrictions being placed on him, but merely
identified some of the medical conditions for which he was seen and stated that
“[h]e has been noted to have increased symptoms when exposed to molds and [a]
moist damp environment.” IAF, Tab 10 at 9. Accordingly, the cited evidence
does not support the appellant’s assertion.
The appellant similarly asserts that medical records confirmed that his
symptoms got worse the more he worked at the RCO and were both
“uncontrollable” and due to the “moldy carpet.” PFR File, Tab 1 at 7 (citing IAF,10
Tab 10 at 34, 55, 59, 61). What we could read of this documentation appears to
be what the appellant reported to his doctors, not the diagnoses or remedies
recommended by his doctors. Additionally, the appellant does not challenge the
administrative judge’s finding that an allergen report, dated September 22, 2016,
indicated absent/undetectable levels of allergen reaction including mold grouping.
ID at 13 (citing IAF, Tab 10 at 44-45). Indeed, when asked about the fact that
this allergen report came back normal, he simply acknowledged that the report
was dated during the same time that he was experiencing symptoms in the office.
HCD, Track 1 at 1:06:00 (testimony of the appellant). Nor did the appellant
dispute, as his supervisor testified, that the agency conducted an environmental
test of his work environment on April 29, 2016, that also found nothing of
significance. HCD, Track 2 at 1:39:00 (testimony of the supervisor).
Based on our review of the record and the appellant’s arguments on review,
we conclude that there was no performance or attendance deficiency or that he
was precluded from providing useful and efficient service. See Boss v. Office of
Personnel Management , 23 M.S.P.R. 234, 238 (1984) (finding that the appellant
suffered from headaches as a result of work-related stress, but that there was
insufficient evidence that he was unable to perform useful and efficient service
because of his headaches); cf. Cole v. Office of Personnel Management ,
88 M.S.P.R. 54, ¶¶ 4-9 (2001) (finding that the appellant proved through her own
testimony and competent medical evidence that her migraine headaches were
precipitated and aggravated by her work environment, prevented her from
performing useful and efficient service in her position, and caused her deficiency
in attendance). Accordingly, we affirm the administrative judge’s finding that the
appellant did not prove criterion (2), and we affirm OPM’s reconsideration
decision that denied his application for disability retirement.
In light of our finding that the appellant did not prove criterion (2), we
need not address the administrative judge’s failure to address criterion (4) or any
arguments made by the appellant on review that may relate to criterion (4). 11
We discern no error with the administrative judge’s decision to permit the EEO
Specialist to testify.
Below, the appellant objected to the administrative judge’s decision to
permit the EEO Specialist to testify about “whether there were any medical
restrictions which kept the appellant from performing critical duties or from
attending work altogether” on the following grounds: (1) relevance; (2) calling
for speculation; (3) expert testimony being adduced from an unqualified lay
witness; (4) beyond the competence of the witness to testify on medical issues;
(5) contrary to a stipulation of record; and (6) unduly prejudicial to the appellant.
IAF, Tab 14 at 5, Tab 18 at 3, Tab 19 at 4-5. He continues to object to her
testimony on review, adding that her testimony that no reasonable
accommodation was necessary is a mixed question of law and medicine about
which she was not qualified to testify. PFR File, Tab 1 at 8.
It is well established that administrative judges have broad discretion to
regulate the proceedings before them. Oulianova v. Pension Benefit Guaranty
Corporation, 120 M.S.P.R. 22, ¶ 12 (2013). At the hearing, the EEO Specialist
did not attempt to diagnose the appellant or otherwise testify improperly about his
medical conditions. HCD, Track 2 (testimony of the EEO Specialist). She
instead only testified about her knowledge of the medical restrictions placed on
the appellant, his requests for accommodations, and her conversations with him.
Id. Accordingly, we find that her testimony was relevant, did not call for
speculation, was not beyond her knowledge, and she was qualified to give such
testimony. We further find that her testimony was not contrary to any of the
stipulations. IAF, Tab 13 at 6-7, Tab 14 at 4-5. The appellant has not explained
why the EEO Specialist’s testimony was unduly prejudicial to him, and we find
that his assertion is without merit. Accordingly, we find that the appellant has
not shown that the administrative judge erred in allowing the EEO Specialist to
testify. 12
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 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. 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. The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 16
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 | Cable_JeremySF-844E-19-0033-I-1__Final_Order.pdf | 2024-05-23 | JEREMY CABLE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-844E-19-0033-I-1, May 23, 2024 | SF-844E-19-0033-I-1 | NP |
1,365 | https://www.mspb.gov/decisions/nonprecedential/Beden_Constance_L_CH-0831-19-0477-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CONSTANCE LOUISE BEDEN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-0831-19-0477-I-1
DATE: May 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Constance Louise Beden , Hazel Park, Michigan, 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 final decision of the Office of Personnel Management (OPM)
denying her application for deferred retirement annuity benefits under the Civil
Service Retirement System. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, 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 reasserts her argument that she was
misled into signing the application for a refund of retirement deductions by her
ex-husband, who was a Human Resource Specialist for the Government. Petition
for Review (PFR) File, Tab 7 at 4; Initial Appeal File (IAF), Tab 2 at 4. She
further reasserts her claim that her former employing agency and OPM made
multiple processing errors concerning her separation and refund of retirement2
deductions.2 PFR File, Tab 1 at 3-4, Tab 7 at 3-4; IAF, Tab 1 at 5-6, Tab 2 at 3-4,
7, Tab 9 at 2-3.
For the reasons provided in the initial decision, we agree with the
administrative judge’s finding that the appellant has failed to prove her
entitlement to deferred retirement annuity benefits. IAF, Tab 13, Initial Decision
(ID) at 3-5; see 5 U.S.C. §§ 8334(d)(1), 8342(a); Youngblood v. Office of
Personnel Management , 108 M.S.P.R. 278, ¶ 12 (2008); Rint v. Office of
Personnel Management , 48 M.S.P.R. 69, 72-73, aff’d, 950 F.2d 731 (Fed. Cir.
1991) (Table). Even if the appellant was misled by her ex-husband, the
Government cannot be estopped from denying monetary benefits not otherwise
permitted by law. Youngblood, 108 M.S.P.R. 278, ¶ 13. Moreover, we find that
the appellant’s allegations of processing errors are immaterial to the outcome of
this appeal because she does not dispute receiving a refund of her retirement
deductions. ID at 3, 5.
To the extent the appellant wishes to challenge the merits of her separation
from her former employing agency, she may file a separate appeal with the
Board’s regional office in accordance with the Board’s regulations set forth at
5 C.F.R. § 1201.22. However, we do not express an opinion on the timeliness of
or the Board’s jurisdiction over any such separate appeal. ID at 2-3; see 5 C.F.R.
2 The appellant has included documentation that already is a part of the record before
the administrative judge. PFR File, Tab 2 at 5-10; IAF, Tab 2 at 10-11, 14-16, Tab 5
at 11. For the first time on review, the appellant has provided a letter dated April 22,
2019, in which she requested a copy of her employment records from the National
Personnel Records Center. PFR File, Tab 2 at 4. 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). 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
§ 1201.56(b)(2)(i)(A)-(B) (providing that an appellant bears the burden of proof
regarding jurisdiction and the timeliness of an appeal).
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(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 | Beden_Constance_L_CH-0831-19-0477-I-1__Final_Order.pdf | 2024-05-23 | CONSTANCE LOUISE BEDEN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0831-19-0477-I-1, May 23, 2024 | CH-0831-19-0477-I-1 | NP |
1,366 | https://www.mspb.gov/decisions/nonprecedential/Perkins_Craig_G_DC-844E-19-0563-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CRAIG G. PERKINS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-844E-19-0563-I-1
DATE: May 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Craig G. Perkins , Hampton, Virginia, pro se.
Moraima Alvarez , 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) that denied his 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
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. Except as expressly
MODIFIED to clarify two misstatements and to supplement the administrative
judge’s analysis to find that the appellant failed to show that his medical
conditions caused a deficiency in either his attendance or his conduct, or that his
medical conditions were incompatible with either useful and efficient service or
retention in his position, we AFFIRM the initial decision.
BACKGROUND
On April 26, 2018, the appellant applied for FERS disability retirement
benefits with OPM. Initial Appeal File (IAF), Tab 4 at 114-15. The appellant’s
request for benefits was based on his post-traumatic stress disorder (PTSD) and
associated medical conditions. Id. at 114. On January 3, 2019,2 OPM issued an
initial decision denying the appellant’s application. Id. at 103-07. Thereafter, on
May 14, 2019, OPM affirmed its initial decision on reconsideration. IAF, Tab 5
at 15-18. The appellant timely appealed OPM’s reconsideration decision to the
Board, and he requested a hearing on the matter. IAF, Tab 1 at 2, 11.
Following a telephonic hearing, the administrative judge issued an initial
decision affirming OPM’s reconsideration decision. IAF, Tab 12, Initial Decision
2 OPM’s initial decision is erroneously dated January 3, 2018. IAF, Tab 4 at 103.2
(ID). The administrative judge found that, although the appellant showed that he
suffered from PTSD and other medical conditions, he failed to show that these
conditions precluded him from performing the essential functions of his position.
ID at 5 n.1, 7. She further concluded that the appellant failed to show that
accommodation of his medical conditions was unreasonable. ID at 7-8.
The appellant has filed a petition for review, and the agency has responded
in opposition. Petition for Review (PFR) File, Tabs 1, 3. In his petition for
review, the appellant avers the following: (1) the administrative judge failed to
thoroughly review his medical records; (2) he has been diagnosed with disabling
medical conditions; and (3) he cannot perform his job duties. PFR File, Tab 1
at 3.
DISCUSSION OF ARGUMENTS ON REVIEW
An appellant bears the burden of proving his entitlement to retirement
benefits by a preponderance of the evidence.3 5 C.F.R. § 1201.56(b)(2)(ii).
To be eligible for disability retirement under FERS, an applicant must show the
following: (1) he completed at least 18 months of creditable civilian service;
(2) while employed in a position subject to FERS, he became disabled because of
a medical condition, resulting in a deficiency in performance, conduct or
attendance, or, if there is no such deficiency, the disabling medical condition is
incompatible with either useful and efficient service or retention in the position;
(3) the disabling medical condition is expected to continue for at least 1 year
from the date that the application for disability retirement benefits was filed;
(4) accommodation of the disabling medical condition in the position held must
be unreasonable; and (5) he did not decline a reasonable offer of reassignment to
a vacant position. 5 U.S.C. § 8451(a); 5 C.F.R. § 844.103(a); see Thorne v.
Office of Personnel Management , 105 M.S.P.R. 171, ¶ 5 (2007).
3 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).3
An applicant for disability retirement may satisfy the second criterion in
one of two ways: (1) by showing that the medical condition caused a deficiency
in performance, attendance, or conduct; or (2) by showing that the medical
condition is incompatible with useful and efficient service or retention in the
position. Jackson v. Office of Personnel Management , 118 M.S.P.R. 6, ¶ 7
(2012); 5 C.F.R. § 844.103(a)(2). Under the first method, an individual can
establish entitlement by showing that the medical condition affects his ability to
perform specific work requirements, prevents him from being regular in
attendance, or causes him to act inappropriately. Jackson, 118 M.S.P.R. 6, ¶ 8.
Under the second method, an individual can establish entitlement by showing that
the medical condition is inconsistent with working in general, in a particular line
of work, or in a particular type of setting. Id. In determining an appellant’s
entitlement to disability retirement, the Board considers all pertinent evidence
including objective clinical findings, diagnoses and medical opinions, subjective
evidence of pain and disability, and evidence showing the effect of his condition
on his ability to perform the duties of his position. Henderson v. Office of
Personnel Management , 109 M.S.P.R. 529, ¶ 12 (2008). The ultimate question,
based on all relevant evidence, is whether the appellant’s medical impairments
preclude him from rendering useful and efficient service in his position.
Jackson, 118 M.S.P.R. 6, ¶ 8.
We modify the initial decision to correct two misstatements in the administrative
judge’s analysis.
Although not raised on review, in analyzing whether the appellant met the
second requisite criterion for FERS disability benefits, i.e., 5 C.F.R. § 844.103(a)
(2), the administrative judge reasoned that the appellant’s “initial PTSD diagnosis
related to childhood trauma” and that “his later diagnosis [of PTSD] related to his
military service.” ID at 5; IAF, Tab 4 at 77, Tab 9 at 15. Seemingly because the
appellant’s civilian employment with the Federal Government did not begin until
2015, after he completed his military service, the administrative judge concluded4
that the appellant therefore “did not become disabled during his employment,”
i.e., he did not become disabled “while employed in a position subject to FERS”
for purposes of 5 C.F.R. § 844.103(a)(2). ID at 5-6; IAF, Tab 4 at 76, 144, 147,
154. However, the date of the initial diagnosis or onset of a potentially disabling
medical condition is not dispositive of whether an appellant became disabled
while employed in a position subject to FERS. See 5 C.F.R. § 844.103(a)(2).
The Board has found that preexisting medical conditions may deteriorate, thereby
rendering an appellant disabled. E.g., Johnston v. Office of Personnel
Management, 57 M.S.P.R. 590, 596 n.7 (1993). Thus, to the extent the
administrative judge found that the initial onset date of the appellant’s PTSD
necessarily rendered him ineligible for disability retirement under FERS, ID
at 5-6, we vacate her finding.
Further, the administrative judge noted the lack of supporting medical
documentation in the record and she reasoned that, “[a]bsent such supporting
medical documentation,” the appellant was unable to show that his medical
conditions precluded him from performing the essential functions of his position.
ID at 7; see 5 C.F.R. § 844.103(a)(2). However, the Board considers all pertinent
evidence in determining an appellant’s entitlement to disability retirement; such
evidence may include objective clinical findings, diagnoses and medical opinions,
subjective evidence of pain and disability, and evidence relating to the effect of
the appellant’s condition on his ability to perform the duties of his position.
Henderson, 109 M.S.P.R. 529, ¶ 12. Thus, to the extent the administrative judge
found that the lack of supporting medical evidence necessarily precluded the
appellant from meeting his evidentiary burden, we vacate her finding. ID at 7;
see Henderson, 109 M.S.P.R. 529, ¶ 12.
However, after considering all evidence in the record, including the
appellant’s hearing testimony, we agree with the administrative judge’s
conclusion that the appellant failed to establish entitlement to FERS disability
retirement for the following reasons. 5
We supplement the initial decision to find that the appellant failed to show that
his medical conditions caused a deficiency in either his attendance or his conduct,
or that his medical conditions were incompatible with either useful and efficient
service or retention in his position.
We agree with the administrative judge’s reasoned conclusion that the
appellant failed to show that his medical conditions caused a deficiency in his
performance. ID at 6-7.4 However, the administrative judge did not render
findings as to whether the appellant showed by preponderant evidence that his
medical conditions caused a deficiency in either his attendance or his conduct or
that his medical conditions were incompatible with useful and efficient service or
retention in his position. See Thorne, 105 M.S.P.R. 171, ¶ 5; 5 C.F.R.
§ 844.103(a)(2). Accordingly, we supplement her analysis and we find that the
appellant failed to make such a showing.
Here, although the appellant alleged before the administrative judge that
his medical conditions caused him to take frequent time off from work, IAF,
Tab 9 at 3, the record provides no clear indication of how much work the
appellant missed as a result of his medical issues. Moreover, the appellant’s
supervisor indicated on his written statement in connection with the appellant’s
application for disability retirement that the appellant’s attendance was
acceptable. IAF, Tab 4 at 118. Thus, the appellant failed to show that his
medical conditions prevented him from being regular in attendance. See Jackson,
118 M.S.P.R. 6, ¶ 8. The record is also devoid of any indication that the
appellant’s medical conditions caused him to act inappropriately. Id. Indeed, the
appellant’s supervisor also indicated in his written statement that the appellant’s
conduct was satisfactory. IAF, Tab 4 at 118. Thus, we find that the appellant
failed to show that he suffered from a medical condition that caused a deficiency
either in his attendance or his conduct. See 5 C.F.R. § 844.103(a)(2).
4 We also agree with her conclusion that the appellant failed to show that
accommodation of his medical condition was unreasonable, i.e., that he failed to satisfy
the fourth criterion for entitlement to disability retirement under FERS. ID at 8;
see 5 C.F.R. § 844.103(a)(4). The appellant does not challenge this finding on review. 6
We further conclude that the appellant failed to show that his medical
conditions were inconsistent with working in general, in a particular line of work,
or in a particular type of setting. See Jackson, 118 M.S.P.R. 6, ¶ 8. As set forth
in the initial decision, all of the medical assessments in the record suggested that
the appellant was alert, oriented, and coherent. ID at 6; IAF, Tab 5 at 128.
Although the appellant provided a physician’s note “in support of [his]
[a]pplication for [d]isability,” the note stated only that the appellant’s “symptoms
reportedly [had] caused significant emotional distress and functional
impairment”; it did not indicate to what degree the appellant was impaired.
IAF, Tab 9 at 15. The appellant’s hearing testimony provided little clarity as to
the functional implications of the appellant’s medical ailments. IAF, Tab 11,
Hearing Recording (HR). Moreover, the appellant testified that medication
improved his PTSD symptoms by “cut[ting] the edge off” and helping him to be
“normal on the job.” HR at 6:01 to 6:22, 29:27 to 29:33; see Confer v. Office of
Personnel Management , 111 M.S.P.R. 419, ¶ 21 (2009) (explaining that, to prove
entitlement to disability retirement, an applicant must show that the medical
condition at issue cannot be controlled by medication or other reasonable means).
Accordingly, after considering all evidence in the record, both objective and
subjective, we conclude that the appellant also failed to show that he suffered
from a disabling medical condition that was incompatible with either useful and
efficient service or retention in his position. See Henderson, 109 M.S.P.R. 529,
¶ 12; see also 5 C.F.R. § 844.103(a)(2).
The appellant’s assertions on review are without merit.
The appellant alleges that his “medical record was not reviewed
thoroughly.” PFR File, Tab 1 at 3. We find this assertion unavailing. Here, the
administrative judge thoroughly discussed many of the appellant’s medical
records in her initial decision, ID at 3, 5-7, and we discern no error in her failure
to mention every piece of evidence, see Marques v. Department of Health &
Human Services , 22 M.S.P.R. 129, 132 (1984) (recognizing that an administrative7
judge’s failure to mention all of the evidence of record does not mean that he did
not consider it in reaching his decision), aff’d, 776 F.2d 1062 (Fed. Cir. 1985)
(Table). Moreover, the appellant does not identify which medical records he
believes the administrative judge failed to review or explain the relevance of
these allegedly unviewed records. PFR File, Tab 1 at 3.
The appellant also states on review that he suffers from PTSD and that he
is unable to perform his job functions. Id. We find these assertions unavailing.
As explained in the initial decision and supplemented by this order, although the
appellant showed that he suffered from PTSD and other medical ailments, he
failed to show that these ailments resulted in a deficiency in performance,
attendance, or conduct, or were incompatible with either useful and efficient
service or retention in his position. See Jackson, 118 M.S.P.R. 6, ¶ 7.
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.
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
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 | Perkins_Craig_G_DC-844E-19-0563-I-1__Final_Order.pdf | 2024-05-23 | CRAIG G. PERKINS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-844E-19-0563-I-1, May 23, 2024 | DC-844E-19-0563-I-1 | NP |
1,367 | https://www.mspb.gov/decisions/nonprecedential/Cyphert_MichaelPH-0731-19-0327-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL CYPHERT,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0731-19-0327-I-1
DATE: May 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jennifer A. Nachamkin , Esquire, Harrisburg, Pennsylvania, for the
appellant.
Darlene M. Carr , 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 that
sustained the Office of Personnel Management’s suitability action. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous 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).
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 | Cyphert_MichaelPH-0731-19-0327-I-1__Final_Order.pdf | 2024-05-23 | MICHAEL CYPHERT v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0731-19-0327-I-1, May 23, 2024 | PH-0731-19-0327-I-1 | NP |
1,368 | https://www.mspb.gov/decisions/nonprecedential/Flugstad_Courtney_S_AT-0432-18-0603-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
COURTNEY FLUGSTAD,
Appellant,
v.
NATIONAL AERONAUTICS AND
SPACE ADMIN,
Agency.DOCKET NUMBER
AT-0432-18-0603-I-1
DATE: May 23, 2024
THIS ORDER IS NONPRECEDENTIAL1
Ronica Scales , Esquire, and Shaun C. Southworth , Esquire, Atlanta,
Georgia, for the appellant.
Trevor Oktay Tezel , Esquire, Kennedy Space Center, Florida, for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed her performance-based removal. On petition for review, the appellant
argues that the performance standards by which she was assessed were not valid,
that she was not warned of her performance deficiencies or given a reasonable
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).
opportunity to improve her performance, and that her performance was at an
acceptable level. Petition for Review (PFR) File, Tab 1 at 5-13. She also
reasserts her affirmative defenses of disability discrimination (disparate
treatment), retaliation for seeking a reasonable accommodation, and harmful
procedural error. Id. at 10-12. For the reasons discussed below, we GRANT the
petition for review. We MODIFY the initial decision to supplement the
administrative judge’s discussion of the application of Greer v. Department of the
Army, 79 M.S.P.R. 477 (1998), and to apply the appropriate legal standards to the
appellant’s disparate treatment disability discrimination retaliation for engaging
in activity protected by the Rehabilitation Act. We REMAND the appeal to the
Atlanta Regional Office for further adjudication consistent with this Remand
Order and Santos v. National Aeronautics and Space Administration , 990 F.3d
1355 (Fed. Cir. 2021).
DISCUSSION OF ARGUMENTS ON REVIEW
We agree with the administrative judge that the agency proved the elements of its
chapter 43 action under the law as it existed at the time of the appeal, while
supplementing his application of Greer .
¶2We discern no basis to disturb the administrative judge’s conclusion that the
agency proved the elements it was required to establish in a chapter 43 action
under the law when the initial decision was issued. The appellant argues on
review that the administrative judge’s application of Greer, which provides that
performance standards may be less objective when the position involved is a
technical one with greater discretion and independence, was improper because her
position is “more managerial than scientific.” PFR File, Tab 1 at 7; see Greer,
79 M.S.P.R. at 483-84. This argument is without merit. The appellant was
employed as a GS-13 Aerospace Engineer. Initial Appeal File (IAF), Tab 7 at 4.
The position description for that position provides that one of the major duties is
to serve as a “technical expert, trouble-shooter, and consulting engineer,
providing technical assessments, advice and guidance.” IAF, Tab 10 at 94. The2
position description further requires an incumbent to “[e]xercise[] expert
technical aerospace engineering knowledge[,] insight[,] and judgment in
identifying and resolving complex safety and mission assurance problems and
issues.” Id. We find that the administrative judge correctly relied on Greer when
concluding that the agency “appropriately did not tie the appellant’s performance
to quantifiably objective criteria and that subjective judgment about whether the
appellant’s performance rises to the GS-13 level are necessary due to the highly
technical nature of her work.” IAF, Tab 30, Initial Decision (ID) at 15.
We modify the initial decision to apply the appropriate legal standards to the
appellant’s disparate treatment disability discrimination and retaliation claims,
still finding that the appellant did not prove those claims.
¶3In analyzing the appellant’s disparate treatment disability discrimination
claim, the administrative judge discussed the mixed-motive analysis in
accordance with the Board’s precedent in Southerland v. Department of Defense ,
119 M.S.P.R. 566 (2013), overruled by Pridgen v. Office of Management and
Budget, 2022 MSPB 31, and the burden-shifting analysis set forth in McDonnell
Douglas Corp. v. Green , 411 U.S. 792 (1973). ID at 25, 27-28. The
administrative judge stated that, under the mixed-motive analysis he applied, the
appellant need not prove that discrimination was a but-for cause of the agency’s
action. ID at 25. He nevertheless found that the appellant presented no evidence
that any relevant agency official harbored animus against someone with the
appellant’s disability. ID at 28. On review, the appellant generally challenges
this finding, but points to no specific evidence in the record demonstrating why it
is incorrect. PFR File, Tab 1 at 10-11.
¶4In Pridgen, 2022 MSPB 31, ¶ 25 (internal quotations omitted), which was
decided after the issuance of the initial decision in this case, the Board approved
the use of the McDonnell Douglas framework, not as a rigid, mechanized
methodology, but as a sensible, orderly way to evaluate evidence of employment3
discrimination. We therefore take no issue with the application of the framework
for that purpose.
¶5Even when applying the standard set forth in Pridgen to this claim,
however, a different outcome is not warranted. We have reviewed the record, and
we agree with the administrative judge that it contains no evidence that any
animus existed towards the appellant or her type of disability. ID at 28.
Accordingly, we find that the appellant did not prove that her disability was a
motivating factor in her removal, and we modify the initial decision to reflect this
analysis.
¶6In analyzing the appellant’s claim that the agency removed her in retaliation
for requesting a reasonable accommodation, the administrative judge applied the
motivating factor standard. ID at 28-29. He concluded that the appellant did not
prove that her reasonable accommodation request motivated either the appellant’s
placement on a performance improvement plan (PIP), the agency’s assessment of
her during the PIP, or the subsequent removal action. Id. On review, the
appellant generally challenges this finding, but points to no specific evidence in
the record demonstrating why it is incorrect. PFR File, Tab 1 at 10-11.
¶7In Pridgen, 2022 MSPB 31, ¶ 46, the Board held that claims of retaliation
for engaging in activity protected by the Rehabilitation Act are to be analyzed
solely under the but-for causation standard. The Board stated that it applies
standards under the Americans with Disabilities Act, as amended by the
Americans with Disabilities Act Amendments Act of 2008, to determine whether
there has been a violation of the Rehabilitation Act. Id., ¶ 35. The Rehabilitation
Act protects reasonable accommodation requests—the protected activity at issue
in the appellant’s affirmative defense. Id., ¶ 44.
¶8We have reviewed the record, and we agree with the administrative judge’s
determination that the appellant did not satisfy the lesser motivating factor
standard, so she necessarily did not satisfy the more stringent but-for standard.
We modify the initial decision to reflect this analysis. See Haas v. Department of4
Homeland Security , 2022 MSPB 36, ¶¶ 31-32 (finding that an employee who did
not satisfy the lesser motivating factor standard necessarily did not meet the more
stringent but-for standard applicable to his retaliation claim). Any error
committed by the administrative judge in applying different standards to the
appellant’s disability discrimination and retaliation claims has not prejudiced the
appellant’s rights.2 See Panter v. Department of the Air Force , 22 M.S.P.R. 281,
282 (1984).
Remand is required in light of Santos .
¶9Though the appellant has identified no basis for us to disturb the initial
decision, we nonetheless must remand this appeal for another reason. During the
pendency of the petition for review in this case, the U.S. Court of Appeals for the
Federal Circuit held in Santos, 990 F.3d at 1360-61, that, in addition to the five
elements of the agency’s case set forth in the initial decision, the agency must
also justify the institution of a PIP by proving that the employee’s performance
was unacceptable prior to the PIP. The Federal Circuit’s decision in Santos
applies to all pending cases, including this one, regardless of when the events
took place. Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 16. We
therefore remand this case for further adjudication of the appellant’s removal
under the standard set forth in Santos. See id. (remanding the appellant’s chapter
43 appeal because the parties did not have an opportunity to address the modified
standard set forth in Santos).
¶10On remand, the administrative judge shall accept evidence and argument
regarding whether the agency proved by substantial evidence that the appellant’s
pre-PIP performance was unacceptable. The administrative judge shall hold a
supplemental hearing if appropriate. The administrative judge shall then issue a
new initial decision consistent with Santos. If the agency makes the additional
2 Because we discern no error with the administrative judge’s motivating factor analysis
or conclusions regarding the appellant’s discrimination claim, it is unnecessary for us to
address whether discrimination was a but-for cause of the removal action. See Pridgen,
2022 MSPB 31, ¶¶ 20-25.5
showing required under Santos on remand, the administrative judge may
incorporate his prior findings on other elements of the agency’s case in the
remand initial decision. However, regardless of whether the agency meets its
burden, if the argument or evidence on remand regarding the appellant’s pre-PIP
performance affects the analysis of the appellant’s affirmative defenses, the
administrative judge should address such argument or evidence in the remand
initial decision. See Spithaler v. Office of Personnel Management , 1 M.S.P.R.
587, 589 (1980) (explaining that an initial decision must identify all material
issues of fact and law, summarize the evidence, resolve issues of credibility, and
include the administrative judge’s conclusions of law and his legal reasoning, as
well as the authorities on which that reasoning rests).
ORDER
¶11For 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.6 | Flugstad_Courtney_S_AT-0432-18-0603-I-1__Remand_Order.pdf | 2024-05-23 | COURTNEY FLUGSTAD v. NATIONAL AERONAUTICS AND SPACE ADMIN, MSPB Docket No. AT-0432-18-0603-I-1, May 23, 2024 | AT-0432-18-0603-I-1 | NP |
1,369 | https://www.mspb.gov/decisions/nonprecedential/Frazier_CynthiaDA-1221-23-0055-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CYNTHIA FRAZIER,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-1221-23-0055-W-1
DATE: May 23, 2024
THIS ORDER IS NONPRECEDENTIAL1
Cynthia Frazier , Ruston, Louisiana, pro se.
Raqueal Jones , Beryl Denise Torrence , and Linda C. Fleck , New Orleans,
Louisiana, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal as barred by the doctrine of
res judicata. For the reasons discussed below, we GRANT the appellant’s
petition for review. We AFFIRM the initial decision, in part, to find that five of
the six alleged personnel actions were correctly dismissed as barred by 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).
doctrine of res judicata, REVERSE the finding that one of the six alleged
personnel actions is barred by res judicata, FIND that the appellant nonfrivolously
alleged jurisdiction over such a claim, and REMAND the case to the regional
office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2The appellant has filed several Board appeals against the agency since 2015,
which are summarized in detail in the initial decision in this appeal. Frazier v.
Department of Veterans Affairs , MSPB Docket No. DA-1221-23-0055-W-1,
Initial Appeal File (0055 IAF), Tab 13, Initial Decision (0055 ID) at 2-10. In
September 2016, the appellant received an initial decision denying corrective
action on the merits of an earlier IRA appeal, and she appealed that decision to
the Board. Frazier v. Department of Veterans Affairs , MSPB Docket No.
DA-1221-15-0584-W-1, Petition for Review (0584 PFR) File, Tab 1. While her
petition for review in the 0584 case was pending, she filed a motion in
November 2016 requesting permission to file a new IRA appeal. 0584 PFR File,
Tab 5. In November 2022,2 the Board issued a final order affirming the initial
decision in the 0584 appeal and forwarding the November 2016 motion to the
regional office for docketing as a new IRA appeal. Frazier v. Department of
Veterans Affairs , MSPB Docket No. DA-1221-15-0584-W-1, Final Order at 2, 4
(Nov. 17, 2022); 0055 IAF, Tab 1. That resulted in this appeal.
¶3In the meantime, the appellant filed another IRA appeal against the agency,
which resulted in a December 10, 2018 initial decision denying corrective action
on the merits. Frazier v. Department of Veterans Affairs , MSPB Docket No.
DA-1221-18-0034-W-2, Appeal File, Tab 26, Initial Decision (0034 ID). That
decision became final in January 2019, when neither party filed a petition for
review. Id. at 25.
2 The Board lacked a quorum and was unable to issue decisions between January 2017
and March 2022. 2
¶4Upon docketing of this appeal in November 2022, the administrative judge
issued a jurisdictional order, to which the appellant did not respond. 0055 IAF,
Tab 3. The agency filed a pleading, in part, seeking dismissal of the appeal for
lack of jurisdiction because the appellant’s claims had already been adjudicated
on the merits in two prior IRA appeals, which had both resulted in final orders.
0055 IAF, Tab 6 at 7-10. The administrative judge issued a show cause order
directing the appellant to explain why her claims should not be barred by res
judicata or collateral estoppel. 0055 IAF, Tab 7. The appellant filed a response
that did not address res judicata or collateral estoppel. 0055 IAF, Tab 11. She
asserted that she had been subjected to continuing retaliatory harassment by the
agency, continuing past 2016, and that the agency had wrongfully removed her in
April 2022. Id. at 4-7, 19.
¶5Thereafter, the administrative judge issued an initial decision dismissing the
claims identified in the November 2016 motion as barred by the doctrine of res
judicata. 0055 ID. He characterized the personnel actions as follows:
(1) negative employment references; (2) lowered performance ratings;
(3) removal of the appellant’s supervisory duties and workspace; (4) refusal of
the agency to reinstate those supervisory duties and move the appellant to a better
workspace; (5) offering the appellant a demotion; and (6) hostile work
environment. Id. at 13. He found that each of those claims had been adjudicated
in prior appeals and were therefore barred from relitigation by res judicata. Id.
at 12-13. He stated that, as to any new matters raised in the appellant’s response
to the show cause order falling outside the scope of the personnel actions listed
above, i.e., the forwarded claims, the appellant may file a new appeal on those
claims after exhausting her administrative remedies with the Office of Special
Counsel (OSC). Id. at 15 & nn.7-8.
¶6The appellant has filed a petition for review of the initial decision, and the
agency has filed a response in opposition. Frazier v. Department of Veterans3
Affairs, MSPB Docket No. DA -1221-23-0055-W-1, Petition for Review
(0055 PFR), Tabs 1, 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7On review, the appellant appears to raise objections to the administrative
judge’s findings in her prior appeals, for which there are final orders. 0055 PFR
File, Tab 1 at 4-7. She also reasserts that she was subjected to a hostile work
environment and lists general examples of the agency’s alleged wrongdoing. Id.
at 7-9. She does not make any specific challenges to the administrative judge’s
res judicata findings. Id. at 4-10.
Res judicata bars some, but not all, of the appellant’s claims.
¶8Under 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. Zgonc v. Department of Defense , 103 M.S.P.R. 666, ¶ 7 (2006), aff’d,
230 F. App’x 967 (Fed. Cir. 2007). Res judicata prevents relitigating issues that
were, or could have been, raised in the prior action and it applies when the
following criteria are met: (1) the prior decision was rendered by a forum with
competent jurisdiction; (2) the prior decision was a final decision on the merits;
and (3) the same cause of action and the same parties were involved in both cases.
Id. The Board has previously applied res judicata to bar the relitigation of IRA
appeals. Id.
¶9As set forth above, the appellant alleged that the agency retaliated against
her for protected whistleblowing in the following ways: (1) negative employment
references; (2) lowered performance ratings; (3) removal of the appellant’s
supervisory duties and workspace; (4) refusal of the agency to reinstate those
supervisory duties and move the appellant to a better workspace; (5) offering her
a demotion; and (6) hostile work environment. 0055 ID at 13. The appellant has
not challenged, and we find no reason to disturb, the administrative judge’s4
finding that res judicata bars claims 1-3, 5, and 6.3 Id. at 12-14. We disagree
with the administrative judge, however, that res judicata bars the fourth claim in
its entirety.
¶10 In claim 4, the appellant alleges that the agency refused to reinstate her
supervisory duties and move her to a better workspace in retaliation for the
following alleged whistleblower disclosures or activity: (1) a January 2013 email
to several agency officials; (2) a July 2014 email to an agency director; (3) a
December 2014 request for a Congressional inquiry; and (4) OSC activity since
2014. 0055 IAF, Tab 1 at 4-6. In a September 22, 2016 initial decision in one of
the appellant’s earlier IRA appeals against the agency, an administrative judge
noted that the appellant testified at a hearing that “she currently is not allowed to
exercise timekeeping duties and exercise other supervisory duties even though
she returned [from a prior detail].” 0034 ID at 13 n.10. The administrative judge
stated that the claim of failure to reinstate supervisory and timekeeping duties
was not before her in that appeal and she did not adjudicate it. Id. Because the
appellant did not receive a final decision on the merits of that claim, it is not
barred by res judicata.4 See Zgonc, 103 M.S.P.R. 666, ¶ 7.
¶11We next consider the appellant’s claim that the agency moved her to an
inferior office space. 0055 IAF, Tab 1 at 4-6; 0055 ID at 13. The appellant
received a final decision on the merits as to this claim in a prior IRA appeal.
0034 ID at 12-17. The administrative judge in that appeal concluded that the
appellant did not prove that the move to an inferior office space amounted to a
personnel action protected by whistleblower protection statutes. Id. The initial
3 The fact that an appellant raised a hostile work environment claim in an earlier appeal
may not bar a later hostile work environment claim that is premised on different events.
The appellant has not argued that the hostile work environment claim contained in her
November 2016 filing is premised on different events than the hostile work environment
claims adjudicated in her other IRA appeals. 0055 PFR File, Tab 1.
4 We have also reviewed the appellant’s 2015 IRA appeal and find that this claim was
not adjudicated in that appeal. Frazier v. Department of Veterans Affairs , MSPB
Docket No. DA-1221-15-0584-W-1, Final Order at 3 (Nov. 17, 2022 ).5
decision in that appeal became final in January 2019, when neither party filed a
petition for review. Id. at 25. We find that the elements of res judicata are met as
to this claim because the decision was rendered by a forum with competent
jurisdiction, the prior decision was a final decision on the merits, and the same
cause of action and the same parties were involved in both cases. See Zgonc,
103 M.S.P.R. 666, ¶ 7.
We find that the appellant has established Board jurisdiction over her claim and
we remand for a hearing on the merits.
¶12Finding that res judicata does not bar the appellant’s claim concerning the
agency’s purported failure to reinstate her supervisory duties, we next consider
whether the appellant has established jurisdiction over such a claim.5 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 or engaged in protected activity under
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the protected disclosure or
activity was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a). Salerno v. Department of the
Interior, 123 M.S.P.R. 230, ¶ 5 (2016). The Board’s regulations define a
nonfrivolous allegation as an assertion that, if proven, could establish the matter
at issue. 5 C.F.R. § 1201.4(s).
¶13The appellant has alleged that the agency refused to reinstate her
supervisory duties in retaliation for the following alleged whistleblowing:
(1) January 2013 email to several agency officials; (2) July 2014 email to an
agency director; (3) December 2014 request for a Congressional inquiry through a
senator’s office; and (4) OSC activity since 2014. 0055 IAF, Tab 1 at 4-7, 25.
