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1,400 | https://www.mspb.gov/decisions/nonprecedential/Weinstein_MayAT-0843-18-0670-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MAY WEINSTEIN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0843-18-0670-I-1
DATE: May 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jason Mirabella , Esquire, and Mark Weinstein , Esquire, Cumming,
Georgia, for the appellant.
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), denying her application for a former spouse survivor annuity. Generally,
we grant petitions such as this one only in the following circumstances: the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review. Except as expressly MODIFIED to supplement the rationale for
concluding that the appellant is not entitled to a former spouse survivor annuity,
we AFFIRM the initial decision.
BACKGROUND
The appellant’s former husband, Mr. Weinstein, retired in 1989, while the
couple was still married. Initial Appeal File (IAF), Tab 7 at 43. Upon retirement,
he became a Civil Service Retirement System (CSRS) annuitant. Id. The couple
elected for the appellant to receive a survivor annuity upon Mr. Weinstein’s
death. Id. at 43, 46. The couple subsequently divorced in December 2006. Id.
at 16, 33-34. At the time of their divorce, they entered into a court -approved
divorce agreement, which provided, “[e]ach party shall retain ownership of their
bank and retirement accounts free of any claim of the other.” Id. at 22-23, 27.
The agreement further provided that the parties released any claims against each
other’s estates, such as claims for “family allowance.” Id. at 29.
The parties do not dispute that Mr. Weinstein received annual notices from
OPM in, as pertinent here, December 2005, December 2006, December 2007, and
December 2008. IAF, Tab 15 at 15-16, Tab 25, Initial Decision (ID) at 4 -5.2
Those notices explained that if the annuitant had previously elected a survivor
annuity for his then -spouse, it “terminate[d] upon . . . divorce,” and “a new
survivor election is required within 2 years after the divorce if [he] wish[ed] to
provide a former spouse [survivor] annuity.” IAF, Tab 15 at 18. The annuitant
made no new election. IAF, Tab 7 at 8, 10.
Mr. Weinstein did not inform OPM of his divorce until 2016, and never
provided OPM with a copy of the divorce decree. Id. at 8. Therefore, OPM
continued to reduce Mr. Weinstein’s monthly annuity payments to provide a
survivor annuity for the appellant. Id. at 8-10. Mr. Weinstein died in
December 2017. Id. at 19. The appellant filed an application with OPM for
former spouse survivor annuity benefits. Id. at 16, 21. OPM denied this request,
first in an initial decision and then in a reconsideration decision. Id. at 6-8, 14.
The appellant filed this appeal, disputing OPM’s determination that she
was not entitled to an annuity. IAF, Tab 1 at 4. After she waived her right to a
hearing, the administrative judge issued an initial decision on the written record,
affirming OPM’s reconsideration decision. IAF, Tab 23; ID at 2, 6. He reasoned
that the appellant’s right to a survivor annuity terminated with her divorce from
Mr. Weinstein, and the divorce agreement did not expressly provide for a
survivor annuity. ID at 4-6. He also concluded that, contrary to the appellant’s
arguments, OPM’s annual notices clearly informed Mr. Weinstein of the need to
make a former spouse survivor annuity election within 2 years of the divorce. Id.
Thus, because Mr. Weinstein made no such election, OPM properly denied the
appellant’s survivor annuity application. ID at 6.
The appellant has filed a petition for review, in which she argues that the
administrative judge failed to consider an affidavit from her son. Petition for
Review (PFR) File, Tab 1 at 6. She argues that this affidavit, submitted below,
establishes that OPM provided her son with misleading information, effectively
diluting or contradicting the information in its annual notices to Mr. Weinstein
regarding the requirement for a post-divorce former spouse annuity survivor3
election. Id. at 12-16; IAF, Tab 10. The agency has submitted a non-substantive
response to the petition for review. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
Divorce generally terminates a prior election for a survivor annuity for the
former spouse. 5 U.S.C. § 8339(j)(5)(A)(ii). However, the divorced spouse is
entitled to a survivor annuity if the annuitant elected one for her within 2 years
after the divorce under 5 U.S.C. § 8339(j)(3), or if a survivor annuity is provided
for in a divorce decree or a court order or court-approved property settlement
agreement issued in conjunction with the divorce decree under 5 U.S.C. § 8341(h)
(1). Walley v. Office of Personnel Management , 114 M.S.P.R. 198, ¶ 8 (2010).
The administrative judge found, and the parties do not dispute on review,
that the divorce agreement did not provide for a survivor annuity. ID at 4.
Instead, the agreement stated that Mr. Weinstein and the appellant had no claims
against each other’s “retirement accounts” and no entitlement to matters such as
“family allowance.” See 5 U.S.C. § 8341(h)(1) (providing that a divorce decree
must “expressly provide[]” for a former spouse survivor annuity); Walley,
114 M.S.P.R. 198, ¶ 8 (stating the same); Black’s Law Dictionary 92 (10th ed.
2014) (defining a “family allowance” as “a portion of a decedent’s estate set aside
by statute” for the temporary support of a spouse or other close family members).
We discern no basis to disturb this finding.
OPM has a statutory obligation to notify each annuitant annually of his
election rights under 5 U.S.C. § 8339(j). 5 U.S.C. § 8339 note; Djeridi v. Office
of Personnel Management , 115 M.S.P.R. 250, ¶ 14 (2010). Thus, even absent an
election under 5 U.S.C. § 8339(j)(3), a former spouse is entitled to a survivor
annuity if OPM failed to provide this notice or provided information that “diluted
or contradicted” its otherwise adequate notice and “there is some evidence that
the employee wished his former spouse to receive the annuity.” Wood v. Office of
Personnel Management , 241 F.3d 1364, 1366 -67 (Fed. Cir. 2001). 4
The administrative judge found that OPM provided adequate notice to Mr.
Weinstein of his right to elect to provide a former spouse survivor annuity and he
did not do so. ID at 4-6. We decline to disturb these undisputed findings. See
Holder v. Office of Personnel Management , 47 F.3d 412, 415 (Fed. Cir. 1995)
(finding sufficient OPM’s notice to an annuitant that if he was divorced he had a
specified time period to elect a former spouse survivor annuity). However, we
supplement this reasoning to address the appellant’s argument, raised both below
and on review, that OPM provided Mr. Weinstein’s son with confusing
information regarding the need to re-elect a survivor annuity for the appellant.
IAF, Tab 14; PFR File, Tab 1 at 12-16. Although the administrative judge did not
address this argument, we find that his failure to do so was harmless as it does not
affect the outcome of this appeal. See Panter v. Department of the Air Force ,
22 M.S.P.R. 281, 282 (1984) (explaining that an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision).
The son of Mr. Weinstein and the appellant submitted a sworn affidavit
below, indicating that, as the executor of both his parents’ estates, he contacted
OPM in 2006 to determine the effect of their pending divorce on the appellant’s
survivor annuity. IAF, Tab 10 at 5-6. He indicated that, “OPM directed me to
OPM document RI 84-1.” Id. at 6. He determined that no further action was
necessary to continue the survivor annuity because this booklet, titled
“Court-Ordered Benefits for Former Spouses,” provided that “a divorce does not
affect a designation of beneficiary that was filed at some earlier time.” Id. The
problem with the appellant’s argument is that her son’s reliance on the language
he cites is not reasonable. See Wood, 241 F.3d at 1367 (evaluating the
reasonableness of the annuitant’s alleged belief that he needed take no further
steps to provide for a former spouse survivor annuity); Holder, 47 F.3d at 415
(considering, in evaluating the adequacy of OPM’s annual notices, whether the
notice “reasonably informed” the annuitant of his right to elect a former spouse5
survivor annuity). Instead, as the appellant acknowledges, the language
specifically concerns “life insurance or retirement lump sum benefits,” not
survivor annuities.2 PFR File, Tab 1 at 15. The RI 84-1 separately states that,
“[f]or a former spouse to receive payments after the retiree’s death, the retiree
must elect, or the court order must provide for, a survivor annuity.” IAF, Tab 16
at 10-11. In addition, the annual notices provided to Mr. Weinstein specified that
divorce would terminate a prior survivor election, and he would need to make a
new election within 2 years to provide a survivor annuity to his former spouse.
IAF, Tab 15 at 18.
The circumstances here differ from those in Wood, 241 F.3d at 1366-67, in
which the U.S. Court of Appeals for the Federal Circuit found that the accuracy
of annual notices was undermined by OPM’s letter in response to an inquiry from
an annuitant on the question of a survivor annuity for his spouse, whom he was
then divorcing. The annuitant in Wood wrote to OPM, and asked what he could
do to ensure that his then-wife would be entitled to the annuity after the divorce.
Id. at 1365. OPM responded that he could “voluntarily elect to provide survivor
coverage for an ex -spouse.” Id. OPM’s response did not explain that after his
divorce, he would need to make a new election. Id. at 1365-67. Because OPM’s
response could have led the annuitant to reasonably believe he had already made
such an election, the Federal Circuit found OPM had effectively confused the
accurate annual notices it sent to the annuitant following his divorce. Id. at 1367;
see Hernandez v. Office of Personnel Management , 450 F.3d 1332, 1335 (Fed.
Cir. 2006) (stating that notice of the right to elect a former spouse survivor
annuity is insufficient if it does not explain that divorce terminates a previously
2 The appellant is represented in this matter by both her son and a private attorney.
IAF, Tab 1 at 5-6. To the extent her private attorney has stated that OPM specifically
identified the incorrect provision in the RI 84-1 to the appellant’s son, we have not
considered this representation. IAF, Tab 14 at 6; PFR File, Tab 1 at 15. The
appellant’s son’s affidavit does not support this statement, and the statement of the
private attorney is not evidence. IAF, Tab 10 at 6; Marcantel v. Department of Energy ,
121 M.S.P.R. 330, ¶ 6 n.1 (2014) (explaining that the statements of a party’s
representative in a pleading do not constitute evidence).6
elected spouse survivor annuity, and that a new election is needed). In contrast,
the relevant portion of RI 84-1 set forth the election requirement, and therefore
did not dilute the annual notices OPM sent to the annuitant in the instant appeal.
IAF, Tab 16 at 10-11.
In addition, this case is distinguishable due to the quality of the annual
notices the annuitant received. Part of the court’s reasoning in Wood was based
on that fact that the annual notice “was itself hardly a model of clarity, and did
little to correct the earlier confusion” caused by OPM’s response to the
appellant’s earlier inquiry. 241 F.3d at 1367. The annual notice in Wood stated
that the annuitant could “elect a survivor annuity for [his] former spouse within
two years after the marriage ended.” Id. at 1366. In contrast, the annual notices
provided to the annuitant in the instant appeal specified that divorce would
terminate a prior survivor election, and he would need to make a new election
within 2 years to provide a survivor annuity to his former spouse. IAF, Tab 15
at 18.
Because we are not persuaded that OPM provided incorrect or confusing
information to Mr. Weinstein or his son, we do not reach the appellant’s argument
that Mr. Weinstein intended to provide her with a former spouse survivor annuity.
PFR File, Tab 1 at 17-18. Accordingly, we affirm the initial decision as
supplemented by this decision.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
summary of available appeal rights, the Merit Systems Protection 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. 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.
(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 the9
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.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 of10
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. 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 | Weinstein_MayAT-0843-18-0670-I-1__Final_Order.pdf | 2024-05-21 | MAY WEINSTEIN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0843-18-0670-I-1, May 21, 2024 | AT-0843-18-0670-I-1 | NP |
1,401 | https://www.mspb.gov/decisions/nonprecedential/Long_Linda_J_PH-0845-19-0107-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LINDA J. LONG,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0845-19-0107-I-1
DATE: May 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Linda J. Long , Newark, Delaware, 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 her appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
On November 21, 2017, the appellant requested reconsideration of an
Office of Personnel Management (OPM) decision finding that she had been
overpaid $48,256.00 in Federal Employees’ Retirement System (FERS) annuity
benefits. Initial Appeal File (IAF), Tab 1 at 9. On January 14, 2019, OPM issued
a reconsideration decision affirming its calculation of the overpayment and
denying the appellant’s request for a waiver. Id. at 9-13. OPM indicated that it
had collected $344.19 of the overpayment and would collect the balance
($47,911.81) in 935 monthly installments of $51.23 plus one installment of
$11.76, beginning with the appellant’s April 1, 2019 annuity payment check. Id.
at 13.
On January 28, 2019, the appellant filed a Board appeal contesting OPM’s
reconsideration decision. Id. at 1-7. On February 8, 2019, OPM moved to
dismiss the appeal, stating that it had completely rescinded its January 14, 2019
final decision. IAF, Tab 4 at 4. In a filing dated February 13, 2019, OPM stated
that, once the appeal was dismissed, it would remand the case to its Legal
Reconsideration Branch for further development and the appellant would receive
a decision about her annuity overpayment. IAF, Tab 5 at 3. The following day,2
the administrative judge issued an initial decision dismissing the appeal for lack
of jurisdiction based on OPM’s rescission of its final decision. IAF, Tab 6, Initial
Decision (ID) at 2.
The appellant has filed a petition for review in which she argues the merits
of her appeal but does not address the jurisdictional issue. Petition for Review
(PFR) File, Tab 1 at 1-4. The appellant also submits several documents with her
petition for review. Id. at 6-68. OPM has filed a brief response opposing the
petition for review. PFR File, Tab 4.
ANALYSIS
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant has the burden
of proving the Board’s jurisdiction by a preponderance of the evidence. 5 C.F.R.
§ 1256(b)(2)(i)(A). The Board has jurisdiction over OPM determinations
affecting an appellant’s rights or interests under FERS after OPM has issued a
final decision, known as a reconsideration decision. 5 U.S.C. § 8461(e); 5 C.F.R.
§ 841.308; see Okello v. Office of Personnel Management , 120 M.S.P.R. 498,
¶ 14 (2014) (stating that a reconsideration decision is final and appealable to the
Board). If OPM completely rescinds a reconsideration decision, the rescission
divests the Board of jurisdiction over the appeal in which that reconsideration
decision is at issue, and the appeal must be dismissed. Martin v. Office of
Personnel Management , 119 M.S.P.R. 188, ¶ 8 (2013). However, the Board has
held that, if OPM rescinds its reconsideration decision after the appellant files a
Board appeal and it is apparent that OPM does not intend to issue a new decision,
the Board retains jurisdiction to adjudicate the merits. See Triplett v. Office of
Personnel Management , 100 M.S.P.R. 571, ¶¶ 5-7 (2005).
Here, OPM asserted below that it had rescinded the reconsideration
decision and clearly indicated that it intended to issue a new decision regarding3
the appellant’s annuity overpayment. IAF, Tab 4 at 4, Tab 5 at 3. The appellant
has not suggested that OPM has not completely rescinded the reconsideration
decision or that it does not intend to issue a new decision. Accordingly, we find
that the administrative judge correctly dismissed this appeal for lack of
jurisdiction.2 ID at 2.
We decline to consider the documents that the appellant submits on review.
The appellant submits several documents with her petition for review. PFR
File, Tab 1 at 6-68. 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. Two of the documents the appellant submits on
review—OPM’s October 31, 2017 decision notifying the appellant of the annuity
overpayment and OPM’s January 14, 2019 reconsideration decision—are already
part of the record below and thus are not new. Compare PFR File, Tab 1 at 10,
16-20, with IAF, Tab 1 at 9-14; see Meier v. Department of the Interior ,
3 M.S.P.R. 247, 256 (1980) (stating that evidence that is already a part of the
record is not new). Moreover, all of the documents the appellant submits on
review are immaterial to the dispositive jurisdictional issue and would not
warrant an outcome different from that of the initial decision. See Russo v.
Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (stating that the Board will
not grant a petition for review based on new evidence absent a showing that it is
of sufficient weight to warrant an outcome different from that of the initial
decision). Therefore, we have not considered these documents.
2 As the administrative judge properly noted in the initial decision, the appellant may
file an appeal of OPM’s new reconsideration decision if she is dissatisfied with it. ID
at 2; see 5 C.F.R. § 831.110.4
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s7
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Long_Linda_J_PH-0845-19-0107-I-1__Final_Order.pdf | 2024-05-21 | LINDA J. LONG v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0845-19-0107-I-1, May 21, 2024 | PH-0845-19-0107-I-1 | NP |
1,402 | https://www.mspb.gov/decisions/nonprecedential/Dodge_DennisAT-0752-19-0549-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DENNIS DODGE,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
AT-0752-19-0549-I-1
DATE: May 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew Kim , Esquire, Atlanta, Georgia, for the appellant.
Alfred Jonathan Jackson , Esquire, and Erin Oliver , Esquire, College Park,
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
affirmed the agency’s action suspending him for 30 days. On petition for review,
the appellant argues that the administrative judge erred in her factual findings and
credibility determinations. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
1A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal,2 we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 The agency filed its response to the appellant’s petition for review 2 days late.
Petition for Review (PFR) File, Tabs 2-3. The agency did not file a motion to accept
the filing as timely, or to waive the time limit for filing, as instructed by the Acting
Clerk of the Board. PFR File, Tab 4; see 5 C.F.R. § 1201.114(j). Accordingly, we have
not considered the agency’s response to the petition for review.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Dodge_DennisAT-0752-19-0549-I-1__Final_Order.pdf | 2024-05-21 | DENNIS DODGE v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. AT-0752-19-0549-I-1, May 21, 2024 | AT-0752-19-0549-I-1 | NP |
1,403 | https://www.mspb.gov/decisions/nonprecedential/Walker_James_L_SF-1221-18-0510-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES L. WALKER,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-1221-18-0510-W-1
DATE: May 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
James L. Walker , Helendale, California, pro se.
Robert Aghassi and Veronica Hale , Barstow, 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
based on the administrative judge’s finding that the appellant elected to grieve the
personnel actions at issue. After fully considering the filings in this appeal, we
conclude that the petitioner has not established any basis under 5 C.F.R.
§ 1201.115 for granting the petition for review and therefore we DENY it.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Because there is some uncertainty regarding the correctness of the administrative
judge’s election of remedies finding, we VACATE the initial decision and instead
DISMISS the appellant’s appeal for lack of jurisdiction on the grounds that he
failed to nonfrivolously allege that he made a protected disclosure or engaged in a
protected activity that was a contributing factor in either of the personnel actions
at issue.
BACKGROUND
The appellant is employed by the agency as a WG-09 Painter. Initial
Appeal File (IAF), Tab 12 at 56. In an October 4, 2017 notice, the agency
suspended him for 14 days, effective October 10, 2017. Id. at 11-12. That
month, the appellant filed three complaints or grievances regarding his
suspension. First, on October 6, 2017, the appellant filed a complaint with
the Office of Special Counsel (OSC). IAF, Tab 13 at 74-82. Second, on
October 16, 2017, the appellant filed a complaint with the Federal Labor
Relations Authority (FLRA). IAF, Tab 5 at 7, Tab 8 at 5. And third, on
October 26, 2017, the appellant filed a grievance under the agency’s negotiated
grievance procedure. IAF, Tab 12 at 32-36.
On December 19 2017, the agency proposed to suspend the appellant for
misconduct allegedly committed in November 2017. Id. at 64-65. Eight days
later, on December 27, 2017, the appellant filed a formal equal employment
opportunity (EEO) complaint. IAF, Tab 11 at 13-15. The agency ultimately
suspended the appellant, again for 14 days, effective February 19, 2018. IAF,
Tab 12 at 57.
In a statement to the FLRA dated January 28, 2018, which the appellant
submitted to the administrative judge as part of his jurisdictional response,
the appellant wrote that OSC had dismissed his complaint. IAF, Tab 5 at 6.
The appellant then filed another complaint with OSC on February 28, 2018. IAF,
Tab 4 at 5. In that complaint, he indicated that both the October 2017 suspension2
and the February 2018 suspension were taken in reprisal for his protected
disclosures or activities implicating the official who issued the October 2017
suspension (hereinafter “the first deciding official”) in wrongdoing when the
official instructed agency employees to perform work that should have been
performed by contractors. Id. at 7-9. The appellant also indicated to OSC that he
was retaliated against because of complaints he filed, as well as affidavits and
testimony he submitted, critical of the first deciding official. Id. at 9.
On April 26, 2018, OSC terminated its investigation into the appellant’s
February 2018 complaint and informed him of his right to seek corrective action
with the Board. IAF, Tab 4 at 1-2. OSC found that, because the appellant had
apparently elected to file grievances regarding his suspensions, it had no basis for
inquiring into the matter. Id. at 2.
The appellant filed this IRA appeal on May 7, 2018. IAF, Tab 1. With his
initial appeal, the appellant included OSC’s April 26, 2018 letters closing its
investigation and summarizing the complaint. Id. at 7, 12. The appellant made
no reference to the complaint he filed with OSC in October 2017. IAF, Tab 1.
He checked the box indicating that he was appealing a suspension of more than
14 days and included the proposal and decision notices and the Standard Forms
(SF) 50 for both suspensions. Id. at 4, 8-11, 16-18, 21-22. The appellant
acknowledged that on October 26, 2017, he had filed a grievance regarding the
suspension he was appealing. Id. at 5.
The administrative judge informed the appellant of his burden to establish
the Board’s jurisdiction over the IRA appeal and ordered him to submit a
statement identifying, inter alia, his protected disclosures and activities and why
he believed they were a contributing factor in the agency actions taken against
him. IAF, Tab 3 at 2-8. The appellant made multiple filings in response to the
administrative judge’s order, submitting documents related to his grievance, EEO
and FLRA complaints, and correspondence with a Member of Congress.2 IAF,
2 The appellant’s filings contain numerous duplicate copies of documents. 3
Tabs 4-6, 8, 10-11, 13-18. He also submitted his October 2017 OSC complaint
and his February 2018 OSC complaint, along with additional copies of OSC’s
April 26, 2018 letters regarding the February 2018 complaint. IAF, Tab 13
at 74-84. At no point did the appellant file a pleading compliant with the
administrative judge’s order to provide a narrative response or a statement as
outlined by the administrative judge.3
In his initial decision, the administrative judge found that, although there
was evidence in the record about the February 2018 suspension, the appellant
only identified the October 2017 suspension as the personnel action at issue in
this IRA appeal. IAF, Tab 20, Initial Decision (ID) at 8. He concluded that the
undisputed record reflected that the appellant elected to grieve his October 2017
suspension and that the appellant therefore failed to nonfrivolously allege Board
jurisdiction over this IRA appeal. ID at 8-9.
On petition for review, the appellant does not contest the administrative
judge’s jurisdiction finding and submits a number of documents. Petition for
Review (PFR) File, Tab 3. The agency has filed a response opposing the petition,
and the appellant has filed a reply. PFR File, Tabs 5, 7.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over an IRA appeal if an appellant exhausts his
administrative remedies before OSC and makes nonfrivolous allegations that
(1) he made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in
protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D),
and (2) the disclosure or protected activity was a contributing factor in
the agency’s decision to take or fail to take a personnel action as defined by
3 The agency submitted its file to the Board on May 31, 2018. IAF, Tab 12. On June 3,
2018, the appellant submitted another complaint with OSC, vaguely alleging that the
agency was being deceitful in its filing with the Board. IAF, Tab 14 at 5-13. He also
noted that he had made a disclosure to a member of Congress on September 1, 2015. Id.
at 9. The June 2018 OSC complaint and the 2015 disclosure are not at issue in this
appeal. 4
5 U.S.C. § 2302(a). Graves v. Department of Veterans Affairs , 123 M.S.P.R. 434,
¶ 12 (2016). However, under certain circumstances, when an appellant makes a
binding election to grieve a personnel action pursuant to the provisions of a
negotiated grievance procedure before he files a complaint with OSC about
that personnel action, the Board will lack jurisdiction to consider an
IRA appeal concerning that personnel action. See 5 U.S.C. § 7121(g);
Agoranos v. Department of Justice , 119 M.S.P.R. 498, ¶ 14 (2013).
Here, the administrative judge found that the Board lacked jurisdiction over
this IRA appeal because the appellant had first elected to grieve his suspension.
ID at 8-9. As discussed below, we find that this appeal should be dismissed for
lack of jurisdiction on other grounds. We therefore need not address the election
of remedies issue and what effect the appellant’s decision to file his first
complaint with OSC on October 6, 2017 (prior to challenging the suspension in
any other fora) has on the administrative judge’s jurisdictional finding.
See Weslowski v. Department of the Army , 80 M.S.P.R. 585, ¶ 14 n.1 (finding that
the Board need not address whether it lacked jurisdiction over an appeal due to an
election of remedies issue when it lacked jurisdiction over the appeal on other
grounds), aff’d, 217 F.3d 854 (Fed. Cir. 1999) (Table). Accordingly, we vacate
the initial decision.
The appellant exhausted his administrative remedies regarding his claims that he
was suspended in October 2017 and in February 2018 because he made a
disclosure concerning the first deciding official, filed a complaint with the FLRA,
and filed an EEO complaint.
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;5
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.4
When, as in this case, an appellant has filed multiple complaints with OSC,
exhaustion may only be demonstrated through the complaint that led to the filing
of the IRA appeal before the Board. See Becker v. Department of Veterans
Affairs, 76 M.S.P.R. 292, 298 n.3 (1997). The Board will not consider any
matters raised in other OSC complaints, unless they were also raised in the OSC
complaint that led to the IRA appeal before it. Id.
Here, the record contains evidence of three complaints the appellant filed
with OSC. IAF, Tab 4 at 5-11, Tab 13 at 74-82, Tab 14 at 5-13. It was the
second of these complaints, filed in February 2018, that led to the filing of this
IRA appeal. IAF, Tab 1 at 7, 12-13. Accordingly, in determining whether the
appellant exhausted his administrative remedies with OSC prior to filing this IRA
appeal, we will only review the appellant’s February 2018 OSC complaint,
see Becker, 76 M.S.P.R. 292, 298 n.3, along with any correspondence between the
appellant and OSC pertaining to that complaint, see Mason v. Department of
Homeland Security , 116 M.S.P.R. 135, ¶ 8 (2011).
In his February 2018 OSC complaint, the appellant raised two personnel
actions—the October 2017 suspension and the February 2018 suspension. IAF,
Tab 4 at 9. He indicated that these actions were taken in reprisal for his reporting
that the first deciding official instructed agency employees to perform work that
4 The Whistleblower Protection Enhancement Act (WPEA), which went into effect on
December 27, 2012, does not affect the relevant holding in this cited authority, nor does
it affect the relevant holdings in the other authorities cited herein that were issued prior
to the effective date of the WPEA. See Pub. L. No. 112-199, 126 Stat. 1465 (2012).
Additionally, all of the relevant events in this appeal occurred after the December 27,
2012 effective date of the WPEA. Therefore, we have applied the WPEA to this appeal.6
should have been performed by contractors and for a complaint he filed with the
FLRA.5 Id. at 8-9. The appellant also indicated that he had filed an EEO
complaint on December 27, 2017.6 Id. at 6. Thus, based on the appellant’s OSC
complaint, we find that he exhausted these claims with OSC.
In the analysis of the appellant’s reprisal claims that follows, we first find
that the appellant failed to nonfrivolously allege that his report about the first
deciding official instructing employees to perform work that should have been
performed by contractors constitutes a protected disclosure. We then find that the
appellant failed to nonfrivolously allege that his EEO complaint constituted a
protected activity. Finally, we find that, while the appellant nonfrivolously
alleged that his complaint with the FLRA was protected, he failed to
nonfrivolously allege that the protected activity was a contributing factor toward
either of the two suspensions raised by the appellant.
5 In his OSC complaint, the appellant indicated that he filed a complaint with the FLRA
on February 19, 2018. IAF, Tab 4 at 6. The record contains a FLRA complaint form,
which the appellant signed on October 16, 2017. IAF, Tab 8 at 5. In a January 28,
2018 statement in support of his FLRA complaint, the appellant stated that he filed that
complaint on October 16, 2017. IAF, Tab 5 at 7. Other than the statement in the
February 2018 OSC complaint, there is no evidence in the record supporting a
conclusion that the appellant filed a complaint with the FLRA other than on October 16,
2017. To the extent that the appellant was referring to another complaint he filed with
the FLRA, he has failed to nonfrivolously allege that his filing of the complaint was a
protected activity because there is no indication in the record, or allegation by him, that
it concerned remedying reprisal for whistleblowing. See Elder v. Department of the Air
Force, 124 M.S.P.R. 12, ¶ 39 n.8 (2016).
6 The appellant additionally indicated that he filed some type of complaint or grievance
on November 16, 2017. IAF, Tab 4 at 9. However, there is no other indication in the
record regarding any complaint or grievance being filed on this date. Similarly,
although the appellant referenced appealing his discrimination complaint to the Equal
Employment Opportunity Commission on February 16, 2018, id. at 6, there is no other
evidence or allegation about such an appeal in the record.7
The appellant failed to nonfrivolously allege that he made a protected disclosure
regarding agency employees performing work that should have been done by
contractors.
After determining which claims the appellant exhausted with OSC, we must
consider whether the appellant has nonfrivolously alleged that he made a
protected disclosure or engaged in protected activity. See Salerno v. Department
of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016); 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 his position would believe
evidenced one of the categories of wrongdoing specified in 5 U.S.C. § 2302(b)
(8). 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 disclosure must be
specific and detailed, not vague allegations of wrongdoing. Id.
Additionally, 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 particular title or number “when the employee’s statements and the
circumstances surrounding the making of those statements clearly implicate an
identifiable violation of law, rule, or regulation.” Langer v. Department of the
Treasury, 265 F.3d 1259, 1266 (Fed. Cir. 2001).
Here, the agency proposed the appellant’s second suspension (which was
effected in February 2018), in part, because on November 16, 2017, he engaged in8
inappropriate behavior by raising his voice and becoming irate when telling a
Contracting Officer, among others, that illegal aliens were performing painting
work on the base. IAF, Tab 12 at 57, 64-67, 70. However, the appellant asserted
that he never made assertions of illegal aliens working on the base. IAF, Tab 5
at 28. Instead, the appellant indicated that on November 16, 2017, he was
investigating whether an order he was given—regarding striping lines on
pavement and painting a building—would be in violation of a law, rule, or
regulation, because that “use[d] to be a contractor function and may still be.”
IAF, Tab 5 at 27. The appellant stated that around noon that day he told the
official who proposed the February 2018 suspension (hereinafter, “the second
proposing official”) that he was going to a particular part of the base “for
investigative reasons.”7 Id. He also asserted that the second suspension was
taken in reprisal for his whistleblowing disclosure about the striping and painting
work. Id. at 12-13, 27.
Although the appellant indicated that he investigated whether the order
regarding painting was in violation of a law, rule, or regulation, id. at 27, he has
not identified any provision that a reasonable person in his position might have
believed the agency violated. Nor do his allegations clearly implicate an
identifiable violation of law, rule, or regulation. Accordingly, we find that the
appellant failed to nonfrivolously allege that he made a protected disclosure
evidencing a violation of law, rule, or regulation. See Ayers, 123 M.S.P.R. 11,
¶ 24. We further find that the appellant has failed to nonfrivolously allege that he
disclosed a matter that a reasonable person in his position would believe
evidenced gross mismanagement, a gross waste of funds, an abuse of authority, or
7 The second proposing official stated that the appellant told him he was going to that
particular part of the base for an appointment, which the second proposing official
assumed concerned his grievance or EEO activity. IAF, Tab 12 at 72. The record is
unclear as to whom the appellant alleges he made his disclosure, or what, precisely, he
said when he made the disclosure. 9
a substantial and specific danger to public health or safety. See Salerno,
123 M.S.P.R. 230, ¶¶ 5-6.
The appellant failed to nonfrivolously allege that his filing of an EEO complaint
was protected activity under 5 U.S.C. § 2302(b)(9)(A)(i).
Under 5 U.S.C. § 2302(b)(9)(A), it is a protected activity to exercise “any
appeal, complaint, or grievance right granted by any law, rule, or regulation—
(i) with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)]; or (ii) other
than with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)].” However,
of the two provisions, an employee or applicant for employment may
seek corrective action from the Board only for protected activity under
5 U.S.C. § 2302(b)(9)(A)(i). 5 U.S.C. § 1221(a); Mudd v. Department of
Veterans Affairs , 120 M.S.P.R. 365, ¶ 7 (2013). In other words, the appellant
may seek corrective action from the Board for reprisal for filing an
EEO complaint only if the EEO complaint itself was seeking to remedy a
violation of 5 U.S.C. 2302(b)(8).
In his OSC complaint, the appellant indicates that he filed an EEO
complaint on December 27, 2017. IAF, Tab 4 at 6. The record contains a copy of
the agency’s notice to the appellant acknowledging the complaint, but that notice
does not indicate what the complaint pertained to. IAF, Tab 11 at 13-15. The
EEO complaint itself is not in the record, and the appellant has failed to specify
what he stated in the complaint.8 Accordingly, we find that the appellant has
failed to nonfrivolously allege that his filing of the EEO complaint sought to
remedy a violation of 5 U.S.C. § 2302(b)(8), and therefore it does not constitute
protected activity under 5 U.S.C. § 2302(b)(9)(A)(i).
8 In a May 15, 2018 filing with the Board, the appellant provided two affidavits
apparently filed in his EEO complaint earlier that month. IAF, Tab 5 at 10-14, 25-30.
Among other things, he indicated that he was retaliated against for his whistleblowing
disclosures against the proposing official in his second suspension. However, the
affidavits do not explain whether the appellant asserted in his December 27, 2017 EEO
complaint or any time prior to May 2018 that he was retaliated against for making a
protected disclosure. Id. at 10-14, 25-30. 10
The appellant nonfrivolously alleged that he engaged in protected activity under
5 U.S.C. § 2302(b)(9)(A)(i) by filing a complaint with the FLRA.
In the complaint he filed with the FLRA, the appellant alleged that the first
deciding official violated “multiple laws,” as well as “base order 12750,” and
engaged in prohibited personnel practices and reprisal. IAF, Tab 8 at 5. He cites
to 5 U.S.C. § 2302 in apparent support of his claim. Id. In a January 28, 2018
statement in the FLRA case, the appellant further explained, among other things,
that the first deciding official violated the Federal statute dealing with unfair
labor practices by disciplining him because he gave information about an assault
and battery charge that he filed after an incident with a coworker at work. IAF,
Tab 5 at 4.
Thus, the appellant’s complaint with the FLRA included a claim that in
reprisal for his disclosures about the workplace assault and battery the
agency disciplined him. Such an agency action would constitute a violation of
5 U.S.C. § 2302(b)(8), which prohibits reprisal for making disclosures about
violations of law, which an assault and battery would clearly constitute.
Therefore, we find that the appellant’s complaint to the FLRA is covered by
5 U.S.C. § 2302(b)(9)(A)(i), and therefore he has nonfrivolously alleged that he
engaged in a protected activity for which he may seek corrective action from the
Board. See Mudd, 120 M.S.P.R. 365, ¶ 7. Nevertheless, for the reasons stated
below, we still find that he failed to establish the Board’s jurisdiction over the
claim.
The appellant has failed to nonfrivolously allege that the prosecution of his FLRA
complaint was a contributing factor in the personnel actions at issue.
The next jurisdictional inquiry is whether the appellant has nonfrivolously
alleged that his protected disclosure or activity was a contributing factor in the
agency’s decision to take the personnel actions at issue. Salerno, 123 M.S.P.R.
230, ¶ 5; Carney, 121 M.S.P.R. 446, ¶ 7; see 5 U.S.C. §§ 1221(e)(1). A protected
disclosure or activity is a contributing factor if it in any way affects an agency’s11
decision to take a personnel action. Dorney v. Department of the Army ,
117 M.S.P.R. 480, ¶ 14 (2012).
One way to establish contributing factor is the so-called knowledge-timing
test. Wadhwa v. Department of Veterans Affairs , 110 M.S.P.R. 615, ¶ 12, aff’d,
353 F. App’x 435 (Fed. Cir. 2009). Under that test, an appellant can prove the
contributing factor element through evidence showing that the official taking the
personnel action knew of the protected 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. Carney, 121 M.S.P.R. 446, ¶ 7; Wadhwa, 110 M.S.P.R. 615,
¶ 12. An appellant may satisfy the knowledge prong of the knowledge-timing test
by proving that the official taking the action had constructive knowledge of the
protected disclosure or activity, even if the official lacked actual knowledge.
See Nasuti v. Department of State , 120 M.S.P.R. 588, ¶ 7 (2014). An appellant
may establish constructive knowledge by showing that an individual with actual
knowledge of the disclosure or activity influenced the official accused of taking
the retaliatory action. Id. An appellant may satisfy the timing prong of the
knowledge-timing test by showing that the personnel action at issue occurred
within 2 years of the protected disclosure or activity. Salerno, 123 M.S.P.R. 230,
¶ 14.
However, contributing factor cannot be established when a personnel
action precedes an appellant’s purported disclosure or protected activity. See
El v. Department of Commerce , 123 M.S.P.R. 76, ¶ 10 (2015). Here, the
appellant filed his FLRA complaint on October 16, 2017, and it therefore could
not have contributed to the agency’s decision on October 4, 2017, to suspend
the appellant effective October 10, 2017.9 IAF, Tab 8 at 5, Tab 12 at 11-16; see
El, 123 M.S.P.R. 76, ¶ 10.
9 Similarly, the appellant’s purported disclosure in November 2017 and his filing of an
EEO complaint in December 2017 could not have contributed to his first suspension in
October 2017. IAF, Tab 5 at 27, Tab 11 at 13-15; see El, 123 M.S.P.R. 76, ¶ 10.12
Furthermore, the appellant has failed to allege that anyone who was
involved in suspending him in February 2018, such as the proposing or deciding
officials, were aware—before that suspension was affected—that he had filed a
complaint with the FLRA. In addition, the appellant has not alleged that an
individual with knowledge of his FLRA complaint influenced the proposing or
deciding officials. We will not infer knowledge of the appellant’s protected
activities to any agency official based only on a closeness in time between an
activity and a personnel action that the appellant conclusory alleges was
retaliatory. See Kerrigan v. Merit Systems Protection Board , 833 F.3d 1349,
1355 (Fed. Cir. 2016) (holding that, even at the jurisdictional phase where the
employee’s burden is significantly lower than at the merits stage, it is not
appropriate to infer knowledge on the part of any agency officials based only on
the closeness in timing and the appellant’s conclusory allegation that their actions
were done in retaliation). Accordingly, we conclude that the appellant failed,
under the knowledge-timing test, to nonfrivolously allege that his
FLRA complaint was a contributing factor to his February 2018 suspension.
Stiles v. Department of Homeland Security , 116 M.S.P.R. 263, ¶ 23 (2011)
(finding that the appellant failed to establish contributing factor through
the knowledge-timing test where he failed to show that the any of the officials
involved in his nonselection were aware of his protected disclosure).
The knowledge-timing test is not the only way for an appellant to satisfy
the contributing factor element. 5 U.S.C. § 1221(e)(1); Stiles, 116 M.S.P.R. 263,
¶ 24. If the appellant fails to satisfy that test, we must consider other evidence,
such as that 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 those individuals had a desire
or motive to retaliate against the appellant. Id.
As previously indicated, the agency suspended the appellant in
February 2018 because in November 2017 he engaged in inappropriate behavior13
by raising his voice and becoming irate when confronting a Contracting Officer
about the individuals performing painting on the base. IAF, Tab 12 at 57, 64-67,
70. In support of its action, the agency’s evidence includes the Contracting
Officer’s written statement to a police officer attesting to the appellant’s
behavior, as well as the police officer’s report that other individuals also reported
that they observed the incident. Id. at 67, 70-71. Thus, the strength of the
agency’s case vitiates against a finding of contributing factor. Furthermore, the
appellant’s FLRA complaint was not personally directed at the proposing or
deciding officials of the appellant’s February 2018 suspension, further supporting
a finding of no contributing factor. IAF, Tab 5 at 4. Finally, the appellant has
not identified a motive for the proposing and deciding officials in the second
suspension to retaliate against him. Thus, accepting all of the appellant’s
nonfrivolous allegations as true, he has failed to establish that his FLRA
complaint was a contributing factor in the agency’s decision to suspend him in
February 2018.
The appellant has failed to establish any other basis for granting the petition for
review.
The appellant has attached a few documents on review, including OSC’s
April 26, 2018 close-out letters, the agency’s first-step grievance decision, and
SF-50s documenting his suspensions. PFR File, Tab 3 at 4-12. Only one of the
documents attached on review—a copy of a September 10, 2017 email from the
appellant to agency officials regarding his work leader allegedly pushing him—
was not a part of the record below. Id. at 11. First, we note that evidence already
in the record is not new. Meier v. Department of the Interior , 3 M.S.P.R. 247,
256 (1980). Second, the Board will normally only consider evidence submitted
for the first time on review upon a showing that it was previously unavailable
despite the petitioner’s due diligence. See Banks v. Department of the Air Force ,
4 M.S.P.R. 268, 271 (1980); 5 C.F.R. § 1201.115(d). The appellant has not
explained why he could not have submitted the September 10, 2017 email before14
the administrative judge. In any event, the documents do not provide a basis for
granting the petition for review because the appellant has not shown that they are
of sufficient weight to warrant an outcome different from that of the initial
decision. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980).
Additionally, the appellant asserts on review that the agency is supporting
its case against him with two “false” witnesses. PFR File, Tab 3 at 3. His
allegation is immaterial to whether he has established the Board’s jurisdiction
over this IRA appeal. We also note that the appellant has referred to his two
suspensions as being “back to back,” IAF, Tab 4 at 8-9, and indicated in his
initial appeal that he was challenging a suspension of more than 14 days, IAF,
Tab 1 at 4. To the extent that the appellant argues that the Board should
consolidate his two suspensions for jurisdictional purposes, we decline to do so
because he has not shown that the suspensions were based on the same reason and
that the agency attempted to circumvent Board jurisdiction by imposing multiple
suspensions of 14 days or less. See Palmer v. Department of Transportation ,
109 M.S.P.R. 438, ¶¶ 5-6 (2008). For the reasons stated above, we find that the
appellant has failed to establish the Board’s jurisdiction over this IRA appeal.
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
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 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. 15
jurisdiction. 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. The16
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 file17
with the EEOC no later than 30 calendar days after your representative 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: 18
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Walker_James_L_SF-1221-18-0510-W-1__Final_Order.pdf | 2024-05-21 | JAMES L. WALKER v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-1221-18-0510-W-1, May 21, 2024 | SF-1221-18-0510-W-1 | NP |
1,404 | https://www.mspb.gov/decisions/nonprecedential/Mendenhall_Linda_A_AT-0752-15-0718-C-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LINDA ANN MENDENHALL,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-0752-15-0718-C-1
DATE: May 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stanford J. Mendenhall , Camden, Alabama, for the appellant.
Toby V. Davis , Esquire, and Scott M. Merrifield , 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
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 erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. We MODIFY the
administrative judge’s analysis of the agreement’s clean record and neutral
reference provisions and AFFIRM the remainder of the initial decision.
BACKGROUND
The parties entered into a settlement agreement resolving the appellant’s
joined Board appeals. Mendenhall v. Department of the Army , MSPB Docket
No. AT-0752-15-0718-I-2, Appeal File (I-2 AF), Tab 6, Initial Decision (ID)
at 1-2. The administrative judge entered the agreement into the record for
enforcement purposes and dismissed the joined appeals as settled. Id. The initial
decision became final after neither party filed a petition for review. ID at 3.
In relevant part, the agency agreed to cancel the appellant’s removal and
issue a Standard Form (SF) 50 designating her separation as a resignation; pay
her $45,000; provide her a neutral reference from a designated point of contact
(DPOC); and remove documents from her official personnel file (OPF) pertaining
to other personnel actions. I-2 AF, Tab 7 at 2-4. In exchange, the appellant
agreed to waive her Board appeal rights. Id. at 3.
The appellant filed a petition to enforce the settlement agreement.
Mendenhall v. Department of the Army , MSPB Docket No. AT-0752-15-0718-
C-1, Compliance File (CF), Tab 1. The agency showed that it had complied with
each of its aforementioned obligations under the agreement. CF, Tab 7. In reply,
3
the appellant disputed the agency’s evidence and reasserted her claims of breach.
CF, Tab 11 at 4-28. She also challenged other actions taken by the Department of
the Air Force (AF), her subsequent employer. Id. at 4-42.
After considering the parties’ submissions and determining that the Board
had authority to enforce the settlement agreement, the administrative judge issued
a compliance initial decision, denying the appellant’s petition for enforcement.
CF, Tab 12, Compliance Initial Decision (CID) at 1-2 n.2. He determined that the
agreement did not contain an alleged gag order provision and that the agency
showed it had complied with the neutral reference provision. CID at 2-3. He
further found that the AF’s investigation into her employment history was not a
basis for finding noncompliance because it was not a party to the agreement. CID
at 3 n.2. He did not address the appellant’s other claims of wrongdoing by the
AF.
The appellant has filed a compliance petition for review, alleging that the
agency breached the clean record and neutral reference provisions. Compliance
Petition for Review (CPFR) File, Tab 1. The agency has filed a response. CPFR
File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has the authority to enforce a settlement agreement that, like the
agreement in this case, has been entered into the record in the same manner as
any final Board decision or order. Haefele v. Department of the Air Force ,
108 M.S.P.R. 630, ¶ 7 (2008). As the party asserting noncompliance, the
appellant bears the burden of proving by preponderant evidence that the agency
breached the settlement agreement. Id. However, following the appellant’s filing
of a petition for enforcement, the agency must produce relevant, material
evidence of its compliance with the agreement. Id.
4
The appellant did not prove that the agency breached the clean record provision.
Below, the appellant alleged that the agency failed to rescind or expunge
her personnel records. CF, Tab 11 at 5-6, 11. She also alleged that the agency
disclosed improper information in violation of what she termed the settlement’s
“gag order,” which she interpreted as prohibiting the agency from disclosing any
information about the settlement agreement.2 Id. at 6-7, 11-12. We construe the
appellant’s arguments as a claim that the agency violated the agreement’s
non-disclosure provision. The appellant raises similar arguments on review.
CPFR File, Tab 1 at 6 -7.
The settlement agreement does not contain a non-disclosure provision as
broad as the appellant contends. However, both the U.S. Court of Appeals for the
Federal Circuit and the Board have construed settlement agreements that call for
rescinding a for-cause removal and issuing an SF-50 that reflects a resignation to
also contain implied provisions for expunging removal -related documents from
the employee’s OPF and non-disclosure of the rescinded action to third parties—
in other words, a “clean record” settlement. Conant v. Office of Personnel
Management, 255 F.3d 1371, 1376 (2001);3 Doe v. Department of the Army ,
116 M.S.P.R. 160, ¶ 8 (2011). The agreement expressly limited the agency’s
expungement obligations to the specified personnel actions, including the
appellant’s removal. I -2 AF, Tab 7 at 2-4. Pursuant thereto, the agency
expunged the relevant personnel records from the appellant’s electronic OPF.
CF, Tab 7 at 18-22, 24, 27. We further find that, to the extent the implied
non-disclosure provision exists and regardless of whether we rely on the agency’s
2 Similarly, the appellant argues that the agency violated “the Clean Record Act,” which
does not describe a provision of law, but rather is her shorthand reference for a Board
report, i.e., U.S. Merit Systems Protection Board, Clean Record Settlement Agreements
and the Law (2013). CPFR File, Tab 1 at 10; CF, Tab 11 at 5-6 & n.1.
3 As we observed in Allen, any reservations that we might entertain about Conant are
beside the point since we are bound by decisions of the Federal Circuit. Allen v.
Department of Veterans Affairs , 112 M.S.P.R. 659, ¶ 15 (2009), aff’d, 420 F. App’x 980
(Fed. Cir. 2011).
5
or the appellant’s allegedly contradictory evidence, which we discuss in more
detail below, there is no indication in the record that the agency disclosed any
prohibited information. CF, Tab 7 at 11-12, Tab 11 at 46, 49-50, 55.
The appellant did not prove that the agency breached the neutral reference
provision.
On review, the appellant reasserts her contention that the DPOC refused to
contact “many hiring officials” to provide a reference in violation of the
agreement and in reprisal for whistleblowing. CPFR File, Tab 1 at 2, 6-7, 10.
She argues further that the administrative judge erred in relying on the agency’s
evidence of compliance showing otherwise. Id. at 7.
The agency submitted a sworn declaration from the DPOC asserting that he
only received one request for the appellant’s employment information and, in
response to that request, disclosed to the appellant’s AF supervisor the title of the
appellant’s position held with the agency, the dates of her employment, and that
she resigned from her position. CF, Tab 7 at 11-12. As the administrative judge
found, the information he purportedly disclosed was of the type expressly
permitted by the settlement agreement. CID at 2-3; I-2 AF, Tab 7 at 4. In
response, the appellant submitted a sworn statement that the AF supervisor
prepared in another matter. CF, Tab 11 at 45-55. Therein, he stated that, after
determining that the appellant was not competently performing the duties of her
position, he sought substantive information about the appellant’s prior
employment; however, the DPOC never “returned [his] calls.” Id. at 49-50. The
administrative judge did not expressly discuss this purported evidentiary conflict;
therefore, we consider it on review.
The appellant’s evidence does not refute the DPOC’s assertion that he only
received one reference request. CF, Tab 7 at 11-12. Sworn statements that are
not rebutted are competent evidence of the matters asserted therein. Truitt v.
6
Department of the Navy , 45 M.S.P.R. 344, 347 (1990).4 Moreover, the appellant
has not shown that the agency’s evidence is not credible. Although the
declarations contradict each other in some respects, both statements are sworn,
first-hand accounts signed long after the purported calls were made, and there is
no other record evidence that further bolsters or discredits them.5 CF, Tab 7
at 11-12, Tab 11 at 46, 49-50, 55; see Borninkhof v. Department of Justice ,
5 M.S.P.R. 77, 83 (1981) (considering, among other factors, the consistency of
the account with other record evidence and the absence of contradictory evidence
to determine the appropriate weight to ascribe hearsay evidence). We therefore
find that the agency’s evidence is at least as worthy of belief as the appellant’s.
When evidence is in equipoise, the party with the burden of persuasion has failed
to meet that burden. See Cook v. Department of the Army , 105 M.S.P.R. 178,
¶ 19 (2007) (citing Knudsen v. Department of Health and Human Services ,
35 F.3d 543, 550 (Fed. Cir. 1994)). In a compliance matter, the overall burden of
persuasion on the issue of breach remains with the appellant. Turner v.
Department of Homeland Security , 102 M.S.P.R. 330, ¶ 5, review dismissed ,
201 F. App’x 770 (Fed. Cir. 2006). Thus, we find that the appellant has not met
her burden to show that the DPOC failed to respond to any other reference
requests. As a result, we also find that the appellant’s reprisal claim related
thereto, CPFR File, Tab 1 at 2-3, is without merit, see generally Kuykendall v.
Department of Veterans Affairs , 68 M.S.P.R. 314, 329 (1995) (finding that claims
4 The Board may substitute its own credibility findings for an administrative judge’s
explicit or implicit credibility findings when, as here, such findings are not based on the
demeanor of witnesses . Deskin v. U.S. Postal Service , 76 M.S.P.R. 505, 510 (1997);
see Haebe v. Department of Justice , 288 F.3d 1288, 1302 (Fed. Cir. 2002).
5 The appellant also submits a spreadsheet she created, which purportedly reflects
numerous nonselections, but in fact contains nearly no substantive information. CPFR
File, Tab 1 at 13-15. We decline to consider this evidence. See Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980) (finding that, generally, 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).
7
of reprisal may properly be raised in a petition for enforcement to show that the
agency breached a settlement agreement by acting in bad faith).
At most, the appellant’s evidence contradicts the DPOC’s assertion that he
provided the identified employment information to her AF supervisor. CF, Tab 7
at 11-12, Tab 11 at 49-50, 55. However, that conflict is immaterial. I -2 AF,
Tab 7 at 2, 4. In construing a settlement agreement, the Board looks to the terms
of the agreement to determine the intent of the parties at the time they contracted.
Sweet v. U.S. Postal Service , 89 M.S.P.R. 28, ¶ 9 (2001). To the extent that the
DPOC was required to respond to reference requests from prospective employers,
the AF supervisor’s request was not of the type contemplated by the agreement.
Id.; see Hoffmann v. General Services Administration , 57 M.S.P.R. 502, 507
(1994) (observing that the agency’s failure to respond to a reference request in
accordance with the settlement agreement would be excused if it proved that the
reference request was not from a bona fide employer). Accordingly, we agree
with the administrative judge that the appellant did not prove by preponderant
evidence that the agency failed to comply with the neutral reference provision or
any other aspect of the settlement agreement.
The appellant’s other allegations of error do not provide a basis for review.
The appellant alleges that the administrative judge denied her a hearing or
other opportunity to develop the record. CPFR File, Tab 1 at 16. She did not
request a hearing below. CF, Tabs 1, 11. In any event, the decision to hold a
hearing in a compliance matter is discretionary; the appellant has no right to a
hearing on her petition for enforcement. Knight v. Department of Treasury ,
113 M.S.P.R. 548, ¶ 16 (2010); 5 C.F.R. § 1201.183(a)(3). Moreover, she has not
shown that the administrative judge otherwise prevented her from submitting
argument and evidence in support of her claim. Rather, we find that he properly
notified her of her burden of proving noncompliance and allowed her the
opportunity to engage in discovery and supplement the record. CF, Tab 2 at 1-3.
He also considered the appellant’s additional submission, even though it was
8
untimely. CID at 2 n.1. Therefore, the appellant has not shown that the
administrative judge erred in this regard.
Accordingly, we deny the appellant’s petition for review and affirm the
initial decision, as modified.
NOTICE OF APPEAL RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read 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
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
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 file
10
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
11
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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.
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
12
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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. | Mendenhall_Linda_A_AT-0752-15-0718-C-1__Final_Order.pdf | 2024-05-21 | LINDA ANN MENDENHALL v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-0752-15-0718-C-1, May 21, 2024 | AT-0752-15-0718-C-1 | NP |
1,405 | https://www.mspb.gov/decisions/nonprecedential/Stenson_Lorne_K_CH-1221-18-0492-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LORNE STENSON,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
CH-1221-18-0492-W-1
DATE: May 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lorne Stenson , Elk Grove, Illinois, pro se.
Harvey Smith , 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
denied his request for corrective action in this 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
concerning the appellant’s August 13, 2013 alleged protected disclosure and to
address the appellant’s claim of reprisal for his protected activity under 5 U.S.C.
§ 2302(b)(9)(A)(i),2 we AFFIRM the initial decision.
BACKGROUND
During the relevant time, the appellant was employed by the agency as a
Deputy United States Marshal (DUSM) for the Northern District of Illinois.
Initial Appeal File (IAF), Tab 1 at 1, Tab 11 at 4. On July 24, 2018, the appellant
filed an IRA appeal with the Board alleging that, in reprisal for his various
alleged protected disclosures and protected activity, the agency subjected him to
the following alleged personnel actions: (1) removal from working warrants;
(2) a temporary reassignment to the Rockford, Illinois office beginning
October 21, 2013; (3) a February 2014 order to undergo psychiatric testing; (4) a
March 30, 2015 14-day suspension; (5) a September 9, 2016 1-day suspension;
(6) retaliatory investigations; and (7) a hostile work environment.
IAF, Tabs 1, 101.
After holding the appellant’s requested hearing, the administrative judge
issued an initial decision denying the appellant’s request for corrective action.
IAF, Tab 120, Initial Decision (ID). The administrative judge found that the
2 As discussed herein, we also modify the initial decision by vacating additional
findings made by the administrative judge.2
appellant met his burden of proving that he made a protected disclosure that was a
contributing factor in some of the alleged personnel actions.3 ID at 37-55.
In particular, the administrative judge found that the appellant proved by
preponderant evidence that he made a protected disclosure concerning an abuse of
authority when he testified in September 2012 on behalf of another DUSM, S.L.,
who had been indicted by a Federal grand jury for use of excessive force against
two individuals. ID at 2-3, 38-40. The appellant’s testimony in this case
concerned exculpatory evidence, which he asserted he had not disclosed to the
defense team because of emails from U.S. Marshals Service management that
limited employees’ contact with S.L.’s counsel and threatened discipline for
employees who did not comply. ID at 3-4. The administrative judge found that
the appellant’s testimony evidenced a reasonable belief of an abuse of authority
by agency officials, whose emails were found to have interfered with S.L.’s
constitutional rights. ID at 38 -40. Nonetheless, the administrative judge found
that the agency proved by clear and convincing evidence that it would have taken
the same personnel actions absent the appellant’s protected disclosure. ID
at 55-99.
The appellant has filed a petition for review, which the agency has
opposed. Petition for Review (PFR) File, Tabs 4, 6.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge erred in finding that the appellant failed to prove that
his August 13, 2013 report of excessive force amounted to a protected disclosure.
Protected disclosures are those that an employee reasonably believes
evidence any 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. 5 U.S.C. § 2302(b)(8)(A). Whether one has a reasonable
belief is determined by an objective test: whether a disinterested observer with
3 The administrative judge found that the appellant failed to prove that his
August 13, 2013 report of excessive force or his various other complaints that another
deputy was harassing him constituted protected disclosures. ID at 40-53.3
knowledge of the essential facts known to and readily ascertainable by the
employee could reasonably conclude that the matters disclosed show one of the
categories of wrongdoing set out in the statute. Lachance v. White , 174 F.3d
1378, 1381 (Fed. Cir. 1999).
The appellant alleges that he disclosed a violation of law, rule, or
regulation when he reported that Deputy R.K., a fellow DUSM, used excessive
and improper force on a prisoner he was transporting pursuant to a “drag order”
issued by a judge to produce the prisoner in court. ID at 12, 40. In his report,
the appellant asserted that the prisoner was excessively and improperly slammed
into the basement wall, dragged on the ground by the leg chains, picked up and
thrown from the hallway into the air onto the elevator floor, landing on his back
in a “very harsh and painful manner,” and kicked in the back while lying on the
elevator floor. IAF, Tab 12 at 40. The administrative judge found that, although
the appellant asserted that he was trained not to drag a prisoner and several
witnesses testified that the best practice would have been to utilize a wheelchair,
the appellant failed to identify any agency rule or regulation he contends was
violated. ID at 40-41. Thus, the administrative judge found that the appellant
failed to prove by preponderant evidence that he reasonably believed that he was
disclosing a violation of any agency use of force policy. Id. The administrative
judge also considered whether the appellant reasonably believed that he was
disclosing the use of excessive force in violation of the prisoner’s constitutional
rights. ID at 41. However, she found that the appellant failed to show that a
disinterested officer could have reasonably concluded that Deputy R.K. used
deliberate and objectively unreasonable force. ID at 41-47.
On review, the appellant asserts that the administrative judge erred in
considering his motive for making the disclosure and in requiring him to prove
that a violation of law actually occurred. PFR File, Tab 4 at 9, 12, 14. We agree
with the appellant that the administrative judge imposed too high a burden. The
appellant need not prove that an actual violation of law occurred, rather, he must4
show that the matter disclosed was one that a reasonable person in his position
would have believed evidenced a violation of one of the categories of wrongdoing
under 5 U.S.C. § 2302(b)(8). See, e.g., McCarthy v. International Boundary and
Water Commission , 116 M.S.P.R. 594, ¶ 34 (2011), aff’d 497 F. App’x 4 (Fed.
Cir. 2012). Here, the administrative judge’s findings conflate the issues of the
appellant’s reasonable belief that a violation of law occurred and proof that a
violation of law actually occurred. As a result, the administrative judge
improperly concluded that the deputies “did not use excessive force, or violate
any law, rule, or regulation, in the transport of [the] prisoner.” ID at 43. Such
findings are beyond the scope of the Board’s review in an IRA appeal because the
whistleblower protection statutes do not give the Board the right to review the
substance of an appellant’s whistleblowing claims or make a determination as to
whether a violation of law actually occurred. Weber v. Department of the Army ,
9 F.3d 97, 101 (Fed. Cir. 1993); McCarthy, 116 M.S.P.R. 594, ¶ 37.
The administrative judge also improperly discounted testimony of other
deputies concerning the reasonableness of the force used by Deputy R.K. because
she determined that their opinions that the best practice would have been to
transport the prisoner using a wheelchair were “categorically beneath the
threshold of constitutional due process.” ID at 46. Such a finding improperly
imposed a heightened burden on the appellant to prove that a constitutional
violation occurred. Moreover, we find that the testimony of other deputies goes
to the central issue of whether a reasonable deputy would have considered the
actions of Deputy R.K. to be a violation of law, rule, or regulation. See
Greenspan v. Department of Veterans Affairs , 464 F.3d 1297, 1305 (Fed. Cir.
2006) (considering that others shared the appellant’s beliefs as evidence those
beliefs were reasonable). Significantly, the deputies did not testify solely that
using a wheelchair to transport the prisoner instead of dragging him would have
been a better practice, but rather, they also testified that they were not trained to5
and they would not have dragged the prisoner under those circumstances and/or
that they believed the force used by Deputy R.K. was excessive and improper.
Specifically, Deputy J.M., who was present during the prisoner transport at
issue, testified that this prisoner was a known passive resistor and the day prior
they had utilized a wheelchair to transport the prisoner to court.
Hearing Transcript (HT) at 184-85. He further testified that, during the transport
in question, he stated to Deputy R.K. something to the effect of, “I forgot that
[this prisoner] is on here, let me go back upstairs and get the wheelchair” and that
he and another deputy were going to go get a wheelchair, which would have taken
less than a minute, but as they walked towards the elevator to do so, Deputy R.K.
pulled the prisoner off of the bus and began transporting him. HT at 185, 193.
Deputy J.M. also testified that he believed the force used by Deputy R.K. against
the prisoner was improper and excessive and he was scared to report the incident
due to fear of retaliation from his supervisors. HT at 192-93. Similarly,
Deputy M.B. testified that, in his 21 years at the agency, he had never seen
something like that happen and that he thought the force used was excessive.
HT at 263. Additionally, Deputies J.M. and M.B. as well as two other deputies
and Chief Deputy J.K. all testified that they were not trained to drag or carry a
passively resisting prisoner by his leg chains or to drag a prisoner on his back
generally. HT at 33, 87-88, 141, 174, 184, 240-41, 807. Thus, although
management officials and the Department of Justice Civil Rights Division
concluded that there was no excessive force used, IAF Tab 12 at 17; HT at 420,
493, 743, 747-48, we find that the shared perception by other deputies of
an improper use of force, even if inaccurate, weighs in favor of a finding that the
appellant’s belief was reasonable, see Ayers v. Department of the Army ,
123 M.S.P.R. 11, ¶ 22 (2015); see also Greenspan, 464 F.3d at 1305; Parikh v.
Department of Veterans Affairs , 116 M.S.P.R. 197, ¶ 17 (2011) (noting that the
standard is whether the appellant had a reasonable belief, not whether his
reasonable belief was the only one possible). 6
We further find that the administrative judge erred in finding that, because
the appellant’s motive for making the disclosure was to harm Deputy R.K., the
appellant could not have reasonably believed that he witnessed a display of
excessive force. ID at 47. A disclosure is not excluded from protection because
of an appellant’s motive in making it. 5 U.S.C. § 2302(f)(1)(C); see Parikh,
116 M.S.P.R. 87, ¶ 18 (finding evidence that the appellant’s motivation in
disclosing an alleged misdiagnosis of a patient was not out of his concern for the
patient but rather to tarnish the reputation of his coworker to be immaterial to the
issue of whether the appellant reasonably believed that his disclosure evidenced a
substantial and specific danger to public health or safety). We therefore find that
the appellant reasonably believed that his disclosure regarding Deputy R.K.
dragging the prisoner evidenced a violation of law, rule, or regulation.4
However, for the reasons described in the initial decision, we agree with
the administrative judge that the appellant failed to prove that he reasonably
believed that Deputy R.K. slammed the prisoner into the basement wall, picked
him up and threw him into the elevator, or kicked him in the back. ID at 42-44.
Based on the video evidence of the prisoner’s transport, IAF, Tab 68, we agree
with the administrative judge that a reasonable person could not have concluded
that the prisoner was slammed into the wall, thrown into the elevator, or kicked in
the back, ID at 42-44. Thus, regardless of whether a reasonable person would
have considered such conduct to evidence excessive force, the video reflects that
a reasonable person would not find that such conduct actually occurred. Rather,
these allegations appear to be, as the administrative judge found, an exaggeration
of the events in question. ID at 44.
4 Although the appellant did not clearly identify a specific law, rule, or regulation, we
find that an alleged use of excessive force on a prisoner so obviously implicates a
violation of law, rule, or regulation that the appellant need not have identified a specific
law, rule, or regulation that he contends was violated. See, e.g., Benton-Flores v.
Department of Defense , 121 M.S.P.R. 428, ¶ 10 (2014 ); Daniels v. Department of
Veterans Affairs, 105 M.S.P.R. 248, ¶ 12 (2007 ), disagreed with on other grounds by
Delgado v. Merit Systems Protection Board , 880 F.3d 913 (7th Cir. 2018 ).7
The appellant engaged in protected activity under 5 U.S.C. § 2302(b)(9) by filing
a complaint with OSC.
On review, the appellant asserts that the administrative judge erred in
failing to analyze his protected activity under 5 U.S.C. § 2302(b)(9) as distinct
from his protected disclosures under section 2302(b)(8). PFR File, Tab 4 at 5.
We agree. The administrative judge found that the appellant filed an OSC
complaint on October 20, 2013, which he amended until OSC closed its
investigation on June 7, 2018. ID at 5-6; IAF, Tab 1 at 40. In his OSC
complaint, the appellant alleged, among other things, reprisal for his August 13,
2013 protected disclosure and his 2012 testimony in S.L.’s trial. Having found
that the appellant’s 2012 testimony constituted a protected disclosure, the
administrative judge appears to have considered whether the agency retaliated
against the appellant based on his October 2013 disclosure to OSC, solely as it
pertained to the appellant’s 2012 testimony. ID at 40.
However, the filing of an OSC complaint itself constitutes protected
activity under 5 U.S.C. § 2302(b)(9)(A)(i).5 Thus, we agree with the appellant
that the administrative judge failed to analyze whether the agency retaliated
against him based on his protected activity of filing an OSC complaint and we
modify the initial decision accordingly. However, as set forth below, we find that
the appellant is not entitled to corrective action regarding such a claim for the
following reasons: (1) the appellant’s removal from warrants and reassignment
predated the filing of his OSC complaint; (2) the appellant failed to prove that his
protected activity of filing an OSC complaint was a contributing factor in his
14-day suspension; and (3) the agency proved by clear and convincing evidence
5 The appellant made several extensive filings purporting to show information he raised
before OSC between filing his complaint in 2013, and the date OSC closed its
investigation in 2018. IAF, Tabs 70-73, 80. In one of these submissions, he alleged
that the agency was retaliating against him for having filed the OSC complaint. IAF,
Tab 73. Accordingly, we find that he provided OSC with a sufficient basis to pursue an
investigation into this allegation, and he therefore exhausted his remedies with respect
to it. See Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 10. 8
that it would have ordered the appellant to undergo a psychological evaluation
and issued him a 1 -day suspension absent the appellant’s OSC complaint.
To the extent the appellant established that his protected disclosures or activity
were a contributing factor in the agency’s personnel actions, the agency met its
burden of proving that it would have taken the same personnel actions absent the
appellant’s protected disclosures and protected activity. 6
To prevail on the merits of an IRA appeal, an appellant must meet his
initial burden of establishing by a preponderance of the evidence that his
whistleblowing activity was a contributing factor in the personnel action(s) in
dispute. See 5 U.S.C. § 1221(e)(1); Mausser v. Department of the Army ,
63 M.S.P.R. 41, 43 (1994). The appellant “may demonstrate that the disclosure
or protected activity was a contributing factor in the personnel action through
circumstantial evidence, such as evidence that—(A) the official taking the
personnel action knew of the disclosure or protected activity; and (B) the
personnel action occurred within a period of time such that a reasonable person
could conclude that the disclosure or protected activity was a contributing factor
in the personnel action.” 5 U.S.C. § 1221(e)(1)(A), (B).
Even if an appellant establishes that he made protected disclosures that
were a contributing factor to the agency’s personnel action, the Board will not
order corrective action if the agency can show by clear and convincing evidence
that it would have taken the action absent the protected disclosures. 5 U.S.C.
§ 1221(e)(2); Lu v. Department of Homeland Security , 122 M.S.P.R. 335, ¶ 7
(2015). 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; it is a higher standard than the “preponderance of the evidence”
6 The administrative judge found that the appellant failed to show that he suffered a
significant change in working conditions based on his claim of a hostile work
environment or that he was subjected to a nondisclosure policy. ID at 92-96. The
appellant does not challenge these findings on review, and we discern no error in the
administrative judge’s analysis. 9
standard. Sutton v. Department of Justice , 94 M.S.P.R. 4, ¶ 18 (2003), aff’d,
97 F. App’x 322 (Fed. Cir. 2004); 5 C.F.R. § 1209.4(e).
In determining whether an agency has met this burden, the Board will
consider the following factors: (1) the strength of the agency’s evidence in
support of the action; (2) the existence and strength of any motive to retaliate on
the part of the agency officials who were involved in the decision; and (3) any
evidence that the agency takes similar actions against employees who are not
whistleblowers but who are otherwise similarly situated. Lu, 122 M.S.P.R. 335,
¶ 7 (citing Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir.
1999)). The Board does not view these factors as discrete elements, each of
which the agency must prove by clear and convincing evidence. Rather, the
Board will weigh the factors together to determine whether the evidence is clear
and convincing as a whole. Id. The Board must consider all of the evidence
presented, including evidence that detracts from the conclusion that the agency
met its burden. Whitmore v. Department of Labor , 680 F.3d 1353, 1368 (Fed.
Cir. 2012).
Because the administrative judge found that the appellant proved that
he made a protected disclosure that was a contributing factor in some of the
alleged personnel actions, she made extensive findings concerning the Carr
factors as appropriate. Although, as set forth below, we modify the
administrative judge’s analysis to address the appellant’s claim of reprisal for
filing an OSC complaint and to consider any motive to retaliate on the part of the
responsible management officials due to the appellant’s August 13, 2013
protected disclosure, we discern no basis for reaching a conclusion different from
the administrative judge.
Removal from Warrants
The appellant contends that, on April 18, 2013, he was removed from
warrants in reprisal for his protected disclosures. ID at 87. We find that the10
appellant’s August 13, 2013 disclosure, which occurred after his removal from
warrants, could not have been a contributing factor in the agency’s decision. See,
e.g., Mason v. Department of Homeland Security , 116 M.S.P.R. 135, ¶ 27 (2011).
For the same reason, we find that the appellant’s removal from warrants could not
have been reprisal for his subsequent protected activity of filing
an OSC complaint on October 20, 2013.
Although unclear, the administrative judge appears to have found both that
the appellant failed to prove that his 2012 testimony was a contributing factor in
his removal from warrants and that the agency met its clear and convincing
burden. ID at 88, 90. We vacate the administrative judge’s finding that the
appellant failed to show that his 2012 testimony was a contributing factor in the
agency’s decision to remove him from warrants, ID at 87-88, because we find that
the appellant established contributing factor via the knowledge/timing test.
The Task Force Commander and Chief Deputy J.K., who were responsible for
removing the appellant from warrants, were aware of the appellant’s
2012 testimony because the appellant raised the issue of his 2012 testimony in a
counseling session with them just prior to his removal from warrants, ID at 87,
and the removal from warrants occurred less than a year after the appellant’s
September 2012 testimony, see Peterson v. Department of Veterans Affairs ,
116 M.S.P.R. 113, ¶ 16 (2011) (stating that a personnel action taken within 1 to
2 years of the appellant’s disclosure satisfies the knowledge/timing test).
Nonetheless, we discern no error in the administrative judge’s findings that
the agency proved by clear and convincing evidence that it would have removed
the appellant from warrants absent his 2012 testimony. ID at 88-90. Regarding
the first Carr factor, the administrative judge found that the agency had strong
evidence that the appellant improperly worked a task force case that he was not
assigned to work and despite his prior involvement in a shooting with the
fugitive, actions which put at risk both the appellant and his fellow deputies who
were assigned to the team working the case. ID at 88-89. After being counseled11
about his improper actions, the appellant again interfered with the task force work
by improperly contacting individuals in a sheriff’s department who were not
members of the task force, requiring the agency to do damage control to alleviate
the concerns of a supervisor from the sheriff’s department, who had specifically
allotted staff and resources to the task force. ID at 89. Regarding the second
Carr factor, the administrative judge found that the Task Force Commander and
Chief Deputy J.K. did not have a motive to retaliate because the Chief arrived at
the Northern District of Illinois after the incident involving S.L. and did not know
of the appellant’s involvement until the appellant told him during the counseling
session regarding the first incident. ID at 77, 87. Similarly, the administrative
judge found no motive on the part of the Task Force Commander, who was not
involved in the appellant’s 2012 testimony, and she credited the testimony of the
Task Force Commander that, beyond the appellant’s assertions during the
counseling session, he had no idea that the appellant had past issues with the
district, which were not his concern. ID at 87.
Although the administrative judge did not address the third Carr factor,
there is no record evidence concerning the agency’s treatment of similarly
situated nonwhistleblowers. Therefore, this factor cannot weigh in the agency’s
favor. See Smith v. General Services Administration , 930 F.3d 1359, 1367 (Fed.
Cir. 2019); Siler v. Environmental Protection Agency , 908 F.3d 1291, 1299 (Fed.
Cir. 2018); Smith v. Department of the Army , 2022 MSPB 4, ¶ 30. Nonetheless,
we find that the strength of the evidence and lack of motive to retaliate outweigh
the lack of comparator evidence. See Rickel v. Department of the Navy , 31 F.4th
1358, 1366 (Fed. Cir. 2022) (noting that the absence of evidence on Carr factor
three “will not necessarily” prevent the agency from meeting its burden)
(emphasis in original). Accordingly, we agree with the administrative judge that
the agency proved by clear and convincing evidence it would have removed the
appellant from warrants absent his 2012 testimony. 12
Order to Undergo Psychological Testing and Temporary
Reassignment
The appellant also contends that the agency’s October 16, 2013 notification
of temporary reassignment to the agency’s Rockford, Illinois office and order that
he undergo a psychological evaluation on February 27 and 28, 2014, constituted
reprisal for his whistleblowing. IAF, Tab 16 at 25, Tab 60 at 7. The
administrative judge found that, although the appellant proved that his
September 2012 testimony was a contributing factor in the agency’s decisions,7
the agency had strong evidence in support of its actions, which outweighed any
motive to retaliate on the part of the appellant’s supervisors. ID at 75-81.
Regarding the first Carr factor, the administrative judge credited testimony of the
appellant’s supervisors that both of these decisions were the result of their
concern about the appellant’s perception that Deputy R.K. was threatening him or
would harm him, which, for them, culminated in the appellant’s October 9, 2013
email to a Judicial Security Inspector.8 ID at 76, 79-80; IAF, Tab 16 at 21. In his
October 9, 2013 email, a response to a mass email containing a news story about
a police officer who was shot at a courthouse, the appellant stated that he feared
for his life at work and believed that one day Deputy R.K. would “lose it and
shoot [him] at work.” IAF, Tab 16 at 21. The administrative judge also noted
that, to make the appellant’s temporary reassignment as comfortable as possible,
the agency built the appellant’s commuting time into his day and provided him
with a Government vehicle for transportation. ID at 79. The appellant does not
dispute the administrative judge’s findings that, in light of the appellant’s belief
and reports that Deputy R.K. would shoot or otherwise harm him, the agency had
7 Although the appellant asserts on review that the administrative judge did not properly
consider a decision to order psychological testing to be a personnel action, PFR File,
Tab 4 at 23, the initial decision reflects that the administrative judge did consider such
a claim, ID at 75.
8 Prior to the appellant’s October 9, 2013 email, the agency had offered the appellant
the option of a voluntary temporary transfer to the Rockford office due to the
appellant’s fear of working with Deputy R.K. IAF, Tab 16 at 11.13
strong evidence in support of these actions, and we discern no error in her
analysis.
Regarding the second Carr factor, the administrative judge found that the
Chief of the Office of Employee Health Programs made the decision to order the
appellant to complete the psychological testing and that there was no evidence
that she knew of the appellant’s status as a whistleblower. ID at 75.
Nonetheless, the administrative judge properly considered whether the appellant’s
supervisors, who made the decision to transfer the appellant and provided the
information to the Office of Employee Health Programs, had a motive to retaliate
based on the appellant’s testimony in S.L.’s case. ID at 75-76. She found no
motive on the part of Chief Deputy J.K., who arrived after S.L.’s case, and,
although Assistant Chief Deputy T.M. was implicated in the appellant’s testimony
in S.L.’s case, the administrative judge found that the strength of the evidence in
support of the agency’s decisions outweighed any motive on his part.
ID at 77-78, 80. She further found that there was no evidence that any
information was presented to the Chief of the Office of Employee Health in a
biased way or to otherwise improperly influence her decision. ID at 78.
We have also considered whether the appellant’s supervisors had a motive
to retaliate based on his August 13, 2013 protected disclosure. As to the order to
undergo psychological testing, we find little motive to retaliate on the part of the
appellant’s supervisors given that, even considering the appellant’s report could
have reflected poorly on them as high-ranking individuals, at the time the
Department of Justice Civil Rights Division had already agreed that there was no
use of excessive force. IAF, Tab 12 at 17. As to the decision to reassign the
appellant, we find that the appellant’s supervisors could have had a slight motive
to retaliate to the extent the appellant’s August 13, 2013 protected disclosure
reflected poorly on them, however, we find that any motive is outweighed by the
strength of the agency’s evidence. As noted above, the administrative judge
found credible the testimony of the appellant’s supervisors that the appellant’s14
October 9, 2013 email to the Judicial Security Inspector that Deputy R.K. would
lose it and shoot him at work, among numerous other reports, made them
concerned about the appellant’s mental health and thus led to the appellant’s
temporary reassignment and consultation with the Employee Health Office.
ID at 76-77, 79-80.
Regarding the third Carr factor, the administrative judge found that Deputy
R.K., a nonwhistleblower, was not similarly situated based on his conduct in
relaying that he felt stressed and had nightmares that the appellant would come
after his family because of the appellant’s continued reports against him.
ID at 78, 80. Nonetheless, the administrative judge noted that Deputy R.K. was
similarly sent for a fitness-for-duty examination using the same procedures that
resulted in the appellant’s psychiatric examination. ID at 78. However, even if
the third Carr factor does not weigh in favor of the agency or even cuts slightly
against it, we agree with the administrative judge that the strength of the evidence
outweighs any slight motive to retaliate and lack of comparator evidence . See
Rickel, 31 F.4th at 1366.
We have also considered whether the agency’s decision to order a
psychological evaluation constituted reprisal for the appellant’s October 2013
OSC complaint to the extent Chief Deputy J.K. and Assistant Chief Deputy T.M.
were aware of the appellant’s OSC complaint, IAF, Tab 10 at 110-11,
and provided information to the Employee Health Office that led to the
psychological testing order, within a few months after the appellant filed his OSC
complaint.9 However, for the reasons described above, we find that the agency
met its clear and convincing burden.
9 The appellant’s October 20, 2013 OSC complaint could not have been a contributing
factor in the agency’s prior October 16, 2013 decision to temporarily reassign him. See,
e.g., Mason, 116 M.S.P.R. 135, ¶ 27. 15
14-day suspension
The agency’s suspension action was based on one charge of conduct
unbecoming, supported by eight specifications. IAF, Tab 11 at 83-97. The first
four specifications relate to the appellant’s August 13, 2013 report of excessive
force by Deputy R.K. Id. at 83-84. Specification 4 charged the appellant as
follows: “On August 13, 2013, you displayed conduct unbecoming a DUSM
when you prepared a USM-201, Field Report that contained a reckless accusation
that [Deputy R.K.] excessively and improperly dragged a prisoner by his leg
chains all the way down the hallway to the USMS cell block office.” Id. at 84.
Because specification 4 of the agency’s conduct unbecoming charge is grounded
in the appellant’s protected disclosure concerning Deputy R.K. dragging the
prisoner, we find that the appellant has shown that his August 13, 2013 disclosure
was a contributing factor to the 14-day suspension.10 Thus, the relevant inquiry is
whether the agency has proved by clear and convincing evidence that it would
have suspended the appellant based on his misconduct supporting the conduct
unbecoming charge, excluding specification 4, which is grounded in the
appellant’s protected disclosure. See Chambers v. Department of the Interior ,
602 F.3d 1370, 1380 (Fed. Cir. 2010) (stating that discipline may not be based on
a protected disclosure); Parikh, 116 M.S.P.R. 197, ¶ 40. Accordingly, we vacate
the initial decision to the extent it found that the agency had strong evidence in
support of its action based on specification 4. Nonetheless, we agree with the
administrative judge that the agency had strong evidence in support of its charge
10 We find that the appellant failed to prove that his OSC complaint was a contributing
factor in the agency’s decision to suspend him for 14 days because there is no evidence
that the deciding official was aware of the fact that the appellant had filed an
OSC complaint, the appellant’s oral and written replies to the proposal alleged solely
reprisal based on the appellant’s 2012 disclosure, IAF, Tab 11 at 17-74, and we
conclude that no other circumstances suggest that the appellant’s OSC complaint was a
contributing factor, considering the strength of the evidence and motive analysis
described herein. Although Chief Deputy J.K. was aware of the appellant’s OSC
complaint, IAF, Tab 10 at 110-11, it is not clear from the record when he became aware
and there is no evidence to suggest that he influenced the deciding official.16
based on the remaining specifications. Although we need not recount all those
findings, we will provide a brief summary.
Specifications 1-3 charged the appellant with making reckless allegations
concerning Deputy R.K.’s transport of the prisoner on August 13, 2013, including
his alleged slamming the prisoner into the basement wall, throwing the
prisoner into the air and onto the elevator floor, and kicking the prisoner.
IAF, Tab 11 at 83-84. We agree with the administrative judge that the appellant’s
bias against Deputy R.K. appears to have colored his perception of the incident in
question and led the appellant to exaggerate the manner in which Deputy R.K.
transported the prisoner. ID at 60. As we previously found, a review of the video
footage reflects that Deputy R.K. did not slam the prisoner into the wall, throw
him, or kick him. Thus, the agency had strong evidence that such allegations
were reckless. Moreover, although we find that, in the same field report,
the appellant made a protected disclosure concerning Deputy R.K. dragging the
prisoner, such a disclosure does not insulate him from discipline based on the
nature of his additional false and reckless statements that Deputy R.K. slammed,
threw, and kicked the prisoner. See Greenspan, 464 F.3d at 1305 (stating that
wrongful or disruptive conduct is not shielded by the presence of a protected
disclosure); Watson v. Department of Justice , 64 F.3d 1524, 1528-30 (Fed. Cir.
1995) (rejecting the appellant’s argument that an adverse action must be based on
facts completely separate and distinct from protected whistleblowing disclosures).
Specifications 5-7 relate to additional instances in which the appellant
reported that he perceived Deputy R.K. to be threatening him or engaging in
alleged misconduct. IAF, Tab 11 at 87-89. For example, in specification 5,
the agency charged the appellant with making a reckless allegation that Deputy
R.K. had damaged his personally owned vehicle after the appellant reported that
his vehicle was scratched while parked at work. Id. at 87. In specification 7,
the agency charged the appellant with responding to an email from a Judicial17
Security Inspector11 in which the appellant made additional unsupported and
damaging remarks about Deputy R.K., including that Deputy R.K. constantly
intimidated, harassed, and threatened him; implied that he had or was prone to
violence and committing violent acts on people or the appellant; and that the
appellant believed that one day Deputy R.K. would “lose it and shoot [him] at
work.” Id. at 89; IAF, Tab 16 at 21. The administrative judge found that the
agency had strong evidence that the appellant’s reports against Deputy R.K. were
reckless because the appellant did not have a basis to reasonably fear for his
personal safety and there was nothing in the record to support the appellant’s
accelerated accusations against Deputy R.K. ID at 66, 69. The administrative
judge further found that no one at the hearing testified that Deputy R.K. intended
to harm the appellant, and even the appellant testified that Deputy R.K. never
threatened to physically harm him. ID at 69. The appellant does not dispute
these findings on review, and we discern no error in the administrative judge’s
determination that the agency had strong evidence in support of its 14-day
suspension.