5 The administrative judge notified the appellant of her jurisdictional burden and she
had an opportunity to respond to that notice. 0055 IAF, Tab 3. We may therefore
decide the jurisdictional issue without remand. See Burgess v. Merit Systems Protection
Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985 ) (stating that an appellant must receive
explicit information on what is required to establish an appealable jurisdictional issue).6
The appellant proved exhaustion.
¶14We begin our analysis with a discussion of exhaustion. An appellant must
prove exhaustion over her claims by preponderant evidence. Chambers v.
Department of Homeland Security , 2022 MSPB 8, ¶ 11; 5 U.S.C. § 1214(a)(3);
5 C.F.R. § 1201.57(c)(1). An appellant may demonstrate exhaustion through her
initial OSC complaint or correspondence with OSC. Chambers, 2022 MSPB 8,
¶ 11. In this case, the appellant has submitted her initial OSC complaint,
correspondence with OSC, and a September 2016 close-out letter. 0055 IAF,
Tab 1 at 8-26. The alleged personnel action, i.e., failure to reinstate supervisory
duties, and the alleged protected activity of prior OSC activity, are expressly
noted in OSC’s close -out letter. Id. at 25. The remaining alleged disclosures or
activity, i.e., the January 2013 and July 2014 emails to agency officials and her
request for a Congressional inquiry, are discussed in the appellant’s
correspondence with OSC. Id. at 23. We therefore find that the appellant has
proved exhaustion over her claims.
The appellant has nonfrivolously alleged that she engaged in
protected whistleblowing under 5 U.S.C. § 2302(b)(8), (9).
¶15The Board has previously found that the appellant’s January 2013 and
July 2014 emails constitute protected disclosures under 5 U.S.C. § 2302(b)(8),
and that her prior OSC activity since 2014 constitutes protected activity under
5 U.S.C. § 2302(b)(9)(C). 0034 ID at 8-10 (finding the appellant established that
her January 2013 email was a protected disclosure and that she engaged in
protected activity by filing OSC complaints since 2014); Frazier v. Department of
Veterans Affairs , MSPB Docket No. DA -1221-15-0584-W-1, Initial Appeal File,
Tab 26, Initial Decision (0584 ID) at 16-19 (finding the appellant established that
her July 2014 email was a protected disclosure). We therefore find that she has
nonfrivolously alleged jurisdiction over such disclosures and activity.
¶16The appellant is collaterally estopped from asserting jurisdiction over her
alleged disclosure concerning a December 2014 request for Congressional7
inquiry.6 Collateral estoppel, or issue preclusion, is appropriate when the issue is
identical to that involved in the prior action, the issue was actually litigated in the
prior action, the determination of the issue in the prior action was necessary to
the resulting judgment, and 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. Hau v. Department of Homeland Security , 123 M.S.P.R. 620, ¶ 13
(2016), aff’d sub nom. Bryant v. Merit Systems Protection Board , 878 F.3d 1320
(Fed. Cir. 2017). When an appellant fails to prove a claim by preponderant
evidence in an earlier appeal, she is barred by collateral estoppel from asserting
jurisdiction over the same claim in a second appeal. Id., ¶ 16. That is the case
here. In the 0034 appeal, the administrative judge found that the appellant failed
to establish by preponderant evidence that her December 22, 2014 request for a
Congressional inquiry was a protected disclosure under 5 U.S.C. § 2302(b)(8).
0034 ID at 10. The initial decision in the 0034 matter is now final. Id. at 25. In
the 0034 appeal, the issue was adjudicated on the merits after a hearing and the
determination that the request for a Congressional inquiry was not a protected
disclosure was necessary to the resulting determination to deny corrective action.
Id. at 10. The appellant had a full opportunity to litigate the matter as a party in
the 0034 appeal. Therefore, we find the Board lacks jurisdiction over this alleged
disclosure.
The appellant nonfrivolously alleged that she was subjected to a
personnel action.
¶17To establish jurisdiction over a personnel action, an individual must
nonfrivolously allege that she was subjected to a “significant change in duties,
responsibilities, or working conditions.” Skarada v. Department of Veterans
6 Although the administrative judge did not address collateral estopped in the initial
decision, we find that the appellant was on notice that collateral estoppel may preclude
some of her claims and she had an opportunity to respond to such notice. 0055 IAF,
Tab 7. 8
Affairs, 2022 MSPB 17, ¶¶ 14-15. In Skarada, 2022 MSPB 17, ¶¶ 13-18, the
Board found that the appellant nonfrivolously alleged that he was subjected to a
personnel action when, among other things, the agency removed some of his job
responsibilities. The appellant’s allegations are similar in this appeal. In an
earlier appeal, the appellant asserted that the agency retaliated against her by
subjecting her to a 90 -day detail from her supervisory position in Nutrition and
Food Services to the Nursing Service, in or around March 2015. 0055 ID at 2;
0584 ID at 5-6. The appellant appears to be alleging here that, upon the
expiration of the detail, the agency refused to reinstate her former job duties,
including timekeeping and other supervisory duties. 0034 ID at 13 n.10; 0055
IAF, Tab 1 at 7; 0055 PFR File, Tab 1 at 7. We find that the removal of
supervisory job functions is sufficient to meet the nonfrivolous allegation
standard to establish jurisdiction over a personnel action. See Skarada,
2022 MSPB 17, ¶¶ 13-18.
The appellant nonfrivolously alleged that at least one of her
whistleblowing disclosures or activity was a contributing factor to
the personnel action.
¶18We next proceed to the question of whether the appellant nonfrivolously
alleged that her protected disclosure or activity was a contributing factor in the
agency’s decision to take the alleged personnel action. See Salerno,
123 M.S.P.R. 230, ¶ 5. To satisfy the contributing factor criterion, an appellant
need only raise a nonfrivolous allegation that the fact of, or content of, the
protected disclosure was one factor that tended to affect the personnel action in
any way. Skarada, 2022 MSPB 17, ¶ 19. One way to establish this criterion is
the knowledge-timing test, under which an employee may nonfrivolously allege
that the disclosure was a contributing factor in a personnel action through
circumstantial evidence, such as evidence that the official taking the personnel
action knew of the disclosure and that the personnel action occurred within a
period of time such that a reasonable person could conclude that the disclosure9
was a contributing factor in the personnel action. Id. The Board has held that a
personnel action taken within 1 to 2 years of the appellant’s disclosure satisfies
the knowledge-timing test. Id.
¶19The Board has held that, because the respondent in a corrective action
appeal is the agency, not its individual officials, a lack of knowledge by a single
official is not dispositive to the issue of contributing factor. Karnes v.
Department of Justice , 2023 MSPB 12, ¶ 20. The Board will also 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 towards the officials taking the action, and whether these
individuals had a desire or motive to retaliate against the appellant. Dorney v.
Department of the Army , 117 M.S.P.R. 480, ¶ 15 (2012). Any doubt as to
whether the appellant made a nonfrivolous allegation must be resolved in the
appellant’s favor. See Mudd v. Department of Veterans Affairs , 120 M.S.P.R.
365, ¶ 8 (2013).
¶20In this case, and in her other Board appeals, the appellant has asserted that
numerous agency officials, including Y.J. and J.L, among others, have subjected
her to a continuing pattern of harassment since at least 2015. 0055 IAF, Tab 1
at 4-6; 0034 ID at 15-16 (discussing J.L.’s involvement in the alleged personnel
actions); 0584 ID at 5-6 (identifying Y.J. as the official responsible for the March
2015 detail). Y.J., J.L., and other officials have testified at her prior Board
hearings and therefore have actual or constructive knowledge of her protected
activity and disclosures. 0034 ID at 15; 0584 ID at 26. The appellant has alleged
that several agency officials have been involved in or condoned the March 2015
detail7 and the subsequent refusal to reinstate her job duties, and that Y.J. and J.L.
offered her a demotion in 2016 in lieu of reinstating her job duties. 0055 IAF,
Tab 1 at 5.
7 An administrative judge found that the appellant proved contributing factor with
respect to the March 2015 detail. 0584 ID at 25-27. 10
¶21The alleged failure to reinstate the appellant’s supervisory duties, occurring
in 2015 and 2016, is within 1 to 2 years of at least one of the alleged protected
disclosures or activity. Further, it appears that at least some management
officials with knowledge of her protected activity or disclosures are involved in,
or have condoned, the failure to reinstate her supervisory duties. We therefore
find that the appellant has nonfrivolusly alleged jurisdiction over her claim that
the agency failed to reinstate her supervisory duties in or around 2015 and 2016
in retaliation for the following: (1) a January 2013 email to agency officials;
(2) a July 2014 email to an agency director; and (3) her OSC activity since 2014.
These claims are remanded for a hearing on the merits.
¶22As a final matter, we acknowledge the appellant’s argument on review that
the agency has continued to harass her since 2016, through at least 2022, and we
take this opportunity to clarify that this appeal is limited to the claims identified
in this order. 0055 PFR File, Tab 1 at 4-10. As the administrative judge noted in
his initial decision in this matter, the appellant may file a new IRA appeal
regarding any claims that are outside the scope of this appeal after exhausting her
administrative remedies with OSC. 0055 ID at 14-15. The Board makes no
findings as to the timeliness of such claims.11
ORDER
¶23For 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.12 | Frazier_CynthiaDA-1221-23-0055-W-1__Remand_Order.pdf | 2024-05-23 | CYNTHIA FRAZIER v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-1221-23-0055-W-1, May 23, 2024 | DA-1221-23-0055-W-1 | NP |
1,370 | https://www.mspb.gov/decisions/nonprecedential/So_MaggieSF-315H-20-0111-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MAGGIE SO,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
SF-315H-20-0111-I-1
DATE: May 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Maggie So , Fremont, California, pro se.
Varvara E. Marmarinou , Esquire, San Francisco, California, 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 probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant argues that the agency based its termination
decision, at least in part, on preappointment reasons, and did not provide her with
the procedures required under 5 C.F.R. § 315.805. She also reiterates her
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).
allegations of discrimination.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).3
2 Although the administrative judge did not address the appellant’s allegations of
discrimination, because we agree with the administrative judge that the appellant failed
to make a nonfrivolous allegation of jurisdiction over her termination appeal, the Board
is without authority to address her discrimination claims. See Wren v. Department of
the Army, 2 M.S.P.R. 1, 2 (1980) (stating that prohibited personnel practices under
5 U.S.C. § 2302(b) are not an independent source of Board jurisdiction), aff’d, 681 F.2d
867, 871-73 (D.C. Cir. 1982).
3 With her reply to the agency’s response to her petition for review, the appellant
provides an email exchange that she had with an agency labor relations specialist at the
end of December 2019, seeking help with her appeal after the issuance of the initial
decision. Petition for Review File, Tab 4 at 6-7. She does not address the document in
her pleading, and it does not discuss the merits or the jurisdictional issue in her appeal.
Id. Thus, although it is new, i.e., issued after the close of the record, it is not material
and also does not show that the administrative judge erred in finding that she failed to
make a nonfrivolous allegation of jurisdiction over her appeal.2
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.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.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. 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 | So_MaggieSF-315H-20-0111-I-1__Final_Order.pdf | 2024-05-23 | MAGGIE SO v. DEPARTMENT OF THE TREASURY, MSPB Docket No. SF-315H-20-0111-I-1, May 23, 2024 | SF-315H-20-0111-I-1 | NP |
1,371 | https://www.mspb.gov/decisions/nonprecedential/John_Daniel_P_DC-315H-20-0186-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL P. JOHN,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
DC-315H-20-0186-I-1
DATE: May 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Daniel P. John , Lanham, Maryland, pro se.
Byron D. Smalley , Esquire, 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 probationary termination appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
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).
For the first time on review, the appellant argues that the agency
discriminated against him on the following bases: race; national origin; sexual
orientation; sex; religion; partisan political reasons; age; disability; parental
status; and marital status.2 Petition for Review (PFR) File, Tab 1 at 8, 11.3 He
further challenges the agency’s performance-based reasons for his termination,
arguing that his supervisors failed to provide him with proper guidance,
counseling, and opportunities. Id. at 8-16. The appellant has failed to explain
why, despite his due diligence, he was unable to raise such arguments prior to
when the record before the administrative judge closed. See Banks v. Department
of the Air Force , 4 M.S.P.R. 268, 271 (1980) (finding that the Board generally
will not consider an argument raised for the first time in a petition for review
absent a showing that it is based on new and material evidence not previously
available despite the party’s due diligence). Therefore, we decline to consider the
appellant’s new arguments on review.4
Accordingly, we affirm the initial decision.
2 The appellant raised a general claim of discrimination in his initial appeal. Initial
Appeal File, Tab 1 at 3, Tab 2 at 3.
3 The appellant has resubmitted documentary evidence that already is a part of the
record before the administrative judge. Compare PFR File, Tab 1 at 7, 18-20, with
Initial Appeal File, Tab 2 at 6-8, Tab 5 at 9.2
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.
4 After filing his petition for review, the appellant filed a motion for leave to submit an
additional pleading. PFR File, Tab 5. Specifically, it appears that he is requesting to
resubmit a February 15, 2020 pleading that was rejected by the Office of the Clerk of
the Board. PFR File, Tab 3, Tab 5 at 3. He asserts that the February 15, 2020 pleading
contains corrections to his February 14, 2020 petition for review (specifically,
regarding the full names of individuals, dates of events, and additional details about his
employment). PFR File, Tab 1, Tab 5 at 3. For purposes of this case, the record on
review closed on the expiration of the period for filing a reply to the response to the
petition for review. See 5 C.F.R. § 1201.114(k). Once the record on review closes, no
additional evidence or argument will be accepted unless it is new and material and the
party submitting it shows that the evidence or argument was not readily available before
the record closed. Id. Here, the appellant claims that the delay in his submission of
documents was due to personal circumstances and the coronavirus pandemic. PFR File,
Tab 5 at 3. In any event, we find that the appellant’s description of the February 15,
2020 pleading fails to suggest that he made any material corrections to the petition for
review. Id. Therefore, we deny the appellant’s motion for leave to submit an additional
pleading. See 5 C.F.R. § 1201.114(a)(5), (k).
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.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.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
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. 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 | John_Daniel_P_DC-315H-20-0186-I-1__Final_Order.pdf | 2024-05-23 | DANIEL P. JOHN v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DC-315H-20-0186-I-1, May 23, 2024 | DC-315H-20-0186-I-1 | NP |
1,372 | https://www.mspb.gov/decisions/nonprecedential/Pierce_HarveySF-1221-19-0044-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HARVEY PIERCE,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-1221-19-0044-W-1
DATE: May 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
James Hefflin , Newport Beach, California, for the appellant.
Andre E. Long , Esquire, Point Mugu, California, for the agency.
Jennifer F. Hoffmann , Esquire, and Joseph Boggs , Esquire, China Lake,
California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
apply the Board’s recent decision in Skarada v. Department of Veterans Affairs ,
2022 MSPB 17, to the appellant’s claim, we AFFIRM the initial decision.
BACKGROUND
The appellant is employed by the agency as a Flight Test Specialist. Initial
Appeal File (IAF), Tab 7 at 34. His wife also worked for the agency. Id. at 37.
In October 2018, the agency served the appellant with a notice to appear for a
deposition regarding an IRA appeal filed by his wife,2 and ordered him to bring
certain documents to the deposition. IAF, Tab 1 at 26, Tab 7 at 31-33. The
agency also issued the appellant a litigation hold notice3 instructing him to
2 The appellant’s wife’s IRA appeal was dismissed as moot on her own request. Pierce
v. Department of the Navy , MSPB Docket No. SF-1221-18-0667-W-1, Initial Decision
(Feb. 27, 2019). On March 28, 2019, the Equal Employment Opportunity Commission
denied her petition seeking review of the initial decision. Pierce v. Department of the
Navy, MSPB Docket No. SF-1221-18-0667-W-1, Petition for Review File, Tab 1.
In his wife’s appeal, the appellant filed motions for a protective order—alleging that the
agency was harassing him through the use of the discovery process—which the
administrative judge denied. Pierce v. Department of the Navy , MSPB Docket No.
SF-1221-18-0667-W-1, Initial Appeal File, Tab 44.
3 A litigation hold is a notice issued in anticipation of a lawsuit or investigation,
ordering employees to preserve documents and other materials relevant to that lawsuit
or investigation. Black’s Law Dictionary 800 (9th ed. 2009). Such notices are not2
preserve certain documentary evidence he might have related to his wife’s appeal,
and informed him that the destruction of such documents could subject him and
the agency “to sanctions or other adverse consequences.” IAF, Tab 7 at 12-15.
The appellant filed a complaint with the Office of Special Counsel (OSC),
alleging that the agency’s actions constituted threats of removal and were taken
because of his wife’s whistleblowing activity. IAF, Tab 1 at 23. After OSC
closed its investigation into his complaint, id. at 31, the appellant filed this IRA
appeal, IAF, Tab 1. Before the Board, the appellant also indicated that the
agency’s actions constituted harassment and intimidation. IAF, Tab 8 at 11, 13.
He also alleged that the agency’s actions were in retaliation for his opposition to
discrimination and participation in equal employment opportunity proceedings.
Id. at 11-12.
In his initial decision, the administrative judge made a conclusory finding
that the appellant exhausted his remedies with OSC. IAF, Tab 10, Initial
Decision (ID) at 4. He also found that the appellant nonfrivolously alleged that
his wife’s whistleblowing activities afforded him protection from retaliation. ID
at 4-5. The administrative judge concluded, however, that the appellant failed to
nonfrivolously allege that the agency threatened him with a personnel action.4 ID
at 5-6.
Regarding the appellant’s claim that the agency’s actions constituted
harassment and intimidation, the administrative judge interpreted the claim as an
allegation that the appellant was subjected to a significant change in working
conditions. ID at 6 (citing IAF, Tab 8 at 11, 13). The administrative judge then
found that it did not appear that the appellant exhausted this claim with OSC. ID
uncommon in litigation, including in actions before the Board.
4 The administrative judge found that, to the extent the appellant alleged that the agency
discriminated and retaliated against him based on the grounds listed in 5 U.S.C.
§ 2302(b)(1), the Board lacked jurisdiction over such claims in the absence of an
appealable action. ID at 8-9. We discern no error in that finding. See Davis v.
Department of Defense , 105 M.S.P.R. 604, ¶ 16 (2007). 3
at 6-7. The administrative judge nonetheless went on to find that the appellant
failed to nonfrivolously allege that he was subjected to such a “significant
change” in his working conditions. ID at 8. He therefore dismissed the
appellant’s IRA appeal for lack of jurisdiction. ID at 9.
The appellant has filed a petition for review, merely stating that the appeal
was wrongly decided based on the evidence in the record.5 Petition for Review
(PFR) File, Tab 2. The agency has filed a response. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant failed to nonfrivolously allege that he was threatened with a
personnel action.
In order to prevail in his IRA appeal, the appellant must prove that the
agency threatened, proposed, took, or failed to take a “personnel action,” as
defined in 5 U.S.C. § 2302(a)(2)(A). 5 U.S.C. § 2302(b)(8), (b)(9); Rebstock
Consolidation v. Department of Homeland Security , 122 M.S.P.R. 661, ¶ 9
(2015). The term “threatened” is afforded a broad interpretation, such that an
agency does not have to state that disciplinary action is being proposed or
specifically reference a particular kind of discipline in order to constitute a
threatened personnel action. Gergick v. General Services Administration ,
43 M.S.P.R. 651, 656-57 (1990). Nevertheless, for a statement to constitute a
threat of a personnel action, the agency must take some action signifying its
intent to take a personnel action. Rebstock, 122 M.S.P.R. 661, ¶ 12.
Here, the litigation hold notice informed the appellant, in pertinent part,
that a failure to follow rules requiring the protection of documents pertinent to his
wife’s litigation “could expose both the [agency] and possibly various [agency]
employees to significant sanctions,” and that the destruction of covered
documents without authorization “may subject you and the [agency] to sanctions
or other adverse consequences.” IAF, Tab 7 at 12. We find that the appellant
5 The appellant sought review of the initial decision with the Equal Employment
Opportunity Commission, which denied his request for review. Petition for Review
File, Tab 1. 4
failed to nonfrivolously allege that this notice constitutes a threat of a personnel
action for the following reasons: (1) the language in the notice is conditional in
nature; (2) rather than seeking to correct past misconduct or poor performance,
the notice merely informed the appellant of his responsibilities to the agency
relating to his wife’s litigation that he may not have been familiar with; and
(3) the “sanctions” and “adverse consequences” mentioned in the notice were
undefined and not necessarily directed at the appellant as the notice mentioned
possible sanctions against the agency if pertinent documents were lost.6 Cf.
Campo v. Department of the Army , 93 M.S.P.R. 1, ¶¶ 7-8 (2002) (finding that the
appellant was threatened with a personnel action when he was issued a
memorandum of warning that described his recent conduct, indicated that the
conduct bordered on insubordination, and unequivocally stated that if there were
any further instances of such conduct he would be charged with an offense for
which he could be removed); Koch v. Securities & Exchange Commission , 48
F. App’x 778, 787 (Fed. Cir. 2002)7 (“A wide range of agency rules, directives,
and counseling measures contain the message, implicit or explicit, that failure to
follow those directives or to meet expectations may have adverse
consequences . . . [N]ot all such general statements . . . constitute actionable
‘threats’ to take adverse action within the meaning of the Whistleblower
Protection Act.”).
The appellant failed to nonfrivolously allege that he suffered a significant change
in duties, responsibilities, or working conditions.
Although it is unclear whether the appellant exhausted with OSC his claim
that he was subjected to a “significant change” in his working conditions, the
administrative judge proceeded to discuss the appellant’s claim, ultimately
6 See Kirkendall v. Department of the Army , 573 F.3d 1318, 1327 (Fed. Cir. 2009)
(finding that, in litigation before the Board, agencies can be subjected to an adverse
inference sanction for the negligent loss of evidence).
7 The Board may follow a nonprecedential decision of the U.S. Court of Appeals for the
Federal Circuit when it finds its reasoning persuasive. Morris v. Department of the
Navy, 123 M.S.P.R. 662, ¶ 13 n.9 (2016).5
concluding that the appellant failed to nonfrivolously allege that he suffered a
significant change in duties, responsibilities, or working conditions. ID at 6-8.
Any error in the administrative judge’s reasoning in this regard is of no
significance as he ultimately dismissed the appeal for lack of jurisdiction.
See Clark v. Department of the Army , 93 M.S.P.R. 563, ¶¶ 8-9 (2003) (finding it
immaterial whether the appellant exhausted his OSC remedy because the Board
lacked jurisdiction over his IRA appeal on other grounds), aff’d, 361 F.3d 647
(Fed. Cir. 2004). Because the administrative judge did not have the benefit of the
Board’s recent decision in Skarada, 2022 MSPB 17, in considering the
appellant’s claim, we modify the initial decision to apply the recent precedent.
Under the Whistleblower Protection Act (WPA), “personnel action” is
defined as including a “significant change in duties, responsibilities, or working
conditions.” 5 U.S.C. § 2302(a)(2)(A)(xii); Skarada, 2022 MSPB 17, ¶ 14. In
Skarada, we clarified that while the term “hostile work environment” has a
particular meaning in other contexts, allegations of a hostile work environment
may establish a personnel action under the WPA only if they meet the statutory
criteria, i.e., constitute a significant change in duties, responsibilities, or working
conditions. Skarada, 2022 MSPB 17, ¶ 16. We further explained that although
the “significant change” personnel action should be interpreted broadly to include
harassment and discrimination that could have a chilling effect on whistleblowing
or otherwise undermine the merit system, only agency actions that, individually
or collectively, have practical and significant effects on the overall nature and
quality of an employee’s working conditions, duties, or responsibilities will be
found to constitute a personnel action covered by section 2302(a)(2)(A)(xii). Id.
Even without the benefit of Skarada, the administrative judge found that to
establish a “significant change” personnel action, the appellant had to show that
the agency’s actions in this case, either individually or cumulatively, had a
significant change in his working conditions, duties, or responsibilities. ID
at 6-7. We find that this provided the appellant with sufficient notice as to how,6
on review, he could nonfrivolously allege that he was subjected to such a
“significant change” personnel action. See Caracciolo v. Department of the
Treasury, 105 M.S.P.R. 663, ¶ 11 (2007) (finding that the failure to provide an
appellant with proper jurisdictional notice in an acknowledgment order or
show-cause order can be cured if the initial decision itself puts the appellant on
notice of what she must do to establish jurisdiction so as to afford her the
opportunity to meet her jurisdictional burden for the first time on review),
overruled on other grounds by Brookins v. Department of the Interior ,
2023 MSPB 3.
On review, the appellant does not argue that he nonfrivolously alleged that
the agency’s actions in this case, either individually or cumulatively, had a
significant change in his working conditions, duties, or responsibilities. PFR
File, Tab 2. Nor, after reviewing the record, do we find that the appellant made
such a nonfrivolous allegation regarding the agency’s actions of commanding him
to appear for a deposition and ordering him to preserve any documents pertinent
to his wife’s Board appeal.
We therefore dismiss this IRA appeal for lack of jurisdiction.
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
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 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
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
http://www.mspb.gov/probono for information regarding pro bono representation8
for Merit Systems Protection Board appellants before the 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,
and your representative receives this decision before you do, then you must file9
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address: 10
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Pierce_HarveySF-1221-19-0044-W-1__Final_Order.pdf | 2024-05-23 | HARVEY PIERCE v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-1221-19-0044-W-1, May 23, 2024 | SF-1221-19-0044-W-1 | NP |
1,373 | https://www.mspb.gov/decisions/nonprecedential/Caffrey_MariaDE-1221-20-0015-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARIA CAFFREY,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
DE-1221-20-0015-W-1
DATE: May 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lauren Kurtz , Esquire, New York, New York, for the appellant.
Stuart Shapiro , Lakewood, Colorado, 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 individual right of action appeal for lack of jurisdiction because she
failed to make a nonfrivolous allegation that she was an agency “employee” under
5 U.S.C. § 2105(a). On petition for review, the appellant alleges the following:
(1) the administrative judge’s statutory interpretation was unduly rigid; (2) the
administrative judge erred in finding that she did not meet the definition 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).
“employee” under a joint employer theory; and (3) she should be considered an
agency employee based on public policy considerations. Petition for Review File,
Tab 1 at 6-8, Tab 4 at 4-5. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
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 | Caffrey_MariaDE-1221-20-0015-W-1__Final_Order.pdf | 2024-05-23 | MARIA CAFFREY v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. DE-1221-20-0015-W-1, May 23, 2024 | DE-1221-20-0015-W-1 | NP |
1,374 | https://www.mspb.gov/decisions/nonprecedential/Bolton_HarrielAT-315H-19-0724-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HARRIEL BOLTON,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-315H-19-0724-I-1
DATE: May 23, 2024
THIS ORDER IS NONPRECEDENTIAL1
Herman E. Millender , Esquire, Talladega, Alabama, for the appellant.
Susan B. Bennett and Polly Russell , Esquire, Anniston, Alabama, 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 his termination appeal as untimely filed without good cause shown.
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 Department of the Army hired the appellant in November 2015 as a
Sandblaster to a term appointment not to exceed (NTE) 1 year. Initial Appeal
File (IAF), Tab 1 at 6. In April 2018, the agency converted the appellant to a
career-conditional Sandblaster position in the competitive service.2 IAF, Tab 8
at 30-31. On September 27, 2018, the agency terminated the appellant during his
probationary period based on 27 hours of absence without leave. Id. at 10-14.
According to the agency, when it converted the appellant to a career-conditional
appointment in April 2018, he became subject to a 2-year probationary period.
Id. at 11. The agency’s termination notice accordingly informed the appellant
that he could appeal his termination to the Board if he believed the action was
based on partisan political reasons or marital status. Id. The termination notice
further informed the appellant that he had 30 calendar days to submit such an
appeal. Id.
The appellant filed an appeal with the Board on August 20, 2019. IAF,
Tab 1 at 1. According to the appellant, he learned on August 13, 2019, that he
was incorrectly labeled a probationary employee and, as such, should have had
“Due Process” before his termination. Id. at 3. Recognizing that his appeal was
beyond the 30-day deadline to file, he argued that because he received the
incorrect appeal rights, the deadline to file his appeal should be waived. He
further suggested that his marital status played a role in his termination. Id.
The administrative judge informed the appellant that his appeal appeared to
be untimely filed and outlined how the appellant could either demonstrate that his
appeal was timely or that good cause existed for the delay in filing. IAF, Tab 4
at 2-4. The appellant responded, again asserting that he was incorrectly informed
that he was a probationary employee, he should have been given 5 U.S.C.
chapter 75 appeal rights as part of his termination, and because of the agency’s
2 The record is unclear as to how the appellant continued his employment as a
Sandblaster after the expiration of his 1-year NTE, but it appears that he remained
employed with the agency throughout this time. IAF, Tab 6 at 3, Tab 8 at 17. 2
misinformation, the deadline to file should be waived based on “Equitable
Tolling.” IAF, Tab 6 at 2. He further asserted that, after he was hired by the
agency in November 2015, he worked for 2 1/2 years in the same duty station
under the same job status. Id. at 3. Finally, he again suggested that his marital
status, and in particular his interracial marriage, played a role in his termination.
Id.
The administrative judge subsequently issued an initial decision dismissing
the appeal as untimely filed. IAF, Tab 11, Initial Decision (ID) at 1. The
administrative judge found that the appellant’s deadline to file his appeal was
October 29, 2018, and his appeal on August 20, 2019, was nearly 10 months late.
ID at 2. The administrative judge further found that the appellant failed to
establish good cause for the untimely filing and that the doctrine of equitable
tolling did not apply. ID at 2-4. Because he found no good cause for the
untimely filing, the administrative judge did not address the jurisdictional issues
raised in the appeal. ID at 5.
The appellant has filed a petition for review, and the agency has responded.
Petition For Review (PFR) File, Tabs 1, 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The record is unclear as to whether the appellant is an “employee” with chapter
75 appeal rights, and thus whether he received the correct notice of appeal rights
upon his termination.
The appellant, both below and on review, asserts that he is an employee
with chapter 75 appeal rights because he served in the same position for
2 1/2 years and was no longer a probationary employee. IAF, Tab 6 at 2-3;
PFR File, Tab 1 at 2. According to the agency, the appellant was subject to a
2-year probationary period starting on April 15, 2018, the date he was converted
to a career-conditional appointment. IAF, Tab 8 at 11, Tab 9 at 6. The
administrative judge did not address this issue, and the record is not developed
enough for us to resolve it on review. 3
To qualify as an “employee” with appeal rights under 5 U.S.C. § 7511, the
appellant, as a competitive-service employee, must show that he is either not
serving a probationary period or has completed 1 year of current continuous
service under an appointment other than a temporary one limited to 1 year or less.
5 U.S.C. § 7511(a)(1)(A) (2016); Baggan v. Department of State , 109 M.S.P.R.
572, ¶ 5 (2008). An exception to this rule is that, if the appellant is a “covered
employee” under 10 U.S.C. § 1599e (repealed 2022), he must show that he is not
serving the 2-year initial probationary period prescribed under that section or that
he has completed 2 years of current continuous service.3 Bryant v. Department of
the Army, 2022 MSPB 1, ¶¶ 8-9; see 5 U.S.C. § 7511(a)(1)(A) (2016). Prior
Federal civilian service can be credited towards completion of a later
probationary period in a competitive service position if the employee shows the
following: (1) the prior service was rendered immediately preceding the
probationary appointment; (2) it was performed in the same agency; (3) it was
performed in the same line of work; and (4) it was completed with no more than
one break in service of less than 30 days. Baggan, 109 M.S.P.R. 572, ¶ 5;
5 C.F.R. § 315.802(b); IAF, Tab 8 at 32, 35.
The record here demonstrates that the appellant was hired as a Sandblaster
on November 16, 2015, NTE 1 year. IAF, Tab 1 at 6. The record suggests, but is
not clear, that the appellant continued working in this capacity at least until 2018.
IAF, Tab 8 at 17. On April 15, 2018, the appellant was converted to a
Sandblaster by a career-conditional appointment in the competitive service. Id.
at 30-31. Although it appears as though the appellant’s prior Federal civilian
service is creditable towards his probationary period, the record is unclear
regarding the specifics about his work between his initial hiring in 2015 and his
conversion in 2018. Moreover, it is unclear whether the work performed in the
interim was in the same line of work and without any breaks in service. On
3 An employee in the competitive service with the Department of the Army, being a
component of the Department of Defense, is a “covered employee.” 10 U.S.C.
§ 1599e(b)(1); Bryant v. Department of the Army , 2022 MSPB 1, ¶¶ 8-9.4
remand, the administrative judge shall inform the appellant of his burden of
establishing jurisdiction and provide him with an opportunity to demonstrate that
he is an employee with chapter 75 appeal rights.
If the appellant sufficiently demonstrates that he is an employee with chapter 75
appeal rights, then he has established good cause for the delay in filing his
appeal, and the administrative judge should reverse his termination for lack of
minimum due process.
If the appellant on remand shows that he is an employee with chapter 75
appeal rights, then the notice of appeal rights contained in his probationary
termination was incorrect. IAF, Tab 8 at 11. Compare 5 C.F.R. § 315.806, with
5 U.S.C. §§ 7513(d), 7701(a). An appellant bears the burden of proving through
preponderant evidence that his appeal was timely filed with the Board.4
Kirkland v. Department of Homeland Security , 119 M.S.P.R. 74, ¶ 5 (2013);
5 C.F.R. § 1201.56(b)(2)(i)(B). The Board will dismiss an untimely appeal unless
the appellant establishes good cause for the delayed filing. Kirkland,
119 M.S.P.R. 74, ¶ 5. Normally, in order 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. Id. However, an
agency’s failure to notify an employee of correct Board appeal rights when such
notification is required generally constitutes good cause. Id., ¶ 6; see Smart v.
Department of Justice , 113 M.S.P.R. 393, ¶ 10 (2010), overruled on other
grounds by Smart v. Department of Justice , 116 M.S.P.R. 582 (2011); see also
Walker v. Merit Systems Protection Board , 194 F.3d 1337 (Fed. Cir. 1999)
(Table).5 Thus, when an agency provides inadequate notice of Board appeal
rights, the appellant is not required to show that he exercised due diligence in
4 The administrative judge found that the appellant’s appeal was untimely filed by
almost 10 months. ID at 2. The parties do not challenge this finding, and we see no
reason to disturb it on review.
5 The Board may rely on unpublished decisions of the U.S. Court of Appeals for the
Federal Circuit when, as here, we find the court’s reasoning persuasive. Mauldin v.
U.S. Postal Service , 115 M.S.P.R. 513, ¶ 12 (2011).5
attempting to discover his appeal rights, but rather, must show due diligence in
filing the appeal after learning that he could. Kirkland, 119 M.S.P.R. 74, ¶ 6.
Here, the appellant asserts that he learned on August 13, 2019, that he was
potentially incorrectly labeled as a probationary employee when he was
terminated. IAF, Tab 1 at 3. He subsequently filed an initial appeal on
August 20, 2019, seven days after learning he could have brought an adverse
action appeal. Id. at 1. Filing an appeal within 7 days of learning you can
amounts to due diligence. See Kirkland, 119 M.S.P.R. 74, ¶¶ 7, 9 (finding an
appellant exercised due diligence in filing an appeal within 30 days of learning
that she could). Accordingly, if the appellant on remand establishes that he is an
“employee” with chapter 75 appeal rights, then he has shown good cause for the
untimely filing of his appeal. If the appellant is such an employee, then the
Board has jurisdiction over the appeal, and the administrative judge would have
to reverse the termination, for lack of minimum due process, because the agency
terminated the appellant without providing him with the procedural rights he is
entitled to under chapter 75. IAF, Tab 8 at 11-14; see Ajaye El v. U.S. Postal
Service, 52 M.S.P.R. 351, 356-57 (1992); see also Stephen v. Department of the
Air Force, 47 M.S.P.R. 672, 680-81 (1991) (reversing the appellant’s termination
when the agency failed to provide him minimum due process rights such as prior
notice of the charges and an opportunity to respond).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 | Bolton_HarrielAT-315H-19-0724-I-1__Remand_Order.pdf | 2024-05-23 | HARRIEL BOLTON v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-315H-19-0724-I-1, May 23, 2024 | AT-315H-19-0724-I-1 | NP |
1,375 | https://www.mspb.gov/decisions/nonprecedential/Taber_William_M_AT-0752-16-0709-C-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM M. TABER,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-0752-16-0709-C-1
DATE: May 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Vicki S. Fuller , Redstone Arsenal, Alabama, for the appellant.
Angela Slate Rawls , Redstone Arsenal, Alabama, 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 petition for enforcement as untimely filed without good cause
shown 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; 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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
Effective July 8, 2016, the agency removed the appellant from his position
as a GS-12 Equipment Specialist (Aircraft). Taber v. Department of the Army ,
MSPB Docket No. AT-0752-16-0709-I-1, Initial Appeal File (IAF), Tab 2 at 1-4.
He appealed his removal to the Board, and the parties subsequently reached an
agreement to settle the appeal. IAF, Tabs 1, 13-15. In an October 4, 2016 initial
decision, the administrative judge entered the settlement agreement into the
record for purposes of enforcement by the Board, and he dismissed the appeal as
settled. IAF, Tab 16, Initial Decision (ID) at 1-2.
On or about June 25, 2019, the appellant filed a petition for enforcement
alleging that the agency had breached the settlement agreement by failing to pay
him “30 days back pay.” Taber v. Department of the Army , MSPB Docket No.
AT-0752-16-0709-C-1, Compliance File (CF), Tab 1 at 1.2 The administrative
judge issued a show cause order explaining that the appellant’s petition for
enforcement may be untimely, and he informed the appellant of his burden of
2 Although the administrative judge referred to the filing date as June 28, 2019, CF,
Tab 11 at 2, it appears that the petition was postmarked June 25, 2019, CF, Tab 1 at 6.
This minor discrepancy in the context of a nearly 3-year filing delay is immaterial to
the outcome of this proceeding. 2
proof to establish either the timeliness of his petition or that good cause existed
for the delay. CF, Tab 6 at 1-2 (citing 5 C.F.R. § 1201.182(a)). The
administrative judge ordered the appellant to file a response addressing the
timeliness issue, CF, Tab 6 at 2; however, apart from designating a
representative, CF, Tab 7 at 1-2, the appellant did not respond.
Thereafter, on August 8, 2019, the administrative judge issued a
compliance initial decision on the written record dismissing the appellant’s
petition for enforcement as untimely filed. CF, Tab 11, Compliance Initial
Decision (CID) at 1, 3. In so doing, the administrative judge explained that the
appellant had not responded to his order on timeliness, and, therefore, he had
failed to show that good cause existed for his nearly 3-year delay in filing his
petition for enforcement. CID at 3.
Later that same day, the appellant faxed a document entitled “MOTION
FOR RECONSIDERATION” to the regional office, which was forwarded to the
Office of the Clerk of the Board. Compliance Petition for Review (CPFR) File,
Tab 1, Tab 2 at 1. In this August 8, 2019 filing, the appellant averred that his
representative encountered difficulties with “the MSPB system,” and he indicated
that she did not receive any Board filings other than the initial decision. CPFR
File, Tab 1 at 2. The Office of the Clerk of the Board requested clarification as to
whether the August 8, 2019 filing constituted a petition for review. CPFR File,
Tab 2 at 1.3 Thereafter, on September 12, 2019, the appellant filed a document
entitled “PETITION FOR REVIEW” wherein he asserted that he did not receive
an opportunity to show cause. CPFR File, Tab 3 at 2. The agency has responded
in opposition, contending, among other things, that the appellant had sufficient
opportunity to explain his untimeliness but that he failed to do so.4 CPFR File,
Tab 5 at 5.
3 In so requesting, the Acting Clerk of the Board explained that the office had attempted
to contact the appellant’s representative via email on two occasions, but it had not
received a response. CPFR File, Tab 2 at 1 n.*.3
DISCUSSION OF ARGUMENTS ON REVIEW
A petition for enforcement alleging a breach of a settlement agreement
must be filed within a reasonable time after the petitioner becomes aware of the
breach. Kasarsky v. Merit Systems Protection Board , 296 F.3d 1331, 1335 (Fed.
Cir. 2002) (citing Adamcik v. U.S. Postal Service , 48 M.S.P.R. 493, 496 (1991)).
The time is measured from the point at which the petitioner has “actual
knowledge of a specific act that constitutes a breach, not merely an
unsubstantiated suspicion.” Poett v. Merit Systems Protection Board , 360 F.3d
1377, 1381 (Fed. Cir. 2004).
We discern no basis to disturb the administrative judge’s reasoned
conclusion that the appellant’s petition for enforcement should be dismissed as
untimely filed without good cause shown. CID at 1, 3. To this end, the initial
decision dismissing the appellant’s removal appeal as settled provided that “[a]ny
petition for enforcement must be filed promptly after you discover the asserted
noncompliance.” ID at 2. Thus, the appellant received notice that he had a
limited amount of time to file a petition for enforcement following the discovery
of a breach of the parties’ agreement. Cf. Price v. Department of the Navy ,
49 M.S.P.R. 525, 526-27 (1991) (finding that the appellant established good
cause for her 7-month delay in filing a petition for enforcement when, among
other things, neither the initial decision in the removal appeal nor the settlement
agreement specified a time for filing a petition for enforcement). As set forth in
the compliance initial decision, the appellant filed his petition for enforcement
4 In so asserting, the agency avers, among other things, that the parties discussed the
show cause order during a telephone conference with the administrative judge. CPFR
File, Tab 5 at 4. In his August 8, 2019 filing, the appellant’s representative
acknowledges that she took part in a telephone call with the agency representative and
the administrative judge, but she suggests that the administrative judge only ordered the
appellant to designate a representative. CPFR File, Tab 1 at 2. Apart from the parties’
assertions on review, the record is devoid of information regarding the purpose or scope
of this conference call. We find it unnecessary to resolve any dispute in this regard
because the appellant has failed to show good cause for waiving the time limit even
accepting his version of the conference call. 4
nearly 3 years after the initial decision dismissing his removal appeal as settled,
and he neither explained when he became aware of the alleged breach of the
parties’ agreement nor alleged that he filed his petition within a reasonable time
thereafter. CID at 3; see Kasarsky, 296 F.3d at 1335.
On review, the appellant again fails to explain when he became aware of
the alleged breach of the parties’ settlement agreement or why he waited nearly
3 years to file his petition for enforcement. CPFR File, Tabs 1, 3. Instead, he
asserts that (1) his representative encountered difficulties with “the MSPB
system,” and (2) he “filed a grievance about the pay and then later withdrew the
grievance and filed for enforcement with the MSPB.” CPFR File, Tab 1 at 2,
Tab 3 at 2. Both of these assertions are unavailing.
Here, the record indicates that the appellant was served electronically with
a copy of both the show cause order and the initial decision. CF, Tab 6 at 3, Tab
12 at 1. Thus, the appellant’s assertions regarding his representative’s difficulties
with the Board’s filing system and her alleged nonreceipt of certain Board filings
are immaterial. See White v. Department of Justice , 103 M.S.P.R. 312, ¶ 12
(2006) (explaining that the appellant has a personal responsibility to monitor the
progress of his appeal at all times and not to leave the matter entirely in the hands
of his representative), aff’d, 230 F. App’x 976 (Fed. Cir. 2007); see also Sofio v.
Internal Revenue Service , 7 M.S.P.R. 667, 670 (1981) (explaining that an
appellant is responsible for the errors of his chosen representative). In any event,
the appellant’s petition for review fails to contain any material argument or
evidence bearing on the timeliness issue. See 5 C.F.R. § 1201.114(b) (explaining
that a petition for review must, among other things, include all of the party’s legal
and factual arguments).
The appellant’s assertion that he filed a grievance is also unavailing. CPFR
File, Tab 3 at 2. Although unclear, the appellant may be alleging that his petition
for enforcement was timely filed because he awaited the outcome of an internal
agency grievance process before filing with the Board. See id. However, the5
record is devoid of any specific evidence or argument regarding the nature or
timing of the appellant’s alleged grievance. Moreover, an appellant’s pursuit of
his appeal rights in another forum does not constitute good cause for an untimely
filing. Chudson v. Environmental Protection Agency , 71 M.S.P.R. 115, 118 -19
(1996), aff’d, 132 F.3d 54 (Fed. Cir. 1997).
Accordingly, we affirm the initial decision.
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
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 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. 6
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file7
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 8
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 9
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Taber_William_M_AT-0752-16-0709-C-1__Final_Order.pdf | 2024-05-23 | WILLIAM M. TABER v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-0752-16-0709-C-1, May 23, 2024 | AT-0752-16-0709-C-1 | NP |
1,376 | https://www.mspb.gov/decisions/nonprecedential/Williams_Matthew_P_PH-3443-19-0164-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MATTHEW PHILLIP WILLIAMS,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
PH-3443-19-0164-I-1
DATE: May 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Matthew Phillip Williams , Howell, New Jersey, pro se.
Christopher Lazas , Esquire, Fort Dix, New Jersey, 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 his directed reassignment for lack of
jurisdiction. On petition for review, the appellant argues that he should not be
reassigned to the new position because he lacks the requisite expertise and
appropriate skills to complete the duties of the new position, and that the
agency’s decision to reassign him constitutes “harassment.” 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).
File, Tab 1 at 4-9. 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).
2 For the first time on review, the appellant asserts that he was reassigned from his
position based on the fact that he cannot wear a required respirator due to his “military
shaving profile,” and indicates that agency officials verbally informed him that this was
the reason for his reassignment. Petition for Review File, Tab 1 at 4, 20-21.
To whatever extent the appellant is asserting that the agency’s decision to reassign him
was based on his prior uniformed service in violation of the Uniformed Services
Employment and Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C.
§§ 4301-4335), or that the decision was made in violation of his veterans’ preference
rights under 5 U.S.C. § 3330a, he may file a new appeal with the Board on these
matters. We express no opinion as to the Board’s jurisdiction over, or his likelihood of
prevailing in, such an appeal.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions to provide a comprehensive
summary of all available review options. As indicated in the notice, the Board cannot
advise which option is most appropriate in any matter. 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. 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
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 | Williams_Matthew_P_PH-3443-19-0164-I-1__Final_Order.pdf | 2024-05-23 | MATTHEW PHILLIP WILLIAMS v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-3443-19-0164-I-1, May 23, 2024 | PH-3443-19-0164-I-1 | NP |
1,377 | https://www.mspb.gov/decisions/nonprecedential/Matsch_Randy_L_PH-1221-18-0080-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RANDY L. MATSCH,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.DOCKET NUMBER
PH-1221-18-0080-W-1
DATE: May 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Randy L. Matsch , Portsmouth, Rhode Island, pro se.
Niamh Eileen Doherty , Esquire, Boston, Massachusetts, for the agency.
Sharon Bogart , New York, New York, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
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 initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
clarify that the appellant failed to make a nonfrivolous allegation of a personnel
action as defined in 5 U.S.C. § 2302(a), we AFFIRM the initial decision.
BACKGROUND
The appellant resigned from his position as a GS-12 Safety and
Occupational Health Specialist. Initial Appeal File (IAF), Tab 8 at 8-10, Tab 9
at 10-11. Thereafter, he filed a complaint with the Office of Special Counsel
(OSC) alleging that the agency had subjected him to a hostile work environment
in retaliation for his participation in an investigation into unauthorized agency
hiring practices. IAF, Tab 1 at 9. The appellant contended that the hostile work
environment forced him to resign. Id.
After OSC closed its investigation, the appellant filed an appeal with the
Board alleging that agency management retaliated against him as a result of his
whistleblowing activity. Id. at 5, 9. The administrative judge issued an order
noting that the appellant’s claim appeared to constitute an IRA appeal. IAF,
Tab 4 at 1. She explained the circumstances under which the Board has
jurisdiction to adjudicate such appeals, and she ordered both the appellant and the
agency to file evidence and argument regarding jurisdiction. Id. at 1-7.
3
In response, the appellant asserted, among other things, that the agency had
denied him training opportunities, increased his workload, and permitted a
coworker to harass him in retaliation for his participation in an agency Office of
the Inspector General (OIG) investigation. IAF, Tab 9 at 1-3. He also provided
voluminous annotated documentation both supporting these allegations and
levying additional allegations of reprisal. Id. at 4-286. In response, the agency
contended, among other things, that the appellant had voluntarily resigned and
that the agency had not taken any personnel action against him. IAF, Tab 10
at 4-12.
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 13, Initial Decision (ID) at 1, 26. Specifically, the administrative judge
found that, although the appellant had engaged in protected activity described
under 5 U.S.C. § 2302(b)(9)(C) and had exhausted his administrative remedies
before OSC regarding most of the issues he raised with the Board, he failed to
nonfrivolously allege that his protected activity was a contributing factor in any
alleged personnel action. ID at 6, 8, 26. She further found that the appellant
failed to make a nonfrivolous allegation that his resignation was involuntary. ID
at 24-26.
The appellant has filed a petition for review of the initial decision, and the
agency has responded in opposition. Petition for Review (PFR) File, Tabs 1, 3.
In his petition for review, the appellant avers that agency management harassed
him in retaliation for his protected activity and contends that his resignation was
involuntary. PFR File, Tab 1 at 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
To establish jurisdiction in a typical IRA appeal, an appellant must show
by preponderant evidence that he exhausted his remedies before OSC and make
4
nonfrivolous allegations2 of the following: (1) he made a disclosure described
under 5 U.S.C. § 2302(b)(8) or engaged in a 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). We agree with the administrative judge
that the appellant’s assertions pertaining to his participation in an agency OIG
investigation constitute a nonfrivolous allegation that he engaged in a protected
activity pursuant to 5 U.S.C. § 2302(b)(9)(C). ID at 8; see Fisher v. Department
of the Interior, 2023 MSPB 11, ¶ 8 (explaining that, in light of the broad language
of 5 U.S.C. § 2302(b)(9)(C), 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). However, although the
administrative judge summarized in detail the “numerous events that [the
appellant] believed constituted personnel actions,” she did not render an explicit
finding as to whether the appellant made a nonfrivolous allegation of a personnel
action as defined by 5 U.S.C. § 2302(a). ID at 8-22.
Upon review of the record, we agree with the administrative judge’s
assessment that the appellant made 36 separate claims of agency personnel
actions. IAF, Tab 9 at 6-7; ID at 6, 8 -23. The appellant’s allegations
seemingly pertain to 3 of the 12 covered personnel actions enumerated in
5 U.S.C. § 2302(a)(2)(A)(i)-(xii). IAF, Tab 9 at 6-7. Specifically, he alleged that
the agency significantly changed his working conditions, denied him various
training opportunities, and forced him to resign. Id.; see 5 U.S.C. § 2302(a)(2)
(A)(iii), (ix), (xii). For the reasons set forth herein, we find that the appellant did
not make a nonfrivolous allegation of a personnel action as defined by 5 U.S.C.
§ 2302(a).
2 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
5
The appellant has not nonfrivolously alleged a significant change in duties,
responsibilities, or working conditions pursuant to 5 U.S.C. § 2302(a)(2)(A)(xii).
As summarized in the initial decision, the appellant made numerous claims
involving workplace harassment. IAF, Tab 9 at 6-7; ID at 8-19. He specifically
alleged, among other things, that he overheard agency management yelling
expletives and making offensive statements, which he presumed to be in reference
to him. IAF, Tab 9 at 6, 143, 255, 283. He further averred that a management
official yelled at him and that a separate agency official likened his behavior to
that of a “buzzard.” Id. at 6-7, 266, 284. He also rendered a series of allegations
pertaining to management’s oversight of his workload and contended that agency
management had failed to intervene when a coworker began antagonizing him.
Id. at 7, 138, 149, 162-64.
As relevant to these allegations, the definition of “personnel action”
includes “any . . . significant change in duties, responsibilities, or working
conditions.” 5 U.S.C. § 2302(a)(2)(A)(xii). The Board has found that, although
“significant change” should be interpreted broadly to include harassment and
discrimination that could have a chilling effect on whistleblowing or otherwise
undermine the merit system, only agency actions that, individually or
collectively, have practical consequence for an appellant constitute a personnel
action covered by section 2302(a)(2)(A)(xii). Skarada v. Department of Veterans
Affairs, 2022 MSPB 17, ¶¶ 15-16. To this end, the agency actions must have
significant effects on the overall nature and quality of the appellant’s working
conditions, duties, or responsibilities. Id.
Upon review of the record, we find that the appellant failed to make
allegations that, individually or collectively, amounted to a significant change in
his working conditions. See 5 U.S.C. § 2302(a)(2)(A)(xii); Skarada, 2022 MSPB
17, ¶¶ 15-16. Of note, in the appellant’s allegations of vulgarity and profanity in
the office related to private conversations that the appellant overhead from behind
closed doors, he did not allege that any profanity was directed at him. IAF, Tab 9
6
at 6, 143, 283. In any event, he has failed to nonfrivolously allege how these
incidents, individually or collectively, had a significant effect on the overall
nature and quality of his working conditions, duties, or responsibilities.
Similarly, the thrust of the appellant’s allegations pertaining to his antagonistic
coworker related to management’s alleged failure to intervene in a distressing
interpersonal conflict rather than any proactive change in working conditions
impelled by agency officials.3 Id. at 7; see Shivaee v. Department of the Navy ,
74 M.S.P.R. 383, 389 (1997) (finding that emotional stress is not, in and of itself,
a covered personnel action); cf. Covarrubias v. Social Security Administration ,
113 M.S.P.R. 583, ¶¶ 8, 15 n.4 (2010) (finding that the appellant made
nonfrivolous allegations of a significant change in working conditions because
she alleged, among other things, that her supervisors harassed her about personal
telephone calls and closely monitored her whereabouts, to include following her
to the bathroom), overruled on other grounds by Colbert v. Department of
Veterans Affairs , 121 M.S.P.R. 677, ¶ 12 n.5 (2014). Lastly, we find that the
appellant’s generalized disagreements with how the agency managed his
workload do not amount to a nonfrivolous allegation of a significant change
resulting in practical consequence. IAF, Tab 9 at 6-7, 121; see Skarada,
2022 MSPB 17, ¶¶ 15-16.
The appellant did not make a nonfrivolous allegation that the agency denied him
training opportunities pursuant to 5 U.S.C. § 2302(a)(2)(A)(ix).
The appellant also alleged before the administrative judge that the agency
denied him various training opportunities. IAF, Tab 9 at 7; ID at 20-23. “[A]
decision concerning . . . training” is a personnel action if it “may reasonably be
expected to lead to an appointment, promotion, performance evaluation, or other
[personnel] action [as described in 5 U.S.C. § 2302(a)(2)(A).]”
3 The record suggests that, from 2013 to 2014, the appellant had a series of disputes
with a nonsupervisory coworker. IAF, Tab 9 at 7. On one occasion, Federal Protective
Service personnel responded after the other individual accused the appellant of
intentionally bumping into his shoulder. Id. at 162-67.
7
5 U.S.C. § 2302(a)(2)(A)(ix). Thus, under the explicit terms of the statute, not all
denials of training opportunities are covered personnel actions. Id.; see Simone v.
Department of the Treasury , 105 M.S.P.R. 120, ¶ 9 (2007); see also Shivaee ,
74 M.S.P.R. at 387 (explaining that there must be, at a minimum, a moderate
probability that the training would have resulted in some type of personnel
action).
Thus, the appellant must have alleged before the administrative judge not
only that the agency denied him training opportunities but also that the denied
opportunities may reasonably have led to an appointment, promotion,
performance evaluation, or similar action; here, the appellant rendered no such
allegations. See 5 U.S.C. § 2302(a)(2)(A)(ix). Accordingly, the appellant did not
make a nonfrivolous allegation of a personnel action under 5 U.S.C. § 2302(a)(2)
(A)(ix).
The appellant did not make a nonfrivolous allegation of a personnel action
pursuant to 5 U.S.C. § 2302(a)(2)(A)(iii).
The appellant also contended before the administrative judge that
intolerable working conditions forced him to resign. IAF, Tab 9 at 3. The
appellant reiterates this assertion on review, contending that agency management
employed “harassing and bullying behavior” and that he would not have resigned
from his position but for this behavior. PFR File, Tab 1 at 4-5.
Included in the relevant definition of “personnel action” is “an action under
chapter 75 of this title or other disciplinary or corrective action.”
5 U.S.C. § 2302(a)(2)(A)(iii). Because an involuntary resignation is tantamount
to a constructive removal action under 5 U.S.C. chapter 75, if the appellant
renders nonfrivolous allegations that his resignation was involuntary, he thereby
renders nonfrivolous allegations of a personnel action pursuant to
5 U.S.C. § 2302(a)(2)(A)(iii). See Colbert, 121 M.S.P.R. 677, ¶¶ 12-13 & n.5.
The Board has recognized that employee-initiated actions that appear
voluntary on their face are not always so and that the Board may have jurisdiction
8
over such actions as constructive adverse actions. Bean v. U.S. Postal Service ,
120 M.S.P.R. 397, ¶ 7 (2013). All constructive adverse actions have two things
in common: (1) the employee lacked a meaningful choice in the matter; and (2) it
was the agency’s wrongful actions that deprived the employee of that choice. Id.,
¶ 8. In analyzing voluntariness, the touchstone is whether, considering the
totality of the circumstances, factors operated on the employee’s decision-making
process that deprived him of his freedom of choice. Vitale v. Department of
Veterans Affairs , 107 M.S.P.R. 501, ¶ 19 (2007); see also Bean, 120 M.S.P.R.
397, ¶¶ 8, 11 (explaining that the agency’s wrongful actions must have deprived
the employee of a meaningful choice). In assessing voluntariness, the Board must
consider all of the surrounding circumstances, including events not immediately
preceding the subject resignation. Shoaf v. Department of Agriculture , 260 F.3d
1336, 1342 (Fed. Cir. 2001).
Here, the appellant has not alleged facts that, if proven, could demonstrate
that he lacked freedom of choice. See Bean, 120 M.S.P.R. 397, ¶ 8; see also
Miller v. Department of Defense , 85 M.S.P.R. 310, ¶ 32 (2000) (explaining that
an employee is not guaranteed a working environment free of stress and that
difficult or unpleasant working conditions generally are not so intolerable as to
compel a reasonable person to resign). Thus, we agree with the administrative
judge that, even viewing the appellant’s allegations collectively, he nonetheless
failed to make a nonfrivolous allegation that he lacked a meaningful choice
regarding his resignation. ID at 25; see Shoaf, 260 F.3d at 1342.
On review, the appellant alleges for the first time that his temporary detail4
to another office location also impelled his resignation.5 PFR File, Tab 1 at 5.
4 Although the appellant refers to the agency’s action as a “reassignment,” the record
reflects that, approximately 2 weeks prior to his resignation, the agency placed the
appellant on a temporary detail not to exceed 45 days. PFR File, Tab 1 at 5; IAF, Tab 9
at 17.
5 “[A] detail, transfer, or reassignment” may constitute a personnel action. 5 U.S.C.
§ 2302(a)(2)(A)(iv). However, because the appellant did not raise his temporary detail
before OSC, the Board is unable to consider the same as an independent personnel
9
To this end, he asserts only that the detail “was the ultimate action that finally
[led him] to resign.” Id. The Board generally will not consider factual assertions
and legal arguments raised for the first time on review absent a showing that they
are based on new and material evidence that was not available prior to the close
of the record despite the party’s due diligence. See Banks v. Department of the
Air Force, 4 M.S.P.R. 268, 271 (1980). As the appellant provides no explanation
as to why he did not raise this specific argument prior to the close of the record,
he has not made such a showing. 5 C.F.R. § 1201.115(d). Moreover, we find the
appellant’s generalized assertion in this regard does not constitute a nonfrivolous
allegation that he was subjected to a constructive removal action, even considered
in conjunction with his other allegations. PFR File, Tab 1 at 5.
Accordingly, because the appellant failed to make a nonfrivolous allegation
of a cognizable agency personnel action that he raised before OSC, we agree with
the administrative judge that the Board lacks jurisdiction over his IRA appeal.
See 5 U.S.C. § 2302(a)(2)(A)(i)-(xii); Salerno, 123 M.S.P.R. 230, ¶ 5.
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
action for purposes of this IRA appeal. 5 U.S.C. § 1214(a)(3); IAF, Tab 1 at 7-9, Tab 9
at 4-9; see Briley v. National Archives & Records Administration , 236 F.3d 1373, 1377
(Fed. Cir. 2001) (“The Board’s jurisdiction is limited to issues raised before the
OSC.”).
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.
10
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
http://www.mspb.gov/probono for information regarding pro bono representation
11
for Merit Systems Protection Board appellants before the 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,
and your representative receives this decision before you do, then you must file
12
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.7 The court of appeals must receive your petition for
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.
13
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.
14
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. | Matsch_Randy_L_PH-1221-18-0080-W-1__Final_Order.pdf | 2024-05-23 | RANDY L. MATSCH v. DEPARTMENT OF LABOR, MSPB Docket No. PH-1221-18-0080-W-1, May 23, 2024 | PH-1221-18-0080-W-1 | NP |
1,378 | https://www.mspb.gov/decisions/nonprecedential/Marade_MarkDC-0432-18-0365-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARK MARADE,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.DOCKET NUMBER
DC-0432-18-0365-I-2
DATE: May 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mark Marade , Chesapeake, Virginia, pro se.
Rolando N. Valdez , Esquire, 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 removal appeal as settled. For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
Effective February 9, 2018, the agency removed the appellant from his
position as a GS-12 Economist. Marade v. Department of Labor , MSPB Docket
No. DC-0432-18-0365-I-1, Initial Appeal File (IAF), Tab 1 at 3-14, Tab 5 at 13.
He appealed his removal to the Board, and the parties subsequently reached an
agreement to settle the appeal. IAF, Tab 1; Marade v. Department of Labor ,
MSPB Docket No. DC-0432-18-0365-I-2, Refiled Appeal File (RAF), Tab 5. In a
November 26, 2018 initial decision, the administrative judge entered the
settlement agreement into the record for purposes of enforcement by the Board,
and she dismissed the appeal as settled. RAF, Tab 6, Initial Decision (ID) at 1-2.
The administrative judge notified the appellant that the initial decision would
become final on December 31, 2018, unless a petition for review was filed by that
date. ID at 3.
DISCUSSION OF ARGUMENTS ON REVIEW
On October 1, 2019, the appellant filed a petition for review with the
Board. Petition for Review (PFR) File, Tab 1.2 In his petition, the appellant
contends that the settlement agreement erroneously informed him that the
deadline by which he needed to apply for disability retirement benefits with the
Office of Personnel Management (OPM) was February 18, 2019. PFR File, Tab 2
at 3-4. The appellant asserts that he applied for disability retirement benefits
prior to this date but that OPM denied his application as untimely because it was
not filed by February 8, 2019. Id.
Thereafter, the Office of the Clerk of the Board notified the appellant that
his petition for review was untimely and explained that he must file a motion
asking the Board to accept the petition for review as untimely and/or to waive the
time limit for good cause. PFR File, Tab 3 at 2. The appellant did not respond.
2 On October 5, 2019, the Office of the Clerk of the Board contacted the appellant and
informed him that his petition for review was partially illegible. PFR File, Tab 3 at 1.
Later that same day, the appellant filed a supplementary, legible petition for review.
PFR File, Tab 2.2
The agency has responded to the appellant’s petition for review, arguing that it is
untimely with no good cause shown and that the appellant has not shown a basis
for disturbing the initial decision. PFR File, Tab 4 at 4-10. Specifically, the
agency contends that, although the settlement agreement contained a
typographical error, i.e., it stated that the appellant must file an application for
disability retirement benefits not later than February 18, 2019, in lieu of
February 8, 2019, this error was readily apparent to the appellant, and, in any
event, he did not show that the error resulted in the denial of his application for
disability retirement under the Federal Employees’ Retirement System (FERS).
Id. at 4, 7-10.
A petition for review must be filed within 35 days after the issuance of the
initial decision, or, if the petitioner shows that he received the initial decision
more than 5 days after the date of the issuance, within 30 days after the date he
received the initial decision. 5 C.F.R. § 1201.114(e). Here, the initial decision
was issued on November 26, 2018, and sent to the appellant via U.S. mail the
same day. RAF, Tab 7 at 1. The appellant does not allege that he did not receive
the initial decision within 5 days of its issuance; accordingly, his petition for
review is untimely by approximately 9 months. PFR File, Tabs 1-2; see 5 C.F.R.
§ 1201.114(e).
The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g).
To establish good cause for an untimely filing, the appellant must show that he
exercised due diligence or ordinary prudence under the particular circumstances
of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184 (1980).
In determining whether there is good cause, the Board considers the length of the
delay, the reasonableness of the excuse and showing of due diligence, whether the
appellant is proceeding pro se, and whether he has presented evidence of the
existence of circumstances beyond his control that affected his ability to comply
with the time limits or of unavoidable casualty or misfortune that similarly shows3
a causal relationship to his inability to file a timely petition. See Wyeroski v.
Department of Transportation , 106 M.S.P.R. 7, ¶ 7, aff’d, 253 F. App’x 950
(Fed. Cir. 2007).
We find that the appellant has not demonstrated good cause for the
untimely filing of his petition for review. His 9-month delay in filing is
significant. See, e.g., Dean v. U.S. Postal Service , 100 M.S.P.R. 556, ¶ 5 (2005)
(finding a 6-month delay not minimal); Floyd v. Office of Personnel Management ,
95 M.S.P.R. 260, ¶ 6 (2003) (finding a 1-month delay not minimal).
The appellant’s pro se status alone does not excuse his significant filing delay.
See Dean, 100 M.S.P.R. 556, ¶ 5. Moreover, the appellant provides no
explanation for his late filing despite being given an opportunity to do so.
The appellant’s failure to address the timeliness of his petition for review and the
lack of evidence of circumstances beyond his control or of unavoidable casualty
or misfortune that prevented him from filing a timely petition for review weigh
against finding good cause. See Cabarloc v. Department of Veterans Affairs ,
112 M.S.P.R. 453, ¶¶ 9-10 (2009) (finding no good cause for the pro se
appellant’s 10-day delay in filing a petition for review when he did not respond to
the Clerk’s notice regarding timeliness).
Moreover, the argument contained in the appellant’s petition for review and
supplement does not establish good cause for his untimeliness.3 The appellant
appears to contend that he was unaware that the settlement agreement set forth
the incorrect date by which he needed to file his application for FERS disability
benefits until OPM denied his application as untimely. PFR File, Tab 2 at 3-4.
To the extent the appellant is alleging that his unawareness in this regard
3 The appellant asserts that he applied for disability benefits. PFR File, Tab 2 at 3-4. In
response, the Office of the Clerk of the Board explained that, to the extent he was
alleging that his health impacted his ability to meet filing deadlines, he needed to
provide additional information. PFR File, Tab 3 at 7 n.1. The appellant did not
respond. Thus, we find that he did not demonstrate good cause for his untimely filing
on the basis of illness, or mental or physical capacity. See Lacy v. Department of the
Navy, 78 M.S.P.R. 434, 437 (1998); see also Stribling v. Department of Education ,
107 M.S.P.R. 166, ¶ 8 (2007).4
constitutes good cause for his delay in filing, we find his assertion unavailing.
Here, the appellant’s employment with the agency ended on February 9, 2018,4
IAF, Tab 5 at 13, and the contested provision of the settlement agreement stated
as follows, “Appellant understands that he may apply to [OPM] for [disability
retirement under FERS] up to one (1) year from the date of his separation from
[the agency] (i.e., no later than Tuesday, February 18, 2019),” RAF, Tab 5 at 5
(emphasis added). Thus, the error in the settlement agreement was readily
discoverable, and his allegations relate to information of which he was aware, or
could have been aware, at the time he entered into the agreement. See Wilson v.
General Services Administration , 15 M.S.P.R. 45, 47 (1983) (finding that the
appellant had not shown good cause for his untimeliness because, among other
things, he did not show that the “new” information on which he relied was
unavailable, despite due diligence, before the record closed) .
Moreover, even assuming that the error was not readily discoverable by the
appellant prior to the close of the record, the appellant does not explain when
OPM denied his application, i.e., he did not allege when he learned of the “new
and material” evidence. PFR File, Tab 2 at 3-4. Thus, we are unable to ascertain
whether he acted promptly upon discovery of the same.5 For this reason, we find
that he has not established good cause for the late filing of his petition for review.
See Robinson v. Veterans Administration , 33 M.S.P.R. 483, 486-87 (1987)
(finding that the appellant did not show good cause for his untimeliness when he
did not verify when he learned of the existence of his allegedly new and material
evidence).
4 To this end, the settlement agreement lists the dates of the appellant’s employment
with the agency as July 2, 2000, through February 9, 2018. RAF, Tab 5 at 7.
5 Here, the agency’s opposition to the appellant’s petition for review placed the
appellant on notice of his need to provide additional information about the timing and
basis of OPM’s alleged decision; however, he did not file a reply with additional detail.
PFR File, Tab 4 at 6, 9-10; see Cabarloc, 112 M.S.P.R. 453, ¶ 9.5
Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the dismissal of his removal appeal as settled.
NOTICE OF APPEAL 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).
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 | Marade_MarkDC-0432-18-0365-I-2__Final_Order.pdf | 2024-05-23 | MARK MARADE v. DEPARTMENT OF LABOR, MSPB Docket No. DC-0432-18-0365-I-2, May 23, 2024 | DC-0432-18-0365-I-2 | NP |
1,379 | https://www.mspb.gov/decisions/nonprecedential/Shirley_Kyle_W_CH-0752-18-0509-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KYLE WAYNE SHIRLEY,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
CH-0752-18-0509-I-1
DATE: May 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Darrin W. Gibbons , Richmond, Virginia, for the appellant.
Patricia A. Hargrave and Susan E. Gibson , 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 his removal for medical inability to perform the essential duties of his
position. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
apply the proper standard for the agency’s charge, to supplement the
administrative judge’s analysis of the appellant’s disability discrimination claims
by finding that he is not a qualified individual with a disability, and to find that
the penalty of removal is within the tolerable limits of reasonableness, we
AFFIRM the initial decision.
BACKGROUND
The appellant held the GS-1811-12 position of Deputy United States
Marshal (DUSM) (Criminal Investigator) with the agency’s United States
Marshals Service. Initial Appeal File (IAF), Tab 10 at 7-8.2 In September 2012,
he injured his lower back and spine while on duty. IAF, Tab 9 at 65, Tab 10
at 16. As explained in the initial decision, the appellant underwent a series of
four back surgeries from July 2013 through May 2016. IAF, Tab 42, Initial
Decision (ID) at 2-4. Beginning in March 2016, the appellant received workers’
compensation and did not perform any work. IAF, Tab 10 at 17, 32. In a June
2 The parties and the record documentation refer to the appellant’s GS-1811 position as
both DUSM and Criminal Investigator. IAF, Tab 10 at 7-8, 14, Tab 11 at 51-52.
The record indicates that there is a separate GS-082 DUSM position. IAF, Tab 16 at 6,
44. For clarity’s sake, we have referred to the appellant’s position as DUSM in this
Final Order.2
2016 physician evaluation report, the appellant’s treating physician indicated that
he could not perform aggressive law enforcement activities and estimated his
return to duty in December 2016. IAF, Tab 11 at 17-18. In July 2016, the agency
made a fitness -for-duty determination concluding that the appellant was
medically disqualified for his DUSM position based on his back injury. IAF,
Tab 10 at 61-64. After the appellant appealed the determination, IAF, Tab 11
at 4-15, the agency again found him medically disqualified in November 2016,
IAF, Tab 10 at 49-51. The agency informed the appellant of options including
law enforcement retirement, medical disability retirement, accommodation and
reassignment, and resignation. Id. at 50.
The appellant did not choose any of those options, and the agency proposed
his removal in March 2017 based on the charge of medical inability to perform
the essential duties of his DUSM position. Id. at 26-30. Among other things, the
agency noted that the medical standards for law enforcement positions require the
incumbent to have a musculoskeletal system allowing the individual to carry out
the essential functions of the job. Id. at 26. The agency further noted that the
essential duties of the appellant’s DUSM position involved “potentially
dangerous and hazardous situations, including stationary or moving surveillance,
search and seizure activities, pursuit and restraint of suspects, and prisoner
transport and arrests.” Id. The agency concluded that his current diagnosis and
the side effects of his back injury prohibited him from “performing vigorous
exertional exercise and aggressive law enforcement activities.” Id.
The appellant, through his representative, acknowledged during his oral reply that
he could not perform his duties. Id. at 15. However, based on his treating
physician’s opinion, he claimed that he would be able to return to duty after a
fifth back surgery that was unscheduled. Id. at 19-22. The deciding official
sustained his removal, effective April 21, 2017. Id. at 7-10.
The appellant thereafter filed a formal equal employment opportunity
(EEO) complaint concerning his removal, IAF, Tab 9 at 33, 39-41, and he applied3
for disability retirement, IAF, Tab 18 at 4-7. After receiving a final agency
decision on his EEO complaint, IAF, Tab 9 at 20-32, the appellant filed the
instant appeal of his removal with the Board, and he requested a hearing,
IAF, Tab 1 at 1-7. He raised the affirmative defenses of disability discrimination
based on disparate treatment and a failure to accommodate, and retaliation for
requesting a reasonable accommodation and for filing prior EEO complaints.
ID at 13-16; IAF, Tab 21 at 5-6, Tab 23 at 3.
After holding a telephonic hearing, the administrative judge issued an
initial decision affirming the agency’s removal action. ID at 1, 17. Specifically,
she found that the agency met its burden of proving the charge and that the
penalty of removal promotes the efficiency of the service. ID at 8-12. She
further found that the appellant did not meet his burden of proving the affirmative
defenses. ID at 13-16.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1.3 The agency has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly considered Dr. T.A.’s written report despite his
absence at the hearing.
In proposing the appellant’s removal, the agency relied on a June 2016
report in which Dr. T.A. conducted an independent medical review of the
appellant’s medical documentation. IAF, Tab 10 at 27-28, 65-67. After both
parties requested Dr. T.A. as a witness, IAF, Tab 15 at 10, Tab 21 at 6, the
3 The appellant does not dispute, and we decline to disturb, the administrative judge’s
finding that he failed to prove his claims of retaliation for requesting a reasonable
accommodation and for filing prior EEO complaints regarding disability discrimination
and retaliation. ID at 13-16; IAF, Tab 9 at 62. In our recent decision, Pridgen v. Office
of Management and Budget , 2022 MSPB 31, ¶¶ 44-47, we held that such claims are
analyzed under the “but for” causation standard, i.e., if the agency would not have taken
the same action in the absence of the protected activity. Here, even if we applied the
“but for” causation standard to the appellant’s retaliation claims, he would not be able
to meet it because the administrative judge found that he failed to meet the lower
motivating factor standard. ID at 15-16.4
administrative judge approved him as a witness and granted the agency’s motion
to issue him a subpoena to testify at the hearing, IAF, Tab 20, Tab 23 at 4,
Tab 32.4 However, Dr. T.A. did not appear at the hearing. IAF, Tab 39,
Hearing Recording (HR). The administrative judge discussed Dr. T.A.’s report in
the initial decision. ID at 4.