Regarding the second Carr factor, the administrative judge found no
motive to retaliate by the deciding official, a neutral individual from the agency’s
Discipline Management Section, who had never met the appellant and knew
nothing about him. ID at 71. The administrative judge also credited the deciding
official’s testimony that the appellant’s claims to be a whistleblower in his
written response to the proposal notice did not affect her decision in the case in
any way. Id. On review, the appellant asserts generally that the administrative
judge took an overly narrow view of Carr factor two and failed to consider the
extent to which the appellant’s supervisors may have influenced the proposing
and deciding officials. PFR File, Tab 4 at 24-25. To that end, we have
considered whether Chief Deputy J.K., who was aware of the appellant’s
11 This was a mass electronic message to many employees containing a news article
about a police officer who was shot after a gunman opened fire in a Federal courthouse
in West Virginia. IAF, Tab 16 at 21.18
protected disclosures and OSC complaint and may have initiated the internal
affairs investigation of the appellant that led to his 14-day suspension, had a
motive to retaliate.12 See Whitmore, 680 F.3d at 1371 (stating that, when
applying the second Carr factor, the Board will consider any motive to retaliate
on the part of the agency official who ordered the action, as well as any motive to
retaliate on the part of other agency officials who influenced the decision);
Russell v. Department of Justice , 76 M.S.P.R. 317, 323-24 (1997) (stating that it
is proper to consider evidence regarding an investigation if it is so closely related
to a personnel action that it could have been pretext for gathering evidence to
retaliate against an employee for whistleblowing).
However, we find little motive to retaliate on the part of Chief Deputy J.K.,
who was not Chief at the time of S.L’s trial and was not the subject of the
appellant’s August 13, 2013 disclosure. ID at 77. Although we agree with the
appellant that Chief Deputy J.K. could have had a motive to retaliate to the extent
the appellant’s August 13, 2013 disclosure reflected poorly on him as the Chief,
we find little motive based on the timing. See Whitmore, 680 F.3d at 1370
(recognizing 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”).
The appellant was not referred for investigation of his false report until after the
Department of Justice had already reviewed the video footage of the
August 13, 2013 prisoner transport, found no evidence to support the appellant’s
claims of excessive use of force, and indicated that it agreed that handling the
situation through the agency’s administrative procedures was appropriate.
12 Although Chief Deputy J.K. testified that he only requested the Office of Professional
Responsibility Internal Affairs (IA) to review the appellant’s excessive force complaint
and did not ask them to investigate the appellant for his alleged false report, HT
at 860-61, his name is listed as the complainant in IA’s investigation report concerning
the appellant’s alleged false report and the agency argued as much in its response, IAF,
Tab 9 at 3, Tab 12 at 7. 19
IAF, Tab 12 at 4, 7, 17. Thus, the evidence does not support a finding that Chief
Deputy J.K. initiated an investigation of the appellant in reprisal for his
whistleblowing and we agree with the administrative judge’s finding that the
agency’s investigation did not suggest a retaliatory motive because it was sparked
by an objective and outside view of the videos by the Civil Rights Division.
Regarding Carr factor 3, the appellant contends that the administrative
judge also took a restrictive view and erred in finding other employees were not
similarly situated. PFR File, Tab 4 at 25-27. However, the administrative judge
considered the appellant’s argument that another deputy, who was not a
whistleblower, wrote a false use of force report concerning the August 13, 2013
incident but was not disciplined. ID at 73. She found that the deputy’s
“adequate, if cursory, summary of his use of force [was] vastly different than the
reckless accusations made by the appellant.” ID at 72-73. However, even if the
third Carr factor does not weigh in favor of the agency or even cuts slightly
against it, we agree with the administrative judge that the strength of the evidence
outweighs any slight motive to retaliate and lack of comparator evidence . See
Rickel, 31 F.4th at 1366.
1-day suspension
On September 9, 2016, the appellant was suspended for 1 day based on a
charge of conduct unbecoming due to an incident on March 20, 2015, in which
the appellant and Deputy R.K. were involved in a verbal altercation. IAF, Tab 10
at 5, 7. We agree with the administrative judge that the appellant failed to prove
that his September 2012 testimony was a contributing factor because it was so far
removed from the 1 -day suspension, which occurred 4 years later. ID at 81; see
Salinas v. Department of the Army , 94 M.S.P.R. 54, ¶ 10 (2003) (finding that
personnel actions that occurred more than 2 years after a disclosure were too
remote to establish a contributing factor via the knowledge/timing test under
5 U.S.C. § 1221(e)(1)). Although the appellant challenges this finding on review20
by asserting that his 1-day suspension was part of a continuum of related
personnel actions, PFR File, Tab 4 at 8, we find that the 1-day suspension is
unrelated to any of the other alleged personnel actions at issue, rather, it was
based solely on the appellant’s conduct on March 20, 2015, cf. Agoranos v.
Department of Justice , 119 M.S.P.R. 498, ¶¶ 22-23 (2013) (finding the
knowledge/timing test to be satisfied when a personnel action that occurred more
than 2 years after the protected disclosure was part of a continuum of related
performance-based actions). Moreover, the administrative judge also found that
the deciding official was not aware of the appellant’s 2012 protected disclosure
beyond a vague reference to S.L.’s case in the appellant’s oral response to the
proposed suspension. ID at 82. The appellant does not challenge this finding on
review, and we discern no error in the analysis. We similarly find that, although
the deciding official had knowledge of the appellant’s August 13, 2013 protected
disclosure via his oral and written responses, the appellant’s 1-day suspension
over 3 years later on September 9, 2016, was too remote to satisfy the knowledge/
timing test. See Salinas, 94 M.S.P.R. 54, ¶ 10.
Nor do any other circumstances suggest that the appellant’s disclosures
were a contributing factor in his 1-day suspension. See Dorney v. Department of
the Army, 117 M.S.P.R. 480, ¶¶ 14-15 (2012) (stating that, if an appellant has
failed to satisfy the knowledge/timing test, the Board shall consider whether the
contributing factor element has been met based on other evidence, such as the
strength or weakness of the agency’s reasons for taking the action, whether the
whistleblowing was personally directed at the proposing or deciding officials, and
whether those individuals had a motive to retaliate against the appellant). The
administrative judge found the agency had strong evidence in support of its action
and the appellant admitted that he spoke in a loud tone and engaged in a verbal
altercation. ID at 84. The administrative judge further found that the motive to
retaliate was imperceptible to the extent the March 20, 2015 incident was referred
to the Office of Professional Responsibility Internal Affairs (IA) and a neutral21
investigator conducted an investigation, after which it was turned over to a
proposing and deciding official outside of the appellant’s chain of command. ID
at 84-85. We have also considered whether the Assistant Chief Deputy T.M., as a
high-ranking individual, had a retaliatory motive in referring the incident to IA
for investigation based on his knowledge of the appellant’s August 2013
excessive force protected disclosure. IAF, Tab 10 at 84, 110-11. However, we
find little motive to the extent the Civil Rights Division had cleared Deputy R.K.
of any wrongdoing long ago. Additionally, although Assistant Chief Deputy T.M.
could have had a motive based on the appellant’s 2012 testimony, we agree with
the administrative judge that the circumstances do not suggest retaliatory motive
to the extent the Assistant Chief Deputy T.M. referred both the appellant and
Deputy R.K. to IA for a neutral investigation of the March 20, 2015 verbal
altercation. ID at 84-85. Accordingly, we agree with the administrative judge
that the appellant failed to prove that his protected disclosures were a
contributing factor in his 1-day suspension.13
Finally, regarding the appellant’s claim of reprisal for filing an
OSC complaint, we find that the appellant established contributing factor via the
knowledge/timing test. The record reflects that the deciding official had
knowledge of the appellant’s protected activity of filing an OSC complaint. HT
at 677, 685. Further, the appellant’s OSC complaint and amendments thereto
between October 20, 2013, and June 7, 2018, when OSC closed its investigation,
occurred within a period of time such that a reasonable person could conclude
that the protected activity was a contributing factor in the appellant’s 1-day
suspension on September 9, 2016. IAF, Tab 1, Tab 17 at 7, Tabs 21-35.
13 To the extent the administrative judge made alternate findings that the agency proved
that it would have suspended the appellant for 1 day absent the appellant’s
2012 testimony, we vacate such findings. ID at 82-87; see Clarke v. Department of
Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014 ) (stating that the Board may not
proceed to the clear and convincing evidence test unless it has first made a finding that
the appellant established his prima facie case), aff’d, 623 F. App’x 1016 (Fed. Cir.
2015).22
However, based on our analysis above, we find that the agency had strong
evidence in support of its decision. Further, although we acknowledge that
Assistant Chief Deputy T.M. could have had a slight motive in referring the
incident for investigation based on his knowledge of the appellant’s OSC
complaint, of which he was the subject of some of the appellant’s allegations,14
IAF, Tab 10 at 110, the circumstances under which both employees were referred
for investigation do not suggest a retaliatory motive. Regarding the third Carr
factor, the administrative judge found that the agency did not provide any
evidence that Deputy R.K. was suspended for the same altercation but that the
testimony of T.B., an administrative assistant, vaguely referenced that the
appellant knew that Deputy R.K. was also suspended. ID at 86. We find that the
third Carr factor does not weigh in the agency’s favor because it failed to
introduce complete, fully explained comparator evidence. See Soto v. Department
of Veterans Affairs , 2022 MSPB 6, ¶ 18. Nonetheless, weighing all three factors,
we find that the strength of the evidence outweighs any slight motive to retaliate
and the lack of comparator evidence. Accordingly, the agency proved by clear
and convincing evidence that it would have suspended the appellant for 1 day
absent his OSC complaint.
The appellant’s remaining arguments do not provide a basis for reversal.
On review, the appellant appears to assert that the administrative judge
should have recused herself because, from 2010 to 2015, she was employed as an
Assistant United States Attorney (AUSA) for the Northern District of Illinois in
Chicago, the same district that was involved in determining that the appellant’s
excessive force complaint against Deputy R.K. had no merit.15 PFR File, Tab 4
14 We do not discern a motive to retaliate on the part of the deciding official, who
learned of the appellant’s OSC complaint during the appellant’s response to the
proposal and was not the subject of the appellant’s allegations in his OSC complaint.
15 The appellant does not, however, allege any facts to suggest that the administrative
judge was involved in the determination made by a different attorney in the criminal
section of the Department of Justice Civil Rights Division. IAF, Tab 16 at 5.23
at 28-29. The appellant further asserts that the administrative judge, while
employed as an AUSA, worked in the same office as Deputy R.K.’s wife, who
was also an AUSA, and that their office was in the same building where the
appellant worked during the time the alleged retaliatory incidents occurred. Id.
Thus, the appellant contends that the administrative judge was biased against him.
Id. at 7, 21, 28, 32-33.
First, to establish a claim of bias or prejudice against an administrative
judge, a party must overcome the presumption of honesty and integrity that
accompanies administrative adjudicators. Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980). An administrative judge’s conduct
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)). Further, an allegation of bias by an
administrative judge must be raised as soon as practicable after a party has
reasonable cause to believe that grounds for disqualification exist and must be
supported by an affidavit. Lee v. U.S. Postal Service , 48 M.S.P.R. 274, 280-82
(1991). Because the appellant has not met these requirements, his claim of bias
fails.
In addition to claiming that the administrative judge was actually biased,
the appellant is also asserting that the administrative judge should have recused
herself because an objective observer might reasonably question her impartiality
due to her former employment as an AUSA. PFR File, Tab 4 at 28-30. 5 C.F.R.
§ 1201.42(a) provides that, if an administrative judge considers herself
disqualified, she will withdraw from the case. The Board has found that this
regulation is not the sole source of its disqualification standards, as it will also
look to the disqualification standards Congress established for the Federal
judiciary at 28 U.S.C. § 455. See Baker v. Social Security Administration ,24
2022 MSPB 27, ¶ 7; Lee v. Environmental Protection Agency , 115 M.S.P.R. 533,
¶ 20 (2010). Among other things, section 455 requires recusal “in any proceeding
in which [the judge’s] impartiality might reasonably be questioned.” 28 U.S.C.
§ 455(a); Allphin v. United States , 758 F.3d 1336, 1343-44 (Fed. Cir. 2014)
(quoting 28 U.S.C. § 455(a)). “This is an objective test that mandates recusal
‘when a reasonable person, knowing all the facts, would question the judge’s
impartiality.’” Allphin, 758 F.3d at 1344 (internal citations omitted).
Here, even assuming the truth of the appellant’s allegations, we find that
the appellant has failed to show that a reasonable person, knowing all the facts,
would have questioned the administrative judge’s impartiality. The mere fact that
the administrative judge may have been previously employed by the office that
evaluated the appellant’s claim that Deputy R.K. used excessive force is not
likely to have created a question in a reasonable person’s mind as to the
administrative judge’s impartiality. As discussed above, the issue before the
Board regarding the appellant’s disclosure alleging the use of excessive force was
whether the appellant had a reasonable belief he was reporting wrongdoing within
the ambit of 5 U.S.C. § 2302(b)(8), not whether the wrongdoing actually
occurred. Moreover, even if Deputy R.K.’s spouse had been employed in the
same office as the administrative judge when both were AUSAs, that fact alone
would not require the administrative judge to recuse herself. Accordingly, we
have evaluated this claim and find that the appellant has failed to show that the
administrative judge should have recused herself.
The appellant also asserts that the administrative judge erred in excluding
or ignoring evidence by “summarily excluding [his] witnesses, USMS policies,
rules, regulations, law, witness testimony, Carr Factors, Disparate Penalties,
Douglas Factors, etc.” PFR File, Tab 4 at 24. However, such conclusory
arguments fail to establish any error in the administrative judge’s findings.
We also find unavailing the appellant’s arguments that the administrative judge
applied the wrong legal standards and that the agency failed to prove by25
preponderant evidence that the charged misconduct occurred. Id. at 6-7, 15-16,
22, 28, 30. The appellant’s arguments conflate the legal standards applicable in
an appeal of an adverse action taken pursuant to 5 U.S.C. chapter 75 and an IRA
appeal under 5 U.S.C. § 1221. Here, the initial decision reflects that the
administrative judge applied the correct standard for an IRA appeal. Finally, we
find unavailing the appellant’s assertion that the administrative judge erred in
considering statements of individuals who did not testify at the hearing. Id. at 8.
To the contrary, the initial decision reflects that the administrative judge properly
weighed the evidence. See, e.g., Crosby v. U.S. Postal Service , 74 M.S.P.R. 98,
105-06 (1997) (finding no reason to disturb the administrative judge’s findings
when she considered the evidence as a whole, drew appropriate inferences, and
made reasoned conclusions); Broughton v. Department of Health & Human
Services, 33 M.S.P.R. 357, 359 (1987) (same); Borninkhof v. Department of
Justice, 5 M.S.P.R. 77, 83 (1981) (acknowledging that hearsay evidence is
admissible in administrative proceedings).
Accordingly, we affirm the initial decision as modified.
NOTICE OF APPEAL RIGHTS16
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
16 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.26
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. The27
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 file28
with the EEOC no later than 30 calendar days after your representative 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.17 The court of appeals must receive your petition for
17 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. 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. 29
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.30
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.31 | Stenson_Lorne_K_CH-1221-18-0492-W-1__Final_Order.pdf | 2024-05-21 | LORNE STENSON v. DEPARTMENT OF JUSTICE, MSPB Docket No. CH-1221-18-0492-W-1, May 21, 2024 | CH-1221-18-0492-W-1 | NP |
1,406 | https://www.mspb.gov/decisions/nonprecedential/Pacheco_IrvingSF-1221-17-0365-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
IRVING PACHECO,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
SF-1221-17-0365-W-1
DATE: May 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Thomas Tierney , Esquire, Norwalk, Connecticut, for the appellant.
Jeffrey J. Velasco , San Francisco, California, for the agency.
Remy N. Savin , Irving, 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 in this individual right of action appeal.
On petition for review, the appellant argues that the administrative judge erred in
finding that his disclosures were not protected, he did not engage in protected
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
activity, and his first-, second-, and third-line supervisors lacked knowledge of
his disclosures. Petition for Review (PFR) File, Tab 1 at 8-16.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
apply the correct standard for determining whether the agency’s handbook was a
“rule” for the purposes of 5 U.S.C. § 2302(b)(8), clarify the reason the appellant’s
November 2015 memo was not protected, and supplement the administrative
judge’s findings as to the retroactivity of the National Defense Authorization Act
for Fiscal Year 2018 (NDAA) amendment to 5 U.S.C. § 2302(b)(9)(C),2 we
AFFIRM the initial decision.
On review, the appellant argues that the administrative judge applied the
wrong standard in determining whether the handbook was a law, rule, or
regulation for the purposes of 5 U.S.C. § 2302(b)(8). PFR File, Tab 1 at 9. We
agree. The administrative judge relied on the standard for analyzing whether an
agency regulation has the force of law, and thus an appellant’s disclosure is
exempted from protection as “specifically prohibited by law.” See Initial Appeal
File (IAF), Tab 46, Initial Decision (ID) at 14-15 & n.15 (applying Parikh v.
2 Pub. L. No. 115-91, § 1097(c)(1)(A), 131 Stat. 1283, 1618 (2017).
3
Department of Veterans Affairs , 116 M.S.P.R. 197, ¶¶ 24, 29-30 (2011)
(analyzing whether the agency’s handbook was a law such that the appellant’s
violation of it in making his disclosures excluded them from protection under the
Federal whistleblower protection statutes)); see also 5 U.S.C. § 2302(b)(8)(A).
There is no contention that the appellant’s disclosures were otherwise prohibited
by law. Further, to construe the appellant’s disclosures of purported handbook
violations as protected only if the handbook has the force of law—i.e., is a statute
or substantive regulation—renders the term “rule,” as provided under
section 2302(b)(8)(A)(i), superfluous.3 See Department of Homeland Security v.
MacLean, 574 U.S. 383, 389-93 (2015) (applying canons of statutory construction
to conclude that Congress intended for the term “law” to have a meaning distinct
from the term “rule” or “regulation” under 5 U.S.C. § 2302(b)(8)(A)). The Board
has defined a rule as “an established and authoritative standard or principle; a
general norm mandating or guiding conduct or action in a given type of
situation.” Rusin v. Department of the Treasury , 92 M.S.P.R. 298, ¶ 16 (2002)
(quoting Black’s Law Dictionary 1330 (7th ed. 1999)). To determine whether the
agency’s handbook was a rule for the purposes of section 2302(b)(8), the Board
must substantively review the handbook.
Here, the appellant has not provided sufficient information to conclude
that, if made, he disclosed a violation of “law, rule, or regulation.” As the
administrative judge concluded, and the appellant does not dispute, the handbook
was not entered into the record. ID at 14 n.15. Beyond referencing his
November 8, 2015 memo, in which he quotes a few excerpts of the handbook,
IAF, Tab 9 at 11, the appellant has not identified any evidence in the record that
reveals the content and purpose of the handbook, or the authority pursuant to
which it was created. Accordingly, despite the administrative judge’s error, we
3 A protected disclosure is a disclosure of information that an appellant reasonably
believes evidences any violation of any law, rule, or regulation, gross mismanagement,
a gross waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety. 5 U.S.C. § 2302(b)(8)(A).
4
nevertheless agree that the appellant did not prove that the handbook was a law,
rule, or regulation for the purposes of section 2302(b)(8), and we find that the
appellant’s arguments do not provide a basis for review. See Panter v.
Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (finding that an
adjudicatory error that is not prejudicial to a party’s substantive rights provides
no basis for reversal of an initial decision).
The appellant further argues, only generally, that the administrative judge
erred in finding that his November 2015 memo did not contain a protected
disclosure. PFR File, Tab 1 at 9-10. The administrative judge determined that
the appellant’s disclosures amounted to a policy disagreement as to how
Supervisory Behavior Detection Officers (SBDOs) should be deployed at Los
Angeles International Airport. ID at 15. She reasoned that a disinterested
observer with 1 month of experience in the department, like the appellant, would
not reasonably conclude the SBDOs were failing to conduct the necessary
behavioral detection activities. Id. However, the record reflects that, at the time
the appellant drafted this memo, he had worked in the same department since his
appointment in April 2015. IAF, Tab 4 at 218, 223. Nevertheless, the appellant
was a probationer at the time, with only 3 months of experience in his position as
a Behavior Detection Officer (BDO), a position that was materially different than
his prior Transportation Security Officer position. ID at 6-7; IAF, Tab 4 at 223,
Tab 9 at 11. On review, the appellant argues that he was trained in BDO
detection, but he does not explain the basis for his conclusion that SBDOs were
not adequately performing their duties. PFR File, Tab 1 at 6, 9-10. Accordingly,
despite the administrative judge’s error in calculating the appellant’s length of
service in his BDO position, we nevertheless agree that it was not reasonable for
him to believe that he was disclosing any other wrongdoing by SBDOs in his
November 2015 memo. See Panter, 22 M.S.P.R. at 282.
Finally, the appellant disputes the administrative judge’s finding that he did
not prove that his disclosures to the agency’s Office of Inspections (OOI) were
5
protected under 5 U.S.C. § 2302(b)(9)(C). PFR File, Tab 1 at 13. In analyzing
this issue, the administrative judge recognized that the NDAA amended
section 2302(b)(9)(C) to include “cooperating with or disclosing information
to . . . any . . . [agency] component responsible for internal investigation or
review” as protected activity. ID at 23-24 n.21. Without addressing whether OOI
constituted such a component, the administrative judge found that the NDAA
amendment was inapplicable because it was not retroactive. Id. We agree. After
the initial decision’s issuance, the Board issued a decision finding that the NDAA
amendment to section 2302(b)(9)(C) was not retroactive. Edwards v. Department
of Labor, 2022 MSPB 9, ¶¶ 29-33, aff’d, No. 2022-1967, 2023 WL 4398002 (Fed.
Cir. July 7, 2023). Accordingly, we affirm the administrative judge’s finding as
to the applicability of the NDAA.
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.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
Please read 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
7
were affected by an action 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.
8
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 review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
9
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Pacheco_IrvingSF-1221-17-0365-W-1__Final_Order.pdf | 2024-05-21 | IRVING PACHECO v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-1221-17-0365-W-1, May 21, 2024 | SF-1221-17-0365-W-1 | NP |
1,407 | https://www.mspb.gov/decisions/nonprecedential/Davis_Angeleah_M_DA-114M-23-0142-Y-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANGELEAH M. DAVIS,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DA-114M-23-0142-Y-1
DATE: May 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Angeleah M. Davis , Mansfield, Texas, pro se.
Catherine Williams-Frank , Esquire, Philadelphia, Pennsylvania, 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 removal appeal as untimely filed without good cause shown.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
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. 5 C.F.R. § 1201.113(b).
¶2We have considered all the appellant’s arguments on review; however,
we find that none compel a different outcome. Petition for Review (PFR) File,
Tab 1 at 4-7. For example, the appellant argues that the agency violated certain
provisions of Transportation Security Administration Management Directive
1100.75-3. Id. at 4-6. The appellant, however, did not raise these specific
allegations before the administrative judge. See Banks v. Department of the Air
Force, 4 M.S.P.R. 268, 271 (1980) (finding that the Board generally will not
consider an argument raised for the first time on review absent a showing that it is
based on new and material evidence not previously available despite the party’s
due diligence). In any event, we find that none of the appellant’s assertions in
this regard provide a basis to disturb the administrative judge’s reasoned
conclusion that the appeal was untimely filed without good cause shown. Initial
Appeal File, Tab 7, Initial Decision at 5-8.
¶3With her petition for review, the appellant provides two additional
documents, i.e., a December 12, 2022 email and phone screenshot. PFR File,
Tab 1 at 8-10. The appellant explains that she provides these documents to
demonstrate that she contacted the agency on this date to inquire about changing
her health insurance; however, the agency employee with whom she spoke failed2
to inform her that she had been removed from her position. Id. at 5-6. She avers
that these documents show that, as of December 12, 2022, she was unaware that
the agency had effected her removal. Id. at 6. 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 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). Here, the appellant has not made such a showing. In any
event, these documents are not material to the timeliness issue. See Russo v.
Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (stating that the Board will
not grant a petition for review based on new evidence absent a showing that it is
of sufficient weight to warrant an outcome different from that of the initial
decision).
¶4Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
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
Please read 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 you4
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Davis_Angeleah_M_DA-114M-23-0142-Y-1__Final_Order.pdf | 2024-05-21 | ANGELEAH M. DAVIS v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DA-114M-23-0142-Y-1, May 21, 2024 | DA-114M-23-0142-Y-1 | NP |
1,408 | https://www.mspb.gov/decisions/nonprecedential/Singam_AkiDC-0752-20-0382-I-4__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AKI SINGAM,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
DC-0752-20-0382-I-4
DATE: May 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kumar Singam , Bethesda, Maryland, for the appellant.
Christy Te , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Chairman Harris and Vice Chairman Limon issue
separate, concurring opinions.
FINAL ORDER
The appellant has filed a petition for review of the initial decision that
dismissed her constructive suspension appeal for lack of jurisdiction. Generally,
we grant petitions such as this 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).
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
CONCURRING OPINION OF CATHY A. HARRIS
in
Aki Singam v. Department of Health and Human Services
MSPB Docket No. DC-0752-20-0382-I-4
I agree with the administrative judge that the appellant has not established
that the agency constructively suspended her. Therefore, I concur in the result in
this case. Nevertheless, as discussed below, I disagree with the administrative
judge’s determination that the agency was within its rights to request additional
information from the appellant before making a decision on her accommodation
request.
The appellant is a G-12 Pharmacist with the agency. In July 2019, the
appellant submitted documentation to the agency from her physician, which stated
that she had functional restrictions that prohibited her from working in the
Intravenous Admixture Unit (IVAU) room between July 1, 2019, and July 15,
2019. Singam v. Department of Health and Human Services , MSPB Docket
No. DC-0752-20-0382-I-1, Initial Appeal File (IAF), Tab 1 at 26. As a result, the
agency reassigned the appellant to other work locations. On October 23, 2019,
the Pharmacy Supervisor directed the appellant to return to the full range of her
duties in the IVAU room effective October 25, 2019. Id. The supervisor
informed the appellant that, if she had a medical condition preventing her from
performing her duties, she may submit a reasonable accommodation request to the
agency’s Office of Equity, Diversity, and Inclusion (EDI). Id.
On November 7, 2019, the appellant sent the EDI a fax containing the
subject line “Reasonable Accommodation Forms” in which she included a
narrative stating that, on an unspecified date, she fell in the IVAU room. Singam
v. Department of Health and Human Services , MSPB Docket No. DC-0752-20-
0382-I-4, Appeal File (I-4 AF), Tab 68 at 33-37. The appellant also included a
letter from a medical provider, which stated that the appellant’s impairment was
“recurrent falls” and “retinal detachment” and that the appellant was limited in
her ability to walk. Id. at 36-37. He suggested that the appellant “should avoid
working in the IV Room for the next 2 months.” Id. at 37.
The next day, the agency’s Occupational Medical Services (OMS)
completed a document entitled “OMS Medical Evaluation of Functional
Activities.” IAF, Tab 1 at 30. It stated that the appellant’s medical provider had
recommended that she not work in the IVAU room through January 30, 2020. Id.
EDI sent an email to the appellant requesting that she sign an “Authorization for
Disclosure form” authorizing the agency to speak with her medical provider. I-4
AF, Tab 68 at 38. The appellant refused to sign the form; instead, she repeatedly
stated that the document issued by OMS was “binding” and that she should be
permitted to work outside the IVAU room on that basis.
On November 15, 2019, the appellant wrote to EDI that “[a]t no time did
[she] reach out to process a request to no longer work in the IV room,” and “there
is no need for you to process a request that I did not make.” Id. at 55. On
November 26, 2019, the appellant wrote that “there is no accessibility request
from me to be closed or withdrawn.” Id. at 74. EDI then ceased any attempts to
process a reasonable accommodation request. The appellant used sick leave,
annual leave, and leave without pay from October 16, 2019, through at least
December 20, 2019, and on numerous dates in January 2020. On several
occasions in December 2019 and January 2020, the appellant’s supervisor
instructed that she must report to her assigned work area with clearance from
OMS or take leave.
On December 23, 2019, the appellant sent an email to EDI stating the
following: “[ ] I am requesting a temporary reasonable accommodation pursuant
to the OMS Blue Slip that was sent via Dr. [S] from the OMS for the period
11/06/19 through 01/01/20 to work outside the IV Room.” I-4 AF, Tab 14 at 91.
On December 30, 2019, EDI informed the appellant that it did not have sufficient2
medical information to process a reasonable accommodation request and it asked
that she authorize the agency to speak with her medical provider. Id. at 93-94.
The appellant responded that she would not provide the authorization and again
asserted that the agency must comply with the form issued by OMS. Id. at 93.
On January 3, 2020, the agency explained that it needed further clarification on
the extent of the appellant’s limitations in the IVAU room and the nature and
duration of the limitations.
On January 14, 2020, the appellant asserted that she was on campus and
“will be completing mandatory work/special projects as a temporary
accommodation while I await hearing from you as to how you will comply with
my legally complete reasonable accommodation request.” I-4 AF, Tab 68 at 103.
Her supervisor responded that she had not been assigned any special projects or
temporary accommodations and that she must report to her assigned location in
the IVAU room or take leave until cleared by OMS. Id. On January 23, 2020, the
appellant sent an email stating, “[p]er my assignment to projects in the official
schedule, I have been working and documenting the mismanagement of the IV
Room by you and the consequent waste of [F]ederal funds.” IAF, Tab 1 at 38-39.
On January 30, 2020, the appellant returned to work in the IVAU room. I-4 AF,
Tab 68 at 20.
The appellant filed a Board appeal on February 15, 2020, alleging that the
agency subjected her to a constructive suspension between October 2019 and
January 2020. IAF, Tab 1. The administrative judge found that the appellant
made a nonfrivolous allegation of Board jurisdiction over a constructive
suspension claim with an affirmative defense of failure to accommodate and
scheduled a jurisdictional hearing. I-4 AF, Tab 23. Thereafter, the appellant
withdrew her hearing request, and the administrative judge issued an initial
decision on the written record finding that the appellant did not establish
jurisdiction over her constructive suspension claim by preponderant evidence. I -4
AF, Tab 74, Initial Decision (ID). In relevant part, the administrative judge3
found that the medical evidence in the record is insufficient to find that working
in the IVAU room was against the appellant’s medical restrictions, which would
have deprived her of a meaningful choice. The appellant subsequently filed a
petition for review.
As an initial matter, I agree with the administrative judge that the
framework set forth in Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶ 11
(2013) is applicable here. ID at 8. Like Bean, the instant case involves an
involuntary leave-type constructive suspension appeal because it concerns a claim
that leave that appeared to be voluntary actually was not. Thus, to establish
jurisdiction in her constructive suspension appeal, the appellant must show that:
(1) she lacked a meaningful choice regarding her absence; and (2) this was
because of the agency’s improper actions. See Bean, 120 M.S.P.R. 397, ¶ 11.
Regarding the first prong under this test, the appellant established that she
lacked a meaningful choice in her absence. “[T]he Americans With Disabilities
Act, which applies to Federal employees pursuant to the Rehabilitation Act
Amendment of 1992, prohibits disability-related inquiries, including inquiries as
to the nature and severity of a disability, unless such inquiry is shown to be
job-related and consistent with business necessity.” Hartless v. U.S. Postal
Service, EEOC Appeal No. 0120101017, 2010 WL 2345516, *1 (June 4, 2010).
In response to a request for reasonable accommodation, an agency “cannot ask for
documentation in response to a request for reasonable accommodation . . . when:
(1) both the disability and the need for reasonable accommodation are obvious, or
(2) the individual has already provided the agency with sufficient information to
substantiate that s/he has . . . a disability [under the Rehabilitation Act] and needs
the reasonable accommodation requested.” See EEOC Enforcement Guidance:
Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act, Notice 915.002 (Oct. 17, 2002),
https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-
accommodation-and-undue-hardship-under-ada (last visited May 21, 2024). An4
agency may request “relevant supplemental medical information if the
information submitted by the requester is insufficient” for the purposes of
explaining “the nature of the individual’s disability, his or her need for
reasonable accommodation, and how the requested accommodation, if any, will
assist the individual to apply for a job, perform the essential functions of a job, or
enjoy the benefits and privileges of the workplace.” See 29 C.F.R. 1614.203(d)
(3). In addition, the Equal Employment Opportunity Commission has found that,
when there is a bona fide dispute regarding the application of an employee’s
restrictions to certain duties, an agency is permitted to obtain further medical
information to determine the need for reasonable accommodation. See Ross v.
Department of the Treasury , EEOC Appeal No. 01982708, 2001 WL 1103786, *8
(August 2, 2001).
Here, as stated above, the medical documentation submitted by the
appellant stated that her impairment was “recurrent falls” and “retinal
detachment” and that she was limited in her ability to walk. The appellant’s
medical provider stated the appellant “should avoid working in the IV Room for
the next 2 months.” This medical information sufficiently explained the nature of
the appellant’s disability and the need for an accommodation under the
Rehabilitation Act. The record does not reflect that there was a bona fide dispute
as to whether the appellant could work in the IVAU room, and the appellant’s
medical documentation was sufficient to substantiate that she needed the
reasonable accommodation requested.
However, the appellant has ultimately not established by preponderant
absence that it was the agency’s wrongful actions that deprived her of a
meaningful choice in the matter. The appellant sent confusing and conflicting
correspondence to the agency, and, most significantly, unequivocally instructed
the agency to stop processing a request for accommodations. She also refused to
meet with her supervisor to discuss her request. Thus, under these circumstances,
the appellant did not meet her burden of establishing by preponderant evidence5
that the agency acted wrongfully in not processing her reasonable accommodation
request. I therefore concur with the Board’s determination that the appellant did
not establish by preponderant evidence that the agency constructively suspended
her.
/s/
Cathy A. Harris
Chairman6
CONCURRING OPINION OF RAYMOND A. LIMON
in
Aki Singam v. Department of Health and Human Services
MSPB Docket No. DC-0752-20-0382-I-4
As both the administrative judge in the initial decision and the Chairman in
her Concurring Opinion state, to establish jurisdiction over this constructive
suspension appeal, the appellant must show that: (1) she lacked a meaningful
choice regarding her absence; and (2) this was because of the agency’s improper
actions. Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶ 11 (2013). I believe
the record tends to support the administrative judge’s findings with respect to the
first prong of this test, but a detailed review is not necessary as I concur with the
Chairman’s and the administrative judge’s findings that the appellant has not met
her burden on the second prong of this test.
/s/
Raymond A. Limon
Vice Chairman | Singam_AkiDC-0752-20-0382-I-4__Final_Order.pdf | 2024-05-21 | AKI SINGAM v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. DC-0752-20-0382-I-4, May 21, 2024 | DC-0752-20-0382-I-4 | NP |
1,409 | https://www.mspb.gov/decisions/nonprecedential/Stringfellow_AllanDC-0752-18-0712-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALLAN STRINGFELLOW,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
DC-0752-18-0712-I-1
DATE: May 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Allan Stringfellow , Uniondale, New York, pro se.
David P. Simmons and Rachel Trafican , 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 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
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 and AFFIRM the initial decision,
which is now the Board’s final decision, except as expressly MODIFIED by this
final order to expand the administrative judge’s analysis of the appellant’s
affirmative defense of whistleblower reprisal. 5 C.F.R. § 1201.113(b).
BACKGROUND
On July 2, 2018, the agency removed the appellant from his position as a
Supervisory Copier and Duplicating Equipment Operator for absence without
leave (AWOL) and failure to follow procedures to request leave. Initial Appeal
File (IAF), Tab 4 at 27, 29-33. The appellant timely appealed his removal to the
Board and requested a hearing. IAF, Tab 1. Following the requested hearing, the
administrative judge sustained the removal, finding that the agency proved its
charges and that the appellant failed to prove that the agency committed a due
process violation or harmful procedural error, or that his removal was the result
of a prohibited personnel practice. IAF, Tab 30, Initial Decision (ID) at 3-12.
The administrative judge also found that the agency showed that the penalty of
removal promoted the efficiency of the service and was reasonable. ID at 12-15.
Accordingly, she sustained the removal. ID at 15.
On March 3, 2019, the appellant filed a petition for review of the
November 19, 2018 initial decision. IAF, Tab 31; Petition for Review (PFR) File,
Tab 1. The Office of the Clerk of the Board informed the appellant that his
petition for review appeared to be untimely filed and that the Board’s regulations2
require an apparently untimely petition to be accompanied by a motion to accept
the petition as timely or to waive the time limit for good cause and an affidavit or
sworn statement to that effect. PFR File, Tab 2 at 1-2. The appellant filed a
motion to accept his petition as timely filed. PFR File, Tab 3. The agency
opposed the appellant’s petition for review and motion, to which the appellant
filed a reply. PFR File, Tabs 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has demonstrated good cause to waive the time limit for filing his
petition for review.
A petition for review generally must be filed within 35 days after the date
of the issuance of the initial decision or, if a party shows that he received the
initial decision more than 5 days after it was issued, within 30 days after his
receipt of the initial decision. 5 C.F.R. § 1201.114(e). The Board will waive this
time limit only upon a showing of good cause for the delay in filing. 5 C.F.R.
§§ 1201.12, 1201.114(g). To establish good cause for the untimely filing of a
petition, a party must show that he exercised due diligence or ordinary prudence
under the particular circumstances of the case. Shannon v. Department of
Veterans Affairs , 110 M.S.P.R. 365, ¶ 6 (2009). To determine whether an
appellant has shown good cause, the Board will consider the length of the delay,
the reasonableness of his excuse and his showing of due diligence, whether he is
proceeding pro se, and whether he has presented evidence of the existence of
circumstances beyond his control that affected his ability to comply with the time
limits or of unavoidable casualty or misfortune which similarly shows a causal
relationship to his inability to timely file his petition. Id.
The appellant’s petition for review was originally due on December 24,
2018. ID at 15; see 5 C.F.R. § 1201.114(e). However, at midnight on
December 22, 2018, the Board ceased all operations due to a partial government
shutdown. PFR File, Tab 2 at 1. The Board promptly issued a press release,
notifying the public that all filing and processing deadlines would be extended by3
the number of calendar days that the Board was shut down. Id.; PFR File, Tab 3
at 6-7; 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 21,
2024). On January 26, 2019, the Board resumed operations after being shut down
for 35 days. PFR File, Tab 2 at 1. Thus, the appellant’s December 24, 2018
filing deadline was extended 35 days to January 28, 2019.
The appellant filed his petition for review on March 3, 2019, thirty-four
days after the extended deadline to file his petition for review. PFR File, Tab 1.
In his motion to accept his petition for review as timely, the appellant states that
he accessed the Board’s website on January 26, 2019, but it was not operational
and that it did not become operational until January 28, 2019. PFR File, Tab 3
at 4. He argues that, after the Board became operational, he had 38 additional
days to file his petition for review, which he calculated by adding the number of
days of the shutdown to the number of days he had left to file his petition before
the government shutdown began. Id. The appellant is proceeding pro se, and we
find it plausible that the appellant misinterpreted the Board’s press release to
provide him with an additional 35 days to file his petition following the
resumption of the Board’s operations after the government shutdown, by which
logic his petition is timely. Accordingly, we find that good cause existed for the
appellant’s delay in filing his petition for review. However, as set forth below,
we find the appellant’s petition to be without merit.
The administrative judge properly found that the agency proved its charges, that a
nexus existed between the appellant’s conduct and the efficiency of the service,
and that the penalty of removal fell within tolerable limits of reasonableness; and
that the appellant did not prove his affirmative defenses of a due process violation
or harmful procedural error.
On review, the appellant does not dispute the administrative judge’s
findings that the agency proved its charges of AWOL and failure to follow4
procedures to request leave, that the agency proved a nexus between his conduct
and the efficiency of the service, and that the agency proved that the penalty of
removal fell within tolerable limits of reasonableness. See ID at 3-8, 12-15. We
have reviewed the administrative judge’s well-reasoned findings and discern no
reason to disturb them. See Clay v. Department of the Army , 123 M.S.P.R. 245,
¶ 6 (2016) (finding no reason to disturb the administrative judge’s findings where
she considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions on the issue of credibility); Broughton v. Department of
Health and Human Services , 33 M.S.P.R. 357, 359 (1987) (same).
On review, the appellant renews his arguments that the agency violated his
right to due process and committed harmful procedural error by denying him the
opportunity to present an oral reply to the proposed removal. PFR File, Tab 1
at 6-10. In particular, he argues that the agency’s May 15, 2018 email providing
him with an extension of time to provide a reply was ambiguous as to whether he
needed to complete his oral reply by the deadline provided, and that Massey v.
Department of the Army , 120 M.S.P.R. 226 (2013), supports his argument that
ambiguity in the agency’s language should warrant remand. Id. at 8-10.
Minimum due process requires that the employee have oral or written notice of
the charges against him, an explanation of the employer’s evidence, and “the
opportunity to present reasons, either in person or in writing, why proposed
action should not be taken[.]” Cleveland Board of Education v. Loudermill ,
470 U.S. 532, 546 (1985). We agree with the administrative judge’s
well-reasoned conclusion that the agency provided the appellant with sufficient
due process. ID at 8-9. Unlike in Massey, the agency’s email providing the
appellant with an extension is unambiguous as to when he was to submit his oral
reply; it specifically provided that, “Management has granted you an extension
until Thursday, May 24, 2018 to submit your written and oral replies.” IAF,
Tab 6 at 64-65. Additionally, in this case, the appellant requested an oral reply
on May 25, 2018, after the extension of time had already expired. IAF, Tab 45
at 39. The administrative judge also properly concluded that the appellant did not
show that the agency committed a procedural error, or that the error was harmful,
as he did not explain what evidence his oral reply would have added to his written
reply. ID at 9-10; see Rogers v. Department of Defense , 122 M.S.P.R. 671, ¶ 7
(2015) (holding that, to prove harmful procedural error, the appellant must show
both that the agency committed procedural error and that the error was harmful).
Accordingly, we affirm the administrative judge’s findings that the appellant did
not prove his affirmative defenses of a due process violation and harmful
procedural error.
We modify the initial decision in order to fully analyze the appellant’s
affirmative defense of whistleblower reprisal but nevertheless conclude that the
appellant has not proven this affirmative defense.
On review, the appellant renews his arguments below that the agency
committed prohibited personnel practices. PFR File, Tab 1 at 9-15; see IAF,
Tab 14. He argues that the agency’s implementation of a Maryland state writ of
garnishment of his wages was unlawful and resulted in prohibited personnel
practices under 5 U.S.C. § 2301(b)(2) and 5 U.S.C. § 2302(b)(12) because:
(1) the writ was invalid, as the judgment amount was incorrect and improperly
included attorney’s fees; (2) the National Finance Center improperly submitted
payments to the state of Maryland; (3) the agency garnished wages in excess of
the amount permitted per week under “Federal Wage Garnishment Law” and the
Consumer Credit Protection Act; (4) the agency did not afford him the
opportunity to submit supporting affidavits or other documents pursuant to
5 C.F.R. § 581.302; and (5) neither the appellant nor the agency was served with
the writ of garnishment pursuant to MD Rule 2-121. PFR File, Tab 1 at 10-14.
He also argues that he filed a motion to cease and desist in state court and served
it on two agency human resources officials, but in the decision to effect his
removal, he was threatened with further wage garnishment and removed in
violation of 5 U.S.C. § 2302(b)(9). Id. at 12, 15. The appellant further renews6
his argument that he filed a complaint with the agency’s Office of Inspector
General (OIG) on October 10, 2017. Id. Finally, he argues that the
administrative judge erred in finding that he did not make protected disclosures
under 5 U.S.C. § 2302(b)(8). Id. at 14.
For the reasons set forth in the initial decision, the administrative judge
properly concluded that the appellant failed to show that the agency committed a
prohibited personnel practice by violating 5 U.S.C. § 2301(b)(2) or 5 U.S.C.
§ 2302(b)(12). ID at 10-12; see, e.g., Special Counsel v. Byrd , 59 M.S.P.R. 561,
579 (1993) (holding that, in order to prove a violation of 5 U.S.C. § 2302(b)(12),
one must prove: (1) a personnel action was taken; (2) the taking of this action
violated a civil service law, rule, or regulation; and (3) the law, rule, or regulation
violated implements or directly concerns a merit system principle), aff’d sub nom.
Byrd v. Merit Systems Protection Board , 39 F.3d 1196 (Fed. Cir. 1994) (Table).2
However, we modify the initial decision to expand the administrative judge’s
analysis of the appellant’s claims that the agency violated 5 U.S.C. § 2302(b)(8)
and 5 U.S.C. § 2302(b)(9). In an adverse action appeal in which the appellant
raises a prohibited personnel practice affirmative defense that independently
could form the basis of an individual right of action appeal, once the agency
proves its adverse action case by preponderant evidence, the appellant must show
by preponderant evidence that he made a disclosure protected under 5 U.S.C.
§ 2302(b)(8) or engaged in protected activity protected under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D); and that the protected disclosure or activity
was a contributing factor in the agency’s personnel action. 5 U.S.C. § 1221(e)(1);
Alarid v. Department of the Army , 122 M.S.P.R. 600, ¶¶ 12-13 (2015); Shibuya v.
Department of Agriculture , 119 M.S.P.R. 537, ¶ 19 (2013). If the appellant
makes both of these showings by preponderant evidence, the burden of persuasion
shifts to the agency to prove by clear and convincing evidence that it would have
2 At the time of the issuance of Byrd, the current 5 U.S.C. § 2302(b)(12) was located at
5 U.S.C. § 2302(b)(11). See Byrd, 59 M.S.P.R. at 579 (quoting the prior version of the
statute).7
taken the same personnel action in the absence of the appellant’s protected
activity. 5 U.S.C. § 1221(e)(2); Alarid, 122 M.S.P.R. 600, ¶ 14.
The administrative judge found that the appellant did not provide any
evidence or argument that the agency retaliated against him for disclosing
protected information or exercising his rights in an appeal or complaint, but did
not analyze the appellant’s allegations in any detail. ID at 10-12. We find that
the appellant made sufficient allegations to warrant additional analysis than that
provided by the administrative judge, but that the appellant did not show that an
allegedly protected disclosure or protected activity was a contributing factor in
his removal. To establish that he made a protected disclosure, the appellant must
show by preponderant evidence that he disclosed information that he reasonably
believed evidenced a violation of a 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. § 2308(b)(8)(A);
Shibuya, 119 M.S.P.R. 537, ¶ 20. First, the appellant alleges that he wrote letters
to two agency human resources officials in September 2017 and served them with
a copy of the cease and desist motion that he filed in state court on June 21, 2018.
PFR File, Tab 1 at 12, 15, see IAF, Tab 14 at 32-33, 37-41. The September 2017
letters reflect that the appellant accused the agency of failing to comply with MD
Rules 1-323 and 2-321, and 5 C.F.R. § 581.302 and 5 C.F.R. § 581.305, because
the writ of garnishment was not served on him or the agency, the agency did not
mail him a copy of its answer to the writ, and he was not afforded the ability to
provide the agency with supporting affidavits or other documents. IAF, Tab 14
at 37-41.
We do not find that, in sending these letters, the appellant reasonably
believed that the agency had violated Maryland state rules or Federal regulations.
To determine whether an appellant had a reasonable belief that his disclosures
were protected, the Board will examine whether a disinterested observer with
knowledge of the essential facts known to, and readily ascertainably by, the8
appellant could reasonably conclude that the actions evidenced a violation of law,
rule, or regulation, or one of the other conditions set forth in 5 U.S.C.
§ 2302(b)(8). Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365, ¶ 5
(2013). The appellant himself submitted a copy of a Maryland state rule
providing that, even if the appellant asserted a defense against the garnishment,
the agency was nevertheless required to remit withheld wages to the state court.
Id. at 47. Additionally, the appellant did not identify how submitting supporting
documents to the agency would have affected the agency’s implementation of the
wage garnishment. Viewed in their entirety, the appellant’s citation of state rules
and Federal regulations appear to be an attempt to delay the implementation of a
Maryland court order directing him to pay child support arrears, rather than based
on any reasonable belief that a violation of a law, rule, or regulation had
occurred. See IAF, Tabs 4, 14.
Next, the appellant alleges that, on April 24, 2018, he provided the agency
official who proposed his removal with the two September 2017 letters that he
sent to the human resources officials. PFR File, Tab 1 at 12, 15; see IAF, Tab 14
at 30. As set forth above, any allegations that the appellant made in the letters
were not protected disclosures. The appellant also alleges that the agency official
who issued the decision to remove him threatened him regarding the wage
garnishment. PFR File, Tab 1 at 12, 15. To the extent that the appellant alleges
that he made protected disclosures to the deciding official, it appears that, in the
appellant’s written reply to his removal, he alleged that the human resources
official responsible for implementing his wage garnishment failed to follow
proper legal procedures, rules, and laws; and provided the deciding official with
the September 2017 letters. IAF, Tab 4 at 35-41, 50-55. As discussed above,
these allegations do not constitute protected disclosures. The appellant also
alleged to the deciding official that the agency improperly withheld pay in
violation of the “CCPA” for pay period 6. Id. at 36. The appellant has not
provided any evidence or argument beyond his bare assertions that this alleged9
disclosure constituted a violation of a statute, thus we find that he has not proven
by preponderant evidence that his allegation constituted a reasonable belief of
such a violation.
Additionally, the appellant specifically alleges that the agency threatened
him with wage garnishment in violation of 5 U.S.C. § 2302(b)(9)(A)(i). PFR
File, Tab 1 at 12, 15. The appellant appears to allege that, by filing a June 2018
motion in the applicable Maryland court to end the wage garnishment, which he
alleges that he provided to the two above-referenced human resources officials,
he engaged in protected activity. In order to be protected under 5 U.S.C.
§ 2302(b)(9)(A)(i), the appellant must have exercised an appeal right with regard
to remedying a violation of 5 U.S.C. § 2302(b)(8). In moving to end the
garnishment, the appellant was not seeking to remedy agency reprisal for making
protected disclosures; rather, he was seeking to change a state court order
pertaining to wage garnishment for child support arrears, and we do not find that
this constituted protected activity under 5 U.S.C. § 2302(b)(9)(A)(i).
Finally, the appellant alleged that he filed an OIG complaint in October
2017, which constitutes protected activity under 5 U.S.C. § 2302(b)(9)(C);
however, he did not allege that this complaint was a contributing factor in his
removal, or that any agency official involved in his removal was aware of his
OIG complaint. PFR File, Tab 1 at 12, 15; see IAF, Tab 29 (testimony of the
appellant). As such, we do not find that the appellant proved by preponderant
evidence his affirmative defense of whistleblower reprisal. We affirm the initial
decision as modified herein.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
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.10
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time 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 particular11
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 . 12
Alternatively, you may request review by the Equal Employment
Opportunity Commission (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 court13
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. 1510.14
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.15 | Stringfellow_AllanDC-0752-18-0712-I-1__Final_Order.pdf | 2024-05-21 | ALLAN STRINGFELLOW v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DC-0752-18-0712-I-1, May 21, 2024 | DC-0752-18-0712-I-1 | NP |
1,410 | https://www.mspb.gov/decisions/nonprecedential/Morton_Stacey_D_DA-0432-18-0352-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STACEY D. MORTON,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
DA-0432-18-0352-I-1
DATE: May 20, 2024
THIS ORDER IS NONPRECEDENTIAL1
Terrence Johns , New Orleans, Louisiana, for the appellant.
Julieanna Walker and Marion Brown , New Orleans, Louisiana, 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 that
sustained her chapter 43 removal from the agency for unacceptable performance
and found that she did not prove the affirmative defenses of discrimination based
on her race, color, and disability, and retaliation for prior equal employment
opportunity (EEO) activity. For the reasons discussed below, we GRANT 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).
petition for review. We MODIFY the initial decision to apply the appropriate
legal standards to the appellant’s claim of disparate treatment disability
discrimination and REMAND the appeal to the Dallas 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).
BACKGROUND
The appellant worked for the agency as a GS-12 Systems Accountant and
was responsible for analyzing material to guarantee the accuracy of transactions
and reports, ensuring the integrity of accounting systems, and improving system
efficiencies through recommendations for modification. Initial Appeal File
(IAF), Tab 1 at 2, Tab 8 at 55-57. In August 2017, the agency placed the
appellant on a 60-day performance improvement plan (PIP) due to her
unacceptable performance in two critical elements and one noncritical element of
her performance standards. IAF, Tab 8 at 80-84. The PIP notice outlined the
appellant’s unacceptable performance, described what successful performance on
the included elements consisted of, listed tasks for each element that the appellant
needed to complete during the PIP, and warned the appellant that removal was
possible if she did not improve her performance in each critical element to a
successful level. Id. When the PIP concluded, the appellant’s supervisor
determined that the appellant had not raised her level of performance to a
successful level on the mission results and research and analysis critical elements
due to errors in her work, untimely submission of assignments, and her failure to
complete research and analysis to identify cases or corrective action. Id.
at 43-48. As a result, the agency proposed the appellant’s removal. Id. After
considering the appellant’s written and oral replies to the proposal and the
supporting evidence, the deciding official removed the appellant, effective
April 27, 2018. Id. at 29-33.2
The appellant filed a Board appeal contesting her removal and raising the
affirmative defenses of discrimination based on her race (African American),
color (brown), disability (deafness in one ear), and retaliation for prior EEO
activity. IAF, Tab 1, Tab 13 at 3, Tab 22 at 3. After holding the requested
hearing, the administrative judge issued an initial decision sustaining the
appellant’s removal for unacceptable performance, finding that the agency met its
burden of proving by substantial evidence each of the required elements of a
chapter 43 action. IAF, Tab 24, Tab 25, Initial Decision (ID) at 7-13. The
administrative judge also found that the appellant failed to prove any of her
affirmative defenses. ID at 13-22. The appellant then filed a petition for review,
and the agency responded in opposition. Petition for Review (PFR) File, Tabs 1,
3.
DISCUSSION OF ARGUMENTS ON REVIEW
We modify the initial decision to apply the appropriate legal standards to the
appellant’s disparate treatment disability discrimination claim.
In her appeal, the appellant raised the affirmative defenses of
discrimination based on her race, color, disability, and retaliation for prior EEO
activity. IAF, Tab 13 at 3, Tab 22 at 3. The administrative judge determined in
the initial decision that the appellant failed to prove that her race, color, or EEO
activity was a motivating factor in her removal, or establish disability
discrimination based on her allegations of failure to accommodate or disparate
treatment. ID at 13-22. On review, the appellant makes reference to the
retaliation for EEO activity affirmative defense when she states that the proposing
official knew of her prior EEO activity when she issued the proposed removal.
PFR File, Tab 1 at 4. The administrative judge acknowledged this undisputed
fact in the initial decision and considered it in her analysis when ultimately
concluding that both the proposing and deciding officials had no motive to
retaliate against the appellant for her prior EEO activity. ID at 17-18. Our
review reaches the identical conclusion on the EEO retaliation claim. Further, on3
review, the appellant does not specifically dispute the administrative judge’s
findings regarding her failure to prove discrimination based on race and color,
and her claim that the agency failed to accommodate her. ID at 13-22; PFR File,
Tab 1. We see no reason to disturb these findings either. We do, however,
modify the initial decision to apply the current, appropriate legal standards to the
appellant’s affirmative defense of disparate treatment disability discrimination.
The administrative judge analyzed the appellant’s disparate treatment
disability discrimination claim under the framework from McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-05 (1973). ID at 19-22. In Pridgen v. Office
of Management and Budget , 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
employment discrimination. We therefore take no issue with the administrative
judge’s application of the framework for that purpose. But the Board in Pridgen
held that the same standards of proof applicable to Title VII claims, including
claims of retaliation for opposing discrimination in violation of Title VII , apply
to claims of disparate treatment disability discrimination. Id., ¶¶ 30, 42. Thus,
an appellant may prove a claim of disparate treatment disability discrimination
under the motivating factor standard, in other words, by proving that prohibited
discrimination “play[ed] any part in the way a decision [was] made.” Id.,
¶¶ 20-21.2
2 The administrative judge correctly applied the motivating factor standard to conclude
that the appellant did not establish that her removal was motivated by her race, color, or
EEO activity. ID at 15, 19. 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
discrimination or retaliation was a “but -for” cause of the agency’s decisions. See
Pridgen, 2022 MSPB 31, ¶¶ 20-22, 29 -33. To the extent the appellant’s EEO retaliation
claim constituted a claim of retaliation under the Americans with Disabilities Act, to
which Pridgen, 2022 MSPB 31, ¶ 46, held that the “but-for” standard applied, the
administrative judge applied the correct standard in finding that the appellant did not4
Ultimately, however, application of the Pridgen standards does not require
disturbing the administrative judge’s denial of the appellant’s disparate treatment
disability discrimination claim. In denying the claim, the administrative judge
found that the appellant did not establish that either the proposing or deciding
officials knew her to be disabled, did not show that anyone involved in her
removal harbored any animus towards her because of her disability, and did not
present evidence of similarly situated non-disabled comparators who were treated
better than she was. ID at 22. In light of these unchallenged findings, we
conclude that the appellant did not establish even the lower burden set forth in
Pridgen that her disability was a motivating factor in her removal.
Remand is required in light of Santos .
We discern no basis to disturb the administrative judge’s findings that the
agency proved by substantial evidence all of the elements it was required to prove
in a chapter 43 performance-based removal under the law as it existed at the time.
The administrative judge’s findings regarding those elements are supported by the
evidence, the inferences are appropriate, and the credibility determinations are
reasoned. ID at 1-23; see Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6
(2016) (finding no reason to disturb the administrative judge’s findings where she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions) ; Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (same).
In her petition for review, the appellant reiterates one of the arguments that
she raised before the administrative judge —that the agency did not provide her
with a reasonable opportunity to demonstrate that her performance improved to an
acceptable level because her PIP period lasted 60 days instead of 90 days. PFR
File, Tab 1 at 4-5. At no juncture does the appellant cite to any authority
requiring the agency to afford her a 90-day PIP period. The agency’s procedures
outline that a PIP period can last 60 days. IAF, Tab 12 at 37. Further, when
prove that she would not have been removed but for her EEO activity. ID at 15, 19. 5
assessing whether an agency afforded an employee a reasonable opportunity to
demonstrate acceptable performance, relevant factors include the nature of the
duties and responsibilities of the employee’s position, the performance
deficiencies involved, and the amount of time given to the employee to
demonstrate acceptable performance. Lee v. Environmental Protection Agency ,
115 M.S.P.R. 533, ¶ 32 (2010). The Board also considers the level of assistance
provided to the employee during the PIP period. See Bare v. Department of
Health and Human Services , 30 M.S.P.R. 684, 687-88 (1986).
In this instance, the agency informed the appellant through the PIP notice
of her unacceptable performance in the two critical elements for which she was
ultimately removed, listed the tasks that she was required to perform to
demonstrate successful performance, and stated that if she did not improve her
performance in each of the critical elements to the successful level at the
conclusion of the PIP, her removal was possible. IAF, Tab 8 at 80-84. While the
agency did assign the appellant new accounting responsibilities over three smaller
offices in May 2017, the appellant served as a Systems Accountant since 2012
and at the GS-12 level since 2015, and she admittedly had familiarity with many
of the tasks assigned to her during the PIP period.3 Hearing Compact Disc (HCD)
(testimony of the appellant; testimony of the appellant’s first-line supervisor).
The PIP tasks correlated with the core duties of the appellant’s position and broke
down larger assignments into short-term, quantifiable steps. IAF, Tab 8 at 55-57,
80-83.
Relatedly, during the PIP period, the appellant’s first- and second-line
supervisors met with her on at least five occasions to provide feedback on the
appellant’s work product and to answer questions and provide assistance. Id.
3 The agency assigned the appellant these new responsibilities at her request. Hearing
Compact Disc (testimony of the appellant; testimony of the appellant’s first-line
supervisor). The evidence demonstrates that handling the accounting tasks for these
new offices was less complex compared to the work that the appellant performed for the
previous office. Id. (testimony of the appellant’s first-line supervisor; testimony of the
appellant’s second-line supervisor). 6
at 87, 90-92, 96-97, 100, 105, 107; HCD (testimony of the appellant’s first-line
supervisor). The appellant did not attend at least two other scheduled meetings of
this kind. IAF, Tab 8 at 101-104. The appellant’s first-line supervisor provided
her with detailed instructions, guidance, and tutorials to aide in her progression
during the PIP. IAF, Tab 10 at 83-88, Tab 11 at 6, 15-17. While the appellant
contends that the agency did not adequately train her, there is no evidence in the
record that the appellant ever sought training. HCD (testimony of the appellant).
Therefore, the 60-day PIP period presented a reasonable opportunity for the
appellant to show improvement to the successful level. See Melnick v.
Department of Housing and Urban Development , 42 M.S.P.R. 93, 101-02 (1989)
(finding a 30-day PIP period sufficient in length to demonstrate acceptable
performance), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table). The fact that the
appellant could have been provided with a longer PIP period does not, in itself,
undermine the propriety of the 60-day PIP period at issue here.
In any event, though the appellant has identified no basis for us to disturb
the administrative judge’s findings below, 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).7
On remand, the administrative judge shall accept evidence and argument on
whether the agency proved by substantial evidence that the appellant’s pre-PIP
performance was unacceptable. The administrative judge shall hold a
supplemental hearing if appropriate. The administrative judge shall then issue a
new initial decision consistent with Santos. If the agency makes the additional
showing required under Santos on remand, the administrative judge may
incorporate her prior findings on other elements of the agency’s case in the
remand initial decision. However, regardless of whether the agency meets its
burden, if the argument or evidence on remand regarding the appellant’s pre-PIP
performance affects the 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 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.8 | Morton_Stacey_D_DA-0432-18-0352-I-1__Remand_Order.pdf | 2024-05-20 | STACEY D. MORTON v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DA-0432-18-0352-I-1, May 20, 2024 | DA-0432-18-0352-I-1 | NP |
1,411 | https://www.mspb.gov/decisions/nonprecedential/Dean_DavidAT-3330-19-0391-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID DEAN,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
AT-3330-19-0391-I-1
DATE: May 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David Dean , Lugoff, South Carolina, pro se.
Sandra Soderstrom , 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
denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA). Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
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 administrative judge docketed separate appeals under VEOA and the
Uniformed Services Employment and Reemployment Rights Act of 1994
regarding the appellant’s unsuccessful application for the position of Partnership
Specialist, GG-0301-11/12-Census-EXT-AFC, under vacancy announcement
number RCC2020ATL-2019-0270, which recruited for vacancies in Richland
County, South Carolina. Dean v. Department of Commerce , MSPB Docket No.
AT-3330-19-0391-I-1, Initial Appeal File (0391 IAF), Tabs 1 -3, 5; Dean v.
Department of Commerce , MSPB Docket No. AT-4324-19-0270-I -1, Initial
Appeal File (0270 IAF), Tabs 1-2, 12. In the present appeal, the administrative
judge issued a jurisdiction order setting forth the applicable burdens under VEOA
and ordered the parties to file evidence and argument establishing the Board’s
jurisdiction. 0391 IAF, Tab 3 at 2-7. The order also informed the parties that, if
the appellant met his jurisdictional burden, the administrative judge would hold a
hearing if the appellant has requested one and there was a genuine dispute of
material fact, or would allow for further development of the written record. Id.
at 7-8. The appellant and the agency filed jurisdictional responses. 0391 IAF,
Tabs 5-6.2
During the pendency of the appeal, the appellant withdrew his request for a
hearing. 0391 IAF, Tab 8 at 3. In an initial decision based on the written record,
the administrative judge found that the appellant had established Board
jurisdiction over his VEOA appeal but failed to establish that his veterans’
preference rights were violated. 0391 IAF, Tab 11, Initial Decision (0391 ID)
at 2, 4. In particular, the administrative judge determined that the agency’s
decision to open the vacancy only to residents of a certain county did not violate
his veterans’ preference rights. 0391 ID at 2-3. The administrative judge also
found that, because the agency was not seeking to hire a nonveteran who ranked
lower on the hiring certificate, 5 U.S.C. § 3318 “pass over” procedures did not
apply. 0391 ID at 3-4. The appellant has filed a petition for review, the agency
has filed a response, and the appellant has filed a reply thereto. Dean v.
Department of Commerce , MSPB Docket No. AT-3330-19-0391-I-1,
0391 Petition for Review (0391 PFR) File, Tabs 1, 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s arguments on review fail to establish any material error in
the initial decision. He primarily argues that the agency committed a prohibited
personnel practice2 by limiting the geographic area of consideration because a
disabled veteran who did not reside in the specified county could not apply for
2 The administrative judge properly found that the appellant established jurisdiction
over this appeal pursuant to VEOA. 0391 ID at 2; see 5 U.S.C. § 3330a; Haasz v.
Department of Veterans Affairs , 108 M.S.P.R. 349, ¶ 6 (2008 ). The Board cannot
obtain jurisdiction over claims of prohibited personnel practices claims through VEOA.
See Goldberg v. Department of Homeland Security , 99 M.S.P.R. 660, ¶ 11 (2005); see
also 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) (stating that, absent an otherwise appealable action, the Board
lacks jurisdiction over claims of prohibited personnel practices under 5 U.S.C.
§ 2302(b)). Therefore, to the extent that the administrative judge erred in failing to
address explicitly the appellant’s vague statement that the agency had “committed a
Prohibited Personnel Action,” the Board lacks jurisdiction to address such a claim.
0391 IAF, Tab 5 at 7; ID at 1-4; 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). 3
the position. 0391 PFR File, Tab 1 at 4, Tab 4 at 3. He asserts generally that the
administrative judge improperly applied VEOA. 0391 PFR File, Tab 1 at 4.
Finally, in his reply, he asserts for the first time that “[c]ircumstantial evidence
suggests that illegal aliens, ex-convicts, and one Mexican citizen” were amongst
the nonveterans whom the agency improperly referred or hired for the Partnership
Specialist position. 0391 PFR File, Tab 4 at 3. The appellant did not submit into
the record this alleged “[c]ircumstantial evidence” or provide any further
information regarding this claim. 0391 PFR File, Tab 1 at 4, Tab 4 at 3.
Although the appellant withdrew his request for a hearing, the
administrative judge issued a decision without affording the parties the
opportunity to make final submissions regarding the merits of his VEOA claim
prior to the close of the record, in accordance with her jurisdiction order.
0391 IAF, Tab 3 at 7 -8, Tab 8 at 3; see Jarrard v. Department of Justice ,
113 M.S.P.R. 502, ¶ 11 (2010). Nonetheless, we find that remand is unnecessary
because the record of the dispositive issues is fully developed, there is no genuine
dispute of material fact, and the agency must prevail as a matter of law. See
Haasz v. Department of Veterans Affairs , 108 M.S.P.R. 349, ¶¶ 9-10 (2008)
(stating that the Board may decide the merits of a VEOA appeal without a hearing
when there is no genuine dispute of material fact and one party must prevail as a
matter of law).
When, as here, an agency accepts applications from outside its workforce,
5 U.S.C. 3304(f)(1) allows certain preference-eligibles or veterans to compete for
the vacant position. See generally Montgomery v. Department of Health &
Human Services , 123 M.S.P.R. 216, ¶¶ 4-5 (2016). The right to compete pursuant
to 5 U.S.C. § 3304(f)(1) does not preclude an agency from eliminating a veteran
or preference-eligible from further consideration for a position based on his
qualifications for the position, and nothing requires that the veteran or
preference-eligible be considered at every stage of the selection process.
Harellson v. U.S. Postal Service , 113 M.S.P.R. 534, ¶ 11 (2010); see also Lazaro4
v. Department of Veterans Affairs , 666 F.3d 1316, 1319 (Fed. Cir. 2012) (“[T]he
VEOA does not enable veterans to be considered for positions for which they are
not qualified.”); Dale v. Department of Veterans Affairs , 102 M.S.P.R. 646, ¶ 13
(2006) (same). It is undisputed that the appellant was not a current resident of
Richland County at the time of his application for the Partnership Specialist
position and that the vacancy announcement expressly stated that applicants must
be residents of the county in order to be considered for the “Work-at-Home”
position. 0391 IAF, Tab 5 at 4; 0270 IAF, Tab 1 at 4, Tab 10 at 23, 36-37.3
Therefore, it is undisputed that the appellant did not meet the articulated
geographic area of consideration requirement.
The appellant’s repeated assertions that the geographic area of
consideration was “impermissible” are unpersuasive. 0391 PFR File, Tab 4 at 3;
0391 IAF, Tab 5 at 7. Pursuant to Office of Personnel Management regulation, an
area of consideration must be sufficiently broad to ensure the availability of high
quality candidates, taking into account the nature and level of the positions
covered. 5 C.F.R. § 335.103(b)(2). In Montee v. Department of the Army ,
110 M.S.P.R. 271, ¶¶ 8-10 (2008), the Board found that a residency requirement
or geographic area of consideration related to the skills, experience, education or
other qualifications that would be required of an individual appointed to the
position in question would not violate VEOA. See also O’Brien v. Office of
Personnel Management , 118 F. App’x 484, 486 (Fed. Cir. 2004)4 (finding that an
agency has the right to geographically limit a vacancy announcement “so long as
3 The agency’s response to the jurisdiction order in the present appeal incorporates by
reference the entirety of its narrative response and motion to dismiss in the 0270 appeal.
0391 IAF, Tab 6 at 7-8; 0270 IAF, Tab 10. The agency cites to the record in the
0270 appeal throughout this pleading, which it filed in both appeals. 0391 IAF, Tab 6
at 5-9; 0270 IAF, Tab 15 at 5-9. Therefore, we have considered the documentary
evidence submitted by the agency with its narrative response in the 0270 appeal as
incorporated by reference into the record of the present appeal.
4 Although O’Brien is an unpublished decision, the Board may rely on unpublished U.S.
Court of Appeals for the Federal Circuit decisions when, as here, it finds the court’s
reasoning persuasive. Mauldin v. U.S. Postal Service , 115 M.S.P.R. 513, ¶ 12 (2011 ).5
the area of consideration is sufficiently broad to ensure the availability of high
quality candidates,” even when there are applicants under 5 U.S.C. § 3304(f)(1)).
As discussed in the initial decision, the agency put forth evidence and
argument concerning the importance of current community ties within the
relevant county to the performance of the position. 0391 ID at 2-3; 0270 IAF,
Tab 10 at 6-7, 39. Although the appellant argued that the agency’s decision to
restrict eligibility for the Partnership Specialist position to residents of Richland
County “benefited only those residing within the county lines,” 0391 IAF, Tab 5
at 8, he has not challenged the availability of high-quality candidates for the
position amongst the eligible population, 0391 IAF, Tabs 1, 5; 0391 PFR File,
Tabs 1, 4. As asserted by the appellant, the residency requirement precluded
preference eligibles “from applying [and qualifying] for the position unless they
were living within” the county. 0391 IAF, Tab 5 at 7. However, regardless of the
appellant’s vague statement on review describing nonveterans purportedly
referred or selected, 0391 PFR File, Tab 4 at 3, the record demonstrates that the
residency restriction did not have the overall effect of excluding veterans. The
delegating examining certificate demonstrated that all three selectees, and four of
the individuals referred, were preference-eligible disabled veterans. 0270 IAF,
Tab 10 at 19-22.5
The undisputed record demonstrates that the agency’s decision not to refer
his application to the hiring authority for failing to meet the geographic area of
consideration, a qualification of the position, did not violate the appellant’s
veterans’ preference rights. 0391 IAF, Tab 5 at 7-8; 0270 IAF, Tab 10 at 22 -24;
5 We take official notice that the veterans’ preference code “CPS” on the certificate
means “10-point 30 Percent Compensable Disability Preference based on a
service-connected disability of 30% or more” as set forth in chapter 4, § B, page 4-18 of
the Office of Personnel Management’s Delegated Examining Operations Handbook: A
Guide for Federal Agency Examining Offices (2019), https://www.opm.gov/policy-data-
oversight/hiring-information/competitive-hiring/deo_handbook.pdf (last visited May 20,
2024). 5 C.F.R. § 1201.64 (providing that the Board may take official notice of matters
that can be verified); see Perkins v. U.S. Postal Service , 100 M.S.P.R. 48, ¶ 12 n.4
(2005).6
see Harellson, 113 M.S.P.R. 534, ¶ 11. The appellant has not challenged, and we
find no reason to disturb, the administrative judge’s finding that the 5 U.S.C.
§ 3318 “pass over” procedures do not apply to the circumstances alleged in this
appeal. 0391 ID at 3-4; 0270 IAF, Tab 10 at 19-21. Therefore, we find that the
agency is entitled to prevail as a matter of law, and we affirm the initial decision
denying the appellant’s request for corrective action under VEOA.
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
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
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 file8
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 9
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and 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.
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 10
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Dean_DavidAT-3330-19-0391-I-1__Final_Order.pdf | 2024-05-20 | DAVID DEAN v. DEPARTMENT OF COMMERCE, MSPB Docket No. AT-3330-19-0391-I-1, May 20, 2024 | AT-3330-19-0391-I-1 | NP |
1,412 | https://www.mspb.gov/decisions/nonprecedential/Dean_DavidAT-4324-19-0270-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID DEAN,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
AT-4324-19-0270-I-1
DATE: May 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David Dean , Lugoff, South Carolina, pro se.
Sandra Soderstrom , 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 for lack of jurisdiction his request for corrective action under the
Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA). 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. 5 C.F.R. § 1201.113(b).
On review, the appellant repeats his argument that the geographic area of
consideration for the Partnership Specialist position improperly excluded disabled
veterans. Petition for Review (PFR) File, Tab 1 at 4, Tab 4 at 3; Initial Appeal
File (IAF), Tab 4 at 2-3, Tab 14 at 4, Tab 18 at 4. He provides no basis for
overturning the administrative judge’s finding that he failed to make a
nonfrivolous allegation2 that the agency’s actions concerning the vacancy were
motivated by his status as a veteran. IAF, Tab 19, Initial Decision (ID) at 3; see
38 U.S.C. § 4311(a); Beck v. Department of the Navy , 120 M.S.P.R. 504, ¶ 8
(2014).
The appellant also argues that the “entire hiring of Census employees in
South Carolina during 2019” constituted a prohibited personnel practice. PFR
File, Tab 4 at 3. As the administrative judge informed the appellant in the
jurisdiction order, the Board’s jurisdiction under USERRA does not include a
review of other prohibited personnel practice claims. IAF, Tab 12 at 5; see
2 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s). The regulation further provides, “[a]n allegation generally
will be considered nonfrivolous when, under oath or penalty of perjury, an individual
makes an allegation that: (1) [i]s more than conclusory; (2) [i]s plausible on its face;
and (3) [i]s material to the legal issues in the appeal.” Id. 2
Davis v. Department of Defense , 105 M.S.P.R. 604, ¶ 16 (2007) (stating that,
absent an otherwise appealable action, the Board lacks jurisdiction over
prohibited personnel practice claims under 5 U.S.C. § 2302(b)); see also 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). To the extent that the administrative judge erred in failing to
address explicitly the appellant’s vague statement that allowing “only select
member[s] of the public to apply” for certain positions constituted a “Prohibited
Personnel Action,” this claim provides no basis for Board jurisdiction over his
appeal. IAF, Tab 18 at 4; ID at 1-3; see Davis, 105 M.S.P.R. 604, ¶ 16; 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).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain4
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 5
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Dean_DavidAT-4324-19-0270-I-1__Final_Order.pdf | 2024-05-20 | DAVID DEAN v. DEPARTMENT OF COMMERCE, MSPB Docket No. AT-4324-19-0270-I-1, May 20, 2024 | AT-4324-19-0270-I-1 | NP |
1,413 | https://www.mspb.gov/decisions/nonprecedential/Craft_Bettey_S_AT-3443-19-0366-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BETTEY S. CRAFT,1
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
AT-3443-19-0366-I-1
DATE: May 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL2
Bettey S. Craft , McDonough, Georgia, pro se.
Eric Y. Hart , Indianapolis, Indiana, 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 for lack of jurisdiction. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
1 During the proceedings below, the appellant requested that the case caption be
modified to reflect her correct middle initial, and we have modified the case caption
accordingly. Initial Appeal File, Tab 6.
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 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 makes numerous arguments, all of
which concern the U.S. Department of Labor’s Office of Workers’ Compensation
Programs (OWCP) decisions that she challenged below. Petition for Review
(PFR) File, Tab 1. Specifically, the appellant argues that OWCP erroneously
determined that it had made an overpayment of her benefits and improperly
terminated her benefits in proceedings that violated her due process rights and
were the result of an erroneous medical opinion. Id. at 8-24. Additionally, the
appellant alleges that she was subjected to a reduction in grade, that she has a
mixed case appeal under 29 C.F.R. § 1614.302, and that the agency violated her
reemployment rights, but she has not submitted evidence that any such actions
occurred outside of the OWCP proceedings. Id. at 1-5. As set forth in the initial
decision, OWCP decisions are final regarding an employee’s entitlement to
workers’ compensation benefits, and the Board does not have jurisdiction over
such claims. Initial Appeal File (IAF), Tab 8; see Lee v. Department of Labor ,
76 M.S.P.R. 142, 146 (1997).
The appellant also argues, for the first time on review, that she was
subjected to whistleblower reprisal. PFR File, Tab 1 at 1, 3-4. The Board2
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.3 5 C.F.R. § 1201.115; see
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980). The appellant has
not explained why she failed to raise this claim below; thus, we decline to
consider it. 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
3 To the extent the appellant believes that she has suffered a personnel action as defined
in 5 U.S.C. § 2302(a)(2)(A) in reprisal for a protected disclosure described under
5 U.S.C.§ 2302(b)(8) or protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i),
(B), (C), or (D), she may wish to file a complaint with the Office of Special Counsel, if
she has not already done so. After exhausting her administrative remedies before that
agency, she may file an individual right of action appeal with the regional office
consistent with the Board's regulations. 5 C.F.R. part 1209. We make no findings
regarding any issues concerning such an appeal in this decision.
4 The appellant’s initial appeal also appears to be untimely; however, because we find
that the Board lacks jurisdiction over the appellant’s claims, we do not reach the issue
of timeliness. IAF, Tab 1. Additionally, the appellant’s motion to accept as timely
filed her reply to the agency’s response to the petition for review is denied for failure to
show good cause to waive the time limit. PFR File, Tab 6.
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
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Craft_Bettey_S_AT-3443-19-0366-I-1__Final_Order.pdf | 2024-05-20 | null | AT-3443-19-0366-I-1 | NP |
1,414 | https://www.mspb.gov/decisions/nonprecedential/Parkinson_John_C_SF-0752-13-0032-C-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN C. PARKINSON,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
SF-0752-13-0032-C-1
DATE: May 20, 2024
THIS ORDER IS NONPRECEDENTIAL1
Kathleen McClellan , Esquire, and Jesselyn Radack , Esquire,
Washington, D.C., for the appellant.
Celeste M. Wasielewski , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
ORDER
The agency has filed a petition for review and the appellant has filed a
cross petition for review of the compliance initial decision, which granted in part
the appellant’s petition for enforcement. Generally, 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
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 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. We AFFIRM the administrative judge’s conclusion that the
appellant was not entitled to back pay from September 14, 2012, through July 13,
2016, because he was unavailable to perform his duties due to the suspension of
his Top Secret security clearance, but he was entitled to be placed in the
appropriate leave category during this time frame. We further AFFIRM the
administrative judge’s conclusion that the appellant was entitled to back pay from
July 14, 2016, through December 17, 2018, because he had a Top Secret security
clearance from the Department of Defense Consolidated Adjudications Facility
(DoDCAF) during this time frame. We VACATE the administrative judge’s
analysis of the appellant’s return to duty, and we FIND that, during the time
frame from December 18 through 30, 2018, the agency was not in compliance
with the final Board decision. Except as explicitly modified herein, we AFFIRM
the compliance initial decision. We also REFER the petition for enforcement to
the Board’s Office of General Counsel for additional processing and issuance of a
final decision. See 5 C.F.R. § 1201.183(c).
BACKGROUND
The following pertinent facts are generally undisputed. The appellant held
the position of GS-1811-13 Special Agent with the Federal Bureau of
3
Investigations (FBI) when the agency proposed his removal on October 7, 2011,
based on four charges of alleged misconduct. Parkinson v. Department of
Justice, MSPB Docket No. SF-0752-13-0032-I-2, Appeal File (I-2 AF), Tab 6
at 61-75. On the same date, the agency suspended the appellant’s Top Secret
security clearance based on the allegations in the proposed removal. Parkinson v.
Department of Justice , SF-0752-13-0032-C-1, Compliance File (CF), Tab 1
at 19-20. The deciding official in the removal sustained all four charges, and the
appellant was removed from his position, effective September 13, 2012. I-2 AF,
Tab 6 at 38-40, 42-57.
Following a lengthy litigation history, on October 10, 2018, the
administrative judge issued an initial decision, mitigating the appellant’s removal
to a 15-day suspension after only one of four misconduct charges were sustained.
Id.; Parkinson v. Department of Justice , MSPB Docket No. SF-0752-13-0032-M-
2, Appeal File (M -2 AF), Tab 11. The initial decision ordered the agency to
cancel the removal action and substitute in its place a 15-day suspension without
pay, and to pay the appellant the appropriate amount of back pay, with interest,
within 60 days after the decision became final. CF, Tab 15, Compliance Initial
Decision (CID) at 2; M-2 AF, Tab 11 at 10. The initial decision became final on
November 14, 2018, after neither party filed a petition for review. CID at 1 n.1;
M-2 AF, Tab 11 at 12.
On December 17, 2018, the appellant was advised that the agency canceled
the removal and returned him to duty,2 effective September 13, 2012.3 CF, Tab 3
at 15-18. The agency revoked the appellant’s Top Secret security clearance on
December 31, 2018, and issued him a notice of proposed removal on January 14,
2 The agency indicated in its correspondence to the appellant that this was a “‘paper’
reinstatement.” CF, Tab 1 at 11.
3 The exact date that the removal was canceled and the appellant was returned to duty is
not in the record. Therefore, we will use the date of the agency’s correspondence,
December 17, 2018, as the date that the removal was canceled and the appellant was
returned to duty.
4
2019. CID at 5; CF, Tab 1 at 21-25. The appellant also submitted a request to
retire from the agency, effective April 25, 2019. CID at 5; CF, Tab 11
at 15, 44-49.
On January 31, 2019, the agency notified the appellant that it had no
obligation to pay him back pay because his security clearance (a requirement of
his Special Agent position) had been suspended and later revoked. CID at 2; CF,
Tab 1 at 17-18. This petition for enforcement followed. CF, Tab 1. The
administrative judge issued an acknowledgment order, to which the agency and
the appellant responded. CID at 2; CF, Tabs 2-4. The administrative judge
reopened the record on November 5, 2019, and both parties responded. CF,
Tabs 10-11, 13.