In his petition for review, the appellant challenges the agency’s purported
inability to locate Dr. T.A. and the administrative judge’s reliance on Dr. T.A.’s
report. PFR File, Tab 1 at 4, 7. We discern no reason to disturb the initial
decision based on such alleged errors. The Board’s regulations establish
procedures for enforcing a subpoena and for postponing a hearing upon motion by
a party. 5 C.F.R. §§ 1201.51(c), 1201.85(a). Here, the appellant does not allege,
and the record does not suggest, that he availed himself of such procedures that
might have led to Dr. T.A.’s appearance at the hearing. See Porter v. Department
of the Navy, 6 M.S.P.R. 301, 305-06 (1981) (finding that the presiding official
properly proceeded with the hearing in the subpoenaed witness’s absence when
no motion for enforcement was submitted, either orally during the hearing or in
writing prior to the issuance of the initial decision); see also Kinsey v. U.S. Postal
Service, 12 M.S.P.R. 503, 505-06 (1982) (finding that the appellant could not
claim harm on review by the agency’s refusal to provide documents when he
failed to avail himself of the Board’s discovery and subpoena procedures).
Even if the appellant had raised Dr. T.A.’s absence as an issue at the hearing, he
has not explained how Dr. T.A.’s testimony could have changed the outcome of
this appeal. See Thomas v. U. S. Postal Service , 116 M.S.P.R. 453, ¶ 4 (2011)
(explaining 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 relevant evidence, which could have affected the
outcome, was disallowed) . Further, we find that, pursuant to 5 C.F.R.
4 According to the agency, Dr. T.A. is a former Government contractor and not a
Federal employee. IAF, Tab 20 at 5, Tab 28 at 4.5
§ 1201.41(b)(3), it was within the administrative judge’s discretion to consider
Dr. T.A.’s report as relevant medical evidence. See Tisdell v. Department of the
Air Force, 94 M.S.P.R. 44, ¶ 13 (2003) (observing that an administrative judge
has wide discretion to receive relevant evidence); see also Borninkhof v.
Department of Justice , 5 M.S.P.R. 77, 83 (1981) (stating that it is well-settled law
that relevant hearsay evidence is admissible in administrative proceedings).
We affirm the administrative judge’s finding that the agency proved its charge, as
modified to apply the correct standard set forth in Haas v. Department of
Homeland Security , 2022 MSPB 36, ¶¶ 15, 20.
After the administrative judge issued the initial decision, the Board issued
Haas, 2022 MSPB 36, ¶¶ 10-15, which clarified the standard for analyzing an
agency’s charge of inability to perform based on a current medical condition.
Although we agree with the administrative judge’s finding that the agency proved
its charge, we modify the initial decision to apply the correct standard set forth in
Haas. ID at 8-9. We find that remand is unnecessary because the existing record
is fully developed on the relevant issues, and we discern no prejudice to the
appellant’s substantive rights. See, e.g., Haas, 2022 MSPB 36, ¶ 20. Further, we
vacate as unnecessary the administrative judge’s findings that the agency showed
that the appellant had a disabling condition that is disqualifying and that a
recurrence of his back pain cannot be ruled out. ID at 8-9.
The Board held in Haas that, regardless of whether an employee occupies a
position with medical standards, if an agency removes an employee for inability
to perform based on a current medical condition, the agency must prove either a
nexus between the employee’s medical condition and observed deficiencies in his
performance or conduct, or a high probability, given the nature of the work
involved, that his condition may result in injury to himself or others.
Haas, 2022 MSPB 36, ¶¶ 15 & n.3, 20. In other words, the agency must establish
that the appellant’s medical condition prevents him from being able to safely and
efficiently perform the core duties of his position. Id., ¶ 20. In determining6
whether the agency has met its burden, the Board will consider whether a
reasonable accommodation, short of reassignment, exists that would enable the
appellant to safely and efficiently perform his core duties. Id., ¶ 25. The Board
has indicated that the core duties of a position are synonymous with the essential
functions of a position under the Americans with Disabilities Act of 1990 (ADA),
as amended by the ADA Amendments Act of 2008, i.e., the fundamental job
duties of the position, not including marginal functions. Id., ¶ 21. One of the
bases for finding that a function is essential is that it is the “reason the position
exists.” Id.; 29 C.F.R. § 1630.2(n)(2)(i).
Here, the administrative judge found that the duties of the appellant’s
DUSM position are to apprehend fugitives, execute arrest warrants, transfer
prisoners in hands-on operations, control crowds, and protect the Federal
judiciary. ID at 9. The appellant does not challenge this finding on review,
which is consistent with the relevant position description and the associated
medical standards. IAF, Tab 11 at 52-58, Tab 16 at 6, 44, 70. Accordingly, we
find that the administrative judge properly described the appellant’s core duties as
set forth above.
We further find that the agency proved by preponderant evidence that, at
the time of the appellant’s removal in April 2017, he had a medical condition that
prevented him from being able to safely and efficiently perform the core duties of
his position. The appellant’s position description states that the work “requires
considerable and strenuous physical exertion such as long periods of standing,
walking, and running over rough, rocky, uneven, and hazardous terrain; crawling
in restrictive areas; and climbing fences and walls,” as well as the ability “to
protect themselves or others from physical attacks at any time and without
warning.” IAF, Tab 11 at 57. The appellant’s treating physician indicated in
Physician Evaluation Reports dated August and December 2016 that he was
restricted from heavy lifting and carrying (45 pounds and heavier), reaching
above the shoulder, running, climbing stairs, stooping, crawling, standing or7
sitting for long periods of time, and aggressive law enforcement activities.
IAF, Tab 10 at 56-59. In a July 2017 letter, the appellant’s treating physician
stated that he “continues to experience pain which is aggravated by even minimal
activity and is only able to do minimal bending, twisting or stooping” and he “is
not able to reach overhead or walk for more than one block without severe
aggravation of his pain.” Id. at 6. The appellant, through his representative,
conceded during his oral reply that he was not medically fit for duty. Id. at 15.
Further, the appellant does not dispute his treating physician’s medical opinions.
Moreover, the record reflects that, despite being informed of the option to request
an accommodation in response to the agency’s determinations in July and
November 2016 that he was not medically qualified for the DUSM position, he
did not do so. IAF, Tab 10 at 49-51, 53-55, 61-64, Tab 11 at 4-6, 14-15;
see Clemens v. Department of the Army , 120 M.S.P.R. 616, ¶¶ 2, 5, 9 (2014)
(finding that the agency proved the charge of physical inability to perform the
duties of the position when, among other things, the appellant did not suggest or
request an accommodation). Based on the foregoing, we agree with the
administrative judge’s conclusion that the agency proved its charge of medical
inability to perform the essential duties of the DUSM position. ID at 8-9.
On review, the appellant claims that he requested a reasonable
accommodation to perform a lifting procedure during a training exercise.
PFR File, Tab 1 at 6; IAF, Tab 21 at 10-11. However, given the undisputed
severity of the appellant’s medical restrictions at the time of his removal, we are
not persuaded that he would have been able to perform safely a lifting procedure
with a reasonable accommodation. The appellant further claims that he did not
believe he was entitled to a reasonable accommodation based on a
December 2015 email in which the Affirmative Employment Programs Chief
advised him that his position does not allow for reasonable accommodations.
PFR File, Tab 1 at 6; IAF, Tab 21 at 9. However, we find that his alleged belief
was unreasonable because the agency clearly informed him of the option to8
request an accommodation in July and November 2016. IAF, Tab 10 at 49-51,
61-64. Based on the foregoing, we find that the appellant’s arguments regarding
the following issues are immaterial to whether the agency proved its charge:
the probative weight of the agency’s medical opinions; the credibility of the
agency’s witnesses; the administrative judge’s reliance on “stale information”;
her consideration of the length of time he was out of work; and her finding that
the recurrence of his back pain cannot be ruled out. PFR File, Tab 1 at 4-7;
ID at 8-9. To the extent such arguments relate to his claim that he has fully
recovered from his medical condition, we will address them as part of our penalty
analysis below.
We affirm the administrative judge’s finding that the appellant failed to prove his
disability discrimination claims, as modified to find that he is not a qualified
individual with a disability.
The appellant reasserts on review his disability discrimination claims under
the theories of failure to accommodate and disparate treatment. PFR File, Tab 1
at 4-7. For the following reasons, we affirm the administrative judge’s finding
that the appellant failed to prove such claims, as modified to find that he is not a
qualified individual with a disability. ID at 13-16. Further, we vacate as
unnecessary the administrative judge’s findings that the appellant proved that he
is an individual with a disability, proved that the agency took its action as a result
of a disabling back condition, did not assert there was a reasonable
accommodation under which he believes he could perform the essential functions
of his position or of a vacant position, and did not meet his burden of showing
that disability discrimination was a motivating factor in his removal.5
ID at 14-16.
5 Because we vacate such findings, we decline to address the appellant’s argument that
the administrative judge improperly determined that he is incapacitated from lifting
more than 10 pounds and maintaining sufficient strength to subdue an attacker, control
violent or unruly crowds, and respond to an emergency. PFR File, Tab 1 at 6; ID at 15.
Similarly, we find that the appellant’s assertions on review about the agency’s treatment
of a purported similarly situated employee are immaterial to the outcome of his
discrimination claims. PFR File, Tab 1 at 6-7; ID at 15-16.9
Both a claim of disability discrimination based on an individual’s status as
disabled and a claim based on an agency’s failure to reasonably accommodate
that disability require that the individual be “qualified.” Haas, 2022 MSPB 36,
¶ 28; see 42 U.S.C. § 12112(a), (b)(5)(A) . The term “qualified individual” means
“an individual who, with or without reasonable accommodation, can perform the
essential functions of the employment position that such individual holds or
desires.” 42 U.S.C. § 12111(8); see Haas, 2022 MSPB 36, ¶ 28.
Here, the record is devoid of evidence to establish that the appellant could
have performed the essential functions of his position, with or without reasonable
accommodation. As discussed above, the appellant had severe medical
restrictions in place at the time of his removal, the agency proved its charge of
medical inability to perform the essential duties of his DUSM position, we are not
persuaded that he would have been able to perform a lifting procedure with a
reasonable accommodation, and he did not request an accommodation after the
agency informed him of the option in July and November 2016. See Paris v.
Department of the Treasury , 104 M.S.P.R. 331, ¶ 24 (2006) (observing that an
appellant cannot prevail on a disability discrimination claim merely by
articulating a reasonable accommodation). Further, the appellant has not
identified an alternative position that he desires. See Rosario-Fabregas v.
Department of the Army , 122 M.S.P.R. 468, ¶ 18 (2015) (indicating that an
appellant failed to engage in the interactive process when, as relevant here, he did
not identify any vacant, funded position to which the agency might have assigned
him), aff’d, 833 F.3d 1342 (Fed. Cir. 2016). Instead, the appellant ignored the
agency-provided option of requesting a reassignment to a vacant administrative
position. IAF, Tab 10 at 50, 63. Therefore, we find that the appellant has failed
to prove that he is a qualified individual with a disability. Accordingly, he cannot
prevail on his claims of disability discrimination based on the agency’s alleged10
failure to reasonably accommodate him or based on alleged disparate treatment.6
See Haas, 2022 MSPB 36, ¶¶ 29-30.
We affirm the administrative judge’s finding that the appellant’s removal
promotes the efficiency of the service, and we modify the initial decision to find
that the penalty of removal is within the tolerable limits of reasonableness.
As properly explained in the initial decision, removal for medical inability
to perform essential position functions generally promotes the efficiency of the
service. ID at 10; see Brown v. Department of the Interior , 121 M.S.P.R. 205,
¶ 17 (2014), overruled on other grounds by Haas, 2022 MSPB 36, ¶ 14.
A removal for medical inability to perform will be reversed on the basis that such
action does not promote the efficiency of the service if, during the pendency of
the Board appeal, the appellant presents new medical evidence that clearly and
unambiguously shows he has recovered such that he is able to perform the
essential duties of his position. ID at 10; see Sanders v. Department of Homeland
Security, 122 M.S.P.R. 144, ¶ 9, aff’d, 625 F. App’x 549 (Fed. Cir. 2015),
overruled on other grounds by Haas, 2022 MSPB 36, ¶ 14; see also Owens v.
Department of Homeland Security , 2023 MSPB 7, ¶ 15 (observing that the Board
has held that, when an appellant recovers from the medical condition that resulted
in his removal before the administrative judge has issued an initial decision in his
removal appeal, the removal action does not promote the efficiency of the
service).
Here, in finding that the appellant’s removal promotes the efficiency of the
service, the administrative judge addressed his argument that he has recovered
entirely after his fifth back surgery in September 2017. ID at 7, 10-12. In
particular, she considered the testimony of the appellant’s treating physician that
he examined the appellant in August 2018, he determined that the appellant is
6 Based on the foregoing, the appellant’s assertion on review that the administrative
judge inaccurately described who approved an ergonomic chair and raised his desk is
immaterial to the outcome of this appeal. PFR File, Tab 1 at 4; ID at 2. Moreover, we
discern no error in the administrative judge’s characterization of the appellant’s training
drill. PFR File, Tab 1 at 6; ID at 3.11
able to return to work with no restrictions and to perform the full duties of a
DUSM, and the appellant’s likelihood of further back injury is no higher than
anyone else’s. ID at 10; HR (testimony of the appellant’s treating physician).
However, she found that the treating physician’s testimony does not clearly and
unambiguously demonstrate that the appellant has recovered sufficiently to
perform the essential duties of his position. ID at 10-11. In so finding, she
considered the following: the treating physician’s history of unsuccessfully
returning the appellant to work and inaccurately predicting when he could return
to work; the absence of testing results or a medical report providing the basis for
the treating physician’s August 2018 opinion; the testimony of Dr. T.S.,
an agency Reviewing Medical Officer, that back surgeries cause scarring and
changes to normal anatomy and physiology of the body’s core; the appellant’s
October 27, 2017 sworn affidavit and his August 1, 2017 application for disability
retirement; the appellant’s September 26, 2018 prehearing submission in which he
asserted that he continues to suffer “sporadic” pain; and the testimony of
Dr. F.G., an agency Reviewing Medical Officer, regarding the appellant’s use of
narcotic pain medication. ID at 2-6, 8-9, 11-12; HR (testimonies of Dr. T.S. and
Dr. F.G.); IAF, Tab 9 at 60-72, Tab 10 at 45-48, Tab 18 at 4-5, Tab 21 at 5.
On review, the appellant reasserts his claim that he has fully recovered, and
he challenges the administrative judge’s weighing of the medical evidence, her
credibility findings, her failure to ask him questions at the hearing about his
current symptoms and use of narcotics for pain management, and her
consideration of his affidavit and application for disability retirement. PFR File,
Tab 1 at 4-5, 7. For the following reasons, we discern no reason to disturb the
initial decision based on the appellant’s arguments on review. The appellant’s
conclusory allegations of the agency’s discrimination and inability to locate
Dr. T.A. are insufficient to question the credibility of the agency’s witnesses as a
whole. Id. at 7. Further, we discern no abuse of discretion in the administrative
judge’s failure to ask the appellant questions during the hearing. See Thomas v.12
U.S. Postal Service , 116 M.S.P.R. 453, ¶ 4 (2011) (stating that an administrative
judge has broad discretion to regulate the course of the hearing). Even if the
administrative judge improperly considered the appellant’s sworn affidavit and
disability retirement application, he has not explained how his substantive rights
have been harmed. 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).
In assessing the probative weight of a medical opinion, the Board considers
whether the opinion was based on a medical examination, whether the opinion
provided a reasoned explanation for its findings as distinct from mere conclusory
assertions, the qualifications of the expert rendering the opinion, and the extent
and duration of the expert’s familiarity with the appellant’s treatment. Wren v.
Department of the Army , 121 M.S.P.R. 28, ¶ 9 (2014). Here, we find that the
administrative judge properly relied on the testimonies of Drs. T.S. and F.G.
based on the reasoned explanations for their opinions. We further find that the
administrative judge properly deemed the treating physician’s testimony as not
probative because he did not address the potential for musculoskeletal impairment
as a result of five surgeries. ID at 11. Moreover, it is undisputed that the medical
reports (including the treating physician’s reports) from March 2016 through July
2017 consistently expressed the opinion that the appellant was unable to perform
to perform his duties during that time period. ID at 3-6; IAF, Tab 10 at 6, 45-48,
56-59, 65-67, Tab 11 at 17-21.7 Accordingly, we affirm the administrative
judge’s finding that the testimony of the appellant’s treating physician does not
clearly and unambiguously demonstrate that the appellant has recovered
sufficiently to perform the essential duties of his position. See Wren,
121 M.S.P.R. 28, ¶¶ 9-11 (finding that the conclusory opinion expressed in a new
medical report did not outweigh the consistent medical reports over more than a
7 Although the appellant disputes the probative value of the agency-provided medical
opinions, we find that they are probative based on the reasoned explanations for their
findings. PFR File, Tab 1 at 4.13
2-year period that the appellant was unable to engage in the work-related travel
necessary to his position). Therefore, we discern no basis to disturb the
administrative judge’s well-reasoned determination that the appellant’s removal
promotes the efficiency of the service. ID at 12.
In addition, the administrative judge correctly explained in the initial
decision that a removal for medical inability to perform is considered a
nondisciplinary action and that the appropriate standard in assessing the penalty
in such cases is whether the penalty of removal exceeded the tolerable limits of
reasonableness.8 ID at 10; see Brown, 121 M.S.P.R. 205, ¶ 18. She properly
considered the agency’s evidence that it notified the appellant that he had the
option of a reassignment to a non-law-enforcement position, and his testimony
that he did not pursue that option. ID at 12; HR (testimony of the appellant);
IAF, Tab 10 at 49-51; see Brown, 121 M.S.P.R. 205, ¶ 19 (considering, in
assessing the reasonableness of the penalty, whether the agency had any vacant
positions within his restrictions to which he could be assigned). Although the
appellant disputes the agency’s evidence that he was offered a reassignment, he
does not dispute that he received the agency’s fitness-for-duty determinations in
8 The “consistency of the penalty with those imposed upon other employees for the
same or similar offenses” is one of 12 factors that the Board generally considers as
relevant in assessing the reasonableness of the penalty. Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981). However, none of the Douglas factors
are relevant in a case when the agency’s action is based on medical inability to perform
because such a case does not involve an appellant’s alleged misconduct. Brown,
121 M.S.P.R. 205, ¶ 18. Thus, to the extent the appellant is raising a disparate penalties
claim, we need not consider it. PFR File, Tab 1 at 6-7; cf. Munoz v. Department of
Homeland Securit y, 121 M.S.P.R. 483, ¶¶ 14-16 (2014) (declining to consider the
appellant’s disparate penalties claim when the agency’s indefinite suspension action
was not a sanction or penalty for misconduct but was based on the revocation of the
appellant’s security clearance required for his position). Nevertheless, we find that the
employee identified by the appellant is not a proper comparator for disparate penalties
purposes because the employee is able to perform the duties of a DUSM position with
an accommodation and, as explained above, the appellant cannot. PFR File, Tab 1
at 6-7; ID at 15-16; see Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 13 (holding that,
for purposes of a disparate penalties claim, potential comparators should be limited to
those employees whose misconduct and/or other circumstances closely resemble those
of the appellant).14
July and November 2016, explaining the option for a reassignment to an
administrative position. PFR File, Tab 1 at 5; IAF, Tab 10 at 49-51. As
explained above, we are not persuaded by the appellant’s argument that he
believed he was not entitled to an accommodation based on a prior email.
Because the administrative judge did not make an explicit finding on the
reasonableness of the penalty, we modify the initial decision to find that the
agency-imposed penalty of removal is within the tolerable limits of
reasonableness. See Brown, 121 M.S.P.R. 205, ¶ 22 (observing that the penalty of
removal may be justified when the appellant falls short of his obligations during
the interactive reasonable accommodation process).
Accordingly, we affirm the agency’s removal action.
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.
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. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.15
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 16
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 17
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.10 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).
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 18
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.19 | Shirley_Kyle_W_CH-0752-18-0509-I-1__Final_Order.pdf | 2024-05-23 | KYLE WAYNE SHIRLEY v. DEPARTMENT OF JUSTICE, MSPB Docket No. CH-0752-18-0509-I-1, May 23, 2024 | CH-0752-18-0509-I-1 | NP |
1,380 | https://www.mspb.gov/decisions/nonprecedential/Bhadha_Hoshang_J_SF-3443-18-0769-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HOSHANG J. BHADHA,
Appellant,
v.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT,
Agency.DOCKET NUMBER
SF-3443-18-0769-I-1
DATE: May 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Hoshang J. Bhadha , Rancho Mission Viejo, California, pro se.
Dallae Chin , Esquire, and Rachael D. Lohrey , San Francisco, California,
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 for lack of jurisdiction.2 Generally, we grant petitions such
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 appellant’s motion for leave to file an additional pleading is DENIED, as the
evidence described in the motion would not be material to the outcome of this appeal.
See 5 C.F.R. § 1201.114(k).
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to clarify that the appellant contested the agency’s failure to select
him for two positions,3 and to address his newly submitted correspondence with
the Office of Special Counsel (OSC), we AFFIRM the initial decision.
To establish jurisdiction over an individual right of action (IRA) appeal, an
appellant must show that he exhausted his administrative remedies before OSC
and make nonfrivolous allegations4 that (1) he made a protected disclosure
described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described
under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or
protected activity was a contributing factor in the agency’s decision to take or fail
to take a personnel action as defined under 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.
3 The initial decision refers to the appellant’s nonselection for the position of Chief,
Technical Branch, but does not refer to his nonselection for the position of Senior
Single-Family Housing Specialist, which he also contests. We find this discrepancy
does not affect the outcome of the appeal. See Panter v. Department of the Air Force ,
22 M.S.P.R. 281, 282 (1984) (holding that an adjudicatory error that is not prejudicial
to a party’s substantive rights provides no basis to reverse an initial decision).
4 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s). 2
§§ 1214(a)(3), 1221(e)(1). The exhaustion requirement must be established by
preponderant evidence.5 5 C.F.R. § 1201.57(c)(1).
The substantive requirements of exhaustion are met when an appellant has
provided OSC with sufficient basis to pursue an investigation.6 Chambers v.
Department of Homeland Security , 2022 MSPB 8, ¶ 10. The sufficiency of the
claim is determined by the statements made in the appellant’s submissions to
OSC, not in the appellant’s later characterization of those statements. Ellison v.
Merit Systems Protection Board , 7 F.3d 1031, 1036 (Fed. Cir. 1993). The Board
may consider only the disclosures (or activities) and personnel actions that the
appellant raised before OSC. Ormond v. Department of Justice , 118 M.S.P.R.
337, ¶ 5 (2012).
On review, the appellant provides copies of email correspondence between
the appellant and an employee in the OSC Disclosures Unit, concerning a
disclosure or complaint the appellant filed in 2015. Petition for Review File,
Tab 1 at 68-135. Even assuming that these emails were previously unavailable
despite the appellant’s due diligence, they do not show that he alleged before
OSC that the contested nonselections were the result of retaliation for protected
disclosures under 5 U.S.C. § 2302(b)(8) or protected activity under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D). Thus, the appellant has not shown that he
exhausted OSC procedures for purposes of establishing IRA jurisdiction.
5 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).
6 The purpose of the exhaustion requirement with OSC prior to filing an IRA appeal
with the Board is to give OSC “the opportunity to take corrective action before
involving the Board in the case.” Ward v. Merit Systems Protection Board , 981 F.2d
521, 526 (Fed. Cir. 1992). The whistleblower protection statutory scheme provides
that, if OSC finds that there is a substantial likelihood that the information it received
discloses a violation, it “shall transmit the information to the head of the agency
involved for investigation and report . . . .” Id.; see 5 U.S.C. § 1213(b), (c).
These inquiries by OSC, and their transmittal to agencies for remedial action, are a
major component of OSC’s work. Ward, 981 F.2d at 526. 3
We have considered the appellant’s remaining arguments and find they are
without merit. We have also considered the other documents the appellant
submitted with his petition, but we find they do not provide a basis for further
review.7
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
7 The majority of the documents predate the close of the record below and do not
qualify as new evidence, either because the information contained therein is duplicative
of submissions already contained in the record, see Grassell v. Department of
Transportation, 40 M.S.P.R. 554, 564 (1989), or because the appellant has not shown
that the information was unavailable before the close of the record despite his due
diligence, see Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980). The
appellant’s Fiscal Year 2018 (FY) performance evaluation and FY 2019 performance
plan appear to be new evidence, but they are not material to the outcome of this case.
See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980).
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.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.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
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. 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 | Bhadha_Hoshang_J_SF-3443-18-0769-I-1__Final_Order.pdf | 2024-05-23 | HOSHANG J. BHADHA v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, MSPB Docket No. SF-3443-18-0769-I-1, May 23, 2024 | SF-3443-18-0769-I-1 | NP |
1,381 | https://www.mspb.gov/decisions/nonprecedential/Reynolds_Gregory_D_DA-0432-19-0149-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GREGORY D. REYNOLDS,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
DA-0432-19-0149-I-1
DATE: May 22, 2024
THIS ORDER IS NONPRECEDENTIAL1
Gregory D. Reynolds , Natchez, Mississippi, pro se.
Latriece Jones , Mobile, Alabama, 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
sustained his removal for unacceptable performance. On petition for review, the
appellant argues, among other things, that he was denied the opportunity to
present evidence and witnesses, that the agency representative did not submit into
the Board record documents that the appellant provided, and that his performance
was not unacceptable because he had been rated fully successful in prior years.
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 the reasons discussed below, we GRANT the petition for review, VACATE
the initial decision , and REMAND the case to the Dallas Regional Office for
further adjudication in accordance with this Remand Order and Santos v. National
Aeronautics and Space Administration , 990 F.3d 1355 (Fed. Cir. 2021).
DISCUSSION OF ARGUMENTS ON REVIEW
We agree with the administrative judge that the agency proved the elements of its
chapter 43 action under the law when the initial decision was issued.
After a hearing, the administrative judge found that the agency proved by
substantial evidence that the Office of Personnel Management approved the
agency’s performance appraisal system, the agency communicated to the
appellant the performance standards and critical elements of his position, the
appellant’s performance standards were valid, the agency warned the appellant of
the inadequacies of his performance during the appraisal period and gave him a
reasonable opportunity to demonstrate acceptable performance by placing him on
a 90-day performance improvement plan (PIP), and the appellant’s performance
remained unacceptable in critical element 2 of his performance standards during
the PIP period. Initial Appeal File (IAF), Tab 25, Initial Decision (ID) at 5-19.
We have reviewed the record and the arguments raised on review, and agree that
the agency established the elements of its chapter 43 action under the law when2
the initial decision was issued.2 We must nevertheless remand the appeal to
account for Santos, as discussed below .
Regarding the appellant’s argument on review that he was denied the
opportunity to submit evidence and present witnesses, the administrative judge
set a deadline date for the submission of prehearing submissions, including the
identification of witnesses and the submission of documents. IAF, Tab 10 at 2,
Tab 17. In her April 16, 2019, Order and Summary of Telephonic Prehearing
Conference, the administrative judge approved a number of agency witnesses and
noted that the appellant did not submit prehearing submissions or request any
witnesses. IAF, Tab 19 at 5. She also informed the parties that any exhibit
offered after the prehearing conference would be untimely and would not be
admitted unless the party established good cause for the delay or the document
was not previously available. Id. The administrative judge stated in the order
that if either party disagreed with her summary, she must receive a written
objection or motion to supplement the summary no later than April 22, 2019. Id.
at 6. Neither party objected to the administrative judge’s summary.
Before the administrative judge heard witness testimony at the hearing, she
noted that the appellant had requested that he be permitted to submit evidence and
to call additional witnesses. Hearing Compact Disc (HCD) (statement of the
administrative judge). She also noted that the appellant stated that he had
2 On review, the appellant does not assert that the administrative judge erred in her
findings regarding his affirmative defenses of harmful procedural error and retaliation
for equal employment opportunity (EEO) activity. We observe that, before analyzing
the appellant’s EEO reprisal claim, the administrative judge cited an obsolete
burden-shifting framework inconsistent with the Board’s decision in Pridgen v. Office
of Management and Budget , 2022 MSPB 31. ID at 20-21. Nevertheless, in her analyses
of the appellant’s EEO reprisal claim, the administrative judge applied the appropriate
standard to conclude that the appellant did not establish that his EEO complaint was
even a motivating factor in his removal. ID at 21. Because we agree with the
administrative judge’s finding that the appellant failed to show that any prohibited
consideration was a motivating factor in the agency’s action and the appellant has not
challenged this finding on review, we need not resolve the issue of whether the
appellant proved that retaliation was a “but -for” cause of the agency’s decision. See
Pridgen, 2022 MSPB 31, ¶¶ 20-22, 29 -33.3
attempted to submit the documents but that the limitations on the size of files that
can be submitted through the Board’s e-Appeal system precluded him from filing
the documents. Id. Additionally, she noted that the appellant admitted that he
had not faxed or mailed the documents for inclusion in the record. Id. She then
found no good cause for the appellant’s late submission and did not admit the
evidence into the record or allow the appellant to call witnesses. Id.
An administrative judge has broad discretion to control the proceedings
before her, including ruling on whether requested evidence will be admitted.
5 C.F.R. § 1201.41(b)(3); see Guerrero v. Department of Veterans Affairs ,
105 M.S.P.R. 617, ¶ 20 (2007). Among other things, the Board has held that an
administrative judge may exclude evidence and witnesses where the evidence was
not identified in a prehearing submission unless good cause exists for the failure.
See Stewart–Maxwell v. U.S. Postal Service , 56 M.S.P.R. 265, 271 (1993). Here,
the administrative judge clearly informed the appellant of the time limit to file his
prehearing submission, and he did not submit documents or request witnesses
within that time limit. Further, at the hearing, he admitted that, after he
unsuccessfully tried to electronically file his large submission, he did not use
other available means to submit the pleading into the record. HCD. Thus, the
administrative judge did not abuse her discretion in refusing to grant the
appellant’s request to submit evidence and to call witnesses.
Regarding the appellant’s argument that the agency representative did not
submit into evidence documents that the appellant provided to him, there is no
requirement that a party submit to the Board material provided by the opposing
party. If the appellant possessed evidence that he wanted the Board to consider,
he should have filed it with the Board consistent with the administrative judge’s
instructions and the Board’s regulations. The appellant’s argument that his
removal for poor performance was improper because he had been rated fully
successful in the past is without merit. The fact that the appellant’s performance4
in 2017 and before was deemed fully successful does not mean that the appellant
performed acceptably after that.3
Remand is required in light of Santos .
Though the appellant has identified no basis for us to disturb the initial
decision, we nonetheless must remand this appeal for another reason. During the
pendency of the petition for review in this case, the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) held in Santos, 990 F.3d at 1360-61, that, in
addition to the five elements of the agency’s case set forth in the initial decision,
the agency must also justify the institution of a PIP by proving that the
employee’s performance was unacceptable prior to the PIP. The Federal Circuit’s
decision in Santos applies to all pending cases, including this one, regardless of
when the events took place. Lee v. Department of Veterans Affairs , 2022 MSPB
11, ¶ 16. We therefore remand this case for further adjudication of the
appellant’s removal under the standard set forth in Santos. See id. (remanding the
appellant’s chapter 43 appeal because the parties did not have an opportunity to
address the modified standard set forth in Santos).
On remand, the administrative judge shall accept evidence and argument
from both parties regarding whether the agency proved by substantial evidence
3 Attached to the appellant’s petition for review and supplement are a number of
documents, including a copy of an Agreement to Mediate an EEO Precomplaint, a copy
of the appellant’s fiscal year 2018 performance appraisal and his comments to it, a copy
of the decision on the appellant’s unemployment insurance claim, a copy of a letter
from the appellant regarding his refusal to accept his 2018 midyear performance review,
and copies of documents related to a project on which the appellant worked. Petition
for Review File, Tab 1 at 5-35, Tab 3 at 8-186. The appellant’s 2018 performance
appraisal was submitted into the record below. The remainder of the submissions are
offered for the first time on review. Under 5 C.F.R. § 1201.115, the Board generally
will not consider evidence submitted for the first time with a petition for review absent
a showing that it was unavailable before the record was closed before the administrative
judge despite the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R.
211, 213-14 (1980). The documents are dated before the close of the record below, and
the appellant has not explained why they could not have been submitted previously.
Accordingly, we need not consider the documents. In any event, we fail to discern how
the documents demonstrate error in the initial decision. 5
that the appellant’s pre-PIP performance was unacceptable. The administrative
judge shall hold a supplemental hearing if appropriate. The administrative judge
shall then issue a new initial decision consistent with Santos. If the agency makes
the additional showing required under Santos on remand, the administrative judge
may incorporate her prior findings on other elements of the agency’s case in the
remand initial decision. However, regardless of whether the agency meets its
burden, if the argument or evidence on remand regarding the appellant’s pre-PIP
performance affects the analyses of the appellant’s affirmative defenses, the
administrative judge should address such argument or evidence in the remand
initial decision. See Spithaler v. Office of Personnel Management , 1 M.S.P.R.
587, 589 (1980) (explaining that an initial decision must identify all material
issues of fact and law, summarize the evidence, resolve issues of credibility, and
include the administrative judge’s conclusions of law and her legal reasoning, as
well as the authorities on which that reasoning rests).
ORDER
For the reasons discussed above, we remand this case to the Dallas
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Reynolds_Gregory_D_DA-0432-19-0149-I-1 Final Order.pdf | 2024-05-22 | GREGORY D. REYNOLDS v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DA-0432-19-0149-I-1, May 22, 2024 | DA-0432-19-0149-I-1 | NP |
1,382 | https://www.mspb.gov/decisions/nonprecedential/Gomes_Vincent_A_SF-0752-19-0370-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VINCENT A. GOMES,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
SF-0752-19-0370-I-1
DATE: May 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Brook L. Beesley , Alameda, California, for the appellant.
Christine J. Yen , Esquire, Stockton, California, 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 agency’s decision to remove the appellant based on an alleged
violation of a last change settlement agreement (LCSA). On petition for review,
the agency argues that the administrative judge erred in concluding that the sick
leave provisions of the LCSA did not apply and that the medical documentation
submitted by the appellant was sufficient. 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 12-19. It also argues that she improperly reconstituted the basis for the LCSA
violation when she considered whether the appellant’s documentation was
fraudulent and not just administratively unacceptable, and thus, that her finding
that the agency acted in bad faith was erroneous. Id. at 10-11. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to VACATE the administrative judge’s finding that the
agency acted in bad faith when it charged the appellant with fraud, and to provide
the appropriate standards of causation for the appellant’s affirmative defenses, we
AFFIRM the initial decision.
The administrative judge correctly found that the sick leave provisions of
the LCSA do not apply. Initial Appeal File (IAF), Tab 42, Initial Decision (ID)
at 13. Therefore, we agree with her conclusion that the waiver provision
prohibiting an appeal of the appellant’s removal to the Board does not apply.
ID at 14-15; see Bruhn v. Department of Agriculture , 124 M.S.P.R. 1, ¶ 9 (2016)
(stating that a waiver of appeal rights in a LCSA should not be enforced when the
appellant shows that he complied with the agreement). However, in furtherance
of her finding that the waiver provision does not apply, the administrative judge
also concluded that the agency acted in bad faith when it charged the appellant2
with submitting fraudulent medical documentation. ID at 14-15. In its petition
for review, the agency asserts that this conclusion was in error. PFR File,
Tab 10-11.
By way of background, in the removal notice, the Chief of Security and
Emergency Services explained the context of the LCSA and noted that the
appellant’s prior removal from March 29, 2017, was held in abeyance for 2 years
absent any violations of the LCSA. IAF, Tab 5 at 18. He then discussed the
Notice of Violation of the LCSA and explained the agency’s basis for
determining that the appellant violated the terms of the LCSA. Id. at 18-19.
While not included in the Notice of Violation, the Chief of Security and
Emergency Services added in the removal notice that the agency believed that a
February 11, 2019 document was “fraudulent.” Id. In the initial decision, the
administrative judge construed this language as a “charge of falsification,” and
found that the appellant did not violate the LCSA by submitting a fraudulent
medical note. ID at 14. She further concluded that the agency acted in bad faith
when it charged the appellant with fraud. ID at 15.
On review, the agency argues that the administrative judge “improperly
reconstituted the basis” for the LCSA violations and erroneously found that the
agency acted in bad faith by charging the appellant with fraud. PFR File, Tab 1
at 10-11. We agree. In the LCSA, the parties agreed that, if the appellant failed
to follow the agreement at any time during the 2-year period, the appellant “will
be immediately removed from Federal service.” IAF, Tab 5 at 50. Elsewhere, the
LCSA also provided that, if an alleged violation of the agreement, as detailed in a
Notice of Violation, is substantiated, the appellant will be issued a written
decision regarding the violation and will not receive a new proposed removal or
new 30-day advanced notice. Id. at 54. In Lizzio v. Department of the Army , the
U.S. Court of Appeals for the Federal Circuit analyzed a similar agreement and
concluded that an alleged breach of an LCSA is not a separate charge, but rather,
an event that triggers the reinstatement of the original charge. 534 F.3d 1367,3
1383, 1386 (Fed. Cir. 2008). Thus, the “charges” that served as the basis of the
appellant’s instant removal were the charges which brought about the LCSA in
2017, in conjunction with the violation of the LCSA. IAF, Tab 5 at 50. As such,
we agree with the agency that, contrary to the administrative judge’s discussion,
the agency did not “charge” the appellant with falsification. ID at 14; IAF, Tab 5
at 18.
Similarly, because there was not a charge of falsification or fraud that led
to the appellant’s removal, we vacate the administrative judge’s finding that
“[t]he agency acted in bad faith when it charged the appellant with fraud.” ID
at 15. Although the Chief of Security and Emergency Services discusses in the
decision removing the appellant the agency’s belief that the February 11, 2019
document was fraudulent, it is the Notice of Violation that served the basis of the
removal and that notice did not discuss fraud or falsification. IAF, Tab 5
at 26-27. Nonetheless, because we agree with the administrative judge’s
conclusion that the appellant complied with the terms of the LCSA, we agree with
her ultimate conclusion that the LCSA’s waiver provision is unenforceable. ID
at 14-15; IAF, Tab 50, 54.
Additionally, the appellant raised below the affirmative defenses of reprisal
for equal employment opportunity (EEO) activity, disparate treatment disability
discrimination, and failure to accommodate. IAF, Tabs 19 at 2, 6, Tab 21 at 2-7.
The administrative judge correctly concluded that the appellant failed to establish
the EEO reprisal and disparate treatment disability discrimination claims, and
concluded that the appellant was collaterally estopped from raising the failure to
accommodate claim. ID at 22-28. However, we modify the initial decision with
respect to the standards of causation applicable to an EEO reprisal claim based on
disability discrimination, as explained below.
The appellant alleged that he filed an EEO complaint concerning the partial
denial of his request for a reasonable accommodation of his disability. IAF,
Tab 19 at 25-34. The administrative judge found that he failed to explain “how4
his EEO complaint was a motivating factor in the agency charging him with
violating the LC[S]A and removing him.” ID at 24. However, in Pridgen v.
Office of Management and Budget , 2022 MSPB 31, ¶¶ 46-47, the Board found
that, for an appellant to establish a claim of reprisal for EEO activity based on a
disability, he must show that his request for a reasonable accommodation, which
is protected under the under the Rehabilitation Act, was a but-for cause of the
agency action. Because the administrative judge correctly concluded that the
appellant failed to meet the lower standard of motivating factor, we find that he
could not have met the higher but-for standard. See Haas v. Department of
Homeland Security , 2022 MSPB 36, ¶ 32 (modifying an initial decision to
recognize that the more stringent but-for standard applied because an employee’s
EEO reprisal claim arose under the Rehabilitation Act, while affirming the
administrative judge’s conclusion that the employee failed to satisfy even the
lesser motivating factor standard). As such, we affirm the administrative judge’s
ultimate conclusion but modify the initial decision to include the appropriate
standard of causation.
ORDER
We ORDER the agency to cancel the appellant’s removal and to restore the
appellant effective March 26, 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,5
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).
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 fees6
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 RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
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.7
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 on8
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) or9
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. 10
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
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. | Gomes_Vincent_A_SF-0752-19-0370-I-1__Final_Order.pdf | 2024-05-22 | VINCENT A. GOMES v. DEPARTMENT OF DEFENSE, MSPB Docket No. SF-0752-19-0370-I-1, May 22, 2024 | SF-0752-19-0370-I-1 | NP |
1,383 | https://www.mspb.gov/decisions/nonprecedential/Aguirre_Oscar_T_DA-0432-18-0127-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
OSCAR T. AGUIRRE, JR.,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DA-0432-18-0127-I-1
DATE: May 22, 2024
THIS ORDER IS NONPRECEDENTIAL1
Jeffrey H. Jacobson , Esquire, Tucson, Arizona, for the appellant.
Mary E. Garza , Edinburg, Texas, for the agency.
Grant Gardner , Laredo, Texas, 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
sustained his removal for unacceptable performance. For the reasons discussed
below, we GRANT the petition for review, VACATE the initial decision , and
REMAND the case to the Dallas Regional Office for further adjudication 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).
accordance with this Remand Order and Santos v. National Aeronautics and
Space Administration , 990 F.3d 1355 (Fed. Cir. 2021).
DISCUSSION OF ARGUMENTS ON REVIEW
The agency established the elements of its chapter 43 action under the law when
the initial decision was issued.
We discern no basis to disturb the administrative judge’s conclusion that
the agency proved the elements it was required to establish in a chapter 43 action
under the law when the initial decision was issued. In his petition for review, the
appellant asserts that the administrative judge erred in finding that the agency
communicated the performance standards and critical elements of his position to
him and that the agency’s performance standards were valid. Petition for Review
(PFR) File, Tab 7 at 19-22. He also asserts that the administrative judge erred in
finding that the agency provided him with a reasonable opportunity to
demonstrate acceptable performance. Id. at 23-25. These arguments constitute
mere disagreement with the administrative judge’s well-reasoned findings and do
not provide a basis for review. See Crosby v. U.S. Postal Service , 74 M.S.P.R.
98, 106 (1997); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987).
The appellant also contends that the administrative judge failed to make
credibility determinations as to any of the witnesses who testified. PFR File,
Tab 7 at 26. Although the administrative judge implicitly determined that
agency witnesses whose demeanor she observed testified credibly and the
appellant did not, she failed to make any explicit credibility findings under
Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987). Notwithstanding
the administrative judge’s failure to cite to Hillen in the initial decision, the
administrative judge correctly resolved the credibility issues in accordance with
Hillen. Among other things, she identified the factual questions in dispute,
summarized the relevant testimony of witnesses regarding these issues, and
explained why she found the appellant’s testimony to be unpersuasive. Initial2
Appeal File, Tab 41, Initial Decision at 9-10. This decisional process mirrors
closely the analytical steps mandated by Hillen, which provides that, to resolve
credibility issues, an administrative judge must identify the factual questions in
dispute, summarize the evidence on each disputed question, state which version
she believes, and explain in detail why she found the chosen version more
credible. Hillen, 35 M.S.P.R. 453, 458.
Under these circumstances, nothing compels abandonment of the
longstanding deference accorded the findings of an administrative judge
when they are based on the observation of the demeanor of witnesses. 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);
Jackson v. Veterans Administration , 768 F.2d 1325, 1331 (Fed. Cir. 1985)
(finding that deference must be given to an administrative judge’s credibility
findings that are based on the demeanor of witnesses). The appellant’s petition
for review does not identify an internal inconsistency or inherent improbability in
the fact findings of the administrative judge or other basis sufficient to overcome
the special deference that reviewing bodies must necessarily accord the factual
determinations of the original trier of fact. See Jackson, 768 F.2d at 1331.
Remand is required in light of Santos .
Though the appellant has identified no basis for us to disturb the initial
decision, we nonetheless must remand the appeal for another reason. During the
pendency of the petition for review in this case, the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) held in Santos, 990 F.3d at 1360-61, that, in
addition to the five elements of the agency’s case set forth in the initial decision,
the agency must also justify the institution of a performance improvement plan
(PIP) by proving that the employee’s performance was unacceptable prior to the3
PIP. The Federal Circuit’s decision in Santos applies to all pending cases,
including this one, regardless of when the events took place. Lee v. Department
of Veterans Affairs , 2022 MSPB 11, ¶ 16. We therefore remand this case for
further adjudication of the appellant’s removal under the standard set forth
in Santos. See id. (remanding the appellant’s chapter 43 appeal because the
parties did not have an opportunity to address the modified standard set forth
in Santos).
On remand, the administrative judge shall accept evidence and argument
regarding whether the agency proved by substantial evidence that the appellant’s
pre-PIP performance was unacceptable. The administrative judge shall hold a
supplemental hearing if appropriate. The administrative judge shall then issue a
new initial decision consistent with Santos. If the agency makes the additional
showing required under Santos on remand, the administrative judge may
incorporate her prior findings on other elements of the agency’s case in the
remand initial decision.
ORDER
For the reasons discussed above, we remand this case to the Dallas
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 | Aguirre_Oscar_T_DA-0432-18-0127-I-1__Remand_Order.pdf | 2024-05-22 | null | DA-0432-18-0127-I-1 | NP |
1,384 | https://www.mspb.gov/decisions/nonprecedential/Willett_Arleen_J_PH-0752-19-0129-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ARLEEN J. WILLETT,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
PH-0752-19-0129-I-1
DATE: May 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Arleen J. Willett , Howell, New Jersey, pro se.
Kimberly Maltby , Aberdeen Proving Ground, 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 her initial appeal as untimely filed. On petition for review, the
appellant alleges that she has new and material evidence that was not available
when the record closed below; however, she does not describe this evidence in
her petition. Petition for Review File, Tab 1 at 2. She also alleges that, although
she submitted facts to the administrative judge, she was “fearful to bring the truth
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
to the forfront [sic] given actions taken on me continuously,” and that President
Clinton, former FBI Director Louis J. Freeh, and subsequent FBI directors have
proof of whistleblower retaliation and other prohibited practices.2 Id. at 2-3.
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 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 In referring to the FBI, the appellant appears to refer to the Federal Bureau of
Investigation.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions to provide a comprehensive
summary of all available review options. As indicated in the notice, the Board cannot
advise which option is most appropriate in any matter. 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. 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: 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.
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 | Willett_Arleen_J_PH-0752-19-0129-I-1__Final_Order.pdf | 2024-05-22 | ARLEEN J. WILLETT v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-0752-19-0129-I-1, May 22, 2024 | PH-0752-19-0129-I-1 | NP |
1,385 | https://www.mspb.gov/decisions/nonprecedential/Fairfax_DuaneDC-1221-21-0556-W-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DUANE FAIRFAX,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-1221-21-0556-W-2
DATE: May 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Daniel Patrick Meyer , Esquire, and Kaya C. Massey , Esquire, Washington,
D.C., for the appellant.
Luis R. Amadeo Carron , Esquire, and Andrea Blake Saglimbene , Esquire,
Fort Belvoir, 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
denied his request for corrective action in his individual right of action (IRA)
appeal, finding that the agency proved by clear and convincing evidence that it
would have given him the same performance appraisal rating absent his
whistleblower activities. On petition for review, the appellant largely disagrees
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).
with the administrative judge’s findings in his IRA appeal and argues that she
made errors of material fact in the initial decision, failed to assess credibility
properly, and failed to weigh evidence in finding that the agency met its clear and
convincing burden. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 | Fairfax_DuaneDC-1221-21-0556-W-2__Final_Order.pdf | 2024-05-22 | DUANE FAIRFAX v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-1221-21-0556-W-2, May 22, 2024 | DC-1221-21-0556-W-2 | NP |
1,386 | https://www.mspb.gov/decisions/nonprecedential/Garson_HeatherDE-3443-19-0287-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HEATHER GARSON,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
DE-3443-19-0287-I-1
DATE: May 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Heather Garson , Denver, Colorado, pro se.
Nanette Gonzales , Lakewood, Colorado, 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 the appeal for lack of jurisdiction. On petition for review, the
appellant argues that the Board has jurisdiction over the negative employment
reference that led another Government agency not to select her for a position with
promotion potential. 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).
In her petition for review, the appellant contends that the Board has
jurisdiction over her appeal because an agency supervisor committed prohibited
personnel practices in violation of 5 U.S.C. §§ 2302(b)(4) and (6)2 because she
“deceived and willfully obstructed [the appellant’s] right to compete for
employment by providing false, unfounded, and misleading statements about
[her] in a reference check.” Petition for Review File, Tab 1 at 4. Because the
Board lacks jurisdiction over the appellant’s nonselection or the negative
employment reference that purportedly led to her nonselection, the Board also
lacks jurisdiction over her allegation of prohibited personnel practices.3 Davis v.
Department of Defense, 103 M.S.P.R. 516, ¶ 11 (2006) (stating that absent an
2 Title 5, United States Code, section 2302(b)4) prohibits deceiving or willfully
obstructing any person with respect to such person’s right to compete for employment,
and section 2302(b)(6) prohibits granting any preference or advantage not authorized by
law, rule, or regulation to any employee or applicant for the purpose of improving or
injuring the prospects of any particular person for employment.
3 We have considered the appellant’s argument raised for the first time on review
because it implicates the Board’s jurisdiction, an issue that is always before the Board
and may be raised by any party or sua sponte by the Board at any time during a Board
proceeding. See Lovoy v. Department of Health & Human Services, 94 M.S.P.R. 571,
¶ 30 (2003). 2
otherwise appealable action, claims of prohibited personnel practices do not
provide an independent basis for finding Board jurisdiction); Wren v. Department
of the Army, 2 M.S.P.R. 1, 2 (1980), (stating that 5 U.S.C. § 2302(b) is not an
independent source of Board jurisdiction), aff’d, 681 F.2d 867, 871-73 (D.C. Cir.
1982).
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter. 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) or other protected5
activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your
judicial petition for review “raises no challenge to the Board’s disposition of
allegations of a prohibited personnel practice described in section 2302(b) other
than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or
(D),” then you may file a petition for judicial review either with the U.S. Court of
Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5
The court of appeals must receive your petition for review within 60 days of the
date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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 | Garson_HeatherDE-3443-19-0287-I-1__Final_Order.pdf | 2024-05-22 | HEATHER GARSON v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. DE-3443-19-0287-I-1, May 22, 2024 | DE-3443-19-0287-I-1 | NP |
1,387 | https://www.mspb.gov/decisions/nonprecedential/Root_John_A_DC-0752-19-0346-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN A. ROOT,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-0752-19-0346-I-1
DATE: May 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
John A. Root , Leesburg, Virginia, pro se.
Daniel Patrick Doyle , Esquire, 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 his constructive removal appeal for lack of jurisdiction without a
hearing. On petition for review, the appellant argues that the agency prevented
him from confronting and obtaining statements from his accusers, and that the
removal action was based on lies and racism and was part of a management
cover-up. Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
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).
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. 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.
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 | Root_John_A_DC-0752-19-0346-I-1__Final_Order.pdf | 2024-05-22 | JOHN A. ROOT v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-0752-19-0346-I-1, May 22, 2024 | DC-0752-19-0346-I-1 | NP |
1,388 | https://www.mspb.gov/decisions/nonprecedential/Richmond_Patricia_A_AT-0752-19-0554-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PATRICIA ANN RICHMOND,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
AT-0752-19-0554-I-1
DATE: May 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Maureen T. Holland , Esquire, and Yvette H. Kirk , Esquire, Memphis,
Tennessee, for the appellant.
Jeremiah P. Crowley , 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 involuntary retirement appeal for lack of Board jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
clarify that the appellant failed to nonfrivolously allege that her retirement was
involuntary, and to address her arguments relating to her proposed demotion, we
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
The appellant was a GS-12 Financial Management Analyst with the
Department of the Navy. Initial Appeal File (IAF), Tab 1 at 9. In February 2019,
the agency placed her on a 30-day performance improvement plan (PIP) based on
unacceptable performance. IAF, Tab 9 at 9-12. Thereafter, the agency proposed
the appellant’s removal for failure to meet the standards of the PIP. Id. at 26-27.
The deciding official mitigated the penalty from a removal to a demotion to a
GS-05 Administrative Assistant position. Id. at 28-30. On May 24, 2019, the
appellant retired from Federal service. IAF, Tab 1 at 9.
The appellant subsequently filed a Board appeal alleging that her
retirement was involuntary. IAF, Tab 1. On her initial appeal, she checked the
box labeled “no” when asked whether she wanted a hearing before an
administrative judge. Id. at 2. The administrative judge issued a jurisdictional
order informing the appellant of what she must do to establish jurisdiction over2
her appeal. IAF, Tab 3 at 2. The administrative judge explained how to make a
nonfrivolous allegation of jurisdiction and how to prove jurisdiction over her
appeal by preponderant evidence. Id. at 2-3. Finally, the administrative judge
informed the appellant that, if she successfully made a nonfrivolous allegation,
the administrative judge would “schedule a hearing if you requested one or
provide for the further supplementation of the record on the jurisdictional issue.”
Id. at 4.
After considering the parties’ responses to the jurisdictional issue, the
administrative judge dismissed the appeal for lack of jurisdiction. IAF, Tab 11,
Initial Decision (ID) at 1. She found that the appellant failed to allege facts
which, if proven, would establish that a reasonable person in her position would
have felt compelled to retire as a result of improper acts by the agency. ID at 5.
Rather, the administrative judge found that the appellant’s allegations that she
was performing work that she was unfamiliar with and did not get along with her
supervisor evidenced ordinary workplace stresses. Id. The administrative judge
further found that the appellant could have appealed her demotion to the Board,
rather than retiring. Id. Thus, the administrative judge found that the appellant
failed to allege facts sufficient to establish that a reasonable person in her
position would have felt compelled to retire. Id.
The appellant filed a petition for review of the initial decision. Petition for
Review (PFR) File, Tab 1. The agency has responded, and the appellant has
replied to its response. PFR File, Tabs 3, 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant failed to nonfrivolously allege that her retirement was involuntary.
An employee-initiated action, such as a retirement, is presumed to be
voluntary and thus outside the Board’s jurisdiction. Vitale v. Department of
Veterans Affairs , 107 M.S.P.R. 501, ¶ 17 (2007). An involuntary retirement is
tantamount to a removal, however, and is therefore subject to the Board’s3
jurisdiction. Id. The issue of the Board’s jurisdiction in an involuntary
retirement case is inextricably intertwined with the merits of the appeal—where
the employee establishes the Board’s jurisdiction over the appeal by showing that
her retirement was involuntary, she has also established the merits of her appeal.
Id. If an appellant makes a nonfrivolous allegation of facts that, if proven, could
establish jurisdiction over her involuntary retirement appeal and she has
requested a hearing, then she is entitled to a jurisdictional hearing. Id., ¶ 18.
However, the appellant ultimately bears the burden of establishing jurisdiction
over her appeal by a preponderance of the evidence. Id., ¶ 17; 5 C.F.R.
§ 1201.56(b)(2)(i)(A).
The appellant argues on review that the administrative judge applied the
incorrect legal standard when finding that she failed to raise a nonfrivolous
allegation of jurisdiction over her appeal, identifying the allegedly correct
standard as the “could establish” standard. PFR File, Tab 1 at 4-6.
The administrative judge found that, even assuming the appellant’s allegations
were true, they were insufficient to establish that a reasonable person in the
appellant’s position would have felt compelled to retire. ID at 5. To the extent
the administrative judge incorrectly stated that, in order to raise a nonfrivolous
allegation of jurisdiction, the appellant needed to allege facts that would, rather
than could, establish jurisdiction, any such error did not prejudice the appellant’s
substantive rights. 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).
Specifically, as further discussed below, the appellant has failed to establish facts
that, if proven, could establish Board jurisdiction. See Frison v. Department of
the Army, 94 M.S.P.R. 431, ¶ 4 (2003) (explaining that, to raise a nonfrivolous
allegation entitling an appellant to a jurisdictional hearing, an appellant need not
allege facts which, if proven, definitely would establish that the retirement was
involuntary; he need only allege facts which, if proven, could establish such a4
claim). Moreover, as previously noted, the administrative judge properly
informed the appellant of how she could raise a nonfrivolous allegation of Board
jurisdiction over her involuntary retirement appeal. IAF, Tab 3 at 2-3.
We therefore modify the initial decision to clarify that the appellant failed to
nonfrivolously allege that her retirement was involuntary.
The appellant contends on review that the administrative judge failed to
properly analyze whether she nonfrivolously alleged that her retirement was
based on coercion. PFR File, Tab 1 at 4, 9-10. In particular, the appellant argues
that the administrative judge failed to consider relevant facts, such as those
pertaining to her discrimination and retaliation claims. Id. at 9-10. We find the
appellant’s arguments unpersuasive.
The doctrine of coercive involuntariness is a narrow one. Brown v. U.S.
Postal Service, 115 M.S.P.R. 609, ¶ 10, aff’d, 469 F. App’x 852 (Fed. Cir. 2011).
To establish involuntariness on the basis of coercion, an employee must show that
the agency effectively imposed the terms of her retirement, she had no realistic
alternative but to retire, and her retirement was the result of improper acts by the
agency. Vitale, 107 M.S.P.R. 501, ¶ 19. The touchstone of the voluntariness
analysis is whether, considering the totality of the circumstances, factors operated
on the employee’s decision -making process that deprived her of freedom of
choice. Id. When alleging involuntary retirement due to harassment and a hostile
work environment, the appellant must demonstrate that the employer engaged in a
course of action that made working conditions so difficult or unpleasant that a
reasonable person in that employee’s position would have felt compelled to retire.
Id., ¶ 20. The Board addresses allegations of discrimination and reprisal in
connection with an alleged involuntary retirement only insofar as those
allegations relate to the issue of voluntariness. Id.
In determining that the appellant failed to nonfrivolously allege that a
reasonable person in her position would have felt compelled to retire, the
administrative judge considered the appellant’s allegation that her conditions at5
work were hostile and caused her blood pressure problems. ID at 5.
The administrative judge also considered a May 1, 2019 complaint that she filed
with the Deputy of Business Operations alleging a hostile work environment. Id.
In addition, the administrative judge considered the appellant’s contentions that
she did not get along with her supervisor and that she was forced to do work she
was unfamiliar with, but found that these allegations were insufficient to
demonstrate that a reasonable person in the appellant’s position would have felt
compelled to retire. Id.; see Miller v. Department of Defense , 85 M.S.P.R. 310,
¶ 32 (2000) (finding that a feeling of being unfairly criticized and difficult or
unpleasant working conditions are generally not so intolerable as to compel a
reasonable person to retire). Thus, contrary to the appellant’s allegations on
review, the administrative judge did consider the appellant’s allegations of
discrimination to the extent they relate to the issue of voluntariness. See
Vitale, 107 M.S.P.R. 501, ¶ 20. The appellant has not identified specific facts
relating to her allegations of discrimination and retaliation that the administrative
judge failed to consider.2 Moreover, the fact that an initial decision does not
mention all of the evidence of record does not mean that the administrative judge
did not consider it in reaching her decision. See 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).
On review, the appellant also reiterates that she had no meaningful choice
but to retire because she was faced with a demotion. PFR File, Tab 1 at 8-9. She
appears to assert that the demotion was unfounded, and that the administrative
judge therefore erred in finding that she had a meaningful choice between retiring
and appealing the demotion to the Board. Id.; ID at 5. To the extent the
administrative judge did not explicitly consider the appellant’s assertion that the
2 To the extent the appellant is attempting to raise affirmative defenses of
discrimination and retaliation, absent an otherwise appealable action, the Board lacks
jurisdiction to adjudicate such claims. 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).6
demotion constituted an improper act that deprived her of a meaningful choice,
we modify the initial decision to address this issue on review.
The fact that an appellant is faced with an unpleasant choice between
retirement or demotion does not affect the voluntariness of the appellant’s
ultimate choice to retire. Garland v. Department of the Air Force , 44 M.S.P.R.
537, 540 (1990). Absent a showing that the agency knew or should have known
that the demotion could not be substantiated, the fact that the appellant’s
demotion was proposed did not render the appellant’s subsequent retirement
involuntary. Id. In that scenario, an appellant’s choice between retiring and
contesting an unfounded adverse action is not a meaningful one because it is a
choice between false alternatives. Bean v. U.S. Postal Service , 120 M.S.P.R. 397,
¶ 10 (2013). To prove that a retirement was involuntary on this basis, an
appellant must establish that the agency did not have reasonable grounds for
proposing the adverse action. Lloyd v. Small Business Administration ,
96 M.S.P.R. 518, ¶ 3 (2004).
Here, the appellant has failed to nonfrivolously allege that the agency knew
or should have known that the demotion action could not be substantiated.
The appellant alleged below that the agency informed her that there were no other
positions available to demote her to, when she knew there were vacant GS-9 and
GS-11 positions available. IAF, Tab 1 at 5. The decision to demote her to a
GS-5 as opposed to a GS-9 or GS-11 position, however, pertains to the penalty
determination, and does not constitute a nonfrivolous allegation that the agency
did not have reasonable grounds for demoting her. See Lloyd, 96 M.S.P.R. 518,
¶ 3. As such, the appellant has failed to nonfrivolously allege that the demotion
action rendered her retirement involuntary. See Garland, 44 M.S.P.R. at 540.
Thus, we agree with the administrative judge’s ultimate conclusion that the
appellant had a choice between retiring or challenging the demotion as an adverse
action before the Board. ID at 5; see Broderick v. Department of the Treasury ,7
52 M.S.P.R. 254, 258 (1992) (finding the Board generally has jurisdiction under
chapter 75 to review actions involving reductions in grade and pay).
Based on the foregoing, we find that the appellant failed to raise a
nonfrivolous allegation of Board jurisdiction over her involuntary retirement
appeal.3
The appellant is not entitled to a hearing.
The appellant claims on review that the administrative judge erred by not
holding a hearing. PFR File, Tab 1 at 6-7. As previously noted, if an appellant
makes a nonfrivolous allegation of fact that, if proven, could establish
jurisdiction over her involuntary retirement appeal and she has requested a
hearing, then she is entitled to a jurisdictional hearing. Vitale, 107 M.S.P.R. 501,
¶ 18.
The record here establishes that the appellant specifically did not request a
hearing, even after being informed of how she could raise a nonfrivolous
allegation of Board jurisdiction entitling her to a jurisdictional hearing. IAF,
Tab 1 at 2, Tab 3 at 2-4. The appellant was properly apprised of the elements and
her burden to establish Board jurisdiction over her alleged involuntary retirement
appeal and she responded to the administrative judge’s orders to submit evidence
and argument on the jurisdictional issue. IAF, Tab 3, Tab 9. Notwithstanding her
failure to request a hearing, we find that the appellant was not entitled to a
3 The appellant additionally appears to argue on review that the administrative judge
improperly weighed the evidence in determining that the appellant failed to raise a
nonfrivolous allegation of Board jurisdiction. PFR File, Tab 1 at 6-7. The Board has
found that, in determining whether the 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 found
that they failed to amount to a nonfrivolous allegation of Board jurisdiction. Id.
Thus, the administrative judge did not improperly weigh the evidence here. 8
hearing even if she had requested one below. As set forth above, the appellant
here failed to make a nonfrivolous allegation of jurisdiction, and thus, she is not
entitled to a jurisdictional hearing. See Vitale, 107 M.S.P.R. 501, ¶ 18.
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
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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 | Richmond_Patricia_A_AT-0752-19-0554-I-1__Final_Order.pdf | 2024-05-22 | PATRICIA ANN RICHMOND v. DEPARTMENT OF THE NAVY, MSPB Docket No. AT-0752-19-0554-I-1, May 22, 2024 | AT-0752-19-0554-I-1 | NP |
1,389 | https://www.mspb.gov/decisions/nonprecedential/Winston_JuanitaAT-0714-18-0481-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JUANITA WINSTON,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0714-18-0481-I-1
DATE: May 22, 2024
THIS ORDER IS NONPRECEDENTIAL1
Wendell Echols, Sr. , Tuskegee, Alabama, for the appellant.
Kristin Bloodworth , Esquire, 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
affirmed her removal taken under the authority of the Department of Veterans
Affairs Accountability and Whistleblower Protection Act of 2017 (VA
Accountability Act), Pub. L. No. 115-41, § 202(a), 131 Stat. 862, 869-73
(codified as amended at 38 U.S.C. § 714). For the reasons discussed below, 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 the 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. On remand, the administrative judge should: (1) find that
the agency cannot prove specifications 1 and 2 of the charge; (2) provide the
parties with an opportunity to present evidence and argument regarding whether
the agency’s error in reviewing the proposed removal for substantial evidence
was harmful; (3) permit the appellant to pursue her claim of harmful procedural
error concerning the agency’s alleged violation of the applicable collective
bargaining agreement (CBA); (4) reassess the appellant’s claim of equal
employment opportunity (EEO) retaliation consistent with Pridgen v. Office of
Management and Budget , 2022 MSPB 31; and (5) review the agency’s penalty
selection by considering the Douglas factors.
BACKGROUND
Effective May 18, 2018, the agency removed the appellant from her
position as a WG-03 Food Service Worker at the agency’s Central Alabama
Veterans Health Care System (CAVHCS) pursuant to the VA Accountability Act.
Initial Appeal File (IAF), Tab 8 at 4, 9-11, Tab 13 at 7. The agency removed the
appellant based on a single charge of improper conduct, which was supported by
seven specifications. IAF, Tab 8 at 9-14. The specifications related to the
appellant’s rude and profane comments between April 6, 2017, and February 20,
2018, which were made to her coworkers, her supervisors, and a patient at
CAVHCS. Id. at 12-13, 15-45. One specification related to a verbal altercation
with her twin sister, who also worked at CAVHCS, on January 11, 2018, which
required the VA Police to file an official report. Id. at 12, 35-37.
The appellant timely filed a Board appeal, challenging her removal and
contending that the agency retaliated against her for a prior EEO complaint and
created a hostile work environment. IAF, Tab 1, Tab 4, Tab 14 at 4-5. The
appellant’s amended appeal form indicated a possible third affirmative defense—2
harmful error when the agency allegedly failed to comply with the applicable
CBA. IAF, Tab 4 at 3, Tab 14 at 6. After holding the appellant’s requested
hearing, IAF, Tab 4 at 2, the administrative judge issued an initial decision
sustaining the removal, IAF, Tab 20, Initial Decision (ID) at 2, 16. The
administrative judge found that the agency proved all seven specifications in
support of the improper conduct charge and therefore sustained the charge. ID
at 4-14. She further found that the appellant failed to prove her affirmative
defenses of EEO retaliation or a hostile work environment. ID at 15-16.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1.2 The agency has responded in opposition to the appellant’s petition,
and the appellant has filed a reply to the agency’s response. PFR File, Tabs 4-5.
ANALYSIS
Specifications 1 and 2 of the agency’s charge cannot be sustained because
38 U.S.C. § 714 does not apply retroactively.
The agency removed the appellant under 38 U.S.C. § 714, in part, for
conduct predating the VA Accountability Act. After the administrative judge
issued the initial decision in the instant appeal, the U.S. Court of Appeals for
Federal Circuit issued Sayers v. Department of Veterans Affairs , 954 F.3d 1370
(Fed. Cir. 2020). In Sayers, the court explained that the VA Accountability Act
introduced, as applicable here, an expedited, less rigorous alternative to
traditional civil service adverse action appeals under chapter 75. Sayers,
954 F.3d at 1374-79. The court determined that the agency could not remove the
petitioner under the VA Accountability Act for misconduct that predated its
June 23, 2017 enactment because the petitioner was entitled to the substantive
2 The appellant attempted to refile her petition for review with attachments, but the
Office of the Clerk of the Board rejected the filing, returned it to her, and informed her
of how to file a motion for leave to file an additional pleading. PFR File, Tab 3. The
appellant has not filed any such motion, nor has she included any attachments with her
reply to the agency’s response. PFR File, Tab 5.3
civil service protections in effect at the time of his alleged misconduct. Id.
at 1381. Thus, the court vacated the petitioner’s removal. Id. at 1382.
In Wilson v. Department of Veterans Affairs , 2022 MSPB 7, ¶¶ 27-33, we
considered whether it was possible to sustain the agency’s adverse action solely
based on post-June 23, 2017 misconduct when the agency’s charge included
alleged misconduct that both predated and postdated June 23, 2017. We
analogized the agency’s action under 38 U.S.C. § 714 to a due process error that
affects one charge but does not necessarily require vacating the remaining
charges. Id., ¶ 30 (citing Boss v. Department of Homeland Security , 908 F.3d
1278, 1279, 1282-83 (Fed. Cir. 2018)). Assuming that we could separate
specifications of a charge using the same reasoning, we found it inappropriate to
do so under the circumstances of the case because the underlying instances of
misconduct were so factually interrelated that they could not be fairly separated.
Wilson, 2022 MSPB 7, ¶¶ 30-33. In that case, the agency’s charge of neglect of
duty was based on a “steady decline” based on deficiencies of the appellant’s
subordinates over a period spanning at least 8 months, only 1 of which fell after
the enactment of the VA Accountability Act. Id., ¶ 31. Therefore, we reversed
the agency’s action. Id., ¶ 33.
We find the instant case distinguishable from the circumstances in Sayers
and Wilson. Here, the agency removed the appellant for seven discrete instances
of alleged misconduct as set forth in its seven, dated specifications. IAF, Tab 8
at 12-13. Only two of these specifications—specifications 1 and 2—concerned
alleged misconduct by the appellant prior to June 23, 2017, the enactment of the
VA Accountability Act. Id. at 12. As the agency was not permitted to take
adverse action against the appellant under § 714 with respect to these two
specifications, we disagree with the administrative judge’s conclusion that the
agency proved specifications 1 and 2. Generally, when more than one event or
factual specification supports a single charge, proof of one or more, but not all, of
the supporting specifications is sufficient to sustain the charge. Burroughs v.4
Department of the Army , 918 F.2d 170, 172 (Fed. Cir. 1990). Thus, we conclude
that the agency’s error as to specifications 1 and 2 was harmless as to the
remaining specifications, any of which, if proven, is sufficient to sustain its
charge. IAF, Tab 8 at 12-13; see Burroughs, 918 F.2d at 172; cf. Wilson,
2022 MSPB 7, ¶¶ 30-33.
On review, the appellant does not expressly challenge or dispute the
administrative judge’s findings that the agency proved all specifications of the
improper conduct charge by substantial evidence, and thus the charge itself. PFR
File, Tab 1 at 1-2; ID at 4-14. Under § 714, the Board shall uphold the agency’s
decision to remove a covered individual if it is supported by substantial evidence,
which 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. 38 U.S.C. § 714(d)(2)(A), (3)(B);
5 C.F.R. § 1201.4(p). We discern no basis to disturb the administrative judge’s
well-reasoned findings that the agency proved specifications 3-7 by substantial
evidence, and the administrative judge may incorporate these findings in the
remand initial decision. ID at 8-14. However, if any argument or evidence
presented by the parties concerning the issues on remand, as set forth herein,
affects the administrative judge’s analysis of these specifications, she should
address such argument or evidence in the remand initial decision.
On remand, the administrative judge should entertain any claim of harmful error
raised by the appellant concerning the agency’s review of the proposed removal
for substantial evidence.
In sustaining the appellant’s proposed removal, the deciding official
indicated that the allegations described in the proposal were “supported by
substantial evidence.” IAF, Tab 8 at 9. In Rodriguez v. Department of Veterans
Affairs, 8 F.4th 1290, 1296-1301 (Fed. Cir. 2021), the Federal Circuit determined
that the agency erred by applying a substantial evidence burden of proof to its
internal review of a disciplinary action under 38 U.S.C. § 714. The court found5
that substantial evidence is the standard of review to be applied by the Board,
whereas the agency’s deciding official must use a preponderance of the evidence
burden of proof. Id. at 1298-1301. In implementing the Federal Circuit’s
decision in Rodriguez, we determined that the agency’s application of the
substantial evidence standard of proof should be analyzed as a harmful error
affirmative defense. Semenov v. Department of Veterans Affairs , 2023 MSPB 16,
¶¶ 22-25.
Because Rodriguez and Semenov were issued after the issuance of the
initial decision and the appellant’s petition for review in the instant appeal, the
administrative judge should entertain any new harmful error affirmative defense
that the appellant might raise based on the same. If the appellant raises such an
affirmative defense, the administrative judge should provide the parties with an
opportunity to present evidence and argument, including a supplemental hearing,
if requested, addressing this issue. See 5 U.S.C. § 7701(a)(1), (b)(1). The
administrative judge should then address this affirmative defense in her remand
initial decision.
Regardless of whether the appellant proves harmful error, if any argument
or evidence on remand affects the administrative judge’s analysis of the other
issues, the administrative judge should address such argument or evidence in the
remand initial decision.
On remand, the administrative judge should permit the appellant to pursue her
claim of harmful procedural error concerning the agency’s alleged violation of
the applicable CBA.
The appellant contends on review that the agency engaged in harmful
procedural error under 5 C.F.R. § 1201.56(c)(3) in November 2017,
approximately 6 months before her removal. PFR File, Tab 1 at 1. She appeared
to raise a harmful procedural error defense before the administrative judge by
alleging that the agency violated the applicable CBA by failing to apply
progressive discipline before removing her. IAF, Tab 4 at 3, Tab 14 at 6. The6
administrative judge did not include harmful error as an affirmative defense in the
order and summary of telephonic prehearing conference, and the appellant never
objected to the administrative judge’s characterization of her affirmative
defenses. IAF, Tab 17 at 2-3. However, the appellant, through her non-attorney
representative, appeared to argue this affirmative defense at the hearing by
questioning the proposing official about whether the agency applies progressive
discipline. IAF, Tab 18-2, Hearing Recording. Considering the factors set forth
in Thurman v. U.S. Postal Service , 2022 MSPB 21, ¶¶ 17-28, and exercising our
discretion to consider any argument on appeal regardless of whether it was raised
below, 5 C.F.R. § 1201.115(e), we instruct the administrative judge to permit the
parties to present evidence and argument on this issue on remand. If the appellant
continues to pursue this argument on remand, the administrative judge should
address it in her remand initial decision. Moreover, if any argument or evidence
on this issue affects the administrative judge’s analysis of the other issues, she
should address such argument or evidence in the remand initial decision.
On remand, the administrative judge should reassess the appellant’s claim of EEO
retaliation consistent with Pridgen .
On review, the appellant reiterates her argument that the agency created a
hostile work environment and removed her in retaliation for a 2017 EEO
complaint. PFR File, Tab 1 at 1-2, Tab 5 at 2-3; IAF, Tab 14 at 4, 16. We find
that further adjudication of the appellant’s EEO retaliation claim is warranted.3
The administrative judge, in both the order and summary of the telephonic
prehearing conference and the initial decision, erroneously applied the “genuine
nexus” reprisal standard set forth in Warren v. Department of the Army , 804 F.2d
3 The agency stated that the appellant filed an EEO case on April 24, 2018, alleging that
her removal was in retaliation for prior EEO activity, but that the case was still in the
informal stage. IAF, Tab 14 at 16. Thus, it appears that the appellant’s Board appeal
alleging the same subject matter was filed prior to any formal EEO complaint. IAF,
Tab 1 at 1, Tab 14 at 16. Accordingly, we find that the appellant has elected to proceed
before the Board on her EEO retaliation claim. See Crumpton v. Department of the
Treasury, 98 M.S.P.R. 115, ¶ 10 (2004); see also 29 C.F.R. § 1614.302(b).7
654, 656-58 (Fed. Cir. 1986), to the appellant’s claim of EEO retaliation. IAF,
Tab 17 at 2-3; ID at 15. She found that the appellant failed to show that anyone
involved in her removal was aware of her protected activity and, therefore, failed
to show by preponderant evidence that her removal was in retaliation for EEO
activity. ID at 15. The Board overruled the “genuine nexus” standard for
analyzing claims of EEO retaliation in Savage v. Department of the Army ,
122 M.S.P.R. 612, ¶¶ 48-51 (2015), overruled in part by Pridgen, 2022 MSPB 31,
¶¶ 23-25. In Pridgen, we further clarified the evidentiary standards and burdens
of proof for EEO retaliation claims, and overruled Savage by finding that the
McDonnell Douglas framework applies. Pridgen, 2022 MSPB 31, ¶¶ 20-25,
30-33, 44-47; see McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-04
(1973). On remand, the administrative judge shall provide the parties an
opportunity to submit relevant evidence and argument on this issue and, in the
remand initial decision, reassess the appellant’s affirmative defense of EEO
retaliation in accordance with Pridgen.4
Furthermore, the administrative judge considered the appellant’s
allegations of a hostile work environment and found that the appellant failed to
show that she was subjected to a hostile work environment based on any protected
class under Title VII, i.e., sex, race, color, religion, or national origin. ID
at 15-16. However, as acknowledged by the administrative judge in her
prehearing conference order, IAF, Tab 17 at 3, evidence of a hostile work
environment might also constitute circumstantial evidence of a retaliatory motive,
see Pridgen, 2022 MSPB 31, ¶¶ 24, 30. In her reply to the agency’s response to
her petition for review, the appellant expressly alleges that her EEO complaint
concerning unlawful discrimination caused disparate treatment from management.