The administrative judge issued a compliance initial decision, in which he
made the following findings: (1) the agency did not waive its right to challenge
the October 2018 initial decision regarding back pay and benefits; (2) the
appellant was not entitled to back pay for the period of September 14, 2012,
through July 14, 2016, when he was unavailable to perform the duties of his
position due to his suspended security clearance, but he was entitled to be placed
in the appropriate leave category for this time period; (3) the appellant was
entitled to back pay beginning July 14, 2016, through December 31, 2018, when
he was given a Top Secret security clearance by DoDCAF; (4) the appellant was
not entitled to return to duty in his former position due to the agency’s revocation
of his Top Secret security clearance on December 31, 2018; and (5) placing the
appellant on paid administrative leave, effective January 1, 2019, pending a
decision on the proposed removal or retirement, would constitute compliance with
the return-to-duty order. CID at 5-11. The administrative judge therefore granted
in part the appellant’s petition for enforcement. CID at 11.
The administrative judge ordered the agency to (1) place the appellant in
the appropriate leave category (sick, annual, leave without pay (LWOP), paid
military leave, and military LWOP) for the period September 14, 2012, to
5
July 14, 2016, and pay the appropriate amount of pay, interest, and benefits to the
appellant in accordance with his leave status; (2) pay him back pay, interest, and
benefits from July 15, 2016, through December 31, 2018, less any interim
earnings; (3) place the appellant on administrative leave effective January 1,
2019; and pay him the appropriate amount of pay, interest, and benefits from that
date; and (4) provide an accounting to the appellant that he has received all of the
back pay, leave, interest, and other benefits owed to him in accordance with the
compliance initial decision. CID at 11-12.
The agency has filed a petition for review of the compliance initial
decision, the appellant has filed a response, and the agency has filed a reply.
Compliance Petition for Review (CPFR) File, Tabs 1, 3-4. The appellant has also
filed a cross petition for review, to which the agency has responded. CPFR File,
Tabs 3, 6.
In its petition for review, the agency contends that the administrative judge
erred in finding that the appellant was entitled to back pay from July 14, 2016,
until December 31, 2018, and in finding that the appellant should be placed on
paid administrative leave following the revocation of his Top Secret security
clearance on December 31, 2018. CPFR File, Tab 1 at 6-13. In his cross petition
for review, the appellant argues that he was entitled to back pay from
September 14, 2012, to July 14, 2016.4 CPFR File, Tab 3 at 18-22.
4 The appellant raises two procedural issues in his response. First, he argues that the
petition for review should be dismissed as untimely filed because it challenges the
October 10, 2018 initial decision as well as the compliance initial decision. CPFR File,
Tab 3 at 7-10. In response, the agency states that the appellant’s argument in this
regard “borders on the frivolous” because it only sought review of the two rulings from
the compliance initial decision on review. CPFR File, Tab 4 at 9. We agree with the
agency. Indeed, the agency’s arguments on review—that the administrative judge erred
when he found that the appellant was entitled to back pay from July 14, 2016, until
December 31, 2018, and when he found that the appellant should be placed on paid
administrative leave following the revocation of his Top Secret security clearance—are
patent challenges to the administrative judge’s findings in the compliance initial
decision. We therefore deny the appellant’s motion to dismiss the agency’s petition for
review as untimely filed.
6
DISCUSSION OF ARGUMENTS ON REVIEW
Legal standard
When the Board finds a personnel action unwarranted, the aim is to place
the employee, as nearly as possible, in the situation he would have been in had
the wrongful personnel action not occurred, i.e., the status quo ante. Tubesing v.
Department of Health and Human Services , 115 M.S.P.R. 327, ¶ 5 (2010); Sink v.
Department of Energy , 110 M.S.P.R. 153, ¶ 19 (2008); Black v. Department of
Justice, 85 M.S.P.R. 650, ¶ 6 (2000). In particular, the agency must reinstate the
appellant to his former position and duties absent a strong overriding interest or
compelling reasons for not doing so. Tubesing, 115 M.S.P.R. 327, ¶ 5; Labatte v.
Department of the Air Force , 58 M.S.P.R. 586, 594 (1993). The agency bears the
burden of proof on the issue of its compliance with a Board order. Tubesing,
115 M.S.P.R. 327, ¶ 5.
We affirm the administrative judge’s finding that the appellant was not
entitled to back pay from September 14, 2012, through July 13, 2016, because he
was unavailable to perform his duties due to the suspension of his Top Secret
security clearance, but he was entitled to be placed in the appropriate leave
category during this time frame.5
Second, the appellant moves to strike from the record the agency’s Exhibit A to the
agency’s petition for review. CPFR File, Tab 3 at 18. The agency’s reply brief does
not address this argument. CPFR File, Tab 4. Under 5 C.F.R. § 1201.115, the Board
will generally not consider evidence submitted for the first time with the petition for
review absent a showing that it was unavailable before the record was closed despite the
party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980).
The agency has not made such a showing here. Accordingly, we have not considered
Exhibit A in our analysis here.
5 There is a discrepancy in the compliance initial decision regarding the starting date of
the appellant’s entitlement to back pay. CID at 10. The heading of this section stated,
“[t]he appellant is entitled to back pay beginning July 14, 2016.” Id. (emphasis
supplied). Consistent with that heading, the administrative judge explained that
“beginning July 14, 2016,” the agency’s stated reason for denying the appellant back
pay—namely, his lack of a security clearance—no longer applied because DoDCAF
determined that he was eligible for a Top Secret security clearance. Id. However, the
administrative judge stated later in that same paragraph that, “ subsequent to July 14,
2016”—meaning starting on July 15, 2016—the agency was obligated to pay the
7
In the compliance initial decision, the administrative judge noted that an
employee subjected to an unwarranted or unjustified personnel action is generally
entitled to receive back pay equaling the amount the employee would have earned
if the action had not occurred. CID at 6 (citing 5 U.S.C. § 5596 and 5 C.F.R.
§ 550.805(a)). He further noted that, in computing back pay, an agency may not
include “[a]ny period during which an employee was unavailable for the
performance of his . . . duties for reasons other than those related to, or caused
by, the unjustified or unwarranted personnel action.” CID at 6 (citing 5 C.F.R.
§ 550.805(c)(2)).
The administrative judge determined that the appellant was not available to
perform his duties from September 14, 2012, through July 13, 2016, because his
Top Secret security clearance had been suspended by the agency on October 7,
2011, and pursuant to 5 C.F.R. § 550.805(c)(2), the agency was precluded from
paying him back pay and benefits during that time. CID at 6. The administrative
judge, relying on the Board’s nonprecedential decision in Brown v. Department of
Defense, MSPB Docket No. SF-0752-14-0310-C-2, Final Order (Jan. 6, 2017),
among other cases, found that an appellant whose position requires a security
clearance as a condition of employment is not entitled to back pay for any period
when his security clearance has been suspended. CID at 6-8. The administrative
judge acknowledged the appellant’s argument that the suspension of his security
appellant back pay and all attendant benefits. Id. (emphasis supplied). The
administrative judge ordered the agency to pay the appellant back pay, interest, and
benefits “from July 15, 2016, through December 31, 2018.” CID at 12. Because
DoDCAF issued the appellant a Top Secret security clearance on July 14, 2016, CF,
Tab 4 at 29, we find that the appellant’s entitlement to back pay should begin on this
date. Accordingly, we modify the compliance initial decision to find that he was
entitled to back pay starting on July 14, 2016, through December 17, 2018 for the
reasons described herein. We further modify the compliance initial decision to find that
the appellant was not entitled to back pay from September 14, 2012, through July 13,
2016, but he was entitled to be placed in the appropriate leave category during this time
frame for the reasons described herein. To minimize any confusion, our analysis will
describe the administrative judge’s findings in the compliance initial decision and will
construe the parties’ arguments on review to comport with these parameters.
8
clearance was “caused by the now overturned removal action” or was otherwise
related to it; he found that he was precluded from examining the reason why the
security clearance was suspended because doing so would constitute reviewing
the merits of the underlying security determination, which the Board cannot do.
CID at 8. Because it was undisputed that the appellant’s position required a Top
Secret security clearance and the clearance was suspended, the administrative
judge concluded that the appellant was not entitled to back pay under 5 C.F.R.
§ 550.805(c), irrespective of the reason for the suspension, because he was not
eligible to perform his duties. Id. Notwithstanding these findings, the
administrative judge concluded that the agency must place the appellant in the
appropriate leave category because, among other things, he was on active military
duty and the agency granted his request for leave pursuant to the Family and
Medical Leave Act of 1993 during this time frame. CID at 4, 8-10.6
In his cross petition for review, the appellant contends that the
administrative judge erred by finding that he was not entitled to receive back pay
for this time frame. CPFR File, Tab 3 at 18-22. In pertinent part, he notes that
5 C.F.R. § 550.805(c)(2) only disallows back pay when the employee’s
unavailability is caused by reasons “other than those related to, or caused by, the
unjustified or unwarranted personnel action,” and he asserts that the 2011
suspension of his security clearance “was caused only by the unjustified removal
action.” Id. at 19 (emphasis in original). He also asserts that he consistently
maintained his security clearance eligibility with the Department of Defense
between 2010-2018, so his unavailability could only be due to the
now-overturned removal action. Id. The appellant contends that the
administrative judge erred in relying on the nonprecedential decision in Brown
6 To that end, the administrative judge ordered the agency to place the appellant in the
appropriate leave category (sick, annual, LWOP, paid military leave, and military
LWOP) for the period September 14, 2012, to July 13, 2016, and to pay the appropriate
amount of pay, interest, and benefits to the appellant in accordance with his leave
status. CID at 11-12. Neither party challenges this finding on review, and we do not
disturb this aspect of the compliance initial decision.
9
because Mr. Brown’s security clearance was suspended 1 year before the removal
action and was not a result of the proposed removal action. Id. at 20. The
appellant contends instead that the Board has found significant the reason that
certain appellants lacked a security clearance. Id. (discussing White v.
Department of the Army , MSPB Docket No. AT-0752-05-0119-C-2, Compliance
Initial Decision (Aug. 3, 2006), and King v. Department of the Navy ,
100 M.S.P.R. 116 (2005), aff’d, 167 F. App’x 191 (Fed. Cir. 2006)). The
appellant further asserts that the administrative judge’s finding that he was
precluded from examining the reason why the security clearance was suspended
was a “far too broad” reading of Department of the Navy v. Egan , 484 U.S. 518
(1988); instead, he argues that the Board can examine an agency’s stated reasons
for taking actions in order to make decisions within the Board’s jurisdiction.
CPFR File, Tab 3 at 21 (discussing King v. Alston, 75 F.3d 657 (Fed. Cir. 1996),
and Cheney v. Department of Justice , 479 F.3d 1343 (Fed. Cir. 2007)). In this
regard, he asserts that evaluating his availability to work as part of a back pay
award is “squarely within the Board’s enforcement authority.” Id. Finally, he
argues that Egan does not preclude a back pay award if the Board finds an
adverse personnel action invalid, even when the action is based on revocation of a
security clearance. Id. at 21-22 (discussing Cheney and Lizut v. Department of
the Army, 30 M.S.P.R. 112 (1986)).
The appellant’s arguments do not persuade us that the administrative judge
erred in this regard. His cited legal authority is either not binding on the Board
or is distinguishable. For example, the White initial decision has no precedential
value and cannot be cited to or relied on as controlling authority . See Rockwell v.
Department of Commerce , 39 M.S.P.R. 217, 222 (1988); 5 C.F.R. § 1201.113. In
Cheney, 479 F.3d at 1344-45, our reviewing court considered an appeal involving
an indefinite suspension based on a suspended security clearance. The court
concluded that the agency failed to meet the procedural requirements of 5 U.S.C.
§ 7513, Mr. Cheney’s indefinite suspension was improper, and he was entitled to
10
recover back pay for the period of the improper suspension. Id. at 1349-53.
Notably, the decision in Cheney did not involve a compliance matter, nor did it
reference 5 C.F.R. § 550.805(c). Moreover, the cases cited therein regarding
Mr. Cheney’s entitlement to back pay did not involve compliance matters and did
not mention or discuss this regulation. Cheney, 479 F.3d at 1353 (citing Gose v.
U.S. Postal Service , 451 F.3d 831, 840 (Fed. Cir. 2006), and McFarland v.
Department of the Navy , 62 M.S.P.R. 161, 165-66 (1994)). Similarly, in Alston,
75 F.3d at 662-63, the court reviewed an enforced leave appeal, finding in
pertinent part that, although the action was based on the suspension of access to
classified information, the agency was required to comply with 5 U.S.C.
§ 7513(b), and it did. There was no compliance issue raised in Alston either.
Lizut and King are compliance matters and, thus, are similar to the
procedural posture of this matter. However, neither decision warrants a different
outcome. The Board in Lizut affirmed the award of back pay, but the decision
itself contained no discussion of 5 C.F.R. § 550.805 or the propriety of a back
pay award after Mr. Lizut lost his security clearance. Lizut, 30 M.S.P.R.
at 115-18. In King, 100 M.S.P.R. 116, ¶ 15, the Board found that Ms. King was
not ready, willing, and able to report to the position offered by the agency
because she lacked the security clearance required to work at that facility.
Importantly, the Board noted that the absence of an interim security clearance
was due to Ms. King’s failure to answer two questions on the clearance
questionnaire and did not relate to the unwarranted personnel action that resulted
from the agency’s violation of her restoration rights; accordingly, because she
was not ready, willing, and able to work at the agency facility, she was not
entitled to back pay. Id., ¶¶ 14-16.
More importantly, the appellant’s arguments and cited authorities do not
overcome the binding precedent from the U.S. Supreme Court in Egan, 484 U.S.
at 520, 530-31, and numerous subsequent decisions from the U.S. Court of
Appeals for the Federal Circuit and the Board, which specifically prohibit the
11
Board from reviewing the substance of an underlying agency decision to deny,
revoke, or suspend a security clearance. See, e.g., Ryan v. Department of
Homeland Security , 793 F.3d 1368, 1371 (Fed. Cir. 2015); Romero v. Department
of Defense, 658 F.3d 1372, 1377 (Fed. Cir. 2011) (“Like the MSPB, our review of
removal actions that involve the revocation or denial of a security clearance is
limited to reviewing the procedures used rather than the substance of the
revocation decision.”); Cheney, 479 F.3d at 1351-52; Rogers v. Department of
Defense, 122 M.S.P.R. 671, ¶ 5 (2015) (noting that the Board lacks authority to
review the merits of the decision to suspend access to classified information);7
Wilson v. Department of the Navy , 122 M.S.P.R. 585, ¶¶ 7-11 (2015), aff’d,
843 F.3d 931 (Fed. Cir. 2016); Rothlisberger v. Department of the Army ,
111 M.S.P.R. 662, ¶ 12 (2009); King v. Department of the Navy , 98 M.S.P.R. 547,
¶ 20 (2005) (noting, in the context of the compliance proceeding, that the Board
cannot examine the substance of the agency’s decision not to grant the appellant a
security clearance, but it can determine whether the agency has failed to return
the appellant to duty in good faith), aff’d, 167 F. App’x 191 (Fed. Cir. 2006).8 In
the absence of any legal authority that would permit us to examine or otherwise
review the reasons for the agency’s decision to suspend the appellant’s security
clearance, we affirm the compliance initial decision in this regard.
We affirm the administrative judge’s finding that the appellant was entitled to
back pay from July 14, 2016, until December 17, 2018, because he had a Top
Secret security clearance from DoDCAF during this time frame.
The administrative judge determined that beginning July 14, 2016, the
agency’s stated reason for denying the appellant back pay (his lack of a security
clearance) no longer applied because DoDCAF determined that he was again
eligible for a Top Secret security clearance. CID at 10; CF, Tab 4 at 29. He
7 We use the terms “security clearance” and “access to classified information”
interchangeably.
8 This appeal is an earlier Board decision involving the same Ms. King and agency
action discussed above.
12
further found that, pursuant to 50 U.S.C. § 3341(d),9 the agency was obligated to
accept DoDCAF’s completed security clearance background determination. CID
at 10. Thus, the agency was obligated to pay the appellant back pay and all
attendant benefits (health benefits, life insurance, Thrift Savings Plan, retirement
credit, and leave accrual) less his interim employment earnings from the U.S.
Marine Corps.10 Id. The agency challenges the administrative judge’s findings in
this regard. CPFR File, Tab 1 at 6-11. In particular, the agency does not claim
that it was error for the administrative judge to discuss or rely upon 50 U.S.C.
§ 3341(d) in making his decision; rather, it asserts that the administrative judge
misinterpreted section 3341(d). Id. at 4, 6-11.
For example, the agency correctly notes on review that the reciprocity
provision is not absolute. Id. at 9. Indeed, 50 U.S.C. § 3341(d)(5) states that
“reciprocal recognition of an individual security clearance by an agency under
this section on a case-by-case basis [may be disallowed] if the head of the entity
selected pursuant to subsection (b) determines that such action is necessary for
national security purposes.”11 The agency references an “oversight agency” on
9 The statute at 50 U.S.C. § 3341(d)(1) states that “[a]ll security clearance background
investigations and determinations completed by an authorized investigative agency or
authorized adjudicative agency shall be accepted by all agencies .” 50 U.S.C.
§ 3341(d)(1) (emphasis added).
10 The administrative judge noted that the appellant had a Top Secret security clearance
with the Department of Defense from September 13, 2012, until July 29, 2015, but he
did not find that the agency was obligated to accept it for purposes of granting the
appellant back pay because the evidence of record indicates that, during this time,
neither the Department of Defense nor the agency had any awareness of their
conflicting positions on whether the appellant should have such a clearance. CID at 10
n.8; see CF, Tab 4 at 18. The appellant does not appear to challenge the administrative
judge’s rationale in this regard on review.
11 The statute at 50 U.S.C. § 3341(b)(1), (4) states, in pertinent part, that “the President
shall select a single department, agency, or element of the executive branch to be
responsible for,” among other things, “directing day-to-day oversight of investigations
and adjudications for personnel security clearances, including for highly sensitive
programs, throughout the United States Government [and] ensuring reciprocal
recognition of access to classified information among the agencies of the United States
Government, including acting as the final authority to arbitrate and resolve disputes
13
review, CPFR File, Tab 1 at 9, but it does not identify that agency or its head, nor
does it otherwise submit any evidence that reciprocal recognition was disallowed
at any time before the removal action was canceled and the appellant was
returned to duty on December 17, 2018.
We have considered the agency’s other arguments on review, but none
warrant a different outcome. For example, in support of its contention that it was
not obligated to accept DoDCAF’s security clearance determination pursuant to
the reciprocity provision in 50 U.S.C. § 3341(d)(1), the agency asserts that
DoDCAF should have been obligated to accept its own October 7, 2011
determination to suspend the appellant’s Top Secret security clearance. CPFR
File, Tab 1 at 7. In response, the appellant asserts that reciprocity should not be
given to the agency’s October 7, 2011 suspension of his security clearance
because it was “neither an investigation nor a determination” and the agency’s
decision was not final. CPFR File, Tab 3 at 12. We need not resolve whether the
October 7, 2011 suspension of his security clearance constituted a background
investigation or an access determination because the statute specifically
contemplates reciprocity for all completed security clearance background
investigations or determinations. 50 U.S.C. § 3341(d)(1). The agency’s
October 7, 2011 decision to suspend the appellant’s security clearance stated that
“[t]his entire matter will be closely reviewed before a final determination is
made.” CF, Tab 1 at 19. By its own terms, the agency’s decision to suspend his
security clearance was not final or completed; therefore, it was not entitled to
reciprocity under 50 U.S.C. § 3341(d)(1).
The agency also asserts that 50 U.S.C. § 3341(d)(4) prohibits an authorized
investigative or adjudicative agency from conducting an investigation “for
purposes of determining whether to grant a security clearance to an individual
where a current investigation or clearance of equal level already exists or has
involving the reciprocity of security clearances and access to highly sensitive programs
pursuant to subsection (d).”
14
been granted by another authorized adjudicative agency.” CPFR File, Tab 1 at 7.
The agency asserts that, when DoDCAF conducted its investigation, the appellant
maintained a suspended Top Secret security clearance. Id. The appellant
responds that DoDCAF did not conduct an investigation; rather, DoDCAF
adjudicated the appellant’s security clearance eligibility based on information that
it received from the agency. CPFR File, Tab 3 at 12.
We are not persuaded by the agency’s argument. First, it is not clear that
DoDCAF conducted an “investigation for purposes of determining whether to
grant a security clearance” because the basis of its decision was the agency’s
2009 Single Scope Background Investigation.12 CF, Tab 4 at 29. Second, at the
time DoDCAF issued its determination, the appellant’s Top Secret security
clearance from the agency had been suspended, so a “clearance of equal level”
did not exist.
The agency also argues that the administrative judge failed to consider
Executive Order 12,968, 60 Fed. Reg. 40245 (Aug. 2, 1995), which is cited in
50 U.S.C. § 3341. CPFR File, Tab 1 at 8. In pertinent part, the agency contends
that, in December 2018, it did not grant reciprocity to DoDCAF’s determination
because it “possessed substantial information that [the appellant] might not
satisfy the standards set forth in § 3.1 of [Executive Order 12,968].”13 CPFR File,
Tab 1 at 11. The agency’s December 31, 2018 decision to revoke the appellant’s
Top Secret security clearance referenced and quoted from the Executive Order in
this regard, and it concluded that the appellant’s “retention of access to national
security information would constitute an unacceptable risk to national security.”
12 The Single Scope Background Investigation is not in the record.
13 Section 3.1(b) of Executive Order 12,968 provides that “eligibility for access to
classified information shall be granted only to employees . . . whose personal and
professional history affirmatively indicates loyalty to the United States, strength of
character, trustworthiness, honesty, reliability, discretion, and sound judgment.” It
notes that a determination of eligibility for access to such information “is a
discretionary security decision” and should be “consistent with national security
interests.”
15
CF, Tab 1 at 22-23. However, the agency’s subsequent decision to revoke the
appellant’s security clearance is immaterial to our assessment of the agency’s
compliance with the Board’s final decision that ordered it to cancel the removal
and award him back pay and benefits as appropriate.14
Finally, in its reply brief, the agency argues that, by ordering it to give
reciprocity to DoDCAF’s access determination and to pay back pay and benefits
to the appellant during this time period, the administrative judge has essentially
required it to reinstate the appellant’s Top Secret Security clearance, which
cannot be reconciled with Egan. CPFR File, Tab 4 at 6-7. We disagree. The
Board is not making any judgments as to the merits of any security clearance
determination that would be inconsistent with Egan. We merely reject the
agency’s argument that the appellant was not entitled to back pay due to the
absence of a security clearance during a period in which the record shows he
possessed such a clearance.
In conclusion, we affirm the administrative judge’s finding that the
appellant is entitled to back pay and other benefits from July 14, 2016, to
December 17, 2018.
14 We do not take a position on whether the agency’s December 31, 2018 decision to
revoke the appellant’s security clearance comports with 50 U.S.C. § 3341(d)(5). In this
regard, we note that section 2.4 of Executive Order 12,968 states, in pertinent part, that
“[e]xcept when an agency has substantial information indicating that an employee may
not satisfy the standards in section 3.1, . . . background investigations and eligibility
determinations conducted under this order shall be mutually and reciprocally accepted
by all agencies.” In contrast to 50 U.S.C. § 3341(d)(5), which states that the “head of
the entity selected pursuant to subsection (b) may disallow” reciprocal recognition of an
individual’s security clearance “for national security purposes,” section 2.4 does not
identify any individual(s) who are authorized to make that determination. Although we
need not resolve this conflict to address the issues raised in this compliance matter, we
are unaware of any case law holding that an Executive Order takes precedence over a
statute.
16
We vacate the administrative judge’s analysis of the appellant’s return to duty;
instead, we find that the agency is not in compliance with the Board’s final
decision during the time frame of December 18 through 30, 2018.
As noted above, in January 2019, the agency proposed a new removal
action, and the appellant requested to retire, effective April 25, 2019. CID at 5.
In the compliance initial decision, the administrative judge found that following
the agency’s revocation of the appellant’s security clearance on December 31,
2018, the lack of a current security clearance “constitutes a strong, overriding
interest for [the agency] not returning [the appellant] to his former position.”
CID at 11. The administrative judge also found that the agency’s placement of
the appellant on paid administrative leave, effective January 1, 2019, pending a
decision on the proposed removal or his retirement application would constitute
compliance with the Board’s order to return him to duty, particularly in light of
the appellant’s request to use leave pending a decision on his retirement.15 CID
at 11.
On review, the agency contends that the administrative judge’s order
regarding paid administrative leave conflicts with 5 C.F.R. § 550.805(c), Board
precedent, and the administrative judge’s earlier finding, i.e., that the appellant
was not entitled to back pay, interest, and benefits when he was not available to
perform his duties due to the suspension of his Top Secret security clearance.
CPFR File, Tab 1 at 12-13. In his response, the appellant contends that the back
pay award only governs the time frame up until the agency canceled the removal
action in December 2018. CPFR File, Tab 3 at 17 (citing 5 U.S.C.
§ 5596(b)(1)(A), which states that the Back Pay Act applies to the time period
“for which the personnel action was in effect”). The appellant contends that,
until the agency makes a decision on the proposed removal, his pay and benefits
are governed by the Board’s final decision. Id. We agree with the appellant that
the Back Pay Act is not applicable following the cancellation of the removal.
15 The record does not contain any information regarding whether the agency issued a
decision on the proposed removal or whether the appellant retired.
17
Although it is generally true that the lack of a security clearance is a
“strong overriding interest” to not return an employee to his position, Labatte,
58 M.S.P.R. at 594, the appellant still had a Top Secret security clearance from
DoDCAF on December 17, 2018, when the agency canceled the removal and
returned him to duty, and the agency did not take any action to revoke his Top
Secret security clearance until December 31, 2018, CF, Tab 1 at 21-23.
Therefore, during the time frame of December 18 through 30, 2018, the agency’s
obligation was to return the appellant to the status quo ante, which included
returning him to duty with pay. It did not do so. See CF, Tab 1 at 24 (“[B]ecause
a Top Secret security clearance is a necessary prerequisite for all [agency]
employment and [the appellant’s] clearance remained suspended, [he was] not
returned to a pay status.”), Tab 4 at 17 (stating in a March 5, 2019 declaration
made under penalty of perjury that the appellant was in a “non-pay, non-duty
status”). Therefore, the agency is not in compliance with the Board’s final
decision.
We need not decide in the context of this compliance matter whether the
agency’s subsequent actions, beginning with its December 31, 2018 decision to
revoke the appellant’s Top Secret security clearance, were proper. See, e.g.,
Mattern v. Department of the Treasury , 87 M.S.P.R. 352, ¶ 6 (2000) (noting that
the scope of the Board’s enforcement authority generally extends only to the
action appealed), rev’d on other grounds, 88 M.S.P.R. 65 (2001), aff’d, 291 F.3d
1366 (Fed. Cir. 2002). The agency’s apparent decision to maintain the appellant
in an unpaid status following the revocation of his security clearance and the
notice of proposed removal appear to constitute a suspension for more than
14 days that would be appealable to the Board pursuant to 5 U.S.C. §§ 7512(2),
7513.16 The appellant has not filed a chapter 75 suspension appeal, presumably
16 Under ordinary circumstances, an employee whose removal has been proposed “will
remain in a [paid] duty status in his . . . regular position during the advance notice
period.” 5 C.F.R. § 752.404(b)(3); see Gonzalez v. Department of Homeland Security ,
114 M.S.P.R. 318, ¶ 16 (2010).
18
because this time frame was being adjudicated in this compliance matter.
However, the better course of action is to allow the appellant, if he desires, to file
a chapter 75 appeal on the suspension or the removal (if it has been effected) or
both.17 See, e.g., Rothwell v. U.S. Postal Service , 68 M.S.P.R. 466, 468-69 (1995)
(noting that an appellant’s claim that a second action was improper should be
considered as a separate appeal of the second action, not as a petition for
enforcement of an interim relief order).
Conclusion
For the reasons described herein, we affirm the administrative judge’s
conclusion that the appellant was not entitled to back pay from September 14,
2012, to July 13, 2016, but he was entitled to be placed in the appropriate leave
category during this time frame. We also affirm the administrative judge’s
conclusion that the appellant was entitled to back pay from July 14, 2016, until
December 17, 2018. We vacate the administrative judge’s analysis of the
appellant’s return to duty, and we find that, during the time frame of
December 18 through 30, 2018, the agency is not in compliance with the Board’s
final decision.
Outstanding issues of compliance remain, and both parties have submitted
evidence and argument on these issues under MSPB Docket No. SF-0752-13-
0032-X-1, which is currently pending in the Board’s Office of General Counsel.
The appellant’s petition for enforcement will therefore be referred to the Board’s
Office of General Counsel, and, depending on the nature of the submissions, an
attorney with the Office of General Counsel may contact the parties to further
discuss the compliance process. The parties are required to cooperate with that
individual in good faith. Because the purpose of the proceeding is to obtain
17 Any subsequently filed appeal involving the agency’s actions in the 2018-2019 time
frame would normally be untimely and would require the administrative judge to
evaluate whether the appellant has shown good cause for the untimely filing. In
evaluating good cause in any such case, the administrative judge should consider
whether the appellant believed the actions taken during this time frame were covered in
this compliance matter.
19
compliance, when appropriate, an Office of General Counsel attorney or paralegal
may engage in ex parte communications to, among other things, better understand
the evidence of compliance and/or any objections to that evidence. Thereafter,
the Board will issue a final decision fully addressing the appellant’s petition for
review of the compliance initial decision and setting forth his further appeal
rights and the right to attorney fees, if applicable.
ORDER
The agency is reminded that, if it fails to provide adequate evidence of
compliance, the responsible agency official and the agency’s representative may
be required to appear before the Office of the General Counsel of the Merit
Systems Protection Board to show cause why the Board should not impose
sanctions for the agency’s noncompliance in this case. 5 C.F.R. § 1201.183(a).
The Board’s authority to impose sanctions includes the authority to order that the
responsible agency official “shall not be entitled to receive payment for service as
an employee during any period that the order has not been complied with.”
5 U.S.C. § 1204(e)(2)(A).
This order does not constitute a final order and is therefore not subject to
judicial review under 5 U.S.C. § 7703(a)(1) . Upon the Board’s final resolution of
the remaining issues in this petition for enforcement, a final order shall be issued
which shall be subject to judicial review.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Parkinson_John_C_SF-0752-13-0032-C-1_Final_Order.pdf | 2024-05-20 | JOHN C. PARKINSON v. DEPARTMENT OF JUSTICE, MSPB Docket No. SF-0752-13-0032-C-1, May 20, 2024 | SF-0752-13-0032-C-1 | NP |
1,415 | https://www.mspb.gov/decisions/nonprecedential/Lewis_ArthurDC-0752-18-0856-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ARTHUR LEWIS,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-0752-18-0856-I-1
DATE: May 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
M. Jefferson Euchler , Esquire, Virginia Beach, Virginia, for the appellant.
Christopher J. Robbins and Sandra Compton Simmons , Esquire, Norfolk,
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
sustained his removal for misconduct. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
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 a GS-11 Financial Management Analyst for the agency.
Initial Appeal File (IAF), Tab 8 at 14. On August 13, 2018, the agency proposed
his removal based on a charge of conduct unbecoming, supported by six
specifications. IAF, Tab 9 at 55-60. The agency alleged that, between June 2017
and early 2018, the appellant engaged in repeated inappropriate behavior of a
sexual nature, the majority of which was directed toward a single female
colleague and consisted of unwanted touching, remarks, and solicitations. Id.
at 56-57. The agency also specified that, on May 24, 2018, another female
colleague witnessed the appellant expose himself in his cubicle to take pictures of
his penis. Id. at 57. It appears that this latter incident precipitated the
investigation that uncovered the remainder of the alleged misconduct and led the
agency to propose the appellant’s removal. Id. at 140, 143. The appellant
responded to the proposal both orally and in writing, addressing each of the six
specifications. Id. at 2-45. After receiving the appellant’s responses, the
deciding official issued a decision removing him effective September 17, 2018.
IAF, Tab 8 at 14-17. The deciding official found that the charge was supported
by the evidence and that removal was the appropriate penalty. Id. at 16.2
The appellant filed a Board appeal, contesting the merits of the removal
and raising a due process defense based on lack of specificity in the proposal
notice. IAF, Tab 1, Tab 13, Tab 24 at 2-3. After a hearing, the administrative
judge issued an initial decision affirming the removal. IAF, Tab 33, Initial
Decision (ID). He sustained five of the six specifications, ID at 3-9, found that
the agency satisfied its burden on the issues of nexus and penalty, ID at 10-11,
and found that the appellant failed to prove his affirmative defense, ID at 12-13.
The administrative judge acknowledged that most of the specifications did not
contain precise dates and times when the incidents were supposed to have
occurred, but he found that the proposal notice nevertheless contained sufficient
detail to allow the appellant to make an informed reply. Id.
The appellant has filed a petition for review directed solely toward his due
process claim. Petition for Review (PFR) File, Tab 1 at 5-7. He has attached a
transcript of the deposition taken from the coworker whom he allegedly harassed
and who was the main source of information for the majority of the
specifications. Id. at 10-71. The deposition, which significantly predates the
close of the record below, is intended to illustrate the lack of specificity
surrounding her accusations. Id. at 4-5. The agency has filed a substantive
response in opposition. PFR File, Tab 3.
ANALYSIS
Fundamental due process requires that notice of charges against an
employee be sufficiently detailed to provide a meaningful opportunity to be
heard. Mason v. Department of the Navy , 70 M.S.P.R. 584, 586 (1996). In other
words, when an agency proposes to discipline an employee, it must notify him of
the conduct with which he is charged in sufficient detail to permit him to make an
informed reply. Pope v. U.S. Postal Service , 114 F.3d 1144, 1148 (Fed. Cir.
1997).3
In this case, the appellant argues that the notice of proposed removal was
not sufficiently specific regarding the times when and places where his
misconduct was alleged to have occurred. The specifications read in relevant part
as follows: Under Specification 1, the agency alleged that “on multiple
(approximately four) occasions during the period on or around June 2017 through
January 2018, you kissed [your coworker] on her cheek during work hours in
work spaces, such as by the water fountain, exiting the women’s restroom or in
the hallway.” IAF, Tab 9 at 56. Under Specification 2, the agency alleged that
“on one Friday between June 2017 and January 2018, when [your coworker] was
leaving the Payroll office, you smacked [her] buttocks with your hand.” Id.
Under Specification 3, the agency alleged that “between June 2017 and January
2018, on multiple occasions, primarily while [your coworker] was passing the
hallway and once when she was sitting in [your supervisor’s] office, you held a
paper towel dispenser roll to your genital area implying the size of your penis,”
and on one of these occasions stated, “In case you were wondering.”2 Id. Under
Specification 4, the agency alleged, “in or around Fall 2017 when [your
coworker] was in the payroll office, you walked by her and told her, ‘One night
with me and you won’t want to be with your husband.’” Id. Under
Specification 5, the agency alleged, “on 24 May 2018 while you were sitting
down on your chair facing towards the walkway, you exposed your penis in full
view and were taking pictures of your penis with your cellphone in your cubicle.”
Id. at 57. Under Specification 6, the agency alleged, “in early winter of 2017,
you went to [your coworker’s] office while she was working alone, you walked
behind [your coworker] who was sitting in her chair, and you placed both of your
arms around her. Your face was touching her cheek and you whispered in her ear,
‘I noticed your leave was low and I am known for padding people’s leave for
“special favors.”’” She rebuffed you. “You kissed her cheek on your way out
and told her, ‘Let me know if you change your mind.’” Id. at 58. Accompanying
2 The administrative judge did not sustain Specification 3. ID at 6.4
the notice of proposed removal were the interview statements from which the
allegations were drawn. Id. at 55, 148-49, 156-58.
Having reviewed each specification in detail, we disagree with the
appellant that the notice of proposed removal lacked specificity regarding the
places where his alleged misconduct occurred. Each specification is clear that it
pertains to misconduct that occurred in the workplace and refers to particular
areas of the office, such as “by the water fountain,” “in the hallway,” and in the
coworker’s office. Id. at 56-57.
However, we agree with the appellant that the notice was, for the most part,
not specific with regard to times and dates. Most of the specifications refer to a
range of dates or general time periods such as “between June 2017 and January
2018,” “early winter of 2017,” and “one Friday between June 2017 and January
2018.” Id. We have therefore carefully reviewed the precedent that the appellant
cites in support of his due process argument. Most notably, in Mason,
70 M.S.P.R. at 588, the Board reversed the appellant’s suspension on due process
grounds because the proposal letter did not specify the dates during which the
misconduct was alleged to have occurred. In particular, the agency alleged that
the appellant made racist remarks in front of contractors on three occasions but
apparently failed to allege even approximate dates or locations for these events.
The appellant requested this information during discovery but the agency
represented that it was not in possession of it. Id. at 587. For the first time at the
Board hearing, the appellant learned from the contract employees’ testimony that
the incidents were alleged to have occurred 3 or 4 years prior. Id. at 588. The
Board concluded as follows:
The lack of specificity in the agency’s notice thus clearly caused the
appellant surprise at the hearing and affected him detrimentally
because he could not obtain any information regarding the time and
location of the charged misconduct until the agency’s witnesses
offered details on those matters at the hearing. As the appellant
rightly complains, . . . receipt of more specific information about the
time and location of the alleged incidents would perhaps have5
allowed him to determine whether he was working on the dates in
question and whether there were any other individuals who might
have heard the remarks attributed to him. Without that specific
information, the appellant had no alternative but to present a very
general defense through his witnesses, a defense which the
administrative judge rejected as insufficient to rebut the testimony of
the agency’s witnesses.
Id. This case presents a similar situation to the extent that the appellant here
would have been unable to rebut the agency’s allegations by, for example,
showing that he was on leave on a particular day. Nevertheless, we decline to
interpret Mason so broadly as to impose a due process requirement that agencies
in all cases affix a specific date to alleged misconduct. This is particularly so in
cases like this one, where the agency itself lacked sufficient information to
narrow down the occurrences to specific dates. A blanket rule imposing such a
requirement could effectively prevent agencies from disciplining employees
when it is unclear exactly when their misconduct occurred, and we do not think
that this would be a desirable outcome.
In any event, we find that Mason is factually distinguishable from the
instant appeal in three ways. First, the agency in this case did at least provide an
approximate range of dates (up to about 6 months) for each specification, whereas
the agency in Mason did not even notify the appellant of the year when he was
alleged to have committed his misconduct. Id.; IAF, Tab 9 at 56-57. Second, the
agency in this case offered the appellant all of the information in its possession
concerning dates for the specifications, whereas the agency in Mason withheld
such information even though it could have supplied it. Mason, 70 M.S.P.R.
at 587; IAF, Tab 9 at 56-57. Third, the agency in Mason surprised the appellant
at the hearing by eliciting testimony about the precise dates of the alleged
misconduct, whereas there was no such surprise in the instant appeal. Mason,
70 M.S.P.R. at 587 -88 (“In analyzing a claim of denial of due process, the Board
will examine, among other things, whether lack of specificity in the notice6
affected the appellant detrimentally or caused him any surprise during the
hearing.”); Hearing Recording at 1:34:00 (the appellant’s closing argument).
Looking at this issue more broadly, we do not think that any lack of
specificity in the notice of proposed removal deprived the appellant of a
meaningful opportunity to respond, which he did in detail to each of the six
specifications, thus indicating that he understood what he was being charged
with. ID at 12-13; IAF, Tab 9 at 6-8, 43-44; see Lockett v. U.S. Marine Corps ,
37 M.S.P.R. 427, 430 (1988). The Board has found that a mistake in the proposal
notice regarding the date of the misconduct did not constitute a due process
violation where the charged misconduct was otherwise clearly identified. Hayes
v. Department of the Navy , 15 M.S.P.R. 378, 379-80 (1983).
In sum, although a more specific proposal notice may have offered the
appellant additional bases to challenge the proposal, due process did not require
any greater specificity under the facts of this case. The proposal notice disclosed
all of the known facts with respect to time and place, and it was otherwise
sufficient to put the appellant on notice of the reasons for his removal. We find
that the administrative judge made no error in analyzing the appellant’s due
process defense. The appellant has not challenged the administrative judge’s
findings on the agency’s case in chief, and we find no reason to disturb them.
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.7
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. The8
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file9
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 10
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Lewis_ArthurDC-0752-18-0856-I-1__Final_Order.pdf | 2024-05-20 | ARTHUR LEWIS v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-0752-18-0856-I-1, May 20, 2024 | DC-0752-18-0856-I-1 | NP |
1,416 | https://www.mspb.gov/decisions/nonprecedential/Salyer_Karen_B_AT-0752-17-0635-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KAREN BETH SALYER,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0752-17-0635-I-1
DATE: May 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Martin Jefferson Euchler , Esquire, Virginia Beach, Virginia, for the
appellant.
Kathleen Pohlid , Esquire, and Lois F. Prince , Esquire, 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
sustained her removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The undisputed facts as set forth in the initial decision are as follows: The
appellant was formerly employed by the agency as a GS-14, Medical
Administrative Officer, Chief of the Business Office, at the James H. Quillen VA
Medical Center. Initial Appeal File (IAF), Tab 69, Initial Decision (ID) at 1-2.
On May 12, 2017, the agency proposed the appellant’s removal based on
9 charges: (1) conduct unbecoming a VA Service Chief (16 specifications);
(2) privacy violation (2 specifications); (3) failure to observe the opening hours
established for her tour of duty; (4) failure to adhere to established luncheon
period; (5) unauthorized absence (10 specifications); (6) failure to follow proper
leave request procedures (12 specifications); (7) careless or negligent
performance of duties; (8) failure to follow policy; and (9) failure to follow
instructions. Id. at 3-4. After affording the appellant an opportunity to respond,
the agency issued a decision, removing her, effective July 11, 2017. Id.
The appellant filed a Board appeal, disputing the charges and raising
affirmative defenses of due process violations, sex discrimination, and
whistleblower reprisal. IAF, Tab 1 at 4, Tab 23 at 5-7, Tab 33 at 6. After2
holding the appellant’s requested hearing, the administrative judge issued an
initial decision sustaining her removal. ID at 1-2. The administrative judge
found that the agency proved five of its nine charges, that there was a nexus
between such charges and the efficiency of the service, and that the penalty of
removal was reasonable. ID at 1-69, 85-87. He further found that the appellant
failed to prove any of her affirmative defenses.2 ID at 69-84.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has opposed the appellant’s petition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge did not abuse his discretion in denying the appellant’s
motion for sanctions.
On review, the appellant argues that the administrative judge erred in
failing to impose additional sanctions as a result of the agency’s failure to
produce certain documents during discovery. PFR File, Tab 1 at 7-11. During
the course of the hearing,3 on January 4, 2018, the agency notified the appellant
that it had received electronic documents. IAF, Tab 60 at 10. Agency counsel
notified the appellant via email that she had not had time to review the
documents, and did not anticipate that they would be responsive to the appellant’s
discovery requests, but that she reserved the right to introduce any documents for
rebuttal or impeachment purposes. Id. The appellant responded by informing the
agency that she would object to the use of any documentation that was not
previously submitted in accordance with the administrative judge’s orders. Id.
The appellant did not request that the agency produce the documents or
supplement its discovery responses, nor did she move to compel the agency to do
so. During the remainder of the hearing, the agency attempted to use some of the
2 On review, the appellant does not challenge the administrative judge's findings as to
her sex discrimination and whistleblower reprisal claims, and we see no reason to
disturb them.
3 The hearing was conducted in person from December 5-8, 2017, and via video
conference from February 6-8, 2018. ID at 1.3
documents during its examination of the appellant’s witnesses, but the
administrative judge denied the use of such documents as a sanction. ID at 3-4
n.2. After the hearing concluded, the appellant filed a motion for sanctions on
February 26, 2018. IAF, Tab 60. The administrative judge denied the appellant’s
motion, finding that the agency had represented that the documents located during
its electronic search were not responsive to the appellant’s discovery requests and
noting that he had already imposed a sanction upon the agency by denying the
agency’s use of any such documents during the hearing. ID at 3 n.2. Under these
circumstances, we find that the administrative judge did not abuse his discretion
in declining to impose additional sanctions. See, e.g., Armstrong v. Department
of Justice, 107 M.S.P.R. 375, ¶ 25 (2007) (stating that the Board will not reverse
an administrative judge’s rulings regarding sanctions absent a showing of an
abuse of discretion), overruled on other grounds by Edwards v. Department of
Labor, 2022 MSPB 9.
The agency’s specifications in support of its conduct unbecoming charge were
sufficiently detailed to satisfy the appellant’s due process rights.
On review, the appellant reiterates her argument below that many of the
specifications in support of the agency’s conduct unbecoming charge were too
vague to provide proper notice to her because they did not specify the dates or
locations of the alleged misconduct. PFR File, Tab 1 at 11-18. In support of her
argument, she cites Mason v. Department of the Navy , 70 M.S.P.R. 584 (1996).
Id. at 11. In Mason, the agency charged the appellant with making racial slurs,
but did not indicate when or where he allegedly did so. Mason, 70 M.S.P.R.
at 586-88. Despite requesting such information during discovery, the employee
did not learn until the hearing, when agency witnesses testified regarding the
alleged remarks, that those remarks were alleged to have been made 3 to 4 years
earlier. Id. at 587. Under those circumstances, the Board found that the agency’s
failure to provide the appellant with adequately detailed notice of his alleged4
misconduct prior to the hearing prejudiced his ability to mount a meaningful
defense and denied him due process. Id. at 588.
We find the proposal notice here to be more specific than that in Mason to
the extent it describes the general time period when the misconduct occurred as
between December 27, 2015, and May 12, 2017. IAF, Tab 6 at 4-10. In addition,
more detailed information was available to the appellant in the form of statements
from employees obtained during the course of the agency’s investigation that
described the appellant’s behavior on a daily basis and how it personally affected
them or others. IAF, Tabs 6-9. Further, greater specificity was not possible
given the nature of the charges, which alleged a pattern of conduct over time,
rather than particular incidents. See, e.g., Lewis v. Department of Agriculture ,
268 F. App’x 952, 958-59 (Fed. Cir. 2008).4 Under these circumstances, we find
that the appellant was not denied due process.
The administrative judge properly found that the agency proved its conduct
unbecoming charge.
On review, the appellant argues generally that the agency’s charges are
frivolous, her conduct was not improper or very serious and did not rise to the
level of misconduct, and nobody complained contemporaneously about her
behavior. As set forth below, her arguments, which generally amount to a
restatement of her arguments in her closing brief are unpersuasive and fail to
establish any error in the administrative judge’s findings. Further, to the extent
the appellant has not identified any specific error in the administrative judge’s
analysis concerning the agency’s proof of its charges, the Board will not embark
upon a complete review of the record. See Baney v. Department of Justice ,
109 M.S.P.R. 242, ¶ 7 (2008); Tines v. Department of the Air Force , 56 M.S.P.R.
90, 92 (1992).
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, as we do here. See Mauldin
v. U.S. Postal Service , 115 M.S.P.R. 513, ¶ 12 (2011).5
Many of the appellant’s arguments on review constitute mere disagreement
with the administrative judge’s findings and do not provide a basis for reversal.
See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105-106 (1997) (stating that
the Board will give due deference to the credibility findings of the administrative
judge and will not grant a petition for review based on a party’s mere
disagreement with those findings); Broughton v. Department of Health & Human
Services, 33 M.S.P.R. 357, 359 (1987) (same). Regarding specification 1, the
appellant argues that her conduct did not amount to misconduct because she was
permitted to raise her voice to make a point or express frustration. PFR File,
Tab 1 at 15. She further argues that her actions were not directed at anyone else
and she was not trying to achieve some improper purpose. Id. However, we
agree with the administrative judge that the appellant’s conduct in yelling at
employees on a regular and recurring basis was improper and unsuitable for a
Federal employee. ID at 8-11. Regarding specification 2, the appellant disputes
that she made disparaging comments and asserts that employees did not complain
about any comments contemporaneously. PFR File, Tab 1 at 16. Such an
argument amounts to mere disagreement with the administrative judge’s findings
based on credibility determinations that the appellant often referred to employees
as stupid or idiots, among other derogatory terms. ID at 11-14. Regarding
specification 4, the appellant disputes that she kicked a subordinate employee.
PFR File, Tab 1 at 17. However, the administrative judge credited the testimony
of the subordinate and a human resources representative that the appellant kicked
the subordinate in November 2016, and the appellant has not established any
basis for the Board to reverse the administrative judge’s credibility findings. ID
at 15-16. See Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir.
2002) (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).6
On review, the appellant also disputes that she engaged in certain alleged
incidents of misconduct described in the agency’s proposal notice that the
administrative judge did not address. Nonetheless, we discern no error in the
administrative judge’s analysis because an agency need not prove each factual
specification in support of its charge and is only required to prove the essence of
its charge. See, e.g., Hicks v. Department of the Treasury , 62 M.S.P.R. 71, 74
(1994), aff’d 48 F.3d 1235 (Fed. Cir. 1995). Regarding specification 3, the
appellant argues that it was not misconduct for her to tell a supervisor that certain
employees need to do their damn job because worse things are said in most
workplaces every day. PFR File, Tab 1 at 16-17. The administrative judge did
not make any findings concerning such a statement. Nonetheless, the appellant
has not shown any error in the administrative judge’s findings that she used
profanity in the workplace, ID at 11-14, which is the essence of the agency’s
specification. Regarding specification 5, the appellant’s assertions on review do
not dispute the administrative judge’s findings that the agency proved that she
pantomimed the act of stripping off her clothes and discussed purchasing sex toys
while at work. PFR File, Tab 1 at 18; ID at 16-18. Similarly, the appellant’s
cursory arguments regarding specifications 12, 15, and 16 fail to identify specific
errors in the administrative judge’s analysis. PFR File, Tab 1 at 27-28.
The appellant’s remaining arguments also fail to provide a basis for
reversal. Regarding specification 6, the appellant argues that she should not have
been disciplined for her actions because the matter had been resolved months
before the agency issued her the proposal notice and witnesses during one of the
agency’s fact-findings confirmed that the allegation was without merit. PFR File,
Tab 1 at 19. However, she cites no evidence in support of her argument. To the
contrary, the record supports the administrative judge’s finding that the agency
proved that the appellant made disparaging remarks about the new assistant chief
of the business office because both of the agency’s fact-findings in May 2016 and
May 2017 substantiated such an allegation. ID at 18-19; IAF, Tab 5 at 60, Tab 67
at 30. Regarding specification 8, the appellant argues that the administrative
judge improperly analyzed the charge solely as whether she had a personal
relationship with a subordinate without concluding that she favored the
subordinate in any way. PFR File, Tab 1 at 23-25. We find that the
administrative judge properly analyzed the charge as drafted to conclude that the
agency proved that the appellant’s actions created a perception of favoritism
towards the subordinate. ID at 22-28. Regarding specification 11, the appellant
argues that her behavior in questioning the propriety and feasibility of an
employee’s reasonable accommodation was not inappropriate given the context in
which her statements occurred. PFR File, Tab 1 at 26-27. The administrative
judge, however, acknowledged that the seriousness of the appellant’s misconduct
in this specification was mitigated by the context in which her statements were
made in her office to her assistant chief. ID at 35. Nonetheless, he found that her
comments were derisive and could have been interpreted as antagonistic to the
agency’s policy of reasonable accommodation. Id.
In specification 7, the agency alleged that the appellant behaved in a
manner that could have been perceived as attempting to interfere with employees’
rights to file a grievance or complaint. IAF, Tab 6 at 6. Among numerous other
alleged incidents, the agency alleged that, during a meeting with subordinate
employees on May 9, 2016, the appellant stated that she did not like when people
went to the union or filed equal employment opportunity complaints and
employees who did so were committing career suicide. Id. On review, the
appellant argues that this incident was investigated in an earlier May 2016
fact-finding and that the administrative judge failed to recognize that the
witnesses on whose testimony he relied had previously, during the May 2016
fact-finding, denied that the incident occurred. PFR File, Tab 1 at 20. However,
we find that the administrative judge properly weighed the evidence, including
acknowledging inconsistencies in some of the witnesses’ statements and8
testimony over time.5 ID at 20-22. Regarding specification 10, the appellant
asserts that it is plausible that she was late for executive leadership team
meetings, but she argues that there is no basis to sustain the charge because none
of the managers raised concerns or indicated that it was problematic. PFR File,
Tab 1 at 25-26. Such arguments pertain to the reasonableness of the penalty,
which is different from whether the agency has proven its charge. See, e.g.,
Shibuya v. Department of Agriculture , 119 M.S.P.R. 537, ¶ 12 (2013). Finally,
regarding specification 13, the appellant argues that her inaccurate notification to
her supervisor that she had rescheduled an employee award ceremony was at most
an honest mistake. PFR File, Tab 1 at 28. Such an argument similarly pertains to
the reasonableness of the penalty and does not establish any error in the
administrative judge’s finding that the agency proved its charge. Accordingly,
the administrative judge properly found that the agency proved its conduct
unbecoming charge.6
The administrative judge properly found that the penalty of removal was
reasonable.
When the agency proves fewer than all of its charges, the Board may not
independently determine a reasonable penalty. Tisdell v. Department of the Air
Force, 94 M.S.P.R. 44, ¶ 16 (2003). Rather, the Board may mitigate to the
maximum reasonable penalty so long as the agency has not indicated either in its
5 Because we find that the administrative judge properly sustained specification 7 based
on the May 9, 2016 incident, we need not address the appellant’s arguments concerning
the additional alleged incidents set forth in paragraphs (b)-(g) of specification 7 of the
agency’s proposal notice. IAF, Tab 6 at 6-7; PFR File, Tab 1 at 20-23; see Hicks v.
Department of the Treasury , 62 M.S.P.R. 71, 74 (1994), aff’d 48 F.3d 1235 (Fed. Cir.
1995).
6 We do not address the appellant’s arguments on review concerning the additional
sustained charges of privacy violation, unauthorized absence, failure to follow leave
request procedures, and failure to follow instructions because, as set forth below, we
find that the penalty of removal is reasonable based on the conduct unbecoming charge
alone. PFR File, Tab 1 at 29-32; see, e.g., Alvarado v. Department of the Air Force ,
103 M.S.P.R. 1, ¶ 41 (2006); Gaines v. Department of the Air Force , 94 M.S.P.R. 527,
¶ 6 (2003); Luciano v. Department of the Treasury , 88 M.S.P.R. 335, ¶ 10 (2001), aff’d,
30 F. App’x. 973 (Fed. Cir. 2002).9
final decision or during 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). The Board may impose the same penalty imposed by the agency
based on a justification of that penalty as the maximum reasonable penalty after
balancing the mitigating factors. Tisdell, 94 M.S.P.R. 44, ¶ 16. The Board’s
function with regard to its review of an agency’s penalty selection is not to
displace management’s responsibility but to determine whether management
exercised its judgment within the tolerable limits of reasonableness. Gray v. U.S.
Postal Service, 97 M.S.P.R. 617, ¶ 11 (2004).
Here, the administrative judge found several of the sustained specifications
in support of the agency’s conduct unbecoming charge to be serious. ID at 87.
He noted that, as a supervisor, the appellant’s misconduct in yelling at and
making disparaging comments about employees, discouraging employees from
exercising their rights to complain, and creating a perception of favoritism toward
another employee raised legitimate concerns about the appellant’s ability to
perform the duties of a service chief in a professional manner. Id. He further
recognized that the appellant had not acknowledged her misconduct in any way or
expressed remorse for her actions. Id. at 86-87. Finally, he noted that that the
appellant had previously received a 5-day suspension for giving the appearance of
improper preference in the hiring of her son. Id. at 86.
We agree with the administrative judge that the appellant’s misconduct in
support of the conduct unbecoming charge was serious and find that the conduct
unbecoming charge alone warranted removal, notwithstanding the appellant’s
lengthy 24-year career with the agency.7 See, e.g., Wilson v. Department of
7 In analyzing the reasonableness of the penalty, the administrative judge noted that,
although he had sustained the charges of unauthorized absence and failure to follow
leave request procedures, the appellant’s attendance-related misconduct was not
particularly egregious. ID at 86. In particular, he acknowledged that the appellant’s
misconduct amounted to her taking a long lunch and reporting late on several occasions,
but that there was unrebutted evidence that the appellant regularly worked on the
weekends and beyond her tour of duty without additional compensation. Id. In his
penalty analysis, the administrative judge did not discuss the other sustained charges of10
Justice, 68 M.S.P.R. 303, 310 (1995) (noting that disrespectful conduct is
unacceptable and not conducive to a stable working atmosphere; an agency
therefore is entitled to expect employees to comport themselves in conformance
with accepted standards). Accordingly, we find that the administrative
judge properly found that the penalty of removal was reasonable. See, e.g.,
Holland v. Department of Defense , 83 M.S.P.R. 317, ¶¶ 10-12 (1999) (sustaining
a removal for rude and discourteous behavior); Wilson, 68 M.S.P.R. at 309-10
(sustaining a removal for disrespectful conduct and the use of insulting and
abusive language); Peters v. Federal Deposit Insurance Corporation , 23 M.S.P.R.
526, 529 (1984) (sustaining a removal for discourteous and unprofessional
conduct), aff’d, 770 F.2d 182 (Fed. Cir. 1985) (Table).
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
privacy violation or failure to follow instructions.
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. 11
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 obtain12
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil 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 13
If 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
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 14
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.15 | Salyer_Karen_B_AT-0752-17-0635-I-1__Final_Order.pdf | 2024-05-20 | KAREN BETH SALYER v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-17-0635-I-1, May 20, 2024 | AT-0752-17-0635-I-1 | NP |
1,417 | https://www.mspb.gov/decisions/nonprecedential/Davis_LisaSF-1221-19-0725-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LISA DAVIS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-1221-19-0725-W-1
DATE: May 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Steven E. Brown , Esquire, Westlake Village, California, for the appellant.
Maya Soloway , Esquire, 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
dismissed her 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 administrative
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).
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On petition for review, the appellant challenges the administrative judge’s
findings that her IRA appeal was untimely filed and that she did not establish
grounds for equitable tolling. Petition for Review (PFR) File, Tab 1 at 6-10;
Initial Appeal File (IAF), Tab 12, Initial Decision (ID) at 3-8. Specifically, she
raises the following arguments: the administrative judge improperly accepted
email as an effective method for the Office of Special Counsel (OSC) to serve her
with its close-out letter; he wrongly concluded that she received OSC’s close-out
letter on the date that OSC emailed the letter to her, as opposed to the date that
she actually read OSC’s email; he failed to consider the relevant factual
circumstances, as detailed in her declaration, explaining why she did not check
her personal email account during the relevant time period and demonstrating that
she diligently pursued her appeal rights; and he failed to hold a timeliness hearing
to resolve the factual dispute regarding when she received OSC’s close-out letter.
PFR File, Tab 1 at 7-10; IAF, Tab 8 at 19-32 (the appellant’s declaration made
under penalty of perjury).
After considering the appellant’s arguments on review, including her
references to her declaration, we discern no reason to disturb the initial decision.
Moreover, because the administrative judge accepted as true the appellant’s
assertion that she did not actually see OSC’s close-out letter until more than2
2 months after OSC emailed it to her, we discern no error in the administrative
judge’s failure to hold a timeliness hearing. ID at 3-5; see Nelson v. U.S. Postal
Service, 88 M.S.P.R. 331, ¶ 5 (2001) (observing that, if an appellant can establish
a factual dispute as to whether she timely filed her appeal and she requested a
hearing, she is entitled to a timeliness hearing).
Accordingly, we affirm the initial decision dismissing this 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.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Davis_LisaSF-1221-19-0725-W-1__Final_Order.pdf | 2024-05-20 | LISA DAVIS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-1221-19-0725-W-1, May 20, 2024 | SF-1221-19-0725-W-1 | NP |
1,418 | https://www.mspb.gov/decisions/nonprecedential/Clay_Queen_W_DC-0831-19-0160-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
QUEEN W. CLAY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0831-19-0160-I-1
DATE: May 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
James R. Klimaski , Esquire, Washington, D.C., for the appellant.
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 Office of Personnel Management’s (OPM’s) final decision
dismissing her reconsideration request 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to supplement the administrative judge’s analysis
regarding the appellant’s eligibility for an extension of the time limit pursuant to
5 C.F.R. § 831.109(e)(2), and to vacate the administrative judge’s finding that the
appellant failed to prove that OPM abused its discretion or acted unreasonably,
we AFFIRM the initial decision.
BACKGROUND
The appellant retired in 2016 from the District of Columbia Public Schools
under the Civil Service Retirement System (CSRS). Initial Appeal File (IAF),
Tab 1 at 3, 6, 14. On October 3, 2017, following the appellant’s inquiry
regarding her monthly annuity amount, OPM issued an initial decision providing
her with the computation of her retirement annuity. IAF, Tab 4 at 14. It
informed her that, if she wished to seek reconsideration of the decision, she must
do so within 30 days of the date of the letter. Id. On November 23, 2017, the
appellant submitted a request for reconsideration of the decision. Id. at 18.
On December 1, 2017, OPM reissued its initial decision and reminded her that
she had 30 days to request reconsideration. Id. at 11. Four months later, on
April 3, 2018, the appellant filed a request for reconsideration. Id. at 17. On
November 1, 2018, OPM issued a final decision dismissing the appellant’s
reconsideration request as untimely filed. Id. at 9-10. 2
The appellant appealed OPM’s reconsideration decision to the Board
arguing the merits of her retirement annuity calculation. IAF, Tab 1 at 7-8. The
administrative judge issued an order to show cause, informing the appellant that,
if OPM denies an individual’s request for reconsideration on the basis of
untimeliness, the Board lacks jurisdiction of the appeal unless it finds that OPM’s
denial was unreasonable or an abuse of discretion. IAF, Tab 5. After holding the
requested hearing via telephone, IAF, Tab 1 at 3, Tab 11, the administrative judge
issued an initial decision finding that the appellant failed to show that OPM
abused its discretion and affirming OPM’s reconsideration decision, IAF, Tab 12,
Initial Decision (ID) at 3-4.
The appellant has filed a petition for review, arguing, among other things,
that her November 23, 2017 request for reconsideration was date-stamped
December 1, 2017, and that OPM’s December 1, 2017 reissuance of its initial
decision right did not address her November 23, 2017 request.1 Petition for
Review (PFR) File, Tab 1 at 9. The agency has filed a response. PFR File,
Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
When OPM dismisses an individual’s request for reconsideration of an
initial decision as untimely, the Board has jurisdiction over an appeal regarding
the timeliness determination. Kent v. Office of Personnel Management ,
123 M.S.P.R. 103, ¶ 7 (2015). The Board will reverse a decision by OPM
dismissing a reconsideration request on timeliness grounds only if it finds that the
dismissal was unreasonable or an abuse of discretion. Id. If the Board
1 Along with her petition for review, the appellant has submitted numerous documents.
Petition for Review File, Tab 1 at 12-17. Under 5 C.F.R. § 1201.115, new and material
evidence may provide a basis for granting a petition for review. Because the documents
the appellant submits on review are in the record below, they are not new; accordingly,
they do not provide a reason for granting review. See Meier v. Department of the
Interior, 3 M.S.P.R. 247, 256 (1980) (finding that evidence that is already a part of the
record is not new).3
determines that OPM’s timeliness determination was unreasonable or an abuse of
discretion, Board jurisdiction then attaches to the merits of the appeal. Id.
Pursuant to 5 C.F.R. § 831.109(e)(1), a request for reconsideration of an
OPM initial decision must be received by OPM within 30 days of the date of the
initial decision. See Davis v. Office of Personnel Management , 104 M.S.P.R. 70,
¶ 7 (2006). OPM has the discretion to extend the time for filing a reconsideration
request, but only when the applicant shows: (1) she was not notified of the time
limit and was otherwise unaware of it; or (2) she was prevented by
circumstances beyond her control from making the request within the time limit.
See 5 C.F.R. § 831.109(e)(2); Azarkhish v. Office of Personnel Management ,
915 F.2d 675, 677 (Fed. Cir. 1990). If the appellant fails to first show that she
was not notified of the time limit and was not otherwise aware of it, or that she
was prevented by circumstances beyond her control from making the request
within the time limit, the issue of whether OPM was unreasonable or abused its
discretion in denying her untimely request for reconsideration is not reached.
Davis, 104 M.S.P.R. 70, ¶ 7.
The administrative judge failed to give the appellant proper notice of her
jurisdictional burden, but that failure was cured by the agency’s pleadings and the
initial decision.
As a preliminary matter, there is a question as to whether the appellant
received explicit information on what is required to establish an appealable
jurisdictional issue. See Burgess v. Merit Systems Protection Board , 758 F.2d
641, 643-44 (Fed. Cir. 1985). The administrative judge’s show cause order only
informed the appellant that, to establish jurisdiction over the merits of her
reconsideration request, she must show that OPM’s determination of untimeliness
was unreasonable or an abuse of discretion. IAF, Tab 5 at 1, Tab 10 at 2. Thus,
we find that the appellant did not receive sufficient Burgess notice regarding
5 C.F.R. § 831.109(e)(2) and her eligibility for an extension of time. However, a
defective Burgess notice may be cured if the agency’s pleadings or the initial4
decision itself puts the appellant on notice of what she must do to establish
jurisdiction. Milam v. Department of Agriculture , 99 M.S.P.R. 485, ¶ 10 (2005).
Both the initial decision and OPM’s pleadings reference the elements of
5 C.F.R. § 831.109(e)(2), informing the appellant that, in order to be eligible to
receive an extension of time to file a reconsideration request, she must show that
she was not notified of the time limit and was otherwise unaware of it, or that she
was prevented by circumstances beyond her control from making the request
within the time limit. ID at 3-4; IAF, Tab 4 at 5-7. Thus, we find that the
deficient Burgess notice was cured and that the appellant was on notice of her
burden on jurisdiction both before and after the issuance of the initial decision,
providing her with the opportunity to fully address this issue on the record.
Because the appellant was on notice of these elements and had an
opportunity both below and again on review to show that she was eligible for an
extension of time for filing a reconsideration request, we find that her substantive
rights were not prejudiced by the administrative judge’s omission in the show
cause order and that the record is sufficiently developed to address the issue here.
See Flores v. Department of the Army , 98 M.S.P.R. 427, ¶ 9 (2005) (finding the
appellant’s substantive rights were not prejudiced by the administrative judge’s
failure to provide notice of the jurisdictional requirements when the initial
decision so informed the appellant but he still failed to establish jurisdiction on
review).
The appellant failed to show that she was not notified of the time limit or was
otherwise unaware of it, or that she was prevented by circumstances beyond her
control from making the reconsideration request within the time limit.
In the initial decision, the administrative judge set forth the elements in
5 C.F.R. § 831.109(e)(2). ID at 3. Regarding the first element, she stated that
OPM “clearly advised the appellant of the time limit for filing a reconsideration
request in its letter dated December 1, 2017.” Id. Regarding the second element,
she addressed the surrounding circumstances regarding the multiple requests for5
reconsideration, laying out the timeline of communication between the appellant
and OPM. ID at 2-4. Without making an explicit finding on whether the
appellant showed that she was eligible for an extension of time, the administrative
judge found that the appellant failed to show that OPM’s dismissal of the
appellant’s request for reconsideration was unreasonable or an abuse of discretion
and, thus, affirmed OPM’s reconsideration decision. Id.
After our review of the record, we find that the appellant has not shown, or
even alleged, that circumstances existed beyond her control that prevented her
from making the request within the time limit. See 5 C.F.R. § 831.109(e)(2). As
previously noted, the appellant alleges on review that the December 1, 2017
reissuance of OPM’s initial decision failed to address her November 23, 2017
request for reconsideration. PFR File, Tab 1 at 9. Although the appellant’s
assertion is correct, she nevertheless has not explained why she could not request
reconsideration of the December 1, 2017 initial decision in a timely manner. IAF,
Tab 1 at 7-8, Tab 9; PFR File, Tab 1 at 7-10. Moreover, we agree with the
administrative judge that the agency provided clear notice of the time limit for
filing a reconsideration request in its letter dated December 1, 2017. ID at 3;
IAF, Tab 4 at 11. Accordingly, we modify the initial decision to supplement the
administrative judge’s analysis of 5 C.F.R. § 831.109(e)(2) to find that the
appellant failed to meet either element under the regulation, and, therefore, failed
to show that she was eligible for an extension of time.
Because we find that the appellant failed to meet her initial burden under
5 C.F.R. § 831.109(e)(2), we need not address whether OPM’s actions were
unreasonable or an abuse of discretion. See Davis, 104 M.S.P.R. 70, ¶ 7. As
such, we also modify the initial decision to vacate the administrative judge’s
finding that the appellant failed to prove that OPM’s actions were unreasonable or
an abuse of discretion.
Accordingly, we affirm the initial decision as modified by this
Nonprecedential Final Order, supplementing the administrative judge’s analysis6
of whether the appellant showed that she was eligible for an extension of time to
request reconsideration, vacating the administrative judge’s finding concerning
the reasonableness of OPM’s decision, and still affirming OPM’s reconsideration
decision.
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions 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
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 file8
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 9
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and 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), (D),” then you may file a petition for judicial review either with the U.S.
Court of Appeals for the Federal Circuit or any court of appeals of competent
jurisdiction. The court of appeals must receive your petition for review within
60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 10
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Clay_Queen_W_DC-0831-19-0160-I-1__Final_Order.pdf | 2024-05-20 | QUEEN W. CLAY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0831-19-0160-I-1, May 20, 2024 | DC-0831-19-0160-I-1 | NP |
1,419 | https://www.mspb.gov/decisions/nonprecedential/Keegan_Michael_J_PH-1221-15-0121-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL J. KEEGAN,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
PH-1221-15-0121-W-1
DATE: May 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Daniel E. Kenney , Esquire, Chevy Chase, Maryland, for the appellant.
Edward C. Tompsett , Esquire, Philadelphia, Pennsylvania, for the agency.
Joseph Langkamer , Esquire, Seattle, Washington, 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. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to (1) reflect the proper analysis for determining whether a hostile
work environment constitutes a personnel action under 5 U.S.C. § 2302(a)(2)(A),
and (2) find that two of the appellant’s disclosures regarding the National
Computing Center (NCC) and the National Support Center (NSC) were protected
disclosures under 5 U.S.C. § 2302(b)(8), we AFFIRM the initial decision.
BACKGROUND
The appellant was an ES-0342 Associate Commissioner for the agency’s
Office of Facilities and Supply Management (OFSM). Initial Appeal File (IAF),
Tab 1 at 2, Tab 12 at 39. On May 21, 2013, the appellant was notified by the
Deputy Regional Commissioner that he would be investigated due to equal
employment opportunity (EEO) related complaints against him. IAF, Tab 18
at 21. The letter also informed him that because “[t]he [Equal Employment
Opportunity Commission (EEOC)] also requires the agency, under certain
circumstances, to take temporary measures to separate the parties during the
investigation,” he would be detailed to the Assistant Associate Commissioner
position in the agency’s Office of Central Operations. Id. On July 31, 2014, he
retired from the agency. IAF, Tab 12 at 39. 2
Thereafter, the appellant filed an individual right of action (IRA) appeal
with the Board in which he alleged that, in retaliation for his protected
whistleblowing, the agency removed his supervisory duties, detailed him to a
position with fewer responsibilities, and ultimately forced him to retire.2 IAF,
Tab 1 at 143-45, Tab 6 at 15-16, Tab 88 at 13. The administrative judge found
that the Board had jurisdiction over the appeal and granted a hearing on the
merits of the appeal. IAF, Tab 28.
Following a 4-day hearing that was conducted by video-conference, the
administrative judge issued an initial decision denying the appellant’s request for
corrective action. IAF, Tab 106, Initial Decision (ID). The administrative judge
first found that the appellant failed to establish a prima facie case of
whistleblower reprisal. In that regard, he found that the appellant raised six
disclosures in both his Office of Special Counsel (OSC) complaint and his Board
appeal. ID at 3. The first three disclosures concerned the agency’s decision to
replace the existing NCC with a new NSC. Id. In his fourth disclosure, the
appellant contended that the agency had awarded hundreds of millions of dollars
in poorly developed and in some cases unneeded projects, including work being
performed on the agency’s Wabash office building construction project. ID
at 3, 8. In his fifth and sixth disclosures, the appellant alleged that OFSM
2 The administrative judge noted that the appellant filed his Office of Special Counsel
(OSC) complaint prior to his retirement and that, in his OSC complaint, the appellant
only claimed that the agency retaliated against him by subjecting him to a hostile work
environment. IAF, Tab 106, Initial Decision at 2. Thus, the voluntariness of the
appellant’s retirement is not at issue in this appeal. In addition, we note that the
appellant’s retired status has no effect on his ability to file an IRA appeal. In
Guzman v. Office of Personnel Management, 53 F. App’x 927, 929-30 (Fed. Cir. 2002),
our reviewing court held that the Whistleblower Protection Act permits a former
employee to bring a claim “as to disclosures made, and retaliation taken, during the
period that the complainant was an employee or applicant.” The Board may follow
nonprecedential decisions by the U.S. Court of Appeals for the Federal Circuit to the
extent that we find them to be persuasive. Weed v. Social Security Administration,
113 M.S.P.R. 221, ¶ 11 (2010). 3
employees were not complying with the agency’s overtime and travel policies.
ID at 3.
The administrative judge found that the appellant failed to establish that he
made disclosures (1)-(4) prior to the alleged acts of retaliation. ID at 24-26. He
therefore found that these disclosures could not have been contributing factors in
the agency’s alleged actions. ID at 26. In addition, the administrative judge
found that disclosures (2) and (4) did not constitute protected disclosures. ID
at 26-28. Regarding disclosures (5) and (6), the administrative judge found that
the appellant failed to establish that these disclosures were a contributing factor
in a personnel action. ID at 28-29.
As to the alleged personnel actions, the administrative judge found that the
appellant was raising a claim that he had been subjected to a hostile work
environment. ID at 13. He found that the agency investigation into the
appellant’s purported EEO violation and the appellant’s detail to a position with
allegedly fewer duties may have contributed to a hostile work environment. Id.
However, he determined that the appellant’s hostile work environment claim was
not actionable because the appellant failed to establish contributing factor. Id.
Because the administrative judge determined that the appellant did not meet his
burden of proving that any of the alleged protected disclosures were a
contributing factor in any of the personnel actions at issue, he found that there
was no need to address whether the agency could have shown by clear and
convincing evidence that it would have taken any of these actions in the absence
of the alleged protected disclosures. ID at 30-31.
The appellant filed a petition for review in which he alleged that the
administrative judge erred in finding that he did not make protected disclosures
prior to the agency’s personnel actions, failed to consider key evidence in the
record, failed to make factual and credibility determinations, and did not apply
the perceived whistleblower doctrine to the appeal. Petition for Review (PFR)
File, Tab 7. The agency has filed a response to the appellant’s petition for4
review, PFR File, Tab 9, and the appellant has filed a reply to the agency’s
response, PFR File, Tab 10.
DISCUSSION OF ARGUMENTS ON REVIEW
After establishing the Board’s jurisdiction in an IRA appeal, as the
administrative judge found the appellant did in this case, an appellant must
establish a prima facie case of whistleblower retaliation by proving by
preponderant evidence that he made a protected disclosure that was a contributing
factor in a personnel action taken against him.3 5 U.S.C. § 1221(e)(1); Lu v.
Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015). If the appellant
makes out a prima facie case, then the agency is given an opportunity to prove by
clear and convincing evidence that it would have taken the same personnel action
in the absence of the protected disclosure. 5 U.S.C. § 1221(e)(1)-(2); Lu,
122 M.S.P.R. 335, ¶ 7.
The initial decision is modified to reflect the proper analysis for a hostile work
environment personnel action.
As noted above, the administrative judge considered whether the appellant
was subjected to a hostile work environment personnel action. The
administrative judge considered the following actions when assessing the
appellant’s hostile work environment claim: (1) relieving the appellant of his
duties as the Associate Commissioner for OFSM on May 21, 2013, after which he
was detailed to positions with few meaningful job duties and responsibilities;
(2) conducting an investigation of the appellant for purportedly creating a hostile
work environment for his subordinates; (3) issuing the appellant a far lower
performance rating than warranted for appraisal period October 1, 2012, to May
21, 2013; and (4) having negative information about the appellant leaked by
senior agency management, which resulted in him being denied a position with
3 Preponderant evidence is that degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely true than untrue. 5 C.F.R. § 1201.4(q). 5
two other Federal agencies. ID at 13-14. The administrative judge found that the
appellant’s fiscal year 2012-13 performance appraisal did not rise to the level of
actionable harassment because the appellant received an “Excellent” rating. ID
at 30. In addition, the administrative judge found that record evidence
contradicted the appellant’s claims about why he failed to secure other Federal
positions. Id. The administrative judge found that, accordingly, the appellant
failed to prove that the agency made negative remarks about him that led to his
inability to secure employment with other agencies. Id.
First, we find that, notwithstanding the characterization of the personnel
actions raised by the appellant as constituting a hostile work environment claim,
the matters he raised also constitute independent personnel actions under the
Whistleblower Protection Act (WPA). See 5 U.S.C. § 2302(a)(2)(A). As to the
appellant’s hostile work environment claim, the administrative judge correctly
noted that the Board has stated that a hostile work environment itself may
constitute a covered personnel action under the WPA. Savage v. Department of
the Army, 122 M.S.P.R. 612, ¶ 23 (2015), overruled in part by Pridgen v. Office
of Management and Budget, 2022 MSPB 31, ¶¶ 23-25; ID at 29. The
administrative judge, however, did not have the benefit of the Board’s decision in
Skarada v. Department of Veterans Affairs, 2022 MSPB 17, when issuing the
decision in this case. In Skarada, the Board clarified that 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. 5 U.S.C. § 2302(a)(2)(A)(xii); Skarada,
2022 MSPB 17, ¶ 16. 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,6
duties, or responsibilities will be found to constitute a personnel action covered
by section 2302(a)(2)(A)(xii). Id.
Thus, we modify the initial decision to reflect the proper analysis for
determining whether a hostile work environment constitutes a personnel action
under section 2302(a)(2)(A). However, we need not decide whether the agency
actions listed above, considered either individually or collectively, constituted a
hostile work environment under Skarada for the reasons set forth below. Nor do
we need to address them as independent personnel actions under 5 U.S.C.
§ 2302(a)(2)(A).
The appellant established that disclosures (1) and (3) concerning the NCC and
NSC were protected.
Disclosure (1) was that “[t]he case to replace the existing [NCC] was
‘overstated’ and relied too heavily on the premise that the NCC was in ‘terrible
condition’ and could no longer support the agency mission.” ID at 3; IAF, Tab 88
at 5-6. Disclosure (3) was that “[r]etention of the existing NCC building was
absolutely essential to house the 925 employees who must remain when the data
center function was relocated.” ID at 3; IAF, Tab 88 at 5-6.
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. 5 U.S.C. § 2302(b)(8)(A);
Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 12 (2014). A reasonable
belief exists if a disinterested observer with knowledge of the essential facts
known to and readily ascertainable by the appellant could reasonably conclude
that the actions of the Government evidence one of the categories of wrongdoing
listed in section 2302(b)(8)(A). Linder, 122 M.S.P.R. 14, ¶ 12. To establish that
he made a protected disclosure, the appellant need not prove that the matter
disclosed actually established one of the types of wrongdoing listed under section
2302(b)(8)(A); rather, he must show that the matter disclosed was one that a7
reasonable person in his position would have believed evidenced any of the
situations specified in 5 U.S.C. § 2302(b)(8). Chavez v. Department of Veterans
Affairs, 120 M.S.P.R. 285, ¶ 18 (2013).
Regarding disclosure (1), the appellant stated that he disclosed to agency
officials that the agency had falsely reported to Congress that the NCC was in
terrible condition. IAF, Tab 1 at 140. Concerning disclosure (3), the appellant
stated that he also disclosed that the agency had misled Congress by stating that
the NCC would be demolished when it could not be because there was no space to
relocate 925 employees. Id. The administrative judge found that a person in the
appellant’s position may have reached a similar conclusion after having reviewed
the Congressional testimony and other information concerning the condition of
the NCC and the need for the NSC. ID at 24. The administrative judge, however,
found that these disclosures were not protected because the appellant did not
make them prior to being subjected to the alleged acts of retaliation. ID at 24-25.
However, the timing of the disclosures is relevant to the issue of whether the
appellant established contributing factor with regard to these disclosures and not
to whether they constitute protected disclosures. We find that these disclosures
were in fact protected because the appellant had a reasonable belief that they
evidenced a violation of law. See Berkowitz v. Department of the Treasury,
94 M.S.P.R. 658, ¶ 10 (2003) (finding the appellant’s statement that the agency
may have misled Congress to constitute a nonfrivolous allegation of a violation of
18 U.S.C § 1001). We therefore modify the initial decision to reflect that
disclosures (1) and (3) constituted protected disclosures.4
4 We discern no error in the administrative judge’s finding that disclosures (5) and (6),
which concerned the appellant’s reports that some of his subordinate employees were
not complying with agency policy to obtain pre-approval to work overtime and go on
official travel, were protected under 5 U.S.C. § 2302(b)(8) as a disclosure of a
purported violation of law, rule, or regulation. ID at 3, 27-28; IAF, Tab 88 at 5-6. In
this regard, we recognize that, in 2012, Congress passed the Whistleblower Protection
Enhancement Act, Pub. L. No. 112-199, 126 Stat. 1465, (WPEA) amending the WPA to,
in part, reiterate that the Act protects “any disclosure” of conduct described in 5 U.S.C.
§ 2302(b)(8), including any such disclosure made in the normal course of an employee’s8
The administrative judge correctly found that disclosures (2) and (4) were not
protected.
Disclosure (2) was that “[t]he rationale and references used to justify
relocating the new [NSC] (data center) 35 miles from the existing campus were
very ‘broadly’ interpreted at best and not applicable at all in [the appellant’s]
opinion.” ID at 3; IAF, Tab 88 at 5-6. Disclosure (4) was that “[i]n working with
[the General Services Administration], [Social Security Administration (SSA)]
staff and reviewing historical files, [he] had discovered that SSA has awarded
hundreds of millions of dollars in poorly developed and in many cases, unneeded
projects.” ID at 3; IAF, Tab 88 at 5-6.
As to disclosure (2) the administrative judge found that no reasonable
person in the appellant’s position would have believed that this disclosure
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 at 27. Accordingly, the administrative judge found
duties. 5 U.S.C. § 2302(f)(2) (2013); S. Rep. No. 112-155 at 5. The Board later found
that the WPEA amendments to 5 U.S.C. § 2302(f)(2) required a heightened evidentiary
burden for appellants who made disclosures in the normal course of their
duties. Benton-Flores v. Department of Defense, 121 M.S.P.R. 428, ¶ 15 (2014). The
Board found that such disclosures provide a basis for a (b)(8) claim only if the
employee proves the agency took the personnel action “with an improper retaliatory
motive.” Id. (citing S. Rep. No. 112-155, 5-6, reprinted in 2012 U.S.C.C.A.N. 589,
593-94). However, in December 2017, Congress passed and the President signed the
National Defense Authorization Act for Fiscal Year 2018 (NDAA), which amended
5 U.S.C. § 2302(f)(2) to provide that the higher burden of proof applies only to
disclosures “made during the normal course of duties of an employee, the principal job
function of whom is to regularly investigate and disclose wrongdoing.” Pub. L. No.
115-91, § 1097(c)(1)(B)(ii), 131 Stat. 1283, 1618 (2017). While the events relevant to
this appeal took place before the NDAA’s enactment, the Board has since determined
that the new statutory provision applies retroactively. Salazar v. Department of
Veterans Affairs, 2022 MSPB 42, ¶ 21. In this case, although the administrative judge
found that the record revealed that the Deputy Commissioner for Budget, Finance, and
Management instructed the appellant to rein in overtime costs in OFSM soon after
beginning his position, there is nothing in the record to suggest that the appellant’s
principal job function was to regularly investigate and disclose wrongdoing. ID at 2,
28. Therefore, the appellant’s disclosures were not subject to a higher burden of proof
under 5 U.S.C. § 2302(f), even if they were made during the normal course of his
duties. See Salazar, 2022 MSPB 42, ¶ 22.9
that the disclosure was not protected. Id. The appellant has not provided a basis
for disturbing this well -reasoned finding on review.