4 On review, the appellant alleges broadly that the EEO complaint was based on
unlawful discrimination under 5 U.S.C. § 2302(b)(1). PFR File, Tab 1 at 1, Tab 5 at 2.
Her burden of proof depends on whether she alleged Title VII and/or age
discrimination, or disability discrimination in her prior EEO complaint. See Pridgen,
2022 MSPB 31, ¶¶ 20-22, 30, 44-47; see also Desjardin v. U.S. Postal Service ,
2023 MSPB 6, ¶ 33.8
PFR File, Tab 5 at 2. Therefore, on remand, the administrative judge should
consider any argument or evidence of harassment in the context of her EEO
retaliation claim.
If any argument or evidence on the appellant’s EEO retaliation claim
affects the administrative judge’s analysis of the other issues, she should address
such argument or evidence in the remand initial decision on those issues.
On remand, the administrative judge should review the agency’s penalty selection
by considering the Douglas factors.
The administrative judge found that, because the agency proved the charge
by substantial evidence and the appellant failed to prove her affirmative defenses
by preponderant evidence, the removal penalty must be affirmed. ID at 16. She
stated that the reasonableness of the agency’s imposed penalty, along with a
consideration of mitigating and aggravating factors under Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981), was immaterial, but she did not
have the benefit of subsequent Federal Circuit decisions on this issue. ID at 3;
see Sayers, 954 F.3d at 1379; see also Connor v. Department of Veterans Affairs ,
8 F.4th 1319, 1323-27 (Fed. Cir. 2021); Brenner v. Department of Veterans
Affairs, 990 F.3d 1313, 1322-27 (Fed. Cir. 2021). In Sayers, the Federal Circuit
clarified that, while the Board may not “mitigate the penalty,” § 714 nevertheless
requires the Board to review for substantial evidence the entirety of the agency’s
removal decision—including the penalty. Sayers, 954 F.3d at 1379. In Connor,
the Federal Circuit addressed the continued relevance of the Douglas factors and
concluded that § 714 “did not alter preexisting law, which required the VA and
the Board to apply the Douglas factors to the selection and review of penalties in
VA disciplinary actions.” Connor, 8 F.4th at 1326. It stated, “if the Board
determines that the VA failed to consider the Douglas factors or that the chosen
penalty is unreasonable, the Board must remand to the VA for a redetermination
of the penalty.” Id. at 1326-27; see Semenov, 2023 MSPB 16, ¶¶ 44-499
(remanding the matter to the administrative judge to review the agency’s penalty
selection by considering the Douglas factors).
Here, the deciding official referenced some of the Douglas factors in
making her removal decision. IAF, Tab 8 at 9. She did not testify at the hearing.
The appellant testified about her personal health, her mother’s illness, and a lack
of progressive discipline in her removal, which the administrative judge
recognized as circumstances ordinarily considered as mitigating factors with
respect to the penalty but, in this case, were immaterial. ID at 16. On remand,
the administrative judge should permit the parties to submit additional evidence
and argument on the penalty issue, determine whether the agency proved by
substantial evidence that it properly applied the relevant Douglas factors and
whether the agency’s penalty was reasonable, and, if not, remand the matter to the
agency for a new decision on the appropriate penalty. See Semenov, 2023 MSPB
16, ¶ 50. The administrative judge should consider that specifications 1 and 2
cannot be sustained. See Payne v. U.S. Postal Service , 72 M.S.P.R. 646, 651
(1996) (stating that an agency’s failure to sustain all of its supporting
specifications may require, or contribute to, a finding that the agency’s penalty is
not reasonable).
The administrative judge need not consider other claims raised by the appellant
for the first time in her petition for review.
In her petition for review, the appellant mentioned her prior Board appeal
concerning her probationary termination, which the administrative judge
dismissed for lack of jurisdiction. PFR File, Tab 1 at 1, Tab 4 at 2; Winston v.
Department of Veterans Affairs , MSPB Docket No. AT-0752-17-0747-I-1, Initial
Decision at 1-3 (Oct. 4, 2017). Her prior Board appeal did not appear to involve
claims of discrimination or retaliation for engaging in EEO activity. Therefore,
to the extent that the appellant alleges retaliation for filing her prior Board
appeal, the standard under Warren, 804 F.2d at 658, would apply. See 5 U.S.C.
§ 2302(b)(9)(A)(ii); see also Pridgen , 2022 MSPB 31, ¶ 32. 10
However, 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.
Pridgen, 2022 MSPB 31, ¶ 34 n. 10; Banks v. Department of the Air Force ,
4 M.S.P.R. 268, 271 (1980). As it does not appear that the appellant raised an
affirmative defense of retaliation for filing her prior Board appeal at any point
before the administrative judge, we find that the administrative judge need not
address this claim on remand.
Similarly, for the first time on review, the appellant raises a claim of
“retaliation for whistleblowing activities under 5 U.S.C. 2302(b)(8) and (b)(9)(A)
(i), (B), (C) or (D).” PFR File, Tab 1 at 2. She identifies, presumably as the
alleged whistleblowing activity, a police report that she allegedly filed against her
supervisor on February 22, 2018. Id. The appellant did not raise this affirmative
defense below or submit a February 22, 2018 police report into the record, and
the administrative judge did not identify any whistleblower reprisal affirmative
defense in her August 8, 2018 order and summary of the telephonic prehearing
conference. IAF, Tab 14, Tab 17 at 2-3. The appellant has not explained why
she did not raise a whistleblower reprisal affirmative defense below. PFR File,
Tabs 1, 5. Therefore, we find that she is precluded from doing so on review. See
Pridgen, 2022 MSPB 31, ¶ 34 n. 10; Banks, 4 M.S.P.R. at 271. Accordingly, the
administrative judge need not address the appellant’s whistleblower reprisal claim
on remand. 11
ORDER
We vacate the initial decision and remand the appeal to the regional office
for further adjudication. In the remand initial decision, the administrative judge
may reincorporate prior findings as appropriate, consistent with this Remand
Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Winston_JuanitaAT-0714-18-0481-I-1__Remand_Order.pdf | 2024-05-22 | JUANITA WINSTON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0714-18-0481-I-1, May 22, 2024 | AT-0714-18-0481-I-1 | NP |
1,390 | https://www.mspb.gov/decisions/nonprecedential/Trinetra_JimmySF-0752-18-0122-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JIMMY TRINETRA,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-0752-18-0122-I-1
DATE: May 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Giancarlo Facciponte , Esquire, Syracuse, New York, for the appellant.
Steven Snortland , Los Angeles, California, 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 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 to
address the temporal proximity between the appellant’s equal employment
opportunity (EEO) activity and his removal, we AFFIRM the initial decision.
BACKGROUND
The agency removed the appellant from his Supervisory Police Officer
position based on the following charges: (1) Sleeping on Duty; and (2) Failure to
Maintain a Requirement of Your Position. Initial Appeal File (IAF), Tab 6
at 15-20, Tab 7 at 8-10. Regarding the latter charge, the agency alleged that the
appellant’s position required that he maintain mental and emotional fitness, and
that the Chief of Administrative Medicine deemed him psychologically unfit for
his position after a psychologist reached the same conclusion based on a
psychological fitness for duty evaluation. IAF, Tab 7 at 8, 21-23.
On appeal, the appellant disputed the agency’s charges, claimed that there
was no nexus between the misconduct and the efficiency of the service, and
alleged that the action was based on harmful error, discrimination based on race
and disability, and retaliation for EEO activity. IAF, Tab 1 at 5-6, Tab 17 at 10,
Tab 29 at 2-3. The appellant also challenged the reasonableness of the penalty.
IAF, Tab 1 at 6, Tab 29 at 2-3.
After a hearing, the administrative judge affirmed the removal. IAF,
Tab 35, Initial Decision (ID) at 1, 34. The administrative judge found that the2
agency proved the charges and that there was a nexus between the charges and the
efficiency of the service. ID at 15-22. She also found that the appellant did not
prove harmful error, race or disability discrimination, or retaliation for EEO
activity. ID at 22-32. Finally, the administrative judge found that the penalty of
removal was reasonable. ID at 32-34.
ANALYSIS
The agency proved the charge of Sleeping on Duty.
The appellant asserts on review that the agency did not prove the charge of
Sleeping on Duty because the only agency witness to the charge was a subject of
the appellant’s EEO complaint, the appellant was permitted to take a break at any
time, his alleged sleeping on duty did not endanger the safety of another
individual, and the administrative judge gave only “scant” consideration to his
testimony and evidence. Petition for Review (PFR) File, Tab 9 at 13-14.
The administrative judge addressed many of these arguments in sustaining
the charge, finding that the appellant testified that he was sitting at his computer
on December 13, 2016, with the intention of reviewing work-related documents,
when his supervisor approached him without his awareness and startled him by
yelling his name. ID at 10, 16-17. The administrative judge found that this
testimony was consistent with the appellant being on duty and asleep. ID
at 16-17. The administrative judge also relied upon the appellant’s
contemporaneous statement to the supervisor that he was not on a break, as well
as other statements he made to agency officials in which he did not claim that he
was on a break. Id. In making these findings, the administrative judge
considered the appellant’s account and found it unworthy of belief, while finding
the testimony of the supervisor who found the appellant asleep credible, based in
part on their respective demeanors. Id.; 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,3
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). The appellant has not set forth
sufficiently sound reasons to overturn these credibility determinations. To the
extent that the administrative judge did not address all of the appellant’s
testimony and evidence, her failure to do so does not mean that she did not
consider it. See 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).
Regarding the appellant’s claim that his supervisor, who was the only
witness to the charged sleeping on duty, was a subject of his EEO complaint, the
appellant had filed a June 14, 2016 formal EEO complaint that did not initially
list the supervisor as one of the officials who had discriminated against him.
IAF, Tab 19 at 30-32, 45-46, 48-64. However, the EEO Investigative Report,
signed by the EEO Investigator on February 24, 2017, clarifies that the supervisor
was involved in only one of the events that predated the December 13, 2016
sleeping incident when, on November 30, 2016, he gave the appellant a “short
notice Special Physical Examination letter requiring him to undergo physical
testing by December 1, 2016 as a condition of continued employment.” Id. at 41,
43. This supervisor was listed as a witness in the report and indicated in sworn
statements to the EEO Investigator that he was unaware of the appellant’s EEO
activity. Id. at 33; IAF, Tab 20 at 102, 104-05, 111. He also indicated that,
although he issued the Special Physical Examination letter, he did not know the
reasons why the examination was required and “was only the issuing authority”
for the action. IAF, Tab 20 at 106, 109. Moreover, the supervisor was not asked
at the hearing whether he was aware of any of the appellant’s EEO activity before
he found him asleep on December 13, 2016. Hearing CD, Track 03 (testimony of
the supervisor). To the extent that the appellant suggests that the supervisor did
not see him sleeping on duty but instead fabricated such an event because of the
appellant’s EEO activity, PFR File, Tab 9 at 14, there is no basis for such a4
finding, see Social Security Administration v. Carr , 78 M.S.P.R. 313, 324-25
(1998), aff’d, 185 F.3d 1318 (Fed. Cir. 1999); Redfearn v. Department of Labor ,
58 M.S.P.R. 307, 315 (1993).
Moreover, the appellant’s claim that he did not endanger the safety of
another employee is not material to whether the agency proved the charge, which
merely alleged that he was sleeping on duty. IAF, Tab 7 at 8; see Fargnoli v.
Department of Commerce , 123 M.S.P.R. 330, ¶ 7 (2016) (requiring t he Board to
review the agency’s decision on an adverse action solely on the grounds invoked
by the agency); cf. Gmitro v. Department of the Army , 95 M.S.P.R. 89, ¶¶ 1-3,
19-20 (2003) (upholding the appellant’s removal when the agency proved its
charge of sleeping on duty where safety of personnel or property was
endangered), aff’d, 111 F. App’x 610 (Fed. Cir. 2004).
The agency proved the charge of Failure to Maintain a Requirement of Your
Position.
Regarding the charge of Failure to Maintain a Requirement of Your
Position, the appellant relies on Fox v. Department of the Army , 120 M.S.P.R.
529, ¶ 25 (2014), in asserting that the agency was required to prove a nexus
between his disabilities, which he identified as Post Traumatic Stress Disorder
and Anxiety, and observed deficiencies in his performance or a high probability
of injury to himself or others. PFR File, Tab 9 at 7, 15.
The Board held in Fox that, to prove a charge of physical inability to
perform, the agency needed to establish a nexus between the employee’s medical
condition and observed deficiencies in his performance or conduct, or a high
probability, given the nature of the work involved, that his condition may result
in injury to himself or others.2 Fox, 120 M.S.P.R. 529, ¶ 25. Here, however, the
agency did not charge the appellant with physical inability to perform. Instead, it
2 In Haas v. Department of Homeland Security , 2022 MSPB 36, ¶ 5 n.3, the Board
clarified that this general standard for proving the charge of inability to perform applies
even when an employee occupies a position with medical standards or physical
requirements, or that is subject to medical evaluation programs.5
charged him with “Failure to Maintain a Requirement of Your Position.”3 IAF,
Tab 7 at 8. In support of that charge, the agency alleged that the appellant’s
position required him to maintain mental and emotional fitness, and that the
agency deemed him psychologically unfit for his position. Id. The appellant’s
position included a medical standard that required incumbents to “[p]ossess
emotional and mental stability,” and provided that “[a]ny emotional or mental
condition which could cause the . . . officer to be a hazard to others or self during
stress situations and physical altercations will disqualify.” Id. at 61-62. As set
forth by the administrative judge, to sustain a charge of Failure to Maintain a
Requirement of Your Position, the agency must prove that the appellant’s
position required that he maintain medical standards and that he did not fulfill
those requirements. ID at 17; see Martin v. Department of Veterans Affairs ,
412 F.3d 1258, 1264-65 (Fed. Cir. 2005); Paetow v. Department of Veterans
Affairs, 118 M.S.P.R. 462, ¶ 9 (2012); Boulineau v. Department of the Army ,
57 M.S.P.R. 244, 246-48 (1993); Wyse v. Department of Transportation ,
39 M.S.P.R. 85, 88, 91 (1988) . Thus, the standard set forth in Fox does not
apply. See Guillebeau v. Department of the Navy , 93 M.S.P.R. 379, ¶ 11 (2003)
(requiring the Board to adjudicate an appeal solely on the grounds invoked by the
agency without substituting what it considers to be a more appropriate charge),
aff’d, 362 F.3d 1329 (Fed. Cir. 2004).
The appellant also contends on review that the mental fitness examination
itself was not warranted, not conducted under the agency’s procedures, and the
3 In Slater v. Department of Homeland Security , 108 M.S.P.R. 419, ¶ 7 (2008),
overruled on other grounds by Haas , 2022 MSPB 36, ¶ 14, the Board appeared to
broadly state that a removal as “medically disqualified” is equivalent to a removal for
inability to perform for medical reasons. In so doing, the Board cited Cheers v. Office
of Personnel Management , 87 M.S.P.R. 591, ¶ 11 (2001), Justice v. Department of the
Navy, 89 M.S.P.R. 379, ¶ 2-3 (2001), and Cunningham v. Department of the Air Force ,
26 M.S.P.R. 599, 600-01 (1985 ). In those cases, however, the agencies’ charges
referenced both a medical disqualification and a medical inability to perform the duties
of a position. See Cheers, 87 M.S.P.R. 591, ¶ 11; Justice, 89 M.S.P.R. 379, ¶ 2,
Cunningham, 26 M.S.P.R. at 600-01. Here, by contrast, the agency’s charge does not
reference a physical inability to perform. IAF, Tab 7 at 86
result of discriminatory and retaliatory animus. PFR File, Tab 9 at 17. In
particular, the appellant asserts that he merely informed a supervisor that he was
experiencing stress in the workplace and filed a workers’ compensation claim
citing such stress, but there was no evidence of erratic behavior or worrisome
changes in his demeanor that warranted such an examination. Id. at 17-18. He
suggests that he did not pose a risk or threat to his own health or the safety of
others sufficient to justify his removal. Id. at 15-16, 21.
To the extent that the appellant is challenging on review the agency’s basis
for the mental fitness for duty evaluation as harmful error or an improper
disability-related medical examination, see, e.g., Archerda v. Department of
Defense, 121 M.S.P.R. 314, ¶¶ 28-29 (2014), he did not raise such claims below.
He did not make such an allegation in his initial appeal. IAF, Tab 1 at 5-7. In his
prehearing submission, he noted that “[t]he Agency posits only that Appellant
stated to [the Chief of Police] that he was experiencing symptoms of his
disability, namely stress and anxiety, and that this was the reason for the . . . fit
for duty evaluation request.” IAF, Tab 17 at 9. Among the issues he identified,
however, was whether the agency proved that he “failed to maintain a condition
of his employment as stated in Charge 2 of the March 28, 2017 Proposed
Removal,” whether the agency engaged in harmful error when it failed to properly
consider his written and oral replies to the proposal notice, and whether the
agency “discriminate[d] against [him] based on his race (Asian), disability status,
and/or retaliate against him based on his prior EEO activity” when it proposed his
removal. Id. at 10. In his discussion of the above charge, the appellant asserted
that the agency is required to engage in an individualized risk assessment
regarding an employee’s disability to determine if a reasonable accommodation
can be made, and that the employer must assess whether the individual’s
disability causes him to present a significant risk of substantial harm to the
individual’s own person or that of others. Id. at 14. He claimed that any
justification for the determination that he was unfit to perform the duties of his7
position was meritless, speculative, and based on nothing more than him stating
he was “stressed,” and that the agency would not, therefore, be able to show a
nexus between his disability and deficiencies in his performance with a high
probability of injury to himself or others. Id. at 15. Within his summary of the
expected testimony of two proposed witnesses, the appellant alleged that the
witnesses had “knowledge related to the inappropriate issuance of fit for duty
evaluations to Appellant during November of 2016 and January of 2017.” Id.
at 20. He further identified an exhibit that he claimed dealt directly with “the
inappropriate fit for duty evaluations which were issued to him.” Id. at 22.
Nevertheless, in his arguments regarding disability discrimination, the appellant
merely asserted that the agency had failed to accommodate him. Id. at 18.
In her Order and Summary of Prehearing Conference, therefore, the
administrative judge identified the issues as encompassing whether the reasons
for the removal were supported by preponderant evidence, whether there was a
connection between the alleged misconduct and the efficiency of the service,
whether the agency responsibly considered the relevant penalty factors and
imposed a reasonable penalty, and whether the appellant could prove his
affirmative defenses of harmful error, discrimination based on race and disability,
and retaliation based on EEO activity. IAF, Tab 29 at 2-3. The administrative
judge notified the parties that there were no other issues in the case, and that the
parties would be limited to those issues at the hearing unless a new issue could
not have been previously known despite the party’s due diligence. Id. at 3.
Although the administrative judge afforded the parties an opportunity to object to
those rulings, id. at 8, the appellant did not object, Hearing CD, Track 01
(administrative judge’s opening). Moreover, the appellant did not raise a claim
similar to the one he is making on review in his closing argument. IAF, Tab 34.
He has been represented by an attorney throughout these proceedings. IAF,
Tabs 1, 17; PFR File, Tab 9. Accordingly, in the absence of a showing that this
argument challenging the propriety of the mental fitness for duty evaluation is8
based on new and material evidence not previously available despite the
appellant’s due diligence, we will not consider it for the first time on review. See
Holton v. Department of the Navy , 123 M.S.P.R. 688, ¶ 18 (2016), aff’d, 884 F.3d
1142 (Fed. Cir. 2018); Ronso v. Department of the Navy , 122 M.S.P.R. 391, ¶ 3
n.1 (2015).
Although the appellant asserts that the conclusions reached by the
psychologist who conducted the mental fitness examination conflicted with other
evidence in the record, PFR File, Tab 9 at 20-21, we disagree. In reaching her
conclusion, the administrative judge properly weighed the medical evidence. ID
at 18-21; see Brown v. Department of the Interior , 121 M.S.P.R. 205, ¶ 11 (2014)
(recognizing that, in assessing the probative weight of medical opinions, the
Board considers whether the opinion was based on a medical examination and
provided a reasoned explanation for its findings as distinct from mere conclusory
assertions, the qualifications of the expert rendering the opinion, and the extent
and duration of the expert’s familiarity with the treatment of the appellant),
overruled on other grounds by Haas v. Department of Homeland Security ,
2022 MSPB 36, ¶ 14. For example, the administrative judge found that the
recommendation was amply supported by recognized psychological tests and
methodology, and that the psychologist’s testimony was based on her extensive
25-year practice in evaluating the psychological fitness of law enforcement
officers and consistent with her contemporaneous interview notes. ID at 11,
13-14, 19; see Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987).
The administrative judge considered a statement from the appellant’s personal
physician that he was fit to return to duty with no restrictions, but gave it no
weight because he was board-certified in Internal Medicine, not Psychiatry, and
there was no evidence that he considered the appellant’s psychological or
psychiatric fitness in making the recommendation. ID at 5, 19. She also found
that the determination of an agency doctor of Internal Medicine that the appellant
did not have a medical condition negatively affecting his cognition or behavior9
was not an assessment of the appellant’s mental health, and that doctor referred
the appellant for a psychological examination because the doctor did not have
psychological expertise. ID at 19. The administrative judge noted that the
psychologist’s conclusion that the appellant was mentally unfit to serve as a
Supervisory Police Officer was not challenged by any other psychologist or
psychiatric opinion. Id. Moreover, the psychologist adequately explained why
she credited the appellant’s oral self-report during her interview with him over
any inconsistent responses he provided in his answers to certain written
psychological tests. ID at 14; Hearing CD, Track 05 (testimony of the
psychologist). In sum, the appellant has not established on review a basis to
overturn these explained findings made by the administrative judge.
The appellant did not prove retaliation for EEO activity.
Regarding his retaliation claim, the appellant asserts that the administrative
judge did not address the temporal proximity between his EEO activity and the
actions taken by the agency. PFR File, Tab 9 at 22. He also claims that the
testimony of the psychologist who conducted the mental fitness examination was
“inherently suspect” because she was “unfamiliar with how to interpret, manage,
or address issues of employees complaining of hostile workplace harassment or
discrimination based on disability or race,” and “seemed to indicate that such
issues had never been brought to her attention previously during all 45,000 prior
examinations she conducted.” Id. (emphasis omitted). The appellant further
contends that there was no evidentiary support for the administrative judge’s
finding that the prior disciplinary actions taken against him that were the subject
of his EEO complaint resulted from a new supervisor’s “no nonsense”
management style. Id. at 23.
As with status-based discrimination cases, a violation of 42 U.S.C.
§ 2000e-16 is established if a prohibited consideration, such as retaliation for
EEO activity, was a motivating factor in the contested personnel action, even if it10
was not the only reason.4 Savage v. Department of the Army , 122 M.S.P.R. 612,
¶¶ 41, 51 (2015), overruled in part by Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶¶ 23-25 . Evidence supporting an inference that
retaliation was a motivating factor in an employment action may be direct or
circumstantial. Id., ¶ 42. Circumstantial evidence may include the following:
(1) suspicious timing, ambiguous oral or written statements, behavior toward or
comments directed at other employees in the protected group, and other bits and
pieces from which an inference of discriminatory intent might be drawn;
(2) evidence, whether or not rigorously statistical, that employees similarly
situated to the appellant other than in the characteristic on which an employer is
forbidden to base a difference in treatment received systematically better
treatment; and (3) evidence that the agency’s stated reason for its action is
unworthy of belief, a mere pretext for discrimination. Id. Such evidence must be
considered as a whole in determining whether the appellant has shown by
preponderant evidence that retaliation was a motivating factor in the personnel
action. Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647, ¶¶ 30-31
(2016), clarified by Pridgen, 2022 MSPB 31, ¶¶ 23-24 . It must not be separated
into direct and indirect evidence that is subject to different legal standards, nor is
an appellant required to show a “convincing mosaic” of retaliation. Id., ¶ 30.
In finding that the appellant did not prove retaliation for EEO activity, the
administrative judge held that he did not support his speculations with evidence,
he did not show that similarly situated employees who had not engaged in
protected activity were treated differently, and the deciding official was not the
subject of the appellant’s EEO complaint or involved in any of his prior
disciplinary actions. ID at 26-28. The administrative judge also appears to have
4 The appellant’s EEO complaint alleged that he was subjected to a hostile work
environment based on race, reprisal, and age. IAF, Tab 6 at 109, Tab 19 at 30. Because
it does not appear that the complaint included a claim of disability discrimination, we
will not apply in this case the higher “but for” standard for cases involving claims of
retaliation arising under the Americans with Disabilities Act Amendments Act of 2008.
See Haas, 2022 MSPB 36, ¶¶ 31-34; Pridgen, 2022 MSPB 31, ¶¶ 30-36.11
found that the prior disciplinary actions that were part of the basis for the
appellant’s EEO complaint were justified given the different management style of
the proposing official of the removal action upon entering his position, who held
supervisors and managers to a “high level of functioning.” ID at 26-27.
Because the administrative judge did not address the timing of the EEO
complaint as it related to the proposed and effected removal, we modify the initial
decision by addressing it here. The appellant filed a formal EEO complaint on
June 14, 2016. IAF, Tab 19 at 30. He amended the complaint on November 14,
2016, January 6, 2017, and February 16, 2017. Id.; IAF, Tab 6 at 109. The
complaint challenged, among other things, the appellant’s prior 5 - and 14-day
suspensions, as well as several investigations and the removal of his supervisory
duties and responsibilities. IAF, Tab 7 at 73-79, Tab 19 at 30-31. The complaint
identified the proposing official in the removal action as one of the officials who
discriminated and retaliated against him, but not the deciding official. IAF, Tab 7
at 8-10, Tab 19 at 30-31. The agency proposed his removal on March 28, 2017,
IAF, Tab 7 at 8, and removed him effective November 12, 2017, based on a
November 3, 2017 decision notice, IAF, Tab 6 at 15-20.
Despite the above timing, which could be viewed as suspicious, the
appellant has not identified ambiguous oral or written statements by the
proposing official, behavior or comments by him toward other employees who
filed EEO complaints, or other bits and pieces from which an inference of
retaliatory intent might be drawn. See Cole v. U.S. Postal Service , 86 M.S.P.R.
572, ¶¶ 11-13 (2000) (recognizing that an agency may be found to have acted
with retaliatory motives if an official with actual knowledge of an appellant’s
protected activity influenced the official who took the action), abrogated on other
grounds by Simien v. U.S. Postal Service , 99 M.S.P.R. 237, ¶¶ 27-28 (2005). As
the administrative judge found, the appellant did not present evidence that
similarly situated employees who had not filed EEO complaints received better
treatment. ID at 27-28. 12
Moreover, despite the appellant’s assertion that the testimony of the
psychologist who found him mentally unfit was suspect because she was
unfamiliar with how to address employee complaints of hostile workplace
harassment or discrimination based on disability or race, the psychologist
testified that the bulk of the many evaluations she had conducted since 1992 had
been pre-employment public safety hires. Hearing CD, Track 05 (testimony of
the psychologist). Thus, any unfamiliarity she may have had with the term
“EEO” may be due to the nature of her practice. In any event, she testified that
she averages approximately 50 yearly fitness for duty retention interviews from
the agency, she took into account his feelings of discrimination, which
contributed to his stress, worries, fears, anxiety, anxiety attacks, and depression,
and although she did not recall if other police officers she evaluated had filed
discrimination complaints, she had heard of police officers filing complaints
against their departments. Id. She also testified that the agency did not try to
dictate to her the results of her evaluation, and that she made her own
independent determination regarding the appellant. Id. In sum, the appellant has
provided no basis for overturning the administrative judge’s determination that
the psychologist’s recommendation was amply supported by recognized
psychological tests and methodology, consistent with her contemporaneous
interview notes, and unchallenged by any other psychologist or psychiatric
opinion. ID at 19. He has not, therefore, shown that the agency’s reason for the
action was unworthy of belief.
Similarly, contrary to the appellant’s contention that there was no
evidentiary support for the administrative judge’s finding that the disciplinary
actions taken against him, including those addressed in his EEO complaint,
resulted from a new supervisor’s “no nonsense” management style, the record
does support the administrative judge’s finding in that regard. ID at 26-27;
Hearing CD, Track 04 (testimony of a police captain), Track 10 (testimony of the
proposing official). The administrative judge correctly found that the new police13
chief had a different management style and was perceived as being “stern” with
all his subordinates. ID at 27. Thus, the appellant has not shown that the
administrative judge erred when she found that the appellant was not held to a
higher standard than his coworkers. Id.
Under these circumstances, we find no basis to disturb the administrative
judge’s determination that the appellant did not prove that retaliation for EEO
activity was a motivating factor in the removal decision. See Gardner,
123 M.S.P.R. 647, ¶¶ 30, 33-34 (declining to reweigh the evidence supporting a
finding that the appellant did not prove that her EEO complaint was a motivating
factor in her removal when she alleged on review that there was a close proximity
in time between her EEO complaint and her proposed removal).
The appellant did not prove disability discrimination.
The appellant further asserts that he proved disability discrimination
because the agency did not offer him a reasonable accommodation, follow
procedures to ensure that his fitness for duty evaluations were conducted without
discrimination based on his disabilities, or determine if a reasonable
accommodation was appropriate before declaring him unfit and proposing his
removal. PFR File, Tab 9 at 23-24. He also contends that the agency treated him
differently from similarly situated coworkers. Id. at 24.
The administrative judge found, after assuming that the appellant was an
individual with a disability, that he did not show that the action he appealed to the
Board was based upon his degenerative disc disease, for which he had requested
and was denied an accommodation.5 ID at 28, 31. The administrative judge also
held that, even if the action was based on his disability, he was not a qualified
individual with a disability because he lacked a medical certification to perform
5 The appellant’s accommodation request for an assignment to a different location, after
the agency found him psychologically unfit for his Supervisory Police Officer position
and assigned him to a desk job at a business office, appears to be based on his back and
neck pain, anxiety, and the stress relating to the longer drive to that business office
location. IAF, Tab 6 at 33-34, Tab 28 at 5.14
the duties of a Supervisory Police Officer, i.e., the requisite skill, experience,
education, and other job-related requirements of the position. ID at 31-32; see
Clemens v. Department of the Army , 120 M.S.P.R. 616, ¶ 10 (2014). The
appellant’s arguments on review do not address or show error in these findings.
To the extent the appellant is alleging that the agency committed harmful error by
not ensuring that his fitness for duty evaluations were conducted properly or
providing him a reasonable accommodation before declaring him unfit and
proposing his removal, he did not raise such arguments below. IAF, Tab 17
at 16-17; ID at 22-25. In the absence of a showing that such arguments are based
on new and material evidence not previously available despite his due diligence,
the Board need not address them. See Holton, 123 M.S.P.R. 688, ¶ 18; 5 C.F.R.
§ 1201.115(d).
The appellant has not shown error in the administrative judge’s penalty analysis.
Finally, the appellant asserts that, if the Board does not reverse the case
based on a failure by the agency to prove its charges or a determination that he
has proven his affirmative defenses, the maximum reasonable penalty is a
suspension of between 20 and 45 days. PFR File, Tab 9 at 25. The appellant
does not, however, explain why the penalty should be mitigated or show any error
in the administrative judge’s penalty analysis. Under these circumstances, we
find no basis to disturb that determination. ID at 32-34; see 5 C.F.R.
§ 1201.114(b) (requiring that a petition for review be supported by references to
applicable laws or regulations and by specific references to the record).
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
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.15
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.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. 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 | Trinetra_JimmySF-0752-18-0122-I-1__Final_Order.pdf | 2024-05-22 | JIMMY TRINETRA v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0752-18-0122-I-1, May 22, 2024 | SF-0752-18-0122-I-1 | NP |
1,391 | https://www.mspb.gov/decisions/nonprecedential/Knuckles_Jeniqua_I_AT-4324-21-0022-I-1_AT-4324-21-0022-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JENIQUA IRENE KNUCKLES,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBERS
AT-3330-21-0153-I-1
AT-4324-21-0022-I-1
DATE: May 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeniqua Irene Knuckles , Summerville, South Carolina, pro se.
James E. Miller, Jr. , Esquire, Montgomery, Alabama, for the agency.
Joy Warner , Esquire, Decatur, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review in these appeals asking us to
reconsider the initial decisions issued by the administrative judge, which denied
corrective action in the 0022 Uniformed Services Employment and
Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C.
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).
§§ 4301-4335) (USERRA) appeal and the 0153 Veterans Employment
Opportunities Act of 1998 (VEOA) appeal.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 these appeals, 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. We AFFIRM
the administrative judge’s decision to deny corrective action in the
0022 USERRA appeal. Except as expressly MODIFIED to supplement the
administrative judge’s analysis in the 0153 VEOA appeal, we AFFIRM the initial
decision in that appeal.
BACKGROUND
In October 2020, the appellant, an Advanced Medical Support Assistant,
filed an appeal alleging that the agency committed a prohibited personnel practice
and harmful procedural error when it did not select her, and selected a nonveteran
instead, for the Supervisory Medical Support Assistant position (vacancy
announcement number CBTB-10877333-20-KGB). Knuckles v. Department of
Veterans Affairs , MSPB Docket No. AT-3330-21-0018-I-1, Initial Appeal File
2 On our own motion, we have joined the AT-3330-21-0153-I-1 and AT-4324-21-0022-
I-1 appeals for consideration on petition for review pursuant to 5 C.F.R.
§ 1201.36(a)(2). We find that joinder is appropriate because it will expedite the
processing of these appeals and will not adversely affect the interests of the parties. Id.2
(0018 IAF), Tab 1 at 5. The administrative judge issued two orders instructing
the appellant how to establish a claim under USERRA and VEOA. 0018 IAF,
Tabs 3, 7. The appellant filed a response on October 16, 2020, asserting that she
was filing a USERRA claim and stating that she had not filed a complaint with
the Secretary of Labor. 0018 IAF, Tab 8. The administrative judge issued an
initial decision dismissing the VEOA claim for lack of jurisdiction because the
appellant did not exhaust her administrative remedy with the Department of
Labor, and noting that the regional office docketed a separate USERRA appeal
under MSPB Docket No. AT-4324-21-0022-I-1 . 0018 IAF, Tab 11 at 1-3 & n.1;
see Knuckles v. Department of Veterans Affairs , MSPB Docket No. AT-4324-21-
0022-I-1, Initial Appeal File (0022 IAF), Tab 1. The appellant did not file a
petition for review of the initial decision issued in the 0018 appeal, and it became
the Board’s final decision.
In the 0022 USERRA appeal, the appellant’s October 16, 2020 submission
cited to 38 U.S.C. § 4311(a), asserted that she was a disabled veteran, and alleged
that the agency discriminated against her when it did not select her for the
positions of Lead Medical Support Assistant (vacancy announcement number
CBAY-10625647-19-KGB), Medical Administration Specialist (Administrative
Officer of the Day) (vacancy announcement number CBAY-10676279-20-TW),
and Supervisory Medical Support Assistant (vacancy announcement number
CBTB-10877333-20-KGB). 0022 IAF, Tab 1 at 4-6. The appellant did not
request a hearing. 0022 IAF, Tab 1. After finding that the Board had jurisdiction
over the appellant’s USERRA appeal, 0022 IAF, Tab 8, the administrative judge
issued an initial decision denying corrective action under USERRA with regard to
the three vacancy announcements, 0022 IAF, Tab 21, Initial Decision (0022 ID).
The appellant has filed a petition for review, and the agency has filed a response.
Knuckles v. Department of Veterans Affairs , MSPB Docket No. AT-4324-21-
0022-I-1, Petition for Review (0022 PFR) File, Tabs 1, 3.3
While the 0022 USERRA appeal was pending, the appellant filed another
Board appeal. Knuckles v. Department of Veterans Affairs , MSPB Docket
No. AT-3330-21-0153-I-1, Initial Appeal File (0153 IAF), Tab 1. In that appeal,
she alleged that she applied for the Title 38 hybrid Supervisory Medical Support
Assistant position (vacancy announcement number CBTB -10877333-20-KGB),
the agency “illegally” limited the vacancy announcement to internal applicants, it
hired a nonpreference eligible for the vacancy, and it violated her veterans’
preference rights in the selection process. 0153 IAF, Tab 1 at 5. The appellant
did not request a hearing, but she included a closeout letter from the Department
of Labor. Id. at 2, 7-8. After finding the Board had jurisdiction over the
appellant’s VEOA appeal, 0153 IAF, Tab 12, the administrative judge issued an
initial decision denying the appellant’s request for corrective action, 0153 IAF,
Tab 15, Initial Decision (0153 ID). The appellant has filed a petition for review,
and the agency has filed a response. 0153 PFR, Tabs 1, 3. Thus, before the
Board are the petitions for review in the 0153 VEOA appeal and the
0022 USERRA appeal.
DISCUSSION OF ARGUMENTS ON REVIEW
We affirm the administrative judge’s decision to deny corrective action in the
0153 VEOA appeal.
The administrative judge denied corrective action in the appellant’s VEOA
appeal because appellants are not entitled to veterans’ preference in promotions
or intra-agency3 transfers. 0153 ID at 2-3 (citing Brown v. Department of
Veterans Affairs , 247 F.3d 1222 (Fed. Cir. 2001)). On review, the appellant
asserts that the administrative judge erred in relying on Brown and not
acknowledging that her case involved a hybrid Title 38 position. 0153 PFR File,
Tab 1 at 7. She asserts the Board’s decision in Graves v. Department of Veterans
Affairs, 114 M.S.P.R. 245 (2010), requires the agency to use competitive hiring to
3 The administrative judge stated “inter-agency transfers” in the initial decision,
0153 ID at 3, but we believe that this was a typographical error. 4
fill hybrid positions under Title 38, and therefore, it should have applied
veterans’ preference and requested passover authority from the Office of
Personnel Management to hire a nonveteran over her. 0153 PFR File, Tab 1
at 6-7.