As to disclosure (4), the appellant contended that he disclosed that
$14,000,000 in project change orders for construction on the agency’s Wabash
Office Building was approved by a GS-14 project manager without being
authorized by senior management. The appellant argued that many of these
changes were not needed. The administrative judge determined that the appellant
failed to prove the existence of these allegedly unauthorized change orders. ID
at 27. Instead, the agency had introduced the results of an Office of Inspector
General investigation which found that the project manager who ordered them did
so with knowledge of his supervisor and other agency officials. ID at 27. The
administrative judge concluded that no reasonable person would have found that
these improvements violated a law, rule, or regulation, or constituted waste,
fraud, and abuse; accordingly, he found that the appellant failed to establish that
disclosure (4) was protected. ID at 27-28. The appellant again has not provided a
basis for disturbing this well-reasoned finding on review.
As discussed below, even if we were to find that these disclosures were
protected, the administrative judge correctly found that the appellant failed to
show that these disclosures, along with disclosures (1) and (3), were contributing
factors in the personnel actions raised by the appellant.
The appellant failed to establish that disclosures (1)-(4) were a contributing factor
in a personnel action.
The term “contributing factor” means any disclosure that affects an
agency’s decision to threaten, propose, take, or not take a personnel action
affecting the individual making the disclosure. Usharauli v. Department of
Health and Human Services, 116 M.S.P.R. 383, ¶ 31 (2011). The most common
way of proving the contributing factor element is the knowledge/timing test.
Wadhwa v. Department of Veterans Affairs, 110 M.S.P.R. 615, ¶ 12, aff’d,
353 F. App’x 434 (Fed. Cir. 2009). Under that test, an appellant can prove the10
contributing factor element through evidence that the official taking the personnel
action knew of the whistleblowing disclosure and took the personnel action
within a period of time such that a reasonable person could conclude that the
disclosure was a contributing factor in the personnel action. Id. To satisfy the
test, the appellant need demonstrate only that the fact of, not necessarily the
content of, the protected disclosure was one of the factors that tended to affect the
personnel action in any way. Mastrullo v. Department of Labor, 123 M.S.P.R.
110, ¶ 18 (2015).
The administrative judge found that the appellant failed to establish that he
made disclosures (1)-(4) prior to the alleged acts of retaliation. ID at 24-26.
Following comprehensive credibility determinations, he found that the first time
the appellant raised these concerns was in a November 2013 administrative
grievance. ID at 21; IAF, Tab 1 at 243-64. As previously stated, the agency
notified the appellant on May 21, 2013, that he would be investigated and
detailed out of his position due to EEO-related complaints against him. IAF,
Tab 18 at 21. The administrative judge therefore found that the appellant failed
to establish contributing factor regarding disclosures (1)-(4). ID at 26.
The appellant contends on review that the administrative judge erred in
finding that he did not make disclosures (1)-(4) prior to the alleged retaliatory
acts. PFR File, Tab 7 at 16-24. The appellant argues that many factors
undermined the administrative judge’s ability to make sound credibility
determinations, including the fact that the administrative judge did not appear
live but on video at the hearing and that 14 months passed between closing
arguments and the issuance of the initial decision. Id. at 30-31.
The appellant has failed to provide a basis for overturning the
administrative judge’s well-reasoned credibility findings regarding when the
appellant made disclosures (1)-(4). The Board will defer to the credibility
determinations of an administrative judge when they are based, explicitly or
implicitly, upon observing the demeanor of witnesses testifying at a hearing11
because the administrative judge is in the best position to observe the demeanor
of the witnesses and determine which witnesses were testifying credibly.
Haebe v. Department of Justice, 288 F.3d 1288, 1300-01 (Fed. Cir. 2002). Here,
the administrative judge considered the testimonies of relevant agency officials
and, after applying the factors set forth in Hillen v. Department of the Army,
35 M.S.P.R. 453, 458 (1987), found their testimonies to be more credible and
consistent with the record than that provided by the appellant. ID at 25. The
administrative judge noted that the appellant was prolific in his communications
with senior management but that he did not mention his concerns with the NCC,
NSC, and the Wabash construction project until November 22, 2013, when he
submitted his administrative grievance. ID at 26. The appellant has failed to
provide a basis for disturbing the administrative judge’s well-reasoned credibility
findings. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997)
(indicting that the Board will defer to an administrative judge’s credibility
findings and will not grant a petition for review based on a party’s mere
disagreement with those findings). We therefore affirm the administrative
judge’s finding that the appellant failed to establish that disclosures (1)-(4) were
a contributing factor in a personnel action.5 See Johnson v. Department of
Justice, 104 M.S.P.R. 624, ¶ 26 (2007) (determining that disclosures made after
the personnel actions at issue cannot have been contributing factors in those
personnel actions).
The appellant failed to exhaust his perceived whistleblower claim.
On review, the appellant contends that the administrative judge failed to
apply the perceived whistleblower doctrine to the appeal. PFR File, Tab 7
at 29-30. The appellant contends that, even if the evidence reflects that he did
5 The appellant does not challenge on review, and we discern to reason to disturb, the
administrative judge’s conclusion that the appellant failed to establish that disclosures
(5) and (6) were a contributing factor in any alleged personnel action. ID at 27-29; see
5 C.F.R. § 1201.115 (stating that the Board normally will consider only issues raised in
a timely filed petition or cross petition for review). 12
not make the disclosures he claims to have made, the administrative judge should
have considered whether the agency perceived him to have made those
disclosures. Id. at 30. To establish that the agency retaliated against him based
on its perception that he was a whistleblower, the appellant must show that he
exhausted his administrative remedies before OSC, that the agency perceived him
as a whistleblower, and that the agency’s decision was a contributing factor in its
decision to take or not take the personnel action at issue. Rumsey v. Department
of Justice, 120 M.S.P.R. 259, ¶ 8 (2013). Here, the appellant has not shown that
he exhausted his remedy with OSC on this issue. Thus, we find that the Board
lacks jurisdiction over this claim. See El v. Department of Commerce,
123 M.S.P.R. 76, ¶ 12 (2015) (finding that the Board lacked jurisdiction over the
appellant’s claim that he was perceived as a whistleblower when the appellant
failed to show that he exhausted his administrative remedies regarding this
claim), aff’d, 663 F. App’x 921 (Fed. Cir. 2016).6
The appellant’s remaining arguments do not provide a basis for granting review.
The appellant alleges that the initial decision should be reversed because
the administrative judge failed to consider relevant record evidence. PFR, Tab 7
6 Although the administrative judge did not provide the appellant with explicit notice on
how to establish jurisdiction over an IRA appeal as a perceived whistleblower, the
Board has held that it is not necessary for an administrative judge to provide such
notice in every IRA appeal. King v. Department of the Army, 116 M.S.P.R. 689, ¶ 11
(2011). The appellant did not raise his perceived whistleblower claim in his initial
appeal. IAF, Tab 1. In a hearing order, the administrative judge ordered the parties to
submit prehearing submissions containing statements of all the issues. IAF, Tab 49.
The appellant did not raise his perceived whistleblower claim in his prehearing
submission. IAF, Tab 88. The agency argues, and the appellant does not dispute, that
he raised this claim for the first time in his closing argument. PFR File, Tab 9 at 27.
Under the circumstances of this case, we find that the administrative judge did not err
by not providing the appellant with jurisdictional notice on his perceived whistleblower
claim. See 5 C.F.R. § 1201.24(b) (an appellant may not raise a new claim or defense
after the end of the conference held to define the issues in the case, except for good
cause shown); cf. Buie v. Office of Personnel Management, 94 M.S.P.R. 595, ¶ 18
(2003) (finding that the appellant abandoned her age discrimination claim, when it was
not listed on the prehearing conference summary and the appellant failed to object to
that summary), aff’d, 386 F.3d 1127 (Fed. Cir. 2004).13
at 25-26. In particular, the appellant alleges that the administrative judge did not
address a letter sent to the appellant by the Deputy Regional Commissioner
advising the appellant that the investigation was closed. Id.; IAF, Tab 13 at 29.
In the letter, the Deputy Regional Commissioner informed the appellant that he
had reviewed the results of the investigation and concluded that the appellant “did
not always conduct [himself] in a manner consistent with the leadership
expectations of someone in [his] position.” IAF, Tab 13 at 29. According to the
appellant, his first-line supervisor “manipulated” the Deputy Regional
Commissioner’s “letter to support taking additional action against [him].” Id.
at 5. The appellant argued that, accordingly, the letter supported his argument
that the investigation was not truly independent. Id.
The administrative judge, however, referenced the Deputy Regional
Commissioner’s letter in the initial decision when discussing the investigation.
ID at 17. Even if the administrative judge failed to adequately analyze the letter
as the appellant asserts, the appellant has failed to show how any such alleged
error prejudiced his substantive rights. See Panter v. Department of the Air
Force, 22 M.S.P.R. 281, 282 (1984) (explaining that an adjudicatory error that is
not prejudicial to a party’s substantive rights provides no basis for reversing an
initial decision). In relevant part, the administrative judge acknowledged that the
agency’s decision to investigate him “may have been [an] action[] that a
reasonable person would find to be both subjectively and objectively offensive.”
ID at 30. Thus, the administrative judge considered that the investigation may
have constituted retaliation for the appellant’s whistleblowing but still found that
the appellant failed to establish a prima facie case of whistleblower retaliation.
Based on the foregoing, we find that the appellant has failed to provide a
basis for disturbing the initial decision denying him corrective action in his IRA
appeal.14
NOTICE OF APPEAL RIGHTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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.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. 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 | Keegan_Michael_J_PH-1221-15-0121-W-1__Final_Order.pdf | 2024-05-20 | MICHAEL J. KEEGAN v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. PH-1221-15-0121-W-1, May 20, 2024 | PH-1221-15-0121-W-1 | NP |
1,420 | https://www.mspb.gov/decisions/nonprecedential/Elbert_Sharon_R_CH-0752-19-0447-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHARON R. ELBERT,
Appellant,
v.
RAILROAD RETIREMENT BOARD,
Agency.DOCKET NUMBER
CH-0752-19-0447-I-1
DATE: May 17, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sharon R. Elbert , Chicago, Illinois, pro se.
Patrick Polk , 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
dismissed her involuntary retirement appeal for lack of jurisdiction. On petition
for review, the appellant argues the merits of the agency decision to put her on a
performance improvement plan, claims that the agency failed to accommodate her
disability,2 and argues that her stress was not considered. On review, the
appellant includes a number of Notification of Personnel Action forms identifying
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the agency positions she has held from November 1985 to her retirement, and
copies of photographs of her electric wheelchair.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).
2 Although the appellant claimed that the agency failed to accommodate her, the
administrative judge observed that the appellant had not informed the agency that the
accommodations it offered were insufficient. Initial Appeal File, Tab 17, Initial
Decision at 15. The appellant does not challenge this finding on review and we discern
no reason to disturb it.
3 The appellant does not assert that these Notification of Personnel Action forms or
photographs of her electric wheelchair were unavailable despite her due diligence
before the record closed below. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211,
214 (1980) (stating that under 5 C.F.R. § 1201.115, the Board will not consider
evidence submitted for the first time with the petition for review absent a showing that
it was unavailable before the record was closed despite the party’s due diligence).
Nevertheless, even if we were to consider this evidence, it does not amount to a
nonfrivolous allegation that a reasonable person in the appellant’s circumstances would
have had no choice but to retire. Petition for Review File, Tabs 1, 4. 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 | Elbert_Sharon_R_CH-0752-19-0447-I-1__Final_Order.pdf | 2024-05-17 | SHARON R. ELBERT v. RAILROAD RETIREMENT BOARD, MSPB Docket No. CH-0752-19-0447-I-1, May 17, 2024 | CH-0752-19-0447-I-1 | NP |
1,421 | https://www.mspb.gov/decisions/nonprecedential/Delgado_IsmaelAT-0842-19-0330-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ISMAEL DELGADO,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0842-19-0330-I-1
DATE: May 17, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ismael Delgado , Miami, Florida, 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 his challenges to the February 23, 2006 reconsideration decision by the
Office of Personnel Management (OPM) as barred by res judicata. On petition
for review, the appellant demands that OPM pay his annuity from 2006 through
present, argues that collection of a $35,000 overpayment violated Federal law,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
and claims discrimination and negligence on the part of OPM. He does not,
however, challenge the administrative judge’s determination that his appeal is
barred by 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 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 | Delgado_IsmaelAT-0842-19-0330-I-1__Final_Order.pdf | 2024-05-17 | ISMAEL DELGADO v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0842-19-0330-I-1, May 17, 2024 | AT-0842-19-0330-I-1 | NP |
1,422 | https://www.mspb.gov/decisions/nonprecedential/Cannavo_JosephNY-1221-14-0113-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH CANNAVO,
Appellant,
v.
GENERAL SERVICES
ADMINISTRATION,
Agency.DOCKET NUMBER
NY-1221-14-0113-W-1
DATE: May 17, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jesse C. Rose , Esquire, Astoria, New York, for the appellant.
Nicole Ludwig , Esquire, East Williston, New York, 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 his request for corrective action in 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 by
this Final Order as set forth in ¶¶ 11, 13-17 below, we AFFIRM the initial
decision.
BACKGROUND
¶2The appellant is a supervisory GS-14 Senior Property Manager for the
agency. Initial Appeal File (IAF), Tab 1 at 1, 9. On September 17, 2012, he met
with his immediate supervisor to discuss the performance ratings that he had
proposed for his subordinates that year. IAF, Tab 33 at 204-05; Hearing Compact
Disc, September 27, 2016 (HCD 1) at 12:10 (testimony of the appellant). The
appellant’s supervisor directed him to lower several of the ratings, and the
appellant did so the same day. IAF, Tab 33 at 210; HCD 1 at 12:50 (testimony of
the appellant). However, on November 14, 2012, the appellant again entered the
agency’s rating system and, unbeknownst to his supervisor, changed some of the
ratings back to what he had originally proposed. IAF, Tab 5 at 55-56; HCD 1
at 24:50 (testimony of the appellant).
¶3The following week, on November 19, 2012, the appellant’s supervisor met
with him about an unrelated matter.2 She informed the appellant that an audit had
2 The administrative judge identified this meeting as taking place on November 15,
2012. IAF, Tab 55, Initial Decision at 7. We find that it is immaterial which of the two
dates this meeting took place.2
revealed that one of his subordinates was failing to implement proper
administrative controls for his credit card activity, and she instructed the
appellant to issue this subordinate a letter of reprimand. IAF, Tab 33 at 13-15,
295. The appellant protested that his supervisor was singling out this individual
for discipline even though numerous other employees had engaged in the same
misconduct. Id. at 295. The appellant’s supervisor replied that the appellant was
not to concern himself with those other employees. Id.
¶4On November 28, 2012, the appellant’s second-level supervisor discovered
that the appellant had changed his subordinates’ performance ratings 2 weeks
earlier. He admonished the appellant verbally, warning him that the penalty for
disobeying a supervisor ranges from reprimand to suspension. IAF, Tab 5 at 59.
Nevertheless, on December 6, 2012, the appellant contacted the agency’s human
resources department to inquire into the process for changing the performance
rating for yet another of his subordinates. Id. at 62. A human resources official
notified the appellant’s second-level supervisor of this contact. Id.
¶5On December 13, 2012, the appellant’s first-level supervisor proposed to
suspend the appellant for 5 days because of the conduct surrounding the changed
performance ratings. Id. at 43-46. The charges essentially amounted to failure to
follow instructions and lack of candor. Id. On December 18, 2012, the appellant
sought assistance from the agency’s Inspector General (IG) regarding the
proposed suspension and the credit card audit. IAF, Tab 51 at 40-43. On
January 16, 2013, the appellant’s second-level supervisor issued his decision to
suspend the appellant for 5 days, beginning January 28, 2016. IAF, Tab 5
at 20-21.
¶6The appellant then filed a complaint with the Office of Special Counsel
(OSC), alleging that the agency had retaliated against him for disclosures that he
had made to his immediate supervisor and to the IG. IAF, Tab 1 at 15, Tab 33
at 9-361. When OSC closed the file without taking corrective action, the
appellant filed this IRA appeal with the Board. IAF, Tab 1. 3
¶7The administrative judge found that the Board has jurisdiction over the
appeal and held the appellant’s requested hearing. IAF, Tab 35, Tab 55, Initial
Decision (ID) at 1-2. Following the hearing, she issued an initial decision
denying corrective action on the merits. ID at 2, 19. She found that the
appellant’s November 19, 2012 disclosure to his supervisor that she was singling
out the appellant’s subordinate was protected. ID at 15. She also found that his
disclosure to the IG regarding his proposed suspension was not protected. Id.
She concluded that neither disclosure was a contributing factor in the 5-day
suspension. ID at 15-17. She further found that the agency proved by clear and
convincing evidence that it would have suspended the appellant notwithstanding
his disclosure to his supervisor. ID at 17-18. The administrative judge observed
that the appellant was attempting to challenge a May 28, 2013 letter of
performance counseling, but determined that he had not exhausted his
administrative remedies with OSC on this alleged personnel action. ID at 18.
¶8The appellant has filed a petition for review, arguing that his 5-day
suspension was in retaliation for his refusal to obey an order that would have
required him to violate a directive pertaining to the agency’s Performance Plan
and Appraisal System, as well as the applicable collective bargaining agreement.
Petition for Review (PFR) File, Tab 1. The agency has filed a response. PFR
File, Tab 3.3
ANALYSIS
¶9To prove the merits of a claim of reprisal in an IRA appeal before the
Board, an appellant must show by preponderant evidence that he engaged in
protected activity under 5 U.S.C. § 2302(b)(8) or 5 U.S.C. § 2302(b)(9)(A)(i),
(B), (C), or (D), and that the protected activity was a contributing factor in the
contested personnel action. Salerno v. Department of the Interior , 123 M.S.P.R.
230, ¶ 5 (2016). If the appellant proves his case, the agency will have an
3 We decline to disturb the administrative judge’s jurisdictional finding, which neither
party has challenged on review.4
opportunity to show by clear and convincing evidence that it would have taken
the same personnel action even in the absence of the protected activity. Id.
Personnel Action
¶10In her initial decision, the administrative judge addressed two alleged
personnel actions—the 5-day suspension and the letter of performance
counseling. ID at 16-18. She found that both of these were “personnel actions”
under 5 U.S.C. § 2302(a)(2). ID at 3-4. The administrative judge fully
adjudicated the appellant’s claim as to the 5-day suspension, but she found that
the appellant had failed to exhaust his administrative remedies concerning the
letter of counseling. ID at 15-18.
¶11On review, the appellant does not challenge the administrative judge’s
finding on the exhaustion issue. Nevertheless, we modify the initial decision to
find that the letter of counseling did not constitute a personnel action or threat to
take a personnel action within the meaning of 5 U.S.C. § 2302(a)(2) because it
did not constitute formal discipline, there is no indication that it was placed in the
appellant’s personnel file, and it did not warn the appellant of any possible future
disciplinary or performance actions. IAF, Tab 33 at 285-88; see Special
Counsel v. Spears, 75 M.S.P.R. 639, 670 (1997) (declining to find that an oral
counseling was a personnel action); cf. Campo v. Department of the Army ,
93 M.S.P.R. 1, ¶¶ 7-8 (2002) (finding a memorandum of warning that included a
threat of future disciplinary action was a personnel action).
Protected Activity and Contributing Factor
¶12In her initial decision, the administrative judge identified two alleged
protected disclosures. She found that the November 19, 2012 conversation in
which the appellant told his supervisor that she was unfairly singling out one of
the appellant’s subordinates for discipline was protected because he reasonably
believed his supervisor was abusing her authority. ID at 15. The administrative
judge found that the appellant’s December 18, 2012 meeting with an IG official5
regarding his proposed suspension was not protected. Id. She also found that
neither disclosure was a contributing factor in the 5-day suspension. ID at 16-17.
The appellant does not challenge these findings on review. Nevertheless, we
modify the administrative judge’s analysis as follows.
¶13First, although we agree with the administrative judge that the appellant’s
November 15, 2012 disclosure was protected, we disagree that it was not a
contributing factor in his 5-day suspension. The administrative judge found that
the disclosure was not a contributing factor in the suspension because it was the
appellant’s second-level supervisor who resolved to take disciplinary action
against the appellant, and he was not even aware of the November 19, 2012
disclosure. ID at 16. The appellant’s first-level supervisor is the one who issued
the proposal letter, and she did so within 1 month of the appellant’s disclosure to
her. IAF, Tab 5 at 43-46.
¶14The most common way of proving the contributing factor element is the
“knowledge/timing test.” Scoggins v. Department of the Army , 123 M.S.P.R. 592,
¶ 21 (2016). Under that test, an appellant can prove that his disclosure was a
contributing factor in a personnel action through evidence that the official taking
the personnel action knew of the whistleblowing disclosure and took the
personnel action within a period of time such that a reasonable person could
conclude that the disclosure was a contributing factor in the personnel action. Id.
Once an appellant has satisfied the knowledge/timing test, he has demonstrated
that a protected disclosure was a contributing factor in a personnel action. Id.
The facts here are sufficient to establish the contributing factor element under the
knowledge/timing test of 5 U.S.C. § 1221(e)(1). Although the appellant’s
first-level supervisor may have issued the proposal at the direction of someone
else who was unaware of the disclosure, this fact is irrelevant to the contributing
factor analysis and goes instead to the agency’s affirmative defense, which is
discussed below. See Bradley v. Department of Homeland Security , 123 M.S.P.R.
547, ¶ 15 (2016) (observing that an appellant may rely on an official’s6
constructive knowledge of a protected disclosure to prove that it was a
contributing factor in a personnel action by demonstrating that an individual with
actual knowledge of the disclosure influenced the official who took the action).
¶15Second, we disagree with the administrative judge that the appellant’s
December 18, 2012 meeting at the IG’s office was not protected. The
administrative judge found that this meeting was not a protected disclosure
because the appellant’s primary purpose was to seek assistance in challenging the
proposed suspension rather than to report any wrongdoing. ID at 15. As
pertinent here, the Whistleblower Protection Enhancement Act of 2012 (WPEA),
Pub. L. No. 112-199, § 101(b)(2)(C), 126 Stat. 1465, 1466 (codified at 5 U.S.C.
§ 2302(f)(1)(C)), amended the Whistleblower Protection Act by providing that an
individual’s “motive for making the disclosure” does not exclude it from
protection. Nasuti v. Department of State , 120 M.S.P.R. 588, ¶ 3 (2014).4
Further, the WPEA expanded the Board’s jurisdiction in IRA appeals to include
claims of reprisal for “cooperating with or disclosing information” to an IG,
activity which is protected under 5 U.S.C. § 2302(b)(9)(C). WPEA, Pub. L. No.
112-199, § 101(b)(1)(A), 126 Stat. 1465, 1465 (codified at 5 U.S.C. § 1221(a)).
Under the broadly worded provision of 5 U.S.C. § 2302(b)(9)(C), any disclosure
of information to the IG or OSC is protected regardless of its content as long as
such disclosure is made in accordance with applicable provisions of law.
Fisher v. Department of the Interior , 2023 MSPB 11, ¶ 8. We therefore find that
the appellant’s December 18, 2012 meeting at the IG’s office was protected
activity, without reaching the issue of whether any disclosures he made in the
meeting were protected.
¶16Third, we agree with the administrative judge that the appellant’s
December 18, 2012 meeting was not a contributing factor in his 5-day suspension,
but we disagree with her reasoning. Specifically, the administrative judge found
4 We have applied the WPEA to this appeal because the personnel action at issue
occurred after the WPEA’s effective date. IAF, Tab 5 at 21; see Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶ 51. 7
that the timing of the meeting precluded it from being a contributing factor in the
suspension because the meeting occurred after the proposal was issued. ID at 17.
A disclosure that occurs after the personnel action at issue was taken cannot be
considered a contributing factor in that personnel action. Sherman v. Department
of Homeland Security , 122 M.S.P.R. 644, ¶ 8 (2015). However, the meeting
occurred before the final decision was made, and thus, the personnel action was
merely contemplated and in preparation before the appellant’s second-line
supervisor became aware of the disclosure. Id., ¶¶ 3-4, 9-11 (remanding to
determine whether an appellant’s performance evaluation was completed before
or after the appellant’s rating officials learned of his disclosure). Thus, the
timing alone does not preclude this meeting from being a contributing factor in
the January 16, 2013 suspension decision. IAF, Tab 5 at 20-21. Nevertheless,
there is no evidence that the deciding official knew, or was influenced by anyone
who knew, about the appellant’s meeting with the IG. Indeed, the IG informed
the appellant that his contact with that office would remain confidential. IAF,
Tab 51 at 42. For that reason, we find that the appellant has not established that
the deciding official had actual or constructive knowledge of the meeting.
Moreover, the record does not support a finding that the appellant established
contributing factor by another prescribed method. See Dorney v. Department of
the Army, 117 M.S.P.R. 480, ¶ 15 (2012) (outlining that if an appellant does not
prove contributing factor by way of the knowledge/timing test, other evidence
should be considered, such as the strength or weakness of the agency’s reasons
for taking the action, whether the whistleblowing was directed at the proposing or
deciding officials, and whether these individuals had a desire or motive to
retaliate against the appellant).
¶17Fourth, we modify the initial decision to address an argument that the
appellant raises on review, and which he appeared to raise below, but which the
administrative judge did not address. Specifically, the appellant argues that his
suspension was based on his refusal to obey his supervisor’s order to lower his8
subordinates’ performance ratings. IAF, Tab 45 at 4; PFR File, Tab 1. He claims
that this order would have required him to violate a directive regarding the
agency’s Performance Plan and Appraisal System, as well as the applicable
collective bargaining agreement, and the agency was therefore prohibited from
disciplining him for this under 5 U.S.C. § 2302(b)(9)(D). IAF, Tab 45 at 4; PFR
File, Tab 1. However, at the time of the personnel action at issue, 5 U.S.C.
§ 2302(b)(9)(D) made it a prohibited personnel practice to take a personnel action
in retaliation for refusing to obey an order that would have required the employee
to violate a “law.” The U.S. Court of Appeals for the Federal Circuit interpreted
the term “law” in this subsection to mean “statute.” Rainey v. Merit Systems
Protection Board , 824 F.3d 1359, 1361-65 (Fed. Cir. 2016). It was not until the
instant appeal already was pending that subsection (b)(9)(D) was amended to
cover orders that would require an employee to violate a “law, rule, or
regulation.” Follow the Rules Act (FTRA), Pub. L. No. 115-40, § 2, 131 Stat.
861 (2017); Fisher, 2023 MSPB 11, ¶ 12. The Board has found that the
amendments to subsection (b)(9)(D) should not be applied to Board appeals that
already were pending prior to the enactment of the FTRA. Fisher, 2023 MSPB
11, ¶¶ 13-19. Because the Performance Plan and Appraisal System directive and
the collective bargaining agreement are not statutes, and the appellant has not
identified any statute that his supervisor’s order would have required him to
violate, we find that he has not established that he engaged in protected activity
under 5 U.S.C. § 2302(b)(9)(D).5
Clear and Convincing Evidence
¶18Having found that the appellant met his burden to prove by preponderant
evidence that his November 11, 2012 disclosure was a contributing factor in his
5-day suspension, we now turn to whether the agency proved by clear and
convincing evidence that it would have suspended the appellant absent his
5 We have reviewed the other relevant legislation enacted during the pendency of this
appeal and find that none further impact the outcome. 9
disclosure. In determining whether an agency has shown by clear and convincing
evidence that it would have taken the same personnel action in the absence of
protected activity, the Board will consider the totality of the circumstances,
including the following factors: the strength of the agency’s evidence in support
of its action; the existence and strength of any motive to retaliate on the part of
the agency officials who were involved in the decision; and any evidence that the
agency takes similar actions against employees who are not whistleblowers but
who are otherwise similarly situated. Carr v. Social Security Administration ,
185 F.3d 1318, 1323 (Fed. Cir. 1999).
¶19In this case, the administrative judge considered the Carr factors and found
that the agency proved by clear and convincing evidence that it would have issued
the 5-day suspension notwithstanding the appellant’s November 19, 2018
disclosure to his supervisor. ID at 17-18. She found that the agency’s evidence
in support of the suspension was strong. Id. She reasoned that the appellant
falsely reported the ratings for two of his subordinates, and surreptitiously
attempted to change the rating for a third subordinate despite an instruction that
he not do so. Id. She further determined that the appellant’s supervisors did not
have a strong motive to retaliate. ID at 18. She found a lack of evidence that
there were any other supervisors like the appellant who engaged in the same type
of misconduct. Id.; see Siler v. Environmental Protection Agency , 908 F.3d 1291,
1299 (Fed. Cir. 2018) (holding that in the absence of relevant comparator
evidence, Carr factor 3 cannot favor the Government). The appellant does not
challenge these findings on review, and we find no reason to disturb them.
Other Arguments Raised on Petition for Review
¶20The appellant argues that the administrative judge abused her discretion in
denying several witnesses who would have testified to his character and
credibility. PFR File, Tab 1 at 4. The administrative judge made only one
credibility finding regarding the appellant. ID at 17-18. The specific finding was10
that the appellant did not credibly deny that he attempted to change the
performance rating of his third subordinate. Id. The appellant does not challenge
this finding or explain how the disallowed witnesses would have disproved it.
PFR File, Tab 1 at 4. Under the circumstances, we find that the administrative
judge did not abuse her broad discretion to rule on witnesses. IAF, Tab 48; see
Oulianova v. Pension Benefit Guaranty Corporation , 120 M.S.P.R. 22, ¶ 12
(2013) (observing that administrative judges have broad discretion to regulate the
proceedings before them, including the discretion to exclude witnesses); 5 C.F.R.
§ 1201.41(b)(8) (including among an administrative judge’s powers the authority
to rule on witnesses). Nor has the appellant shown how he was harmed by these
rulings. See Karapinka v. Department of Energy , 6 M.S.P.R. 124, 127 (1981)
(finding that an administrative judge’s procedural error is of no legal consequence
unless it is shown to have adversely affected a party’s substantive rights).
¶21The appellant also argues that his second-level supervisor made several
false or inconsistent statements during the hearing about why and how some of
the appellant’s subordinates earned the ratings that the appellant’s first-level
supervisor directed him to assign. PFR File, Tab 1 at 6-8. For example, the
appellant argues that, contrary to his second-level supervisor’s testimony, “it is
not permissible to usurp the judgment of the immediate supervisor” in the rating
process. Id. at 7. The appellant asserts that the lower ratings selected by his
supervisors are suspect because his second-level supervisor “never reviewed the
work of a single employee.” Id. at 6. We find that these arguments do not
provide a sufficiently sound basis to overturn the administrative judge’s finding
that the appellant’s second-level supervisor credibly denied a retaliatory motive
during his testimony. ID at 18; see Haebe v. Department of Justice , 288 F.3d
1288, 1301 (Fed. Cir. 2002).
¶22Accordingly, we affirm the initial decision denying corrective action, as
modified.11
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.12
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 any13
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (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’s14
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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. 15
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Cannavo_JosephNY-1221-14-0113-W-1_Final_Order.pdf | 2024-05-17 | JOSEPH CANNAVO v. GENERAL SERVICES ADMINISTRATION, MSPB Docket No. NY-1221-14-0113-W-1, May 17, 2024 | NY-1221-14-0113-W-1 | NP |
1,423 | https://www.mspb.gov/decisions/nonprecedential/Williams_Schekila_S_DA-0714-18-0398-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SCHEKILA S. WILLIAMS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-0714-18-0398-I-1
DATE: May 17, 2024
THIS ORDER IS NONPRECEDENTIAL1
Edward Larvadain, Jr. , Alexandria, Louisiana, for the appellant.
Alonda Price , Garland, Texas, for the agency.
Cecilia G. Isenberg , Garland, 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 her removal pursuant to 38 U.S.C. § 714 based on a charge of Absence
Without Leave (AWOL). For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision, and REMAND 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).
appeal to the Dallas Regional O ffice for further adjudication in accordance with
this Remand Order.
BACKGROUND
Effective May 24, 2018, the agency removed the appellant from her GS-06
Medical Support Assistant position pursuant to 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). Initial Appeal File (IAF), Tab 10 at 9, 13-20.
The action was based on a single charge of “Unauthorized Absence (AWOL)”
with 23 underlying specifications relating to absences between December 2017
and March 2018. Id. at 16-19. The appellant subsequently filed a Board appeal
challenging her removal and requested a hearing on her appeal. IAF, Tab 1 at 3.
She did not raise any affirmative defenses. IAF, Tab 1 at 2-7, Tab 11 at 2 n.1. In
an order on timeliness, the administrative judge noted that the appeal appeared to
have been filed 1 day late, and he provided the appellant with the opportunity to
provide evidence and/or argument showing that her appeal was timely filed or
that her delay in filing her appeal should be excused. IAF, Tab 3.
After holding the appellant’s requested hearing, the administrative judge
issued an initial decision affirming her removal. IAF, Tab 17, Initial Decision
(ID). Regarding the timeliness of the appeal, he found that the doctrine of
equitable tolling applied because the agency had provided the appellant with
improper appeal rights information in its decision letter. ID at 1 n.1. He further
found that, as to each specification, the agency proved by substantial evidence
that the appellant’s absences were not authorized or her requests for leave were
properly denied. ID at 4-5. He further found that the agency complied with the
Family and Medical Leave Act of 1993 (FMLA) as a part of its burden of proving
the AWOL charge. ID at 5. Accordingly, the administrative judge sustained the
agency’s charge. Id. The administrative judge then found that he had no2
authority to mitigate the penalty for an action taken under 38 U.S.C. § 714. ID
at 6. Consequently, he affirmed the agency removal action. Id.
The appellant has timely filed a petition for review. Petition for Review
(PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The appeal was untimely filed.
38 U.S.C. § 714(c)(4)(B) provides that a covered individual removed
pursuant to section 714 may file a Board appeal challenging her removal “not
later than 10 business days after the date of such removal.” See Ledbetter v.
Department of Veterans Affairs , 2022 MSPB 41, ¶¶ 6-7. Here, it is undisputed
that the appellant was removed from her position, pursuant to 38 U.S.C. § 714,
effective May 24, 2018. IAF, Tab 10 at 13. Accordingly, her appeal was due no
more than 10 business days later, on June 8, 2018.2 The appellant’s Board appeal
challenging her removal was postmarked June 13, 2018. IAF, Tab 1 at 1, 33; see
5 C.F.R. § 1201.4( l) (stating that the date of filing by mail is determined by the
postmark date). Consequently, her appeal was untimely filed by 3 calendar days.
We ultimately agree with the administrative judge’s finding that the statutory
filing deadline should be equitably tolled based on the facts in this case but
supplement his reasoning.
Although the administrative judge correctly concluded that the appellant’s
Board appeal was untimely filed, he nevertheless determined that the doctrine of
equitable tolling should be applied to extend the deadline, determining that the
agency induced the appellant into allowing the Board filing deadline to pass by
providing her with incorrect information. ID at 1 n.1; IAF, Tab 15 at 4-6 (citing
Irwin v. Department of Veterans Affairs , 498 U.S. 89, 95-96 (1990) (concluding
that if the Federal Government has waived its immunity, there is a presumption
2 In calculating this deadline, we excluded the Memorial Day Federal holiday, which
was observed on Monday, May 28, 2018. See Ledbetter, 2022 MSPB 41, ¶ 7 & n.2
(excluding weekends and holidays when calculating the 10-business-day deadline under
section 714(c)(4)(B)).3
favoring the application of equitable tolling)). Specifically, the administrative
judge noted that in the May 17, 2018 removal decision letter, the agency provided
incorrect appeal rights information informing the appellant that she could file an
appeal with the Board challenging her removal at any time after she received the
decision letter, “but not later than 30 calendar days after the separation has been
effected, or 30 calendar days after the date of [] your receipt of this decision,
whichever is later.” IAF, Tab 10 at 14, Tab 15 at 5-6. Because the agency
provided this incorrect appeal rights information and the appellant relied on that
information by filing her Board appeal after the statutory 10-business-day filing
deadline, the administrative judge concluded that the appellant was “induced or
tricked” by the agency into allowing the filing deadline to pass. ID at 6.
Consequently, he determined that equitable tolling should be applied to extend
the Board filing deadline. ID at 6.
After the initial decision was issued in this case, the Board issued its
decision in Hemann v. Department of Veterans Affairs , 2022 MSPB 46. The
appellant in Hemann was removed pursuant to section 714, and the decision
notice informed him of his right to appeal the removal to the Board “at any time”
after he received the decision notice, but “not later than 30 calendar days” after
the separation was effected or his receipt of the decision, whichever was later.
Hemann, 2022 MSPB 46, ¶ 2. The appellant filed his Board appeal more than
10 business days, but less than 30 days, after the effective date of the removal
action and the agency moved to dismiss the appeal as untimely filed. Id.,
¶¶ 3, 20.
Citing its prior decision in Ledbetter, 2022 MSPB 41, ¶ 8, the Board
acknowledged that the doctrine of equitable tolling may be available under
certain circumstances to toll a statutory deadline in an untimely appeal. Hemann,
2022 MSPB 46, ¶ 9. The Board next considered the limited circumstances in
which equitable tolling may be invoked to excuse an untimely filed lawsuit
against the Government. Id., ¶ 11. The Board highlighted two such4
circumstances, the first, when an appellant has “actively pursued his judicial
remedies by filing a defective pleading during the statutory period,” and the
second, when an appellant “has been induced or tricked by his adversary’s
misconduct into allowing the filing deadline to pass.” Id. (quoting Irwin,
498 U.S. at 96). After reviewing precedent from the U.S. Court of Appeals for
the Federal Circuit (Federal Circuit) and the U.S. Supreme Court applying
equitable tolling in these circumstances, the Board determined that the agency’s
incorrect notice to the appellant that he had 30 calendar days to challenge his
removal to the Board mislead him into believing that a 30-day filing period was
permitted, and so the agency had “induced or tricked” him into allowing the
statutorily required 10-business-day filing deadline to pass. Id., ¶ 19.
Consequently, the Board concluded that equitable tolling was warranted. Id. The
Board further concluded that because it was undisputed that the appellant had
filed his Board appeal within the 30-day period provided to him by the agency, he
had acted with due diligence within the filing period that he reasonably believed
to be correct. Id., ¶ 20.
The factual circumstances in Hemann are nearly identical to those at issue
in this appeal. As in Hemann, the appellant here was “induced or tricked” by the
incorrect 30-day filing deadline provided by the agency, and the appellant acted
with due diligence by filing her Board appeal within the filing period she believed
was applicable based on the information provided to her by the agency.3
Consequently, we agree with the administrative judge’s finding that equitable
tolling should apply to extend the filing deadline for the appellant’s untimely
appeal of her removal pursuant to 38 U.S.C. § 714, based on the specific facts of
this case.
3 Also, as in Hemann, it is of no consequence that the appellant here was represented by
legal counsel during the course of her appeal. IAF, Tab 1 at 4; see Hemann,
2022 MSPB 46, ¶¶ 12, 19. 5
The appellant has failed to provide a basis for disturbing the administrative
judge’s finding that the agency proved its charge by substantial evidence.
In an appeal of an action taken pursuant to 38 U.S.C. § 714, the agency is
required to prove its charge by substantial evidence.4 See Rodriguez v.
Department of Veterans Affairs , 8 F.4th 1290, 1298 (Fed. Cir. 2021). 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 on other grounds by Pridgen v. Office of Management
and Budget, 2022 MSPB 31, ¶¶ 23-25. The administrative judge found that the
appellant was absent for all the dates for which she was charged, and the
appellant does not contest this finding on review. ID at 3-4. Moreover, the
appellant does not appear to dispute the administrative judge’s finding that the
agency did not authorize those absences. ID at 4-5. Rather, she contends that
nobody testified that she did not have leave to cover her absences and that there
was no testimony explaining the agency’s documentary evidence. PFR File,
Tab 1 at 3.
The appellant’s contention fails to provide a basis for review. When an
employee has requested leave to cover her absences, an AWOL charge will be
sustained only if the agency establishes that the appellant’s requests were
properly denied. Savage, 122 M.S.P.R. 612, ¶ 28. Moreover, if the employee
requested leave without pay (LWOP) for the periods when she was placed in an
AWOL status, the Board will examine the record as a whole to determine if the
denial of LWOP was reasonable under the circumstances. Id.
Here, as noted by the administrative judge, the appellant testified that,
during the time periods at issue in this appeal, she usually had very little accrued
leave. ID at 5; Hearing Recording (HR) (testimony of the appellant). The
4 Substantial evidence is “[t]he 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).6
administrative judge accordingly found that the agency established that the
appellant did not have sufficient leave to cover her substantial hours of absences
—129.75 hours. ID at 4. Thus, contrary to the appellant’s argument on review,
there was testimony establishing that she did not have sufficient leave to cover
her absences.
To the extent the appellant is alleging that the agency should have granted
her LWOP to cover her absences, the administrative judge addressed this
argument in the initial decision. ID at 4-5. The administrative judge
acknowledged the appellant’s testimony that the vast majority of her absences
were directly related to her children’s medical conditions, and not to any
condition of her own. ID at 4. As previously noted, the administrative judge
considered whether the agency complied with the requirements of the FMLA, and
found that it had. Id. at 5. In reaching this conclusion, he noted that the
appellant admitted that she had not requested FMLA-based leave for any period
of absence at issue in this appeal, and that the agency had granted her
FMLA-based leave in the past. Id. The appellant has provided no basis for
disturbing the administrative judge’s well-reasoned finding that, under these
circumstances, the agency’s denial of the appellant’s requests for LWOP did not
constitute an abuse of discretion. ID at 5; 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 where 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). Accordingly, we find that the administrative judge properly determined
that the agency proved its charge by substantial evidence. 7
Remand of the appeal is necessary for the administrative judge to provide the
parties with an opportunity to present evidence and argument regarding whether
the agency’s error in sustaining the removal based on substantial evidence harmed
the appellant.
As previously discussed, the administrative judge concluded in the initial
decision that the agency proved each specification of the AWOL charge by
substantial evidence and consequently determined that the agency met its burden
of proving the charge. ID at 3-5. After the initial decision in this case was
issued, the Federal Circuit issued its decision in Rodriguez, 8 F.4th at 1296-1301,
in which it determined that the agency erred by applying a substantial evidence
burden of proof to its internal review of a disciplinary action taken under
38 U.S.C. § 714. The court in Rodriguez found that substantial evidence is the
standard of review to be applied by the Board, not the agency, and that an
agency’s deciding official must “determine[]” whether “the performance or
misconduct . . . warrants” the action at issue by applying a preponderance of the
evidence burden of proof.5 Id. at 1298-1301 (quoting 38 U.S.C. § 714(a)(1)).
The Board subsequently issued Semenov v. Department of Veterans Affairs ,
2023 MSPB 16, ¶¶ 23-24, in which it found that it was appropriate to apply the
harmful error standard from 5 U.S.C. § 7701(c)(2) to an agency’s improper
application of the substantial evidence standard to its review of proposed actions
taken under 38 U.S.C. § 714. The Board also held that the Federal Circuit’s
holding in Rodriguez applies to all pending cases, regardless of when the events
at issue took place. Semenov, 2023 MSPB 16, ¶ 22.
In the instant appeal, the deciding official noted in the decision letter that
the AWOL charge was supported by “substantial evidence” in sustaining the
appellant’s removal. IAF, Tab 10 at 13. During the hearing, the agency did not
elicit any further testimony concerning the burden of proof the deciding official
applied in assessing the charge, and the deciding official did not offer any
5 Preponderance of the evidence is “[t]he 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
additional testimony indicating that he applied anything other than a substantial
evidence burden of proof in sustaining the removal. IAF, Tab 16, HR
at 37:30-42:30 (testimony of the deciding official). The administrative judge and
the parties did not have the benefit of Rodriguez, and they were therefore unable
to address its impact on this appeal. Accordingly, we remand this case for further
adjudication to address whether the agency’s apparent error in applying the
substantial evidence standard of proof was harmful. See Semenov, 2023 MSPB
16, ¶ 22. On remand, the administrative judge shall provide the parties with an
opportunity to present additional evidence and argument, including holding a
supplemental hearing if requested by the appellant, addressing whether the
agency’s use of the substantial evidence standard in the removal decision
constituted harmful error.
On remand, the administrative judge should apply the Douglas factors and review
the agency’s penalty determination.
After the initial decision was issued in this case, the Federal Circuit issued
its decision in Connor v. Department of Veterans Affairs , 8 F.4th 1319 (Fed. Cir.
2021). In Connor, the Federal Circuit determined that the agency and the Board
must consider and apply the nonexhaustive factors set forth in Douglas v.
Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), in its review of an
agency’s penalty selection under 38 U.S.C. § 714. Connor, 8 F.4th at 1325-26;
see Semenov, 2023 MSPB 16, ¶¶ 44-50 (stating that, consistent with the Federal
Circuit’s decision in Connor, the agency and the Board must apply the Douglas
factors in reviewing the penalty in an action taken under 38 U.S.C. § 714). The
court held that, although section 714 precludes the Board from mitigating the
agency’s chosen penalty, “[i]t does not alter the penalty review with respect to
the Douglas factors” and that, although the Board cannot mitigate the penalty, “if
the Board determines that the [agency] failed to consider the Douglas factors or
that the chosen penalty is unreasonable, the Board must remand to the [agency]
for a redetermination of the penalty.” Connor, 8 F.4th at 1326-27 (citing Brenner9
v. Department of Veterans Affairs , 990 F.3d 1313, 1325 (Fed. Cir. 2021)
(explaining that, “if the [Board] concludes that the [agency’s] removal decision is
unsupported by substantial evidence, the [Board] should remand to the [agency]
for further proceedings”)).
Here, the administrative judge did not have the benefit of the Connor or
Semenov decisions. In the absence of this guidance, he concluded that the Board
lacked mitigation authority in actions taken under 38 U.S.C. § 714 and
specifically concluded that the “reasonableness of an imposed penalty, along with
a consideration of mitigating and aggravating factors under Douglas v. Veterans
Administration, 5 M.S.P.R. 280 (1981), is immaterial.”6 ID at 6. Moreover, in
the removal decision letter, the deciding official did not reference the Board’s
decision in Douglas, cite to the Douglas factors, or otherwise indicate that he
considered any mitigating factors in sustaining the removal action. IAF, Tab 10
at 13-15. Finally, during the hearing, the deciding official did not offer any
testimony concerning whether he considered the Douglas factors or any
mitigating considerations in deciding to sustain the removal penalty, and the
parties did not elicit any testimony on the issue. HR at 37:30-42:30 (testimony of
the deciding official).
Thus, the record is unclear as to whether the agency properly considered
the Douglas factors in deciding to remove the appellant. The administrative
judge and the parties did not have the benefit of Connor, and therefore were
unable to address its impact on this appeal. Consequently, on remand, the
administrative judge should permit the parties to submit additional evidence and
argument on the penalty issue, again holding a supplemental hearing if requested
by the appellant. See Semenov, 2023 MSPB 16, ¶ 50. In reviewing the penalty,
6 Despite this finding, it appears that the administrative judge identified potential
mitigating factors, such as the fact that the appellant’s children had significant medical
conditions that required her attention and frequent absences, but nevertheless
determined that he lacked the authority to mitigate the agency’s chosen decision on that
basis. ID at 6. 10
the administrative judge should determine whether the agency proved by
substantial evidence that it properly applied the Douglas factors and whether the
agency’s penalty selection was reasonable and, if not, he should remand the
appellant’s removal to the agency for a new decision on the appropriate penalty.
Id. (citing Connor, 8 F.4th at 1326-27; Sayers, 954 F.3d 1370, 1375-76, 1379
(Fed. Cir. 2020)).
ORDER
For the reasons discussed above, we remand this case to the Dallas
Regional Office for further adjudication in accordance with this Remand Order.7
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
7 In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.11 | Williams_Schekila_S_DA-0714-18-0398-I-1__Remand_Order.pdf | 2024-05-17 | SCHEKILA S. WILLIAMS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-0714-18-0398-I-1, May 17, 2024 | DA-0714-18-0398-I-1 | NP |
1,424 | https://www.mspb.gov/decisions/nonprecedential/Berry_James_D_SF-0432-18-0523-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES D. BERRY,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-0432-18-0523-I-1
DATE: May 17, 2024
THIS ORDER IS NONPRECEDENTIAL1
Chalmers C. Johnson , Esquire, Port Orchard, Washington, for the appellant.
Christina T. Fuentes , Esquire, Sandra Lizeth Schoepfle , Esquire, and
Alison Gray , 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
affirmed the agency’s removal action based on unacceptable performance. For
the reasons discussed below, we GRANT the petition for review. We MODIFY
the initial decision to apply the appropriate legal standards to the appellant’s
affirmative defense of retaliation for engaging in prior equal employment
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 (EEO) activity, and REMAND the appeal to the Western 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) .
BACKGROUND
The appellant was employed as a GS-07 Human Resources Assistant at the
agency’s Office of Civilian Human Resources in Silverdale, Washington. Initial
Appeal File (IAF), Tab 5 at 24. On December 18, 2017, the agency issued him a
Notice of Unacceptable Performance, which identified his deficiencies in the
critical elements of Personnel Action Processing2 and Technical Proficiency, and
the agency placed him on a 60-day performance improvement plan (PIP) from
December 18, 2017, to February 23, 2018. IAF, Tab 6 at 4-7. The agency
proposed his removal under 5 U.S.C. chapter 43 based on a charge of failure to
demonstrate an acceptable level of performance in the critical element of
Personnel Action Processing during his recent PIP. IAF, Tab 5 at 28-31. After
considering his written response, the agency removed him from his position,
effective April 25, 2018. Id. at 25-27.
The appellant filed an appeal with the Board challenging his removal and
raising the affirmative defense of retaliation for prior EEO activity. IAF, Tab 1.
Following a hearing, the administrative judge issued an initial decision that
affirmed the agency’s action, finding that the agency proved the merits of its
action by substantial evidence and the appellant did not prove his affirmative
defense of retaliation for prior EEO activity. IAF, Tab 22, Hearing Compact Disc
(HCD), Tab 26, Initial Decision (ID) at 7-30. He noted that the Board was
without the authority to mitigate a performance-based removal under chapter 43.
ID at 30.
The appellant has filed a petition for review.3 Petition for Review (PFR)
File, Tab 1. The agency has filed a response. PFR File, Tab 9.
2 This critical element was also referred to as Processing Personnel Actions. IAF,
Tab 26 at 3 n.2.2
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly found that the agency met its burden of proof
for a performance-based removal under 5 U.S.C. chapter 43 under the law when
the initial decision was issued.
In a performance-based action under chapter 43, under the law when the
initial decision was issued, an agency was required to establish by substantial
evidence4 that: (1) the Office of Personnel Management (OPM) approved its
performance appraisal system; (2) the agency communicated to the appellant the
performance standards and critical elements of his position; (3) the appellant’s
performance standards are valid; (4) the agency warned the appellant of the
inadequacies of his performance during the appraisal period and gave him a
reasonable opportunity to improve; and (5) the appellant’s performance remained
unacceptable in at least one critical element. Lee v. Environmental Protection
Agency, 115 M.S.P.R. 533, ¶ 5 (2010) .
On review, the appellant only contests the administrative judge’s findings
regarding the first element.5 PFR File, Tab 6 at 3-6. In particular, he asserts that
(1) he did not stipulate to the first element, (2) the agency did not meet its burden
of proof because it failed to produce any evidence as to the first element, and
(3) he raised a “cogent and specific challenge on the issue of whether the rating
system complied with OPM requirements” when he argued that “the PIP lacked
any objective criteria for evaluating his performance and was so completely
subjective that he had no idea how to ‘pass’ it.” Id. at 3-5 (citing ID at 11) .
3 The appellant subsequently filed a “corrected” petition for review, PFR File, Tab 6,
which included minor changes to the footer and the date of the pleading. Because it
does not appear that there are any substantive changes to the petition for review, we
herein refer to the petition for review submission as PFR File, Tab 6.
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).
5 We affirm the administrative judge’s findings regarding what were, prior to Santos,
the remaining elements of a chapter 43 action.3
Ordinarily, the Board will presume that OPM has approved the agency’s
performance appraisal system; however, if an appellant has alleged that there is
reason to believe that OPM did not approve the agency’s performance appraisal
system or made significant changes to a previously approved system, the Board
may require the agency to submit evidence of such approval. Lee, 115 M.S.P.R.
533, ¶ 5; Daigle v. Department of Veterans Affairs , 84 M.S.P.R. 625, ¶ 12 (1999).
We agree with the administrative judge that, under these circumstances, the
appellant did not challenge OPM’s approval of the agency’s performance
appraisal system or allege that the agency made significant changes to a
previously approved system. Therefore, it is appropriate to apply the
presumption that OPM has approved the agency’s performance appraisal system.
ID at 8.
The appellant’s characterization of his refusal to stipulate to the first
element and his disagreement with the PIP criteria do not constitute a specific
challenge to the issue of whether OPM approved the agency’s performance
appraisal system or whether the agency significantly changed a previously
approved system and are insufficient to rebut the presumption of OPM approval.
ID at 8, 11; IAF, Tab 21 at 4. His allegation that the agency did not produce any
evidence of OPM approval is likewise unavailing. The burden was on the agency
to produce evidence of OPM approval if the appellant raised a specific challenge.
Daigle, 84 M.S.P.R. 625, ¶ 12. The appellant did not raise such a challenge until
his petition for review, which prompted the agency to produce a copy of OPM’s
January 31, 1996 approval of its performance appraisal system. PFR File, Tab 9
at 22. We will consider this evidence on review. See Daigle, 84 M.S.P.R. 625,
¶ 9 (explaining that the Board will consider evidence of OPM approval of the
performance appraisal system on review when the agency was not placed on
timely notice that it would be a dispositive issue in the appeal). There is no
indication in the record that the agency made significant changes to the4
previously approved system. We therefore affirm the administrative judge’s
conclusion that the agency proved the first element by substantial evidence.
In asserting that the PIP lacked objective criteria, the appellant conflates
the validity of his performance standards (element 3) with OPM’s approval of the
agency’s performance appraisal system (element 1). The administrative judge
addressed this claim in evaluating the third element, and determined that the
agency proved by substantial evidence that the performance standards in the
critical element of Personnel Action Processing were valid. ID at 9-13.
As set forth in the initial decision, 5 U.S.C. chapter 43 requires that
performance standards, to the maximum extent feasible, permit the
accurate evaluation of performance on the basis of objective criteria. ID at 9;
Towne v. Department of the Air Force , 120 M.S.P.R. 239, ¶ 21 (2013).
Standards must be reasonable, realistic, attainable, and clearly stated in writing.
Towne, 120 M.S.P.R. 239, ¶ 21. Performance standards should be specific
enough to provide an employee with a firm benchmark toward which to aim his
performance and must be sufficiently precise so as to invoke general consensus as
to their meaning and content. Id. Even when performance standards are vague on
their face, the agency may cure the defect by fleshing out the standards thorough
additional oral or written communication. Id., ¶ 23.
The initial decision contains a thorough analysis of this element. ID
at 9-13. The administrative judge found that “both the performance plan and the
PIP, when viewed holistically, provided clear, objective guidance” not only from
the outset of the appraisal period but also throughout the entire PIP. ID at 11-12.
In so finding, he explained that the performance plan set forth the standards for
the critical element of Personnel Action Processing, the agency attached quality
review worksheets to the appellant’s assignments which identified his errors and
provided guidance for accurate processing of personnel actions, the PIP notice
gave him additional guidance, and the appellant’s supervisor discussed with him
the pay impacting errors he made during the appraisal period and the actions he5
needed to take to demonstrate acceptable performance. ID at 10-13; e.g.,
IAF, Tabs 6-7, 12. The administrative judge noted that the fact that a
performance standard may call for a certain amount of subjective judgment on the
part of the employee’s supervisor does not automatically invalidate it, he found
that the standards were reasonable, realistic, attainable, and clearly stated in
writing, and he concluded that the agency proved by substantial evidence that the
performance standards were valid. ID at 12. We discern no basis to disturb the
administrative judge’s finding regarding the validity of the appellant’s
performance standards under 5 U.S.C. § 4302(c)(1). ID at 12-13. Thus, we
affirm the administrative judge’s determination that the agency proved
by substantial evidence that the appellant’s performance was unacceptable.
ID at 7-21. As discussed below, however, we must remand this appeal in light of
Santos.
We modify the initial decision to supplement the administrative judge’s analysis
of the appellant’s claim of retaliation for engaging in prior EEO activity, still
finding that the appellant did not prove this claim.
On review, the appellant does not challenge the administrative judge’s
finding that he did not prove his claim of retaliation for prior EEO activity. ID
at 21-30. The record reflects that the appellant filed an EEO complaint in which
he alleged that, in a series of incidents from March 13 to May 17, 2017, his
former first-line supervisor and his second-line supervisor discriminated against
him on the basis of disability (mental) and subjected him to a hostile work
environment for contacting an agency EEO official about a reasonable
accommodation request, and his new first -line supervisor retaliated against him
for filing an EEO complaint when he proposed his removal on March 19, 2018.
IAF, Tab 5 at 13-23, Tab 8 at 88-95.
In addressing the appellant’s affirmative defense, the administrative judge
applied an obsolete burden-shifting framework applicable to Title VII affirmative
defenses inconsistent with the Board’s decision in Pridgen v. Office of6
Management and Budget , 2022 MSPB 31, which was issued after the initial
decision in this case. ID at 21-30. In Pridgen, 2022 MSPB 31, ¶¶ 21 n.4, 46, the
Board held that claims of retaliation under the Americans with Disabilities Act
(ADA) are to be analyzed under the “but-for” causation standard, in which the
burden of persuasion always remains with the appellant. The Board stated that it
applies standards under the ADA, as amended by the Americans with Disabilities
Act Amendments Act of 2008 , to determine whether there has been a violation of
the Rehabilitation Act, which protects both requesting a reasonable
accommodation and opposing disability discrimination—the protected activity at
issue in the appellant’s affirmative defense. Id., ¶¶ 35, 44.
Nevertheless, because the administrative judge correctly determined,
without engaging in any discernable burden shifting, that the appellant did not
prove that his EEO activity was a motivating factor in his removal, ID at 29, we
conclude that the appellant would not be able to satisfy the more stringent
“but-for” standard in Pridgen. The administrative judge found that the agency
effected the appellant’s removal, not due to retaliatory animus, but because the
appellant did not demonstrate acceptable performance in the critical element of
Personnel Action Processing during his PIP. ID at 26-28. In so finding, he noted
that the appellant did not dispute the performance deficiencies with which he was
charged; rather, he disagreed with the manner in which the PIP was administered
and the magnitude of his performance deficiencies. ID at 27. The administrative
judge did not accord much weight to the appellant’s assertions regarding the
motivation of agency officials in taking this action, finding that his testimony in
that regard was speculative, conclusory, unsupported, and implausible.
ID at 25-28, 27 n.11. He observed that the proposing and deciding officials were
aware that he filed an EEO complaint but he found that they credibly denied
retaliatory intent. ID at 27-28. 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 a7
hearing; the Board may overturn such determinations only when it has
“sufficiently sound” reasons for doing so. Purifoy v. Department of Veterans
Affairs, 838 F.3d 1367, 1372-73 (Fed. Cir. 2016); Haebe v. Department of
Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). The appellant has not made such a
showing.
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 on
whether the agency proved by substantial evidence that the appellant’s pre-PIP
performance was unacceptable. The administrative judge shall hold a
supplemental hearing if appropriate. The administrative judge shall then issue a
new initial decision consistent with Santos. If the agency makes the additional
showing required under Santos on remand, the administrative judge may
incorporate 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 defense, the8
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
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.9 | Berry_James_D_SF-0432-18-0523-I-1__Remand_Order.pdf | 2024-05-17 | JAMES D. BERRY v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0432-18-0523-I-1, May 17, 2024 | SF-0432-18-0523-I-1 | NP |
1,425 | https://www.mspb.gov/decisions/nonprecedential/Driver_Billy_R_AT-0839-19-0170-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BILLY R. DRIVER,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-0839-19-0170-I-1
DATE: May 17, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Vicki S. Fuller , Redstone Arsenal, Alabama, for the appellant.
Paul Andrew Schorn , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for relief under the Federal Erroneous Retirement Coverage
Corrections 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 has provided evidence
purportedly showing that he was appointed to a position covered under the Civil
Service Retirement System when he began his employment with the Federal
Government. Petition for Review (PFR) File, Tab 1 at 2, 18-20.2 Specifically, he
has submitted a Notification of Personnel Action dated January 1984, a Personal
Qualifications Statement dated November 10, 1983, and a printout from the
website of the Office of Personnel Management dated April 19, 2019. Id.
at 18-20.
The appellant has failed to explain why he was unable to submit such
evidence despite his due diligence prior to when the record before the
administrative judge closed. 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).
Nevertheless, even if we were to consider such evidence, we find that it
does not warrant a different outcome than that of the initial decision. See
2 With his petition for review, the appellant has included a copy of the initial decision
and its certificate of service. PFR File, Tab 1 at 4-17; Initial Appeal File, Tab 17,
Initial Decision, Tab 18. The agency, as part of its response to the appellant’s petition
for review, has resubmitted a copy of his petition for review. PFR File, Tabs 1, 4.2
Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (finding 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). In particular, we find that the evidence provides no
reason to disturb the administrative judge’s findings that the
appellant’s conversion to the Federal Employees’ Retirement System effective
January 1, 1987, was required by law, and thus, he was not placed in the wrong
retirement system. Initial Appeal File, Tab 17, Initial Decision at 5-6.
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you4
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 5
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Driver_Billy_R_AT-0839-19-0170-I-1__Final_Order.pdf | 2024-05-17 | BILLY R. DRIVER v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-0839-19-0170-I-1, May 17, 2024 | AT-0839-19-0170-I-1 | NP |
1,426 | https://www.mspb.gov/decisions/nonprecedential/ZseDenny_GregorySF-0752-21-0346-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GREGORY P. ZSEDENNY,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
SF-0752-21-0346-I-1
DATE: May 17, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cindy ZseDenny , Penn Valley, California, for the appellant.
Kathryn Price , Los Angeles Air Force Base, 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 the agency’s removal action . For the reasons discussed below, we
GRANT the appellant’s petition for review and VACATE 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).
2
BACKGROUND
The appellant was employed as a Maintenance Mechanic Supervisor at the
Beale Air Force Base in California. Initial Appeal File (IAF), Tab 1 at 1, 9. On
March 7, 2020, the agency indefinitely suspended the appellant for issues related
to his security clearance. IAF, Tab 6 at 11, Tab 11 at 51. On January 28, 2021,
while the appellant was indefinitely suspended, the agency issued a notice
proposing to remove him for one charge of conduct unbecoming a Federal
employee (four specifications) after an agency investigation found that between
March 2017 and June 2019 the appellant made claims for unauthorized charges
for travel expenses in an estimated amount of $3,943.37. IAF, Tab 1 at 9-13.
The proposal offered the appellant 10 days to respond. Id. at 10.
On February 3, 2021, the appellant sent an email from his personal email
account to several agency personnel, with the subject line “Letter of Resignation”
and an attachment titled “G ZseDenny’s Resignation Ltr_6 Feb 21.” IAF, Tab 6
at 5. In the letter, the appellant asserted, “I wish to officially state that I am quite
confused about this recent turn of events to have me removed from Federal Civil
Service,” and explained that the appeal of his indefinite suspension was still
pending. Id. at 8. He noted that “no one wants to be removed from [a] position,
myself included—and most will resign before it comes to this” and posed
questions such as “I cannot help but wonder why it is that you are suddenly trying
to force me to resign?” Id. at 9. He concluded “[s]o, it is with protest and under
much duress, due to this recent threat to my well-being and records, that I hereby
resign my position . . . effective 6 February 2021.” Id. The appellant
hand-delivered two printed copies of his letter to his supervisor and slid another
copy under the door of another management official. Id. at 11, Tab 28 at 13. A
human resources official copied on the email confirmed receipt of the appellant’s
letter the next day. IAF, Tab 6 at 6.
On March 12, 2021, Civilian Personnel Officer (CPO) Burlingame emailed
the appellant seeking “clarity and confirmation” of his email. Id. at 10. She
3
asked the appellant to elaborate on his claim of duress so the agency could
properly address his concerns and requested that he respond with a clear and
voluntary statement of resignation within 10 days if he still wished to resign. Id.
On March 16, 2021, the CPO telephoned the appellant and left a message
regarding the same. IAF, Tab 29 at 105. The appellant did not respond. IAF,
Tab 6 at 12. On April 2, 2021, the agency issued a decision letter removing the
appellant from his position effective April 9, 2021. IAF, Tab 1 at 15.
The appellant subsequently filed the instant, timely Board appeal arguing
that the agency should have processed his resignation on February 6, 2021, and
that the agency’s removal action should be considered invalid because his
resignation terminated his employment and thus the agency had no authority to
remove him. Id. at 6. He also argued, should the Board disagree on the
resignation issue, that the agency violated his due process rights during the
removal action by effectively denying him the opportunity to respond to the
charges against him since the agency caused him to reasonably believe that he
was resigned from his position and that he no longer had any reason to respond to
the notice of proposed removal. Id.
After considering the written record, the administrative judge issued an
initial decision affirming the agency’s removal action. IAF, Tab 21 at 4, Tab 33,
Initial Decision (ID) at 1. The administrative judge concluded that the appellant
did not effectively resign because “the voluntariness” of his intent to resign “was
sufficiently ambiguous [such] that the agency was not required to accept it.” ID
at 6. The administrative judge determined that although the appellant clearly said
he resigned and gave an effective date, he also said it was against his will, under
duress, and with protest; he specifically asked the CPO for advice and thus should
have expected further communication; and he left the agency in the awkward
position of having an apparent resignation letter and an apparent statement that
that resignation was involuntary. Id. The administrative judge also considered
the appellant’s due process argument but found there was no merit to the
4
appellant’s claims because the agency gave him the opportunity to respond to the
proposal. ID at 7-8. The administrative judge then determined that the agency
proved its charge, that there was a nexus, and that the penalty of removal was
reasonable. ID at 8-13.
The appellant has filed a petition for review disputing the administrative
judge’s findings on the resignation issue. Petition for Review (PFR) File, Tab 1
at 4-6. He reasserts the facts of his case and suggests that the administrative
judge legally and factually erred because he fully and clearly resigned from his
position prior to the removal.2 Id. The agency has filed a response. PFR File,
Tab 3. The appellant filed a reply. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
An employee is free to resign at any time, to set the effective date of his
resignation, and to have his reasons for resigning entered in his official records.
5 C.F.R. § 715.202(a). The Board has held that an employee’s expression of a
present intent to resign must be definite and unequivocal and when it is
ambiguous, the agency is not entitled to rely upon it. Hammond v. Department of
the Navy, 50 M.S.P.R. 174, 181 (1991) (explaining that a conditional resignation
may be ambiguous because a condition may add uncertainty as to whether a
statement expresses a present or future intent to resign, and that the agency may
contact an appellant to clarify such an ambiguity). In determining whether an
employee has effectively resigned, the Board considers the totality of the
circumstances. Balagot v. Department of Defense , 102 M.S.P.R. 96, ¶ 7 (2006)
2 In support of his argument, the appellant asserts that he followed the Office of
Personnel Management’s “The Guide to Processing Personnel Actions” (GPPA) in
tendering his resignation and he submits excerpts from the GPPA for the first time on
review. PFR File, Tab 1 at 4-5, 7-47. Because the appellant raised this argument below
and has failed to show that this evidence is new and material, we will not consider it.
See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980) (recognizing that,
under 5 C.F.R. § 1201.115(d), the Board 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 also IAF, Tab 28 at 15-16.
5
(citing Robinson v. U.S. Postal Service , 50 M.S.P.R. 433 (1991); Heinze v.
Department of the Interior , 47 M.S.P.R. 375, aff’d, 949 F.2d 403 (Fed. Cir. 1991)
(Table)). The Board has found that when an effective resignation moots a
subsequent removal action, the administrative judge should not alternatively
address the merits of the removal. Schumert v. U.S. Postal Service , 41 M.S.P.R.
350, 351-52 (1989).
Here, we find that the administrative judge legally erred in concluding that
the appellant did not effectively resign. The record shows that the subject line of
the appellant’s February 3, 2021 email read, “Letter of Resignation” and the body
stated, “Please find my letter of resignation attached. CPO: What is required to
settle my records, leave, final-out, etc.” IAF, Tab 6 at 5; ID at 3. The appellant
sent the email to multiple agency personnel, including his supervisor and human
resources officials, and the attached letter clearly stated that he resigned and gave
an effective date. IAF, Tab 6 at 5-9; ID at 6. The appellant explained in an
affidavit that when he hand-delivered printed copies of the letter to his
supervisor, the two had a conversation about his resignation and shook hands.
IAF, Tab 28 at 13. Such circumstances clearly demonstrate that the appellant’s
intent to resign was definite, unequivocal, and unconditional. Cf. Hammond v.
Department of the Navy , 35 M.S.P.R. 644, 648 (1987) (finding that an appellant’s
purported letter of resignation did not evince a definitive and unconditional
resolve to resign when it was ambiguously and expressly conditioned upon an
agency decision on his request for leave without pay, did not announce an
effective date, and when the record did not disclose that the appellant engaged in
any other conduct consistent with an intention to resign). The Board has found
that employees have effectively resigned under circumstances much less
calculated than those presented here. See Robinson, 50 M.S.P.R. at 438 (finding
that the appellant’s statements and actions signified an intent to resign effective
immediately when the appellant stated that he was quitting, left the premises
before the end of his scheduled workday, and did not return to work for his
6
scheduled tours of duty the following 2 days); Heinze, 47 M.S.P.R. at 378
(similar).
Although the appellant stated that he was resigning “with protest and under
much duress” due to the “threat to [his] well-being and records,” the appellant’s
reasons for resigning are beside the point for purposes of evaluating whether his
February 3 letter and conduct constituted an effective resignation. IAF, Tab 6
at 9; see McDermott v. Department of Justice , 82 M.S.P.R. 19, ¶¶ 8-12 (1999)
(separately analyzing whether the appellant’s resignation was effective and
whether it was involuntary). The relevant inquiry is whether the appellant’s
intent to resign was ambiguous, not whether the voluntariness behind that
expressed intent was ambiguous. See Hammond, 50 M.S.P.R. at 181. Because
the appellant’s expressed intent to resign was not ambiguous, the agency should
have processed his resignation.
Accordingly, we find that the administrative judge erred in concluding that
the agency was not required to accept the appellant’s February 3 letter of
resignation and by subsequently addressing and affirming the merits of the
agency’s removal action.
ORDER
We ORDER the agency to rescind the removal action and to correct the
appellant’s Standard Form 50 and other official records to reflect that he
separated from the agency as the result of a resignation effective February 6,
2021. The agency must complete this action no later than 20 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).
7
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).
This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
§ 1201.113(c)).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time 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
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
Systems Protection 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 at
9
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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,
10
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review 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,
11
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.
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. | ZseDenny_GregorySF-0752-21-0346-I-1__Final_Order.pdf | 2024-05-17 | GREGORY P. ZSEDENNY v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. SF-0752-21-0346-I-1, May 17, 2024 | SF-0752-21-0346-I-1 | NP |
1,427 | https://www.mspb.gov/decisions/nonprecedential/Krause_MichaelSF-0752-17-0162-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL KRAUSE,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
SF-0752-17-0162-I-1
DATE: May 17, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael Krause , Anchorage, Alaska, pro se.
Benjamin Signer , 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
sustained his indefinite suspension. On petition for review, he argues that his pro
se status disadvantaged him in adjudicating his appeal, reargues that his indefinite
suspension was due to discrimination and in retaliation for whistleblowing,
challenges the administrative judge’s finding that he was not denied due process,
and reasserts that he did not timely receive the indefinite suspension notice.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.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).
2 The appellant has submitted copies of several documents as attachments with his reply
to the agency’s response to the petition for review. Petition for Review (PFR) File,
Tab 5 at 4-14. One of the provided emails was part of the record below and thus is not
“new.” Id. at 5-13; compare PFR File, Tab 5 at 7, with IAF, Tab 17 at 20; see Okello v.
Office of Personnel Management , 112 M.S.P.R. 563, ¶ 10 (2009) (noting 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);
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). Three of the remaining four
documents, a news article dated September 4, 2015, a letter from one of the appellant’s
former coworkers dated January 11, 2016, and an August 16, 2016 email discussing the
appellant’s meeting at the civilian personnel office, all predate the close of record in
this case and thus are not “new.” The appellant has not explained why he did not
submit these document below. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211,
214 (1980) (holding that 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). Regarding the final document, an
email from agency counsel confirming receipt of one of the appellant’s exhibits, it is
dated March 31, 2017, and thus postdates the close of record and the initial decision.
PFR File, Tab 5 at 14. However, the appellant has not explained how this information
is material, nor has he demonstrated that it warrants an outcome different from that of
the initial decision, and so we have not considered it. See Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980).2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Krause_MichaelSF-0752-17-0162-I-1__Final_Order.pdf | 2024-05-17 | MICHAEL KRAUSE v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. SF-0752-17-0162-I-1, May 17, 2024 | SF-0752-17-0162-I-1 | NP |
1,428 | https://www.mspb.gov/decisions/nonprecedential/Krause_MichaelSF-0752-17-0324-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL KRAUSE,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
SF-0752-17-0324-I-1
DATE: May 17, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael Krause , Anchorage, Alaska, pro se.
Stephen A. Braunlich , 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
sustained his removal from the agency for failing to maintain a condition of
employment due to the revocation of his eligibility for assignment to duties
designated as national security sensitive. On petition for review, the appellant
makes the following arguments: he reasserts that his removal was due to
discrimination and in retaliation for whistleblowing and that the agency
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
committed harmful error in connection with ordering him to undergo a medical
evaluation; challenges the administrative judge’s finding that he was not denied
due process; asserts that the agency provided him with incorrect guidance
regarding his right to file a whistleblower retaliation complaint; and reargues that
he did not timely receive the indefinite suspension notice. 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).
Regarding the appellant’s argument on review that that the agency provided
him with incorrect guidance regarding his right to file a whistleblower complaint
with the Office of Special Counsel (OSC) and that OSC “backed out” of his case,
the appellant did not raise this issue during the adjudication of his appeal before
the administrative judge. Petition for Review (PFR) File, Tab 1 at 4-5. The
Board generally will not consider an argument raised for the first time in a
petition for review absent a showing that it is based on new and material evidence
not previously available despite the party’s due diligence. Banks v. Department
of the Air Force , 4 M.S.P.R. 268, 271 (1980). There has been no showing of
these circumstances; thus, we need not consider the appellant’s argument.
Nevertheless, the agency did advise the appellant in the decision notice that, if he
intended to allege a prohibited personnel practice under 5 U.S.C. § 2302, he had
the right to contact OSC. Initial Appeal File, Tab 4 at 24. The appellant has
failed to demonstrate how the agency’s providing him with notice of his right to2
contact OSC prejudiced any of his substantive rights, further evidenced by the
fact that he timely filed a Board appeal challenging his removal. After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.2
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing 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 The appellant submitted a pleading to the Board on October 9, 2017, advising of a
change in his contact information and raising additional arguments in support of his
petition for review. PFR File, Tab 4 at 4-8. The record on review closed on July 3,
2017, after the period for the appellant to file a reply to the agency’s response to his
petition for review expired. 5 C.F.R. § 1201.114(k); PFR File, Tab 2 at 1-2, Tab 3 at 7.
The appellant did not obtain leave from the Clerk of the Board to file any additional
argument in support of his petition for review, and there has been no showing that the
submission was new and material evidence not readily available before the record
closed. For these reasons, although we have updated the appellant’s contact
information, we have not considered the arguments made in this filing on review.
5 C.F.R. § 1201.114(k).
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
Please read 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 you4
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Krause_MichaelSF-0752-17-0324-I-1__Final_Order.pdf | 2024-05-17 | MICHAEL KRAUSE v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. SF-0752-17-0324-I-1, May 17, 2024 | SF-0752-17-0324-I-1 | NP |
1,429 | https://www.mspb.gov/decisions/nonprecedential/Dankwa_KingsleyAT-4324-19-0152-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KINGSLEY DANKWA,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.DOCKET NUMBER
AT-4324-19-0152-I-1
DATE: May 17, 2024
THIS ORDER IS NONPRECEDENTIAL1
Kingsley Dankwa , Cordova, Tennessee, pro se.
Monica Moukalif , Atlanta, 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
denied his request for corrective action under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (codified as amended at
38 U.S.C. §§ 4301-4335) (USERRA). For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
REMAND the case to the regional office for further adjudication in accordance
with this Remand Order.
BACKGROUND
Effective November 25, 2019, the agency removed the appellant from his
GS-13 supervisory position during his supervisory probationary period.
Initial Appeal File (IAF), Tab 1 at 7-9. The agency returned the appellant to his
prior GS-12 position. Id. at 9. The appellant filed an appeal in which he alleged
that he was demoted as a result of his membership in the U.S. Army Reserve.
Id. at 3-5. The administrative judge docketed the instant USERRA appeal.2
IAF, Tab 3. The appellant requested a hearing, IAF, Tab 1 at 2, which the
administrative judge scheduled for June 10, 2019. IAF, Tab 10.
However, because the appellant failed to submit a prehearing submission or
appear for the scheduled telephonic prehearing conference, the administrative
judge canceled the hearing, and scheduled a close of record conference,
IAF, Tab 12 at 1-2, in which the appellant participated, IAF, Tab 14 at 1.
Based on the written record, the administrative judge denied the appellant’s
request for corrective action. IAF, Tab 19, Initial Decision (ID) at 8. He found
that the Board had jurisdiction over the appeal. ID at 2. He also found that the
appellant’s evidence that his supervisor was a poor manager was not probative of
her alleged discriminatory animus based on military status. ID at 5-7.
The administrative judge did not credit the appellant’s statements alleging that his
supervisor commented negatively on the appellant’s military obligation.
ID at 1-3, 7; IAF, Tab 1at 5, Tab 4 at 4. He concluded that the appellant failed to
prove by a preponderance of the evidence that his military service was a
substantial or motivating factor in the agency’s decision. ID at 7.
2 The administrative judge separately docketed the same initial appeal as a demotion
appeal. Dankwa v. Department of Labor , MSPB Docket No. AT-315I-19-0150-I-1,
Initial Decision (Mar. 26, 2019). He issued an initial decision dismissing the appeal for
lack of jurisdiction and neither party petitioned for review. Id. at 1, 3.2
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. In his petition, he argues that the administrative judge improperly
denied him a hearing. Id. at 3. He states that he was unable to be at the
scheduled prehearing conference due to the sickness of his daughter and that he
explained this to the administrative judge during the close of record conference.
Id. The agency has not responded to the petition for review.
ANALYSIS
The Board employs a liberal approach in determining 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. 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. Id. 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).
In a USERRA discrimination case under 38 U.S.C. § 4311(a), such as the
instant appeal, “[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.” 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. 3
We agree with the administrative judge’s finding that the appellant
established jurisdiction over his appeal. ID at 1-2. He provided evidence of
orders for active duty in 2017 and 2018, IAF, Tab 4 at 5-10, and that he informed
his supervisor that he anticipated future orders, IAF, Tab 1 at 5, Tab 4 at 4.
According to the appellant, the agency subsequently returned him to his prior
grade level, effectively demoting him one grade. IAF, Tab 13 at 13. Further, the
appellant alleged that his demotion was due to his obligation to perform duty in a
uniformed service. IAF, Tab 4 at 4. An allegation that an employer took or
failed to take certain actions based on an individual’s military status or
obligations in violation of USERRA constitutes a nonfrivolous allegation
entitling the appellant to Board consideration of his claim. Michaels v.
Department of Defense , 112 M.S.P.R. 676, ¶ 7 (2009). The appellant alleged that
his supervisor decided to demote him when she found out that he was in the U.S.
Army Reserve and he was required to drill at least 2 weeks or more a year and
once a month on the weekend. IAF, Tab 1 at 5. The appellant alleged that his
supervisor asked him how he was going to balance the competing demands of
managing his staff and fulfilling his military obligations. Id. USERRA requires
the Board to provide a hearing on the merits when an appellant requests one.
38 U.S.C. § 4324c)(1); Kirkendall v. Department of the Army , 479 F.3d 830, 844
(Fed. Cir. 2007). Thus, the appellant has a right to a hearing on the merits of his
claim. See Gossage, 118 M.S.P.R. 455, ¶ 10.
The appellant did not waive his right to a hearing. Absent the appellant’s
waiver of his right to a hearing, the administrative judge’s cancelation of the
hearing is in fact a sanction. Stein-Verbit v. Department of Commerce ,
72 M.S.P.R. 332, 337 (1996). Here, the administrative judge’s cancelation was
an apparent sanction for the appellant’s failure to participate in the prehearing
teleconference or submit prehearing submissions. IAF, Tab 10, Tab 12 at 1. The
appellant’s right to a hearing should not be denied as a sanction absent4
extraordinary circumstances. Wildberger v. Small Business Administration ,
63 M.S.P.R. 338, 346 (1994).
We find that the type of “extraordinary circumstances” that might warrant
the extreme sanction of cancelation of a hearing are lacking in this case.
Although the administrative judge states that the appellant failed to file
prehearing submissions and failed to appear for a prehearing conference, the
administrative judge directed both of these actions in one order.
IAF, Tab 10 at 2, 4. Further, in response to the order canceling the hearing, the
administrative judge scheduled a close of record conference in which the
appellant participated. The administrative judge stated that, during the
conference, the appellant explained that he did not participate in the prehearing
conference because he was caring for his sick child and he was not aware that
filing a prehearing submission was required. IAF, Tab 14 at 1 n.1.
The appellant’s explanation offers a reasonable basis for his failure to
participate in the prehearing conference. On review, he restates under penalty of
perjury that he was unable to attend the prehearing conference “due to the
sickness of [his] daughter.” PFR File, Tab 1 at 3-4. The agency has not rebutted
the appellant’s assertion. Therefore, we accept his assertion that he did not attend
the prehearing conference because his daughter was ill. See Melendez v.
Department of Veterans Affairs , 73 M.S.P.R. 1, 4 (1996) (explaining that
unrebutted sworn statements are competent evidence of the matters asserted
therein). The appellant’s failure to participate in a prehearing conference does
not warrant denial of a hearing. See Stein-Verbit , 72 M.S.P.R. at 338 (concluding
that an appellant’s failure to participate in two prehearing teleconferences, in one
case due to illness and in another due to lack of notice, did not warrant the
extreme sanction of denial of a hearing). As to the appellant’s failure to file
prehearing submissions, his single failure to comply with the administrative
judge’s orders is not sufficient to show lack of due diligence, negligence, or bad
faith in his compliance with the Board’s orders such as would justify canceling5
the appellant’s requested hearing. See Sims v. U.S. Postal Service , 88 M.S.P.R.
101, ¶¶ 7-8 (2001); Hart v. Department of Agriculture , 81 M.S.P.R. 329, ¶¶ 5-7
(1999) (finding that an inadvertent failure to comply with an administrative
judge’s order was not an extraordinary circumstance that warranted the extreme
sanction of denial of a hearing). Thus, here, the administrative judge improperly
canceled the hearing and the appellant is entitled to the hearing he sought in his
USERRA appeal.
To the extent that the appellant disagrees with the administrative judge’s
credibility findings, we decline to examine those findings here. PFR File, Tab 1
at 4. After holding a hearing, the administrative judge will issue a new initial
decision with new credibility determinations consistent with the requirements of
Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987).
In reaching this conclusion, we do not intend to imply that the appellant
handled his appeal flawlessly. 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 necessary to serve the ends of justice.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this remand order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Dankwa_KingsleyAT-4324-19-0152-I-1__Remand_Order.pdf | 2024-05-17 | KINGSLEY DANKWA v. DEPARTMENT OF LABOR, MSPB Docket No. AT-4324-19-0152-I-1, May 17, 2024 | AT-4324-19-0152-I-1 | NP |
1,430 | https://www.mspb.gov/decisions/nonprecedential/Bruner_RobertCH-3330-22-0217-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT BRUNER,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
CH-3330-22-0217-I-1
DATE: May 17, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert Bruner , East Bernstadt, Kentucky, pro se.
Kara Berlin , 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
denied his request for corrective action pursuant to the Veterans Employment
Opportunities Act of 1998 (VEOA). Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
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).
On petition for review, the appellant reasserts that the agency violated his
rights under VEOA by failing to apply veterans’ preference to his application,
and in determining him ineligible for the vacancy based on his veterans’
preference status. Petition for Review (PFR) File, Tab 1 at 4-5. He argues, as he
did below, that “the agency already had access to [his electronic Official
Personnel File], which contained documentation sufficient to show his
service-connected disability rating.” Id. at 6-7. However, as the appellant
acknowledged below, he did not submit the required documents to prove his
entitlement to veterans’ preference as a disabled veteran to the agency to support
his application for the position at issue. Initial Appeal File, Tab 1 at 5. Absent
such proof, the agency was not required to afford the appellant the claimed
preference. See Badana v. Department of the Air Force , 104 M.S.P.R. 182, ¶ 14
(2006) (denying the appellant’s request for corrective action under VEOA when
he claimed that the agency should have afforded him the rights of a disabled
veteran when he applied for a position, but he did not submit, with his job
application, evidence to establish his status as a disabled veteran). Therefore, the
appellant has not shown that the agency violated his rights under a statute or
regulation related to veterans’ preference.2
The appellant provides two documents for the Board’s consideration on
review.2 PFR File, Tab 1 at 9-11. The Board will not grant a petition for review
based on new evidence absent a showing that it is of sufficient weight to warrant
an outcome different from that of the initial decision. Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980); 5 C.F.R. § 1201.115(d). The
appellant’s document submitted for the first time on review is an email regarding
an unrelated position wherein it provides, in relevant part, that applicants must
provide documents verifying preference eligibility if selected. PFR File, Tab 1
at 10-11. He argues that this email establishes that the agency could have
referred him for final consideration without veterans’ verification documents and
requested such information upon his selection. PFR File, Tab 1 at 5-6. We
disagree. The appellant’s new evidence is unrelated to the application herein.
The agency provided explicit instructions in the vacancy announcement on what
applicants were required to submit to claim veterans’ preference based on a
service-connected disability, and the appellant failed to do so. IAF, Tab 21
at 27-28; PFR File, Tab 1 at 5. The appellant’s new evidence does not warrant a
different outcome. We therefore decline to consider it further.
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).
2 One of the documents the appellant included with his petition for review is in the
record below and thus provides no basis to disturb the initial decision. PFR File, Tab 1
at 9; IAF Tab 21 at 21; see Brough v. Department of Commerce , 119 M.S.P.R. 118, ¶ 4
(2013) (observing that the Board will grant a petition for review based on new and
material evidence under certain circumstances, but that evidence that is already a part of
the record is not new). We decline to discuss this document further.
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
Although we offer the following summary of available appeal rights, the Merit
Systems Protection 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.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 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 | Bruner_RobertCH-3330-22-0217-I-1__Final_Order.pdf | 2024-05-17 | ROBERT BRUNER v. DEPARTMENT OF JUSTICE, MSPB Docket No. CH-3330-22-0217-I-1, May 17, 2024 | CH-3330-22-0217-I-1 | NP |
1,431 | https://www.mspb.gov/decisions/nonprecedential/McFarlane_KenroyAT-0752-23-0007-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KENROY MCFARLANE,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
AT-0752-23-0007-I-1
DATE: May 17, 2024
THIS ORDER IS NONPRECEDENTIAL1
Kenroy McFarlane , Homestead, Florida, pro se.
Brandon Roby , Esquire, Fort Meade, Maryland, 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 his removal appeal as untimely filed. 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
¶2On August 22, 2022, the agency issued its decision to remove the appellant
from his position as an Information Technology Cybersecurity Specialist,
effective August 24, 2022. Initial Appeal File (IAF), Tab 5 at 37-44. At the time
of his removal, the appellant had at least one pending equal employment
opportunity (EEO) complaint with the agency. IAF, Tab 3 at 5. On or around
August 30, 2022, the appellant notified the agency’s EEO specialist that he
wished to include additional information for his pending EEO complaint, namely,
his removal from Federal service, which he claimed was retaliation for his EEO
activity. Id. at 5-6. The agency’s EEO specialist responded that the removal
“would not be considered adding ‘additional information’ to [his] pending EEO
complaint,” but “would be considered an amendment to include an additional
claim that must be investigated.” Id. at 5. However, on September 6, 2022, the
EEO specialist referred the appellant’s removal claim to an EEO counselor, who
contacted the appellant to initiate EEO counseling, which is the first step in the
informal EEO complaint process.2 Petition for Review (PFR) File, Tab 1 at 8,
11-13, 18-19, 32-35. By letter dated September 28, 2022, the EEO counselor
informed the appellant that his claims could not be resolved through EEO
counseling and that he had the right to file an individual discrimination
complaint. IAF, Tab 3 at 3-4.
¶3On October 7, 2022, the appellant filed a separate EEO complaint regarding
his removal. PFR File, Tab 1 at 15-17. Two days before the appellant filed his
EEO complaint, the appellant filed a Board appeal, alleging that he was removed
in retaliation for his EEO activity, and requested a hearing. IAF, Tab 1 at 2-3.
The administrative judge issued an order notifying the appellant that there was a
2 On petition for review, the appellant has provided additional documentation,
including emails with the EEO specialist and EEO counselor, as well as a copy of an
October 7, 2022 EEO complaint, confirming that his removal claim was processed as a
new EEO claim that resulted in a separate EEO complaint, rather than as an amendment
to his existing EEO complaint. PFR File, Tab 1 at 8, 11-13, 15-19, 32-35. 2
question regarding the timeliness of his appeal, informing the appellant of the
applicable law relevant to the timeliness issue, and providing the appellant with
an opportunity to submit evidence and argument establishing that his appeal was
either timely filed, or that good cause exists for the delay in filing. IAF, Tab 7.
The appellant did not respond, and without holding the requested hearing, the
administrative judge dismissed the appeal as untimely filed without good cause
shown. IAF, Tab 9, Initial Decision (ID).
¶4The appellant has filed a petition for review arguing that his appeal was
timely filed, or there was good cause for the filing delay, because he pursued his
removal claim through the EEO process prior to filing his appeal with the Board.
PFR File, Tab 1. The agency did not respond to the appellant’s petition for
review.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5Generally, an appeal of an agency action must be filed no later than 30 days
after the effective date of the action being appealed, or 30 days after the date of
the receipt of the agency’s decision, whichever is later. Miranne v. Department
of the Navy, 121 M.S.P.R. 235, ¶ 8 (2014); 5 C.F.R. § 1201.22(b)(1). The
procedures and filing deadlines for mixed cases, however, are somewhat
different. Miranne, 121 M.S.P.R. 235, ¶ 8. A mixed case arises when an
employee has been subject to an action that is appealable to the Board, and he
alleges that the action was effected, in whole or in part, because of
discrimination. Id. Pursuant to the procedures set forth at 5 U.S.C. § 7702, an
appellant has two options when filing a mixed case: he may initially file a
mixed-case complaint with the agency, followed by an appeal to the Board, or he
may file a mixed -case appeal with the Board and raise his discrimination claim in
connection with his appeal. Id. An employee may file either a mixed -case
complaint with the agency or a mixed -case appeal with the Board, but not both,
and whichever is filed first is deemed to be the employee’s election to proceed in3
that forum. Id. If an appellant files a timely mixed -case EEO complaint with the
agency prior to appealing to the Board, the right to appeal to the Board does not
vest until either the agency issues a final agency decision (FAD) on the complaint
or 120 days have elapsed from the date the complaint was filed with the agency.
Id., ¶ 9.
¶6The administrative judge determined that, while there was evidence that the
appellant pursued EEO counseling, the appellant had not elected to proceed in the
EEO forum because there was no evidence that he had filed an EEO complaint.
ID at 4 n.2. We disagree. The record shows that when the appellant contacted
the agency’s EEO specialist on August 30, 2022, his intent was to pursue his
removal claim through the EEO forum by amending his pending EEO complaint
to include the removal. IAF, Tab 3 at 5-6. Furthermore, the agency’s EEO
specialist confirmed that the appellant’s removal claim would be treated as an
amendment to his pending complaint. Id.; PFR File, Tab 1 at 9, 20.
Instead, however, the EEO specialist referred the removal claim to an EEO
counselor, who then processed the claim as if it were new, forcing the appellant
to ultimately file a separate EEO complaint regarding his removal. IAF, Tab 3
at 3-4; PFR File, Tab 1 at 8, 11-13.
¶7Pursuant to Equal Employment Opportunity Commission (EEOC)
regulations, a complainant may amend a complaint at any time prior to the
conclusion of the investigation to include issues or claims like or related to those
raised in the complaint without additional counseling. Cano v. U.S. Postal
Service, 107 M.S.P.R. 284, ¶ 15 (2007); 29 C.F.R. § 1614.106(d). Moreover, the
Board has held that it is the employee’s election of forum that governs the
processing of a complaint, and not the manner in which the agency processes the
complaint. Miranne, 121 M.S.P.R. 235, ¶ 14 (emphasis in original); see also
Lang v. Merit Systems Protection Board , 219 F.3d 1345, 1347-48 (Fed. Cir. 2000)
(“The mere erroneous prior treatment of [the appellant’s] complaint by the EEO
and subsequent erroneous treatment of [the appellant’s] appeal by the MSPB4
cannot turn [the appellant’s] clearly pled mixed case complaint into one subject to
the appellate timing rules of a non-mixed case complaint.”). Prior to filing his
Board appeal, the appellant elected to pursue his removal claim through the EEO
forum, as he expressed a clear intent to amend his existing EEO complaint to
include his removal. IAF, Tab 3 at 5-6. It was the agency that processed the
removal claim as a new claim, ultimately requiring him to file a separate EEO
complaint. Id. at 3-4; PFR File, Tab 1 at 8, 11-13. Therefore, even though the
appellant filed an EEO complaint after he filed his Board appeal, we find that he
nevertheless elected prior to the filing of his Board appeal to pursue his removal
claim through the EEO forum.
¶8Thus, we find that this is an appeal from a mixed -case complaint, and the
administrative judge should have applied the filing time limits set forth in
5 U.S.C. § 7702. Because there is no evidence that a FAD has been issued,3 per
5 U.S.C. § 7702(e)(2), the appellant may file a Board appeal after 120 days have
passed from the date he elected to proceed in the EEO forum, which here is the
date he requested to amend his pending EEO complaint. Accordingly, the
appellant should have waited until at least December 29, 2022, to file his appeal
with the Board. Consequently, although the appellant’s October 5, 2022 appeal is
timely filed, it is premature. Nevertheless, when an appellant prematurely files
an appeal with the Board after electing to initially file a complaint of
discrimination with the agency, the administrative judge should either dismiss the
appeal without prejudice, or, if it will ripen in a short time, may hold the appeal
rather than dismiss it. 5 C.F.R. § 1201.154(c). Furthermore, it is the Board’s
practice to adjudicate an appeal that was premature when filed, but ripens while
pending before the Board, as is the case here. Bent v. Department of State ,
123 M.S.P.R. 304, ¶ 6 (2016). Accordingly, because the appeal is now ripe, we
grant the appellant’s petition for review, vacate the initial decision, which
3 If a FAD has been issued, then the appellant has 30 days from the receipt of the FAD
to file a Board appeal. 5 C.F.R. § 1201.154(b)(1).5
dismissed the appeal as untimely filed, and remand the appeal for adjudication of
the merits of the agency’s removal action and any affirmative defenses.
ORDER
¶9For 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 | McFarlane_KenroyAT-0752-23-0007-I-1__Remand_Order.pdf | 2024-05-17 | KENROY MCFARLANE v. DEPARTMENT OF DEFENSE, MSPB Docket No. AT-0752-23-0007-I-1, May 17, 2024 | AT-0752-23-0007-I-1 | NP |
1,432 | https://www.mspb.gov/decisions/nonprecedential/Harrup_Joan_C_DC-0752-18-0667-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOAN C. HARRUP,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-0752-18-0667-I-1
DATE: May 17, 2024
THIS ORDER IS NONPRECEDENTIAL1
Chungsoo J. Lee , Jenkintown, Pennsylvania, for the appellant.
Daniel W. Moebs , Esquire, Richmond, Virginia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary retirement appeal for lack of jurisdiction and, in the
alternative, as untimely filed. For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision, and REMAND the
case to the Washington Regional Office for further adjudication in accordance
with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The appellant, who served as a GS-11 Contract Administrator for the
Defense Logistics Agency Aviation in Richmond Virginia, retired from her
position effective May 31, 2014, listing the agency’s denial of her request for
reasonable accommodation and her eligibility for retirement as her reasons for
doing so. Initial Appeal File (IAF), Tab 10 at 4, Tab 11 at 4, 27.
On September 16, 2015 she filed an informal equal employment opportunity
(EEO) complaint alleging that the agency had denied her a reasonable
accommodation. IAF, Tab 10 at 10, Tab 21 at 4. On December 17, 2015,
she filed a formal EEO complaint, and asserted therein that she was forced to
retire. IAF, Tab 16 at 67-71, Tab 21 at 4. She requested a hearing before an
Equal Employment Opportunity Commission (EEOC) administrative judge,
who dismissed the complaint as untimely filed on June 23, 2017, and remanded
the matter to the agency for issuance of a Final Agency Decision (FAD).
IAF, Tab 10 at 29-30, Tab 21 at 5.
The agency issued an August 3, 2017 FAD finding that the appellant failed
to make initial contact with an EEO counselor within 45 days of her alleged
involuntary retirement and dismissing the complaint as untimely filed.
IAF, Tab 10 at 32-33, Tab 21 at 5. The appellant sought review of the FAD
before the EEOC’s Office of Federal Operations (OFO). IAF, Tab 10 at 36-37.
After OFO denied her appeal, she requested that it reconsider its decision. Id. In
an April 18, 2018 decision, OFO denied her request. IAF, Tab 10 at 36-38, Tab
21 at 5. The appellant filed this appeal on July 16, 2018. IAF, Tab 1.
In addition to the acknowledgment order, the administrative judge issued
an order on jurisdiction and timeliness. IAF, Tabs 2-3. On the jurisdictional
issue, the appellant asserted that she was forced to retire when the agency
suddenly denied her an ongoing and long-time accommodation. IAF, Tab 9 at 4.
On the timeliness issue, the appellant argued that the agency failed to give her
notice of her Board appeal rights when she retired, or at any point during the2
processing of her EEO complaint. IAF, Tab 21 at 4-6. She claimed her former
attorney did not explain the procedural requirements for filing a mixed case and
that she was unaware of her right to do so until she hired her current
representative on June 20, 2018. Id. at 5-6. She asserted that she timely filed this
Board appeal after her new representative explained to her that she could do so.
Id. at 6.
Without holding the appellant’s requested hearing, the administrative judge
dismissed the appeal for lack of jurisdiction, finding that the appellant failed to
make a nonfrivolous allegation that the agency coerced her retirement.
IAF, Tab 1 at 2, Tab 24, Initial Decision (ID) at 15-21. In the alternative, the
administrative judge found that, even if the appellant established jurisdiction over
her alleged involuntary retirement, the appeal was untimely filed without good
cause shown for the delay. ID at 21-28. In her petition for review, the appellant
challenges both findings. Petition for Review (PFR) File, Tab 1. The agency has
responded to the appellant’s petition for review and the appellant has filed a reply
to the agency’s response. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
The appeal must be remanded for a jurisdictional hearing because the appellant
made a nonfrivolous allegation that her retirement was involuntary.
The administrative judge found that the appellant failed to make a
nonfrivolous allegation that the agency coerced her retirement. ID at 15-21.
However, the Board had repeatedly held that a jurisdictional hearing is warranted
when, as here, the appellant alleges that her decision to retire was coerced
because the agency denied a reasonable accommodation that would have
permitted her to perform her job duties. See, e.g., Hosozawa v. Department of
Veterans Affairs , 113 M.S.P.R. 110, ¶¶ 6-7 (2010) (remanding the appeal for a
jurisdictional hearing because the appellant alleged that her resignation was
involuntary for the reason that the agency denied her request for a reasonable
accommodation (telecommuting) that, according to her doctor, would have3
permitted her to continue to work full-time despite her medical condition);
Carey v. Department of Health and Human Services , 112 M.S.P.R. 106, ¶¶ 7-9
(2009) (same); Hernandez v. U.S. Postal Service , 74 M.S.P.R. 412, 418-19 (1997)
(finding that because the agency’s evidence that the appellant had exaggerated his
symptoms constituted mere factual contradiction of the appellant’s otherwise
adequate prima facie showing of jurisdiction, the administrative judge erred in
weighing the evidence and resolving the conflicting assertions of the parties and
dismissing the appellant’s alleged involuntary resignation appeal without holding
a hearing). Without any analysis, the administrative judge distinguished these
cases because the decisions did not contain a detailed discussion on the specific
facts and evidence introduced by the appellant. ID at 21 n.23.
Nevertheless, the exact same situation described in Hosozawa and Carey is
present in this matter. The agency in each instance denied an appellant’s request
for an accommodation that her doctor asserted would have permitted her to
continue to work. IAF, Tab 1 at 5-6, Tab 11 at 18, 24; Hosozawa, 113 M.S.P.R.
110, ¶ 7; Carey, 112 M.S.P.R. 106, ¶ 7. The lack of a detailed discussion of the
evidence in those decisions reflects that, once an appellant presents nonfrivolous
allegations of Board jurisdiction, i.e., allegations of fact that, if proven, would
establish the Board’s jurisdiction, she is entitled to a hearing at which she must
prove jurisdiction by a preponderance of the evidence. Carey, 112 M.S.P.R. 106,
¶ 6. Accordingly, the appellant is entitled to a jurisdictional hearing.
On remand, the administrative judge should take additional evidence on the issue
of timeliness.
Because we have determined that the appellant made a nonfrivolous
allegation that her retirement was involuntary, we must address the timeliness of
her appeal. In an appropriate case, an administrative judge may assume that an
appealable action occurred and that the appellant has standing to appeal and may
proceed to dismiss an appeal as untimely filed if the record on timeliness is
sufficiently developed. Brown v. U.S. Postal Service , 115 M.S.P.R. 609, ¶ 5,4
aff’d per curiam , 469 F. App’x 852 (Fed. Cir. 2011). Such an approach is not
appropriate, however, if the jurisdictional and timeliness issues are inextricably
intertwined, that is, if resolution of the timeliness issue depends on whether the
appellant was subjected to an appealable action. Id. The issues of timeliness and
jurisdiction are typically inextricably intertwined in an appeal based on an alleged
involuntary retirement because if the agency has subjected the employee to an
appealable action then the agency’s failure to inform an employee of her right to
appeal may excuse an untimely filed Board appeal. Id. Generally, an appellant
may establish good cause for an untimely filing of an involuntary resignation or
retirement appeal if, at the time of the employee’s resignation or retirement, the
agency knew or should have known of facts indicating that the action was
involuntary but did not inform the appellant of her appeal rights. Id. If an
agency failed to advise an employee of appeal rights when it should have done so,
the appellant is not required to show that she exercised due diligence in
attempting to discover her appeal rights; rather, the appellant must show that she
was diligent in filing an appeal after learning that she could do so.
Id.; Gingrich v. U.S. Postal Service , 67 M.S.P.R. 583, 588 (1995).
The appellant indicated in her retirement paperwork that she was retiring,
in pertinent part, because agency management denied her request for reasonable
accommodation. IAF, Tab 11 at 4, 27. She also indicated in her formal EEO
complaint that she was forced to retire when her supervisor denied her reasonable
accommodation. IAF, Tab 16 at 69. In the letter accepting her formal EEO
complaint for investigation, the agency acknowledged the issue as whether the
appellant had retired when the agency denied her reasonable accommodation
because she “believed [she] had no recourse.” IAF, Tab 10 at 21. She also
argued constructive discharge in a brief before the EEOC. IAF, Tab 14 at 157-61.
When, as here, an employee puts an agency on notice that she considers an action
to be involuntary, it triggers a duty on the part of the agency to provide the
employee with appeal rights. See Gingrich, 67 M.S.P.R. at 587 (1995). Thus, we5
find that the agency should have provided the appellant with notice of her Board
appeal rights when she retired. The record does not reflect that it did so.
Nevertheless, the administrative judge found that the appellant understood
that her involuntary retirement claim constituted a mixed case appealable to the
Board. ID at 24-28. He based his finding on the fact that, in 2013, the appellant
filed a furlough appeal with the Board; in September 2015, the agency advised
her of her mixed-case appeal rights in connection with her EEO complaint; and in
February 2017, her prior attorney, who was experienced in EEO law, recognized
the appellant’s EEO complaint was mixed and her alleged constructive suspension
was appealable to the Board. ID at 23-26. Because we are remanding this appeal
for further proceedings related to jurisdiction, we do not reach the timeliness
issue. See Brown, 115 M.S.P.R. 609, ¶¶ 5, 8. Nonetheless, we address the
administrative judge’s timeliness finding to provide further guidance for
processing the appeal on remand.
When, as here, an agency has an obligation to provide notice of appeal
rights, the obligation is not satisfied by a mere reference to Board appeal rights.
Drose v. U.S. Postal Service , 85 M.S.P.R. 98, ¶ 10 (2000). In addition, general
notice of Board appeal rights from a source other than the agency does not excuse
the agency’s failure to inform an employee of her appeal rights, when the notice
does not inform her of the time limit for filing an appeal and lacks other
information on where and how to file such an appeal. Id. The appellant filed her
furlough appeal in 2013, after the agency specifically advised her of
her right to do so. Harrup v. Department of Defense , MSPB Docket
No. DC-0752-13-5718-I-1, Initial Appeal File (5718 IAF), Tab 1 at 13-15.
During that appeal, the agency did not advise the appellant that she might have
the right to appeal an alleged involuntary retirement. See Gingrich, 67 M.S.P.R.
at 588 (finding that a widely -publicized Board decision regarding the right to
appeal certain reassignments as reduction-in-force demotions was insufficient to
put an appellant on notice that he might be able to appeal his retirement as6
involuntary). Instead, the agency’s 2013 furlough decision specifically advised
the appellant that she could appeal “this [furlough] action,” without explaining
why the action was appealable. 5718 IAF, Tab 1 at 13-14.
Similarly, we disagree with the administrative judge’s finding that the
agency’s September 2015 letter related to the appellant’s EEO complaint of her
alleged involuntary retirement put her on notice of her appeal rights. ID at 24;
IAF, Tab 16 at 67-71, 114-29. That letter explained to the appellant that “[i]f
[her] claim is related or stems from an action that can be appealed to the
[Board],” it is a mixed case to which mixed-case procedures apply. IAF, Tab 16
at 117, 125. It did not identify the appellant’s claim as raising a matter
appealable to the Board, or advise her that an alleged involuntary suspension was
an appealable action. Id. Thus, the letter was insufficient notice.
Finally, the administrative judge cited a February 2017 brief submitted by
the appellant’s then-attorney in her EEOC appeal as evidence that the appellant
knew of her Board appeal rights. ID at 24-25. In that brief, the attorney
acknowledged that the appellant could pursue an involuntary retirement claim
before the Board, but argued that it belonged before the EEOC because the
appellant raised it in an amendment to her EEO complaint, and not in the initial
complaint.2 IAF, Tab 14 at 157-61. The administrative judge imputed to the
appellant her attorney’s error in failing to file a Board appeal upon recognizing
that the appellant could do so. ID at 26-27.
As the administrative judge observed, an appellant is responsible for the
errors of her chosen representative in failing to meet a filing deadline.
ID at 26-27; Gaetos v. Department of Veterans Affairs , 121 M.S.P.R. 201, ¶ 6
(2014). Nonetheless, an appellant is not accountable for her attorney’s errors
when her diligent efforts to prosecute her appeal were, without her knowledge,
thwarted by her representative’s deceptions or negligence. Herring v. Merit
2 The attorney served a copy of this brief on agency counsel, but the certificate of
service does not reflect that he mailed a copy to appellant. IAF, Tab 14 at 164.7
Systems Protection Board , 778 F.3d 1011, 1015 -18 (Fed. Cir. 2015); Crawford v.
Department of State , 60 M.S.P.R. 441, 445-46 (1994). The appellant provided a
sworn declaration below that, on June 20, 2018, when she retained her current
representative, she learned for the first time she could appeal her involuntary
retirement to the Board as a mixed case.3 IAF, Tab 1 at 8. In a second sworn
declaration, she averred that her former attorney never explained to her that she
“had the right to file [a] forced retirement claim with [the Board].” IAF, Tab 23
at 4. Unrebutted sworn statements are competent evidence of the matters asserted
therein. See Aldridge v. Department of Agriculture , 110 M.S.P.R. 21, ¶ 9 (2008).
Although the appellant has provided evidence that her attorney was
negligent, on the record before us we cannot determine whether the appellant
made diligent efforts to pursue her appeal. The record does not reflect if the
appellant regularly contacted her attorney or the extent to which, if at all, her
long-term cognitive impairment affected her ability to maintain such contact or
understand its importance. IAF, Tab 11 at 6 -7, 9-10, 18, Tab 12 at 5. These facts
may be relevant to determining whether the appellant’s diligent efforts to
prosecute her appeal were, without her knowledge, thwarted by her
representative’s deceptions or negligence. Herring, 778 F.3d at 1014-15
(considering the appellant’s relevant medical conditions and her contact with her
attorney just days prior to the deadline as favorable factors in determining
whether she acted with due diligence in filing her appeal despite her attorney’s
error in untimely filing).
In addition, because the timeliness and jurisdictional issues are intertwined,
we cannot resolve the timeliness issue first. Therefore, we remand this appeal.
On remand, the administrative judge must first determine whether the Board has
jurisdiction over the appeal after holding the appellant’s requested hearing.
IAF, Tab 1 at 2; Brown, 115 M.S.P.R. 609, ¶ 5. Because, as discussed above,
3 The appellant filed her appeal on July 16, 2018, 26 days later. IAF, Tab 1;
see 5 C.F.R. § 1201.22(b)(1) (providing that an appellant generally must appeal within
30 days of learning of the agency’s decision).8
timeliness and jurisdiction are intertwined here, the administrative judge should
also hear issues related to the timeliness issue. After holding that hearing, he can
make his final determination as to both issues.
The administrative judge previously suspended discovery deadlines at the
appellant’s request. IAF, Tab 13. Prior to holding the hearing, he should inquire
whether the parties wish to engage in discovery and, if so, provide them an
opportunity to do so.
ORDER
For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Harrup_Joan_C_DC-0752-18-0667-I-1__Remand_Order.pdf | 2024-05-17 | JOAN C. HARRUP v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-0752-18-0667-I-1, May 17, 2024 | DC-0752-18-0667-I-1 | NP |
1,433 | https://www.mspb.gov/decisions/nonprecedential/Youngs_ToddDE-4324-19-0023-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TODD YOUNGS,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
DE-4324-19-0023-I-1
DATE: May 17, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Todd Youngs , Las Cruces, New Mexico, pro se.
Marcus Alonzo Mitchell , Albuquerque, New Mexico, 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 Uniformed Services Employment
and Reemployment Rights Act of 1994. On petition for review, the appellant
argues that the administrative judge erred in refusing to allow the appellant to
submit evidence that he had obtained through a Freedom of Information Act
(FOIA) request and contends the administrative judge failed to consider some
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
hearing testimony. 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).
Contrary to the appellant’s assertion, the administrative judge did not err in
excluding certain of the appellant’s submissions. Two days before the scheduled
telephonic hearing, the appellant submitted evidence that included information
obtained from New Mexico State University (NMSU) through a FOIA request.
Initial Appeal File (IAF), Tab 24. The appellant represented that he submitted the
evidence as soon as he received it. At the start of the hearing, the agency
opposed admission of the information because of its late submission. IAF,
Tab 26, Hearing Recording, Track 1. The administrative judge ruled that the
NMSU information would not be admitted, agreeing with the agency that its
submission 2 days before the hearing did not afford the agency sufficient time to
review it. Id.
In order to obtain reversal of an initial decision on the ground that the
administrative judge abused his discretion in excluding evidence, the petitioning
party must show on review that relevant evidence that could have affected the
outcome was disallowed. Jezouit v. Office of Personnel Management ,2
97 M.S.P.R. 48, ¶ 12 (2004), aff’d, 121 F. App’x 865 (Fed. Cir. 2005). The
appellant has failed to explain the relevance of the information that he received
pursuant to a FOIA request and how it would have affected the outcome of his
appeal. Thus, he failed to show that the administrative judge disallowed any
relevant evidence. Accordingly, the appellant has not shown that the
administrative judge abused his discretion.
To the extent that the appellant is asserting that the administrative judge
did not admit the proffered evidence because it was obtained using FOIA, his
assertion misrepresents the administrative judge’s ruling. The administrative
judge did not admit the information from NMSU because the agency did not have
sufficient time to review it.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain4
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 5
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Youngs_ToddDE-4324-19-0023-I-1__Final_Order.pdf | 2024-05-17 | TODD YOUNGS v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DE-4324-19-0023-I-1, May 17, 2024 | DE-4324-19-0023-I-1 | NP |
1,434 | https://www.mspb.gov/decisions/nonprecedential/Latimer_Elizabeth_A_DC-0351-18-0449-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ELIZABETH A. LATIMER,
Appellant,
v.
CORPORATION FOR NATIONAL
AND COMMUNITY SERVICE,
Agency.DOCKET NUMBER
DC-0351-18-0449-I-1
DATE: May 17, 2024
THIS 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
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
sustained the appellant’s separation through reduction in force (RIF) procedures.
For the reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND this appeal to the Washington
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 agency separated the appellant from her AmeriCorps Volunteers in
Service to America Publication Specialist position through RIF procedures.
Initial Appeal File (IAF), Tab 9 at 23-26. The separation notice informed the
appellant that she could challenge her separation by filing a grievance in
accordance with the applicable collective bargaining agreement between the
agency and the union representing the appellant and that the grievance procedure
was the exclusive remedy for challenging the RIF action. Id. at 24. However, the
notice also informed the appellant that, in lieu of filing a grievance, she could
initiate a discrimination complaint under the equal employment opportunity
(EEO) procedures if she believed that the separation was taken against her
because of her race, color, sex, national origin, disability, religion, age, or prior
EEO activity. Id. The appellant filed an EEO complaint. IAF, Tab 1 at 11-12.
The agency issued a final agency decision (FAD) finding no discrimination, and
informing the appellant that she could file an appeal with the Board. Id. at 11-16.
The appellant timely appealed the separation to the Board, alleging that the
agency denied her substantive RIF rights, committed harmful procedural error,
and engaged in disparate treatment and disparate impact discrimination on the
bases of race, gender, and age.2 Id. at 3. Initially, she requested a hearing. Id.
at 2. However, during the proceedings before the administrative judge, through
counsel, the appellant withdrew her hearing request. IAF, Tab 25 at 2.
The administrative judge issued an initial decision sustaining the separation
by RIF and finding that the appellant was not denied priority reemployment or
priority consideration for another position following her separation. IAF, Tab 61,
Initial Decision (ID) at 5-13. The administrative judge also found that the
appellant failed to prove her affirmative defenses. ID at 3-17.
2 The appellant retired on the effective date of her separation. IAF, Tab 23 at 4. The
appellant’s retirement does not divest the Board of jurisdiction over the merits of the
appeal. 5 U.S.C. § 7701(j); Farooq v. Corporation for National and Community
Service, 109 M.S.P.R. 73, ¶ 8 (2008). 2
In her petition for review, the appellant contends that the administrative
judge erred in his substantive findings regarding the propriety of the agency’s
RIF action. Petition for Review (PFR) File, Tab 1 at 5-7. The appellant also
argues that the administrative judge compelled her to withdraw her request for a
hearing and that he erred in his procedural and evidentiary rulings. Id. at 9-27.
The agency has filed a response in opposition to the petition for review, and the
appellant has filed a reply to the response. PFR File, Tabs 3, 14.
ANALYSIS
The Board has jurisdiction over this appeal under 5 U.S.C. § 7121(d).
It is clear that the appellant was covered by the terms of the collective
bargaining agreement and that the agreement explicitly makes the negotiated
grievance procedure the appellant’s exclusive route to challenge the RIF. IAF,
Tab 8 at 12, 16. However, 5 U.S.C. § 7121(d) provides, in relevant part, that an
aggrieved employee affected by unlawful discrimination addressed in 5 U.S.C.
§ 2302(b)(1) may raise the matter under a negotiated grievance procedure or
under a statutory procedure, but not both. In addressing that provision, the Board
has held that when an appellant is covered by a collective bargaining agreement
that does not specifically exclude RIF actions, the negotiated grievance procedure
is the exclusive procedure for resolving the challenge to the RIF action, except
when the appellant claims discrimination. Cooper v. Department of Defense ,
98 M.S.P.R. 313, ¶ 7 (2005); see 5 U.S.C. § 7121(d). As noted, here the
appellant alleged unlawful discrimination and thus the negotiated grievance
procedure was not the exclusive procedure for resolving a challenge to the RIF
action.
Because the appellant filed an EEO complaint of a matter that constitutes
an otherwise appealable action and alleged discrimination, her appeal was
properly processed as a mixed-case appeal. 5 C.F.R. §§ 1201.151-.157; 29 C.F.R.
§ 1614.302. When an employee files a timely mixed-case complaint with her3
employing agency, the agency must provide the employee with notice of her right
to file an appeal with the Board when it issues the FAD. 29 C.F.R. § 1614.302(d)
(3). The agency issued a FAD on March 28, 2018, informing the appellant of her
right to file a Board appeal. IAF, Tab 1 at 16. The appellant’s timely appeal
from the FAD is thus properly before the Board under 5 U.S.C. § 7121(d). See
Cooper, 98 M.S.P.R. 313, ¶ 11.
The appellant is entitled to a hearing on her discrimination claims and the merits
of the RIF action.
As noted previously, the appellant contends on review that she was
improperly deprived of the hearing that she requested. PFR File, Tab 1 at 9-11.
For the reasons set forth below, we agree. We first address her entitlement to a
hearing on her discrimination affirmative defenses and then her entitlement to a
hearing on the merits of her appeal.
We start by observing, as the administrative judge did in his October 30,
2018 Close of Record Order, that the appellant failed to submit prehearing
submissions. IAF, Tab 25 at 1. The administrative judge then stated “[i]n lieu of
proceeding to hearing solely on the merits of the agency’s action, appellant’s
counsel withdrew the hearing request and elected for an adjudication on the
written record of both the agency’s action and the previously-asserted affirmative
defenses.” Id. at 2. The administrative judge then stated that the hearing was
canceled. Id.
While not specifically stated in the administrative judge’s order, implicit in
the ruling is that, because the appellant failed to file a prehearing submission
identifying witnesses and exhibits that would support her discrimination claims,
those claims would not be addressed at the hearing. IAF, Tab 25. The
administrative judge thus precluded the appellant from a hearing on her
discrimination allegations. At issue, therefore, is whether the administrative
judge’s ruling depriving the appellant of a hearing on her discrimination claims
was an abuse of discretion.4
The issue of when an administrative judge must hold a hearing on a
discrimination claim raised in connection with an otherwise appealable action has
a complex history before the Board that is set forth in Sabio v. Department of
Veterans Affairs , 124 M.S.P.R. 161, ¶¶ 24-29 (2017). As explained in Sabio, an
administrative judge is required to hold a hearing on a discrimination claim raised
in connection with an otherwise appealable action when the appellant’s factual
allegations in support of a discrimination claim, taken as true, could support an
inference that the agency’s action was discriminatory. Sabio, 124 M.S.P.R. 161,
¶ 28; see Fed. R. Civ. P. 12(b)(6).3
Here, the appellant made the following factual allegations of race, sex, and
age discrimination in her EEO complaint that formed the basis of her mixed-case
appeal to the Board. IAF, Tab 1, Tab 9 at 12. She alleged that she was a
62 year-old, African-American female who had worked for the agency as
Publication Specialist for nearly 11 years and that in 2007, an agency manager
began reassigning some of her marketing and outreach duties to two newly hired,
younger, less-experienced Caucasian employees. IAF, Tab 9 at 12. She alleged
that the reassignment of duties led to her being subjected to the RIF and forced to
accept early retirement. Id. She also alleged that she was subjected to
age-related comments when a younger Caucasian colleague wrote on her birthday
card “You’re getting old,” and, during a meeting to discuss her performance, her
supervisor hinted that at her age she should consider retirement. IAF, Tab 9
at 14.
Taking the appellant’s allegations as true supports an inference that the
agency’s separation of her by RIF was discriminatory. Thus, the allegations of
discrimination presented in her appeal, even in the absence of other evidence,
3 The Federal Rules of Civil Procedure are not controlling but may be used as a general
guide in proceedings before the Board. Social Security Administration v. Long ,
113 M.S.P.R. 190, ¶ 10 (2010), aff’d, 635 F.3d 526 (Fed. Cir. 2011), and overruled on
other grounds by Department of Health and Human Services v. Jarboe , 2023 MSPB 22.
The Board in Sabio addressed the application of the Federal Rules regarding summary
judgment and failure to state a claim in some depth. Sabio, 124 M.S.P.R. 161, ¶ 27. 5
including prehearing submissions, are sufficient to conclude that the allegations
cannot be dismissed. Accordingly, the appellant is entitled to a hearing on her
discrimination claims.4
As noted above, the appellant is also entitled to a hearing on the merits of
the agency’s RIF action. Under 5 U.S.C. § 7701(a), an appellant before the Board
in an appeal of an adverse action has a right to a hearing. Although such right is
subject to waiver, the policy considerations in favor of a hearing are so strong
that an appellant may only waive the right by clear, unequivocal, or decisive
action. Gallegos v. Federal Deposit Insurance Corporation , 90 M.S.P.R. 159, ¶ 8
(2001); Conant v. Office of Personnel Management , 79 M.S.P.R. 148, 150 (1998).
Further, the decision to withdraw a hearing request must be informed, i.e., the
appellant must be fully apprised of the relevant adjudicatory requirements and
options. Pariseau v. Department of the Air Force , 113 M.S.P.R. 370, ¶ 9 (2010).
The record here does not support a finding that the appellant waived her
right to a hearing on the merits of the RIF action by knowingly taking a clear,
unequivocal, or decisive action. The administrative judge characterized the
discussion during the prehearing conference as a withdrawal. IAF, Tab 25 at 2.
There is, however, no written withdrawal in the record, and the administrative
judge’s comments are so abbreviated that it is impossible to ascertain whether he
fully apprised the appellant of the relevant adjudicatory requirements and options
in her case. IAF, Tab 25.
We do not intend to imply that the appellant handled her appeal flawlessly.
She failed to meet the deadline to file prehearing submissions.5 However,
considering all the circumstances here, we are compelled to resolve any doubts in
the appellant’s favor and to provide her with an opportunity for a hearing on the
4 The nature and extent of any hearing depends, among other things, on the approved
witnesses and the documentary evidence in the record.
5 The appellant is reminded that she must comply with the instructions and deadlines set
by the administrative judge and that she fails to do so at her peril. 6
merits of the agency’s RIF action. See Sabio, 124 M.S.P.R. 161, ¶ 28; Pariseau,
113 M.S.P.R. 370, ¶ 9.
Accordingly, on remand the administrative judge shall afford the appellant
the opportunity for a hearing on the merits of her appeal and on her affirmative
defenses. As noted, the appellant failed to provide a prehearing submission
identifying requested witnesses by the deadline set by the administrative judge.
IAF, Tab 25. On remand, the administrative judge must determine whether the
appellant’s single failure to timely file prehearing submissions warrants barring
the appellant from presenting witnesses or documentary evidence at the hearing.
In making this finding, the administrative judge should be guided by Board
decisions such as Ellshoff v. Department of the Interior , 78 M.S.P.R. 615, ¶ 5
(1998).
The administrative judge erred by not allowing the appellant’s submission of the
deposition transcripts.
In the October 30, 2018 Close of Record Order discussed above, the
administrative judge informed the parties that close of record responses were due
no later than November 16, 2018, and that the record would close on that date.
IAF, Tab 25 at 3. The agency complied with that deadline, submitting numerous
documents into the record. IAF, Tabs 35-36, 46-49, 51-52. On November 16,
2018, the appellant filed a motion for an extension of time to file her closing
submission, contending that she had been unable to obtain transcripts of the
depositions of current or former agency employees she conducted. IAF, Tab 44
at 6.
The appellant explained that she deposed the witnesses between
October 16, 2018, and November 1, 2018, and that she submitted audio-
recordings of the depositions to a transcription company located in California.6
6 In an October 15, 2018 order, the administrative judge overruled the agency’s
objection and approved the audio-recording of the appellant’s depositions. IAF, Tab 15
at 1. The administrative judge further ruled that if the appellant wanted to use the
deposition testimony to impeach or rehabilitate a witness, she had to have the transcript7
Id. at 5-6. According to the appellant, the transcription company indicated that
“wildfires created an unforeseeable hardship” that contributed to the company’s
failure to timely deliver the transcripts. Id. at 6. The appellant provided a copy
of an email purportedly from the transcription company apologizing for the delay
in delivering the transcripts and stating that the delay was “because of the
wildfires.” Id. at 12. The agency objected to the motion for an extension of time.
IAF, Tab 45. Thereafter, on November 27, 2018, the appellant moved to file a
surrebuttal with the transcripts of the depositions, and the agency moved to strike
the submission. IAF, Tabs 53, 54. In a December 6, 2018 order, the
administrative judge ordered the over 1,000 pages of deposition transcripts
submitted by the appellant struck from the record, finding that he had previously
made clear that the record would close on November 16, 2018, and that the
transcripts were not new or previously unavailable information within the
meaning of the Board’s regulations. IAF , Tab 55.
On review, the appellant argues that the administrative judge erred in
striking the transcripts from the record and that the delay in submission of the
transcripts was beyond her control. PFR File, Tab 1 at 16. The Board’s
regulations provide that once the record closes in an appeal, additional evidence
or argument will ordinarily not be accepted unless it was not readily available
before the record closed. 5 C.F.R. § 1201.59(c). In finding that the late-filed
transcripts were not new or previously unavailable, the administrative judge
criticized the appellant’s attorney’s handling of the appeal, noting the unorthodox
step of audio-recording the depositions and then having them transcribed and also
noting that it was unclear whether the attorney acted prudently in arranging for
the transcription. IAF, Tab 55 at 3.
We agree that the appellant’s attorney’s conducting of the depositions was
not ideal, but because the audio-recording of depositions is allowed by the
Federal Rules of Civil Procedure, Fed. R. Civ. P. 30(b)(3)(A), and the
of the deposition available. Id. at 1-2.8
administrative judge approved the plan to have the depositions audio-recorded
and then transcribed, IAF, Tab 15, we cannot hold the use of that process against
the appellant. Rather, we must consider all of the circumstances to determine
whether the appellant acted diligently in her efforts to submit the depositions to
the Board in a timely fashion.
The record shows that the appellant’s attorney’s office was in contact with
the transcription company on November 1, 2018, IAF, Tab 40 at 24, and paid for
the use of the company’s services on November 2, 2018, id. at 28. While the
transcription company apparently promised a rapid turnaround, the company
informed the appellant’s attorney on November 16, 2018, that there would be a
delay in delivering the transcripts and that the delay was caused by wildfires in
California. IAF, Tab 44 at 12. That same day, the appellant filed a motion for an
extension of time to file her close of record submission. Id. at 4-8. The Board
has held that an unexpected disaster constitutes good cause for a delay in filing a
submission. See Pignataro v. Department of Veterans Affairs, 104 M.S.P.R. 563,
¶ 12 (2007) (finding that a hurricane and the appellant’s hospitalization excused
her failure to timely file a prehearing submission); Del Marcelle v. Department of
the Treasury, 59 M.S.P.R. 251, 253 n.1 (1993) (excusing an untimely filed
response to a petition for review caused by a flood which resulted in the loss of
power to the agency facility). As in the cited cases, the appellant’s delay in
submitting the transcripts was caused by unforeseeable events completely out of
the appellant’s control. Thus, we find that the administrative judge should have
granted the appellant’s request for an extension of time to submit the deposition
transcripts. Because the transcripts should have been admitted into evidence
below, on remand, the administrative judge should afford the appellant a
reasonable opportunity to submit the transcripts into the record. 9
We need not decide whether the administrative judge abused his discretion by
setting a discovery schedule.
On review, the appellant complains that the administrative judge abused his
discretion by delaying her attempt to depose witnesses until over 2 months after
she filed her appeal. PFR File, Tab 1 at 8. An administrative judge has broad
discretion to control the proceedings before him, including the discretion to rule
on discovery-related matters. Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365,
¶ 16 (2016); Key v. General Services Administration , 60 M.S.P.R. 66, 68 (1993).
Absent an abuse of discretion, the Board will not find reversible error in such
rulings. Kingsley, 123 M.S.P.R. 365, ¶ 16; Rodgers v. Department of the Navy ,
122 M.S.P.R. 559, ¶ 21 (2015). We need not decide, however, whether the
administrative judge abused his discretion in delaying depositions because, as
noted above, the depositions were held and, on remand, the administrative judge
shall afford the appellant the opportunity to submit the deposition transcripts into
the record.
The appellant’s failure to preserve her objection to the administrative judge’s
failure to address the subpoena request precludes her from raising the matter on
review.
The appellant claims on review that the administrative judge failed to rule
on her request for a subpoena for former agency Chief Executive W.S. PFR File,
Tab 1 at 9. The record shows that the appellant filed a request for the subpoena
on September10, 2018, and the administrative judge never ruled on the request.
IAF, Tab 14. The record also shows, however, that the appellant did not raise the
outstanding subpoena request during an October 15, 2018 conference call
convened specifically to address outstanding discovery disputes or during the
October 30, 2018 close of record conference. IAF, Tabs 15, 25. In fact, there is
no indication that the appellant raised the outstanding subpoena issue at any point
during the proceedings below.
The Board has held that a party is obliged to preserve for the Board’s
review her objection to the administrative judge discovery rulings. Vores v.10
Department of the Army , 109 M.S.P.R. 191, ¶ 14 (2008), aff’d, 324 F. App’x. 883
(Fed. Cir. 2009); see Tarpley v. U.S. Postal Service , 37 M.S.P.R. 579, 581 (1988)
(finding that a party’s failure to timely object to rulings on witnesses precludes
his doing so on petition for review). Thus, while the administrative judge should
have ruled on the motion, having not raised the matter again during the following
over 2 months during which the parties were actively litigating the appeal,
including several discovery disputes, the appellant cannot be said to have
preserved her objection to the administrative judge’s failure to rule on the motion.
Thus, on remand, the administrative judge need not address the appellant’s
requested subpoena.7
The administrative judge did not err by referring to the documents from another
Board appeal in his initial decision.
In her petition for review, the appellant argues that the administrative judge
erred by relying on the agency’s submission of material from an appeal filed by
another employee separated as a result of the same RIF action that resulted in the
appellant’s separation but not allowing her to cite to material filed in the other
employee’s appeal. PFR File, Tab 1 at 23. The other appeal is Little v.
Corporation for National and Community Service , MSPB Docket No. DC-0351-
17-0747-I-1. In the initial decision, the administrative judge explained that the
two cases were not consolidated and he “ never instructed the parties to rely freely
on pleadings submitted in the [ Little] RIF appeal that were not separately filed in
the course of this appeal.” ID at 13-14 (emphasis in original). The material from
the Little appeal, including witness depositions and affidavits, relied on by the
administrative judge were all submitted into the record in the instant appeal. IAF,
7 Largely related to the party’s discovery disputes and the production of the deposition
transcripts, the appellant accuses the agency of acting in bad faith during the
proceedings. PFR File, Tab 1 at 14-16. We find no evidence that the agency was acting
in bad faith. The representatives are reminded that, while attorneys are to zealously
represent their clients, they are also to work with one another and the administrative
judge in a cooperative fashion.
11
Tabs 17, 35, 46-49. In contrast, the appellant did not submit the evidence she
attempted to rely on into the record in this appeal, but instead cited to the record
in the Little appeal. Thus, contrary to the appellant’s argument, the
administrative judge did not consider record evidence from another Board appeal,
but considered evidence submitted by a party in the case at bar. 8
8 The day after filing its response to the petition for review in this appeal, the agency
made a submission to the Clerk of the Board seeking to file an additional pleading.
PFR File, Tab 4. The Clerk of the Board rejected the submission and afforded the
agency the opportunity to file a motion requesting leave to file an additional pleading.
PFR File, Tab 4. The agency then filed a motion for leave to file an exhibit that had
inadvertently been omitted from the agency response to the petition for review. PFR
File, Tab 5. The Clerk granted the motion and the agency submitted the exhibit. PFR
File, Tabs 7, 8. The appellant then filed a motion to strike pages 10-21 of the exhibit,
because it references the Little appeal. PFR File, Tab 9. For the reasons discussed in
the text, we deny the appellant’s motion. Subsequently, the appellant made an
additional submission that the Clerk rejected, informing the appellant that she could file
a motion requesting leave to file the additional pleadings and that the Board would
inform her later of its decision to grant or deny her request. PFR File, Tab 10. The
appellant filed such a motion and identified the submission she wanted to make as
portions of a deposition transcript. PFR File, Tab 12. The agency opposed the
appellant’s motion. PFR File, Tab 15. In light of our decision finding that the
administrative judge improperly excluded the deposition transcripts, remanding the
appeal for additional proceedings, and instructing the administrative judge to issue a
new initial decision, we need not address the appellant’s motion. The appellant will be
afforded the opportunity to file additional submissions consistent with the
administrative judge’s order and the Board’s regulations. 12
ORDER
For the reasons discussed above, we remand this appeal to the Washington
Regional Office for a hearing and issuance of a new initial decision adjudicating
both the appellant’s allegations that, in effecting her separation by RIF, the
agency committed the prohibited personnel practice of discrimination based on
race, color, and age, and the merits of the RIF action.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Latimer_Elizabeth_A_DC-0351-18-0449-I-1__Remand_Order.pdf | 2024-05-17 | ELIZABETH A. LATIMER v. CORPORATION FOR NATIONAL AND COMMUNITY SERVICE, MSPB Docket No. DC-0351-18-0449-I-1, May 17, 2024 | DC-0351-18-0449-I-1 | NP |
1,435 | https://www.mspb.gov/decisions/nonprecedential/Avila_Catherine_A_SF-0752-17-0488-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CATHERINE A. AVILA,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
SF-0752-17-0488-I-1
DATE: May 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Brook L. Beesley , Alameda, California, for the appellant.
Marcus Alonzo Mitchell, Albuquerque, New Mexico, 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. On petition for review, she argues that the administrative
judge abused his discretion in denying her motions to compel discovery and
postpone the hearing, contends that he erred in finding that the agency proved
that she engaged in conduct unbecoming a Federal employee, and reasserts two
affirmative defenses not addressed in the initial decision. 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).
(PFR) File, Tab 3 at 1-7. 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. Except as expressly MODIFIED to
correct a factual error in the administrative judge’s consideration of the
appellant’s sex discrimination affirmative defense and address the appellant’s
claim that the agency violated the Consolidated Appropriations Act of 2016
(CAA)2 in removing her, we AFFIRM the initial decision.
The appellant argues that she was denied the opportunity to submit
evidence and testimony contesting two prior disciplinary actions, which are not
the subject of this appeal, but would allow her to establish her sex discrimination
affirmative defense. PFR File, Tab 3 at 2, 6-7. An administrative judge has wide
discretion to control the proceedings, including the authority to exclude evidence
and witnesses that he believes would be irrelevant, immaterial, or unduly
repetitious. Parker v. Department of Veterans Affairs , 122 M.S.P.R. 353, ¶ 21
(2015); 5 C.F.R. § 1201.41(b)(8), (10). Here, the Board may conduct only a
limited review of the appellant’s prior discipline because those actions were in
writing, the appellant had an opportunity to challenge them, and they are a matter
2 The appellant cites to several versions of the CAA. PFR File, Tab 3 at 6. The CAA
cited here is relevant to Government expenditures during the time periods relevant to
this appeal. Pub. L. No. 114-113, § 542, 129 Stat. 2242, 2242, 2332-33 (2015).2
of record. Initial Appeal File (IAF), Tab 31, Initial Decision (ID) at 16-17; see
Bolling v. Department of the Air Force , 9 M.S.P.R. 335, 338-40 (1981) (setting
forth the three-part criteria for conducting a limited review of a prior disciplinary
action that the agency relied upon in taking the disciplinary action at issue). This
review is limited to the record on the prior discipline, and no new evidence or
argument, other than the appellant’s reasons for the challenge, is admissible.
Bolling, 9 M.S.P.R. at 340. Given the limited nature of the Board’s review of her
prior disciplinary actions, the administrative judge appropriately denied the
appellant’s request to present a witness and letter, which she believes would
support her assertion that the prior discipline was unwarranted and
discriminatory. PFR File, Tab 3 at 2, 6-7; ID at 16-17. Accordingly, the
appellant has not shown that the administrative judge abused his discretion in
denying that evidence.
The administrative judge denied the appellant’s equal employment
opportunity affirmative defenses, including her claim of sex discrimination. ID
at 14-21. Neither party has raised any additional challenges to those findings on
review. Nonetheless, we take this opportunity to correct the administrative
judge’s factual findings concerning the appellant’s sex discrimination affirmative
defense, still affirming his determination that the agency did not engage in such
discrimination.
To prove her discrimination or retaliation claims under Title VII and the
Age Discrimination in Employment Act, an appellant must show that the
prohibited consideration was a motivating factor in how the agency made its
decision. Pridgen v. Office of Management and Budget , 2022 MSPB 31,
¶¶ 20-22, 30 (addressing this standard in the context of claims of age and sex
discrimination and of retaliation for opposing Title VII discrimination); see
Gomez-Perez v. Potter , 553 U.S. 474, 491 (2008) (finding that 29 U.S.C. § 633a
prohibits not just age-based discrimination, but retaliation for complaints of
age-based discrimination as well). One way an appellant may establish a3
discrimination or retaliation claim is through comparator evidence, or evidence
relating to the treatment of similarly situated employees. Pridgen, 2022 MSPB
31, ¶ 27. To be similarly situated, comparators must have reported to the same
supervisor, been subjected to the same standards governing discipline, and
engaged in conduct similar to the appellant’s without differentiating or mitigating
circumstances. Id.
In finding that the appellant did not prove her sex discrimination
affirmative defense, the administrative judge determined that, unlike the
appellant, none of the three males she alleged were similarly situated were
charged with offenses related to the cultivation and distribution of marijuana. ID
at 16-17. This finding is incorrect, in part. The deciding official, who was
involved in all four of the disciplinary actions, testified that two of the three male
employees were charged with conduct unbecoming related to cultivating
marijuana at their homes. Hearing Transcript (HT) at 126-28, 133-34, 157
(testimony of the deciding official); IAF, Tab 4 at 27-28. Even so, the
circumstances of the appellant’s situation were materially different. The record
reflects that none of the identified male employees were charged with selling or
being associated with the sale of marijuana from their homes or had any prior
discipline, whereas the appellant was charged with having marijuana cultivated
at, processed at, and distributed from her home and had two prior instances of
discipline. IAF, Tab 4 at 21, 26-27, 51; HT at 126-28, 133-34, 157 (testimony of
the deciding official). The administrative judge credited the deciding official’s
testimony that she decided not to offer the appellant a last chance settlement
agreement in lieu of removal, as she had offered the identified male employees,
because of the appellant’s prior discipline. ID at 17. After reviewing the record,
we agree with the administrative judge that the appellant did not prove that her
sex was a motivating factor in the agency’s decision to remove her. ID at 16-17.
We therefore find that the administrative judge’s factual error was harmless.
Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (finding that4
an adjudicatory error that is not prejudicial to a party’s substantive rights
provides no basis for reversal of an initial decision).
As argued below, the appellant reasserts her claim that the agency violated
section 542 of the CAA by expending resources that interfered with her husband’s
possession and use of medicinal -marijuana, which was legal under California
state law.3 PFR File, Tab 3 at 3-5; IAF, Tab 18 at 3, 5-6. Essentially, the
appellant alleged that the agency’s action was not in accordance with the law,
thus requiring reversal. See 5 U.S.C. § 7701(c)(2)(C). The appellant bears the
burden of proving her affirmative defenses by preponderant evidence. 5 C.F.R.
§ 1201.56(b)(2)(i)(C). Under section 542, the Department of Justice was
prohibited from using funds during the Fiscal Year ending September 30, 2016,
and appropriated under the CAA that interfered with California’s, and other
identified states’, implementation of medicinal marijuana laws. There is no
indication from the plain language of the identified statutory provision that the
agency, which is separate from the Department of Justice, was prohibited from
conducting an independent investigation into the marijuana growing operations
occurring on the appellant’s property. See Miller v. Department of
Transportation, 86 M.S.P.R. 293, ¶ 7 (2000) (explaining that “[t]he starting point
3 Although the appellant did not object to the administrative judge’s failure to identify
the appellant’s CAA violation claim as an issue on appeal, we find that she did not
waive or abandon it because she raised substantive arguments as to this claim in her
prehearing submission, presented evidence on this issue at the hearing, and continues to
meaningfully argue the issue on review. IAF, Tab 18 at 5-6, Tab 22 at 1-2; HT
at 92-92, 105 (testimony of a Forest Service Special Agent on cross examination); see
Thurman v. U.S. Postal Service , 2022 MSPB 21, ¶¶ 17-18 (setting forth a nonexhaustive
list of factors for determining whether an appellant waived or abandoned a previously
identified affirmative defense, such as the thoroughness and clarity with which the
appellant raised his affirmative defense, the degree to which the appellant continued to
pursue his affirmative defense in the proceedings below after initially raising it, and
whether the appellant objected to a summary of the issues to be decided that failed to
include the potential affirmative defense when specifically afforded an opportunity to
object and the consequences of his failure were made clear). Although the
administrative judge did not address this affirmative defense in the initial decision, the
appellant’s submissions below show that she nevertheless understood her burden of
showing that the agency violated the CAA. IAF, Tab 18 at 5-6.5
in every case involving construction of a statute is the language itself”) (quoting
Landreth Timber Company v. Landreth, 471 U.S. 681, 685 (1985) (citation
omitted)). Although the appellant argues that the CAA prohibition applies to
Federal law enforcement operations generally, and thus the agency, there is no
basis for reaching such a conclusion. PFR File, Tab 3 at 4-5; see Joseph v.
Devine, 19 M.S.P.R. 66, 68 (1984) (explaining that, under the doctrine of unius
est exclusio alterius, when exceptions to a general rule are specifically
enumerated, it is not ordinarily permissible to read additional exceptions into the
rule). Accordingly, the appellant’s affirmative defense that the agency’s action is
not in accordance with the law is not a basis for reversing her removal.4
Finally, after the record closed on review, the appellant filed a motion
seeking leave to submit a new pleading. PFR File, Tabs 4, 10. Specifically, she
argues that President Biden changed the law by granting a pardon for the Federal
crime of possession of marijuana. PFR File, Tab 10 at 4-5. New evidence or
legal argument that was previously unavailable despite a party’s due diligence
warrants review if it is of sufficient weight to merit an outcome different from
that of the initial decision. See Russo v. Veterans Administration , 3 M.S.P.R.
345, 349 (1980) (holding that, to constitute “new and material” evidence for
purposes of granting a petition for review, the new evidence must be of sufficient
weight to warrant a different outcome from that ordered by the presiding official);
5 C.F.R. § 1201.115(d) (providing that the Board may grant review based on new
4 On review the appellant argues that the constitutionality of the agency’s action should
be “examine[d]” to determine whether it violated the appellant’s freedom of association
with her husband, a lawful marijuana user. PFR File, Tab 3 at 3. The administrative
judge did not address this affirmative defense in the initial decision, and we decline to
consider it because we find that the appellant has waived or abandoned this claim. The
appellant, who was represented at all times of the appeal, committed one sentence of her
prehearing submission to this affirmative defense; offered no evidence in support of her
freedom of association assertions; did not object to the prehearing order’s failure to
identify this affirmative defense as an issue on appeal, despite having an opportunity to
do so; and did not elaborate on this argument on review. IAF, Tab 18 at 3, Tab 22
at 1-2, Tab 24; PFR File, 3 at 3; see Thurman, 2022 MSPB 21, ¶¶ 17-18. Accordingly,
we decline to address this argument.6
and material evidence or legal argument that was not available when the record
closed below). According to the appellant this proclamation means that her
removal is now “legally erroneous.” PFR File, Tab 10 at 5-6. We are not
persuaded.
The agency charged the appellant with conduct unbecoming a Federal
employee. IAF, Tab 4 at 51. Intent is not an element of a conduct unbecoming
charge. Cross v. Department of the Army , 89 M.S.P.R. 62, ¶ 9 (2001). Nor is an
agency required to prove that an appellant violated a law that was not part of its
charge. See Canada v. Department of Homeland Security , 113 M.S.P.R. 509, ¶ 9
(2010) (determining that an administrative judge erred to the extent that she
considered whether an agency that charged employees with conduct unbecoming
proved that the employees violated a policy that was not part of the charge).
On October 6, 2022, President Biden issued a proclamation pardoning
individuals lawfully present in the United States, including citizens, whether
convicted or not, of “the offense of simple possession of marijuana in violation of
the Controlled Substances Act.” Proclamation No. 10,467, 87 Fed. Reg. 61441
(Oct. 6, 2022). In support of its charge, the agency alleged that the appellant
admitted that marijuana was grown, processed, packaged, and sold at her
property. IAF, Tab 4 at 51. It did not allege that the appellant violated the
Controlled Substances Act. IAF, Tab 4 at 51. In fact, the agency did not allege
that the appellant broke any laws whatsoever. Id. at 21-23, 51-53. Therefore, the
agency was not required to prove that the appellant committed the crime of
possession of marijuana.5 Instead, it was required to prove that the appellant’s
conduct was unsuitable or detracted from her reputation. Miles v. Department of
5 Even if the President’s proclamation was material to the agency’s charge, it still would
not impact the outcome here. The President pardoned “only the offense of simple
possession of marijuana . . . , and not any other offenses related to marijuana.” 87 Fed.
Reg. at 61441. It is also a crime to “manufacture, distribute, or dispense” marijuana.
21 U.S.C. § 841(a)(1); see Bruhn v. Department of Agriculture , 124 M.S.P.R. 1, ¶ 15
(2016) (recognizing that it is illegal to manufacture or possess marijuana under the
Controlled Substances Act).7
the Army, 55 M.S.P.R. 633, 637 (1992). That requirement was satisfied here.
Accordingly, the appellant’s new argument does not change the outcome of this
appeal, and we deny her motion for leave to make an additional submission.
NOTICE OF APPEAL RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.8
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on9
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or10
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 11
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Avila_Catherine_A_SF-0752-17-0488-I-1__Final_Order.pdf | 2024-05-16 | CATHERINE A. AVILA v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. SF-0752-17-0488-I-1, May 16, 2024 | SF-0752-17-0488-I-1 | NP |
1,436 | https://www.mspb.gov/decisions/nonprecedential/Adams_Charles_D_DC-3443-23-0141-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARLES DERECK ADAMS,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DC-3443-23-0141-I-1
DATE: May 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Charles Dereck Adams , Herndon, Virginia, pro se.
Angela Kreitzer , Esquire, 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 for lack of jurisdiction his appeal alleging that the agency lost or
destroyed records and vital evidence pertaining to its security clearance
investigation of the appellant, which were relevant to his discrimination case
against his former employer. On petition for review, the appellant argues, among
other things, that the Board has jurisdiction over his appeal because 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).
allegations are not frivolous, and the Board has adjudicated discrimination claims
in the past. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 The appellant has filed several petitions for review in different Board appeals, which
the Board will address separately.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Adams_Charles_D_DC-3443-23-0141-I-1__Final_Order.pdf | 2024-05-16 | CHARLES DERECK ADAMS v. DEPARTMENT OF JUSTICE, MSPB Docket No. DC-3443-23-0141-I-1, May 16, 2024 | DC-3443-23-0141-I-1 | NP |
1,437 | https://www.mspb.gov/decisions/nonprecedential/Adams_Charles_D_DC-3443-23-0148-I-1_DC-3443-23-0159-I-1_DC-3443-23-0188-I-1_DC-3443-23-0215-I-1_DC-3443-23-0306-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARLES DERECK ADAMS,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBERS
DC-3443-23-0148-I-1
DC-3443-23-0159-I-1
DC-3443-23-0188-I-1
DC-3443-23-0215-I-1
DC-3443-23-0306-I-11
DATE: May 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL2
Charles Dereck Adams , Herndon, Virginia, pro se.
Paul Y. Kim , Esquire, Redstone Arsenal, Alabama, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
1 We have joined these cases on review based on our determination that doing so will
expedite their processing and will not adversely affect the interests of the parties.
5 C.F.R. § 1201.36(a)(2), (b). The appellant has also filed several other petitions for
review in different Board appeals, which the Board will address separately.
2 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
FINAL ORDER
¶1The appellant has filed petitions for review of the initial decisions, which
dismissed the first four appeals for lack of jurisdiction and the fifth appeal as
barred by res judicata. On petition for review, the appellant argues, among other
things, that the Board has jurisdiction over his appeals because his allegations are
not frivolous, and the Board has adjudicated discrimination claims in the past.
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
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 | Adams_Charles_D_DC-3443-23-0148-I-1_DC-3443-23-0159-I-1_DC-3443-23-0188-I-1_DC-3443-23-0215-I-1_DC-3443-23-0306-I-1_Final_Order.pdf | 2024-05-16 | null | null | NP |
1,438 | https://www.mspb.gov/decisions/nonprecedential/Buggs_Patricia_A_DC-3330-19-0844-I-5__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PATRICIA A. BUGGS,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
DC-3330-19-0844-I-5
DATE: May 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Patricia A. Buggs , Fredericksburg, Virginia, pro se.
Keian Weld , Esquire, Susan M. Andorfer , Esquire, and LerVal Marcelline
Elva , 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 without prejudice to 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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). For
the reasons discussed below, we DENY the appellant’s petition for review,
AFFIRM the initial decision insofar as it dismissed the appellant’s appeal without
prejudice to refiling pending the Board’s resolution of the interlocutory appeals in
Jolley v. Department of Housing and Urban Development , MSPB Docket Nos.
AT-4324-18-0576-I-2 and AT-4324-19-0041-I-1, and Flynn v. Securities and
Exchange Commission , MSPB Docket No. DC-1221-14-1124-M-4, on the
question of whether the Board’s administrative judges were properly appointed
under the Appointments Clause of the U.S. Constitution, and FORWARD the case
to the Board’s Washington Regional Office for adjudication of the underlying
appeal.
BACKGROUND
On September 19, 2019, the appellant filed an appeal alleging the agency
violated her rights under the Veterans Employment Opportunities Act of 1998.
Buggs v. Department of Health and Human Services , MSPB Docket No.
DC-3330-19-0844-I-1, Initial Appeal File (IAF), Tab 1 at 4-5. The agency moved
for reassignment of the appeal or dismissal without prejudice, citing the U.S.
Supreme Court’s decision in Lucia v. Securities and Exchange Commission ,
138 S. Ct. 2044 (2018), concerning the appointment of administrative law judges.
IAF, Tab 5. On October 4, 2019, the administrative judge issued a decision
dismissing the appeal without prejudice to refiling, noting that the agency’s
argument concerning Lucia was currently certified to the Board for interlocutory2
appeal. IAF, Tab 8, Initial Decision (I -1 ID) at 1-2. That decision specified that
the appeal would be automatically refiled 180 days from the date of the decision,
or, if the Board issued a decision addressing the Lucia issue prior to that date, the
appellant could request to refile her appeal. I-1 ID at 2.
The appeal was automatically refiled and dismissed without prejudice
subject to refiling multiple times. Buggs v. Department of Health and Human
Services, MSPB Docket No. DC-3330-19-0844-I-4, Tab 1, Tab 6, Initial Decision
(I-4 ID) at 2-3; Buggs v. Department of Health and Human Services , MSPB
Docket No. DC-3330-19-0844-I-3, Tab 1, Tab 6, Initial Decision (I-3 ID) at 2-3;
Buggs v. Department of Health and Human Services , MSPB Docket No.
DC-3330-19-0844-I-2, Tab 1, Tab 4, Initial Decision (I-2 ID) at 1, 3.2 On
December 27, 2021, the instant appeal was automatically refiled. Buggs v.
Department of Health and Human Services , MSPB Docket No. DC-3330-19-
0844-I-5 (I-5 AF), Tab 1. On February 3, 2022, the administrative judge issued
an initial decision again wherein he noted that the Lucia issue had still not been
resolved and that in the interest of judicial economy and administrative efficiency
the appeal would be again dismissed without prejudice to allow the Board to
address the Lucia issue. I-5 AF, Tab 4, Initial Decision (I-5 ID) at 2-3.
The appellant timely filed a petition for review. Petition for Review (PFR)
File, Tab 1 at 4. The agency has filed a response opposing the petition for
review, noting that the Lucia issue is now moot. PFR File, Tab 6 at 4-5. The
appellant has not responded.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant challenges the administrative judge’s decision to
dismiss her appeal without prejudice subject to refiling. PFR File, Tab 1 at 4.
Specifically, she appears to have adopted the agency’s Lucia argument, claiming
2 The initial decisions specified that the case would be automatically refiled 180 days
from the date of the decisions, or earlier in the event the Board issued a decision
addressing the Lucia issue. I-2 ID at 2; I-3 ID at 3; I-4 ID at 3.3
that she is entitled “to a hearing and review by constitutionally-appointed
decision-maker(s).” Id. at 4, 14, 43.
An administrative judge has wide discretion to control the proceedings
before him and dismissal without prejudice is a procedural option committed to
his sound discretion. Gingery v. Department of the Treasury , 111 M.S.P.R. 134,
¶ 9 (2009). A dismissal without prejudice is appropriate when it is in the
interests of fairness, due process, and administrative efficiency. Id. The Board
has held that an administrative judge may order a dismissal without prejudice at
the request of one or both parties, or to avoid a lengthy or indefinite continuance.
Id. The administrative judge dismissed the appellant’s appeal about a month
prior to the Board resolving the Lucia issue. I-5 ID at 1; see McClenning v.
Department of the Army , 2022 MSPB 3 (2022); see also Flynn, MSPB Docket No.
DC-1221-14-1124-M-4, Order at 3 (Mar. 31, 2022). Thus, we believe that the
administrative judge’s decision to dismiss the appeal without prejudice was
appropriate in light of the then-pending interlocutory appeals.
As to the appellant’s Appointment Clause argument on review, we find that
we need not address this argument. On March 4, 2022, six days prior to the
appellant’s petition for review, all of the Board’s administrative judges received
appointments ratified by the head of the agency, thereby satisfying the
requirements of the Appointments Clause. See U.S. Merit Systems Protection
Board Ratification Order (Mar. 4, 2022),
https://www.mspb.gov/foia/files/AJ_Ratification_Order_3-4-2022.pdf. The
Ratification Order is a public document, of which we take administrative notice.
Id. Thus, the Appointments Clause claim raised by the agency and the appellant
is moot. See Milner v. U.S. Postal Service , 118 M.S.P.R. 600, ¶ 4 (2012)
(holding that an issue is moot when there is no effective relief that the Board can
provide). Therefore, we forward the appeal to the regional office for adjudication
of the underlying appeal.4
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s7
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Buggs_Patricia_A_DC-3330-19-0844-I-5__Final_Order.pdf | 2024-05-16 | PATRICIA A. BUGGS v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. DC-3330-19-0844-I-5, May 16, 2024 | DC-3330-19-0844-I-5 | NP |
1,439 | https://www.mspb.gov/decisions/nonprecedential/Clarke_CarolineAT-0731-19-0759-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CAROLINE CLARKE,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
AT-0731-19-0759-I-1
DATE: May 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Caroline Clarke , Atlanta, Georgia, pro se.
James Andrew Stevens , 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
dismissed her appeal of a nonselection based on a purported negative suitability
determination for lack of jurisdiction. On petition for review, the appellant
argues that she was challenging the agency’s unfavorable suitability
determination and not the nonselection, that the agency failed to clearly
differentiate between a suitability determination, a suitability action, and a
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
nonselection, and that it failed to follow Office of Personnel Management (OPM)
regulations in making the suitability determination that led to her nonselection
and the withdrawal of the tentative offer of employment. Petition for Review
(PFR) File, Tab 1 at 4-5. She reasserts her harmful error claim from below and
appears to argue, for the first time, that the agency violated her due process
rights. Id. She also argues that the administrative judge’s jurisdictional order
was deficient and failed to explicitly inform her of how she could establish
jurisdiction. Id. at 5. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that any error committed by the administrative judge in not fully informing
the appellant of what she must show to establish jurisdiction over her appeal was
cured by the initial decision, we AFFIRM the initial decision.
The administrative judge correctly found that the appellant failed to allege
or prove that the agency took an action over which the Board has jurisdiction.
Initial Appeal File, Tab 9, Initial Decision (ID) at 4-5. Specifically, he correctly
found that the appellant’s nonselection based on the suitability criteria of
5 C.F.R. § 731.202 did not constitute a suitability action under 5 C.F.R.2
§ 731.203(a) and that the Board, therefore, lacked jurisdiction.1 ID at 4-5;
see 5 C.F.R. § 731.203(b).
The appellant appears to argue for the first time on review that the agency
violated her due process rights because the alleged criminal or dishonest conduct
upon which the agency relied in finding her unsuitable for the position at issue
was not raised in the proposal to rescind her tentative offer, and that she,
therefore, was deprived of the ability to defend herself. PFR File, Tab 1 at 5.
Generally, the Board will not consider an argument raised for the first time on
review absent a showing that it is based on new and material evidence not
previously available despite the party’s due diligence. Banks v. Department of
the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant has not made such a
showing. Moreover, the Board is without jurisdiction to consider a due process
claim absent an otherwise appealable action. See Burnett v. U.S. Postal Service ,
104 M.S.P.R. 308, ¶ 15 (2006) (affirming an administrative judge’s decision to
not consider an appellant’s due process claim when she has not otherwise
established jurisdiction over her 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
1 To the extent the administrative judge’s jurisdictional order lacked sufficient
specificity on how the appellant could establish jurisdiction over her claim, the initial
decision adequately cured that deficiency by informing the appellant how OPM’s
regulations define a suitability action and listing the actions that qualify under 5 C.F.R.
§ 731.203(a). ID at 3. See Burgess v. Merit Systems Protection Board , 758 F.2d 641,
643-44 (Fed. Cir. 1985); Parker v. Department of Housing and Urban Development ,
106 M.S.P.R. 329, ¶ 8 (2007).
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
forum with which to 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), (D),” then you may file a petition for judicial review either with the U.S.
Court of Appeals for the Federal Circuit or any court of appeals of competent6
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 | Clarke_CarolineAT-0731-19-0759-I-1__Final_Order.pdf | 2024-05-16 | CAROLINE CLARKE v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. AT-0731-19-0759-I-1, May 16, 2024 | AT-0731-19-0759-I-1 | NP |
1,440 | https://www.mspb.gov/decisions/nonprecedential/Mullins_David_T_CH-3443-19-0122-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID T. MULLINS,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
CH-3443-19-0122-I-1
DATE: May 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David T. Mullins , Corbin, Kentucky, pro se.
James Sellars , 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 appeal challenging the agency’s decision not to select him for a
promotion for lack of jurisdiction. For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
The appellant applied for a position with his employing agency but was not
selected. Initial Appeal File (IAF), Tab 1 at 5. On December 3, 2018, the
appellant filed the instant appeal challenging his nonselection and requested a
hearing, arguing that he was better qualified for the position than the applicant
who was selected and alleging that his nonselection was in reprisal for an ongoing
Equal Employment Opportunity complaint he had against the agency. Id.
The administrative judge issued an acknowledgement order in which she
notified the appellant of his burden of proof to establish Board jurisdiction over
his appeal, explained the limited circumstances under which the Board has
jurisdiction over nonselection appeals, and ordered the appellant to file evidence
and argument as to why the Board had jurisdiction over the matter within 10 days
of the date of her order. IAF, Tab 2 at 2-3. The appellant did not file a response
to the order, and the agency moved to dismiss the appeal. IAF, Tab 4. Without
holding the appellant’s requested hearing, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction, finding that the
appellant failed to make a nonfrivolous allegation that the Board had jurisdiction
over his appeal. IAF, Tab 6, Initial Decision (ID) at 1, 5. The initial decision
included instructions noting that it would become final on March 4, 2019, unless
a petition for review was filed by that date. ID at 5.
On March 5, 2019, the appellant filed a “Request for Extension of Time to
File PFR,” which the Board treated as an untimely petition for review. Petition
for Review (PFR) File, Tab 1. The following day, the Clerk of the Board issued
an acknowledgment letter informing the appellant that his petition for review was
untimely and that he must submit a “Motion to Accept Filing as Timely or to
Waive Time Limit” either by an affidavit or a statement signed under penalty of
perjury. PFR File, Tab 2 at 1-2. A blank sample motion was attached to the
acknowledgment letter. Id. at 7-8. The acknowledgment letter further stated that
the appellant’s motion must be submitted on or before March 21, 2019. Id. at 2.
The acknowledgment letter informed the appellant that he must show good cause2
for the Board to waive his untimeliness, and instructed him on how to do so.
Id. at 2, 7. The appellant has not filed a motion to accept his untimely petition
for review or to waive the time limit.
The Board’s regulations provide that a petition for review must be filed
within 35 days of the issuance of the initial decision or, if the appellant shows
that the initial decision was received more than 5 days after the issuance, within
30 days after the date he received the initial decision. 5 C.F.R. § 1201.114(e).
Here, the appellant has not alleged or established that he received the initial
decision more than 5 days after its issuance on January 28, 2019. See ID at 1.
Thus, any petition for review was due no later than March 4, 2019, making his
petition for review, filed on March 5, 2019, untimely by 1 day. ID at 5.
The Board will waive its filing deadline only upon a showing of good cause
for the delay in filing. 5 C.F.R. § 1201.114(g). To determine if 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).
We find that the appellant has not made a showing of good cause.
Although the brevity of the appellant’s 1-day delay and the fact that he is pro se
weigh in favor of excusing the delay, in the interest of judicial efficiency and
fairness, the appellant must show good cause for the delay in order for the Board
to waive the filing deadline, regardless of how minimal the delay . Katovich v.
Department of the Air Force , 58 M.S.P.R. 444, 446 (1993) ; McDonnell v. Office
of Personnel Management , 43 M.S.P.R. 400, 402 (1990); Stromfeld v. Department
of Justice, 25 M.S.P.R. 240, 241 (1984) (concluding that a petition for review3
filed 1 day late was not excused where the appellant offered no reasonable excuse
for the delay); see Little v. U.S. Postal Service , 124 M.S.P.R. 183, ¶¶ 9 -10 (2017)
(declining to excuse a 1-day delay in filing an initial appeal when the appellant
failed to otherwise establish good cause for the untimeliness); Cabarloc v.
Department of Veterans Affairs , 112 M.S.P.R. 453, ¶¶ 9-10 (2009) (finding no
good cause for the pro se appellant’s 10-day delay in filing a petition for review
when he failed to respond to the Clerk’s notice regarding timeliness) . As
previously noted, the initial decision expressly apprised the appellant that “[t]his
initial decision will become final on March 4, 2019 , unless a petition for review
is filed by that date.” ID at 5 (emphasis in original). The appellant has not
offered any explanation for his untimeliness, despite being afforded the
opportunity to do so.
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 appellant’s nonselection appeal.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
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
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Mullins_David_T_CH-3443-19-0122-I-1__Final_Order.pdf | 2024-05-16 | DAVID T. MULLINS v. DEPARTMENT OF JUSTICE, MSPB Docket No. CH-3443-19-0122-I-1, May 16, 2024 | CH-3443-19-0122-I-1 | NP |
1,441 | https://www.mspb.gov/decisions/nonprecedential/Escobar_Maria_B_DE-0752-21-0108-C-1_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARIA ESCOBAR,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DE-0752-21-0108-C-1
DATE: May 16, 2024
THIS ORDER IS NONPRECEDENTIAL1
Chungsoo J. Lee , Jenkintown, Pennsylvania, for the appellant.
Debbie Stevens , Marie Clarke , and Ted Booth , Esquire, Washington, D.C.,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
ORDER
¶1The agency has filed a petition for review of the compliance initial decision,
which granted the appellant’s petition for enforcement and ordered the agency to
rescind her suspension and issue applicable backpay and benefits. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to clarify that the appellant is not entitled to backpay and
benefits during the time that she was receiving wage replacement benefits from
the Office of Workers’ Compensation Programs (OWCP), we AFFIRM the
compliance initial decision.
BACKGROUND
¶2On February 5, 2021, the appellant filed an adverse action appeal
challenging the agency’s decision to charge her as absent without leave (AWOL)
while she was receiving OWCP wage replacement benefits. Escobar v.
Department of Justice , MSPB Docket No. DE-0752-21-0108-I-1, Initial Appeal
File (IAF), Tab 1. The record appears to reflect that the appellant received
OWCP benefits from September 21, 2020, to January 2, 2022. Escobar v.
Department of Justice , MSPB Docket No. DE-0752-21-0108-C-1, Compliance
File (CF), Tab 1 at 13-15. The agency marked her as AWOL during most of this
period. IAF, Tab 6 at 57-66. On January 3, 2022, the appellant returned to work
in a paid status. Escobar v. Department of Justice , MSPB Docket No. DE-0752-
21-0108-I-2, Appeal File (I-2 AF), Tab 5 at 89.
¶3In March 2022, the administrative judge issued an initial decision, which
found that the appellant had been subjected to an appealable suspension when the2
agency marked her AWOL while receiving OWCP benefits and that the agency
had failed to afford her due process. I-2 AF, Tab 7, Initial Decision (ID) at 2-4.
Having found a due process violation, the administrative judge ordered the
agency to cancel the suspension and restore the appellant, retroactive to
September 28, 2020, and pay applicable backpay with interest and all related
benefits and credits. ID at 4-5. She also ordered interim relief. ID at 5-6. The
initial decision became the Board’s final order on April 18, 2022, when neither
party filed a petition for review. ID at 7.
¶4In July 2022, the appellant filed a petition for enforcement asserting that the
agency was not in compliance with the initial decision. CF, Tab 1. She asserted
that she was entitled to backpay, conversion of AWOL to paid work time between
September 21, 2020, and January 3, 2022, interest, overtime and night
differential, accrued annual and sick leave, repayment of medical expenses due to
the termination of her Federal health care plan, and retirement contributions and
credits. Id. at 4-8. The agency filed a response to the petition for enforcement,
and the appellant filed a reply. CF, Tabs 4-5. In a compliance initial decision,
the administrative judge found that the agency had not met its burden to prove
compliance with the final Board order. CF, Tab 6, Compliance Initial Decision
(CID). She therefore granted the petition for enforcement and again ordered the
agency to rescind the suspension, issue all applicable backpay and benefits, and
file proof that those actions had been completed. CID at 3-4.