Although the Supervisory Medical Support Assistant position is a hybrid
position under 38 U.S.C. § 7401(3), and thus subject to Title 5 competitive
service veterans’ preference requirements, see 38 U.S.C. § 7403(f)(3); Graves,
114 M.S.P.R. 245, ¶ 12, nothing in 38 U.S.C. § 7403 forecloses the agency from
filling a vacancy via merit promotion procedures, which appears to be the case
here. It is true that Brown did not involve a hybrid Title 38 position; however,
Graves is factually distinguishable because the agency there chose to fill the
hybrid position via an open continuous announcement, Graves, 114 M.S.P.R. 245,
¶ 2, not a merit promotion announcement limited to only internal candidates,
0153 IAF, Tab 9 at 21, 23. Ultimately, the appellant has not proven by
preponderant evidence that the agency violated her veterans’ preference rights
when it filled the vacancy using merit promotions procedures and did not select
her. Accordingly, we affirm the administrative judge’s decision to deny
corrective action, and we supplement his analysis herein.
We affirm the administrative judge’s decision to deny corrective action in the
0022 USERRA appeal.
USERRA provides that a person who “has performed . . . service in a
uniformed service shall not be denied . . . any benefit of employment by an
employer on the basis of that . . . performance of service.” Burroughs v.
Department of the Army , 120 M.S.P.R. 392, ¶ 5 (2013) (quoting 38 U.S.C.
§ 4311(a)). The appellant bears the burden of showing by a preponderance of the
evidence that her military status was a substantial or motivating factor in the
agency’s action. Id.
In the 0022 USERRA appeal, the appellant alleged that the agency violated
her rights under USERRA when it did not select her for three positions:5
Supervisory Medical Support Assistant (vacancy announcement number CBTB-
10877333-20-KGB); Lead Medical Support Assistant (vacancy announcement
number CBAY-10625647-19-KGB); and Medical Administration Specialist
(Administrative Officer of the Day) (vacancy announcement number CBAY-
10676279-20-TW). 0022 IAF, Tab 1 at 2-3. Despite being docketed as a
USERRA appeal based on her earlier submission, the appellant appeared to claim
subsequently that the nonselections violated her veterans’ preference rights. See,
e.g., 0022 IAF, Tab 19 at 4-8 (discussing Graves and pass over requirements and
citing to 5 U.S.C. § 3318). The administrative judge found that the appellant did
not establish by preponderant evidence that her military service was a substantial
or motivating factor in the agency’s decisions. 0022 ID at 4. In pertinent part,
the administrative judge noted that since the appellant was employed by the
agency, the agency properly did not accord her an advantage during the selection
process and she failed to raise an inference of anti-military animus. 0022 ID
at 3-4. The administrative judge also found no other evidence of military-based
discrimination. 0022 ID at 4.
On review, the appellant does not dispute the administrative judge’s finding
that she did not establish by preponderant evidence that her military service was a
substantial or motivating factor in the agency’s decisions, and she does not appear
to reference USERRA. 0022 PFR File, Tab 1. Rather, she asserts that she is
entitled to veterans’ preference in the selection process for the three positions.
Id. To the extent the appellant argues that the agency’s alleged failure to afford
her veterans’ preference constitutes evidence that it discriminated against her
because of her military service, we agree with the administrative judge that she
failed to establish by preponderant evidence that her military service was a
substantial or motivating factor in the agency’s decisions. Although unclear, the
appellant may be raising a violation of veterans’ preference rights under VEOA
regarding the three positions. We have herein affirmed the administrative judge’s
decision in the 0153 appeal to deny corrective action under VEOA with respect to6
the Supervisory Medical Support Assistant position (vacancy announcement
number CBTB-10877333-20-KGB). To the extent the appellant is alleging on
review that the agency violated her veterans’ preference rights with respect to the
Lead Medical Support Assistant (vacancy announcement number CBAY-
10625647-19-KGB) and/or Medical Administration Specialist (Administrative
Officer of the Day) (vacancy announcement number CBAY -10676279-20-TW)
positions, she may file a Board appeal in the appropriate regional or field office
for such a claim.4
NOTICE OF APPEAL RIGHTS5
The initial decision in the 0022 appeal constitutes the Board’s final
decision in that matter. The initial decision in the 0153 appeal, as supplemented
by this Final Order, constitutes the Board’s final decision in that matter. 5 C.F.R.
§ 1201.113. You may obtain review of these final decisions. 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 these final decisions, 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 We take no position on whether the Board would have jurisdiction over such an appeal
or whether such an appeal would be timely.
5 Since the issuance of the initial decisions in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain8
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 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.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. 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 | Knuckles_Jeniqua_I_AT-4324-21-0022-I-1_AT-4324-21-0022-I-1__Final_Order.pdf | 2024-05-22 | JENIQUA IRENE KNUCKLES v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-4324-21-0022-I-1, May 22, 2024 | AT-4324-21-0022-I-1 | NP |
1,392 | https://www.mspb.gov/decisions/nonprecedential/Artis_Stanley_M_DC-0432-19-0522-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STANLEY M. ARTIS,
Appellant,
v.
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION,
Agency.DOCKET NUMBER
DC-0432-19-0522-I-1
DATE: May 22, 2024
THIS ORDER IS NONPRECEDENTIAL1
Pierre L. Ifill , Esquire, Savannah, Georgia, for the appellant.
Shari R. Feinberg , Esquire, Washington, D.C., 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 his demotion appeal for failure to prosecute. For the reasons discussed
below, we GRANT the appellant’s petition for review, VACATE the initial
decision, and REMAND the case to the regional office for further adjudication in
accordance with this Remand Order.
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
Effective November 12, 2017, the agency demoted the appellant from his
GS-15, Supervisory Information Technology Specialist position to a GS-14,
Printing Officer position. Initial Appeal File (IAF), Tab 4 at 37-38, 40. The
appellant, through his attorney representative, filed an appeal of his demotion
with the Board, and he requested a hearing. IAF, Tab 1.
In an Acknowledgment Order, the administrative judge apprised the parties
of the Board’s discovery procedures. IAF, Tab 3 at 3-4. In a later order, the
administrative judge set forth the date by which prehearing submissions were to
be received and the dates on which a prehearing conference and a hearing were to
be held. IAF, Tab 8. The agency moved to postpone such dates due to a
witness’s unavailability to attend the scheduled hearing and the agency’s
anticipation that discovery would not be completed within the expected time
period. IAF, Tab 9. The administrative judge granted the agency’s motion and
rescheduled the hearing for September 13, 2019, and the prehearing conference
for August 29, 2019, and he extended the due date for prehearing submissions to
August 27, 2019. IAF, Tab 10. The administrative judge further informed the
parties that he would be suspending case processing for 30 days beginning on
July 9, 2019, and that case processing would resume on August 8, 2019. Id.
On July 30, 2019, the agency filed a motion to compel the appellant to
submit to a deposition on August 20, 2019, or on five alternative dates in
August 2019. IAF, Tab 11 at 4. The agency included an email dated July 23,
2019, in which the appellant’s representative conveyed to the agency that he
would be taking an extended leave of absence due to his brother’s death and that
the appellant would not be available for a deposition until mid-September 2019.
Id. at 26. In a Preliminary Status Conference Order dated July 30, 2019, the
administrative judge scheduled a status conference for August 2, 2019, to discuss
the appellant’s alleged unavailability until mid-September. IAF, Tab 12. Neither2
the appellant nor his representative attended the status conference. IAF, Tab 13
at 1.
In an Order and Summary of Telephonic Status Conference, the
administrative judge ordered the appellant’s representative to contact the regional
office by August 9, 2019, to explain his own alleged unavailability and how he
would be able to complete discovery and to be prepared for the September 13,
2019 hearing. Id. After the appellant’s representative failed to contact the
regional office by August 9, 2019, the administrative judge issued an order
directing the appellant to show cause why the appeal should not be dismissed for
failure to prosecute. IAF, Tab 14. The administrative judge warned the appellant
that, if the regional office did not receive his response presenting good cause for
his failure to comply with the Board’s orders and procedure by August 16, 2019,
the hearing would be canceled and the appeal dismissed. Id. at 2. Neither the
appellant nor his representative responded. IAF, Tab 15, Initial Decision (ID)
at 3. Without holding the requested hearing, the administrative judge issued an
initial decision on August 19, 2019, that dismissed the appeal for failure to
prosecute. ID at 1, 4.
The appellant, through his attorney representative, has filed a petition for
review challenging the dismissal of the appeal for failure to prosecute. Petition
for Review (PFR) File, Tab 1 at 1-4. The agency has filed a response in
opposition. PFR File, Tab 3 at 4-5, 13-18.
DISCUSSION OF ARGUMENTS ON REVIEW
The sanction of dismissal with prejudice may be imposed if a party fails to
prosecute or defend an appeal. Williams v. U.S. Postal Service , 116 M.S.P.R.
377, ¶ 7 (2011); 5 C.F.R. § 1201.43(b). Such a severe sanction should be
imposed only if a party has failed to exercise basic due diligence in complying
with the Board’s orders or has exhibited negligence or bad faith in its efforts to
comply. Williams, 116 M.S.P.R. 377, ¶¶ 7-8; see Toombs v. Department of the3
Army, 69 M.S.P.R. 78, 81 (1995) (observing that dismissal for failure to prosecute
is the most severe sanction available). A party’s r epeated failure to respond to
multiple Board orders can reflect a failure to exercise basic due diligence.
Williams, 116 M.S.P.R. 377, ¶ 9. The Board will not reverse an administrative
judge’s determination regarding sanctions absent an abuse of discretion. Id., ¶ 7.
Here, in deciding to dismiss the appeal for failure to prosecute, the
administrative judge found that the appellant failed to participate in the discovery
process in accordance with the Acknowledgment Order, to attend the August 2,
2019 status conference, to contact the Board’s office in accordance with the
Order and Summary of Telephonic Status Conference, and to respond to the Order
to Show Cause. ID at 3-4. The administrative judge further found that the
appellant has demonstrated an intent to abandon his appeal and a willful refusal to
comply with the Board’s orders and processes. Id.
On petition for review, the appellant’s representative argues that he had
been actively engaged in the discovery process until his brother died, after which
he was not mentally or emotionally stable to provide legal counsel or advocate on
the appellant’s behalf. PFR File, Tab 1 at 3. The appellant’s representative
further claims that he could not check his emails due to his mental and emotional
state. Id. at 2. Moreover, he asserts that the agency was aware that he would be
taking a leave of absence due to his brother’s death and that he requested the
agency’s consent to extend all deadlines in this matter. Id. at 2-3.
For the first time on review, the appellant’s representative has submitted a
sworn affidavit in which he contends the following: his brother was killed on
July 12, 2019; he sent the agency an email on July 23, 2019, in which he
informed the agency that he was taking an extended leave of absence due to his
brother’s death and that the appellant would not be available for a deposition until
mid-September 2019; he traveled from Georgia to Florida to be with his family
and to plan for his brother’s funeral, which was held on July 27, 2019; on
August 2, 2019, he received a voicemail from the administrative judge and4
attempted to return the phone call but was told the administrative judge was not
in the office; he has been experiencing depression, anxiety, and panic attacks
since his brother’s death; and he took a leave of absence until September 13,
2019. Id. at 14-16. Further, the appellant’s representative has submitted a law
enforcement report documenting his brother’s death for the first time on review.2
Id. at 13.
In its response to the appellant’s petition for review, the agency asserts that
the appellant’s representative is not a sole practitioner but is the founder and
managing attorney of a legal practice, and thus, he or a member of his practice
had a duty to respond to the administrative judge’s orders. PFR File, Tab 3 at 5
& n.2, 15-16. In addition, the agency argues that the appellant also had a duty to
respond to the administrative judge’s orders and that, although the agency agreed
to an extension of deadlines, the agency is not responsible for prosecuting the
appellant’s case. Id. at 16-18. For the first time on review, the agency has
submitted evidence regarding the legal practice of the appellant’s representative.
Id. at 20-31. The agency further has submitted for the first time on review a
declaration from the appellant’s supervisor confirming that, on or around July 30,
2019, she told the agency’s representative that the appellant had been reporting to
work every day during that time period and that there was no reason for his
unavailability for a deposition until mid-September 2019. Id. at 32-33.
Notwithstanding the parties’ arguments and submission of evidence on
review, we find that the administrative judge abused his discretion in imposing
the sanction of dismissal with prejudice for the following reasons. Specifically,
we find that the record reflects that, until the agency filed a motion to compel the
appellant to submit to a deposition , the parties had been independently engaging
in the discovery process. IAF, Tab 11. Thus, we disagree with the administrative
judge’s finding that the appellant demonstrated an intent to abandon his appeal.
2 In addition, the appellant’s representative has submitted email correspondence
between the parties concerning discovery that already is a part of the record before the
administrative judge. PFR File, Tab 1 at 5-12; IAF, Tab 11 at 14-18, 24-27. 5
ID at 3. In addition, the Board’s regulations contemplate that an administrative
judge will not intervene in the discovery process unless a party files a motion to
compel discovery. 5 C.F.R. § 1201.71; see King v. Department of the Navy ,
98 M.S.P.R. 547, ¶ 10 (2005) (recognizing that the Board generally only becomes
involved in discovery matters if a party files a motion to compel), aff’d,
167 F. App’x 191 (Fed. Cir. 2006); see also 5 C.F.R. § 1201.73(c), (d)(3)
(containing instructions and time limits for filing and responding to a motion to
compel). They further provide that, if an administrative judge grants a motion to
compel discovery but a party fails to comply with an order compelling discovery,
then the administrative judge may impose sanctions for such party’s
noncompliance. 5 C.F.R. § 1201.74(c).
Here, the agency filed its motion to compel while the case was in a
suspended status. IAF, Tabs 10-11. The agency included with its motion a notice
of the appellant’s deposition that the agency had rescheduled for August 20,
2019. IAF, Tab 11 at 20. However, the initial decision was issued before that
date. ID at 1. Even if, as described in the initial decision, the appellant and his
representative failed to comply with the administrative judge’s orders and did not
respond to the agency’s motion to compel, ID at 2-3, we find that, under the
circumstances of this case, the administrative judge should have followed the
Board’s procedures described above for resolving discovery disputes by first
ruling on the agency’s motion to compel before imposing any sanctions, cf.
Smets v. Department of the Navy , 117 M.S.P.R. 164, ¶ 12 (2011) (finding that the
administrative judge did not abuse her discretion when she precluded the
appellant from submitting additional evidence regarding her discrimination claim
after the appellant did not comply with the administrative judge’s order to appear
for a deposition), aff’d, 498 F. App’x 1 (Fed. Cir. 2012).
Accordingly, we vacate the initial decision and remand the appeal to the
regional office. See, e.g., Wiggins v. Department of the Air Force , 113 M.S.P.R.
443, ¶¶ 1, 14 (2010) (vacating the initial decision that dismissed the appeal for6
failure to prosecute because the extreme sanction did not serve the ends of
justice). In reaching this conclusion, we do not intend to imply that the appellant
handled his appeal flawlessly.3 On remand, the appellant must be diligent in
complying with the administrative judge’s orders and in pursuing his appeal to
avoid the imposition of sanctions as necessary to serve the ends of justice.4 See
id., ¶ 15.
3 The record reflects that the appellant’s representative erroneously provided his own
email address instead of the appellant’s email address when he registered the appellant
as an e-filer on the initial appeal form. IAF, Tab 1 at 1-3. Thus, the appellant may not
have received proper electronic service of documents in accordance with the Board’s
e-filing regulations set forth at 5 C.F.R. § 1201.14(e)(1), (j) (2019). But see Lima v.
Department of the Air Force , 101 M.S.P.R. 64, ¶ 5 (2006) (stating that service on a
party’s designated representative will be imputed to the party). In light of our decision
to remand the appeal, we need not determine whether the appellant’s efforts to
prosecute his appeal were thwarted without his knowledge by his representative’s
negligence. See Pacilli v. Department of Veterans Affairs , 113 M.S.P.R. 526, ¶ 13
(explaining that, although an appellant generally is responsible for the errors of his
chosen representative, an exception may lie when the appellant establishes that his
diligent efforts to prosecute an appeal were thwarted without his knowledge by his
attorney’s deceptions, negligence, or malfeasance), aff’d. sub nom. Pacilli v. Merit
Systems Protection Board , 404 F. App’x 466 (Fed. Cir. 2010). On remand, the
appellant or his representative shall update the appellant’s e-filing status to correct his
email address and shall notify the administrative judge and the agency of such change in
accordance with 5 C.F.R. § 1201.14(e)(6).
4 On remand, the administrative judge shall analyze the agency’s chapter 43 case under
the applicable elements as determined by the U.S. Court of Appeals for the Federal
Circuit in Santos v. National Aeronautics and Space Administration , 990 F.3d 1355,
1360-61 (Fed. Cir. 2021). Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 16
(stating that Santos applies to all pending cases, regardless of when the events at issue
took place).7
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Artis_Stanley_M_DC-0432-19-0522-I-1__Remand_Order.pdf | 2024-05-22 | STANLEY M. ARTIS v. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, MSPB Docket No. DC-0432-19-0522-I-1, May 22, 2024 | DC-0432-19-0522-I-1 | NP |
1,393 | https://www.mspb.gov/decisions/nonprecedential/Hill_JamesAT-0831-19-0782-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES HILL,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0831-19-0782-I-1
DATE: May 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
James Hill , Lake Wales, Florida, pro se.
Angerlia D. Johnson , 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) denying his request to elect survivor annuity benefits for his
post-retirement spouse under the Civil Service Retirement System. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of 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).
The initial decision provided that January 8, 2020, was the deadline for
filing a petition for review. Initial Appeal File (IAF), Tab 9, Initial Decision (ID)
at 6. The appellant’s pleading that the Office of the Clerk of the Board docketed
as a petition for review was filed on January 17, 2020, nine days after the
January 8, 2020 filing deadline. Petition for Review (PFR) File, Tab 1 at 1, 3,
Tab 2 at 1; see 5 C.F.R. § 1201.4( l) (providing that the date of filing by mail is
determined by the postmark date). However, the record reflects that the appellant
filed a prior pleading on December 14, 2019, IAF, Tab 11 at 4; see 5 C.F.R.
§ 1201.4(l), after the December 4, 2019 issuance of the initial decision and before
the January 8, 2020 deadline for filing a petition for review, ID at 1, 6; IAF,
Tab 10. Although these circumstances raise a question regarding the timeliness
of the appellant’s petition for review, we decline to reach this issue. Rather, even
considering the arguments raised in the appellant’s prior pleading and in his
pleading that was docketed as a petition for review, we discern no reason to
disturb the initial decision.
Specifically, the appellant does not challenge, and we decline to disturb,
the administrative judge’s finding that the appellant failed to prove by2
preponderant evidence2 that he made a timely election to provide survivor annuity
benefits for his post-retirement spouse within 2 years after his marriage. ID
at 2-4; see 5 U.S.C. § 8339(k)(2)(A); Robinson v. Office of Personnel
Management, 106 M.S.P.R. 255, ¶¶ 8-9 (2007). Instead, the appellant challenges
the administrative judge’s finding that OPM met its burden of proving that it sent
to the appellant the required annual notices of his survivor annuity election rights.
PFR File, Tab 1 at 2; IAF, Tab 11 at 1; ID at 3-5.
The Board has held that it will waive the 2-year deadline for electing
survivor annuity benefits when OPM fails to meet its burden of proving both that
OPM sent to an annuitant the required annual notice and that the notice was
adequate to inform him of the specific election requirements under 5 U.S.C.
§ 8339(k)(2). Robinson, 106 M.S.P.R. 255, ¶ 10. Based on our review of the
record, we agree with the administrative judge’s finding that OPM’s submission
of an affidavit and copies of sample notices satisfied OPM’s burden of proving
that it sent the appellant required notices of his survivor annuity election rights in
December 2010 and December 2011 and the contents of such notices.3 ID at 3-5;
IAF, Tab 5 at 10-15. In particular, our reviewing court held in Schoemakers v.
Office of Personnel Management , 180 F.3d 1377, 1380-81 (Fed. Cir. 1999), that a
similar affidavit satisfied OPM’s burden of proving both that it sent the required
annual notice and the contents of that notice. See, e.g., Cartsounis v. Office of
Personnel Management , 91 M.S.P.R. 502, ¶¶ 5-7 (2002) (finding that OPM’s
affidavit and copy of its notice satisfied OPM’s burden of proving that it sent the
required annual notice and the contents of that notice). Therefore, we are not
persuaded by the appellant’s unsupported argument that OPM’s affidavit and
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 Because the administrative judge shifted the burden on the appellant to show that he
did not receive the annual notices, the administrative judge implicitly found that OPM’s
documentary evidence satisfied its burden of proving the contents of the annual notices.
ID at 3-5.3
sample notices were insufficient to meet its burden because they did not identify
the address of record to which the notices were sent. PFR File, Tab 1 at 2;
see Schoemakers, 180 F.3d at 1381 (“There is no requirement, however, that
OPM’s proof relate to any specific notices sent to the particular annuitant, . . . .”).
Further, we find that the appellant’s reassertions that his address has
changed several times, without more, is insufficient to show that he did not
receive the annual notices. PFR File, Tab 1 at 2; IAF, Tab 8 at 1, Tab 11 at 1;
see Cartsounis, 91 M.S.P.R. 502, ¶ 7 (finding that, once OPM has met its burden
of proof regarding notice, the burden shifts to the appellant to show that he did
not receive the annual notice). Importantly, the appellant has not indicated
whether he notified OPM of the changes in his address. Cf., Murphy v. Office of
Personnel Management , 50 M.S.P.R. 407, 411-12 (1991) (remanding the appeal
to determine whether the appellant rebutted the presumption arising from OPM’s
affidavit that he received an annual notice when he and his wife testified that,
among other things, they relocated three times during the 1-year period after their
marriage and notified OPM of the address changes).
In addition, the appellant appears to be challenging the administrative
judge’s finding that the Board’s precedent in Robinson, 106 M.S.P.R. 255, ¶ 14,
is not applicable to this appeal. PFR File, Tab 1 at 2; ID at 5 . The appellant
argues that he should be considered to have made a timely election because OPM
provided him with inaccurate information that caused him to fail to elect a
survivor annuity. PFR File, Tab 1 at 2 . To support his argument, he cites Nixon
v. Office of Personnel Management , 452 F.3d 1361, 1363-67 (Fed. Cir. 2006), and
Wood v. Office of Personnel Management , 241 F.3d 1364 (Fed. Cir. 2001).
PFR File, Tab 1 at 2. However, the appellant has failed to specify what
inaccurate information OPM allegedly provided. To the extent he is arguing that
OPM misinformed him by not sending him the annual notices, we find this
argument unavailing for the reasons discussed above. IAF, Tab 11 at 1. 4
Accordingly, we affirm the initial decision.4
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).
4 We decline to address the appellant’s question about what will happen to his
retirement benefits upon his death because the Board is prohibited by statute from
issuing advisory opinions. IAF, Tab 11 at 3; 5 U.S.C. § 1204(h). We further deny the
appellant’s request to assign a settlement judge to this appeal. IAF, Tab 11 at 2.
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
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 on6
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) or7
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. 1510.8
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 | Hill_JamesAT-0831-19-0782-I-1__Final_Order.pdf | 2024-05-22 | JAMES HILL v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0831-19-0782-I-1, May 22, 2024 | AT-0831-19-0782-I-1 | NP |
1,394 | https://www.mspb.gov/decisions/nonprecedential/Belmont_Kyle_J_PH-0845-18-0430-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KYLE JASON BELMONT,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0845-18-0430-I-1
DATE: May 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kyle Jason Belmont , Bow, New Hampshire, 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 final decision by the Office of Personnel Management (OPM)
finding that the appellant 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
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
find the appellant without fault in the creation of the overpayment, to supplement
the analysis regarding financial hardship, and to find that the Board is without
authority to address an adjustment to the repayment schedule, we AFFIRM the
initial decision.
BACKGROUND
On October 23, 2008, the appellant was awarded disability retirement under
the Federal Employees’ Retirement System (FERS). Initial Appeal File (IAF),
Tab 8 at 23-26. On April 7, 2015, OPM notified the appellant that, based on a
computer match between OPM and the earnings files of the Social Security
Administration (SSA), there was a discrepancy between his earned income for the
2013 calendar year and the income he reported to OPM. Id. at 28. The notice
informed the appellant that, based on the amounts reported to OPM from SSA,
his 2013 income exceeded the 80% earnings limit and thus he might no
longer be eligible to receive disability retirement benefits from OPM. Id. On
July 27, 2015, OPM notified the appellant that, after reviewing his W-2s and
Federal income tax returns, it confirmed that he had exceeded the 80% earnings2
limit and would discontinue his disability annuity, life insurance, and health
benefits. Id. at 27.
On October 19, 2015, OPM notified the appellant that, because his annuity
was not terminated until July 2015, an overpayment occurred. Id. at 32. After
deducting the life and health insurance premiums already paid by the appellant,
OPM calculated the net total overpayment to be $14,513.59. Id. The appellant
requested reconsideration of OPM’s decision and waiver of the debt. Id. at 50.
His request denoted that he enclosed a Financial Resources Questionnaire (FRQ),
any monthly payment would be an extreme hardship, and, since the disability
payments had stopped, he was unable to meet payments. Id. He further stated
that he included his and his wife’s paystubs and a printout of their bank balances
to show what they wrote was accurate.2 Id.
On May 24, 2018, OPM responded to his request for waiver. Id. at 20-22.
In addition to setting out the considerations for eligibility for waiver by showing
that he was without fault and that collection is against equity and good
conscience, the notice instructed the appellant to complete an updated FRQ. Id.
According to OPM, the appellant did not respond. Id. at 9.
On July 11, 2018, OPM issued its final decision that the appellant owed an
overpayment and was not eligible for waiver of the overpayment because (1) he
was not without fault in causing or contributing to the overpayment, and
(2) recovery of the overpayment would not be against equity and good
conscience. IAF, Tab 8 at 15-18. OPM’s decision stated that it had insufficient
evidence to conclude that recovery of the overpayment would cause financial
hardship because the appellant failed to respond to the May 24, 2018 notice
requesting an updated FRQ. Id. at 17.
The appellant appealed this decision to the Board. IAF, Tab 1. In his
appeal, he acknowledged that he exceeded the 80% earnings limit for 2013 by
2 Although the record contains the appellant’s request for reconsideration and waiver, it
does not contain the FRQ, pay stubs, or bank balances he claims to have attached. 3
$34. Id. at 4. He claimed that, because he continued to receive payment from
OPM and because he exceeded his earnings limit by so little, he assumed the
matter was resolved. Id. He further claimed that he is in “no financial position to
repay” the overpayment and that “it would cause an enormous hardship.” Id.
Finally, he claimed that he was not aware that his continued receipt of his
disability annuity was an overpayment when he was receiving it. Id.
On February 7, 2019, the administrative judge issued an initial decision
affirming OPM’s reconsideration decision. IAF, Tab 11, Initial Decision (ID)
at 1. He found that the appellant had exceeded the 80% threshold on earnings
capacity for 2013, and that OPM had proved the existence and amount of the
overpayment. ID at 4-5. He further found that the appellant was not entitled to
waiver of the overpayment because he failed to prove by substantial evidence that
he was without fault and that recovery of the overpayment would be against
equity and good conscience. ID at 5. In so finding, he found that collection of
the overpayment was not unconscionable under the circumstances. Id. Finally,
he found that the appellant was not entitled to an adjustment of the repayment
schedule because he had not requested OPM to adjust the schedule and, in any
event, he had not demonstrated financial hardship. ID at 5-6.
The appellant has filed a petition for review, and the agency has responded.
Petition for Review (PFR) File, Tabs 1, 4. The appellant asserts that, when he
provided his income to OPM for 2013, it was unknown to him that his earnings
exceeded his limit. PFR File, Tab 1 at 4. He again states that, because he only
exceeded the 80% earnings limit by $34, he continued to receive an annuity until
July 2015, and he provided to OPM all the information required regarding his
2013 earnings, he assumed there was no problem or overpayment. Id.; IAF, Tab 1
at 4, Tab 8 at 27. He also states that his child was diagnosed with cancer and he
lives paycheck to paycheck with large amounts of credit card debt, and that he
considers the repayment of the overpayment to be an enormous hardship on him.
PFR File, Tab 1 at 4.4
On May 7, 2019, the Office of the Clerk of the Board ordered the appellant
to provide an updated financial statement and any other relevant information for
determining whether collection of the overpayment would cause financial
hardship. PFR File, Tab 5 at 4. The order explained how financial hardship is
determined and informed him that, without adequate information, it is not
possible for the Board to make a reasoned determination regarding financial
hardship. Id. at 2-3. The appellant did not respond.
DISCUSSION OF ARGUMENTS ON REVIEW
At the outset, OPM bears the burden of proving the existence and amount
of an annuity overpayment by preponderant evidence.3 Vojas v. Office of
Personnel Management , 115 M.S.P.R. 502, ¶ 10 (2011); 5 C.F.R. § 845.307(a).
Once it does so, the appellant bears the burden of establishing, by substantial
evidence, that he is entitled to a waiver.4 Spinella v. Office of Personnel
Management, 109 M.S.P.R. 185, ¶ 6 (2008); 5 C.F.R. § 845.307(b).
The administrative judge properly found that OPM proved the existence and
amount of the overpayment.
The annuity of a disability annuitant who is restored to earning capacity
before becoming 60 years of age terminates 180 days after the end of the calendar
year in which earning capacity is restored. 5 U.S.C. § 8455(a)(2). Earning
capacity is deemed restored if the income of the annuitant equals at least 80% of
the current rate of pay of the position occupied immediately before retirement.
Id. Although proving the existence and amount of an overpayment is OPM’s
burden, the appellant here admitted that he exceeded the 80% earnings limit for
3 Preponderant the evidence is that degree of relevant evidence a reasonable person,
considering the record as a whole, would accept as sufficient to find a contested fact is
more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
4 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). It is a
lower standard of proof than preponderance of the evidence. Id. 5
2013 by $34, and does not challenge the amount of the overpayment. IAF, Tab 1
at 4; see Vojas, 115 M.S.P.R. 502, ¶ 10 (setting forth OPM’s burden of proving
the existence and amount of an overpayment); see also Cole v. Department of the
Air Force, 120 M.S.P.R. 640, ¶ 9 (2014) (finding that an appellant’s admission to
a charge can suffice as proof of the charge without additional proof from the
agency).
Because the appellant exceeded his earning capacity for 2013, his disability
annuity should have terminated on June 30, 2014. See 5 C.F.R. § 844.402(a)
(explaining that a FERS disability retirement annuity terminates on June 30 of the
calendar year after which the annuitant was restored to earning capacity). His
disability annuity was not terminated until July 2015, and thus, he was overpaid.
IAF, Tab 8 at 15, 32. Accordingly, we agree with the administrative judge that
OPM met its burden of proving the existence and amount of the overpayment. ID
at 4-5; IAF, Tab 8 at 32, 38.
The appellant is without fault in the creation of the overpayment.
An appellant may be granted a waiver of recovery of an overpayment if he
is without fault and recovery would be against equity and good conscience.
Spinella, 109 M.S.P.R. 185, ¶ 6. Pertinent considerations in determining fault are
(1) whether payment resulted from the individual’s incorrect but not necessarily
fraudulent statement, which he should have known to be incorrect; (2) whether
payment resulted from the individual’s failure to disclose material facts in his
possession, which he should have known to be material; or (3) whether he
accepted a payment that he knew or should have known to be erroneous. 5 C.F.R.
§ 845.302(a).
The administrative judge here found that the appellant failed to prove that
he was without fault. ID at 5. We disagree. The fact that the appellant was
on notice of the 80% earnings limitation does not necessarily mean that
he knew or should have known that his earnings exceeded that limit. See
5 C.F.R. § 844.402(d) (stating that “OPM will determine entitlement to [a]6
continued [disability retirement] annuity” based on an annuitant’s annual report
of his income); see also Zelenka v. Office of Personnel Management ,
107 M.S.P.R. 522, ¶ 8 (2007) (finding that identical language in OPM’s Civil
Service Retirement System (CSRS) regulation at 5 C.F.R. § 831.1209(i) required
OPM to determine an annuitant’s continued entitlement to disability retirement
payments). The Board has held that an annuitant is not required to look up his
current rate of basic pay for his former position, or to perform the calculation of
the 80% limitation and inform OPM that his earnings exceed that limit. See
Zelenka, 107 M.S.P.R. 522, ¶ 8 (finding that, although the appellant could have
located the relevant salary table on the internet and made the requisite
calculations, it was not her responsibility to do so). Under these circumstances,
the Board has held that when an appellant supplies OPM with his income which,
unbeknownst to him, exceeds the 80% earnings limit, he is not at fault in creating
an ensuing overpayment. Id.
Although the appellant appears to some extent to have erroneously reported
his earned income for 2013, OPM determined that this was not deliberate and that
the appellant provided a plausible explanation for the amount reported. IAF,
Tab 8 at 39.5 The appellant stated, in no unclear terms, that he was “not aware
this was an overpayment when I was receiving it” and that it was “unknown to
us,” presumably referring to him and his wife, that he made $34 more than was
allowed in 2013 until subsequently informed by OPM. IAF, Tab 1 at 5; PFR File,
Tab 1 at 4. The record does not reflect that the appellant knew or should have
known that the income he reported was incorrect or that he received payments
that he knew or should have known to be erroneous. Accordingly, we find that
the appellant has met his low burden of proving, by substantial evidence, that he
was not at fault in the creation of the overpayment. The administrative judge
erred in reaching the opposite conclusion. This error was harmless, however, as
5 This determination, stated in a document submitted by OPM, contradicts OPM’s
argument that the appellant knowingly withheld his earned income for 2013 in an
attempt to get the benefit of the full annuity. IAF, Tab 8 at 8.7
the appellant is nonetheless not entitled to a waiver of the overpayment.
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 the initial decision).
The appellant has failed to meet his burden of proving that recovery of the
overpayment would be against equity and good conscience.
If an appellant is without fault in creating the overpayment, he may be
entitled to a waiver of that amount if recovery would be against equity and good
conscience. Boone v. Office of Personnel Management , 119 M.S.P.R. 53,
¶ 5 (2012). There are three situations in which recovery of an overpayment is
against equity and good conscience: (1) it would cause financial hardship; (2) the
annuitant can show that because of the overpayment he relinquished a valuable
right or changed positions for the worse; or (3) recovery would be unconscionable
under the circumstances. Id.; 5 C.F.R. § 845.303. While the administrative judge
reached the correct conclusion that the appellant failed to demonstrate financial
hardship, we modify the initial decision to supplement his analysis.
As relevant here, the administrative judge concluded, without much
analysis, that the appellant failed to demonstrate financial hardship. ID at 6. We
agree, but supplement the administrative judge’s analysis as provided below.
To demonstrate financial hardship, an appellant must prove that he needs
substantially all of his current income and liquid assets to meet his current
expenses and liabilities. Stewart v. Office of Personnel Management ,
102 M.S.P.R. 272, ¶ 7 (2006); 5 C.F.R. § 845.304. Here, although the appellant
appears to have originally submitted his financial information, it is not in the
record and is now years old. IAF, Tab 8 at 9, 50. When OPM requested his
updated financial information on May 24, 2018, he did not respond. Id. at 17,
20-21. Moreover, he failed to respond to the Board’s order to show cause
regarding his financial information. PFR File, Tab 5. Without adequate
information, it is not possible for the Board to make a reasoned determination8
concerning the financial hardship question. See Eaton v. Office of Personnel
Management, 38 M.S.P.R. 216, 218 (1998) (discussing waiver of an overpayment
of a CSRS annuity benefit based on financial hardship). As such, the appellant
has failed to meet his burden of proving that he is entitled to a waiver based on
financial hardship.
The parties do not challenge the administrative judge’s findings regarding
whether the appellant relinquished a valuable right or changed positions for the
worse, or that recovery would be unconscionable under the circumstances.
We see no reason to disturb these findings on review.
The administrative judge additionally found that the appellant was not
entitled to an adjustment of the repayment schedule. ID at 6. The appellant did
not request an adjustment of the repayment schedule below and has not
challenged this finding on review. Nonetheless, we modify this determination to
find, instead, that the Board is without authority to address a possible adjustment.
Because the appellant no longer receives an annuity from which OPM can deduct
installment payments, his repayment schedule cannot affect any “rights or
interests” under FERS. 5 U.S.C. § 8461(e)(1); see Alexander v. Office of
Personnel Management , 114 M.S.P.R. 122, ¶¶ 9-12 (2010) (explaining the under
similar language in 5 U.S.C. § 8347(d)(1), regarding the Board’s jurisdiction over
CSRS matters, the Board lacks authority to adjust a repayment schedule in the
absence of a CSRS annuity or other administrative payment); 5 C.F.R. § 845.206
(providing that administrative offset may be made from lump sum or annuity
payments or payments made to the debtor by another agency).