¶5The agency has filed a petition for review of the compliance initial decision.
Escobar v. Department of Justice , MSPB Docket No. DE-0752-21-0108-C-1,
Compliance Petition for Review (CPFR) File, Tab 2. On review, the agency
asserts that it “has previously ensured that Appellant was not placed in AWOL
status” between September 21, 2020, and January 2, 2022. Id. at 4. The agency
filed a Standard Form 52 (SF-52), noting the requested action as
“LWOP/OWCP,” with a proposed effective date of September 26, 2020. Id. at 8.
The approval date on the form is blank. Id. The appellant has filed a response,3
wherein she asserts that the undated SF-52 is insufficient to demonstrate that the
agency converted the AWOL to another status. CPFR File, Tab 4 at 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6The agency bears the burden of proving its compliance with a Board order,
and assertions of compliance must be supported by relevant, material, and
credible evidence in the form of documentation, affidavits, or declarations.
Pernell v. Department of Veterans Affairs , 118 M.S.P.R. 15, ¶ 7 (2012). When
the Board orders an agency action cancelled, the agency must return the appellant
as nearly as possible to the status quo ante. Id.
The agency has not proved that it converted the appellant’s AWOL to an
approved leave status.
¶7In the initial decision, the administrative judge ordered the agency to cancel
the appellant’s suspension, i.e., AWOL, beginning on September 28, 2020, and to
return her to the status quo ante. ID at 4. The agency is required to return the
appellant to the position that she was in prior to the suspension, which, in this
case, was an approved leave status. IAF, Tab 6 at 52-56; see Hagan v.
Department of the Army , 99 M.S.P.R. 313, ¶ 8 (2005) (explaining that the
appropriate remedy for an employee who was found to have had a compensable
injury during the time that the agency had previously marked him as AWOL was
to retroactively place him in an approved leave status, such as leave without pay).
The agency’s pay records reflect that the appellant was in “OWCP Injury Leave”2
status during some periods that she was receiving OWCP benefits. IAF, Tab 6
at 52-54. Thus, we find that, to return the appellant to the status quo ante, the
agency must retroactively place her in an approved leave status, such as OWCP
Injury Leave or LWOP.
¶8The agency not proved, with admissible evidence, that it converted the
appellant’s AWOL to an approved leave status, retroactive to September 28,
2 In other records, this is referred to as “LWOP w/OWCP (Injury).” E.g., I-2 AF, Tab 5
at 25.4
2020.3 Although agency counsel has asserted in pleadings that the AWOL was
converted to another status, IAF, Tab 28 at 5, CPFR File, Tab 2 at 4, statements
by a party’s representative in a pleading do not constitute evidence. Hendricks v.
Department of the Navy , 69 M.S.P.R. 163, 168 (1995). The agency has filed a
declaration from a Human Resource Manager, wherein he asserts that the
appellant’s “records have been amended for the period covering February 15,
2021, to January 13, 2022.” I-2 AF, Tab 5 at 18. This appears to be corroborated
by the agency’s time records. Id. at 20-89. However, there is no admissible
evidence in the record to demonstrate that the appellant’s AWOL between
September 28, 2020, and February 14, 2021, has been converted to an approved
leave status. We acknowledge that the agency submitted an SF-52, request for a
personnel action, on review. CPFR File, Tab 2 at 8-9. We find that the document
is insufficient to prove compliance because it does not have an electronic or
physical signature, the approval date is blank, and the nature of the action
requested, “LWOP/OWCP,” is vague and does not identify a date range. Id. at 8;
see Beaudin v. Department of the Army , 38 M.S.P.R. 597, 601 (1988) (explaining
that, standing alone, an SF-52 form submitted by the agency lacked probative
weight as evidence of the agency’s compliance with a settlement agreement, in
part, because the document only requested that a personnel action be taken and
did not show that any action was actually taken); cf. Basco v. Department of the
Army, 67 M.S.P.R. 490, 492 (1995) (holding that, in the absence of evidence to
the contrary, an SF-52 can be sufficient to show that the agency took the actions
represented therein to prove compliance with an interim relief order). The agency
is therefore in noncompliance with the Board’s final order.
3 In her petition for enforcement, the appellant asserts that the AWOL began earlier, on
September 21, 2020. CF, Tab 1 at 4. However, neither party filed a petition for review
of the initial decision, which ordered relief beginning September 28, 2020. ID at 4.
That decision is now final. Butler v. Office of Personnel Management , 98 M.S.P.R.
655, ¶ 3 (2005), aff’d, 168 F. App’x 439 (Fed. Cir. 2006); see 5 C.F.R.
§ 1201.113(a)-(c). We therefore decline to disturb the relief ordered in the initial
decision.5
The appellant is not entitled to backpay and other benefits for the period that she
was receiving OWCP benefits.
¶9In addition to the relief described above, the initial decision ordered the
agency to pay all applicable backpay and benefits. ID at 4. An employee who is
receiving OWCP benefits is not entitled to receive salary, pay, or remuneration of
any type.4 Hagan, 99 M.S.P.R. 313, ¶ 11 (citing 5 U.S. C. § 8116(a)). The
appellant’s request for backpay, overtime, and interest is therefore denied. An
employee who is receiving OWCP benefits generally is not also entitled to accrue
annual or sick leave. Roja v. Department of the Navy , 55 M.S.P.R. 618, 621
(1992).
¶10We next address the appellant’s request for retirement contributions. CF,
Tab 1 at 7. The administrative judge did not specifically address this claim,
which the appellant raised below. Although the appellant has not reasserted the
claim on review, we address it here to ensure the clarity of our decision.
Contributions to and deductions from the Federal Employees Retirement System
are based on a percentage of basic pay. See 5 U.S.C. § 8422(a); 5 C.F.R.
§ 841.504(a)-(b). No employee deduction is due for pay periods in which the
employee received no basic pay. 5 C.F.R. § 841.504(b). As an OWCP recipient
in an unpaid leave status, the appellant received no basic pay. See Roja,
55 M.S.P.R. at 621. Therefore, the agency is not obligated to make contributions
or take deductions for FERS. Id. As to the appellant’s claim regarding service
credit for retirement, that issue is properly before the Office of Personnel
Management (OPM). See 5 U.S.C. §§ 8151, 8332(f); see also Ocampo v. Office
of Personnel Management , 43 M.S.P.R. 209, 210 (1990) (holding that the Board
lacked jurisdiction over the appellant’s claim to service credit because no initial
4 An exception may exist where an appellant is retroactively restored to duty due to an
arbitrary and capricious denial of restoration; however, that does not apply here because
the administrative judge found in a separate appeal that the agency did not deny the
appellant’s restoration rights. Escobar v. Department of Justice , MSPB Docket No.
DE-0353-21-0256-I-2, Final Order (Nov. 16, 2022); e.g., Tram v. U.S. Postal Service ,
120 M.S.P.R. 208, ¶ 10 (2013). 6
or reconsideration decisions had been issued by OPM). The appellant has also
requested repayment of medical expenses due to a purported lapse in her Federal
health care coverage. CF, Tab 1 at 6. However, the Board has no authority to
direct an agency to pay consequential damages in connection with a backpay
award. See Kennedy v. U.S. Postal Service , 42 M.S.P.R. 429, 431-32 (1989).
¶11The compliance initial decision remains the final decision of the Board
regarding the finding of noncompliance concerning the conversion of AWOL to
an approved leave status. The appellant’s petition for enforcement will be
referred to the Board’s Office of General Counsel, and, depending on the nature
of the submissions, an attorney with the Office of General Counsel may contact
the parties to further discuss the compliance process. The parties are required to
cooperate with that individual in good faith. Because the purpose of the
proceeding is to obtain compliance, when appropriate, an Office of General
Counsel attorney or paralegal may engage in ex parte communications to, among
other things, better understand the evidence of compliance and any objections to
that evidence. Thereafter, the Board will issue a final decision fully addressing
all relevant issues in this appeal5 and setting forth the appellant’s appeal rights.
ORDER
We ORDER the agency to substitute an approved leave status, such as
OWCP Injury Leave, for AWOL between September 28, 2020, and February 14,
2021, and to remove all references to AWOL from the appellant’s personnel file.
We ORDER the agency to submit to the Clerk of the Board within 60 days
of the date of this Order satisfactory evidence of compliance. This evidence shall
adhere to the requirements set forth in 5 C.F.R. § 1201.183(a)(6)(i), including
submission of evidence and a narrative statement of compliance. The agency’s
submission shall demonstrate that it cancelled the appellant’s AWOL and
substituted an approved leave in its place and, further, that it removed all
5 The subsequent decision may incorporate the analysis and findings set forth in this
Order.7
references to AWOL from the appellant’s personnel file. The agency must serve
all parties with copies of its submission.
The agency’s submission should be filed under the docket number assigned
to the compliance referral matter, MSPB Docket No. DE- 0752-21-0108-X-1. All
subsequent filings should refer to the compliance referral docket number set forth
above and should be faxed to (202) 653-7130 or mailed to the following address:
Clerk of the Board
U.S. Merit Systems Protection Board
1615 M Street, N.W.
Washington, D.C. 20419
Submissions may also be made by electronic filing at the Board’s e-Appeal
site (https://e-appeal.mspb.gov) in accordance with its regulation at 5 C.F.R.
§ 1201.14.
The appellant may respond to the agency’s evidence of compliance within
20 days of the date of service of the agency’s submission. 5 C.F.R. § 1201.183(a)
(8). If the appellant does not respond to the agency’s evidence of compliance, the
Board may assume that she is satisfied with the agency’s actions and dismiss the
petition for enforcement.
The agency is reminded that, if it fails to provide adequate evidence of
compliance, the responsible agency official and the agency’s representative may
be required to appear before the General Counsel of the Merit Systems Protection
Board to show cause why the Board should not impose sanctions for the agency’s
noncompliance in this case. 5 C.F.R. § 1201.183(c). The Board’s authority to
impose sanctions includes the authority to order that the responsible agency
official “shall not be entitled to receive payment for services as an employee
during the period that the order has not been complied with.” 5 U.S.C. § 1204(e)
(2)(A).
This Order does not constitute a final order and therefore is not subject to
judicial review under 5 U.S.C. § 7703(a)(1). Upon the Board’s resolution of all8
relevant issues in this petition for enforcement, a final order shall be issued,
which shall be subject to judicial review.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Escobar_Maria_B_DE-0752-21-0108-C-1_Order.pdf | 2024-05-16 | MARIA ESCOBAR v. DEPARTMENT OF JUSTICE, MSPB Docket No. DE-0752-21-0108-C-1, May 16, 2024 | DE-0752-21-0108-C-1 | NP |
1,442 | https://www.mspb.gov/decisions/nonprecedential/Webb_John_K_AT-0752-16-0540-I-1__Final_Order.pdf | 0UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN K. WEBB,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
AT-0752-16-0540-I-1
DATE: May 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
John K. Webb , Pensacola, Florida, pro se.
William Vincent Cochrane and Holly L. Buchanan , Eglin Air Force Base,
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
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
The appellant was removed from his position of Computer Scientist,
GS-12, at the 96th Range Control Squadron, at Eglin Air Force Base, Florida.
Initial Appeal File (IAF), Tab 6 at 14. The agency based the action on the
appellant’s failure to meet a condition of his employment—the requirement to
maintain his security clearance. Id. at 26. The record reflects that on
November 20, 2014, the Department of Defense Consolidated Adjudications
Facility (DODCAF) rendered a preliminary decision to revoke the appellant’s
eligibility for access to classified information or employment in sensitive duties.
Id. at 74-75. The appellant was provided with instructions on how to submit a
response, which he did on January 30, 2015. IAF, Tab 15, at 17-64. On June 21,
2015, the DODCAF revoked the appellant’s “eligibility for access to classified
information and/or assignment to duties that have been designated national
security sensitive.” IAF, Tab 6 at 71-72. Although the appellant appealed the
decision to the Personnel Security Appeal Board (PSAB), the PSAB upheld the
revocation on October 16, 2015. Id. at 69-70. The agency proposed the
appellant’s removal on February 25, 2016, and he submitted both a written and an
oral response to the proposal. Id. at 20-28. The deciding official issued a2
decision removing the appellant effective April 30, 2016. Id. at 15-19. The
appellant then filed this Board appeal. IAF, Tab 1.
Because the appellant withdrew his request for a hearing, the administrative
judge decided this appeal based on the written record. IAF, Tab 27, Initial
Decision (ID) at 2; IAF, Tab 21 n.1. In her initial decision, the administrative
judge found that the agency demonstrated by preponderant evidence that the
appellant’s Computer Scientist position required him to maintain a Secret level
security clearance. ID at 4; IAF, Tab 6 at 22, 65, Tab 22 at 10, 12. The
administrative judge also found that the record established that the DODCAF
revoked the appellant’s access to classified information and that the PSAB upheld
the revocation. ID at 4; IAF Tab 6 at 69-75; Tab 15 at 66-69. The administrative
judge found further that the agency complied with the procedures required by
5 U.S.C. § 7513(b) when removing the appellant from his position, and that the
agency established the required nexus between its adverse action and the
efficiency of the service. ID at 4. In addition, the administrative judge found no
evidence of a formal agency policy that gives the appellant the right to transfer to
a nonsensitive position, and absent a statute or regulation requiring the agency to
seek out alternative employment, the Board lacks the authority to review whether
an employee’s reassignment to a position not requiring a security clearance would
have been reasonable. ID at 3-4. To the extent the appellant alleged that the
agency discriminated against him on the basis of his age by showing favoritism to
younger employees by helping them keep their security clearances, the
administrative judge found that the Board lacks authority to review this claim
because it would involve an inquiry into the validity of the agency’s reasons for
deciding to revoke the appellant’s access. ID at 4-5. Finally, regarding the
appellant’s claim that the agency failed to follow its own procedural protections
when it did not consider certain documents he provided, the administrative judge
found that because the appellant failed to prove by preponderant evidence that the
agency committed any procedural error that would have resulted in him not being3
removed for failure to maintain a requirement of his position, he failed to
establish harmful error. ID at 5-6. Thus, the administrative judge affirmed the
agency’s removal action. ID at 6.
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 filed a reply
to the agency’s response. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
In Department of the Navy v. Egan , 484 U.S. 518, 530 -31 (1988), the U.S.
Supreme Court held that, in an appeal under 5 U.S.C. § 7513 based on the denial
or revocation of a security clearance, the Board lacks authority to review the
substance of the underlying security clearance determination, but may review,
inter alia, whether the employee’s position required a security clearance, whether
the security clearance was revoked, and whether the procedures set forth in
5 U.S.C. § 7513(b) were followed. Here, it is undisputed that the appellant’s
position required a security clearance, that it was revoked, and that the agency
complied with the requirements of 5 U.S.C. § 7513(b) in taking the removal
action.
The U.S. Court of Appeals for the Federal Circuit also has held that,
pursuant to 5 U.S.C. § 7701(c)(2)(C), the Board may review whether an agency
complied with its procedures leading to the adverse action, including its
procedures for revoking a security clearance, provided the Board does not review
the substance of the revocation decision.2 Romero v. Department of Defense ,
527 F.3d 1324, 1328-29 (Fed. Cir. 2008). To prevail with a harmful error
affirmative defense, the appellant must prove by preponderant evidence not only
2 The Board has further held that, although a security clearance determination does not
implicate any due process concerns, the Board may review whether the agency provided
the procedural due process guaranteed under the Fifth Amendment in taking the
resulting adverse action. Buelna v. Department of Homeland Security , 121 M.S.P.R.
262, ¶ 15 (2014). The appellant has not asserted that the agency denied him
constitutional due process. 4
that the agency violated its own procedures, but also that the procedural error was
likely to have caused the agency to reach a conclusion different from the one it
would have reached in the absence or cure of the error. Stephen v. Department of
the Air Force, 47 M.S.P.R. 672, 681, 685 (1991); 5 C.F.R. § 1201.56(c)(1).
Here, the appellant appears to be reasserting that the agency committed
harmful error when it did not consider certain updated documents he provided
concerning his financial situation with his creditors. PFR File, Tab 1 at 17-22.
For instance, he contends that the agency failed to consider documents he
submitted to the agency and that he was prevented from obtaining relevant
documents during the agency’s discovery process. Id. at 11. He also reiterates
that he is a valuable employee and that the deciding official prevented him from
using Air Force Article 8.7 to have his security clearance reinstated. Id. at 11-14.
However, even considering the appellant’s claims that the agency did not
consider all of the documents he provided, we nonetheless lack authority to
review the substance of the security clearance determination, see Romero,
527 F.3d at 1329, and the appellant has not otherwise shown by preponderant
evidence that the alleged error would likely have resulted in him not being
removed for failure to maintain a requirement of his position. Further, the record
establishes that the agency complied with its own internal procedures when it
provided the appellant at least 30 days’ advance written notice of the proposed
action; afforded him a reasonable time, but not less than 7 days, to respond; to
submit an answer; advised him that he had the right to be represented by a
representative of his choice; and provided him with a written decision explaining
the agency’s reasons for its decision to remove him. IAF, Tab 6 at 20-21, 26-28.
The appellant also appears to be reasserting his claim that the agency
committed harmful error because the agency’s decision letter was deceptive and
he “did not have 20 days to get legal representation from AFGE Union.” Id.
at 23. However, as the administrative judge correctly found, the decision letter
informed the appellant that, pursuant to the parties’ collective bargaining5
agreement, he had 20 days from the effective date of his removal to file a
grievance. IAF, Tab 6 at 15-17. Furthermore, both the decision letter and the
notice of proposed removal advised the appellant that he had the right to
designate a representative of his choice, including the union, if he so desired. Id.
at 17, 27. Thus, we find no merit to the appellant’s argument.
The appellant further argues that the administrative judge erred in finding
that the Board lacks jurisdiction over his age discrimination claim. PFR File,
Tab 1 at 18-19. He asserts that, because his discrimination claim was against an
official at Eglin Air Force Base and not the DODCAF, his claim should not be
exempt from Board jurisdiction. Id. However, the substance of the appellant’s
discrimination claim is that the official in question exhibited favoritism toward
younger engineers by helping them maintain their security clearances while his
was revoked. Id. at 18. The Board is not permitted to review allegations of
prohibited discrimination relating to an adverse action premised on the
suspension or revocation of a security clearance where doing so would involve a
prohibited inquiry into the validity of the security clearance determination.3
Putnam v. Department of Homeland Security , 121 M.S.P.R. 532, ¶ 19 (2014).
Thus, we find that the administrative judge correctly refrained from reviewing the
appellant’s age discrimination claim.
Finally, the appellant also appears to object to the agency’s failure to
respond to his discovery requests during the Board appeal process. PFR File,
Tab 1 at 24-26. However, the record reflects that the appellant did not timely or
properly file a motion to compel. Further, even though the administrative judge
did not address his discovery argument below or the agency’s assertion that the
3 The Board has held open the possibility of considering a discrimination claim that
would not require the Board to review the substance of the underlying security
clearance determination, e.g., a claim that solely goes to the issue of penalty and is
based on the agency’s treatment of similarly situated individuals outside of the
appellant’s protected class. See Helms v. Department of the Army , 114 M.S.P.R. 447,
¶ 9 n.* (2010). Here, the appellant’s age discrimination claim implicates the substance
of the underlying security clearance determination, and so it is not reviewable. 6
appellant’s discovery requests were untimely filed, we discern no resulting harm
because the appellant failed to submit a motion to compel that meets the
requirements of 5 C.F.R. § 1201.73(c)(1). IAF, Tab 25 at 4-5; see Johnson v.
Department of Justice , 104 M.S.P.R. 624, ¶ 30 (2007) (finding that the
administrative judge’s failure to rule on a motion to compel was not harmful
because the motion failed to meet the Board’s regulatory requirements and did not
state how the information in the discovery responses sought was relevant and
material).
In sum, because the appellant held a position that required him to maintain
a security clearance and his clearance was revoked, and because the agency
complied both with the procedural requirements under 5 U.S.C. § 7513 and its
own internal procedures in processing his removal, we find that the administrative
judge correctly sustained the agency’s removal action.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
4 Absent a statute or regulation requiring the agency to seek out alternative
employment, the Board lacks authority to review whether the appellant’s reassignment
to a position not requiring a security clearance would have been feasible. Griffin v.
Defense Mapping Agency , 864 F.2d 1579, 1580 (Fed. Cir. 1989); see Hornseth v.
Department of the Navy , 916 F.3d 1369, 1374-75 (Fed. Cir. 2019).
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 8
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 9
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 | Webb_John_K_AT-0752-16-0540-I-1__Final_Order.pdf | 2024-05-16 | JOHN K. WEBB v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-0752-16-0540-I-1, May 16, 2024 | AT-0752-16-0540-I-1 | NP |
1,443 | https://www.mspb.gov/decisions/nonprecedential/Martin_Chris_D_SF-1221-20-0234-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRIS D. MARTIN,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
SF-1221-20-0234-W-1
DATE: May 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Anthony Rogers , San Antonio, Texas, for the appellant.
Kathryn Price , El Segundo, 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 appeal for lack of jurisdiction. On
petition for review, the appellant argues that the administrative judge should have
allowed him to conduct discovery and applied a different standard to determine
whether he was subjected to a significant change in duties, responsibilities, or
working conditions. Generally, we grant petitions such as this one only in the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you3
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Martin_Chris_D_SF-1221-20-0234-W-1__Final_Order.pdf | 2024-05-16 | CHRIS D. MARTIN v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. SF-1221-20-0234-W-1, May 16, 2024 | SF-1221-20-0234-W-1 | NP |
1,444 | https://www.mspb.gov/decisions/nonprecedential/Williams_EricAT-4324-16-0662-B-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIC WILLIAMS,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
AT-4324-16-0662-B-1
DATE: May 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Eric Williams , North Charleston, South Carolina, pro se.
Karissa Getz , Norfolk, 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 remand initial decision,
which denied his request for corrective action under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (codified as amended at
38 U.S.C. §§ 4301-4335) (USERRA). Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to apply the doctrine of res judicata to the appellant’s claims arising
under the Veterans Employment Opportunities Act of 1998 (VEOA) and to
consider alleged disparate impact evidence as possible evidence of discriminatory
intent, we AFFIRM the initial decision.
BACKGROUND
In July 2015, the appellant, who is not currently a Federal employee,
applied for a GS-9/11 Contract Specialist position in the agency’s Defense
Acquisition Workforce (DAW) advertised under job announcement number
EA51102-12-1460254LZ1221318D. Williams v. Department of the Navy , MSPB
Docket No. AT-4324-16-0662-B-1, Remand File (RF), Tab 12 at 4; Williams v.
Department of the Navy , MSPB Docket No. AT-4324-16-0662-I-1, Initial Appeal
File (IAF), Tab 7 at 69. The agency ranked candidates into categories of
Qualified, Well Qualified, and Best Qualified, and referred the 11 candidates
ranked Best Qualified to the selecting official. IAF, Tab 7 at 66-68, 73.
The appellant was ranked Well Qualified, and so was not referred to the selecting
official. RF, Tab 12 at 4-5. All of the referred candidates were veterans.
IAF, Tab 7 at 67-68.
Around the same time that the agency issued the vacancy announcement
listed above, it received authority from the Secretary of Defense to hire for DAW2
Contract Specialist positions using an expedited hiring authority (EHA).
Id. at 69-70, 78-79; Williams v. Department of the Navy , MSPB Docket No. DC-
3330-16-0292-B-1 (0292-B-1 Appeal), Remand File (0292 RF), Tab 9, Hearing
Compact Disc (HCD), Track 1 at 1:00 (testimony of the agency’s hiring official).
The agency decided not to select any of the Best Qualified candidates.
IAF, Tab 7 at 66. Instead, it decided to use the EHA. HCD, Track 1 at 1:00
(testimony of the agency’s hiring official). The agency began interviewing
candidates for recruitment under the EHA in July 2015. Id. Between September
2015 and July 2016, the agency used the EHA to make Contract Specialist
position job offers to 10 veterans, 2 of whom declined, and 17 nonveterans, 1 of
whom declined. IAF, Tab 7 at 65.
In January 2016, the appellant filed a Board appeal challenging the
nonselection and use of the EHA program under the VEOA. Williams v.
Department of the Navy , MSPB Docket No. DC-3330-16-0292-I-1 (0292-I-1
Appeal), Initial Appeal File (0292 IAF), Tab 1 at 1-3. Following a remand, an
administrative judge issued a remand initial decision, finding on the merits that
the appellant did not prove that the agency denied him the right to compete for
the position or violated his veterans’ preference rights when it appointed
nonpreference eligibles to the Contract Specialist position under the EHA
program. 0292-B-1 Appeal, Remand Initial Decision at 6-19 (Dec, 21, 2016).
The appellant filed a petition for review, and the Board affirmed the remand
initial decision. 0292-B-1 Appeal, Final Order, ¶¶ 1, 12, 14-17 (Aug. 25, 2022).
The appellant sought review in the U.S. Court of Appeals for the Federal Circuit
(Federal Circuit), which affirmed the Board’s decision. Williams v. Department
of the Navy, No. 2023-1010, 2023 WL 3373578 (Fed. Cir. May 11, 2023).
In July 2016, the appellant filed the instant appeal, in which he repeated his
claims from the prior VEOA Appeal and argued that the agency discriminated
against him based on his military service when it did not select him for the
GS-9/11 Contract Specialist position. IAF, Tab 1 at 1-5. The administrative3
judge dismissed the appeal for lack of jurisdiction. IAF, Tab 10, Initial Decision
at 1, 3. The appellant filed a petition for review. Williams v. Department of the
Navy, MSPB Docket No. AT-4324-16-0662-I-1, Petition for Review (PFR) File,
Tab 1. The Board granted the petition for review, found that the appellant
established jurisdiction over his USERRA appeal, vacated the initial decision, and
remanded the appeal for a determination on the merits. PFR File, Tab 5, Remand
Order.
After holding a hearing, the administrative judge issued a remand initial
decision in which she denied corrective action. RF, Tab 24, Remand Initial
Decision (RID) at 2, 6. She found that the appellant did not prove that his
placement on the Well Qualified (as opposed to Best Qualified) list or the agency
decision to hire using an EHA was motivated by his prior military service.
RID at 5-6. She found that the appellant’s remaining arguments were outside the
Board’s USERRA jurisdiction and adjudicated in his prior VEOA appeal of the
nonselection. RID at 3-6 & n.1.
The appellant has filed a petition for review. Williams v. Department of the
Navy, MSPB Docket No. AT-4324-16-0662-B-1, Remand Petition for Review
(RPFR) File, Tab 1. He reiterates that he should have been ranked as “Best
Qualified” and that the agency’s nonselection of veterans for the position was the
result of intentional discrimination and had a disparate impact on veterans. RPFR
File, Tab 1 at 4-7; RF, Tab 21. He argues for the first time that the agency
preselected candidates for the position instead of using its EHA. RPFR File,
Tab 1 at 7. The agency has filed a response to which the appellant has replied.
RPFR File, Tabs 3-4.4
DISCUSSION OF ARGUMENTS ON REVIEW
We modify the initial decision to apply the doctrine of res judicata to the
appellant’s VEOA claims.
The administrative judge found that the Board previously decided several
of the appellant’s arguments in a VEOA appeal concerning his nonselection for
the same position at issue here. RID at 3 n.1. As a result, she did not consider
the appellant’s allegations that the agency should have rated him among the Best
Qualified due to his service -connected disability; denied him a right to compete
by failing to make a selection from the certificate for announcement number
EA51102-12-1460254LZ1221318D, which consisted entirely of veterans; failed
to use pass-over procedures to hire a nonveteran over him; and failed to follow
necessary procedures to use the EHA program. RID at 3 n.1, 4. In making this
decision, the administrative judge did not expressly apply any particular legal
doctrine. However, she most likely intended to rely on the doctrine of
adjudicatory efficiency, under which an administrative judge may dismiss an
appeal that raises claims raised in an earlier appeal after the initial decision in the
earlier appeal has been issued, but before the full Board has acted on the
appellant’s petition for review. Zgonc v. Department of Defense , 103 M.S.P.R.
666, ¶ 6 (2006), aff’d per curiam , 230 F. App’x 967 (Fed. Cir. 2007).
We agree with the administrative judge’s decision not to consider these
claims on the merits. However, we modify the initial decision to find that the
appellant’s VEOA claims should now be dismissed based on the doctrine of res
judicata. Under that doctrine, a valid final judgment on the merits of an action
bars a second action involving the same parties or their privies based on the same
cause of action. Zgonc, 103 M.S.P.R. 666, ¶ 8. The doctrine precludes the
parties from relitigating issues that were, or could have been, raised in the prior
action and it applies when (1) the prior decision was rendered by a forum with
competent jurisdiction; (2) the prior decision was a final decision on the merits;5
and (3) the same cause of action and the same parties or their privies were
involved in both cases.
After the remand initial decision was issued in the instant appeal, the Board
denied the appellant’s petition for review of the remand initial decision in the
0292 Appeal, and the Federal Circuit affirmed the Board’s decision. Williams,
2023 WL 3373578; 0292-B-1 Appeal , Final Order, ¶ 1. The remand initial
decision in the 0292 Appeal, which denied corrective action on the same VEOA
claims the appellant sought to raise here, is now final. 0292-B-1 Appeal, Remand
Initial Decision at 12-14, 19; see 5 C.F.R. § 1201.113(b) (providing that an initial
decision becomes final when the Board issues its last decision denying a petition
for review). The prior appeal involved the same parties and the Board had
jurisdiction over the claims. 0292-I-1 Appeal, Remand Order, ¶¶ 9-15 (Aug. 12,
2016). So, the requirements of res judicata are met. Accordingly, we decline to
grant review based on the appellant’s claims that the agency should have rated
him among the Best Qualified due to his service -connected disability, denied him
a right to compete by failing to make a selection from the certificate consisting of
veterans, failed to use pass-over procedures in hiring a nonveteran over him, had
no legitimate reason to cancel the “veteran only” certificate of eligibles, and
failed to follow EHA procedures. RPFR File, Tab 1 at 4-5, 12-16. Instead, we
dismiss these claims.
The administrative judge correctly found that the appellant did not establish that
his uniformed service was a motivating or substantial factor in his nonselection.
The administrative judge found that the appellant’s remaining claims did
not evidence that his military service was a motivating factor in the nonselection.
RID at 5-6. The appellant appeared to argue below and on review that the
agency’s decision to cancel the certificate of eligibles and use the EHA
discriminated against veterans or had a disparate impact on veterans. RF, Tab 22
at 4, 6; RPFR File, Tab 1 at 5. The administrative judge found that a disparate
impact claim is not cognizable under USERRA, but even considering it as6
circumstantial evidence of intentional discrimination, the appellant did not
establish motivating factor, because the agency used the EHA process to fill the
vacancies with both veteran and nonveteran applicants. RID at 5 -6.
In a USERRA discrimination claim, an appellant “bear[s] the initial
burden” of proving that his “military service was a ‘substantial or motivating
factor’” in the agency’s action. Sheehan v. Department of the Navy , 240 F.3d
1009, 1013 (Fed. Cir. 2001) (citation omitted). Military service is a substantial or
motivating factor in an employment decision “if the employer ‘relied on, took
into account, considered, or conditioned its decision’ on the employee’s military-
related absence or obligation.” See Erickson v. U.S. Postal Service , 571 F.3d
1364, 1368 (Fed. Cir. 2009) (citation omitted). The appellant may rely on “direct
or circumstantial evidence.” Sheehan, 240 F.3d at 1014 (citations omitted).
Circumstantial evidence may include “proximity in time between the employee’s
military activity and the adverse employment action, inconsistencies between the
proffered reason and other actions of the employer, an employer’s expressed
hostility towards members protected by the statute together with knowledge of the
employee’s military activity, and disparate treatment of certain employees
compared to other employees with similar work records or offenses.” Id. “In
determining whether the employee has proven that his protected status was part of
the agency’s motivation for its conduct, all record evidence may be considered,
including the agency’s explanation for the actions taken.” Id.
The first factor is “proximity in time between the employee’s military
activity and the adverse employment action.” Sheehan, 240 F.3d at 1014. As the
administrative judge noted, the record reflects neither that the appellant’s uniform
service was recent nor even when it occurred. RID at 2. The appellant has not
clarified on review when he last performed military service. We therefore agree
with the administrative judge that the first factor does not support the inference of
discriminatory motivation in violation of USERRA. See, e.g., Jones v.
Department of Health and Human Services , 718 F. App’x 958, 961 (Fed. Cir.7
2017) (finding 47 years too remote to raise an inference of discriminatory
motive).2
The second factor looks at “inconsistencies between the proffered reason
and other actions of the employer.” Sheehan, 240 F.3d at 1014. Here, the
administrative judge determined the agency decided not to select any candidate
from the referred candidates and instead filled the vacancies using the EHA
program. RID at 3; IAF, Tab 7 at 66. The Board previously found that the use of
the EHA did not violate VEOA because appointments could be made under the
EHA program without regard to veterans’ preference. 0292-B-1 Appeal, Final
Order, ¶¶ 13, 16-17 (citing 5 U.S.C. § 3304(a)(3) (permitting agencies to appoint
without regard to veterans’ preference requirements when the Office of Personnel
Management has determined there is a “severe shortage” of candidates” . . .
or . . . a critical hiring need”); 10 U.S.C. § 1705(f) (permitting the Secretary of
Defense to hire under 5 U.S.C. § 3304 based on “a shortage of candidates or . . . a
critical hiring need” )). This finding is not the same as finding the agency’s
justification was valid in the USERRA context. So, we consider the agency’s
brief explanation in the context of the Sheehan factors.
The administrative judge credited the selecting official in finding that the
agency made several selections using the EHA process. RID at 3; RF, Tab 12
at 13. The agency did not call any witnesses to testify at the hearing in the
instant appeal. RF, Tab 20 at 2. Although the agency presented witnesses at the
hearing in the appellant’s VEOA Appeal, a different administrative judge heard
that testimony. Assessment of the probative value of hearsay evidence
necessarily depends on the circumstances of each case. Borninkhof v. Department
of Justice, 5 M.S.P.R. 77, 83 -87 (1981). The following factors affect the weight
to be accorded to hearsay evidence: (1) the availability of persons with firsthand
knowledge to testify at the hearing; (2) whether the statements of the out -of-court
2 The Board can rely on unpublished Federal Circuit decisions that it finds persuasive,
as we do here. Mauldin v. U.S. Postal Service , 115 M.S.P.R. 513, ¶ 12 (2011).8
declarants were signed or in affidavit form, and whether anyone witnessed the
signing; (3) the agency’s explanation for failing to obtain signed or sworn
statements; (4) whether declarants were disinterested witnesses to the events, and
whether the statements were routinely made; (5) consistency of declarants’
accounts with other information in the case, internal consistency, and their
consistency with each other; (6) whether corroboration for statements can
otherwise be found in the agency record; (7) the absence of contradictory
evidence; (8) credibility of declarant when she made the statement attributed to
her. Id. at 87.
Although the administrative judge here did not specifically identify the
record evidence in addressing the agency’s use of its EHA, it is nonetheless
evident that she relied on an affidavit submitted by the hiring official. RID at 3;
IAF, Tab 7 at 66. Further, although the administrative judge did not identify the
Borninkhof factors in assessing the weight to be accorded this declaration,
she clearly considered them. For example, although the hiring official did not
testify at the hearing in the instant appeal, the administrative judge found her
declaration consistent with, supported by, and uncontradicted by the record. RID
at 5; IAF, Tab 7 at 65, 76-83. The hiring official’s declaration, which is sworn
under penalty of perjury, is also consistent with her testimony during the hearing
in the 0292 Appeal. 0292 RF, Tab 9, HCD, Track 1 at 00:55-1:29 (testimony of
the hiring official).
The appellant challenges the hiring official’s credibility by arguing that her
declaration falsely stated the agency decided to use the EHA on October 6, 2015,
when agency evidence showed they used EHA beginning in June 2015.
RPFR File, Tab 1 at 7; RF, Tab 22 at 11-12; IAF, Tab 7 at 65-66. He reargues
that this amounts to “direct evidence of intentional discriminatory motive.”
RPFR File, Tab 1 at 13; RF, Tab 22 at 11-12. Contrary to the appellant’s
assertion on review, the hiring official did not state that in October 2015 the
agency decided to use the EHA to appoint to the position. Instead, she declared9
that the agency decided in October 2015 not to select any of candidates referred
under job announcement number EA51102-12-1460254LZ1221318D to fill the
specific vacancy announcement at issue. IAF, Tab 7 at 66. During her testimony
on the 0292 Appeal, she explained that the agency did not interview or hire
anyone from the referral list because it recognized the names from prior
certificates, and had either interviewed the candidates in connection with those
certificates or determined they were not qualified for the position. 0292 RF, Tab
9, HCD, Track 1 at 00:59, 01:22 (testimony of the hiring official).
The undisputed evidence shows that the agency authorized use of the EHA
process in March 2015. IAF, Tab 7 at 76-83. The record further shows that the
agency began interviews using the EHA process to fill Contract Specialist
positions in July 2015. Id. at 65. Although the agency has not identified which
vacancy announcement each EHA selectee filled, these facts do not contradict the
hiring official’s statement. Id. at 65-66. Moreover, between September 2015 and
July 2016, the agency offered 10 veterans Contract Specialist positions with the
intention of appointing them under the EHA. Id.; 0292 RF, Tab 9, HCD, Track 1
at 01:01, 01:26 (testimony of the hiring official). We conclude that the
administrative judge gave the hiring official’s statement appropriate weight. We
discern no basis to disturb the administrative judge’s determination that the
agency offered consistent explanations for the appellant’s nonselection. RID at 5.
The appellant also argued below, and reasserts on review, that the agency’s
decision to cancel the certificate of eligibles and use the EHA had a disparate
impact on veterans. RF, Tab 22 at 4, 6; RPFR File, Tab 1 at 5. The Board has
held that USERRA does not provide for a claim under a disparate impact theory
because intent is a required element of proof to establish discrimination under
USERRA. Harellson v. U.S. Postal Service , 115 M.S.P.R. 378, ¶¶ 12-19 (2011).
But a known disparate impact of an agency policy or practice may be some
evidence of discriminatory intent. Id., ¶ 21. Along these lines, the appellant
observes that the hiring certifications for job announcement number EA51102-12-10
1460254LZ1221318D included only veterans, but the agency ultimately hired
both veterans and nonveterans. RPFR File, Tab 1 at 5-8; e.g., IAF,
Tab 7 at 67-68.
Had the agency used the original certificate of Best Qualified candidates,
any selectee from that certificate would have been a veteran. IAF,
Tab 7 at 67-68. However, the appellant has not alleged, nor provided any
evidence showing, that the agency knew that its use of the EHA would result in
the hiring of nonveterans. The appellant tries to address this issue by suggesting
that, at the time the agency decided to use the EHA, it knew that all the
candidates on the first certificate were veterans. PFR File, Tab 1 at 10-11, 14.
But that is not the same as proceeding forward with the EHA process despite
knowing that it would exclude veterans. See Harellson, 115 M.S.P.R. 378, ¶ 20
n.5 (explaining that the agency must know of the disparate impact of the policy
and choose to go forward with it anyway, thus providing evidence of intent and
not merely a disparity in effect) . Accordingly, we decline to read any
discriminatory intent into the agency’s decision. Because the administrative
judge’s analysis did not consider the evidence of disparate impact as possible
evidence of discriminatory intent, we modify the initial decision to do so on
review. Nonetheless, we agree with her conclusion that the second Sheehan
factor does not support the appellant’s claims. RID at 5.
The third Sheehan factor is the “expressed hostility towards members
protected by the statute together with knowledge of the employee’s military
activity.” 240 F.3d at 1014. The administrative judge found that the agency
expressed no hostility toward those having performed military service. RID at 5.
The appellant has not disputed this finding. The third factor thus does not
support the appellant’s claims.
The fourth factor indicating discriminatory motivation is the “disparate
treatment” of similarly situated applicants. See Sheehan, 240 F.3d at 1014. The
administrative judge found no evidence that the qualifications of veterans and11
non-veterans were assessed differently. RID at 5-6; RF, Tab 7 at 65-66. The
appellant does not challenge this conclusion, but instead argues that those who
applied under job announcement number EA51102-12-1460254LZ1221318D were
not interviewed. RPFR File, Tab 1 at 8, 16. As noted above, the agency selected
both veterans and nonveterans for Contract Specialist positions. IAF,
Tab 7 at 65. It also interviewed both veterans and nonveterans candidates when
hiring using its EHA authority. Id. The appellant’s arguments on review do not
suggest any discriminatory animus. Accordingly, we agree with the
administrative judge that the appellant did not prove that his nonselection was
motivated by his military service. RID at 5-6.
We decline to consider the appellant’s new argument.
The appellant argues for the first time on review that the agency
preselected candidates for the position instead of using its EHA. RPFR File,
Tab 1 at 7. The Board generally will not consider an argument raised for the first
time in a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence. Clay v.
Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016); Banks v. Department of
the Air Force, 4 M.S.P.R. 268, 271 (1980); 5 C.F.R. § 1201.115(d). Here, the
appellant has not explained why this argument could not have been raised before
the administrative judge, and we need not consider it. In any event, the appellant
provides no explanation for how the alleged preselection related to his military
service. Preselection can give rise to a USERRA claim when coupled to unlawful
discrimination based on an individual’s current or past military service. Beck v.
Department of Navy , 997 F.3d 1171, 1187-88 (Fed. Cir. 2021). Preselection
alone, however, does not violate USERRA. Id. at 1188. As discussed above,
we agree with the administrative judge that the appellant did not prove that his
nonselection or the agency’s use of the EHA program was motivated by
antimilitary animus. Thus, the argument provides no basis to grant the
appellant’s petition for review. 12
Accordingly, we affirm the initial decision as modified above.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.13
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 on14
race, 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) or15
other protected activities listed in 5 U.S.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. 16
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.17 | Williams_EricAT-4324-16-0662-B-1__Final_Order.pdf | 2024-05-16 | ERIC WILLIAMS v. DEPARTMENT OF THE NAVY, MSPB Docket No. AT-4324-16-0662-B-1, May 16, 2024 | AT-4324-16-0662-B-1 | NP |
1,445 | https://www.mspb.gov/decisions/nonprecedential/Smith_James_D_CH-1221-18-0276-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES DARRYL SMITH,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-1221-18-0276-W-1
DATE: May 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jonay McCall , Saint Louis, Missouri, for the appellant.
Christine Beam , Esquire, Saint 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).
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. Except as expressly MODIFIED to
conclude that the appellant has now demonstrated that he exhausted his
administrative remedies with the Office of Special Counsel (OSC) as to several
alleged disclosures and personnel actions, and to supplement the finding that the
appellant failed to make a nonfrivolous allegation that he made a protected
disclosure, we AFFIRM the initial decision.
BACKGROUND
Effective July 10, 2016, the appellant was promoted from a WG-4 Food
Service Worker position to a WG-6 Motor Vehicle Operator position with the
agency. Initial Appeal File (IAF), Tab 7 at 11. The agency proposed the
appellant’s removal on November 1, 2017, during the training period for his new
position. Id. at 12-14. The parties executed a settlement agreement on
December 1, 2017, in which the agency agreed not to process the removal and to
instead reassign the appellant to a WG-4 Food Service Worker position, effective
December 10, 2017. Id. at 17-19.
On March 19, 2018, the appellant filed the instant Board appeal.
IAF, Tab 1. Attached to the appeal, the appellant included a document entitled
“Timeline of Prohibited Personnel Practices,” in which he appeared to complain
about a performance appraisal and a proposed removal and referenced a number
3
of emails he sent to various individuals. Id. at 6-7. The appellant also attached a
close-out letter from OSC dated January 25, 2018, notifying him that OSC had
terminated its inquiry into his allegations and advising him of his right to file an
appeal with the Board. Id. at 5.
The administrative judge issued an order, informing the appellant of the
standard for establishing jurisdiction over an IRA appeal and directing him to file
a statement detailing the specific elements of his claim, including the following:
a list of each protected disclosure that he was claiming; the dates on which he
made the disclosures or engaged in the activities; the individuals to whom he
made the disclosures; an explanation of why his belief in the truth of the
disclosures was reasonable; the actions the agency took or failed to take, or
threatened to take or fail to take, because of the disclosure; why he believed that
each disclosure was a contributing factor in a claimed personnel action; and the
date of his complaint to OSC, and when, if at all, he was notified by OSC that it
was terminating its investigation into this complaint. IAF, Tab 3 at 7-8.
The appellant did not respond to the order. The agency filed a motion
requesting that its response deadline be held in abeyance pending resolution of
the jurisdictional question, to which the appellant did not object. IAF, Tab 5
at 4-6. After the extended jurisdictional response deadline passed, the agency
moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 7. The appellant
again failed to respond. The administrative judge subsequently issued an initial
decision dismissing the appeal for lack of jurisdiction. IAF, Tab 8, Initial
Decision (ID). She found that she was unable to discern whether the appellant
had exhausted his administrative remedies before OSC, ID at 5-6, but that, based
on the provided record, the appellant failed to make a nonfrivolous allegation that
he made a protected disclosure, ID at 6-8.
The appellant has filed a petition for review challenging the initial decision
and has submitted additional documentary evidence. Petition for Review (PFR)
4
File, Tab 1. The agency has filed a response in opposition to the petition for
review, and the appellant has not filed a reply. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has provided evidence demonstrating that he has exhausted his
administrative remedies with OSC.
To establish jurisdiction over an IRA appeal, an appellant must show that
he exhausted his administrative remedies before OSC and make nonfrivolous
allegations of the following: (1) he made a protected disclosure described under
5 U.S.C. § 2302(b)(8) or engaged in protected activity as specified in 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity
was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a).2 5 U.S.C. §§ 1214(a)(3),
1221; Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016).
To prove exhaustion of his administrative remedies before OSC, an appellant
must show that OSC has notified him that it terminated its investigation and no
more than 60 days have elapsed since such notification was provided to him.3
5 U.S.C. § 1214(a)(3)(A); see 5 C.F.R. § 1209.5(a).
On review, the appellant challenges the administrative judge’s finding that
the Board lacks jurisdiction over his appeal. PFR File, Tab 1 at 3-6. To support
this claim, the appellant submits a number of documents predating his initial
Board appeal, purportedly showing that he exhausted his administrative remedies
before OSC and asserts that he “thought the same documents [he] sent to OSC
were contained in [his] initial e-appeal.” Id. at 3-5. The documents that the
2 During the pendency of this appeal, the National Defense Authorization Act for Fiscal
Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on
December 12, 2017. Section 1097 of the NDAA amended various provisions of title
5 of the U.S. Code. Our decision to affirm the initial decision would be the same under
both pre- and post-NDAA law.
3 Alternatively, an appellant can also show that 120 days have elapsed since he sought
corrective action from OSC, and he has not been notified by OSC that it would seek
corrective action on his behalf. 5 U.S.C. § 1214(a)(3)(B).
5
appellant has submitted include copies of emails he sent to a number of agency
officials, including former Department of Veterans Affairs Secretaries McDonald
and Shulkin, the Chief of the Health Administration Service, and his former
supervisor, id. at 7-9, 11, 16-20, a copy of a letter sent by a union official
regarding the appellant’s November 2017 proposed removal, id. at 12,
a memorandum memorializing the appellant’s change in work duties due to
driving safety issues,4 id. at 21, and a number of driving certifications and other
documents related to the Motor Vehicle Operator position, id. at 22-26. The
appellant also resubmits his OSC close-out letter and the “Timeline of Prohibited
Personnel Practices” that he submitted below. Id. at 10, 14-15.
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
newly submitted evidence, and we find that the appellant has not shown that it is
new. 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). All of the evidence predates the initial
decision, and the appellant does not assert that any of the documents were first
obtained after the initial decision was issued. See Avansino, 3 M.S.P.R. at 214.
Although the appellant appears to assert that he was unaware that the documents
were not included with his initial appeal, as noted above, the administrative
judge’s order explicitly informing the appellant of what he needed to provide in
order to meet his jurisdictional burden was issued after the appellant submitted
his initial appeal. ID at 6-7; IAF, Tab 3 at 7-8. Despite the administrative
4 Effective May 24, 2017, the agency reassigned the appellant to duties in the Health
Administration Services front office, pending a fact-finding investigation into safety
issues involving his duties as a Motor Vehicle Operator. PFR File, Tab 1 at 21.
6
judge’s specific instructions, the appellant failed to respond to the jurisdictional
order or to provide any additional filings.
Nevertheless, because the issue of jurisdiction is always before the Board
and the Board will consider evidence (even when it is not new and material) when
it goes to the question of jurisdiction (e.g., whether the appellant has
demonstrated that he exhausted his administrative remedies with OSC),
see, e.g, Boechler v. Department of the Interior , 109 M.S.P.R. 542, ¶ 10 (2008),
aff’d, 328 F. App’x 660 (Fed. Cir. 2009), we will now consider it.
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 the email to former Secretary McDonald in October 2016, the appellant
expressed dissatisfaction with his two most recent performance appraisals and
with how agency managers generally evaluate employees. PFR File, Tab 1
at 16-18. In the emails to his former supervisor in December 2016, the appellant
expressed discontent with the training style of his “preceptor,” who appears to be
one of the people who oversaw his training in the Motor Vehicle Operator
position. Id. at 7-9; IAF, Tab 7 at 12-13. In the email to the Chief of the Health
Administration Service in February 2017, the appellant asked whether there had
been any changes to “policy, day to day operations,” or standard operating
procedures. PFR File, Tab 1 at 11. In the email to Secretary Shulkin in
April 2017, the appellant defended his driving record and expressed frustration
7
with his reassignment from the Motor Vehicle Operator position to the Food
Service Worker position. Id. at 19-20. The appellant also referenced his prior
email to Secretary McDonald and expressed his belief that his reassignment was
“retaliation” for the prior email. Id. at 20.
Based on our review of the additional documentary evidence, we conclude
that the appellant’s evidence shows that he provided OSC with information
regarding these purported disclosures sufficient for it to pursue an investigation.
Moreover, the appellant alleged in documentation that he contends he provided to
OSC that the agency changed his duties in May 2017, and proposed his removal
in November 2017, in retaliation for his disclosures. Thus, we find that he has
met the exhaustion requirement as to these alleged disclosures and personnel
actions.
The appellant has not shown that any of his purported disclosures were protected.
Even after considering the additional evidence provided by the appellant,
however, we agree with the administrative judge’s conclusion that the appellant
failed to make a nonfrivolous allegation that any of his communications were
protected disclosures. ID at 7-8. A protected whistleblowing disclosure is a
disclosure of information that the appellant reasonably believes evidences any
violation of any law, rule, or regulation, gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific danger to public health
or safety. 5 U.S.C. § 2302(b)(8); Bradley v. Department of Homeland Security ,
123 M.S.P.R. 547, ¶ 7 (2016). At the jurisdictional stage, the appellant only is
burdened with making a nonfrivolous allegation that he reasonably believed that
his disclosure evidenced one of these circumstances. Bradley, 123 M.S.P.R. 547,
¶ 7. 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 reasonably conclude that the disclosure evidenced one of the
circumstances described in 5 U.S.C. § 2302(b)(8). Id. Vague, conclusory,
8
unsupported, and pro forma allegations of alleged wrongdoing do not meet the
nonfrivolous pleading standard needed to establish the Board’s jurisdiction.
El v. Department of Commerce , 123 M.S.P.R. 76, ¶ 6 (2015), aff’d, 663 F. App’x
921 (Fed. Cir. 2016).
Here, the appellant has not made a nonfrivolous allegation that he
reasonably believed he disclosed wrongdoing by any agency official that falls
within any of the categories in 5 U.S.C. § 2302(b)(8). See Mc Corcle v.
Department of Agriculture , 98 M.S.P.R. 363, ¶ 21 (2005) (noting that the Board
requires an appellant to provide more than vague and conclusory allegations of
wrongdoing by agency officials). As described above, in the October 2016 email
to former Secretary McDonald, the appellant expressed dissatisfaction with his
two most recent performance appraisals and with how agency managers generally
evaluate employees. PFR File, Tab 1 at 16-18. These communications reflect the
appellant’s own personal complaints about how he was treated by the agency, as
well as his disagreements with the agency’s performance appraisal process and
with his supervisor’s assessment of his performance during his training period.
Such disagreement falls short of a nonfrivolous allegation of a protected
disclosure. See Bradley, 123 M.S.P.R. 547, ¶ 11 (finding that an employee’s
disclosure regarding an alleged difference of opinion concerning a policy was not
a nonfrivolous allegation of a protected disclosure). Likewise, the appellant’s
December 2016 emails simply expressed frustration with one of the people who
oversaw his training in the Motor Vehicle Operator position. PFR File, Tab 1
at 7-9. The appellant did not make any allegations in the emails that could be
construed as violations of law, rule, or regulation nor did he pinpoint any conduct
rising to the level of abuse of authority.5
5 In the February 2017 email to the Chief of the Health Administration Service, the
appellant asked a question regarding changes to “policy, day to day operations,” or
standard operating procedures, and did not disclose any information. PFR File, Tab 1
at 11.
9
In the April 2017 email to Secretary Shulkin, the appellant defended his
driving record and expressed frustration that he was being asked to give up his
promotion and return to the Food Service Worker position. PFR File, Tab 1
at 19-20. He referenced his October 2016 email to then-Secretary McDonald,
which he had also copied to Shulkin, and expressed his belief that the pending
reassignment was “retaliation” for the prior email. Id.
The appellant appears to be alleging that his April 2017 email disclosed
retaliation, which would be a disclosure of a violation of law. To meet his
burden, the appellant would have to make a nonfrivolous allegation that he
reasonably believed management in the Motor Vehicle Operator position was
retaliating against him because of the October 2016 email to McDonald. In that
email, the appellant had expressed displeasure with two performance appraisals
he had received as a Food Service Worker and made critical observations
regarding the appraisal process. The appellant stated in the April 2017 email that
the managers in the two services had worked together for “decades,” but he does
not explain how any of the managers would have known about the prior email to
McDonald. PFR File, Tab 1 at 19-20. Under the circumstances, we conclude that
the appellant’s contention that the threatened reassignment from the Motor
Vehicle Operator position was retaliatory was based largely on speculation; as
such, he has failed to make a nonfrivolous allegation that he reasonably believed
his April 2017 email disclosed retaliation.6
Accordingly, we discern no error in the administrative judge’s finding that
the appellant did not make a nonfrivolous allegation that his disclosures were
protected under 5 U.S.C. § 2302(b)(8). ID at 7; 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,
6 The remaining documents that the appellant submitted, which memorialized the
proposed removal, change in work duties, and identified his driving certifications, do
not address any potential protected disclosures. PFR File, Tab 1 at 12-13, 21-26.
10
drew appropriate inferences, and made reasoned conclusions); Broughton v.
Department of Health & Human Services , 33 M.S.P.R. 357, 359 (1987) (same).
NOTICE OF APPEAL RIGHTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
12
race, 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
13
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
14
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. | Smith_James_D_CH-1221-18-0276-W-1__Final_Order.pdf | 2024-05-16 | JAMES DARRYL SMITH v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-18-0276-W-1, May 16, 2024 | CH-1221-18-0276-W-1 | NP |
1,446 | https://www.mspb.gov/decisions/nonprecedential/Mcknight_Terria_A_SF-315H-23-0133-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TERRIA A. MCKNIGHT,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-315H-23-0133-I-1
DATE: May 16, 2024
THIS ORDER IS NONPRECEDENTIAL1
Terria A. Mcknight , Washington, D.C., pro se.
Camille D. Stroughter , Esquire, Oakland, California, 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 probationary termination appeal for lack of jurisdiction . For the
reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision , and REMAND the case to the Western 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 following facts are undisputed. The agency terminated the appellant
from her competitive-service position as a Contract Specialist, GS–07, during her
probationary period based, at least in part, on preappointment reasons (alleged
false certification on Optional Form 306, Declaration for Federal Employment).
Initial Appeal File (IAF), Tab 8 at 20, 24-25, 32, 36-37. Before her termination,
she received a notice of proposed termination on December 9, 2022. Id. at 32-33.
The proposal invited her to submit a reply to the Executive Director, Human
Resources Operations Office (HR Director), who stated that, upon giving it her
full and impartial consideration, she would issue a written decision. Id. at 32.
On the same day, the appellant emailed her response to the HR Director. Id.
at 27-28. On December 28, 2022, the agency issued a decision, signed by the HR
Director, terminating her effective January 5, 2023. Id. at 24-25.
¶3The appellant filed an appeal with the Board mainly arguing the merits of
the action and asserting that the Board had jurisdiction over her appeal under
5 C.F.R. §§ 315.805-.806. IAF, Tab 1 at 5, Tab 5 at 4-8. She requested a
hearing. IAF, Tab 1 at 2. Among other things, she questioned why the notice of
termination did not include the reason for termination or indicate whether her
reply had been considered or evaluated. IAF, Tab 1 at 5, Tab 5 at 4.
¶4The administrative judge dismissed the appeal for lack of jurisdiction
without holding the requested hearing. IAF, Tab 10, Initial Decision (ID) at 1.
While acknowledging that the termination decision letter did not specifically
indicate that the agency considered or evaluated the appellant’s reply, he
concluded that her claims that her reply had not been considered were “pro forma,
conclusory allegations short of the nonfrivolous allegation threshold.”
ID at 14-15. He ultimately determined that the appellant received all the
procedural protections set forth under 5 C.F.R. § 315.805, including that her reply
had been provided to the decision maker and given bona fide consideration. Id.
The appellant has filed a petition for review, mostly asserting the same arguments2
she did before the administrative judge. Petition for Review (PFR) File, Tab 1.
The agency has responded, and the appellant has replied. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
Remand is appropriate because the appellant has nonfrivolously alleged that the
agency did not consider her reply to the notice of proposed termination.
¶5A probationary employee with less than 1 year of current continuous service
has no statutory right to appeal her termination. See 5 U.S.C. § 7511(a); Rivera
v. Department of the Navy , 114 M.S.P.R. 52, ¶ 4 (2010). However, as relevant
here, 5 C.F.R. § 315.806(c) creates a regulatory right of appeal to the Board when
a probationary employee alleges that an agency terminated her for reasons, in
whole or in part, arising before appointment without complying with the
procedural requirements of 5 C.F.R. § 315.805. Rivera, 114 M.S.P.R. 52, ¶ 4.2
Pursuant to 5 C.F.R. § 315.805, a probationary employee is entitled to the
following: (a) advance written notice of the reasons for the proposed action; (b) a
reasonable time to file a written answer and supporting affidavits, which the
agency must consider in reaching its decision; and (c) written notification of the
agency’s final decision at the earliest practicable date, but no later than at the
time the action will become effective, informing the employee of the reasons for
the action and appeal rights. The Board has held that, to be entitled to a
jurisdictional hearing in an appeal by a probationary employee who has been
terminated for alleged preappointment reasons, the appellant must make a
nonfrivolous allegation that the agency’s procedures were not in accordance with
5 C.F.R. § 315.805. Graham v. Department of Justice , 50 M.S.P.R. 285, 288
(1991); see also Walker v. Department of the Army , 119 M.S.P.R. 391, ¶ 6 (2013)
(holding that, if an appellant makes a nonfrivolous allegation of jurisdiction, but a
determination cannot be made based on the documentary evidence, the Board
2 We agree with the administrative judge that the appellant has not alleged that her
termination was based on partisan political reasons or marital status. ID at 14; see
5 C.F.R. § 315.806(b). 3
should hold an evidentiary hearing to resolve the jurisdictional question). It is
undisputed that the agency terminated the appellant, at least in part, based on
preappointment conditions. ID at 14; IAF, Tab 8 at 32. For the following
reasons, we find that the appellant has nonfrivolously alleged facts entitling her
to a jurisdictional hearing over her probationary termination pursuant to 5 C.F.R.
§ 315.806.
¶6In her petition for review, the appellant reasserts her concern that the final
termination letter does not indicate that the agency considered her reply. PFR
File, Tab 1 at 4, 7-8; IAF, Tab 1 at 5, Tab 5 at 4-6. Indeed, the termination letter
neither mentions the appellant’s reply nor indicates that the agency considered it.
IAF, Tab 8 at 24-25. The December 9, 2022 notice of proposed termination
instructed the appellant to submit her reply, if any, directly to the HR Director,
who, as the designated deciding official, would give it her full and impartial
consideration before making a written decision. Id. at 32. On the same day, the
appellant emailed her reply to the HR Director. Id. at 27-28. It appears that the
HR Director forwarded the appellant’s email on December 20, 2022, at 11:32
a.m., to “Debra D.” Id. at 27. Shortly afterwards, at 12:06 p.m., Debra D.,
Acting Executive Assistant to the HR Director, sent an email to a few agency
personnel, including the HR Director, another person, and a “Deborah I.,” stating
that “Debbie has reviewed this on [the HR Director’s] behalf. Please proceed
with the termination next week.” Id. On December 28, 2022, the agency issued a
decision terminating the appellant. Id. at 24-25. The email thread indicates that
the HR Director did not review the appellant’s reply but that “Debbie” reviewed
it on her behalf. However, it is not clear whether “Debbie” means Debra D.,
Deborah I., or some other individual, or what role that person had at the agency.
Nor is it established whether the reply was properly considered by an agency
official with authority to render a decision on the appellant’s termination. We
find it necessary to remand this appeal for the administrative judge to determine
these issues. See Walker, 119 M.S.P.R. 391, ¶ 12 (remanding to determine4
whether the deciding official with proper authority to effect the termination
without subsequent ratification did so before the appellant completed 1 year of
current continuous service); Vandewall v. Department of Transportation ,
52 M.S.P.R. 150, 155 (1991) (remanding to determine whether the appellant had
been terminated during her probationary period, to include finding whether the
deciding official had the authority to terminate the appellant); Ward v.
Department of the Navy , 44 M.S.P.R. 493, 499 (1990) (agreeing that 5 C.F.R.
§ 315.805(b) ordinarily requires that the agency give bona fide consideration to a
probationary employee’s response to a notice of proposed discharge). The agency
asserts that it fulfilled the requirements of 5 C.F.R. § 315.805. PFR File, Tab 3
at 4-5. Yet, the evidence in the record is not sufficiently detailed or corroborative
of the agency’s bare assertions, and, in any event, we will not weigh evidence or
resolve conflicting assertions at this stage. See Milanak v. Department of
Transportation, 90 M.S.P.R. 219, ¶ 10 (2001).
¶7Therefore, we find that the appellant is entitled to a jurisdictional hearing
on remand for the administrative judge to determine if the agency failed to follow
the procedure outlined in section 315.805(b). If he does so find, the Board’s
jurisdiction would be established under section 315.806(c). See Keller v.
Department of the Navy , 69 M.S.P.R. 183, 188 (1996) (holding that the agency’s
failure to follow the procedures set forth at 5 C.F.R. § 315.805 in effecting the
appellant’s termination constitutes grounds for Board review). In an appeal under
section 315.806(c), the merits of the agency’s decision to terminate the
probationer are not before the Board.3 Hope v. Department of the Army ,
108 M.S.P.R. 6, ¶ 7 (2008). Rather, the administrative judge must then
adjudicate whether the appellant can demonstrate by a preponderance of the
evidence that the agency’s failure to follow the procedural requirements of
3 As regards the merits of the appellant’s termination, including her claim of
defamation, the administrative judge correctly determined that the merits of the
termination are not before the Board. ID at 13; PFR File, Tab 1 at 6-7.5
section 315.805 was harmful error. Id., ¶¶ 7-8; Keller, 69 M.S.P.R. at 188-89.
Harmful error cannot be presumed. Hope, 108 M.S.P.R. 6, ¶ 8. If there was
harmful error, then the agency’s action must be set aside. Id., ¶ 7. An agency
commits harmful error only when the record shows that the error was likely to
have caused the agency to reach a conclusion different from the one it would have
reached in the absence or cure of the error. Id., ¶ 8. The burden remains with the
appellant to demonstrate harmful error by preponderant evidence. Id.
The appellant’s remaining arguments are unavailing.
¶8The appellant asserts that the final termination notice did not give reasons
for the termination as required by 5 C.F.R. § 315.805(c). PFR File, Tab 1 at 8;
IAF, Tab 5 at 4. Though the final termination notice did not spell out the reasons
for the termination, it did state that the decision to terminate had been made in
connection with the December 9, 2022 letter, which had given her advance notice
of the proposed termination due to conditions arising before her appointment.
IAF, Tab 8 at 24. The December 9, 2022 letter explained the reasons for the
proposed termination in detail. Id. at 32. We find that the agency sufficiently
informed the appellant of the reasons for termination as required by 5 C.F.R.
§ 315.805(c).
¶9To the extent the appellant is arguing that she is constitutionally entitled to
more due process, PFR File, Tab 1 at 7-9; IAF, Tab 5 at 7, Tab 6 at 18, Tab 9
at 5, her argument is unsuccessful because she is a probationary employee, see
Pope v. Department of the Navy , 62 M.S.P.R. 476, 479 (1994) (holding that the
appellant, as a probationer, was not a public employee who could only be
removed for cause, and thus, her right to pretermination process was not based on
the Constitution; rather, her pretermination procedural rights were based entirely
on 5 C.F.R. § 315.805). Unlike the appellant, who is a probationer with less than
1 year of service, a Federal Government employee who has completed her
probationary period is afforded a number of protections, including, under many
circumstances, the right to appeal adverse actions to the Board. See 5 U.S.C.6
§§ 7511, 7513. Probationary employees, such as the appellant, do not, however,
have the same procedural rights and may appeal to the Board only under very
limited circumstances. See Rivera, 114 M.S.P.R. 52, ¶ 4; 5 C.F.R. § 315.806.
ORDER
¶10For 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.7 | Mcknight_Terria_A_SF-315H-23-0133-I-1__Remand_Order.pdf | 2024-05-16 | TERRIA A. MCKNIGHT v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-315H-23-0133-I-1, May 16, 2024 | SF-315H-23-0133-I-1 | NP |
1,447 | https://www.mspb.gov/decisions/nonprecedential/Ormenaj_Sokol_PH-0752-22-0157-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SOKOL ORMENAJ,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
PH-0752-22-0157-I-1
DATE: May 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sokol Ormenaj , Abdington, Pennsylvania, pro se.
Edward C. Tompsett , Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his chapter 75 demotion and 10-day suspension.2 Generally, we grant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2 Generally, the Board lacks jurisdiction over suspensions of only 10 days; however, the
Board has jurisdiction over reductions in pay and grade. See 5 C.F.R. § 1201.3(a)(1).
When, as here, both actions are part of a unitary penalty arising from the same set of
circumstances, the Board has jurisdiction over both actions. See White v. Government
Printing Office, 108 M.S.P.R. 355, ¶ 3 n.1 (2008 ).
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
The appellant challenges the administrative judge’s conclusion that the
agency proved its four charges, each of which related, in some capacity, to the
appellant’s involvement in his father’s application for Supplemental Security
Income benefits. Petition for Review (PFR) File, Tabs 1, 5; Initial Appeal File
(IAF), Tab 11 at 212-15. We have considered all of the appellant’s arguments in
this regard; however, we find that none provides a basis to disturb the
administrative judge’s findings, which were based, in large part, on credibility
determinations. IAF, Tab 27, Initial Decision (ID) at 8-14; see Purifoy v.
Department of Veterans Affairs , 838 F.3d 1367, 1373 (Fed. Cir. 2016) (explaining
that the Board must give deference to an administrative judge’s demeanor-based
credibility determinations, “[e]ven if demeanor is not explicitly discussed”); see
also Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105 -06 (1997) (finding no
reason to disturb the administrative judge’s findings when she considered the
evidence as a whole, drew appropriate inferences, and made reasoned2
conclusions); Broughton v. Department of Health & Human Services , 33 M.S.P.R.
357, 359 (1987) (same) .
The appellant asserts that the administrative judge improperly limited him
to “very few evidentiary records” and erroneously excluded certain documentary
evidence. PFR File, Tab 1 at 8, 18-19, 23. We find his assertions unavailing.
Here, the administrative judge issued a written summary of the parties’
prehearing conference in which he identified the issues in dispute and ruled on
the parties’ proposed exhibits and witnesses. IAF, Tab 22 at 2-4. The appellant,
who was represented by an attorney before the administrative judge, neither
challenged the accuracy of this summary nor objected to any of the administrative
judge’s rulings; accordingly, he is precluded from doing so on review. See Miller
v. U.S. Postal Service , 117 M.S.P.R. 557, ¶ 7 (2012); Tarpley v. U.S. Postal
Service, 37 M.S.P.R. 579, 581 (1988). In any event, we find that the
documentary evidence identified by the appellant does not provide a basis to
disturb the initial decision.
The appellant argues that the administrative judge improperly permitted an
agency manager, O.A., to testify beyond the scope of his proffered testimony.
PFR File, Tab 1 at 24. He avers that, because he did not expect certain testimony,
he could not properly present a defense. Id. However, the appellant did not
object to the scope of O.A.’s testimony or otherwise indicate that any portion of
his testimony was improper. IAF, Tab 25, Hearing Recording (HR) (testimony of
O.A.). Because the appellant did not object to the testimony of this witness at the
hearing, he waived his right to challenge the testimony on review. See Durr v.
Department of Veterans Affairs , 119 M.S.P.R. 195, ¶ 21 (2013).
The appellant argues that the initial decision erroneously stated that
10 witnesses testified at the hearing, when in fact 11 witnesses testified. PFR
File, Tab 1 at 8; ID at 6. He also asserts that the administrative judge did not
consider the testimony of one of his witnesses, J.S. PFR File, Tab 1 at 8, 26;
IAF, Tab 22 at 3, Tab 24 at 4. The record reflects that, in his initial decision, the3
administrative judge (1) omitted J.S. from a list of witnesses and (2) did not
discuss her testimony. ID at 6. We find, however, that neither of these issues
prejudiced the appellant’s substantive rights. See Panter v. Department of the Air
Force, 22 M.S.P.R. 281, 282 (1984) (explaining that an adjudicatory error that is
not prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision). The administrative judge’s miscounting of the witnesses and his
omission of J.S. from a witness list amounted to administrative
oversight/typographical errors. ID at 6; see Stroud v. Department of Veterans
Affairs, 2022 MSPB 43, ¶ 2 n.1 (indicating that typographical errors that do not
prejudice an appellant’s substantive rights provide no basis for reversal of an
initial decision). Moreover, the administrative judge heard J.S.’s hearing
testimony; the fact that he did not explicitly discuss it in the initial decision does
not mean that he did not consider it. See Marques v. Department of Health &
Human Services , 22 M.S.P.R. 129, 132 (1984) (explaining that an administrative
judge’s failure to mention all of the evidence of record does not mean that the
evidence was not considered), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). In
any event, we have fully considered J.S.’s hearing testimony, which pertained to
the appellant’s character, and find that it does not compel a different outcome.
HR (testimony of J.S.).
The appellant contends that the administrative judge exhibited bias via his
characterization of some of the witness testimony. PFR File, Tab 1 at 26. We
find this unsubstantiated assertion unavailing. See Williams v. U.S. Postal
Service, 87 M.S.P.R. 313, ¶ 12 (2000) (explaining that there is a presumption of
honesty and integrity on the part of administrative judges that can only be
overcome by a substantial showing of personal bias, and the Board
will not infer bias based on an administrative judge’s rulings on issues).
The appellant provides additional documents with his petition for
review, i.e., discovery-related documents and documents pertaining to his
father’s benefits. PFR File, Tab 1 at 32-131. The Board generally will not4
consider evidence submitted for the first time with the petition for review
absent a showing that it was unavailable before the record 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). The appellant has not made such a
showing; indeed, all of the documents predate the initial decision. PFR File,
Tab 1 at 32-131. In any event, the documents are not material to the outcome
of this appeal.3 See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349
(1980) (stating that the Board will not grant a petition for review based on new
evidence absent a showing that it is of sufficient weight to warrant an outcome
different from that of the initial decision). The appellant also pastes a portion
of a document into his reply, i.e., a “Worktrack” document, which he avers
diminishes O.A.’s credibility. PFR File, Tab 5 at 7, 10. Notably, this document
was not admitted into the record by the administrative judge. IAF, Tab 20
at 36-37, Tab 21 at 22, Tab 22 at 4; see Miller, 117 M.S.P.R. 557, ¶ 7. In any
event, this document does not provide a basis to disturb the initial decision. See
Russo, 3 M.S.P.R. at 349.
We have considered all of the appellant’s remaining arguments; however,
we find that none compels a different outcome. Accordingly, we affirm the initial
decision.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
3 To the extent the appellant has filed a motion to supplement the record, PFR File,
Tab 1 at 6, we deny the motion.
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
Systems Protection 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 at6
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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,7
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 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. 115-195,8
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.
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 | Ormenaj_Sokol_PH-0752-22-0157-I-1__Final_Order.pdf | 2024-05-16 | SOKOL ORMENAJ v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. PH-0752-22-0157-I-1, May 16, 2024 | PH-0752-22-0157-I-1 | NP |
1,448 | https://www.mspb.gov/decisions/nonprecedential/Canda_Amelia_S_DC-0752-16-0060-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AMELIA S. CANDA,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DC-0752-16-0060-I-1
DATE: May 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Steven Newman , Esquire, New York, New York, for the appellant.
LaDonna L. Griffith-Lesesne , Esquire, Landover, Maryland, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her removal based on a charge of improper 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 judge’s rulings during either
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
The appellant was employed as a supervisor at one of the agency’s
processing and distribution centers. Initial Appeal File (IAF), Tab 5 at 18, 25. In
September 2014, the agency’s Office of Inspector General (OIG) began an
investigation of an allegation that the appellant and another supervisor were
inflating, falsifying, and manipulating numbers and data using employee login
information. IAF, Tab 9 at 9. The OIG produced a report of investigation (ROI)
as a result of that investigation. IAF, Tabs 9-10. The agency proposed the
appellant’s removal based upon one charge of improper conduct, which contained
five specifications (specifications A-E). IAF, Tab 5 at 25-30. The deciding
official sustained the charge and removed the appellant.2 Id. at 20-23.
The appellant thereafter filed this appeal with the Board, but she did not
raise any affirmative defenses. IAF, Tabs 1, 41. The administrative judge held
the requested hearing. IAF, Tabs 49-50, 52-54, Hearing Compact Disc; Hearing
2 The decision letter does not clearly indicate whether the deciding official sustained
specification C, involving allegations that the appellant threatened an employee with
disciplinary action unless he changed his password to the common password. IAF,
Tab 5 at 20-23, 26. At the hearing, however, the deciding official testified that she did
not sustain “charge C,” apparently referring to this specification. IAF, Tab 52, Hearing
Compact Disc 3 (testimony of the deciding official). 2
Transcript (HT). During the hearing, the agency presented excerpts from the
agency’s 24-hour video surveillance footage to support specifications A, B, and
D. These specifications alleged that the appellant instructed her subordinates to
change the color-code tags on mail, gave her subordinates a common password so
that the mail processing machine would record mail as being processed, and
handed to a subordinate a list of employee login information to enable the
subordinate to inflate the mail count, respectively.3 IAF, Tab 5 at 25-26. During
the hearing, the appellant’s attorney challenged the admissibility of the excerpted
video surveillance footage after it was revealed that the OIG investigator who
conducted the surveillance downloaded and excerpted only those portions of the
footage that were relevant to the investigation. HT-1 at 67-68 (testimony of the
OIG investigator); HT-2 at 93-102 (same). The administrative judge admitted the
excerpted video surveillance footage into the record, based on the OIG
investigator’s testimony regarding its accuracy. HT-2 at 102-03. The
administrative judge issued an initial decision in which he made several
credibility determinations in the agency’s favor, sustained all of the specifications
except for specification C, sustained the improper conduct charge, and affirmed
the removal penalty. IAF, Tab 55, Initial Decision (ID) at 1-35.
The appellant has filed a petition for review, the agency has filed a
response, and the appellant has filed a reply. Petition for Review (PFR) File,
Tabs 1, 5, 8.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant argues on review that the administrative judge erred by
admitting into evidence excerpted portions of the agency’s 24-hour video
surveillance footage. PFR File, Tab 1 at 4, 22-23, Tab 8 at 4-5. She also asserts
that her due process rights were violated because the agency was provided with
3 In specification E, the agency alleged that for each day of the week beginning on
April 13, 2015, the appellant’s work hours were erroneously recorded and inflated in
the time and attendance system. IAF, Tab 5 at 26. 3
the unexcerpted video surveillance footage and such footage “might have led” to
exculpatory evidence and other witnesses. PFR File, Tab 1 at 8, Tab 8 at 5.
We discern no error with the administrative judge’s decision to admit the
excerpted video surveillance footage. See 5 C.F.R. § 1201.41(b)(3) (stating that
administrative judges have the authority to receive relevant evidence). The OIG
investigator testified that she downloaded portions of the agency’s 24-hour video
surveillance footage that she was watching live as the footage was being captured
and recorded. HT-1 at 58, 60-61, 66 (testimony of the OIG investigator). The
OIG investigator further testified that she downloaded only the portions that were
relevant to the ROI, and she did not alter, change, or manipulate any video
surveillance footage. Id. at 68 (testimony of the OIG investigator). We find that
the OIG investigator’s testimony adequately authenticated the excerpted video
surveillance footage. Thus, the administrative judge properly exercised his
discretion by admitting this evidence into the record. See Curtin v. Office of
Personnel Management , 846 F.2d 1373, 1378-79 (Fed Cir. 1988) (citing
Spezzaferro v. Federal Aviation Administration , 807 F.2d 169, 173 (Fed. Cir.
1986)).
We also are not persuaded that a due process violation has occurred.
Procedural due process guarantees are not met if the employee has notice of only
certain charges or portions of the evidence and the deciding official considers
new and material information; therefore, it is constitutionally impermissible to
allow a deciding official to receive additional material information that may
undermine the objectivity required to protect the fairness of the process. Stone v.
Federal Deposit Insurance Corporation , 179 F.3d 1368, 1376 (Fed. Cir. 1999).
Ultimately, the Board’s inquiry is whether the ex parte communication “is so
substantial and so likely to cause prejudice that no employee can fairly be4
required to be subjected to a deprivation of property under such circumstances.”4
Id. at 1377.
In support of her contention that the agency violated her due process rights,
the appellant asserts that the OIG investigator testified that she “offered the
videos” to her managers, but not to her. PFR File, Tab 8 at 6 (citing HT-2 at 97
(testimony of the OIG investigator)). It is not clear whether the proposing or
deciding officials were given or reviewed the unexcerpted portions of the video
surveillance footage. The appellant had the opportunity to clarify whether the
OIG investigator actually provided additional, unexcerpted video surveillance
footage to the agency, but she failed to do so. See Sofio v. Internal Revenue
Service, 7 M.S.P.R. 667, 670 (1981) (holding that the appellant is responsible for
the errors of her chosen representative) . Moreover, the appellant points to no
evidence on review that the proposing or deciding officials considered any
unexcerpted video surveillance footage. Because the appellant had the burden of
proving her affirmative defense by preponderant evidence, we conclude that she
submitted insufficient evidence to establish her due process claim. 5 C.F.R.
§ 1201.56(b)(2)(i)(C); see Hulett v. Department of the Navy , 120 M.S.P.R. 54,
¶¶ 10-11 (2013) (instructing an administrative judge to apprise an appellant of his
burden regarding his affirmative defense of a due process violation).
The initial decision reflects that the administrative judge considered the
relevant evidence and made factual findings and credibility determinations to
support his decision to sustain specifications A, B, D, and E, and to sustain the
improper conduct charge. ID at 1-31. Although not explicitly raised by either
party on review, we discern no error with his findings in this regard. See
4 The U.S. Court of Appeals for the Federal Circuit’s reasoning rests on the decision of
the U.S. Supreme Court in Cleveland Board of Education v. Loudermill , 470 U.S. 532,
538-39, 546-49 (1985), which held that a tenured public employee has a constitutionally
protected property interest in ongoing public employment and that an agency may not
deprive such an employee of his property interest without providing him with due
process of law, including the right to advance notice of the charges against him, an
explanation of the agency’s evidence, and an opportunity to respond.5
Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002) (explaining
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). We further find that
the administrative judge applied the proper legal standard for evaluating the
penalty, and we discern no error with his conclusion that the removal penalty is
within the bounds of reasonableness for the sustained misconduct. ID at 31-35.
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.6
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,7
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 8
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 | Canda_Amelia_S_DC-0752-16-0060-I-1__Final_Order.pdf | 2024-05-16 | AMELIA S. CANDA v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DC-0752-16-0060-I-1, May 16, 2024 | DC-0752-16-0060-I-1 | NP |
1,449 | https://www.mspb.gov/decisions/nonprecedential/Williams_DoaneSF-0752-18-0443-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DOANE WILLIAMS,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
SF-0752-18-0443-I-1
DATE: May 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Daphne Barbee , Esquire, Honolulu, Hawaii, for the appellant.
Jessica Delgado , Fort Gregg Adams, 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
sustained his removal pursuant to 5 U.S.C. chapter 75 for conduct unbecoming a
Federal employee. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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).
On petition for review, the appellant alleges the following: (1) the
administrative judge made erroneous credibility determinations; (2) the
administrative judge made erroneous evidentiary rulings; (3) the agency violated
the principle set forth in Bolling v. Department of the Air Force , 9 M.S.P.R. 335,
339-40 (1981); (4) the agency violated his due process rights; (5) the agency
committed harmful procedural error; (6) the agency discriminated against him on
the basis of his race; (7) the agency retaliated against him for his prior equal
employment opportunity (EEO) activity; (8) the agency failed to show a nexus
between his conduct and the efficiency of the service; and (9) the agency failed to
consider all of the relevant Douglas factors. Petition for Review (PFR) File,
Tab 1 at 14-30, Tab 4 at 4-11.
The appellant’s assertions on review fail to provide a reason to disturb the
administrative judge’s demeanor-based credibility findings or his reasoned
evidentiary rulings. PFR File, Tab 1 at 14-18, 24, Tab 4 at 4-6; Initial Appeal
File, Tab 21 at 3, Tab 41, Initial Decision (ID) at 6, 11 & nn.2-3, 6-8; see
Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002) (holding
that the Board must give deference to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on the observation of
the demeanor of witnesses testifying at a hearing); see also Thomas v. U.S. Postal2
Service, 116 M.S.P.R. 453, ¶ 4 (2011) (explaining that the administrative judge
has broad discretion to regulate the course of the hearing and to exclude evidence
and witnesses that have not been shown to be relevant, material, and
nonrepetitious).
On review, the appellant contends that the agency violated “the principle”
of Bolling; however, the nature of his argument is unclear. PFR File, Tab 1 at 20
(citing Bolling, 9 M.S.P.R. at 339-40). Under Bolling, when an agency relies on
past discipline to support the disciplinary action that is on appeal, the Board will
generally conduct a limited review of the past discipline. Rosenberg v.
Department of Transportation , 105 M.S.P.R. 130, ¶ 33 (2007). However, the
Board has found that Bolling review is appropriate only where the appellant has
actually challenged the validity of his prior discipline on appeal. Id., ¶ 34. Here,
because the record is devoid of any indication that the appellant challenges the
validity of his prior discipline, Bolling is inapposite to his appeal. See id.
The appellant reiterates on review that the agency violated his due process
rights, committed harmful procedural error, discriminated against him on the
basis of his race, and retaliated against him in reprisal for his protected EEO
activity. PFR File, Tab 1 at 21-30. We find that the appellant’s generalized
assertions on review amount to nothing more than mere disagreement with these
conclusions, and we find no basis to disturb these findings. See Crosby v. U.S.
Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the
administrative judge’s findings when the administrative judge considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions).
The appellant’s contention on review that the agency failed to meet the
nexus requirement is similarly unavailing because both specifications of the
charge occurred on agency premises, and one specification undisputedly occurred
while the appellant was on duty. PFR File, Tab 1 at 18-20; see Parker v. U.S.
Postal Service, 819 F.2d 1113, 1116 (Fed. Cir. 1987) (explaining that misconduct3
that occurs on agency premises and involves agency personnel is sufficient to
establish nexus). Thus, we agree with the administrative judge that the agency’s
action promotes the efficiency of the service. ID at 23.
Lastly, in sustaining the agency’s removal action, the administrative judge
considered the record as a whole, found that the deciding official properly
weighed the relevant factors, and agreed that removal for the appellant’s conduct
was reasonable under the circumstances. ID at 24-25. We discern no basis to
disrupt his reasoned findings. See Jefferson v. Veterans Administration ,
6 M.S.P.R. 348, 351-52 (1981) (finding appropriate the appellant’s removal for
two specifications of disrespectful conduct towards supervisors).
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain5
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 6
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Williams_DoaneSF-0752-18-0443-I-1__Final_Order.pdf | 2024-05-15 | DOANE WILLIAMS v. DEPARTMENT OF DEFENSE, MSPB Docket No. SF-0752-18-0443-I-1, May 15, 2024 | SF-0752-18-0443-I-1 | NP |
1,450 | https://www.mspb.gov/decisions/nonprecedential/Jenkins-Smith_Carolyn_L_DC-0752-22-0623-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CAROLYN LANE JENKINS-SMITH,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
DC-0752-22-0623-I-1
DATE: May 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carolyn Lane Jenkins-Smith , Laurel, Maryland, pro se.
Susan M. Andorfer , Esquire, and LerVal M. Elva , Esquire, 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 in this
appeal. After the filing of the petition for review, the agency submitted a
document entitled “Joint Motion to Dismiss with Prejudice.” Petition for Review
File, Tab 4. The motion, which both parties have signed, states that the agency
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
and the appellant “have settled th[e] matter and jointly and voluntarily move to
dismiss the [] appeal with prejudice, including but not limited to [the a]ppellant’s
currently pending [p]etition for [r]eview.” Id. at 4. The filing did not include a
copy of the parties’ settlement agreement.
¶2Finding that withdrawal is appropriate under these circumstances, we
DISMISS the appeal as withdrawn with prejudice to refiling (i.e., the parties
normally may not refile this appeal). This is the final decision of the Merit
Systems Protection Board in this appeal. 5 C.F.R. § 1201.113.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Court of Appeals for the Federal Circuit, which must be 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,3
and your representative receives this decision before you do, then you must file
with 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 4
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Jenkins-Smith_Carolyn_L_DC-0752-22-0623-I-1__Final_Order.pdf | 2024-05-15 | null | DC-0752-22-0623-I-1 | NP |
1,451 | https://www.mspb.gov/decisions/nonprecedential/Peskar_Caroline_R_AT-0752-22-0618-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CAROLINE PESKAR,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency. DOCKET NUMBER
AT-0752-22-0618-I-1
DATE: May 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Caroline Rose Peskar , Pensacola, Florida, pro se.
Monica Moukalif and Daniel P. Miller , Esquire, Atlanta, Georgia, 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 agency’s chapter 75 removal action. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
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, except as expressly MODIFIED to clarify the legal standard applicable
to the appellant’s claim of disability discrimination. 5 C.F.R. § 1201.113(b).
The appellant does not provide a basis to disturb the initial decision.
¶2The appellant challenges the administrative judge’s conclusion that the
agency proved its charge of absence without leave. Petition for Review (PFR)
File, Tab 1 at 4-5. We have considered all of the appellant’s assertions in this
regard; however, we find that they do not provide a basis to disturb the initial
decision. Initial Appeal File (IAF), Tab 19, Initial Decision (ID) at 4-6; see
Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105-06 (1997) (finding no reason
to disturb the administrative judge’s findings when she considered the evidence
as a whole, drew appropriate inferences, and made reasoned conclusions);
Broughton v. Department of Health & Human Services , 33 M.S.P.R. 357, 359
(1987) (same).
¶3The appellant asserts that the administrative judge “heavily favored” the
agency and that the administrative judge should have sanctioned the agency. PFR
File, Tab 1 at 5. To the extent the appellant challenges any of the administrative
judge’s rulings, we find her challenge unavailing. See Tines v. Department of the
Air Force, 56 M.S.P.R. 90, 92 (1992) (explaining that a petition for review must
contain sufficient specificity to enable the Board to ascertain whether there is a
serious evidentiary challenge). In any event, we find that the record is devoid of2
a showing of bias. See Williams v. U.S. Postal Service , 87 M.S.P.R. 313, ¶ 12
(2000) (explaining that there is a presumption of honesty and integrity on the part
of administrative judges that can only be overcome by a substantial showing of
personal bias, and the Board will not infer bias based on an administrative judge’s
rulings on issues). Thus, a different outcome is not warranted.
¶4The appellant provides additional documents with her petition for review, to
include discovery responses and various email correspondence. PFR File, Tab 1
at 9-23. 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 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). In any event, these
documents are not material to the outcome of the appeal. See Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980) (stating that the Board will not grant
a petition for review based on new evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the initial
decision).
We modify the administrative judge’s analysis of the appellant’s disability
discrimination claim.
¶5The appellant does not discernably challenge the administrative judge’s
conclusion that she failed to prove her claim of disability discrimination;2
however, we take this opportunity to clarify the applicable legal standard
therefor.
¶6To prove disability discrimination under the Rehabilitation Act, the
appellant must establish, among other things, that she is an individual with a
disability as that term is defined in the Americans with Disabilities Act and Equal
Employment Opportunity Commission regulations. Pridgen v. Office of
2 The appellant did not identify which theory of disability discrimination she was
raising; however, we surmise that she was alleging disparate treatment disability
discrimination. IAF, Tab 12 at 1-8, Tab 17 at 5. We find, however, that she failed to
prove disability discrimination under any theory.3
Management and Budget , 2022 MSPB 31, ¶ 37. She may prove that she has a
disability by showing that she: (1) has a physical or mental impairment that
substantially limits one or more major life activities; (2) has a record of such
impairment; or (3) is regarded as having such an impairment. 42 U.S.C.
§ 12102(1); Pridgen, 2022 MSPB 31, ¶ 37; 29 C.F.R. § 1630.2(g)(1).
¶7In the initial decision, the administrative judge found that the appellant
failed to prove her claim of disability discrimination because she failed to show
that she is disabled, reasoning that “short-term impairments as existed in this case
do not constitute disabling conditions.” ID at 7. However, under the Americans
with Disabilities Act Amendments Act of 2008, a condition of short duration may
be considered a disability. See 42 U.S.C. § 12102(3)(B); see also 29 C.F.R.
§ 1630.2(j)(1)(ix). However, we find that a different outcome is not warranted
here. Even assuming that the appellant is disabled, she failed to show that
discrimination was at least a motivating factor in the agency’s removal action.3
See Pridgen, 2022 MSPB 31, ¶¶ 22, 42. Thus, although we agree that the
appellant failed to prove her affirmative defense of disability discrimination, we
modify the basis for this conclusion.
¶8Accordingly, we affirm the initial decision as modified.
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
3 Because we so find, we need not decide whether discrimination was a “but-for” cause
of the agency’s action. See Pridgen, 2022 MSPB 31, ¶ 40.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
provide legal advice 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 at5
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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,6
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 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. 115-195,7
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.
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 | Peskar_Caroline_R_AT-0752-22-0618-I-1 Final Order.pdf | 2024-05-15 | CAROLINE PESKAR v. DEPARTMENT OF LABOR, MSPB Docket No. AT-0752-22-0618-I-1, May 15, 2024 | AT-0752-22-0618-I-1 | NP |
1,452 | https://www.mspb.gov/decisions/nonprecedential/Chaney_EricaAT-0752-22-0528-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERICA CHANEY,
Appellant,
v.
DEPARTMENT OF STATE,
Agency.DOCKET NUMBER
AT-0752-22-0528-I-1
DATE: May 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Boyd Hinton , Charleston, South Carolina, for the appellant.
Marianne Perciaccante , Esquire, and Sarah Hunter , 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 her appeal of the agency’s decision not to convert her to the
competitive service after the expiration of her term appointment under the
Pathways Program for lack of jurisdiction. On petition for review, the appellant
argues, among other things, that the administrative judge abused his discretion in
granting the agency’s request to stay discovery deadlines, and that 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 erred in his application of applicable regulations.2 Petition
for Review File, Tab 10 at 6-14. 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 requests that the Board sanction the agency attorney and the
administrative judge. Petition for Review File, Tab 10 at 15-17. The appellant has not
identified any behavior that would warrant the imposition of sanctions.
3 Although we agree with the administrative judge that the appellant failed to establish
jurisdiction over her appeal, to the extent that he applied the nonfrivolous allegation
standard, this was an error. Initial Appeal File (IAF), Tab 12, Initial Decision (ID) at 7.
When, as here, the appellant did not request a hearing, IAF, Tab 1 at 2, the issue is not
whether she raised a nonfrivolous allegation of jurisdiction, but whether she established
jurisdiction by a preponderance of the evidence based upon the written record, see
Axsom v. Department of Veterans Affairs , 110 M.S.P.R. 605, ¶ 10 (2009). However,
because we agree with the administrative judge that the appellant failed to meet the less
rigorous nonfrivolous allegation standard, she cannot meet the more stringent
preponderant evidence standard. ID at 7. Therefore, the administrative judge’s error
does not serve as a basis to disturb the initial decision. See Panter v. Department of the
Air Force, 22 M.S.P.R. 281, 282 (1984 ) (explaining that an adjudicatory error that is
not prejudicial to a party’s substantive rights provides no basis for reversal of an initial
decision). 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 | Chaney_EricaAT-0752-22-0528-I-1__Final_Order.pdf | 2024-05-15 | ERICA CHANEY v. DEPARTMENT OF STATE, MSPB Docket No. AT-0752-22-0528-I-1, May 15, 2024 | AT-0752-22-0528-I-1 | NP |
1,453 | https://www.mspb.gov/decisions/nonprecedential/Thul_Jeffry_J_AT-1221-18-0519-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFFRY THUL,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
AT-1221-18-0519-W-1
DATE: May 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeffry Thul , Ooltewah, Tennessee, pro se.
Cecelia Townes , 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 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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On review, the appellant raises a 5 C.F.R. § 1207 allegation of disability
discrimination against the administrative judge. Petition for Review (PFR) File,
Tab 1 at 4-16. He alleges that the administrative judge violated the “Board’s
facially-neutral, non-discriminatory policy regarding pro se litigants” by reaching
a jurisdictional determination without a hearing despite his “numerous pleas for
help.” Id. at 4, 9-14. The appellant further alleges that the administrative judge
engaged in prohibited discrimination by ignoring his request for a reasonable
accommodation. Id. at 4, 15-17. The appellant had filed a motion during the
proceedings below, seemingly asking the administrative judge to order the agency
to provide him with the “services of a practicing attorney to assist and present,
before the Board, his allegations of [a]gency violations of [p]rohibited
[p]ersonnel [p]ractices.” Initial Appeal File (IAF), Tab 5 at 1. In a subsequent
request for a status conference, the appellant again asserted that the agency was
required to provide his requested accommodation of legal representation. IAF,
Tab 17 at 5.
An appellant has the right to be represented by an attorney or other
representative. 5 U.S.C. § 7701(a)(2). However, no statute or regulation requires
the Board to appoint a representative for an appellant, and it is generally the
appellant’s obligation to secure his own representative. See Yanopoulos v.2
Department of the Navy , 796 F.2d 468, 470 (Fed. Cir. 1986); Brum v. Department
of Veterans Affairs , 109 M.S.P.R. 129, ¶ 5 (2008); cf. Vaughn v. Department of
the Treasury, 119 M.S.P.R. 605, ¶ 17 (2013) (holding that the Board has the
authority to request pro bono representation for an appellant in a disability
retirement appeal who is found to be incompetent). The appeal form completed
by the appellant and the acknowledgment order notified him of his right to
representation. IAF, Tab 1 at 1, Tab 2 at 2. To the extent that the appellant felt
disadvantaged by a lack of representation, it is well established that an appellant
who chooses to proceed pro se must accept the consequences of that decision.
See Yanopoulos, 796 F.2d at 470; Brum, 109 M.S.P.R. 129, ¶ 5.
5 C.F.R. § 1207.170(b) sets forth procedures for a party who believes that
he has been subjected to discrimination on the basis of disability in the
adjudication of his Board appeal. If the administrative judge to whom the case
was assigned has issued an initial decision by the time the party learns of the
alleged discrimination, the party may raise the allegation of discrimination in a
petition for review. See 5 C.F.R. § 1201.170(b)(4). However, because the
“accommodation” the appellant seeks is neither within the administrative judge’s
authority to provide, nor something to which he is entitled, we find that he has
failed to articulate a 5 C.F.R. § 1207 allegation of discrimination and he has
provided no basis for disturbing the initial decision. See Vaughn, 119 M.S.P.R.
605, ¶ 17; see also 5 C.F.R. § 1201.114(b) (stating that a petition for review must
include all of the filing party’s legal and factual arguments objecting to the initial
decision and must be supported by references to applicable laws or regulations
and by specific references to the record).
To establish the Board’s jurisdiction over an IRA appeal, an appellant must
have exhausted his administrative remedies before the Office of Special Counsel
and make nonfrivolous allegations of the following: (1) he made a protected
disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity
as specified in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the3
disclosure or protected activity was a contributing factor in the agency’s decision
to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a)(2)(A).
5 U.S.C. §§ 1214(a)(3), 1221(a), (e)(1); Salerno v. Department of the Interior ,
123 M.S.P.R. 230, ¶ 5 (2016); see Yunus v. Department of Veterans Affairs ,
242 F.3d 1367, 1371 (Fed. Cir. 2001).2 The appellant does not challenge, and we
discern no reason to disturb, the administrative judge’s finding that he failed to
raise nonfrivolous allegations that his IRA appeal was within the Board’s
jurisdiction and, therefore, that he was not entitled to a hearing. PFR File, Tab 1
at 4-16; IAF, Tab 18, Initial Decision at 7-12. Although the appellant refers on
review to a “policy statement” in the Board’s Judge’s Handbook instructing
administrative judges to “make special efforts to accommodate pro se appellants,”
this section does not identify any lowered burden of proof for pro se appellants.
PFR File, Tab 1 at 13; see MSPB Judge’s Handbook, ch. 2, § 7.
Accordingly, we deny the petition for review and affirm the initial
decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
2 During the pendency of this appeal, the National Defense Authorization Act for Fiscal
Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on
December 12, 2017. Section 1097 of the NDAA amended various provisions of title 5
of the U.S. Code. Our decision to affirm the initial decision dismissing the appeal for
lack of jurisdiction would be the same under both pre- and post-NDAA law.
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 | Thul_Jeffry_J_AT-1221-18-0519-W-1__Final_Order.pdf | 2024-05-15 | JEFFRY THUL v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. AT-1221-18-0519-W-1, May 15, 2024 | AT-1221-18-0519-W-1 | NP |
1,454 | https://www.mspb.gov/decisions/nonprecedential/Omerbashich_MensurDC-3443-19-0540-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MENSUR OMERBASHICH,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
DC-3443-19-0540-I-1
DATE: May 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mensur Omerbashich , Sarajevo, Bosnia and Herzegovina, pro se.
Rachel Wieghaus , 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 nonselection appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
In March 2019, the appellant applied for the position of Senior Science
Advisor with the agency. Initial Appeal File (IAF), Tab 1 at 12. The agency
subsequently informed him that he was not selected for the position. Id. After
learning of his nonselection, the appellant sought to obtain his rating sheet from
the agency to learn why he was not selected. Id. After first asserting that the
information was confidential, the agency ultimately provided him with his rating
sheet from his application package. Id. at 10-11.
On May 23, 2019, the appellant filed the instant appeal with the Board,
arguing that the agency “stonewall[ed his] job application,” committed harmful
procedural error and prohibited personnel practices, and engaged in violations of
the merit systems principles. IAF, Tab 1 at 3, 5. Specifically, the appellant
alleged, among other things, that the agency unjustifiably delayed responding to
his request for information regarding his application and that it extended the
application deadline for a “favored candidate.” Id. at 5.
The administrative judge recognized that the Board may not have
jurisdiction over the appeal. IAF, Tab 3 at 1. He issued an order informing the
appellant of the Board’s jurisdictional limits and instructing him to file evidence2
and argument to prove that the Board has jurisdiction over his appeal or that he is
entitled to a hearing on the issue of jurisdiction. Id. at 2-3. The appellant
responded to the order, disputing that the Board potentially lacked jurisdiction
and asserting that the Board’s case law on jurisdiction was invalid because it is
“outdated.” IAF, Tab 4 at 4-5. He also requested that the full Board, and not the
administrative judge, review his case and appoint him to the Senior Science
Advisor position because two of the three panelists who reviewed his application
gave him high marks. Id.
Following the appellant’s response, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 5, Initial
Decision (ID). He noted that the Board typically lacks jurisdiction over
nonselection claims and found that the appellant’s case did not warrant the
application of the limited exceptions to that general rule. ID at 5-7 & n.2. He
also found that, absent an otherwise appealable action, the Board lacked
jurisdiction over the appellant’s harmful procedural error and prohibited
personnel practices affirmative defenses. ID at 7.
The appellant has filed a petition for review of the initial decision, arguing
again that the administrative judge was biased against and hostile towards him.
Petition for Review (PFR) File, Tab 1 at 4. He also argues that the administrative
judge should have recused himself because the appellant asked for review by the
full Board in his response to the order to show cause. Id. He also asserts that the
administrative judge acted on behalf of the agency. Id. The appellant also
resubmits his response to the order to show cause with his petition for review. Id.
at 5-9.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board lacks jurisdiction over the appellant’s appeal.
The Board’s jurisdiction is not plenary; rather, it is limited to those matters
over which it has been given jurisdiction by statute or regulation. 5 U.S.C.3
§ 7701(a); Maddox v. Merit Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir.
1985).2 The appellant has the burden of establishing Board jurisdiction by
preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(A). Generally, an
unsuccessful candidate for a Federal civil service position has no right to appeal
his nonselection. Kazan v. Department of Justice , 112 M.S.P.R. 390, ¶ 6 (2009);
see Ellison v. Merit Systems Protection Board , 7 F.3d 1031, 1034 (Fed. Cir. 1993)
(explaining that the Board does not have jurisdiction over a “direct appeal” of a
nonselection). However, the Board has limited jurisdiction to consider
nonselection claims under certain circumstances, such as when an appellant
alleges that the action was in reprisal for whistleblowing activity, see 5 U.S.C.
§§ 2302(a)(2)(A)(i), 2302(b)(8)-2302(b)(9), the product of discrimination based
on military service, see 38 U.S.C. §§ 4311, 4324, in violation of veterans’
preference rights, see 5 U.S.C. § 3330a(d)(1), or that an employment practice
applied to him by the Office of Personnel Management violated a basic
requirement in 5 C.F.R. § 300.103, 5 C.F.R. § 300.104(a).
None of the appellant’s pleadings make any allegation regarding these
potential jurisdictional bases. IAF, Tabs 1, 4. We, therefore, agree with the
administrative judge that the Board lacks jurisdiction over the appellant’s
nonselection claim. ID at 7; see Ellison, 7 F.3d at 1034. The administrative
judge was also correct in finding that, absent an otherwise appealable action, the
Board lacks jurisdiction to consider the appellant’s contention that the agency
committed harmful procedural error and prohibited personnel practices. ID at 7
(citing Penna v. U.S. Postal Service , 118 M.S.P.R. 355, ¶ 13 (2012)). The
appellant’s petition for review does not challenge these findings, PFR File, Tab 1
at 4, and, therefore, offers no basis to disturb the initial decision. Nor does his
2 The appellant complained below about the administrative judge’s reliance on other
than recent case law. IAF, Tab 4 at 4. At no point, however, does the appellant cite a
legal authority showing that the cases relied upon by the administrative judge have been
reversed by the Board or U.S. Court of Federal Appeals for the Federal Circuit.
Similarly, the cases cited in this decision, regardless of their age, remain valid
precedent. 4
resubmission on review of his response to the administrative judge’s
jurisdictional order. Id. at 5-6; see Conley v. Department of the Treasury ,
21 M.S.P.R. 554, 555-56 (1984) (concluding that a resubmission of a brief
presented below fails to meet the criteria for review established by 5 C.F.R.
§ 1201.115).
To the extent that the administrative judge erred in failing to address the
appellant’s claim that the agency violated the merit system principles, the
appellant has not raised this as an issue on review, nor has he shown how any
error prejudiced his substantive rights. In the absence of an otherwise appealable
action, the Board lacks jurisdiction over claims that an agency violated the merit
systems principles. Solamon v. Department of Commerce , 119 M.S.P.R. 1, ¶ 14
(2012). Thus, we discern no reason to disturb the initial decision on this basis.
See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (finding
that an adjudicatory error that is not prejudicial to a party’s substantive rights
provides no basis for reversal of an initial decision).
The appellant’s claim of bias on the part of the administrative judge does not
warrant reversal of the initial decision.
Although the appellant has set forth in his petition for review several
claims regarding bias of the administrative judge, his contentions all involve the
manner in which the administrative judge conducted this proceeding below. PFR
File, Tab 1 at 4. 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)). Moreover, in making a claim of bias, an appellant must overcome
the presumption of honesty and integrity on the part of the administrative judge.
Scoggins v. Department of the Army , 123 M.S.P.R. 592, ¶ 19 (2016); Protopapa
v. Department of Transportation , 14 M.S.P.R. 455, 459 (1983). The fact that the5
administrative judge does not accept the appellant’s assertions in the fashion the
appellant claims is correct does not constitute bias. Protopapa, 14 M.S.P.R.
at 459.
The appellant’s allegations that the administrative judge was hostile
towards him and acted on behalf of the agency are unsupported by the record.
The administrative judge properly acknowledged the appeal, IAF, Tab 2, and,
consistent with Board requirements, issued a comprehensive jurisdictional order
informing the appellant of his burdens of proof and affording him an opportunity
to submit evidence and argument establishing jurisdiction, IAF, Tab 3. After
considering the appellant’s jurisdictional response, the administrative judge
issued a thorough initial decision. IAF, Tab 4; ID. Further, his contention that
the administrative judge should have recused himself from the appeal after the
appellant requested that the full Board rule on the jurisdictional issue is
inconsistent with the Board’s regulations. See 5 C.F.R. 1201.41(b) (providing
administrative judges with the authority to ensure that the record on significant
issues is fully developed and to issue initial decisions).
Based on the foregoing, we deny the appellant’s petition of review and
affirm the initial decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
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
jurisdiction. 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.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. 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 | Omerbashich_MensurDC-3443-19-0540-I-1__Final_Order.pdf | 2024-05-15 | MENSUR OMERBASHICH v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. DC-3443-19-0540-I-1, May 15, 2024 | DC-3443-19-0540-I-1 | NP |
1,455 | https://www.mspb.gov/decisions/nonprecedential/Wiest_Cindy_M_PH-0752-19-0007-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CINDY M. WIEST,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
PH-0752-19-0007-I-1
DATE: May 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ralph B. Pinskey , Esquire, Harrisburg, Pennsylvania, for the appellant.
Courtney Hatcher , Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her appeal of her probationary termination.
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).
On review, the appellant renews her argument that she has made a
nonfrivolous allegation that the Board has jurisdiction over her appeal because,
upon appointing her to a position in the competitive service, the agency did not
require her to serve a probationary period. Petition for Review (PFR) File, Tab 1
at 2-4. She argues that the administrative judge erred in relying on the agency’s
Standard Form 50 appointing the appellant to her position, which stated that the
appellant was to serve a 1-year probationary period, to find that the agency
required the appellant to serve a 1-year probationary period. Id. at 4-5. She
reiterates her contention that the statutory authority under which she was hired
does not require a probationary period, and that the agency’s failure to state in its
offer letter that a probationary period was a condition of her hiring is evidence
that the agency did not require her to serve a probationary period. Id. at 3-6.
For the reasons set forth in the initial decision, the administrative judge
properly found that, although the statutory authority under which the appellant
was appointed does not expressly require that the appellant serve a probationary
period, the agency nevertheless had the authority to impose a 1-year probationary
period. Initial Appeal File, Tab 12, Initial Decision (ID) at 4-5; see Calixto v.
Department of Defense , 120 M.S.P.R. 557, ¶¶ 12-13 (2014) (holding that the
absence of an affirmative statutory or regulatory provision in 10 U.S.C. § 17052
requiring a career -conditional appointee to the competitive service to serve a
probationary period does not preclude an agency from imposing a 1-year
probationary period). We also agree with the administrative judge that the
appellant failed to make a nonfrivolous allegation that the agency did not impose
a 1-year probationary period such that she was an employee under 5 U.S.C.
§ 7511(a)(1)(A)(i) with standing to challenge her termination. ID at 5-6;
see Calixto, 120 M.S.P.R. 557, ¶ 17 n.6 (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
jurisdiction. 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 The initial appeal appears to be untimely filed by 2 years and 6 months, but we need
not reach the issue of timeliness because we agree with the administrative judge that the
Board lacks jurisdiction over the 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. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain4
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 5
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Wiest_Cindy_M_PH-0752-19-0007-I-1__Final_Order.pdf | 2024-05-15 | CINDY M. WIEST v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-0752-19-0007-I-1, May 15, 2024 | PH-0752-19-0007-I-1 | NP |
1,456 | https://www.mspb.gov/decisions/nonprecedential/Sonnichsen_Cris_L_DC-0752-19-0111-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CRIS L. SONNICHSEN,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-0752-19-0111-I-1
DATE: May 15, 2024
THIS ORDER IS NONPRECEDENTIAL1
Cheri L. Cannon , Esquire, Washington, D.C., for the appellant.
Anakah Harrison , Cherry Point, North Carolina, for the agency.
Malcolm G. Schaefer , San Diego, California, 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 reasons discussed below, we GRANT his petition for review, REVERSE the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
initial decision, and REMAND the case to the regional office for further
adjudication.
BACKGROUND
The agency removed the appellant, a GS-11 Production Controller, from his
position effective August 31, 2018. Initial Appeal File (IAF), Tab 6 at 16-18.
The decision letter informed him that he could file a Board appeal challenging his
removal within 30 days after the effective date of his removal or after his receipt
of the decision, whichever was later. Id. at 18. On September 28, 2018, the
appellant’s attorney faxed to the Board’s regional office a request for a 30 -day
extension of time to appeal the removal, indicating that “[a]dditional time may be
needed or requested depending on area recovery efforts.” IAF, Tab 1 at 29. He
explained that his law office was closed “due to damage and continued utility
disruption from Hurricane Florence” and that “conditions precluded normal
operations, including client contact, phone, internet, electric, and attorney and
client displacement due to the storm and aftermath.” Id. He noted that the
Federal Emergency Management Agency had declared two North Carolina
counties to be disaster areas with an “incident date of September 7, 2018 and
declaration date of September 14, 2018, and [] continuing.” Id. According to an
affidavit he later submitted, a Board employee contacted him and informed him
that the Board had no way of granting an extension before the appeal was actually
filed. Id. at 20. He attested that the Board employee told him that, when he was
able to file the appeal, he should provide the same information contained in his
facsimile, request a waiver of the time limit, and reference his earlier request and
phone call with her. Id. at 20-21. He further stated that she told him she was
“sure that [his request] would be granted under the circumstances of the
hurricane.” Id. at 21.
On November 6, 2018, the appellant appealed his removal to the Board and
requested a waiver of the filing deadline based on his attorney’s conversation2
with the Board employee and the effects of Hurricane Florence. IAF, Tab 1. He
provided a copy the September 28, 2018 request for an extension of time and the
affidavit discussed above describing his attorney’s conversation with the Board
employee. Id. at 18-21. In the affidavit, the attorney also explained that he
evacuated North Carolina from September 12 to 18, 2018, and reopened his law
office to the general public on October 3, 2018, but continued to experience
erratic internet, phone service, and power supply throughout the next 2 weeks.
Id. at 19-20.
The agency moved to dismiss the appeal as untimely filed, arguing that the
appellant had failed to demonstrate good cause for his 33-day filing delay given,
among other things, the fact that his attorney conceded that he reopened his law
office on October 3, 2018. IAF, Tab 6 at 4-14. The appellant opposed the
agency’s motion and submitted another affidavit by his attorney providing
additional details about the difficulties he faced when reopening his law office
and prioritizing the work for all of his clients. IAF, Tab 8 at 23-27. He explained
that, although he opened his office to the general public on October 3, 2018, he
did not perform any legal work until October 7, 2018, because he and his staff
were reassembling the office and putting together “critical systems” and that he
was out of the office for 1 of the next 3 weeks to address significant storm
damage to his home and commercial real estate holdings. Id. at 26. He also
attested that he relied on his conversation with the Board employee in deciding
how to prioritize the appellant’s appeal, that she did not inform him that he would
be required to file the appeal within any specific period of time, and that he
inferred from the conversation that a reasonable extension of time would be
“routinely granted.” Id. at 24, 27.
In a February 14, 2019 initial decision, the administrative judge dismissed
the appeal as untimely filed without good cause shown. IAF, Tab 9, Initial
Decision (ID). 3
The appellant has filed a petition for review of the initial decision, and the
agency has responded. Petition for Review (PFR) File, Tabs 1, 3.2
ANALYSIS
An appellant bears the burden of proving by preponderant evidence that his
appeal was timely filed.3 5 C.F.R. § 1201.56(b)(2)(i)(B). Generally, an appeal
must be filed no later than 30 days after the effective date, if any, of the action
being appealed or 30 days after the date of receipt of the agency’s decision,
whichever is later. 5 C.F.R. § 1201.22(b)(1). The Board will dismiss an untimely
filed appeal unless good cause is shown for the delay. 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
2 For the first time on review, the agency has submitted two September 2018 orders
from the Chief Justice of the Supreme Court of North Carolina regarding filing
deadlines for counties affected by Hurricane Florence. PFR File, Tab 3 at 21-32.
Because the agency has not shown that it was unable to submit these orders below, we
do not consider them for the first time on review. See Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211, 214 (1980) (stating that the Board generally will not consider evidence
submitted for the first time with the petition for review absent a showing that it was
unavailable before the record was closed despite the party’s due diligence).
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). 4
substantial prejudice to the agency. Boyd v. Department of Veterans Affairs ,
111 M.S.P.R. 116, ¶ 12 (2009).
In the initial decision, the administrative judge found that the appellant
received the agency’s decision letter on September 4, 2018, and that any Board
appeal of his removal was thus due no later than October 4, 2018. ID at 5-6.
Because the appellant did not file his appeal until November 6, 2018, he found
that his appeal was untimely filed by 33 days. ID at 6. Neither party challenges
this finding on review, and we discern no reason to disturb it.
Regarding whether the appellant established good cause for his 33-day
filing delay, the administrative judge determined that his attorney acted diligently
when he contacted the Board in late September after recognizing that the
hurricane would affect his ability to timely file an appeal and that the hurricane
did interrupt his law practice from mid-September through October 8, 2018. ID
at 7. However, he found that the appellant’s attorney returned to his law practice
for 2 of the 3 weeks after October 8, 2018, and that he could have filed an appeal
during this time if he had exercised due diligence and ordinary prudence
notwithstanding his other professional and personal obligations. ID at 7-8. He
credited the attorney’s assertion that the Board employee informed him that she
was “sure” a waiver would be granted under the circumstances but found it was
unreasonable for him to assume that a 30-day waiver would be routinely granted
in the absence of evidence showing that good cause supported a waiver for the
entire time. ID at 8. Accordingly, the administrative judge concluded that good
cause supported waiver of the filing deadline through October 22, 2018, but that
the appellant failed to show good cause for his failure to file between October 23
and November 6, 2018. ID at 8-9.
The appellant challenges these findings on review. PFR File, Tab 1
at 9-21. He argues that the 33-day delay was caused by a “hurricane of historic
proportions and catastrophic damage to local infrastructure and his lawyer’s home
and place of business” and that his attorney acted with due diligence to inform the5
Board of his need for an extension. Id. at 9-15. He further argues that his
attorney had no prior experience before the Board, that he deferred to the Board
employee’s assurance that she was “sure” a waiver would be granted under the
circumstances, and that he assumed that she would have informed him “if some
other action was advisable or required [ ] to secure waiver of the deadline (such
as filing any appeal, no matter how incomplete, and amending it later).” Id.
at 16-17. The appellant also argues that the agency will not be prejudiced by a
“delay of barely one month.” Id. at 18. In response, the agency reiterates many
of the arguments it raised below, including that the appellant’s attorney could
have timely filed the initial appeal and has a history of untimely filings, the
length of the delay was significant, and the appellant failed to explain why his
attorney could not have filed the appeal on any other day before November 6,
2018. PFR File, Tab 3 at 7-20.
We agree with the administrative judge’s determination that Hurricane
Florence impaired the ability of the appellant’s attorney to file the appeal
between mid-September and October 8, 2018, and that good cause supports a
waiver of the filing deadline through October 22, 2018. ID at 7. For the reasons
discussed below, we further find that the appellant has shown good cause to
excuse the remainder of his filing delay.
The Board has previously found good cause to waive a filing deadline when
a pro se appellant reasonably relied on incorrect or misleading information from a
Board employee. See Annunziata v. U.S. Postal Service , 36 M.S.P.R. 192, 196-97
(1988) (finding good cause to waive a filing deadline because the pro se appellant
reasonably relied on the administrative judge’s misstatement concerning the
timing of his appeal); Meehan v. U.S. Postal Service , 7 M.S.P.R. 193, 196 (1981)
(finding good cause to excuse a filing delay when the pro se appellant was misled
by Board employees regarding the necessity to file an appeal). Although the
appellant was not pro se, his attorney had not previously practiced before the
Board, and we find that he reasonably relied on the Board employee’s assurance6
that waiver of the filing deadline would be granted under the circumstances.
While we agree with the administrative judge and the agency that the appellant’s
attorney could have filed the appeal before November 6, 2018, there is no
indication that the Board employee advised him that he should file within any
particular time or warned him that his request for a waiver might be denied if he
delayed more than 2 weeks after reopening his office to the general public. Given
the Board employee’s statements and the circumstances surrounding the hurricane
recovery efforts, we find that it was reasonable for the appellant’s attorney to
infer that a waiver through November 6, 2018, would be granted.
In addition, although our regulations do not provide for extensions of time
to file an initial appeal, the Board has found that timely requests for such
extension may constitute good cause to excuse an untimely filing. See
Caldwell v. Department of the Treasury , 85 M.S.P.R. 674, ¶ 5 (2000) (finding
good cause to waive the filing deadline when, among other things, a pro se
appellant submitted evidence showing that he requested an extension of time to
file his appeal before the filing deadline and then filed his appeal within 30 days
of his extension request); Quinones v. Office of Personnel Management ,
33 M.S.P.R. 612, 614 (1987) (finding good cause to excuse a 13-day filing delay
when the pro se appellant claimed that he requested and received an extension of
time to file his initial appeal and submitted a mail return receipt signed by the
administrative officer on a date within the filing period); Quarezo v. Office of
Personnel Management , 11 M.S.P.R. 522, 523 (1982) (finding good cause to
waive the filing deadline when a pro se appellant timely filed a “Motion To Have
His Claim Freezed and/or To Be Held In Abeyance,” the regional office notified
him that the Board’s regulations did not permit such request and that the time
limit for filing an appeal was running, and he filed his appeal 2 days following
his receipt of this response). Here, the appellant’s attorney, who had not7
previously appeared before the Board, demonstrated due diligence by requesting
an extension of time to file the initial appeal during the filing period.4
Although the filing delay in this case of 33 days is quite lengthy, we find
that the circumstances surrounding the hurricane and recovery efforts, the
appellant’s timely request for an extension, and his attorney’s reasonable reliance
on the Board employee’s assurance that a waiver would be granted establish good
cause to excuse the late filing. Because the agency has not shown that it will be
substantially prejudiced by the appellant’s filing delay, we waive the filing
deadline. See Boyd, 111 M.S.P.R. 116, ¶ 12.
4 We recognize that a better practice would have been for the appellant’s attorney to file
an initial appeal containing the minimum requirements specified in 5 C.F.R.
§ 1201.24(a), along with a motion for an extension of time to file any initial pleading he
wished to file and a motion to hold the proceedings in abeyance. However, there is no
indication that the Board employee informed him of this option or that he knew or
should have known to do so, given that he reasonably assumed he received the best
advice from the Board employee, had never practiced before the Board, and was dealing
with hurricane recovery efforts. Furthermore, we disagree with the administrative
judge’s suggestion that the appellant’s attorney lacked due diligence because he filed
the initial appeal several days after 30-day extension would have expired. ID at 8-9. It
is unfair to hold an appellant to a deadline that he requested but was not granted.
Moreover, the appellant’s attorney indicated in his faxed request that he may require
additional time depending on area recovery efforts, IAF, Tab 1 at 29, but ultimately had
no reason to request a second extension or to follow up with the Board given that the
Board employee informed him that no extensions were possible and that she was “sure”
a waiver would be granted. 8
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Sonnichsen_Cris_L_DC-0752-19-0111-I-1__Remand_Order.pdf | 2024-05-15 | CRIS L. SONNICHSEN v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-0752-19-0111-I-1, May 15, 2024 | DC-0752-19-0111-I-1 | NP |
1,457 | https://www.mspb.gov/decisions/nonprecedential/Young_DavidPH-0432-17-0342-I-2__Remand_Order.pdf | ANDUNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID YOUNG,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-0432-17-0342-I-2
DATE: May 15, 2024
THIS ORDER IS NONPRECEDENTIAL1
Gavriel Toso , Esquire, and Stephen Goldenzweig , Esquire, Houston, Texas,
for the appellant.
Paul P. Kranick , Esquire, Coatesville, Pennsylvania, 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 the agency’s action removing him for unacceptable performance
pursuant to 5 U.S.C. chapter 43. For the reasons set forth below, we GRANT the
petition for review. We MODIFY the initial decision to clarify the legal standard
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
applicable to the appellant’s claim of retaliation for prior protected equal
employment opportunity (EEO) activity and REMAND the matter to the
Northeastern Regional Office for further adjudication consistent with the U.S.
Court of Appeals for the Federal Circuit’s decision in Santos v. National
Aeronautics and Space Administration , 990 F.3d 1355 (Fed. Cir. 2021).
BACKGROUND
The agency removed the appellant from his position as a Veterans
Service Representative (Rating) for unacceptable performance pursuant to
5 U.S.C. chapter 43. Young v. Department of Veterans Affairs , MSPB Docket No.
PH-0432-17-0342-I-1, Initial Appeal File (IAF), Tab 1 at 10-16. Specifically, the
agency charged that the appellant’s performance in the “output” element of his
performance plan remained unacceptable following a 90 -day Performance
Improvement Plan (PIP) and a 14-day extension. Id. at 11-16.
The appellant appealed the action to the Board. IAF, Tab 1. The appeal
was dismissed without prejudice and refiled. IAF, Tab 18; Young v. Department
of Veterans Affairs , MSPB Docket No. PH-0432-17-0342-I-2, Appeal File
(I-2 AF), Tab 1. A hearing was held. Hearing Transcript (HT). The
administrative judge issued an initial decision finding that the agency proved the
merits of its performance-based removal action by substantial evidence. I-2 AF,
Tab 33, Initial Decision (ID) at 3-8. Specifically, he found that the agency
proved that the appellant had produced only 1.43 weighted actions per 8 hours,
less than the requisite 3 weighted actions per 8 hours necessary to be considered
fully successful in the “output” critical element. ID at 6-8. He further found that
the appellant failed to prove his affirmative defenses of harmful procedural error,
disability discrimination (disparate treatment and failure to accommodate), and
retaliation for prior protected EEO activity. ID at 8-18. Accordingly, he
affirmed the removal. ID at 18.
The appellant has filed a petition for review, the agency has responded in
opposition, and the appellant has filed a reply. Petition for Review (PFR) File,2
Tabs 3, 5-6. In his petition, the appellant argues the following: (1) he was not
given a meaningful opportunity to improve; (2) the administrative judge should
have found that the deciding official was not credible and was motivated to
remove him in retaliation for his EEO activity; (3) the agency discriminated
against him by failing to provide him with a reasonable accommodation; and
(4) the agency committed harmful procedural error by violating provisions of the
applicable collective bargaining agreement (CBA). PFR File, Tab 3 at 9-21.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved that the appellant’s performance was unacceptable under the
legal standard for chapter 43 actions at the time the initial decision was issued.
At the time the initial decision was issued, to prevail in an appeal of a
performance-based removal under chapter 43, the agency was required to prove
by substantial evidence2 that: (1) the Office of Personnel Management approved
its performance appraisal system and any significant changes thereto; (2) the
agency communicated to the appellant the performance standards and critical
elements of his position; (3) the appellant’s performance standards are valid
under 5 U.S.C. § 4302(b)(1); (4) 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; and (5) the
appellant’s performance remained unacceptable in at least one critical element.
Lee v. Environmental Protection Agency , 115 M.S.P.R. 533, ¶ 5 (2010).
On review, the appellant does not challenge the administrative judge’s
findings that the agency met its burden of proving elements (1)-(3) and (5), PFR
File, Tabs 3, 6, and we find no reason to disturb these findings. However, the
appellant challenges the administrative judge’s findings pertaining to
element (4) by contending that the agency failed to provide him with a
2 Substantial evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, might accept as adequate to support a conclusion,
even though other reasonable persons might disagree. 5 C.F.R. § 1201.4(p). This is a
lower standard of proof than preponderance of the evidence. Id.3
meaningful opportunity to improve in the critical element of “output.”3 PFR File,
Tab 3 at 8-20. To this end, he avers that he was unavailable to work for a large
portion (60%) of his PIP due to preapproved vacation/leave, surgery and
recovery, and significant computer/technical issues. Id. He further contends that
he only worked 20% of the extension period, the agency did not advise him of
what he needed to do to improve until 2 weeks after the start of the PIP, and the
agency official assigned to assist him was ineffective. Id.
The right to a reasonable opportunity to improve is a substantive right and
a necessary prerequisite to all chapter 43 actions. Lee, 115 M.S.P.R. 533, ¶ 32.
In determining whether the agency afforded the appellant a reasonable
opportunity to demonstrate acceptable performance, relevant factors to consider
include the nature of the duties and responsibilities of the employee’s position,
the performance deficiencies involved, and the amount of time which is sufficient
to enable the employee with an opportunity to demonstrate acceptable
performance. Id. The administrative judge identified and discussed these factors
in the initial decision. ID at 5-8. We discern no error with his analysis or
conclusion that the agency provided the appellant with a reasonable opportunity
to improve.
Regarding the amount of time that he was given to demonstrate acceptable
performance, on review, the appellant relies primarily on Even v. Department of
the Interior, 25 M.S.P.R. 190 (1984), to suggest that the administrative judge
erred by failing to take his unavailability during the PIP and extension period into
consideration. PFR File, Tab 3 at 15, 17. However, the appellant’s reliance on
Even is misplaced. In Even, the Board agreed with the presiding official’s finding
that the agency failed to provide the appellant with an opportunity to improve
when it granted her sick leave and then held her accountable for work not
completed during the period of her excused absence. Even, 25 M.S.P.R. at 191.
3 The record reflects that, during the relevant timeframe, the appellant was rated
exceptional in the elements of quality, timeliness, training, and organization support.
IAF, Tab 4 at 58-62.4
By contrast, both the agency and the administrative judge took the appellant’s
unavailability during the PIP and extension period into consideration in this
matter. ID at 6-7. In calculating the appellant’s weighted output, the agency did
not include “deductible time,” that is, time the appellant was unavailable due to
leave, training, technical, or other issues (316.75 hours of 568 total hours). PFR
File, Tab 3 at 16; HT at 22-23, 45, 64-69 (testimony of the appellant’s
supervisor). To this end, the administrative judge concluded that the appellant
failed to increase his output to an acceptable level “even for the 251.25 hours [out
of 568 hours] that he was available.” ID at 6-7. Moreover, the Board has found
that a 30-day PIP may be sufficient to provide an appellant with a reasonable
opportunity to improve under 5 U.S.C. chapter 43. Melnick v. Department of
Housing and Urban Development , 42 M.S.P.R. 93, 101 (1989), aff’d, 899 F.2d
1228 (Fed. Cir. 1990) (Table). Even if the appellant only worked 40% of the
90-day PIP and 20% of the extension period, he had more than a 30-day
timeframe to demonstrate acceptable performance.
The appellant also contends on review that he did not receive advance
notice of his PIP due to his preapproved 2-week vacation that coincided with the
start of the PIP, and he did not receive any notice of the specific things he needed
to do in order to be successful during the PIP until he returned from leave “on or
about October 13, 2016.” PFR File, Tab 3 at 9, Tab 6 at 5. These assertions are
not supported by the record, which shows that the appellant knew as early as
September 13, 2016—almost 2 weeks before his vacation—that he would
be placed on a PIP, he had a conference call with his supervisor on
September 20, 2016, and he received and refused to sign the PIP notice and
memorandum on or around September 21, 2016. IAF, Tab 4 at 48-52, 56, Tab 7
at 48-50.
The appellant further alleges that his supervisor/coach during the PIP was
ineffective because he had never worked in the appellant’s position, he was
unfamiliar with his job functions, he failed to conduct face-to-face meetings, and5
he frequently canceled scheduled bi-weekly meetings due to the appellant’s
medical appointments, all of which deprived him of a meaningful opportunity to
improve. PFR File, Tab 3 at 8, 10. We find these arguments unavailing.
The regulation at 5 C.F.R. § 432.104 requires the agency to “offer
assistance” to the employee in improving unacceptable performance, but
there is no mechanical requirement regarding the form of assistance.
Gjersvold v. Department of the Treasury , 68 M.S.P.R. 331, 336 (1995); see
Towne v. Department of the Air Force , 120 M.S.P.R. 239, ¶ 20 (2013) (finding
that an agency may meet its obligation to offer assistance by means other than
meeting personally during the PIP). The record reflects that the appellant’s
supervisor scheduled remote bi -weekly meetings with the appellant via
conference call, provided feedback to him throughout the course of the PIP and
extension period, and assigned him a mentor. IAF, Tab 4 at 26, 28, 30, 32, 34,
36, 39, 45-46. The appellant also asserts that his supervisor failed to provide him
with training during the PIP, PFR File, Tab 3 at 10; however, there is no law,
rule, or regulation that requires an agency to afford an employee such training,
Macijauskas v. Department of the Army , 34 M.S.P.R. 564, 569 n.2 (1987), aff’d,
847 F.2d 841 (Fed. Cir. 1988) (Table).
Accordingly, we discern no basis to disturb the administrative judge’s
finding that the agency established by substantial evidence that it provided the
appellant with a reasonable opportunity to demonstrate acceptable performance,
ID at 5-8, and we affirm his decision that the agency proved by substantial
evidence that the appellant’s performance was unacceptable under the legal
standard for chapter 43 actions at the time the initial decision was issued.
We modify the initial decision to clarify the legal standard applicable to the
appellant’s claim of retaliation for EEO activity; however, a different outcome is
not warranted.
On review, the appellant reasserts that the agency’s removal action was in
retaliation for his protected EEO activity. IAF, Tab 1 at 6; PFR File, Tab 3 at 21.6
However, the nature of the appellant’s claim of EEO retaliation is unclear. To
this end, the administrative judge stated in the initial decision only that “[i]t is
undisputed that the appellant had previously filed an EEO complaint against the
agency in 2015.” ID at 17. The appellant’s petition for review suggests that his
EEO complaint related to disability discrimination. PFR File, Tab 3 at 6-7.
Because the nature of the appellant’s EEO retaliation claim may warrant a
different legal analysis, we modify the initial decision to discuss and clarify these
different legal standards.
In analyzing the appellant’s EEO retaliation claim, the administrative judge
relied on, among other cases, Savage v. Department of the Army , 122 M.S.P.R.
612 (2015), and found that the appellant failed to show that retaliation was a
motivating factor in the agency’s removal action. ID at 15-18. Subsequent to the
issuance of the initial decision, the Board found that retaliation claims under
Title VII and the Rehabilitation Act are subject to different legal standards.
Specifically, the Board found that claims of retaliation for opposing
discrimination in violation of Title VII are analyzed under the same framework
used for Title VII discrimination claims, which requires proof that a prohibited
consideration was a motivating factor in the agency’s decision. Pridgen v. Office
of Management and Budget , 2022 MSPB 31, ¶¶ 20-22, 30. However, an appellant
alleging retaliation for activity protected under the Rehabilitation Act must prove
that such retaliation was a “but-for” cause of the agency’s action. Id., ¶¶ 44-46.
As indicated, the administrative judge concluded that the appellant failed to
show that retaliation was a motivating factor in the agency’s removal action. ID
at 17. To this end, he specifically found that the appellant had made only “bare
allegations” regarding “reprisal discrimination” and that nothing from the record
evidence or the relevant agency officials’ testimony provided “even a hint” that
any agency personnel had a discriminatory animus toward him. ID at 17-18. The
Board must give deference to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on the observation of7
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) .
On review, the appellant contends that the deciding official provided
contradictory testimony as to her knowledge of his EEO activity, and, therefore,
she should not have been considered credible by the administrative judge. PFR
File, Tab 3 at 21. Specifically, he alleges that the deciding official “made a big
deal of the fact that she in no way, shape, or form knew about [his] EEO cases,”
when she actually had been aware of his cases at the time of the removal. Id.
The record reflects that the deciding official initially testified that she did not
recall “knowing or not knowing whether” the appellant had filed an EEO
complaint at the time she removed him; however, once her recollection was
refreshed with her notes from the appellant’s oral reply, she acknowledged that he
had raised this issue during the reply, and she further testified that his EEO
activity was not “relevant” to the performance issues. HT at 139, 154-55, 278-79
(testimony of the deciding official); IAF, Tab 4 at 89-94. Any discrepancy in the
deciding official’s testimony, described above, does not constitute a sufficiently
sound reason to overturn the administrative judge’s credibility determinations.
See Haebe, 288 F.3d at 1301.
Accordingly, we discern no basis to disturb the administrative judge’s
conclusion that the appellant failed to show that his EEO activity was a
motivating factor in the removal action. ID at 17-18. Because the appellant
failed to show that his protected activity was a motivating factor, he necessarily
failed to meet the more stringent “but-for” standard . See Desjardin v. U.S. Postal
Service, 2023 MSPB 6, ¶ 33. Thus, regardless of whether the appellant’s EEO
activity fell under the purview of Title VII or the Rehabilitation Act, a different
outcome is not warranted.4
4 In analyzing the appellant’s disparate treatment disability discrimination affirmative
defense, the administrative judge found the appellant did not prove that “any disability
he may have had was a motivating factor in his removal.” ID at 15. We therefore need8
The appellant’s arguments regarding his failure to accommodate claim
are unavailing.
An agency is required to make reasonable accommodations to the known
physical and mental limitations of an otherwise qualified individual with a
disability unless the agency can show that the accommodation would cause an
undue hardship on its business operations. Miller v. Department of the Army ,
121 M.S.P.R. 189, ¶ 13 (2014); 29 C.F.R. § 1630.9(a). An appellant may
establish a disability discrimination claim based on failure to accommodate by
showing by preponderant evidence that: (1) he is an individual with a disability
as defined by 29 C.F.R. § 1630.2(g);5 (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 him a reasonable accommodation. Miller, 121 M.S.P.R. 189, ¶ 13;
5 C.F.R. § 1201.56(b)(2)(i)(C).
In the initial decision, the administrative judge acknowledged that the
appellant suffers from several medical conditions. ID at 13. The administrative
judge found, however, that the appellant failed to establish that he is an
individual with a disability. ID at 13-14. In so concluding, he reasoned that the
appellant failed to show that he has a physical or mental impairment that
substantially limits one or more major life activities, including working.6 ID
at 13-14 & n.2; 29 C.F.R. § 1630.2(j)(1)(ii).
not decide whether discrimination was a “but-for” cause of the agency’s action.
See Pridgen, 2022 MSPB 31, ¶ 40.
5 The appellant may prove that he has a disability by showing that he: (1) has a
physical or mental impairment that substantially limits one or more major life activities;
(2) has a record of such impairment; or (3) is regarded as having such an impairment.
42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(g)(1).
6 In the initial decision, the administrative judge focused solely on whether the
appellant was substantially limited in the major life activity of working because the
appellant “proffered no evidence to show how his impairment limited any other major
life activities.” ID at 13 n.2. The appellant testified at the hearing that his conditions
affected his sleep; however, he does not contend on review that the administrative judge
erred by failing to consider this alternative life activity. HT at 196, 209, 213 (testimony
of the appellant); 29 C.F.R. § 1630.2(i)(1)(i). 9
On review, the appellant challenges the administrative judge’s analysis by
arguing the following: (1) he has “physical and mental service -connected
disabilities”; (2) agency officials should have known that telework was not a
sufficiently effective accommodation; and (3) agency officials should have
construed his requests for additional medical leave during the PIP as reasonable
accommodation requests. PFR File, Tab 3 at 5-6, 20-21. He also asserts that the
agency failed to explore reassignment as an accommodation. Id. at 20-21.
The agency does not dispute that the appellant is a service-connected
veteran or that he suffers from several medical conditions. I-2 AF, Tab 15 at 4;
HT at 9-10 (testimony of the appellant’s supervisor), 196, 261 (testimony of the
appellant). The record also reflects that the agency granted the appellant’s
request to telework full-time starting in September 2015 as a reasonable
accommodation.7 I-2 AF, Tab 26 at 91-92.
We interpret the appellant’s argument on review regarding his documented
service-connected conditions to be an argument that the administrative judge
should have analyzed whether he has a record of an impairment.8 An individual
has a record of an impairment under 42 U.S.C. § 12102(1)(B) “if the individual
has a history of, or has been misclassified as having, a mental or physical
impairment that substantially limits one or more major life activities.” 29 C.F.R.
§ 1630.2(k). By contrast, the “[service-connected disability] percentage ratings
represent as far as can practicably be determined the average impairment in
earning capacity resulting from such diseases and injuries and their residual
conditions in civil occupations.” 38 C.F.R. § 4.1; see 74 Fed. Reg. 48431, 48448
(2009) (“The fact that an individual has a record of being a disabled veteran . . .
does not guarantee that the individual will satisfy the definition of ‘disability’
7 The agency also provided the appellant with “equipment or something of that nature.”
HT at 12 (testimony of the supervisor).
8 The appellant does not appear to challenge the administrative judge’s finding that he
failed to prove that he is an individual with a physical or mental impairment that
substantially limits the major life activity of working, and we affirm that finding herein.10
under part 1630.”). Thus, to the extent the appellant argues that he proved that he
is an individual with a disability because he showed that he has a record of
impairment, we find his argument unpersuasive.
Moreover, even if we find for the purposes of our analysis that the
appellant has proven that he has a disability, he has failed to prove that he is a
qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m). A
qualified individual with a disability is a person who, with or without
reasonable accommodation, can perform the essential functions of a position.
42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(m). The essential functions of a
position generally refer to the fundamental job duties or the reason for a
position’s existence as reflected in, among other things, the amount of time spent
on a particular task. Henry v. Department of Veterans Affairs , 100 M.S.P.R. 124,
¶ 10 (2005). Despite the accommodation of full-time telework, the appellant was
still unable to perform the essential functions of his position, i.e., to perform to
the fully acceptable level in the output critical element. The agency is not
required to lower its production or performance standards as a reasonable
accommodation. Byrne v. Department of Labor , 106 M.S.P.R. 43, ¶ 7 (2007).
We have considered the appellant’s remaining arguments regarding his
failure to accommodate claim, but find that none warrant a different outcome.
For example, we have considered his assertion that the agency should have
construed his “repeated requests for leave for medical issues” as a reasonable
accommodation request. PFR File, Tab 3 at 20. However, the appellant does not
identify on review any requests for medical leave that the agency denied.
Moreover, the appellant fails to articulate on review any accommodation that
would have enabled him to perform the essential functions of the Veteran Service
Representative (Rating) position, i.e., to bring his output to acceptable levels.
We have also considered his argument that the agency had an obligation to
explore reassignment as “the accommodation of last resort.” Id. However, he11
does not cite any documentation on review to support such a request, nor does he
identify any position to which he could have been reassigned.9
The appellant did not prove harmful procedural error.
On review, the appellant suggests that the agency violated its CBA, which
mandated both that the agency afford the appellant “at least 90 calendar days” to
resolve the performance deficiencies and that the supervisor meet with the
appellant on a bi -weekly basis during this timeframe. PFR File, Tab 3 at 10, 17;
IAF, Tab 4 at 82. Allegations of agency error in applying CBA provisions in
chapter 43 actions are treated as claims of procedural error. Slavich v. Social
Security Administration , 102 M.S.P.R. 171, ¶ 8 (2006); DeSousa v. Agency for
International Development , 38 M.S.P.R. 522, 526 (1988).
Pursuant to 5 U.S.C. § 7701(c)(2)(A), the Board will not sustain an
agency’s decision if the appellant “shows harmful error in the application of the
agency’s procedures in arriving at such decision.” A procedural error is harmful
where the record shows that an error by the agency was likely to have caused the
agency to reach a conclusion different from the one it would have reached in the
absence or cure of the error. Pumphrey v. Department of Defense , 122 M.S.P.R.
186, ¶ 10 (2015); 5 C.F.R. § 1201.4(r). An appellant bears the burden of proving,
by preponderant evidence,10 that the agency committed harmful error in reaching
its decision. Pumphrey, 122 M.S.P.R. 186, ¶ 10; 5 C.F.R. § 1201.56(b)(2)(i)(C).
9 Moreover, the proposing official testified that he considered proposing reassignment
or a demotion to a lower-graded position, but he believed that removal was the best
option under the circumstances. HT at 122-23 (testimony of the proposing official).
The deciding official acknowledged that demotion to a previously held position is not
always available because the duties of the appellant’s previously held position were
“different” than the tasks in his Veteran Service Representative (Rating) position, and
there were different expectations at different grade levels. HT at 157-58 (testimony of
the deciding official).
10 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). 12
We agree with the administrative judge that the appellant failed to prove
that the agency committed harmful procedural error. ID at 8-9. There is no
provision in the CBA that required the agency to extend the length of the PIP
each time the appellant used leave or had significant computer/technical issues.
Nevertheless, the agency extended the appellant’s PIP to a total of approximately
104 days on account of his unavailability during the initial 90-day PIP period.
IAF, Tab 1 at 10, 12. Because 104 days is “at least 90 calendar days,” we discern
no agency error.
The CBA also required that “the supervisor shall meet with the employee
on a bi-weekly basis to provide regular feedback on progress made during the PIP
period.”11 IAF, Tab 4 at 82. Here, the record indicates that the appellant’s
supervisor scheduled bi-weekly meetings with him and provided him with
advanced notice of all such meeting dates. Id. at 45-46. The record substantiates
the appellant’s assertion that he was unable to attend some of these meetings due
to medical appointments, IAF, Tab 4 at 26, 28, 30, but the supervisor still
provided him with feedback, id. at 26, 28. We find that the appellant’s
unavailability does not render the agency in violation of this CBA provision.
PFR File, Tab 3 at 10; IAF, Tab 4 at 26, 28, 30.
In any event, even if we determined that the appellant proved agency error,
he fails to show that any alleged violation is likely to have caused the agency to
reach a different conclusion. As noted, the appellant needed to improve his
output only, ID at 7, and he proffers nothing to show that a longer PIP period or
additional meetings with his supervisor would have significantly increased his
output during the PIP and extension period, see Wood v. Department of the Navy ,
27 M.S.P.R. 659, 663 (1985) (finding no harmful error where the agency’s
regulations required a 90 -day PIP, but the agency only afforded the appellant a
30-day PIP, because she failed to show that additional time would have permitted
11 The CBA subsequently references the “weekly meeting.” IAF, Tab 4 at 82. Neither
party raises this discrepancy in the CBA on review. We assume for the purposes of our
analysis that the subsequent reference to a “weekly” meeting was a typographical error.13
her to improve her performance and would have caused the agency not to take the
removal action); see also Green v. Department of Labor , 26 M.S.P.R. 96, 98 n.3
(1985) (finding no harmful error where the agency failed to hold weekly
meetings, as required by the CBA, because the appellant failed to show that he
was harmed by the procedural error). Thus, a different outcome is not warranted.
Remand is required in light of Santos .
As indicated, in affirming the agency’s performance-based removal action,
the administrative judge correctly applied the Board’s precedent setting forth the
relevant legal standard for actions under chapter 43 at the time he issued his
initial decision. ID at 3-8. Subsequent to the initial decision, however, the
Federal Circuit held for the first time that, to support an adverse action under
chapter 43, an agency “must justify institution of a PIP” by showing that the
employee’s performance was unacceptable before the PIP. Santos, 990 F.3d
at 1360-61. Therefore, to defend an action under chapter 43, an agency must now
also prove by substantial evidence that the appellant’s performance during the
appraisal period prior to the PIP was unacceptable in one or more critical
elements. See Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 15. The
Federal Circuit’s decision in Santos applies to all pending cases, including this
one, regardless of when the events took place. Id., ¶ 16. The parties here did not
have an opportunity before the administrative judge to address the modified legal
standard in light of Santos. We therefore remand this case for further
adjudication of the appellant’s removal under the standard set forth in Santos.
See Santos, 990 F.3d at 1363-64 (remanding the appeal for further proceedings
under the modified legal standard); see also Lee, 2022 MSPB 11, ¶ 16 (remanding
the appellant’s chapter 43 appeal because the parties were not informed of the
modified standard set forth in Santos).
On remand, the administrative judge shall accept evidence and argument on
whether the agency proved by substantial evidence that the appellant’s pre-PIP
performance was unacceptable. The administrative judge shall hold a14
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 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 administrative judge’s analysis of the appellant’s
affirmative defenses, he 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).15
ORDER
For the reasons discussed above, we grant the appellant’s petition for
review, modify the initial decision to clarify the legal standard applicable to the
appellant’s claim of EEO retaliation, and remand this case to the regional office
for further adjudication consistent with Santos.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.16 | Young_DavidPH-0432-17-0342-I-2__Remand_Order.pdf | 2024-05-15 | DAVID YOUNG v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-0432-17-0342-I-2, May 15, 2024 | PH-0432-17-0342-I-2 | NP |
1,458 | https://www.mspb.gov/decisions/nonprecedential/Waiters_KrystalSF-315H-19-0234-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KRYSTAL WAITERS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-315H-19-0234-I-1
DATE: May 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Krystal Waiters , Fresno, California, pro se.
Deputy Chief Counsel , North Las Vegas, Nevada, 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 her probationary termination.
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. 5 C.F.R. § 1201.113(b).
On petition for review, the appellant asserts that she has discovered new
information after the issuance of the initial decision; namely, that the supervisor
who recommended terminating her recanted the accusations that led to her
termination, and the other individuals involved in the incident that was the basis
for her termination “have now been cleared of all reprimands.” Petition for
Review File, Tab 1 at 3-5. She contends that the accusations and findings
underlying her termination were based on race and sex discrimination. Id. at 4-5.
Generally, the Board will not consider evidence submitted for the first time on
review absent a showing that it was unavailable before the record closed despite
the party’s due diligence, but 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); 5 C.F.R. § 1201.115.
Accordingly, we have considered the appellant’s arguments; however, they
do not provide a basis for the Board to assert jurisdiction over this matter. As
discussed by the administrative judge, the appellant has not shown a statutory or
regulatory basis on which the Board can conclude that the appellant has standing
to challenge her probationary termination. Initial Appeal File, Tab 7 at 3-5; see2
5 U.S.C. § 7511(a)(1)(A) (defining, in relevant part, an “employee” under
5 U.S.C. chapter 75 as an individual in the competitive service who either (1) is
not serving a probationary or trial period under an initial appointment, or
(2) except as provided in 1599e of Title 10, has completed 1 year of current,
continuous service under an appointment other than a temporary one limited to
1 year or less); Harris v. Department of the Navy , 99 M.S.P.R. 355, ¶ 6 (2005)
(stating that a probationary employee in the competitive service has a regulatory
right of appeal to the Board if she makes a nonfrivolous allegation that she was
terminated due to discrimination based on marital status or for partisan political
reasons, or because of conditions arising before appointment to the position in
question); 5 C.F.R. §§ 315.805-315.806. Additionally, as set forth by the
administrative judge, the Board lacks jurisdiction to consider a discrimination
claim absent an otherwise appealable action. Baggan v. Department of State ,
109 M.S.P.R. 572, ¶ 9 n.2; 5 C.F.R. § 315.806(d). The dismissal of the appeal for
lack of jurisdiction is affirmed.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Waiters_KrystalSF-315H-19-0234-I-1__Final_Order.pdf | 2024-05-15 | KRYSTAL WAITERS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-315H-19-0234-I-1, May 15, 2024 | SF-315H-19-0234-I-1 | NP |
1,459 | https://www.mspb.gov/decisions/nonprecedential/Mosteller_JulietteDC-1221-16-0107-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JULIETTE MOSTELLER,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-1221-16-0107-W-1
DATE: May 15, 2024
THIS ORDER IS NONPRECEDENTIAL1
Juliette Mosteller , Glen Burnie, Maryland, pro se.
Richard Johns , 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 her individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the Washington 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
On June 15, 2015, the appellant filed a Board appeal from the agency’s
decision to remove her from her Program Analyst position in the agency’s
National Cemetery Administration (NCA), effective May 22, 2015. Initial
Appeal File (IAF), Tab 10, Initial Decision (ID) at 2; Mosteller v. Department of
Veterans Affairs , MSPB Docket No. DC-0752-15-0865-I-1 (Removal Appeal),
Initial Appeal File (0865-I-1 IAF), Tab 10 at 20. During the processing of her
Removal Appeal, the appellant submitted copies of letters from the Office of
Special Counsel (OSC) dated October 22, 2015, advising her that had closed its
investigation into her claims. IAF, Tab 23 at 15-17. She expressed her intent to
pursue claims of reprisal relating to personnel actions leading up to her removal.
Id. at 5-6. The administrative judge thereafter docketed this IRA appeal to
address those separate claims. IAF, Tab 1; 0865-I-1 IAF, Tab 26 at 1-3.
In an Order on Jurisdiction, the administrative judge informed the appellant
that there was a question about whether the Board has jurisdiction over her
appeal, apprised her of her burden of proving jurisdiction over an IRA appeal,
and ordered her to file a statement with accompanying evidence on the
jurisdictional issue. IAF, Tab 3. In response, the appellant alleged that the Board
has jurisdiction because she exhausted her administrative remedies before OSC
and suffered reprisal for whistleblowing and other protected activity. IAF, Tab 5
at 4 5. She also raised claims of race and disability discrimination and reprisal
for equal employment opportunity (EEO) activity, requested compensatory and
punitive damages, and submitted OSC’s letters dated September 30 and October
22, 2015, as well as other documents. IAF, Tabs 4-5.
The appellant claims she made disclosures and engaged in activities as
follows: (1) on an unspecified date, she filed an OSC complaint in which she
reported that her agency was underreporting crimes at its facilities in violation of2
the law,2 0865-I-1 IAF, Tab 1 at 186; IAF, Tab 5 at 17; (2) in August or
September 2014, she reported to a “cemetery director” that cemeteries had
stockpiled enough pesticides and fertilizer to make explosive devices, 0865-I-1
IAF, Tab 1 at 186; IAF, Tab 4 at 4, Tab 5 at 5; (3) on September 3, 2014, she
emailed the NCA Executive Director and the NCA Deputy Undersecretary for
Management that the agency’s contingency plans were outdated and not in
compliance with the Federal Continuity Directive and department directives,
0865-I-1 IAF, Tab 1 at 95; IAF, Tab 4 at 4; (4) on or about September or October
2014, she filed a complaint with the Office of Inspector General (OIG) and the
Office of Security Preparedness (OSP) that various NCA emergency plans were
inadequate, Mosteller v. Department of Veterans Affairs , MSPB Docket No. DC-
0752-15-0865-I-2, Appeal File (0865-I-2 AF), Hearing Transcript, dated June 27,
2017 (HT-2) at 34-38; IAF, Tab 23 at 15; (5) on an unspecified date she filed an
OIG complaint, in which she complained that her reassignment/detail was an
“unnecessary duplication of effort,” 0865-I-1 IAF, Tab 23 at 15; IAF, Tab 5 at
7-16; (6) in November 2014, she filed a complaint with the Office of Security and
Law Enforcement (OSLE) alleging that her direct supervisor, the NCA Program
Manager, hit her during a meeting on October 21, 2014, and that she regularly hit
her, 0865-I-2 IAF, Tab 28 at 108-09, Tab 23 at 15; (7) on an unspecified date, she
disclosed that her third -level supervisor, the NCA Deputy Undersecretary for
Management, violated the Health Insurance Portability and Accountability Act of
1996 (HIPAA) and lied during an Administrative Investigation Board (AIB)
investigation by characterizing her as a bad performer and stating that she was on
a performance improvement plan (PIP), 0865-I-1 IAF, Tab 1 at 188, Tab 23 at 15;
(8) in September 2014 or February 2015, she informed the Secretary of the
agency that senior managers lacked candor and engaged in racially discriminatory
hiring and disciplinary actions, 0865-I-1 IAF, Tab 1 at 188, Tab 23 at 15; IAF,
2 The appellant does not appear to have provided any additional information regarding
this earlier OSC complaint, including the date or whether OSC ever issued her a
close-out letter. 3
Tab 5 at 5; and (9) on an unspecified date after the April 6, 2015 proposed
removal, she filed the underlying OSC complaint, which was assigned the
complaint number MA-15-3632. 0865-I-1 IAF, Tab 1 at 186-89. Lastly, in the
appellant’s OSC complaint she alleged that in December 2014 she complained to
the Office of Personnel Management (OPM) of gross mismanagement, including
that the NCA Executive Director falsified an official Government document by
certifying on the appellant’s Standard Form (SF) 50 that the position she was
reassigned or detailed to was “necessary to carryout Government business,” when
the appellant was “double slotted” with another employee and assigned duties that
were being accomplished by the Office of Human Resources Management
(OHRM). 0865-I -1 IAF, Tab 1 at 186-87; IAF, Tab 5 at 4-5.
According to the appellant, as a result of her disclosures and activity, she
was subjected to retaliation, including the following: (1) on unspecified dates,
she was subjected to a hostile work environment and humiliation, IAF, Tab 4 at 4;
(2) on unspecified dates, agency officials made defamatory statements about her,
id.; (3) on unspecified dates, she was denied training, id.; (4) on September 25,
2014, the agency issued her a letter of reprimand, 0865-I-1 IAF, Tab 10 at
167-68; IAF, Tab 4 at 4; (5) on October 12, 2014, the appellant was reassigned or
detailed from her position as the Emergency Preparedness Coordinator to a
position in OHRM and her telework privileges were removed, IAF, Tab 4 at 4,
Tab 5 at 9, 15; (6) on March 13, 2015, the agency suspended her for 14 days,
0865-I-1 IAF, Tab 10 at 167-68; IAF, Tab 4 at 4; and (7) on May 23, 2015, the
agency removed her from her position and deprived her of the ability to respond
to the charges, 0865-I-1 IAF, Tab 10 at 21-23; IAF, Tab 4 at 4. Lastly, the
appellant alleges that in 2014, management banned her from the building,
released her Personal Identifiable Information (PII), the NCA Executive Director
referred to her as the “navy yard shooter,” she was locked out of the building at
least twice, and the NCA Deputy Undersecretary for Management told her he4
would only consider her request for a reasonable accommodation if she “dropped
[her] EO claims.” IAF, Tab 5 at 5.
The agency moved to dismiss the appeal for lack of jurisdiction. IAF, Tab
6 at 7-10. The appellant filed a request to suspend case processing for 60 days to
obtain further information from OSC; however, she did not file an additional
submission during the 1-year period following her request and before the issuance
of the initial decision. IAF, Tab 7.
Based on the written record, the administrative judge issued an initial
decision dismissing the IRA appeal for lack of jurisdiction. ID at 1, 14.
Specifically, he found that the appellant proved that she exhausted her
administrative remedies before OSC regarding the claims of reprisal for
whistleblowing and other protected activity summarized in OSC’s letters. ID
at 7-8. However, he found that she failed to prove exhaustion of her OSC remedy
regarding the additional claims raised in her jurisdictional response, in particular
her alleged disclosure to OPM that an agency official had falsified an official
Government document and the alleged retaliatory personnel actions of being
banned from and locked out of a building. ID at 8. He further found that she
failed to nonfrivolously allege that she made a protected disclosure or engaged in
protected activity that was a contributing factor in a personnel action. ID at 8-14.
The appellant has filed a petition for review challenging the administrative
judge’s jurisdictional findings and asserting adjudicatory bias. Petition for
Review (PFR) File, Tab 1. The agency has filed a response opposing her petition.
PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over an IRA appeal if the appellant has
exhausted her administrative remedies before OSC and makes nonfrivolous
allegations3 that (1) she made a protected disclosure described under 5 U.S.C.
3 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).5
§ 2302(b)(8) or engaged in protected activity described under 5 U.S.C. § 2302(b)
(9)(A)(i), (B), (C), or (D), and (2) the disclosure or protected activity was a
contributing factor in the agency’s decision to take or fail to take a personnel
action as defined by 5 U.S.C. § 2302(a)(2)(A). Salerno v. Department of the
Interior, 123 M.S.P.R. 230, ¶ 5 (2016). Once an appellant establishes jurisdiction
over her IRA appeal, she is entitled to a hearing on the merits of her claim, which
she must prove by preponderant evidence. Id.
The administrative judge erred in finding that the appellant had not exhausted all
her alleged disclosures.
The administrative judge found that the appellant exhausted her alleged
disclosures and activities with OSC, with one exception, i.e., the December 2014
complaint to OPM that the NCA Executive Director falsified an official
Government document by certifying on the appellant’s SF-50 that the position she
was reassigned or detailed to was “necessary to carryout Government business,”
when the appellant was “double slotted” with another employee and assigned
duties that were being accomplished by the OHRM. ID at 8. The appellant
challenges this finding on review. PFR File, Tab 1 at 4. The parties do not
dispute the administrative judge’s determination that the appellant exhausted the
remaining matters, and we discern no basis to disturb those findings on review.4
IAF, Tab 4 at 4. We further conclude that the appellant exhausted the December
2014 alleged disclosure.
An appellant satisfies the exhaustion requirement when she has provided
OSC with a sufficient basis to pursue an investigation into her allegations of
whistleblower reprisal. Chambers v. Department of Homeland Security ,
2022 MSPB 8, ¶ 10 (citations omitted). An appellant may demonstrate
4 Similarly, the appellant does not challenge and we find no basis to disturb the
administrative judge’s finding that the appellant failed to exhaust with OSC her
remaining alleged personnel action, i.e., that in 2014 management banned her from the
building, released her PII, referred to her as the “navy yard shooter,” locked her out of
the building at least twice, and told her that her request for a reasonable accommodation
would only be considered if she “dropped [her] EO claims.” ID at 8. 6
exhaustion through her initial OSC complaint or correspondence with OSC. Id.,
¶ 11. Alternatively, exhaustion may be proven through other sufficiently reliable
evidence, such as an affidavit or declaration attesting that the appellant raised
with OSC the substance of the facts in her appeal. Id. (citation omitted). An
appellant must prove exhaustion by preponderant evidence. Id.
With the appellant’s initial appeal, she provided a copy of her OSC
complaint, which she declared under penalty of perjury that she submitted to
OSC.5 0865-I-1 IAF, Tab 1 at 6, 186-89; PFR File, Tab 1 at 4. The OSC
complaint essentially contains the substance of the allegations of her alleged
December 2014 OPM complaint. For instance, she alleged that, “the position to
which she was assigned was one that was not needed by the Administration; it
was a position whose responsibilities were being covered by [OHRM],” she was
“double slotted” with another employee, and therefore, her first-level supervisor
“exercised lack of candor when she signed the SF52 stating that the position was
required to accomplish the mission of the organization.” 0865-I-1 IAF, Tab 1
at 186-87 (punctuation as in the original). Accordingly, we find that the appellant
established by preponderant evidence that she exhausted her December 2014
alleged disclosure.
The administrative judge erred in finding that the appellant failed to make
nonfrivolous allegations that he engaged in protected activity.
In his initial decision, the administrative judge found that the appellant
failed to nonfrivolously allege that any of her communications, including her OIG
and OSC complaints, constituted protected activity. ID at 13 & n.12. The parties
do not dispute the administrative judge’s finding on review. Nonetheless, we
revisit it here because the issue of the Board’s jurisdiction is always before it and
5 As indicated above, the administrative judge subsequently docketed this separate IRA
appeal sua sponte. 0865-I-1 IAF, Tab 26, Initial Decision at 3; IAF, Tab 2 at 2. A copy
of the appellant’s initial appeal is contained only in her removal appeal file, and
therefore we cite to that file here. 7
may be raised sua sponte by the Board at any time during a Board proceeding.
Francis v. Department of the Air Force , 120 M.S.P.R. 138, ¶ 8 (2013).
In our Remand Order in the appellant’s 2015 Removal Appeal, we have
concluded that the appellant proved by preponderant evidence that she engaged in
the following protected activities under 5 U.S.C. § 2302(b)(9): (1) on an
unspecified date, she filed an OSC complaint in which she alleged that the agency
was “under reporting crimes at its facilities,” in violation of the law, 0865-I-1
IAF, Tab 1 at 186; (4) on or about September or October 2014, she filed a
complaint with the OIG and the OSP that various NCA emergency plans were
inadequate, 0865-I-2 AF, HT-2 at 34-38; 0865-I-1 IAF, Tab 23 at 15; (5) on an
unspecified date, she filed an OIG complaint, in which she complained that her
reassignment/detail was an “unnecessary duplication of effort,” 0865-I-1 IAF,
Tab 23 at 15; IAF, Tab 5 at 7-16; and (9) on an unspecified date after the April 6,
2015 proposed removal, she filed the underlying OSC complaint (MA-15-3632),
0865-I-1 IAF, Tab 1 at 186-89.6 The nonfrivolous allegation standard needed to
establish jurisdiction here is lower than the preponderance of the evidence
standard needed to prove the appellant’s claims on the merits. See Ingram v.
Department of the Army , 114 M.S.P.R. 43, ¶¶ 10, 20 (2010) (explaining that an
appellant who made nonfrivolous allegations that he made a protected disclosure
that was a contributing factor in a personnel action was required to prove his
claims on the merits by preponderant evidence). Because in the 2015 Removal
Appeal we found that the appellant proved that she engaged in this protected
activity by preponderant evidence, we find that she necessarily met her
jurisdictional burden with respect to the same claims.
With respect to the appellant’s alleged protected disclosures (2) and (6), in
the 2015 Removal Appeal, we concluded that the appellant did not prove by
preponderant evidence that she made protected disclosures. However, that
6 For the sake of clarity, we will continue to use the numbering we assigned to the
appellant’s disclosures and activities earlier in this decision. See supra.8
decision is not final because it was remanded in order for the administrative judge
to make findings in the first instance regarding whether the appellant established
that her remaining disclosures (3), (7), (8), and (10) were protected, whether the
remaining protected disclosures and activities were a contributing factor in her
removal, and if so, to reevaluate whether the agency proved by clear and
convincing evidence that it would have removed the appellant absent her
protected disclosures and activities. We need not decide here whether the
appellant has nonfrivolously alleged that she made protected disclosures with
respect to those complaints, because as discussed below, we find that the
appellant has established jurisdiction because she has nonfrivolously alleged that
at least one of her alleged protected activities was a contributing factor in at least
one alleged personnel action.
The administrative judge erred in finding that the appellant failed to
nonfrivolously allege that her protected activity was a contributing factor in a
personnel action.
The administrative judge concluded that the appellant failed to
nonfrivolously allege that her alleged protected disclosures or activity contributed
to a personnel action. ID at 13. We disagree.
An appellant’s protected disclosure or activity is a contributing factor if it
in any way affects an agency’s decision to take a personnel action. Dorney v.
Department of the Army , 117 M.S.P.R. 480, ¶ 14 (2012). One way an appellant
may establish the contributing factor criterion is the knowledge/timing test, under
which she 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 v. Office of
Management and Budget , 2022 MSPB 31, ¶ 63. The Board has held that a
personnel action taken within approximately 1 to 2 years of an appellant’s9
disclosures or activity satisfies the timing portion of the knowledge/timing test.
Id.
The appellant alleged that she filed a complaint with the OSP and
eventually the OIG that various NCA emergency plans were inadequate and
testified, during the hearing in her 2015 Removal Appeal, that she filed this
complaint on or about September or October 2014. 0865-I-2 AF, HT-2 at 34-38;
0865-I-1 IAF, Tab 23 at 15. She also alleged that on March 13, 2015, she was
issued a 14-day suspension in retaliation for her alleged protected disclosures and
activities, including her OIG complaint. IAF, Tab 4 at 4; 0865-I-1 IAF, Tab 10
at 132-33. Therefore, the appellant’s allegations are sufficient to meet her
jurisdictional burden as to the timing prong of the knowledge/timing test as it
concerns her 14-day suspension.
We also conclude that the appellant nonfrivolously alleged that the agency
official who issued the decision on her 14-day suspension had direct knowledge
of the appellant’s October 2014 OIG complaint. Specifically, during the hearing
in the 2015 Removal Appeal, the deciding official who was also the NCA
Executive Director and the appellant’s second-line supervisor testified that she
was aware the appellant complained to the OIG about “emergency planning
things.” 0865-I-2 AF, HT-1 at 40. Thus, the appellant has made nonfrivolous
allegations regarding the knowledge prong of the knowledge/timing test.
In cases such as this one, when the appellant has alleged multiple personnel
actions, the Board has jurisdiction if the appellant exhausts her administrative
remedies before OSC and makes a nonfrivolous allegation that at least one
alleged personnel action was taken in reprisal for at least one alleged protected
disclosure or activity. Skarada v. Department of Veterans Affairs , 2022 MSPB
17, ¶ 13. Therefore, we find it appropriate to remand this appeal for a
determination on the merits.7
7 The appellant contends that the administrative judge was biased because he dismissed
all of her claims, determined that she “did not explain her dismissal for lack of candor,”
and was aware of her former position and duties from her separate removal appeal. PFR10
ORDER
For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
Because the appellant’s alleged protected disclosures and activities in this appeal
overlap with those in the 2015 Removal Appeal, on remand the Washington
Regional Office may wish to join the appeals.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
File, Tab 1 at 5. The Board 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).
Here, to the extent the appellant is claiming that she cannot obtain a fair ruling because
the administrative judge is familiar with the facts surrounding her separate removal
appeal, we find that this broad allegation of bias is insufficient to rebut the presumption
of his honesty and integrity. See Oliver v. Department of Transportation , 1 M.S.P.R.
382, 386 (1980) (observing that, in making a claim of bias or prejudice against an
administrative judge, a party must overcome the presumption of honesty and integrity
that accompanies administrative adjudicators). 11 | Mosteller_JulietteDC-1221-16-0107-W-1__Remand_Order.pdf | 2024-05-15 | JULIETTE MOSTELLER v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-1221-16-0107-W-1, May 15, 2024 | DC-1221-16-0107-W-1 | NP |
1,460 | https://www.mspb.gov/decisions/nonprecedential/Mosteller_JulietteDC-0752-15-0865-I-2__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JULIETTE MOSTELLER,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-0752-15-0865-I-2
DATE: May 15, 2024
THIS ORDER IS NONPRECEDENTIAL1
Juliette Mosteller , Glen Burnie, Maryland, pro se.