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
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
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 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.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. 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 | Belmont_Kyle_J_PH-0845-18-0430-I-1__Final_Order.pdf | 2024-05-22 | KYLE JASON BELMONT v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0845-18-0430-I-1, May 22, 2024 | PH-0845-18-0430-I-1 | NP |
1,395 | https://www.mspb.gov/decisions/nonprecedential/Crews_Ronald_E_AT-0831-19-0292-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RONALD EDWARD CREWS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0831-19-0292-I-1
DATE: May 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ronald Edward Crews , Chattanooga, Tennessee, 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) that, in reliance on the marital dissolution agreement between the
appellant and his ex-wife, denied the appellant’s request to eliminate the
former-spouse survivor annuity deduction from his annuity, despite the fact that
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).
his ex-wife was willing to waive her entitlement to a survivor annuity. On
petition for review, the appellant argues that OPM made deductions from his
retirement annuity to provide for the survivor benefit contrary to the intent of him
and his ex-wife. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 4
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.5
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 | Crews_Ronald_E_AT-0831-19-0292-I-1__Final_Order.pdf | 2024-05-22 | RONALD EDWARD CREWS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0831-19-0292-I-1, May 22, 2024 | AT-0831-19-0292-I-1 | NP |
1,396 | https://www.mspb.gov/decisions/nonprecedential/Aloko_JacobDA-4324-18-0521-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JACOB ALOKO,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DA-4324-18-0521-I-1
DATE: May 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jacob Aloko , Richmond, Texas, pro se.
Yvette K. Bradley , 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
denied his request for corrective action under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA). 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 discussed below,
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 VACATE the initial decision that denied the appellant corrective action under
USERRA and instead DISMISS the appellant’s appeal under USERRA for lack of
jurisdiction.
BACKGROUND
The appellant, a Mail Processing Clerk, filed an appeal alleging that the
agency discriminated against him based on his status as a disabled military
veteran in violation of USERRA.2 Initial Appeal File (IAF), Tab 1 at 5. The
administrative judge identified the allegedly discriminatory actions in dispute to
include the following: offering the appellant a light duty assignment outside his
medical restrictions; denying his request for accommodation of his disability; and
proposing his removal. IAF, Tab 1 at 5, Tab 16. Initially, the appellant requested
a hearing; however, during the proceedings below he withdrew his request. IAF,
Tab 1 at 2, Tab 14. Based on the written record, the administrative judge found
that the appellant did not show by preponderant evidence that his military service
or disabled veteran status was a factor in the agency’s light duty offer, the
response to his request for accommodation, or the proposed removal.3 IAF,
Tab 23, Initial Decision (ID) at 11-14.
In his petition for review, the appellant contends that the reason for his
mistreatment by the agency was discrimination on the bases of race and national
origin (African). Petition for Review (PFR) File, Tab 1 at 3. He also alleges that
the administrative judge failed to address his assertion that the agency prevented
him from speaking directly with the Plant Manager, who, according to the
2 The administrative judge docketed a separate appeal regarding what she characterized
as the appellant’s claim that he had been constructively suspended. Aloko v. U.S. Postal
Service, MSPB Docket No. DA-0752-19-0023-I-1, Tabs 1, 3. The administrative judge
dismissed the appeal for lack of jurisdiction. Aloko, MSPB Docket No. DA-0752-19-
0023-I-1, Initial Decision (Feb. 15, 2019). That decision became the final decision of
the Board when neither party filed a petition for review.
3 After the close of record, the appellant submitted a letter, dated January 3, 2019,
removing him from his position. IAF, Tab 22. That matter was docketed as a separate
appeal. Aloko v. U.S. Postal Service, MSPB Docket No. DA-0752-19-0179-I-1.2
appellant, would have gotten him a light duty assignment in a different unit. Id.
Additionally, he alleges that the agency officials lied in their affidavits. Id.
ANALYSIS
There are two types of cases that arise under USERRA: reemployment
cases under 38 U.S.C. §§ 4312-4318 and discrimination cases under 38 U.S.C.
§ 4311(a) and (b). Bostwick v. Department of Agriculture , 122 M.S.P.R. 269, ¶ 5
(2015). This appeal involves a discrimination claim. The Board employs a
liberal approach to determine whether an appellant has established the Board’s
jurisdiction under USERRA, and the relative weakness of an appellant’s
assertions in support of his claim is not a basis for a jurisdictional dismissal.
Beck v. Department of the Navy , 120 M.S.P.R. 504, ¶ 8 (2014); Swidecki v.
Department of Commerce , 113 M.S.P.R. 168, ¶ 6 (2010). Rather, if an appellant
fails to develop his contentions, his claim should be denied on the merits.4 Beck,
120 M.S.P.R. 504, ¶ 8; Swidecki, 113 M.S.P.R. 168, ¶ 6. Nevertheless, not every
reference to USERRA brings a matter within the Board’s jurisdiction.
Under 38 U.S.C. § 4311(a), “[a] person who . . . has performed . . . service
in a uniformed service shall not be denied initial employment, reemployment,
retention in employment, promotion, or any benefit of employment by an
employer on the basis of that . . . performance of service.” Gossage v.
Department of Labor , 118 M.S.P.R. 455, ¶ 10 (2012) (quoting 38 U.S.C.
§ 4311(a)). To establish jurisdiction over a USERRA discrimination claim before
the Board, an appellant must nonfrivolously allege that (1) he performed duty or
has an obligation to perform duty in a uniformed service of the United States;
(2) the agency denied him initial employment, reemployment, retention,
promotion, or any benefit of employment; and (3) the denial was due to his
performance of duty or obligation to perform duty in the uniformed service. Id.
4 Once an appellant has established the Board’s jurisdiction over his USERRA appeal,
he has a right to a hearing on the merits of his claim. Gossage v. Department of Labor ,
118 M.S.P.R. 455, ¶ 10 (2012).3
To establish a USERRA violation, the appellant must prove these elements by a
preponderance of the evidence. Sheehan v. Department of the Navy , 240 F.3d
1009, 1013 (Fed. Cir. 2001). If the appellant makes this showing, the agency can
avoid liability by showing, as an affirmative defense, that it would have taken the
same action for a valid reason without regard to his uniformed service.
Burroughs v. Department of the Army , 120 M.S.P.R. 392, ¶ 7 (2013).
An allegation that an appellant’s employer took or failed to take various
actions “on the basis of” his performance of his duty in a uniformed service
would constitute a nonfrivolous allegation entitling the appellant to Board
consideration of his USERRA claim. See Duncan v. U.S. Postal Service ,
73 M.S.P.R. 86, 92 (1997), overruled on other grounds by Fox v. U.S. Postal
Service, 88 M.S.P.R. 381 (2001). However, as discussed below, a claim that an
employee was discriminated against based solely on a disability arising from his
military service is not cognizable under USERRA.
The USERRA statutory language prohibits discrimination in employment
on the basis of service in a uniformed service. 38 U.S.C. § 4311(a). “Service in
a uniformed service” is defined as “performance of duty . . . in a uniformed
service . . . .” 38 U.S.C. § 4303(13). Thus, the statute prohibits the denial of a
benefit of employment based on an employee’s “performance of [military] duty,”
not the denial of a benefit of employment based on a veteran’s disability arising
out of his performance of duty. See McBride v. U.S. Postal Service , 78 M.S.P.R.
411, 415 (1998). This interpretation is consistent with the purposes of the statute,
which mentions “service,” and not “injuries or disabilities arising from service.”
See 38 U.S.C. § 4301(a)(3); McBride, 78 M.S.P.R. at 415. The Board has
consistently interpreted USERRA so as to find a lack of jurisdiction over claims
of discrimination based on a disability, even if the injury was incurred in military
service. Mims v. Social Security Administration , 120 M.S.P.R. 213, ¶ 22 (2013)
(finding that the Board lacks jurisdiction over the appellant’s USERRA claim
because, to the extent he claimed he was discriminated against based on disability4
arising from his military service, such a claim is not cognizable under USERRA);
Henson v. U.S. Postal Service , 110 M.S.P.R. 624, ¶¶ 8-9 (2009) (determining that
USERRA did not authorize the Board to adjudicate the appellant’s claim that the
agency discriminated against him based on his service-connected “medical
problems”); Noble v. U.S. Postal Service , 93 M.S.P.R. 693, ¶ 14 (2003)
(concluding that USERRA did not authorize the Board to adjudicate the
appellant’s claim of discrimination based on his service-connected disability
alone); Ray v. Department of Veterans Affairs , 84 M.S.P.R. 108, ¶ 3 (1999)
(determining that the appellant’s claim of discrimination based on a
military-connected disability was not a claim covered under USERRA); McBride,
78 M.S.P.R. at 415 (stating that USERRA does not authorize the Board to
adjudicate a claim of discrimination based on disability alone, even if the
underlying disability arose from military service).
In the instant appeal, the administrative judge found that, while the
appellant asserts, and the agency’s Standard Form 50 reflects, that the appellant is
a veteran, the appellant does not allege that he lost a benefit of employment due
to the performance of duty in a uniformed service; rather, he alleges that he was
treated improperly due to the disability or disabilities attributable to his prior
military duties. ID at 7. Nonetheless, without explanation, the administrative
judge found that the appellant nonfrivolously alleged that he was denied a benefit
of employment by the agency on account of his disabled veteran status. ID at 8.
Although the appellant indicated that he was a disabled veteran and that he
was denied a light duty assignment within his medical restrictions and
accommodation of his disability, and issued a notice of proposed removal, he
failed to make an allegation of fact to support his assertion that the agency denied
him these benefits of employment based on his military service or his “status” as
a veteran. He did not allege that he was treated differently than non-veterans
regarding these benefits of employment and stated that he is not the only veteran
working in the plant with military disabilities and that the others are treated with5
respect. IAF, Tab 7 at 2. The appellant further stated that his case is one of equal
employment opportunity discrimination. Id. He made no allegation of fact that
directly connects the alleged denial of benefits of employment to his military
service rather than to the disability that he incurred while in military service.5
Thus, consistent with the discussion of the statute and Board precedent
above, we find that the appellant has failed to raise a nonfrivolous allegation that
the denial of a benefit of employment was due to his performance of duty or
obligation to perform duty in a uniformed service. Accordingly, the appellant has
not raised a valid claim under USERRA, and the administrative judge erred by
finding that the appellant nonfrivolously alleged that he was denied a benefit of
employment. Rather, we find that the appellant’s appeal is properly dismissed for
lack of jurisdiction.6
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
5 The appellant also alleged that his supervisor stated that he “brought” his disability to
the agency from his military service and that he sought to have the agency stop telling
him that “the origin” of his medical disability was from the military. IAF, Tab 1 at 5,
Tab 7 at 2. Importantly, the appellant does not deny that his disability resulted from his
military service and does not explain how, if true, the statements show discrimination
based on his military service.
6 Regarding the appellant’s claims of race and national origin discrimination, the Board
lacks the authority to review other claims of prohibited discrimination in connection
with a USERRA appeal. Metzenbaum v. Department of Justice , 89 M.S.P.R. 285, ¶ 15
(2001); see Dale v. Department of Veterans Affairs , 102 M.S.P.R. 646, ¶ 18 (2006).
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.6
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. The7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file8
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 10
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Aloko_JacobDA-4324-18-0521-I-1_Final_Order.pdf | 2024-05-21 | JACOB ALOKO v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DA-4324-18-0521-I-1, May 21, 2024 | DA-4324-18-0521-I-1 | NP |
1,397 | https://www.mspb.gov/decisions/nonprecedential/Aloko_JacobDA-0752-19-0179-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JACOB ALOKO,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DA-0752-19-0179-I-1
DATE: May 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jacob Aloko , Richmond, Texas, pro se.
Yvette K. Bradley , 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
sustained his removal. On petition for review, the appellant argues that the
administrative judge erred in finding that the agency proved the charge of absence
without leave and in finding that he failed to prove race and national origin
discrimination and a violation of the Uniformed Services Employment 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).
Reemployment Rights Act of 1994.2 Petition for Review File, Tab 1 at 4-5.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.3 5 C.F.R. § 1201.113(b).
2 The appellant also appears to be alleging in his petition for review that he was
constructively suspended. Petition for Review File, Tab 1 at 5. The appellant
previously filed a Board appeal alleging a constructive suspension. The administrative
judge issued an initial decision in that appeal dismissing it for lack of jurisdiction.
Aloko v. U.S. Postal Service, MSPB Docket No. DA-0752-19-0023-I-1, Initial Decision
(Feb. 15, 2019). The initial decision became the final decision of the Board when
neither party filed a petition for review.
3 In finding that the appellant failed to prove his affirmative defense of discrimination,
the administrative judge relied on the Board’s decision in Savage v. Department of the
Army, 122 M.S.P.R. 612 (2015), overruled in part by Pridgen v. Office of Management
and Budget, 2022 MSPB 31, ¶¶ 23-25. The Board has clarified that Savage does not
require administrative judges to separate “direct” from “indirect” evidence; rather, the
Board reaffirmed its holding in Savage that the dispositive inquiry is whether the
appellant has shown by preponderant evidence that the prohibited consideration was a
motivating factor in the contested personnel action. Gardner v. Department of Veterans
Affairs, 123 M.S.P.R. 647, ¶ 30 (2016), clarified by Pridgen , 2022 MSPB 31, ¶¶ 23-24.
Although the initial decision discusses direct and indirect evidence, we find that the
administrative judge properly considered the evidence as a whole in finding that the
appellant failed to show that discrimination of any type was a motivating factor in his
removal. Because we discern no error with 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 that2
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:
discrimination was a “but for” cause of the agency’s decisions. See Pridgen,
2022 MSPB 31, ¶¶ 20-22, 29-33.
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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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.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. 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 | Aloko_JacobDA-0752-19-0179-I-1__Final_Order.pdf | 2024-05-21 | JACOB ALOKO v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DA-0752-19-0179-I-1, May 21, 2024 | DA-0752-19-0179-I-1 | NP |
1,398 | https://www.mspb.gov/decisions/nonprecedential/Wyatt_ChristieDC-0752-19-0176-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTIE WYATT,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DC-0752-19-0176-I-1
DATE: May 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christie Wyatt , Woodbridge, Virginia, pro se.
Kristen L. Walsh , Esquire, Atlanta, Georgia, 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. For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The agency removed the appellant from her EAS-23 Strategic Planning
Specialist position effective June 1, 2018. Initial Appeal File (IAF), Tab 4 at 13.
The appellant filed her Board appeal on December 1, 2018, IAF, Tab 1, and the
agency moved to dismiss the appeal as untimely filed. IAF, Tab 4 at 5-11. The
administrative judge granted the agency’s motion and issued an initial decision
dismissing the appeal as untimely filed. IAF, Tab 7, Initial Decision (ID). The
initial decision, issued on February 15, 2019, informed the appellant that a
petition for review must be filed with the Board by March 22, 2019, or, if the
appellant proved that she received the initial decision more than 5 days after the
date it was issued, then she could file a petition for review within 30 days of the
date that she actually received the initial decision. ID at 4.
The appellant filed a petition for review on April 18, 2019, asserting that
she was “mentally incapacitated and unable to proceed mentally.” Petition for
Review (PFR) File, Tab 1. The Clerk of the Board informed the appellant that
her petition was untimely filed and afforded her the opportunity to file a motion
to accept the filing as timely and/or to waive the time limit for good cause. PFR
File, Tab 2 at 2. The Clerk also informed the appellant that such a motion must
be accompanied by a statement signed under penalty of perjury or an affidavit.
Id. The appellant did not respond. The agency has responded to the petition.
PFR File, Tab 3.
ANALYSIS
The Board will accept a petition for review filed beyond the deadline if the
appellant establishes circumstances showing that the petition for review was
timely filed, e.g., that it was filed 30 days after receipt, or will waive the time
limit for filing a petition for review only upon a showing of good cause for the
delay in filing. 5 C.F.R. §§ 1201.113(d), .114(e)-(g). The party who submits an
untimely petition for review has the burden of establishing good cause for the2
delayed filing by showing that she exercised due diligence or ordinary prudence
under the particular circumstances of the case. Sanders v. Department of the
Treasury, 88 M.S.P.R. 370, ¶ 5 (2001). To determine whether a party has shown
good cause, the Board will consider the length of the delay, the reasonableness of
the party’s excuse and her showing of due diligence, whether she is proceeding
pro se, and whether she has presented evidence of the existence of circumstances
beyond her control that affected her ability to comply with the time limits or of
unavoidable casualty or misfortune which similarly shows a causal relationship to
her inability to timely file her 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). 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 or other corroborating 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 requesting an extension of time. Pirkkala v.
Department of Justice , 123 M.S.P.R. 288, ¶ 19 (2016); Lacy v. Department of the
Navy, 78 M.S.P.R. 434, 437 (1998).
In her petition for review, the appellant states that her best friend died of
cancer in October 2018 which resulted in her being hospitalized for mental health
issues. PFR File, Tab 1 at 3. She also asserted that three relatives died in
January and March of 2019, which extended her mental illness. Id. With her
petition, the appellant submits copies of medical bills showing that, during
December 2018, she received psychiatric evaluations and was hospitalized. Id.
at 4-5. She also submits copies of four death notices showing she lost her friend
in October 2018, two relatives in January 2019, and a relative in March 2019. Id.
at 6-9.
The appellant’s evidence and argument, however, do not justify her delay
in filing her petition for review. The appellant’s medical treatment and the deaths
of her friend and two relatives predated the February 15, 2019 issuance of the3
initial decision and thus do not explain the delay in filing between the March 22,
2019 deadline and the April 18, 2019 filing. Although the appellant submitted
the death notice of a family member who died on March 24, 2019, and asserts that
the death of her relative extended her mental illness, she submits no medical
evidence in support of her assertion.
In addition to the assertions raised in the appellant’s petition for review, as
noted, the Clerk of the Board afforded the appellant an opportunity to submit an
explanation for her untimely filing. PFR File, Tab 2. The appellant, however,
has not responded.
We note that the appellant is pro se and that her 27-day delay is not very
lengthy. Nevertheless, the delay is not minimal. See Gonzalez v. Department of
Veterans Affairs , 111 M.S.P.R. 697, ¶ 11 (2009) (finding an 8-day delay not
minimal). Moreover, the Board has consistently denied a waiver of the filing
deadline even when the delay is not lengthy and the appellant is pro se if no good
reason for an untimely filing is shown. See, e.g., id.; Scott v. Social Security
Administration, 110 M.S.P.R. 92, ¶ 8 (2008) (finding no good cause for an
unexplained 11–day delay).
In sum, we conclude that the appellant has failed to show that she exercised
the due diligence or ordinary prudence that would justify waiving the deadline for
filing a petition for review. 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 removal appeal. 4
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s7
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Wyatt_ChristieDC-0752-19-0176-I-1__Final_Order.pdf | 2024-05-21 | CHRISTIE WYATT v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DC-0752-19-0176-I-1, May 21, 2024 | DC-0752-19-0176-I-1 | NP |
1,399 | https://www.mspb.gov/decisions/nonprecedential/Wible_JosephAT-0831-18-0196-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH WIBLE, JR.,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0831-18-0196-I-1
DATE: May 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joseph Wible, Jr. , Topeka, Kansas, pro se.
Karla W. Yeakle , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The Office of Personnel Management (OPM) has filed a petition for review
of the initial decision, which reversed its final decision and ordered it to credit
periods of military service towards the appellant’s civilian retirement, permit a
deposit for other military service, and change the appellant’s prior designation as
being in Civil Service Retirement System (CSRS) Offset to CSRS. 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).
reasons discussed below, we GRANT the agency’s petition for review and
REVERSE the initial decision.
BACKGROUND
The appellant transitioned between the civil service and military service on
multiple occasions throughout his career with the Government, which began in
1976 and concluded in May 2015, when he retired and began receiving his
Government annuity.2 Initial Appeal File (IAF), Tab 8 at 11, 36-38. In a letter
dated July 17, 2017, OPM inquired with the Social Security Administration (SSA)
about whether the appellant was entitled to Old Age, Survivors and Disability
Insurance (OASDI) benefits, and SSA responded that he was fully insured and
would become eligible for benefits in December 2017—the first month after he
reached 62 years of age. Id. at 7.
In December 2017, OPM informed the appellant that it was recalculating
his previously established civil service annuity to eliminate service credit for his
post-1956 military service for which he had not made a pre-separation deposit
with his employing agency. Id. at 4-5. The letter informed the appellant that the
elimination of this credit would reduce his gross monthly annuity by $701 per
month. Id.
The appellant appealed OPM’s decision to the Board, arguing that he did
not receive accurate civil service retirement credit for some of the periods of his
military service. IAF, Tab 5 at 1-2. He identified three specific time periods
during which he served in the military, but which OPM later excluded in
calculating his retirement. IAF, Tab 16. The first period covered the appellant’s
military service from September 23, 1976, to December 1, 1978, lasting 2 years,
2 months, and 8 days (Period 1). Id. at 5-6. The second period covered the
2 The administrative judge accurately laid out a detailed timeline of the appellant’s
career, wherein she detailed every civil service position and period of military service
in which the appellant served. Initial Appeal File, Tab 19, Initial Decision at 2-4. The
parties do not dispute her findings as to the dates of service; therefore, we will not
reiterate that timeline here. 2
appellant’s military service from April 22, 1992, to May 2, 1993, lasting 1 year
and 10 days (Period 2). Id. at 6-7. The third period covered the appellant’s
military service from May 5, 2003, to September 22, 2003, lasting 4 months and
16 days (Period 3). Id. at 7. In his prehearing submission, he requested that the
Board grant him the right to make a late deposit for his post-1956 military
service, totaling approximately 3 years and 7 months. IAF, Tab 11 at 4.
The appellant also argued that, following his military service between 1992
and 1993, he was improperly placed in the CSRS-Offset system instead of CSRS.
Id. at 2. The appellant previously raised this issue, pursuant to the Federal
Erroneous Retirement Coverage Corrections Act (FERCCA), in Wible v.
Department of the Army , MSPB Docket No. CH-0839-13-0267-I-1. In an
Opinion and Order, the Board found that it had jurisdiction to determine whether
his employing agency properly determined that any error in placing him in
CSRS-Offset was not covered under FERCCA and remanded the appeal. Wible v.
Department of the Army , 120 M.S.P.R. 333, ¶¶ 7-8 (2013). On remand, the
administrative judge found that the alleged error was less than 3 years, and thus
did not fall under FERCCA. Wible v. Department of the Army , MSPB Docket No.
CH-0839-13-0267-B-1, Remand Initial Decision at 2 (Feb. 27, 2014)
(incorporating, by reference, Wible v. Department of the Army , MSPB Docket No.
CH-0839-13-0267-I-1, Initial Decision (May 2, 2013)). Neither party petitioned
for review of that remand initial decision, and it is now final. See 5 C.F.R.
§ 1201.113 (explaining that an initial decision generally becomes final 35 days
after issuance absent a petition for review). In Wible, 120 M.S.P.R. 333,
¶¶ 11-12, the Board also informed the appellant that he could separately file a
Board appeal regarding whether placement in CSRS-Offset violated the
Uniformed Services Employment and Reemployment Rights Act of 1994
(codified as amended at 38 U.S.C. §§ 4301-4335) (USERRA). The appellant does
not appear to re-raise his FERCCA claim in the instant appeal, but does appear to
raise a claim under USERRA. IAF, Tab 15 at 3, Tab 17 at 7-8, Tab 18 at 4-5. 3
The administrative judge issued an initial decision reversing OPM’s
decision and finding that, because the appellant was employed in a civil service
position immediately before and immediately after his military service during
Period 2 and Period 3, he was entitled to civil service credit for his military
service without making a deposit. IAF, Tab 19, Initial Decision (ID) at 4-8.
She also found that the appellant was entitled to make a post -separation deposit
for his military service during Period 1, which was not preceded by civil service,
because he relied on misinformation provided by his employing agency when
initially electing not to make the deposit. ID at 8-11. Lastly, the administrative
judge found that OPM improperly determined that the appellant’s employing
agency correctly placed him in the CSRS-Offset system, rather than CSRS,
following his return from military service in May 1993, and she ordered OPM to
place the appellant in CSRS from May to September 1993. ID at 11.
The agency has filed a petition for review, arguing that the appellant could
not receive civil service credit for his military service for Period 2 and Period 3
because he had not made a deposit. Petition for Review (PFR) File, Tab 1
at 17-24. It also argues that the appellant was not entitled to make a
post-separation deposit for Period 1, contrary to the administrative judge’s
finding, because the appellant’s employing agency did not provide the appellant
with inaccurate information. Id. at 27-28. It also asserts that the appellant’s
employing agency correctly placed him in the CSRS-Offset system, and not the
CSRS system, following his military service in May 1993. Id. at 24-27. The
appellant has filed a response.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant was required to make a pre-separation deposit to receive civil
service credit for his military service during Period 2 and Period 3.
Section 8332 of title 5 governs creditable service under CSRS. In the
initial decision, the administrative judge relied on 5 U.S.C. § 8332(f) in finding4
that the appellant was entitled to civil service credit for Period 2 and Period 3
without having to make a deposit. ID at 7-8. That section provides that:
Credit shall be allowed for leaves of absence without pay granted an
employee while performing military service or while receiving
[workers’ compensation] benefits . . . . An employee or former
employee who returns to duty after a period of separation is deemed,
for the purpose of this subsection, to have been in a leave of absence
without pay for that part of the period in which he was receiving
[workers’ compensation] benefits.
The administrative judge found that this provision entitles individuals to
civil service credit for military service when that service interrupts an otherwise
continuous period of civil service. Id. Because the appellant left a civil service
position for military service and returned to civilian service after his military
service was completed, the administrative judge found that he was entitled to
credit for Periods 2 and 3. Id. The parties do not contest this finding on review,
and we decline to disturb it.
“Notwithstanding” any other provision of section 8332, including section
8332(f), section 8332(j) requires OPM to recalculate an annuitant’s payment
when he becomes eligible for OASDI to exclude any post-1956 military service.
Hooten v. Office of Personnel Management , 114 M.S.P.R. 205, ¶ 6 (2010).
Thus, even if the appellant was entitled to civil service credit for his military
service under section 8332(f), that service credit became excluded from the
appellant’s annuity when he became eligible for OASDI benefits.
5 U.S.C. § 8332(j)(1); Hooten, 114 M.S.P.R. 205, ¶ 6.
Nevertheless, such excluded credit could be included in the appellant’s
annuity calculation if he had made a pre-separation deposit. 5 C.F.R.
§ 831.2104(a) (requiring employees who retire on or after October 1, 1983,
to make deposits before their separations from service upon which their claims to
their annuities are based). Under 5 U.S.C. § 8332(j)(2)(A), the exclusion of
military service from an annuity calculation does not apply to “any period of
military service of an employee . . . with respect to which the employee . . . has5
made a deposit with interest, if any, under section 8334(j) of this title.” The
appellant does not dispute that he failed to make a deposit for Period 2 and Period
3, and, as such, we find that he is not entitled to service credit for those time
periods.3 See Hooten, 114 M.S.P.R. 205, ¶ 6 (stating that, if an annuitant fails to
make a deposit to receive credit for active military service performed after 1956,
OPM must recalculate the annuity payments when he first becomes eligible for
Social Security benefits to exclude credit for the post-1956 service).
The administrative judge erred in finding that the deposit requirement violated
USERRA.
In determining that the appellant was not required to pay a deposit for
Periods 2 and 3, the administrative judge further reasoned that the requirement
violated USERRA. ID at 7. In making this finding, she raised the analogy of
full-time employees with compensable injuries, who, pursuant to 5 U.S.C.
§ 8332(f), receive credit for an entire day, although they only worked a portion of
the day. ID at 5-7 (citing Hatch v. Office of Personnel Management ,
100 M.S.P.R. 204, ¶¶ 10-13, 22 (2005)). The administrative judge found that
requiring the appellant to make a deposit in order to receive civil service credit
violated USERRA because an employee who is on leave without pay (LWOP)
status while receiving Office of Workers’ Compensation Program benefits would
not be required to make a deposit, and thus would be treated more favorably than
an employee who is on LWOP status while serving in the military and who is
required to make a deposit in order to receive civil service credit. ID at 7 (citing
38 U.S.C. § 4301(a)(3) (stating that one of the purposes of USERRA is to
“prohibit discrimination against persons because of their service in the uniformed
services”)). As such, the administrative judge found that the appellant was not
3 Below, we address whether the appellant was properly placed in the CSRS-Offset,
effective May 3, 1993. IAF, Tab 11 at 9. That determination does not impact this
finding. With exceptions not relevant here, employees in CSRS and CSRS-Offset “are
treated the same.” 5 C.F.R. §§ 831.1001, .1005.6
required to make a pre-separation deposit in order to receive civil service credit
for the time periods at issue in Period 2 and Period 3.
We disagree with this conclusion. There is nothing in USERRA that would
preempt the above-discussed statutory provisions. To the contrary, certain
sections of USERRA contemplate retirement benefits and the impact of military
service on those benefits when there has been an absence from employment. For
instance, 38 U.S.C. § 4318 addresses employee pension benefit plans.
That section of USERRA provides that “[a] person reemployed under this chapter
shall be entitled to accrued benefits . . . that are contingent on the making of, or
derived from, employee contributions or elective deferrals . . . only to the extent
the person makes payment to the plan with respect to such contributions or
deferrals.” 38 U.S.C. § 4318(b)(2). Further, as discussed above, the parties do
not dispute that the appellant was entitled to credit for his military service before
he became eligible for OASDI. Thus, he was treated the same as an injured
employee for purposes of 5 U.S.C. § 8332(f). The applicable provision requiring
exclusion of this service is section 8332(j)(1), which does not apply to injured
employees.
The administrative judge also referenced chapter 6, subchapter 1-5, of
OPM’s guide to Processing Personnel Actions, which explains how civilian
service that is potentially creditable for CSRS purposes is also creditable for
leave accrual. ID at 5 (citing OPM’s Guide to Processing Personnel Actions,
https://www.opm.gov/policy-data-oversight/data-analysis-documentation/
personnel-documentation/#url=Personnel-Actions (last visited May 21, 2024).
That subchapter states, in relevant part, that “[e]mployees who are absent because
of uniformed service or compensable injury are entitled to be treated as though
they had never left . . . . A person who is reemployed under 5 [C.F.R. §] 353
receives credit for the entire period of his or her absence, that is, the entire period
from the time the employee left until he or she was restored or reemployed.”7
Despite the Guide’s reference to CSRS creditable service in discussing
leave accrual, it does not provide insight into what is CSRS creditable service.
Instead, it addresses leave accrual rights upon an employee’s restoration to duty
following a compensable injury or absence for military service. Thus, we cannot
find the cited provisions relevant to this appeal.
Based on the foregoing, we reverse the administrative judge’s finding that
the appellant is entitled to service credit for Period 2 and Period 3. The appellant
is not entitled to that service credit because he failed to make pre-separation
deposits for those periods.
The appellant is not entitled to make a post-separation deposit for Period 1.
It appears that the appellant understood that he was required to make a
deposit to receive credit for Period 1, and, in his prehearing submission, he
requested the right to make a post-separation deposit for that time period. IAF,
Tab 11 at 4. Although an employee must currently occupy a position subject to
coverage under the CSRS to be eligible to make a deposit, see 5 C.F.R.
§ 831.2104(a), a separated employee may make a post-separation deposit if he
can show that an administrative error committed by his former employing agency
or OPM caused him to fail to make or to complete the deposit prior to his
separation, King v. Office of Personnel Management , 97 M.S.P.R. 307, ¶ 15
(2004) (stating that, in order to be entitled to a post -separation opportunity to
make a deposit for post-1956 military service, an appellant must prove that his
failure to make the deposit prior to his separation was “due to” or “caused by” the
administrative error), aff’d per curiam sub nom. Grant v. Office of Personnel
Management, 126 F. App’x 945 (Fed. Cir. 2005); 5 C.F.R. § 831.2104(a).
One of the situations identified by the Board in which it may find
administrative error and require OPM to waive the deadline to make a deposit is
if the employee relied on misinformation in electing not to make the deposit.
King, 97 M.S.P.R. 307, ¶ 48. The appellant, as the individual entitled to benefits,8
bears the burden of proving by preponderant evidence4 that he is entitled to a
post-separation opportunity to make the deposit to avoid the reduction in his
retirement annuity. Cheeseman v. Office of Personnel Management , 791 F.2d
138, 140-41 (Fed. Cir. 1986); 5 C.F.R. § 1201.56(b)(2)(ii). Here, the appellant
claimed that prior to retirement, he spoke with a human resources representative
with his employing agency and explained that the amount of creditable civilian
service in his record was incorrect because it did not include the times when he
was on active military duty. IAF, Tab 18 at 5-6. The representative told him that
the record of his creditable civilian service could not be fixed and that he needed
to pay a deposit for all periods of military service. Id. The appellant claims to
have been so distrustful of his employing agency’s information, given its alleged
prior errors in calculating the length of his military service, that he elected not to
make the deposits. Id.
The administrative judge found that the appellant’s employing agency was
incorrect in its position that he needed to make a deposit for his military service
for Period 2 and Period 3, and, as a result, found that the appellant established
that the human resources representative advised him incorrectly at the time of
retirement. ID at 10. She further found that the appellant established that he
relied on the inaccurate or incomplete information when deciding not to pay the
deposit for Period 1. Id. Accordingly, she found that the appellant was entitled
to a post-separation opportunity to make a military service deposit for Period 1.
ID at 10-11.
On review, OPM argues that the appellant is not entitled to make a
post-separation deposit because the human resources representative’s advice was
correct in advising the appellant that he was required to make a deposit for his
military service. PFR File, Tab 1 at 28. It also argues that the appellant admitted
4 Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q). 9
that he understood that if he did not “buy back [his] military time back when [he]
turn[s] 62[, his] annuity will be reduced.” Id.; IAF, Tab 1 at 4.
We agree with the agency that the appellant is not entitled to an
opportunity to make a post-separation deposit for Period 1. Because we have
already found that 5 U.S.C. § 8332(j)(1)-(2) requires a deposit to avoid
recalculation to omit civilian credit for military service following receipt of
OASDI, we find that the human resources representative provided accurate
information to the appellant. To the extent that his employing agency had
previously miscalculated the length of his service, the appellant has not explained
how this caused him to fail to make any deposit at all. PFR File, Tab 2 at 4-9.
Thus, we find that the appellant has failed to show that he relied on
misinformation or an administrative error when he elected not to make a deposit.
Based on the foregoing, we reverse the administrative judge’s finding that the
appellant is entitled to an opportunity to make a post-separation deposit for
Period 1.
The appellant has no claim under the Vietnam Era Veterans’ Readjustment
Assistance Act.
While employed by the Defense Logistics Agency in a career conditional
position, the appellant was placed in LWOP status between February 16 and
April 21, 1992, for active military duty. IAF, Tab 8 at 34, 46, Tab 16 at 6. On
April 21, 1992, his status was changed to “TERMINATION-MIL,” IAF, Tab 8
at 46, and through May 2, 1993, he continued to serve on active military duty, id.
at 34. Following his military service, he returned to civilian service on May 3,
1993, with the Department of the Air Force in a GS-12 excepted service position.
Id. at 34, 45. When he returned, he was placed under the CSRS system. IAF,
Tab 11 at 9. In a January 2, 2013 letter from the Department of the Army, the
appellant was informed that the placement had been in error, and that, because he
“returned to a different position after a break-in-service of more than one year,”10
he should have been placed in CSRS -Offset. Id. The letter informed the
appellant that the administrative correction had been processed. Id.
The appellant argued below that the agency did not err when it initially
placed him in the CSRS system, and that the error was the subsequent
administrative “correction” to CSRS-Offset. IAF, Tab 1 at 4, Tab 5 at 2.
The administrative judge agreed with the appellant, finding that the agency
should not have treated his military service as a break in service, and that he was
entitled to the same status he would have enjoyed if he had been continuously
employed in his civilian position during that time period, pursuant to provisions
of USERRA’s predecessor—the Vietnam Era Veterans’ Readjustment Assistance
Act, Pub. L. No. 93-508, 88 Stat. 1578 (1974), previously codified as amended
at 38 U.S.C. §§ 4301-4307 (1993), commonly referred to as the Veterans’
Reemployment Rights Act (VRRA). ID at 7-8, 11.
The agency argues on review that the appellant failed to exercise his
reemployment rights under the VRRA, and, therefore, the military service should
be considered a break in service for more than 1 year—as opposed to a furlough
—and the correction of the appellant’s record from CSRS to CSRS -Offset was
proper. PFR File, Tab 1 at 24 -27.
We have reviewed the record, and we find that the appellant has failed to
state a VRRA claim upon which relief can be granted. The Board and its
reviewing court have generally treated the VRRA as only applicable to reservists.
See 38 U.S.C. § 4301(a)(2)(A), (b)(3) (1993) (stating that, under certain
prescribed circumstances, a person who returns to Federal employment following
military service “shall not be denied . . . retention in employment or any
promotion or other incident or advantage of employment because of any
obligation as a member of a Reserve component of the Armed Forces”);
Fernandez v. Department of the Army , 234 F.3d 553, 555-57 (Fed. Cir. 2000)
(explaining that the protection for employment benefits under the VRRA covered
only reservists); Murray v. National Aeronautics & Space Administration ,11
112 M.S.P.R. 680, ¶¶ 3, 7 (2009), (reaffirming that the VRRA only applied to
members of a reserve component of the Armed Forces), aff’d per curiam ,
387 F. App’x 955 (Fed. Cir. 2010). Because the appellant has neither alleged nor
proven that he was a reservist during 1992 or 1993, we find that he has no claim
under the VRRA. IAF, Tab 8 at 18, 34.
Based on the foregoing, we GRANT the agency’s petition for review, and
we REVERSE the initial decision.5
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 To the extent the appellant is raising a claim under FERCCA, that claim is precluded
by his prior Board appeal in Wible v. Department of the Army , MSPB Docket No.
CH-0839-13-0267-I-1. See Navarro v. Office of Personnel Management , 105 M.S.P.R.
278, ¶ 4 (stating that the doctrine of res judicata precludes a party from raising a claim
that was, or could have been, asserted in a prior proceeding), aff’d per curiam, 252 F.
App’x 316 (Fed. Cir. 2007).
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.12
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 obtain13
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 14
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. 15
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Wible_JosephAT-0831-18-0196-I-1__Final_Order.pdf | 2024-05-21 | null | AT-0831-18-0196-I-1 | NP |
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