Robert Vega , 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
affirmed the agency’s removal action. For the reasons discussed below, we
GRANT the appellant’s petition for review We AFFIRM the initial decision to
the extent it found that the agency proved its lack of candor charge against the
appellant and that the appellant failed to prove her status-based disability and
race discrimination claims and her claim of reprisal for equal employment
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 (EEO) activity, VACATE the administrative judge’s finding that the
agency proved by clear and convincing evidence that it would have removed the
appellant absent her protected disclosures and activities, and REMAND the case
to the regional office for further adjudication of the appellant’s claims of
disability discrimination based on failure to accommodate , a due process
violation or harmful procedural error, and whistleblower reprisal in accordance
with this Remand Order.
BACKGROUND
Effective May 22, 2015, the agency removed the appellant from her
Program Analyst position with the agency’s National Cemetery Administration
(NCA) based on the charge of lack of candor in her statements against her
supervisors (four specifications). Mosteller v. Department of Veterans Affairs ,
MSPB Docket No. DC-0752-15-0865-I-1, Initial Appeal File (IAF), Tab 10
at 20-21. The appellant allegedly made unsubstantiated statements related to her
claim that her first-line supervisor hit her. Id. at 21. In deciding to remove the
appellant, the deciding official considered, among other things, her prior
disciplinary actions. Id. at 22, 114; Mosteller v. Department of Veterans Affairs ,
MSPB Docket No. DC-0752-15-0865-I-2, Appeal File (I-2 AF), Tab 28 at 101-02,
Tab 31; Hearing Transcript (HT) at 170, 212-13 (testimony of deciding official).
Specifically, the appellant received a letter of reprimand in September 2014 for
inappropriate communication and served a 14-day suspension, from March 22 to
April 4, 2015, based on the charges of failure to follow directions and
inappropriate communication. I-2 AF, Tab 28 at 165-68. The deciding official
also considered the Administrative Investigation Board (AIB) report of
investigation into the appellant’s statements against her supervisors. I-2 AF,
Tab 28 at 112-36, Tab 31.
The appellant appealed her removal to the Board, and she requested a
hearing. IAF, Tab 1 at 1-6, Tab 4. In November 2015, the administrative judge
dismissed the appeal without prejudice to docket and process separately the2
appellant’s suspension and individual right of action (IRA) appeals.2 IAF, Tab 26
at 1-3. In June 2016, the appellant’s removal appeal was refiled under the current
docket number. I-2 AF, Tab 2. The appellant raised the affirmative defenses of
discrimination (race and disability), reprisal for EEO activity, and retaliation for
whistleblowing or other protected activity. I-2 AF, Tab 6 at 2; IAF, Tab 1 at 5,
Tab 23 at 5-6.
The appellant submitted copies of letters from the Office of Special
Counsel (OSC) below, dated October 22, 2015, advising her that OSC had closed
its investigation into her appeal. IAF, Tab 23 at 15-17. She expressed her intent
to pursue claims of reprisal relating to personnel actions leading up to her
removal. Id. at 5-6. The administrative judge thereafter docketed a separate IRA
appeal to address those claims. IAF, Tab 26 at 1-3; Mosteller v. Department of
Veteran Affairs , MSPB Docket No. DC-1221-16-0107-W-1 (0107-W-1 IAF),
Tab 3 at 1-2. In April 2017, this case was reassigned to a different administrative
judge. I-2 AF, Tab 15.
With respect to her whistleblower reprisal affirmative defense, the
appellant claims she was removed in retaliation for making disclosures and
engaging in activities as follows: (1) on an unspecified date, she filed an OSC
complaint in which she reported that her agency was underreporting crimes at its
facilities in violation of the law, IAF, Tab 1 at 186; (2) in August or September
2014, she reported to a “cemetery director” that cemeteries had stockpiled enough
pesticides and fertilizer to make explosive devices, IAF, Tab 1 at 186, Tab 23
at 15; 0107-W-1 IAF, Tab 5 at 5; (3) on September 3, 2014, she emailed the NCA
Executive Director and the NCA Deputy Undersecretary for Management that the
2 On June 27, 2016, the Board issued a Final Order affirming the dismissal of the
appellant’s suspension appeal for lack of jurisdiction. Mosteller v. Department of
Veterans Affairs, MSPB Docket No. DC-0752-16-0108-I-1, Final Order, ¶¶ 2, 8, 15
(June 27, 2016). The appellant filed an appeal of the Board’s Final Order to the U.S.
Court of Appeals for the Federal Circuit, which affirmed the Board’s decision.
Mosteller v. Merit Systems Protection Board , 673 F. App’x 998 (Fed. Cir. 2017) (per
curiam). 3
agency’s contingency plans were outdated and not in compliance with the Federal
Continuity Directive and department directives, IAF, Tab 1 at 95, Tab 23 at 15;
(4) on or about September or October 2014, she filed a complaint with the Office
of Inspector General (OIG) and the Office of Security Preparedness (OSP) that
various NCA emergency plans were inadequate, HT at 34-38; IAF, Tab 23 at 15;
(5) on an unspecified date she filed an OIG complaint, in which she complained
that her reassignment/detail was an “unnecessary duplication of effort,” IAF, Tab
23 at 15; 0107-W-1 IAF, Tab 5 at 7-16; (6) in November 2014, she filed a
complaint with the Office of Security and Law Enforcement (OSLE) alleging that
her direct supervisor, the NCA Program Manager, hit her during a meeting on
October 21, 2014 and that she regularly hit her, IAF, Tab 28 at 108-09, Tab 23
at 15; (7) on an unspecified date, she disclosed that her third-level supervisor, the
NCA Deputy Undersecretary for Management, violated the Health Insurance
Portability and Accountability Act of 1996 (HIPAA) and lied during an AIB
investigation by characterizing her as a bad performer and stating that she was on
a performance improvement plan (PIP), IAF, Tab 1 at 188, Tab 23 at 15; (8) in
September 2014 or February 2015, she informed the Secretary of the agency that
senior managers lacked candor and engaged in racially discriminatory hiring and
disciplinary actions, IAF, Tab 1 at 188, Tab 23 at 15; 0107-W-1 IAF, Tab 5 at 5;
and (9) on an unspecified date after the April 6, 2015 proposed removal, she filed
the underlying OSC complaint, which was assigned the complaint number
MA-15-3632. IAF, Tab 1 at 186-89. Lastly, in the appellant’s OSC complaint
she alleged that in December 2014 she complained to the Office of Personnel
Management (OPM) of gross mismanagement, including that the NCA Executive
Director falsified an official Government document by certifying on the
appellant’s Standard Form (SF) 50 that the position she was reassigned or
detailed to was “necessary to carryout Government business,” when the appellant
was “double slotted” with another employee and assigned duties that were being4
accomplished by the Office of Human Resources Management (OHRM). IAF,
Tab 1 at 186-87; 0107-W-1 IAF, Tab 5 at 4-5.
After holding the requested hearing, the administrative judge issued an
initial decision affirming the agency’s removal action. I-2 AF, Tab 35, Initial
Decision (ID) at 1, 23. Specifically, she sustained the charge and all
specifications, and she found nexus and that the imposed penalty is within the
bounds of reasonableness. ID at 9-12, 20-22. The administrative judge further
found that the appellant failed to prove the affirmative defenses of discrimination
(disability and race), EEO reprisal, and retaliation for whistleblowing or other
protected activity. ID at 13-20.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response to which the appellant has replied.
PFR File, Tabs 3, 4.
DISCUSSION OF ARGUMENTS ON REVIEW
On petition for review, the appellant challenges the administrative judge’s
findings regarding the agency’s charge of misconduct, the affirmative defenses of
discrimination (disability and race), reprisal for equal employment opportunity
(EEO) activity, and retaliation for whistleblowing or other protected activity, and
the reasonableness of the imposed penalty. Petition for Review (PFR) File,
Tabs 1, 4. Further, the appellant disputes the procedural rulings made by the
administrative judge previously assigned to the appeal, and she alleges that the
agency conducted a procedurally inadequate investigation. Id. As explained
below, we affirm the administrative judge’s findings that the agency proved its
lack of candor charge and nexus and that the appellant failed to meet her burden
of proving race and status-based disability discrimination and reprisal for EEO
activity. However, we remand the appeal in order for the appellant to be provided
notice of her burden to establish her affirmative defenses of disability
discrimination based on a failure to accommodate and a due process violation or5
harmful procedural error. We also remand the appeal for further adjudication of
the appellant’s claim of whistleblower reprisal.
The administrative judge previously assigned to the appeal did not abuse his
discretion in ruling on procedural matters.
The appellant alleges on review that the administrative judge previously
assigned to the appeal abused his discretion in denying her request for witnesses
and motions regarding discovery. PFR File, Tab 1 at 11, 14, 19, Tab 4 at 14-15.3
In the prehearing conference summary and order, the administrative judge
disallowed 26 of the appellant’s requested witnesses on the basis of relevance.
I-2 AF, Tab 6 at 3-5; IAF, Tab 23 at 53-54. The appellant filed a timely objection
to the ruling on witnesses. I-2 AF, Tab 7 at 5-6. We find that the appellant’s
description of the expected testimony of the disallowed witnesses does not show
that the administrative judge abused his discretion. PFR File, Tab 1 at 8, 11,
14-15, Tab 4 at 12, 14-15; I-2 AF, Tab 7 at 5-6; see Franco v. U.S. Postal
Service, 27 M.S.P.R. 322, 325 (1985) (holding that an administrative judge has
wide discretion to exclude witnesses when it has not been shown that their
testimony would be relevant, material, and nonrepetitious); 5 C.F.R. § 1201.41(b)
(8), (10) (recognizing the authority of administrative judges to rule on, and order
the production of, relevant, material, and nonrepetitious witnesses). In particular,
the appellant has not shown that the disallowed witnesses would have provided
relevant, material, and nonrepetitious testimony, considering that she had the
opportunity to testify and to question six other witnesses at the hearing. HT at 3,
435.
The appellant further argues that the prior administrative judge abused his
discretion in denying her motions to compel discovery and for reconsideration of
3 The appellant claims that her due process rights were violated when the administrative
judge denied her request for witnesses and her discovery motions. PFR File, Tab 1
at 7-8, Tab 4 at 7, 9-11. We interpret such claims as part of her abuse of discretion
argument. See Markland v. Office of Personnel Management , 73 M.S.P.R. 349, 357
(1997) (finding the appellant’s contention that there is a “due process right” to
discovery in a Board appeal lacks merit), aff’d, 140 F.3d 1031 (Fed. Cir. 1998).6
his denial of her motion to compel. PFR File, Tab 1 at 11. She has resubmitted
on review her discovery request that is part of the record before the
administrative judge. PFR File, Tab 4 at 20-29; IAF, Tab 17 at 7-16; see Meier v.
Department of the Interior , 3 M.S.P.R. 247, 256 (1980) (stating that evidence
submitted on review that was included in the record below and considered by the
administrative judge is not new). We find that the administrative judge did not
abuse his discretion in denying the appellant’s motion to compel because she
failed to include a copy of the agency’s response to her discovery request or a
definitive discussion of the deficiencies with the agency’s response. IAF, Tab 17
at 4-6, Tab 21 at 2-3; see Vaughn v. Department of the Treasury , 119 M.S.P.R.
605, ¶ 15 (2013) (holding that an administrative judge has broad discretion in
ruling on discovery matters and, absent an abuse of discretion, the Board will not
find reversible error in such rulings); 5 C.F.R. §§ 1201.41(b)(4) (reflecting the
authority of administrative judges to rule on discovery motions), 1201.73(c)(1)(ii)
(requiring a party moving to compel to provide a copy of the opposing party’s
response to her discovery request or a statement that none was received);
1201.74(a) (providing that an administrative judge may deny a motion to compel
discovery if a party fails to comply with the requirements of section 1201.73(c)
(1)).
Moreover, we find that the administrative judge did not abuse his discretion
in denying the appellant’s motion for reconsideration. I-2 AF, Tab 6 at 1. In her
motion for reconsideration, the appellant apparently cured the procedural
deficiencies with her motion to compel by outlining her reasons for requesting
additional discovery and by including the agency’s response. IAF, Tab 25 at 4-9,
12-23. Although the administrative judge did not explain why he denied her
motion for reconsideration, I-2 AF, Tab 6 at 1, the appellant has not shown why
the additional information she sought was relevant or reasonably calculated to
lead to the discovery of admissible evidence, PFR File, Tab 1 at 7-8, 13-14, 16,
Tab 4 at 6-7, 10-12.7
In addition, the appellant asserts on review that the prior administrative
judge abused his discretion by not properly ruling on her proposed hearing
exhibits and by not providing her with the courtesy allowed to pro se litigants
regarding her pleadings and motions. PFR File, Tab 1 at 11. The appellant
included proposed hearing exhibits with her prehearing submission, IAF, Tab 23
at 8-52, 55-70, and the administrative judge explained to her at the prehearing
conference that he would consider her request to admit the exhibits into the
record during the hearing, I-2 AF, Tab 6 at 5. He ultimately did not rule on the
exhibits at the hearing because another administrative judge was assigned to the
appeal; however, the new administrative judge assigned to the appeal ruled on the
exhibits during the course of the hearing. I-2 AF, Tab 15; HT at 56-57 . An
administrative judge has wide discretion to control the proceedings before her,
including the authority to exclude evidence that she believes would be irrelevant,
immaterial, or unduly repetitious. Dieter v. Department of Veterans Affairs ,
2022 MSPB 32, ¶ 23; see 5 C.F.R. § 1201.41(b)(6), (8) (recognizing the authority
of an administrative judge to convene and regulate the course of the hearing and
to rule on exhibit lists). We find that the prior administrative judge properly
exercised his discretion to delay ruling on the exhibits until the hearing.
See 5 C.F.R. § 1201.41(b)(6), (8). The appellant has not alleged that her
substantive rights were harmed by such delay. Moreover, even considering the
appellant’s pro se status, the appellant has not identified any specific evidence
that was excluded at the hearing, nor has she shown that the administrative judge
abused his discretion in ruling on procedural matters.
The appellant’s claim of adjudicatory bias provides no basis to disturb the initial
decision.
The appellant claims on review that the administrative judge previously
assigned to this appeal “acted in a manner consistent with someone supporting the
[a]gency as opposed to an unbiased professional.” PFR File, Tab 1 at 11. We do
not find that this claim provides a basis to disturb the initial decision. The Board8
will not infer bias based on an administrative judge’s case-related rulings.
Vaughn, 119 M.S.P.R. 605, ¶ 18. Moreover, the appellant’s broad allegation of
bias is insufficient to rebut the presumption of the administrative judge’s honesty
and integrity. See Oliver v. Department of Transportation , 1 M.S.P.R. 382, 386
(1980). Importantly, the appellant has not alleged that the administrative judge
who issued the initial decision was biased.
We discern no reason to disturb the administrative judge’s credibility findings.
In the initial decision, the administrative judge relied on the hearing
testimony and made credibility determinations regarding the appellant, her first-
and second-line supervisors, the proposing and deciding officials, and the
Criminal Investigator. ID at 6, 7 n.3, 9-10, 10 nn. 6 & 8, 12-17, 20, 22. The
appellant challenges the administrative judge’s credibility findings on review,
arguing that she overlooked the inconsistent and false testimony presented by the
agency officials. PFR File, Tab 1 at 13, 15-17, 20-21, Tab 4 at 8, 11, 15. The
appellant further alleges that the administrative judge improperly relied on the
Criminal Investigator’s hearsay testimony and failed to consider his bias and the
inconsistency between his and the first-line supervisor’s testimony before the
AIB. PFR File, Tab 1 at 10-11, 13, 16, 18, 21, Tab 4 at 14.
After reviewing the record and considering the appellant’s arguments on
review, we discern no reason to disturb the administrative judge’s thorough and
well-supported credibility findings.4 See Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98, 105-06 (1997). The administrative judge properly applied the
relevant Hillen factors in making credibility determinations. ID at 9-11;
see Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987) (identifying
the factors an administrative judge should consider when making credibility
determinations). Furthermore, the appellant’s allegations of bias, inconsistent
4 When, as here, an administrative judge has heard live testimony, her credibility
determinations must be deemed to be at least implicitly based upon the demeanor of the
witnesses. Little v. Department of Transportation , 112 M.S.P.R. 224, ¶ 4 (2009).9
statements, and false testimony are insufficient to raise doubt as to the
truthfulness of the witnesses’ assertions of material facts. 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. Haebe v. Department of Justice ,
288 F.3d 1288, 1301 (Fed. Cir. 2002); see also Hillen, 35 M.S.P.R. at 459
(explaining that inconsistencies between a witness’s prior statements and hearing
testimony do not necessarily render his or her testimony incredible). Moreover,
the administrative judge properly considered the factors set forth in Borninkhof v.
Department of Justice , 5 M.S.P.R. 77, 87 (1981), in finding that the Criminal
Investigator’s hearing testimony was reliable and probative hearsay evidence. ID
at 10 n.6.
We discern no reason to disturb the administrative judge’s finding that the agency
proved the lack of candor charge.
The appellant generally asserts on review that the agency did not prove its
lack of candor charge. PFR File, Tab 1 at 24. For the reasons described in the
initial decision, we agree with the administrative judge’s finding that the agency
proved the lack of candor charge by a preponderance of the evidence. ID at 8-12;
see Fargnoli v. Department of Commerce , 123 M.S.P.R. 330, ¶ 17 (2016)
(holding that lack of candor requires proof of the following elements: (1) that the
employee gave incorrect or incomplete information; and (2) that he did so
knowingly).
The appellant reasserts on review her argument that the agency should have
to prove the charges of defamation and falsification. PFR File, Tab 1 at 12, 22,
Tab 4 at 7-9; IAF, Tab 23 at 6. If an agency chooses to label an act of alleged
misconduct, then it must prove the elements that make up the legal definition of
the charge, if there are any. Otero v. U.S. Postal Service , 73 M.S.P.R. 198, 202
(1997). Here, the agency only charged the appellant with lack of candor, which10
has specific elements that make up the legal definition of the charge. IAF, Tab 10
at 21; see Fargnoli, 123 M.S.P.R. 330, ¶ 17 . The appellant’s reference to
Bonanova v. Department of Education , 49 M.S.P.R. 294, 296-98 (1991), is
inapposite. As relevant to the facts in the instant appeal, the agency in Bonanova
charged the employee with “[m]aking false and unfounded statements, which
[were] slanderous, and defamatory, about an agency official.” 49 M.S.P.R.
at 294, 298. Therefore, the Board found that the administrative judge erred in
finding that the agency proved the charge because the alleged statements were
false or unfounded without addressing if they were slanderous and defamatory.
Id. at 296-98. Here, the agency charged the appellant simply with lack of candor.
PFR File, Tab 1 at 12, Tab 4 at 7-8. Thus, we agree with the administrative judge
that the agency has the burden of proving the elements of a lack of candor charge
and not any other charge. ID at 8 n.5. Lastly, the appellant’s reassertion of her
argument regarding qualified privilege (as a defense to a charge of defamation) is
not relevant to the agency’s lack of candor charge. PFR File, Tab 1 at 23-24,
Tab 4 at 17; IAF, Tab 23 at 6. Thus, we decline to consider that argument
further.
We discern no reason to disturb the administrative judge’s finding that the
appellant has failed to prove the affirmative defenses of status-based disability
and race discrimination and EEO reprisal.
The appellant generally reasserts on review the affirmative defenses of
status-based disability discrimination based on disparate treatment, race
discrimination, and EEO reprisal. PFR File, Tab 1 at 14-16, 18, 25, Tab 4 at 7-9,
15-16. For the reasons discussed in the initial decision, we agree with the
administrative judge’s finding that the appellant failed to prove these affirmative
defenses. ID at 13-17. To the extent the appellant disputes the administrative
judge’s denial of her proposed exhibit regarding a proposed counseling, we agree
with the administrative judge’s reasoning that the document is not relevant to the11
appeal. PFR File, Tab 1 at 15-16; ID at 14 n.10; HT at 67-68; IAF, Tab 23
at 21-22.
We remand the appeal to afford the appellant an opportunity to address her
affirmative defenses of disability discrimination based on the agency’s failure to
provide a reasonable accommodation and violation of her due process rights or
harmful procedural error.
On review, the appellant reasserts her argument that the agency improperly
denied her reasonable accommodation request to telework and failed to engage in
the interactive process by failing to respond to her accommodation request.5 PFR
File, Tab 1 at 18, Tab 4 at 16; I-2 AF, Tab 7 at 4; IAF, Tab 23 at 6. Specifically,
she alleges that she requested an accommodation to telework, that the agency did
not respond to her request, and that if she had been teleworking on the date of the
incident underlying her removal, the misconduct never would have occurred.
PFR File, Tab 1 at 18. The appellant also argues on review that the agency
violated her due process rights and committed harmful procedural error when the
AIB allegedly failed to follow its own procedures for conducting administrative
investigations set forth in the Department of Veterans Affairs (VA) Handbook
0700, Administrative Investigations (July 31, 2002).6 Id. at 7-11, Tab 4 at 5-7,
10-14. Specifically, she alleges that the AIB erroneously relied on the testimony
of agency officials without considering credibility issues or obtaining supporting
evidence. Id.
During the course of the proceeding below, the administrative judge
originally assigned to the appeal determined that the appellant had not raised a
disability discrimination claim based on failure to accommodate. I-2 AF, Tab 6
at 3-4 n. 2; HT at 334-35. Nevertheless, in her initial decision, the new
administrative judge addressed the failure-to-accommodate claim in the context
5 At the hearing, the agency stipulated that the appellant had requested a reasonable
accommodation for her medical condition. HT at 329.
6 On occasion, the appellant refers to the AIB as the “Board.” PFR File, Tab 1 at 9-10,
Tab 4 at 12-14. For clarity and consistency, we refer to it here as the AIB. 12
of analyzing the affirmative defense of status-based discrimination based on
disparate treatment and found that the appellant failed to establish her claim. ID
at 13-14. The administrative judge did not address the affirmative defense of a
violation of due process rights and harmful procedural error in the initial
decision. Based on the circumstances in this case, we find that the appellant
raised and did not abandon these defenses and we remand the appeal to afford the
appellant an opportunity to fully address these affirmative defenses.
The appellant raised affirmative defenses of disability discrimination
based on failure to provide a reasonable accommodation and due
process violation or harmful procedural error, entitling her to notice
of her burden to prove these claims.
When an appellant raises an affirmative defense, the administrative judge
must address the affirmative defense in a close of record order or prehearing
conference summary. Thurman v. U.S. Postal Service , 2022 MSPB 21, ¶¶ 10, 17
n.7. The appellant must be provided with notice of her burden to prove her
claims. Alarid v. Department of the Army , 122 M.S.P.R. 600, ¶ 17 (2015).
Although in the appellant’s initial appeal she only raised affirmative
defenses of disability and race discrimination and whistleblower reprisal, she
subsequently submitted prehearing submissions in which she generally alleged
that the agency improperly denied her accommodation request and violated her
due process rights. IAF, Tab 23 at 6. The administrative judge previously
assigned to the appeal did not issue an affirmative defense order notifying the
appellant of the standard for establishing her defenses. Consequently, the
appellant did not provide any additional information about her medical condition
or offer any explanation of how the agency’s removal decision was based on the
agency’s failure to accommodate. Similarly, she did not explain the errors the
agency made in the AIB investigation and how it was harmful to her rights.
In the order and summary of the prehearing teleconference, the
administrative judge did not add the due process or harmful error claims, but he
noted that during the teleconference the appellant confirmed that she was not13
raising a disability discrimination claim based on the failure to accommodate.
I-2 AF, Tab 6 at 2-3 n. 2. The appellant timely objected to that order and stated
that she intended to continue to pursue a disability discrimination claim based on
the failure to accommodate; however, she did not object to the exclusion of the
claim of a due process violation or harmful procedural error. I-2 AF, Tab 6 at 4.
The appeal was then reassigned to a new administrative judge. I-2 AF, Tab 15.
During the hearing, in response to the agency’s objections to the
appellant’s attempts to develop the record on the failure to accommodate claim,
the new administrative judge assigned to the appeal agreed that this affirmative
defense had not been raised (or that it had been withdrawn), acknowledged that
the appellant had not been provided the standard for establishing the affirmative
defense, and therefore, she did not permit the appellant to fully develop the
record on this issue. HT at 334-35, 342 -43. In addition, the new administrative
judge did not acknowledge the appellant’s due process or harmful procedural
error claim, and did not provide notice to the appellant regarding how to prove
this claim. Based on the above information, we find that the appellant raised and
attempted to pursue affirmative defenses of disability discrimination based on the
agency’s failure to accommodate and a due process violation or harmful
procedural error.7 See Turner v. Department of Veterans Affairs , 94 M.S.P.R.
381, ¶¶ 3, 7 (2003) (agreeing with an administrative judge’s determination that a
pro se appellant raised an affirmative defense of disability discrimination when he
challenged his removal and alleged that he had medical conditions, was seeking
treatment, and that the agency did not offer to help him); Melnick v. Department
7 Although the pro se appellant framed her claim as a due process violation, she alleges
that the agency failed to follow its own procedures in conducting investigations, which
generally constitutes a harmful procedural error claim. See Stephen v. Department of the
Air Force, 47 M.S.P.R. 672, 683-85 (1991) (explaining that a failure to comply with
constitutional due process requirements necessitates reversal of an agency action, while
and agency’s failure to comply with statutory or regulatory procedures is analyzed as a
potentially harmful error). On remand, the administrative judge should provide the
appellant notice of both defenses and provide her with an opportunity to clarify and
prove her claim or claims. 14
of Housing and Urban Development , 42 M.S.P.R. 93, 97 (1989) (recognizing that
pleadings, particularly those filed by pro se appellants, are to be liberally
construed), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table).
At no point during the proceeding below or in the initial decision did the
administrative judges notify the appellant of her burden of proof to establish
these affirmative defenses. IAF, Tabs 2, 15; I-2 AF, Tabs 6, 12. Moreover, the
agency did not provide these notices to the appellant in its response. IAF,
Tab 10; see Parker v. Department of Housing and Urban Development ,
106 M.S.P.R. 329, ¶¶ 7-8 (2007) (stating that an administrative judge’s failure to
provide an appellant with specific notice of his jurisdictional burden can be cured
if the agency’s pleadings or the initial decision contain the required notice).
The appellant did not waive or abandon her failure to accommodate
and due process or harmful procedural error affirmative defenses.
In determining whether an appellant has waived or abandoned a previously
raised affirmative defense claim, the Board will consider the following
nonexhaustive factors: (1) the thoroughness and clarity with which the appellant
raised an affirmative defense; (2) the degree to which the appellant continued to
pursue the affirmative defense in the proceedings below after initially raising it;
(3) whether the appellant objected to a summary of the issues to be decided that
failed to include the potential affirmative defense when specifically afforded an
opportunity to object and the consequences of the failure were made clear;
(4) whether the appellant raised the affirmative defense or the administrative
judge’s processing of the affirmative defense claim in the petition for review;
(5) whether the appellant was represented during the course of the appeal before
the administrative judge and on petition for review, and if not, the level of
knowledge of Board proceedings possessed by the appellant; and (6) the
likelihood that the presumptive abandonment of the affirmative defense was the
product of confusion, or misleading or incorrect information provided by the
agency or the Board. Thurman, 2022 MSPB 21, ¶ 18. 15
As established above, we find that there is sufficient information in the
record to show that the appellant clearly raised and attempted to pursue
affirmative defenses of disability discrimination and a due process violation or
harmful procedural error. Moreover, the appellant objected to the prehearing
teleconference order omitting at least the failure to accommodate affirmative
defense from the issues to be decided and continued to pursue these defenses on
petition for review. Even if the appellant did not object to the omission of her
procedural defenses in the prehearing conference order, we find that
consideration outweighed by the fact that the appellant was pro se and not
provided notice of how to establish her claims. Thus, we find that a remand is
necessary to provide the appellant notice of her burden and an opportunity to
address her affirmative defenses of disability discrimination based on the
agency’s failure to provide a reasonable accommodation and due process or
harmful procedural error.8 See Thurman, 2022 MSPB 21, ¶ 17 n.7.
Remand is also necessary for the administrative judge to further adjudicate the
appellant’s claim of whistleblower reprisal.
On review, the appellant challenges the administrative judge’s finding that
the appellant failed to establish her affirmative defense of whistleblower reprisal.
ID at 19-20; PFR File, Tab 1 at 19, Tab 4 at 16. In finding that the appellant
failed to establish a prima facie case of whistleblower retaliation, the
administrative judge only considered the alleged disclosures and activities in the
appellant’s OSC complaint; however, she did not consider the remaining
disclosures and activities contained in OSC’s close-out letter, which the appellant
8 On review, the appellant has submitted the Handbook 0700 and VA Handbook 5975.1,
Processing Requests for Reasonable Accommodation from Employees and Applicants
with Disabilities (Nov. 27, 2013). PFR File, Tab 1 at 26-148. In light of our decision
to grant the appellant’s petition for review and remand her potential harmful error and
failure to accommodate claims for further consideration, we need not consider these
handbooks here. On remand, the appellant may resubmit this documentation in
accordance with the administrative judge’s orders. 16
submitted with her prehearing submissions. ID at 18-19; IAF, Tab 23 at 15-16.
The administrative judge did not require the appellant to specifically identify the
disclosures and activities that she claimed formed the basis of her whistleblower
reprisal defense, nor did she narrow the scope of the disclosures/activities before
her. Therefore, we assume the appellant intended to raise all the disclosures and
activities she raised to OSC and we remand the appeal for the administrative
judge to consider the remainder of the appellant’s alleged protected disclosures
and activities and make findings of fact and credibility determinations in
accordance with this order. IAF, Tab 23 at 15-16.
To prevail on an affirmative defense of reprisal for making a disclosure
under 5 U.S.C. § 2302(b)(8) or engaging in an activity under section 2302 (b)(9)
(A)(i), (B), (C), or (D), the appellant must prove by preponderant evidence that
her disclosure or activity was protected under these provisions and that it was a
contributing factor in the adverse action. Alarid, 122 M.S.P.R. 600, ¶¶ 12-13;
Shibuya v. Department of Agriculture , 119 M.S.P.R. 537, ¶ 19 (2013). If she does
so, then the burden of persuasion shifts to the agency to prove by clear and
convincing evidence that it would have taken the same action in the absence of
the appellant’s protected disclosures and activity. 5 U.S.C. § 1221(e)(2);
Shannon v. Department of Veterans Affairs , 121 M.S.P.R. 221, ¶ 24 (2014).
The appellant proved by preponderant evidence that she engaged in
protected activities under 5 U.S.C. § 2302(b)(9).
Here, the appellant identifies the following protected activities that she
alleged contributed to her removal: (1) on an unspecified date, she filed an OSC
complaint in which she alleged that the agency was “under reporting crimes at its
facilities,” in violation of the law, IAF, Tab 1 at 186; (4) on or about September
or October 2014, she filed a complaint with the OIG and the OSP that various
NCA emergency plans were inadequate, HT at 34-38; IAF, Tab 23 at 15; (5) on
an unspecified date, she filed an OIG complaint, in which she alleged that her
reassignment/detail was an “unnecessary duplication of effort,” IAF, Tab 2317
at 15; 0107-W-1 IAF, Tab 5 at 7-16; and (9) on an unspecified date after the April
6, 2015 proposed removal, she filed the underlying OSC complaint (MA -15-
3632), IAF, Tab 1 at 186-89.9
Under 5 U.S.C. § 2302(b)(9)(C), it is a prohibited personnel practice to
take an action against an employee because that employee “disclos[ed]
information to the Inspector General . . . of an agency, or the Special Counsel, in
accordance with applicable provisions of law.” The administrative judge
incorrectly found that the appellant did not engage in protected activity under
5 U.S.C. § 2302(b)(9) with respect to her first OSC and OIG complaint. ID at 19.
She did not address the undated OIG complaint and the underlying OSC
complaint (MA -15-3632). We find that the appellant engaged in protected
activity under 5 U.S.C. § 2302(b)(9) with respect to her OIG and OSC
complaints. See Pridgen v. Office of Management and Budget , 2022 MSPB 31,
¶ 62 (clarifying that, under 5 U.S.C. § 2302(b)(9)(C), any disclosure of
information to OSC or an OIG is protected, regardless of the content).
Accordingly, we find that the appellant proved by a preponderance of the
evidence that she engaged in protected activity under 5 U.S.C. § 2302(b)(9) in
connection with her first OSC complaint, her undated OIG complaint, her
September or October 2014 OIG complaint, and the underlying 2015 OSC
complaint (MA-15-3632).
The appellant did not prove by preponderant evidence that she made
protected disclosures under 5 U.S.C. § 2302(b)(8) with respect to
disclosures (2) and (6).
The appellant alleges the following disclosures contributed to her removal:
(2) in August or September 2014, she reported to a “cemetery director” that
cemeteries had stockpiled enough pesticides and fertilizer to make explosive
devices, IAF, Tab 1 at 186, Tab 23 at 15; 0107-W-1 IAF, Tab 5 at 5; (3) on
September 3, 2014, she emailed the NCA Executive Director and the NCA
9 For the sake of clarity, we will continue to use the numbering we assigned to the
appellant’s disclosures and activities earlier in this decision. See supra.18
Deputy Undersecretary for Management that the agency’s contingency plans were
outdated and not in compliance with the Federal Continuity Directive and
department directives, IAF, Tab 1 at 95, Tab 23 at 15; (6) in November 2014, she
filed a complaint with the OSLE alleging that her direct supervisor, the NCA
Program Manager, hit her during a meeting on October 21, 2014 and that she
regularly hit her, IAF, Tab 28 at 108-09, Tab 23 at 15; (7) on an unspecified date,
she disclosed that her third-level supervisor, the NCA Deputy Undersecretary for
Management, violated HIPAA and lied during an AIB investigation by
characterizing her as a bad performer and stating that she was on a PIP, IAF,
Tab 1 at 188, Tab 23 at 15; (8) in September 2014 or February 2015, she
informed the VA Secretary that senior managers lacked candor and engaged in
racially discriminatory hiring and disciplinary actions, IAF, Tab 1 at 188, Tab 23
at 15; 0107-W-1 IAF, Tab 5 at 5; and (10) in December 2014, she complained to
OPM of gross mismanagement, including that the NCA Executive Director
falsified an official Government document by certifying on the appellant’s SF-50
that the position she was reassigned or detailed to was “necessary to carryout
Government business,” when the appellant was “double slotted” with another
employee and assigned duties that were being accomplished by OHRM, IAF, Tab
1 at 186-87; 0107-W-1 IAF, Tab 5 at 4-5.
A protected disclosure is one that an appellant reasonably believes
evidences any violation of any law, rule, or regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety. 5 U.S.C. § 2302(b)(8); Mudd v. Department of Veterans
Affairs, 120 M.S.P.R. 365, ¶ 5 & n.3 (2013). The proper test for determining
whether an employee had a reasonable belief that her disclosures were protected
is whether a disinterested observer in her position with knowledge of the essential
facts known to, and readily ascertainable by, the employee could reasonably
conclude that the actions evidenced any of the conditions set forth in 5 U.S.C.
§ 2302(b)(8). Mudd, 120 M.S.P.R. 365, ¶¶ 5, 8. 19
With respect to alleged disclosure (2), the August or September 2014
disclosure, the administrative judge found that the appellant failed to allege
sufficiently specific facts concerning the contents of her alleged disclosure. ID
at 19. We agree.
Disclosures must be specific and detailed, not vague allegations of
wrongdoing. Linder v. Department of Justice , 122 M.S.P.R. 14, ¶ 14 (2014);
Rzucidlo v. Department of the Army , 101 M.S.P.R. 616, ¶ 13 (2006) (explaining
that a protected disclosure must be specific and detailed, not vague allegations of
wrongdoing regarding broad or imprecise matters). Having reviewed the record
and the appellant’s general allegation about cemeteries stockpiling materials to
make explosive devices, we discern no reason to disturb the administrative
judge’s finding that the appellant’s non-specific allegation of wrongdoing does
not meet this standard. IAF, Tab 1 at 186, Tab 23 at 15; 0107-W-1 IAF, Tab 5
at 5. For instance, the appellant did not identify which cemeteries were involved
or to which cemetery director she reported the issue, and she did not explain why
she believed the cemeteries were improperly storing pesticides and fertilizer.
IAF, Tab 1 at 186, Tab 23 at 15; 0107-W-1 IAF, Tab 5 at 5; see Francis v.
Department of the Air Force, 120 M.S.P.R. 138, ¶ 11 (2013) (finding that an
appellant failed to nonfrivolously allege she made a protected disclosure when the
agency’s alleged violation of pertinent training rules or gross mismanagement
were nonspecific and poorly explained).
With respect to alleged disclosure (6), the appellant’s November 2014
complaint to OSLE that her supervisor regularly hit her, including in October
2014, the administrative judge did not consider the appellant’s claim that this
constituted a protected disclosure or activity. IAF, Tab 28 at 108-09, Tab 23
at 15. Nevertheless, as mentioned above, we decline to disturb the administrative
judge’s well-reasoned credibility-based finding that the appellant’s supervisor did
not hit her and therefore, that the appellant lacked candor with respect to her
allegations in this complaint. ID at 9-12. Therefore, we find that a disinterested20
observer could not reasonably conclude that the appellant’s supervisor’s actions
evidence a substantial and specific danger, or any of the conditions set forth in
5 U.S.C. § 2302(b)(8).10
Remand is necessary for the administrative judge to make findings as
to whether the appellant had a reasonable belief that she was
reporting wrongdoing under 5 U.S.C. § 2302(b)(8) with respect to
alleged disclosures (3), (7), (8), and (10).
With respect to disclosure (3), the appellant alleged that on September 3,
2014, she complained to the NCA Executive Director and the NCA Deputy
Undersecretary for Management that the agency’s contingency plans were
outdated and not in compliance with the Federal Continuity Directive and
department directives. IAF, Tab 1 at 95, Tab 23 at 15. Specifically, the appellant
submitted an email stating that the 2013 plans were no longer “current” in 2014,
but that she did not actually review them. IAF, Tab 1 at 95. The administrative
judge did not address this alleged protected disclosure in her initial decision. ID
at 19. On remand, the administrative judge must make a finding in the first
instance as to whether the appellant established that she disclosed a wrongdoing
set forth in 5 U.S.C. § 2302(b)(8) with respect to this complaint.
Next, we consider the appellant’s alleged protected disclosure (7), that on
an unspecified date she disclosed that her third-level supervisor, the NCA Deputy
Undersecretary for Management, violated HIPAA and lied during an AIB
investigation by characterizing her as a bad performer and stating that she was on
10 Prior to December 12, 2017, 5 U.S.C. § 2302(b)(9)(C) included as protected activity
“cooperating with or disclosing information to the Inspector General of an agency, or
the Special Counsel, in accordance with applicable provisions of law.” Edwards v.
Department of Labor , 2022 MSPB 9, ¶ 29. Section 1097(c)(1) of the National Defense
Authorization Act of 2018 (NDAA) 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. In Edwards, the Board found that this amendment is not
retroactive. Id., ¶¶ 30-33. Thus, because all of the relevant events in this matter, up to
and including the appellant’s 2015 removal, occurred prior to the 2018 NDAA’s
enactment, we need not consider whether her 2014 OSLE and OPM complaints could
constitute protected activity under 5 U.S.C. § 2302(b)(9)(C). 21
a PIP. IAF, Tab 1 at 188, Tab 23 at 15. The administrative judge did not address
this disclosure in full and instead only found that the appellant’s allegation
regarding the NCA Deputy Undersecretary for Management lying during the AIB
investigation lacked specificity. ID at 19. The appellant has not provided any
specific information in the record regarding how her management violated
HIPAA. However, as for the allegedly false statements in the AIB investigation,
the appellant stated that she believed her third-level supervisor lied when he
indicated that the appellant was on a PIP and was a threat to other employees, and
that employees were feeling threatened by the appellant’s behavior. IAF, Tab 1
at 188-89.
As to the false statement regarding the PIP, the administrative judge found
that the appellant’s third-level supervisor credibly testified that he was mistaken
when he stated in the AIB investigation that the appellant had been placed on a
PIP and found the misstatement was not intentional; however, she did not
otherwise make a finding about whether the appellant reasonably believed that
her third-level supervisor was lying about the PIP at the time she made the
complaint. ID at 7 n.3. Similarly, the administrative judge did not make a
finding as to the reasonableness of the appellant’s belief that her third-level
supervisor lied when he stated that the appellant was a threat to other employees
and that employees were feeling threatened by the appellant’s behavior.
Accordingly, on remand the administrative judge should make findings as to
whether the appellant established that she reported any of the conditions set forth
in 5 U.S.C. § 2302(b)(8) with respect to alleged protected disclosure (7).
Next, we turn to the appellant’s alleged protected disclosures (8) and (10),
which include her September 2014, December 2014, and February 2015
disclosures to the VA Secretary and OPM of her manager’s alleged false
statements or lack of candor. IAF, Tab 1 at 186-88, Tab 23 at 15; 0107-W-1 IAF,
Tab 5 at 4-5. The appellant does not submit copies of these disclosures in the
record. Also, when referring to her September 2014 or February 2015 disclosure,22
the appellant does not specify how her management lacked candor. Id. However,
it appears that the appellant is referring to her claim that her managers lacked
candor or made a false statement when signing her SF-50 certifying that her
reassignment or detail was necessary. Id. The appellant alleges that the
reassignment or detail was not necessary because the position she was reassigned
to was “double slotted” and being performed by another employee and OHRM,
while her emergency preparedness position was left unoccupied in violation of
the Federal Continuity Directives requiring that an emergency planner be
assigned. IAF, Tab 1 at 186-87.
The appellant also specified that in her detail role she had taken on
responsibilities that were previously assigned to another employee who did not
complete them, such as writing the policy for “VA PAS,” the “WIN” program,
and “WorkLife4You.” Id. at 74. She alleged that these assignments did not
constitute “significant responsibilities,” and therefore, again disclosed that her
managers lacked candor when they certified her job was necessary. Id. She
claims that this assignment was also improper because it “jeopardized” her career
and she was “no longer able to grow and gain knowledge.” IAF, Tab 1 at 187.
The administrative judge generally found that the appellant failed to
establish that she made a protected disclosure because she did not provide
sufficiently specific information concerning her allegations. ID at 19. However,
she did not make any factual or credibility findings with respect to the appellant’s
allegations regarding her supervisor’s alleged false statements and lack of candor.
For instance, as to the appellant’s claim that her former emergency preparedness
position was left unoccupied in violation of directives, the appellant submitted a
copy of the continuity directive, which requires the agency to designate an
individual such as an emergency coordinator to represent the agency in the
continuity program and establish emergency communications. IAF, Tab 23 at 36.
Although the appellant’s third-level supervisor testified that the appellant’s
emergency preparedness duties were transferred to another emergency planner,23
there is no evidence, nor did the administrative judge make any findings, as to
whether those duties were transferred before or after the appellant’s disclosure to
determine the reasonableness of the appellant’s belief at the time she made it. HT
at 72. Accordingly, on remand, the administrative judge should make findings as
to whether the appellant established that she reported any of the conditions set
forth in 5 U.S.C. § 2302(b)(8) with respect to alleged protected disclosures (8)
and (10).11
On remand, the administrative judge must make a finding as to
whether the appellant established that her remaining protected
disclosures and activities were a contributing factor in her removal.
An appellant’s protected activity is a contributing factor if it in any way
affects an agency’s decision to take, or fail to take, a personnel action. Dorney v.
Department of the Army , 117 M.S.P.R. 480, ¶ 14 (2012). One way an appellant
may establish the contributing factor criterion is the knowledge/timing test, under
which she submits evidence showing that the official taking the personnel action
11 As part of her September 2014 or February 2015 disclosure, the appellant alleged that
she also informed the VA Secretary that her managers engaged in racially
discriminatory hiring and disciplinary actions. IAF, Tab 1 at 188, Tab 23 at 15. She
claimed her reassignment was part of a larger scheme whereby the agency improperly
divided its employees up into “groups of white and black employees,” with the latter
slotted into positions with no growth potential and labeled the “problem group.” IAF,
Tab 1 at 186. The administrative judge found that the appellant failed to establish that
she made a protected disclosure with respect to her claims of race discrimination. ID at
19. We discern no reason to disturb this finding. As the administrative judge properly
found, the law is well settled that disclosures pertaining to race discrimination and
retaliation for EEO activity are not protected activity under whistleblower reprisal
statutes. ID at 19; Edwards, 2022 MSPB 9, ¶¶ 10-25 (holding that the Board generally
lacks jurisdiction to consider allegations of reprisal for an appellant’s own Title VII
disclosures and complaints in the context of an IRA appeal), aff’d, No. 2022-1967,
2023 WL 4398002 (Fed. Cir. July 7, 2023); see McCray v. Department of the Army ,
2023 MSPB 10, ¶¶ 20-30 (holding that the Board generally lacks jurisdiction to
consider allegations of reprisal for an appellant’s own Rehabilitation Act disclosures
and complaints in the context of an IRA appeal). Thus, on remand, the administrative
judge may adopt her finding that the portion of the appellant’s September 2014 or
February 2015 disclosure regarding race discrimination and reprisal for EEO activity is
not protected whistleblowing. 24
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. The Board has held that a personnel action taken within approximately
1 to 2 years of an appellant’s disclosures or activity satisfies the timing portion of
the knowledge/timing test. Id. 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 towards the officials taking the action, or
whether these individuals had a desire or motive to retaliate against the appellant.
Dorney, 117 M.S.P.R. 480, ¶ 15.
The administrative judge found that the appellant failed to address whether
the proposing and deciding officials had knowledge of her alleged protected
activity. ID at 19. However, she did not consider evidence other than knowledge
and timing evidence. In fact, she made no finding as to whether the appellant
established that her protected disclosures and activities were a contributing factor
in her removal. On remand, the administrative judge should consider whether any
of the appellant’s remaining protected disclosure and activities were a
contributing factor in her removal, including her first OSC complaint, her undated
OIG complaint, her September or October 2014 OIG complaint, the underlying
2015 OSC complaint (MA-15-3632), and disclosures (3), (7), (8), and (10) to the
extent the administrative judge determines they constitute protected disclosures.
Lastly, we vacate the administrative judge’s alternate finding that the
agency proved by clear and convincing evidence that it would have removed the
appellant absent her protected activity. ID at 19-20; see Clarke v. Department of
Veterans Affairs , 121 M.S.P.R. 154, ¶ 19 n.10 (2014) (noting that, under the
Whistleblower Protection Enhancement Act of 2012, the Board may not proceed
to the clear and convincing evidence test unless it first has made a finding that the25
appellant established his prima facie case), aff’d per curiam , 623 F. App’x 1016
(Fed. Cir. 2015).12 On remand, if the administrative judge determines that the
appellant met her burden to establish that her protected disclosures or activities
were a contributing factor in her removal, she must reevaluate whether the agency
proved by clear and convincing evidence that it would have removed the
appellant even absent her protected disclosures or activities.13
ORDER
For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication of the appellant’s affirmative defenses in
accordance with this Remand Order. Because the appellant’s alleged protected
disclosures and activities in this appeal overlap with those in the 0107 -W-1
Appeal, which we are remanding in a separate order, on remand the Washington
Regional Office may wish to join the appeals. In her remand initial decision, the
administrative judge may adopt her prior findings that the agency proved its lack
of candor charge and nexus and that the appellant failed to meet her burden of
proving race and status-based disability discrimination and reprisal for EEO
activity. The administrative judge should determine on remand whether any
additional evidence developed, or findings made on remand affect her penalty
12 In Delgado v. Merit Systems Protection Board , 880 F.3d 913 (7th Cir.), as amended
on denial of reh’g and reh’g en banc (7th Cir. 2018), the U.S. Court of Appeals for the
Seventh Circuit disagreed with Clarke on other grounds.
13 The administrative judge found nexus between the sustained misconduct and the
efficiency of the service. ID at 20-21; see Ludlum v. Department of Justice ,
87 M.S.P.R. 56, ¶ 28 (2000) (finding nexus when the appellant’s lack of candor affected
the employer-employee relationship, and thus, impacted the efficiency of the service),
aff’d, 278 F.3d 1280 (Fed. Cir. 2002). The appellant does not dispute, and we discern
no reason to disturb, this finding.26
analysis. If she determines that new penalty findings are not needed,
the administrative judge may adopt her prior findings regarding penalty.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.27 | Mosteller_JulietteDC-0752-15-0865-I-2__Remand_Order.pdf | 2024-05-15 | JULIETTE MOSTELLER v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-0752-15-0865-I-2, May 15, 2024 | DC-0752-15-0865-I-2 | NP |
1,461 | https://www.mspb.gov/decisions/nonprecedential/Kassner_JulianAT-1221-18-0276-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JULIAN KASSNER,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-1221-18-0276-W-1
DATE: May 15, 2024
THIS ORDER IS NONPRECEDENTIAL1
Julian Kassner , Longwood, Florida, pro se.
Karen L. Mulcahy , Bay Pines, Florida, 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 appellant’s petition for review,
VACATE the initial decision, and REMAND this matter 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
On February 21, 2018, the appellant, a former Chief Physician with the
agency’s Central Alabama Veterans Health Care System (CAVHCS), filed an IRA
appeal with the Board. Initial Appeal File (IAF), Tab 1, Tab 6 at 43. With his
initial submission, the appellant provided a December 18, 2017 close-out letter
from the Office of Special Counsel (OSC). IAF, Tab 1 at 61-62. In this letter,
OSC explained that it was closing its investigation into the appellant’s allegations
that the agency had taken a series of retaliatory actions against him, to include
ultimately removing him from his position, as a result of several protected
disclosures and activities. Id. The appellant requested a hearing on the matter.
Id. at 2.
The administrative judge issued an order informing the appellant of the
applicable jurisdictional burden for IRA appeals and ordering him to, among
other things, list the protected disclosures and activities that he was raising before
the Board, provide the dates on which he made the disclosures or engaged in the
activities, and identify the actions that the agency took, failed to take, or
threatened to take as a result of the disclosures/activities. IAF, Tab 3 at 1-8. In
response, the appellant submitted over 2,700 pages of documents.
IAF, Tab 4 at 1. The administrative judge rejected the appellant’s jurisdictional
response in its entirety, and he provided a date by which the appellant could
submit a revised response. Id. at 1-2. The appellant thereafter submitted four
responsive filings totaling over 200 pages. IAF, Tabs 6-9. The agency replied to
the appellant’s submissions. IAF, Tab 10.
The administrative judge issued an initial decision dismissing the matter
for lack of jurisdiction. IAF, Tab 11, Initial Decision (ID) at 1, 13. In so doing,
the administrative judge found that the appellant had “partially exhausted” his
administrative remedies with OSC. ID at 3. He thereafter identified nine
disclosures raised by the appellant, ID at 6-9, but concluded that the appellant had
failed to make a nonfrivolous allegation that he had made a protected disclosure2
under 5 U.S.C. § 2302(b)(8) or engaged in protected activity, ID at 12-13.2 In so
concluding, the administrative judge described the appellant’s filings as
“voluminous and labyrinthine,” and reasoned that all of the identified disclosures
were “particular to [the appellant]” and related to his “own perceived
mistreatment by the agency.” ID at 9-10. He also reasoned that the
Whistleblower Protection Act was “intended to protect a government employee
who risks his own personal job security for the advancement of the public good
by disclosing abuses by government personnel”; however, no such altruism was
perceptible from the appellant’s disclosures. ID at 10 (emphasis in original). He
also found that the appellant’s “generalized claims” amounted to mere pro forma
allegations and, accordingly, were insufficient to satisfy the nonfrivolous
allegation standard. ID at 11.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has not filed a response. In his
petition, the appellant challenges the administrative judge’s conclusion that he
failed to establish Board jurisdiction over the matter; specifically, he argues that
the administrative judge: (1) erred in finding that he had only “partially
exhausted” his administrative remedies with OSC; (2) improperly considered his
motives; (3) failed to consider all of his alleged disclosures; and (4) erred in
analyzing the nine disclosures addressed in the initial decision. Id. at 4-17.
ANALYSIS
To establish jurisdiction in a typical IRA appeal, an appellant must prove
by preponderant evidence3 that he exhausted his administrative remedies before
OSC and make nonfrivolous allegations of the following: (1) he made a
disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in a protected
2 Because the administrative judge so found, he did not address the contributing factor
or personnel action jurisdictional criteria.
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).3
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).
Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶¶ 11, 14. A
nonfrivolous allegation is an assertion that, if proven, could establish the matter
at issue. 5 C.F.R. § 1201.4(s); see Hessami v. Merit Systems Protection Board ,
979 F.3d 1362, 1369 (Fed. Cir. 2020) (“[W]hen evaluating the Board’s
jurisdiction over a whistleblower action, the question of whether the appellant has
non-frivolously alleged protected disclosures that contributed to a personnel
action must be determined based on whether the [appellant] alleged sufficient
factual matter, accepted as true, to state a claim that is plausible on its face.”).
Generally, the Board will consider an allegation nonfrivolous when, under oath or
penalty of perjury, an individual makes an allegation that is more than
conclusory, plausible on its face, and material to the legal issues in the appeal.
5 C.F.R. § 1201.4(s). Any doubt or ambiguity as to whether the appellant made
nonfrivolous jurisdictional allegations should be resolved in favor of finding
jurisdiction. Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶ 6.
The appellant exhausted his administrative remedies with OSC.
The appellant argues that the administrative judge erred in concluding that
he only partially exhausted his administrative remedies. PFR File, Tab 1 at 8;
ID at 3. To this end, he avers that the administrative judge (1) failed to explain
his conclusion regarding partial exhaustion and (2) acknowledged that the
appellant had, in fact, fully exhausted his administrative remedies. PFR File,
Tab 1 at 8. We agree that the administrative judge’s conclusion regarding
exhaustion was unclear, and we find that the appellant exhausted his
administrative remedies with OSC.
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
IRA appeal. The substantive requirements of exhaustion are met when4
an appellant has provided OSC with a sufficient basis to pursue an investigation.
Chambers, 2022 MSPB 8, ¶ 10. An appellant may demonstrate exhaustion
through his initial OSC complaint, correspondence with OSC, or 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., ¶ 11.
Here, in addition to OSC’s close-out letter, IAF, Tab 1 at 61-62, the
appellant provided the Board with a copy of both his OSC complaint and
correspondence that he submitted to OSC, id. at 25-60. These filings contain
sufficient allegations regarding the claims discussed herein such that we find that
the appellant provided OSC with a sufficient basis to pursue an investigation into
the same. See Chambers, 2022 MSPB 8, ¶¶ 10-11. Accordingly, we find that the
appellant has met his burden of proving by preponderant evidence that he
exhausted his administrative remedies with OSC.
The administrative judge improperly considered the appellant’s motives in his
analysis of the alleged disclosures.
The appellant challenges the administrative judge’s conclusion that,
because his disclosures sought to correct his own perceived mistreatment by
agency personnel, they could not constitute protected disclosures under the
statute. PFR File, Tab 1 at 8-10; ID at 10. We agree that, in analyzing the
alleged disclosures, the administrative judge improperly considered the
appellant’s motives.
A protected disclosure is one that an appellant reasonably believes
evidences any violation of any law, rule, or regulation, gross mismanagement,
a gross waste of funds, an abuse of authority, or a substantial and specific danger
to public health or safety. 5 U.S.C. § 2302(b)(8); Mudd v. Department of
Veterans Affairs , 120 M.S.P.R. 365, ¶ 5 & n.3 (2013). The proper test for
determining whether an appellant had a reasonable belief that his disclosures
were protected is whether a disinterested observer with knowledge of the5
essential facts known to and readily ascertainable by the appellant could
reasonably conclude that the actions evidenced any of the conditions set forth in
5 U.S.C. § 2302(b)(8). Mudd, 120 M.S.P.R. 365, ¶ 5. Although an appellant’s
motive in making a disclosure may be relevant to the determination of a
reasonable belief, a disclosure is not excluded from protection based on the
appellant’s motive in making it. Ayers v. Department of the Army , 123 M.S.P.R.
11, ¶ 20 (2015); see 5 U.S.C. § 2302(f)(1)(C) (“A disclosure shall not be excluded
from subsection (b)(8) because . . . of the employee’s or applicant’s motive for
making the disclosure.”).
Accordingly, to the extent the administrative judge found that the
appellant’s disclosures were per se outside the scope of the Board’s jurisdiction
because they pertained only to his own alleged mistreatment, we disagree. ID
at 10. We analyze the appellant’s alleged disclosures having considered his
motives only insofar as they are relevant to whether he nonfrivolously alleged
that he reasonably believed that his disclosures were protected.
We consider the protected disclosures analyzed in the initial decision and those
that the appellant identifies on review.
The appellant argues that the administrative judge failed to address all of
his alleged protected disclosures. PFR File, Tab 1 at 4-6. In so arguing,
however, he identifies only some of the disclosures that the administrative judge
allegedly overlooked. To this end, his petition contains a list of several bullet
points describing disclosures that he believes the administrative judge did not
consider and thereafter states as follows: “[t]here are only some of examples
presented by [the appellant] in his response to the Jurisdictional Order, all of
which are incorporated herein.” Id. at 5-6 (grammar as in original). In essence,
the appellant requests that the Board refer to his filings before the administrative
judge to extract additional, unaddressed protected disclosures. Id. We decline to
do so. 6
An appellant is required to articulate claims with reasonable clarity; the
Board is not obligated to pore through a voluminous record to make sense of an
appellant’s allegations. Keefer v. Department of Agriculture , 92 M.S.P.R. 476,
¶ 18 n.2 (2002); 5 C.F.R. § 1201.114(b) (“A petition . . . for review . . . must be
supported by references to applicable laws or regulations and by specific
references to the record.”). Moreover, attempts to incorporate by reference
pleadings that were filed before an administrative judge do not satisfy 5 C.F.R.
§ 1201.115, which requires the petitioning party to set forth specific objections to
the initial decision. See, e.g., Semenov v. Department of Veterans Affairs ,
2023 MSPB 16, ¶ 43 n.8. Accordingly, we consider the nine protected
disclosures addressed in the initial decision as well as the disclosures identified
by the appellant in his petition for review.4
The appellant made nonfrivolous allegations of protected disclosures under
5 U.S.C. § 2302(b)(8).
Disclosures of alleged extortion by Dr. A
The appellant asserts that he made a protected disclosure regarding illegal
activity, i.e., extortion. PFR File, Tab 1 at 5, 10-12. In so asserting, he
references a September 30, 2016 email wherein he disclosed to agency officials
that another agency physician and his subordinate, referred to here as Dr. A, had
asked him to approve her “illegal” request for authorized absences and a
recommendation letter so that she could “pursue an executive MBA.” Id. at 5
(citing IAF, Tab 8 at 44-45); IAF, Tab 1 at 9-10. The appellant stated in this
email that Dr. A’s request “reasonably equate[d] to a demand for a benefit in
excess of $100,000.” IAF, Tab 8 at 45. He explained in the email that he had
denied Dr. A’s request, which had resulted in her exhibiting “subversive, passive
aggressive, and confrontational behavior, including making a direct threat that if
4 As indicated, the appellant provides a list of disclosures that he asserts “went
unaddressed by the [administrative judge].” PFR File, Tab 1 at 6. This list, however,
includes some of the disclosures that the administrative judge considered, in full or part,
in his initial decision. Id. at 5-6; ID at 6-9. 7
[the appellant] did not yield to her demands she would report purported
misconduct in relation to [his] already approved telework agreement.” Id.
at 44-45.
The appellant is not required to identify the particular statutory or
regulatory provision that the agency allegedly violated when his statements and
circumstances of those statements clearly implicate an identifiable law, rule, or
regulation. Mason v. Department of Homeland Security , 116 M.S.P.R. 135, ¶ 17
(2011). Rather, at the jurisdictional stage, he is only burdened with
nonfrivolously alleging that he reasonably believed that his disclosure evidenced
a violation of one of the circumstances described in 5 U.S.C. § 2302(b)(8). Id.
Further, the question of whether a disinterested observer with knowledge of the
essential facts known to and readily ascertainable by an employee could
reasonably conclude that an action evidenced a violation of law requires that we
consider concepts of criminal law from a layman’s perspective as well as in a
legal sense. Baldwin v. Department of Veterans Affairs, 113 M.S.P.R. 469, ¶ 18
(2010); see Mudd, 120 M.S.P.R. 365, ¶¶ 8-9 (considering the appellant’s lack of
special expertise in legal matters in assessing whether she nonfrivolously alleged
that she reasonably believed that the agency violated a law, rule, or regulation).
The lay definition of extortion is “the act or practice of extorting,” which,
in turn, is defined as “to obtain from a person by force, intimidation, or undue or
illegal power.” Extortion, Merriam-Webster, https://www.merriam-webster.com/
dictionary/extortion (last visited May 15, 2024); Extort, Merriam-Webster,
https://www.merriam-webster.com/dictionary/extort (last visited May 15, 2024).
The pertinent legal definition of extortion is “[t]he act or practice of obtaining
something or compelling some action by illegal means, as by force or coercion.”
Black’s Law Dictionary (10th ed. 2014). Alabama law5 posits that, “[a] person
5 CAVHCS is located in Montgomery, Alabama. IAF, Tab 1 at 1. Thus, Alabama law
is applicable to this appeal. See, e.g., Baldwin, 113 M.S.P.R. 469, ¶¶ 18, 20 & n.2
(finding that the law of the state where the alleged criminal act occurred should be
applied in determining the reasonableness of an individual’s belief that he disclosed a8
commits the crime of extortion if he knowingly obtains by threat control over the
property of another, with intent to deprive him of the property.” Preskitt v.
Lyons, 865 So. 2d 424, 429 (Ala. 2003) (emphasis omitted) (quoting Ala. Code
1975, § 13A-8-13). Under the Alabama Criminal Code, doing so by means of a
threat constitutes extortion in the second degree, a class C felony. Ala. Code.
1975 § 13A-8-15. In pertinent part, it is extortion by means of a “threat” to do an
act calculated to substantially harm another person’s career. Preskitt, 865 So. 2d
at 430 (citing Ala. Code 1975 § 13A-8-1(14)(k)). Attempted extortion in the
second degree is a class A misdemeanor under Alabama law. Id. (citing Ala.
Code. 1975 § 13-4-2(d)(4)).
Considering the appellant’s assertion that he was reporting “an explicit
threat to take action that would be harmful to my career, professional standing
and employment position,” we agree with his contention on review that he
nonfrivolously alleged that he reported what he could reasonably have believed
was extortion, which is a violation of law.6 PFR File, Tab 1 at 11; see Lewis v.
Department of Commerce , 101 M.S.P.R. 6, ¶¶ 2, 11 (2005) (indicating that a
disclosure of a violation of criminal law is a disclosure of a violation of law, rule,
or regulation under the statute and finding that the appellant made a nonfrivolous
allegation of a protected disclosure when she reported that an agency employee
had assaulted her). Accordingly, we find that the appellant made a nonfrivolous
allegation of a protected disclosure under 5 U.S.C. § 2302(b)(8) via his
September 30, 2016 email.7 To the extent that he also claimed below that he first
violation of criminal law).
6 Because we find this disclosure protected as an alleged violation of law, we need not
reach the appellant’s arguments that he reasonably believed his disclosure also
evidenced an abuse of authority and that Dr. A violated agency anti-harassment policy
or 18 U.S.C. § 1512, a statute that prohibits tampering with a witness, victim, or
informant. PFR File, Tab 1 at 5, 12-13.
7 The appellant does not challenge, and we discern no basis to disturb, the
administrative judge’s conclusion that he failed to establish Board jurisdiction over an
additional alleged disclosure that was also made on or about September 30, 2016, which
pertained to the agency bypassing “standard procedures and associated safeguards”9
made this disclosure in August 2016, we similarly find that he met his
jurisdictional burden as to this earlier disclosure of the same information. IAF,
Tab 1 at 34.
October and November 2016 disclosures that Dr. A had a handgun
on Government property and that the agency failed to take any
action regarding the handgun
The appellant contends that, on October 5, 2016, he disclosed to agency
management that Dr. A kept a loaded handgun in her car while it was parked on
agency property. PFR File, Tab 1 at 13. He avers that her actions violated a law,
rule, or regulation and caused him to be concerned for his safety.8 Id. Relatedly,
he alleges that he subsequently disclosed an “INTENTIONAL CHOICE by
management not to investigate [Dr. A] illegally having a gun on [F]ederal
property to expose [him] to workplace violence threats and harassment in
violation of the [Whistleblower Protection Enhancement Act of 2012 (WPEA)].”
Id. at 5 (capitalization as in original).
Regarding the latter disclosure, the appellant draws the Board’s attention to
a November 3, 2016 email that he sent to agency officials. Id. (citing IAF, Tab 7
at 11). In this email, the appellant stated that “[t]he issue of the gun” had
contributed to his emotional distress, and he asserted that agency officials’
related to a congressional inquiry involving the appellant. ID at 7; see El v. Department
of Commerce, 123 M.S.P.R. 76, ¶ 6 (2015) (explaining that vague, conclusory,
unsupported, and pro forma allegations of alleged wrongdoing do not meet the
nonfrivolous pleading standard needed to establish the Board’s IRA jurisdiction) , aff’d
per curiam, 663 F. App’x 921 (Fed. Cir. 2016).
8 The administrative judge analyzed the appellant’s October 5, 2016 disclosure in the
initial decision; however, he considered only whether the appellant had disclosed a
substantial and specific danger to public health or safety. ID at 12. Although the
appellant categorized this disclosure in such a manner, IAF, Tab 1 at 35, he was not
required to label the category of wrongdoing, Horton v. Department of Veterans
Affairs, 106 M.S.P.R. 234, ¶ 16 n.* (2007). Accordingly, we consider the appellant’s
assertion on review that he disclosed a violation of law, rule, or regulation on
October 5, 2016. PFR File, Tab 1 at 13. In light of our finding that he nonfrivolously
alleged he reasonably believed the agency violated a law, rule, or regulation, we do not
reach the issue of whether his disclosure could also be protected as a disclosure of a
substantial and specific danger to public health or safety. 10
suggestion that he “should have spoken to the employee who threatened [him]
about her gun and review VA policies surrounding firearms with her [was] so
shockingly inappropriate.” IAF, Tab 7 at 11. Although the appellant did not
identify any specific laws, rules, or regulations that he believed agency personnel
had violated, he was not required to do so; indeed, the nature of his allegations
clearly implicates wrongdoing under 5 U.S.C. § 2302(b)(8). See DiGiorgio v.
Department of the Navy , 84 M.S.P.R. 6, ¶ 14 (1999) (expressing that some
allegations of wrongdoing, such as theft of Government property or fraudulent
claims for pay, so obviously implicate a violation of law, rule, or regulation, that
an appellant need not identify any particular law, rule, or regulation). Further, a
reasonable person in the appellant’s position could reasonably believe that Dr. A
violated 5 C.F.R. § 1.218(a)(13). That provision prohibits the carrying of
firearms on agency property, and possessing firearms in violation of this
provision can result in a fine and imprisonment under 38 C.F.R. § 1.218(b)(37).
Accordingly, we find that the appellant made nonfrivolous allegations of
protected disclosures under 5 U.S.C. § 2302(b)(8) on October 5, 2016, and
November 3, 2016.
November and December 2016 disclosures regarding the ending of
the appellant’s telework agreement
The appellant asserts that he disclosed a violation of “MANY of the
[a]gency’s rules and regulations [relating to the agency’s termination of] his
telework agreement.” PFR File, Tab 1 at 5 (punctuation as in original). To this
end, he references emails dated November 21, 22, and 28, and December 21,
2016, which were sent to agency officials either by the appellant or by the
agency’s former Chief of Human Resources on the appellant’s behalf. Id. (citing
IAF, Tab 7 at 19-20, 22-23, 25-26, 29). The appellant avers that these emails
disclosed that (1) the agency had violated “VA Handbook 5011/28, Part II,
Chapter 3, paragraph 6.i” by failing to provide him with 2 weeks’ notice prior to
cancelling his telework agreement and (2) the notice of termination of his11
telework agreement was fraudulent and amounted to an “illegal order” because it
listed an incorrect date, provided a false reason for the cessation of the
agreement, and was signed by an agency employee without signatory authority.
Id.
As of late 2016, agency Handbook 5011/28 stated that management could
modify a telework agreement “no sooner than two weeks after the employee is
notified.” IAF, Tab 7 at 19-20; Department of Veterans Affairs, VA Handbook
5011, Hours of Duty and Leave at 67 (Dec. 14, 2018),
https://www.va.gov/vapubs/search_action.cfm?dType=2 (last visited May 15,
2024); see Golden v. Department of Veterans Affairs , 2023 MSPB 19, ¶ 7 n. 5
(taking official notice of a U.S. Army publication that was readily available to the
public on the internet). We conclude that the appellant made a nonfrivolous
allegation that he reasonably believed that these emails disclosed a violation of
law, rule, or regulation.9 As to the Human Resources Chief’s disclosure of the
same information, the Board has found that an agency employee is protected
against reprisal for protected disclosures another employee made on his behalf.
Burrowes v. Department of the Interior , 54 M.S.P.R. 547, 551 (1992).
Accordingly, we find that the appellant made a nonfrivolous allegation of a
protected disclosure under 5 U.S.C. § 2302(b)(8) via emails sent in November and
December 2016.
November 28, 2016 disclosure of whistleblower reprisal
The appellant contends that he disclosed “[m]uch harassment in violation
of the WPEA by management.” PFR File, Tab 1 at 5. In this regard, he
seemingly asserts that both he and the Human Resources Chief disclosed in
November 28, 2016 emails that the agency had engaged in retaliatory actions, to
9 The appellant also alleges that he disclosed a “[v]iolation of a legal directive signed
by the Network Director.” PFR File, Tab 1 at 5 (citing IAF, Tab 7 at 24, 30). The
appellant’s allegations in this regard are again based on the agency’s failure to follow
internal rules regarding the cancellation of his telework agreement during the same
timeframe. Id.12
include threatening to place him in an absent without leave (AWOL) status for
periods when he was teleworking. Id.; IAF, Tab 1 at 51, Tab 7 at 18-21. The
appellant avers that his harassment-related disclosures pertained to “an
ADMITTED effort by leadership to ‘get’ [him] immediately after the disclosures
‘even if he sneezed wrong,’ showing a reasonable belief in retaliation in violation
of the WPEA.” PFR File, Tab 1 at 5 (capitalization as in original). In essence,
the appellant alleges that both he and the Human Resources Chief disclosed that
the agency was violating Federal whistleblower retaliation law.
In her November 28, 2016 email, the Human Resources Chief makes
reference to the agency terminating the appellant’s telework agreement on
September 30, 2016, and she requests that agency management “stop threatening
him or trying to intimidate him with placing him on an AWOL status.”
IAF, Tab 7 at 19-20 (grammar as in original). She also states that placing the
appellant in an AWOL status “could be seen as a retaliatory action.” Id. at 20. In
his November 28, 2016 email, the appellant makes reference to “a pattern of
ongoing harassment” since September 30, 2016. Id. at 21. Insofar as the
appellant disclosed Dr. A’s alleged extortion attempt on this date, IAF, Tab 8
at 44-45, we find that the appellant nonfrivolously alleged that he reasonably
believed that the November 28, 2016 emails disclosed a violation of Federal
whistleblower retaliation law, see Mudd, 120 M.S.P.R. 365, ¶ 9. Accordingly, we
find that the appellant made nonfrivolous allegations of a protected disclosure
under 5 U.S.C. § 2302(b)(8) via the November 28, 2016 emails.
December 2016 and January 2017 disclosures regarding medical
and privacy concerns
The appellant contends that he made a disclosure regarding the following:
(1) a violation of the Rehabilitation Act of 1973; (2) “an illegal Employee
Assistance Program (EAP) referral”; (3) a Privacy Act violation; and (4) the
CAVHCS Chief of Staff improperly accessing the appellant’s credentialing file.
PFR File, Tab 1 at 6, 14-15. The Board’s IRA jurisdiction does not extend to13
claims of reprisal for complaining of practices made unlawful by the
Rehabilitation Act. See McCray v. Department of the Army , 2023 MSPB 10,
¶¶ 20-22. Thus, to the extent the appellant alleges that he disclosed a violation of
the Rehabilitation Act, his allegations necessarily fall outside the scope of the
Board’s IRA jurisdiction.
The appellant also alleges that he disclosed a violation of the Privacy Act
and agency rules and regulations when he reported that the Chief of Staff had
unlawfully accessed his credentialing file/documents and thereafter utilized the
information obtained to refer him to EAP. PFR File, Tab 1 at 14-15. To this
end, in a December 5, 2016 email, the appellant informed agency personnel that
his “confidential credentialing file was deliberately accessed to obtain personal
information to provide to EAP against [his] wishes and without [his] consent.”
IAF, Tab 7 at 37. We find that the appellant has made a nonfrivolous allegation
that he reasonably believed that he had disclosed a violation of the Privacy Act.
See Herman v. Department of Justice , 115 M.S.P.R. 386, ¶ 10 (2011) (concluding
that an appellant nonfrivolously alleged that he reasonably believed that the
agency had violated the Privacy Act, reasoning that although the agency may not
have committed an actual violation, there was no indication that the appellant’s
job duties required him to be familiar with the intricacies of the Privacy Act).
At the jurisdictional stage, we also find that the appellant made a
nonfrivolous allegation of a protected disclosure with regards to his involuntary
EAP referral. An EAP is “a voluntary, work-based program that offers free and
confidential assessments, short-term counseling, referrals, and follow-up services
to employees who have personal and/or work-related problems.” U.S. Office of
Personnel Management, Employee Assistance Program, Questions and Answers,
https://www.opm.gov/frequently-asked-questions/work-life-faq/employee-
assistance-program-eap/ (last visited May 15, 2024). Each Federal agency
administers its own EAP. Id. The appellant referenced emails dated December 8,
2016, and January 12, 2017, wherein he both questioned why he had been14
involuntarily referred to EAP and expressed his belief that involuntary referrals
are illegal. PFR File, Tab 1 at 5; IAF, Tab 7 at 34-35, 38; see Mudd,
120 M.S.P.R. 365, ¶ 9. Accordingly, we find that the appellant made a
nonfrivolous allegation of protected disclosures under 5 U.S.C. § 2302(b)(8) via
his December 5 and 8, 2016, and January 12, 2017, emails.
January 18, 2017 disclosure that the appellant was charged leave
without pay (LWOP) for times he was working
The appellant contends that he disclosed that he had been placed on LWOP
in violation of laws, rules, and regulations. PFR File, Tab 1 at 5, 16. In support
of this contention, he references a January 18, 2017 email that he sent to an
agency management official and the Human Resources Chief wherein
he disclosed that he had been “falsely listed as LWOP” in late November 2016
when he was teleworking.10 Id. at 5 (citing IAF, Tab 8 at 4). The appellant stated
in the email that he was uncertain as to why he still had not been compensated for
this time, and he requested that the “pay issue be correct[ed].” IAF, Tab 8 at 4.
The genesis of his assertions was his disagreement with the agency’s
rescission of his telework agreement. IAF, Tab 6 at 8, 29, 41, Tab 8 at 8. The
appellant disagreed with the validity of these agency actions, and therefore
worked from home. IAF, Tab 8 at 4. An employee generally is required to
comply with an agency order, even when he may have substantial reason to
question it, while taking steps to challenge its validity through whatever channels
are appropriate. Pedeleose v. Department of Defense , 110 M.S.P.R. 508, ¶ 16,
aff’d per curiam , 343 F. App’x 605 (Fed. Cir. 2009). Further, while it is a
protected activity under 5 U.S.C. § 2302(b)(9)(D) to “refus[e] to obey an order
that would require the individual to violate a law, rule, or regulation,” the
10 The appellant also asserts that he made a similar disclosure via email on July 7, 2017;
however, in his July 7, 2017 email, the appellant asserted that the agency’s improper
actions concerning his pay stemmed from disability discrimination. PFR File, Tab 1
at 16; IAF, Tab 8 at 40-41. Accordingly, this alleged disclosure falls outside the scope
of the Board’s IRA jurisdiction. See McCray, 2023 MSPB 10, ¶ 22.15
appellant’s failure to report to work does not fit within this category. His
allegation is that the ending of his telework agreement violated agency policy, not
that his working in the office was unlawful. Further, the appellant has not
claimed that he advised the agency that he was working during periods he did not
come into work and therefore was deemed LWOP. We find that a reasonable
person in the appellant’s position would not believe the agency engaged in
wrongdoing by failing to pay him for periods when he failed to report to the
office as instructed, even if he questioned the validity of the instruction.
February 3, 2017 perceived protected activity of filing an OSC
complaint
The appellant avers that he made a protected disclosure on February 3,
2017, when he informed agency personnel that he believed that he had been the
victim of whistleblower retaliation and that he had retained legal counsel “who
[would] be addressing this issue through [OSC].” PFR File, Tab 1 at 6 (citing
IAF, Tab 8 at 9). We surmise that, in asserting that he told the agency that he
was planning to report whistleblower reprisal to OSC, the appellant is alleging
that the agency perceived that he had engaged in protected activity under 5 U.S.C.
§ 2302(b)(9)(C). See Fisher v. Department of the Interior , 2023 MSPB 11, ¶ 8
(explaining that under the broadly worded provision of 5 U.S.C. § 2302(b)(9)(C),
disclosures of information to OSC are protected regardless of their content, as
long as such disclosures are made “in accordance with applicable provisions of
law”). An appellant may pursue an IRA appeal on the theory that an agency
retaliated against him for its perception that he engaged in activity protected
under 5 U.S.C. § 2302(b)(9)(C). Corthell v. Department of Homeland Security ,
123 M.S.P.R. 417, ¶ 12 (2016), overruled on other grounds by Requena v.
Department of Homeland Security , 2022 MSPB 39, ¶ 14; see Rumsey v.
Department of Justice , 120 M.S.P.R. 259, ¶ 7 (2013) (recognizing that one who is
perceived as a whistleblower is entitled to protection under whistleblower reprisal
statutes even if she has not made protected disclosures) . We find that the16
appellant has nonfrivolously alleged that the agency perceived him to have
engaged in such protected activity.11
February 10, 2017 disclosures of regarding patient care
The appellant alleges that he disclosed “[v]iolations of the patient standard
of care, CAVHCS Staff Bylaws, and Code of Conduct and Patient Safety caused
by management’s insistence that [the appellant] continue to perform his job even
though they PROHIBITED him from ‘communicat[ing] with anyone in the
Imaging Department, access[ing] information systems, or enter[ing] the Imaging
Department even if doing so is necessary for quality patient care’ or EVEN IF IT
WAS NEEDED TO RESPOND TO AN EMERGENCY.”12 PFR File, Tab 1 at 5
(capitalization as in original). To support this allegation, the appellant references
two February 10, 2017 emails. Id. (citing IAF, Tab 8 at 6-8). In these emails, the
appellant informed agency officials that restrictions placed on him were
“incompatible with the practice of clinical radiology in accordance with generally
accepted standards of care.” IAF, Tab 8 at 7.
As background, on February 2, 2017, 8 days prior to the appellant sending
this email, the agency temporarily reassigned him to perform staff radiologist
duties due to a pending investigation. Id. at 5. The agency instructed him “to
refrain from any involvement with management of the CAVHCS Imaging Service,
11 The appellant relatedly asserts that, “in response to his termination,” he told agency
personnel that he had gone to OSC. PFR File, Tab 1 at 16. However, because all of the
alleged personnel actions at issue predate this alleged disclosure, this assertion is
unavailing. See El, 123 M.S.P.R. 76, ¶ 10 (explaining that, because the subject
personnel action predated the appellant’s protected disclosure, the disclosure could not
have contributed to the personnel action).
12 As pointed out by the appellant on review, the administrative judge largely
categorized this disclosure as having pertained largely to the appellant’s “work
location.” PFR File, Tab 1 at 15; ID at 8-9, 10, 11 n.3. Indeed, the record suggests
that, during this same timeframe, the appellant also disclosed that the agency had
relocated him to a “small, hot room with no work assignments.” IAF, Tab 1 at 61. We
find that the appellant’s assertions regarding his relocation are more appropriately
analyzed as an alleged personnel action. See 5 U.S.C. § 2302(a)(2)(A)(xii) (defining as
a personnel action “any other significant change in duties, responsibilities, or working
conditions”). We have done so below.17
to include contacting employees, [and] entering any CAVHCS imaging areas”
while the investigation was pending. Id.
The appellant asserted, among other things, that the agency’s limitation of
his interaction with other medical personnel disregarded “the principals [sic] of
interaction necessary to maintain a culture of patient safety.” Id. He also
asserted that, per the agency’s restrictions, “if a patient had a heart attack and [he
was] in a position to respond and administer CPR, [he] should refrain from doing
so if the patient [was] in the Imaging Department.” Id. When a patient requires
immediate treatment or careful monitoring, harm may result directly from delays
in providing such treatment and monitoring; the occurrence of harm is not
dependent on a series of unlikely events. Chavez v. Department of Veterans
Affairs, 120 M.S.P.R. 285, ¶ 20 (2013). Although the emails that the appellant
references indicate that the appellant may have been questioning or seeking to
clarify the contours of the agency’s restrictions, id. at 6-8, we find, at the
jurisdictional stage, that the appellant’s assertions are sufficient to constitute a
nonfrivolous allegation that he reasonably believed that he had disclosed a
violation of law or a substantial and specific danger to public health or safety, see
Skarada, 2022 MSPB 17, ¶ 6; Parikh v. Department of Veterans Affairs ,
116 M.S.P.R. 197, ¶¶ 12, 15-23 (2011) (concluding, as relevant here, that
disclosures of alleged delays in providing urgent patient care were protected).
February 16, 2017 disclosure of workplace bullying
The appellant alleges that he disclosed violations of the agency’s “Policy
Statement for the Prevention of Workplace Bullying.” PFR File, Tab 1 at 5. To
this end, he references a February 16, 2017 email wherein he informed the
Director of CAVHCS that agency personnel had violated this policy statement,
which she had signed. Id.; IAF, Tab 8 at 15-17. In this email, the appellant
conveyed, among other things, that he had been subjected to “coordinated social
and physical exclusion from work-related activities,” to include being told that he
“may not enter any Imaging Department area or communicate with any employee18
in the Imaging Department.” IAF, Tab 8 at 16. These allegations appear to
pertain, at least in part, to the previously discussed communication restrictions
placed on the appellant on or about February 2, 2017. Id. at 5.
At the jurisdictional stage, we accept as true the appellant’s implicit
allegations that the restrictions placed on him were unwarranted, as well as his
assertions that the agency’s restrictions constituted coordinated social and
physical exclusion, i.e., bullying. See Hessami, 979 F.3d at 1369. Because the
appellant, via his February 16, 2017 email, identified a specific, established
agency policy statement and explained why he believed agency personnel had
violated the same, we find that he made a nonfrivolous allegation that he
reasonably believed that he had disclosed a violation of law, rule, or regulation
under 5 U.S.C. § 2302(b)(8). See Mudd, 120 M.S.P.R. 365, ¶ 9.
March through June 2017 harassment complaints
The appellant does not discernably raise any arguments regarding what the
administrative judge categorized as disclosures (8) and (9) in the initial decision,
which were allegedly made by the appellant beginning in March 2017. ID at 9.
In the initial decision, the administrative judge collectively described these two
disclosures as follows:
In March 2017, you contacted the VA’s Harassment Prevention
Program. Through June 2017, you also repeated and updated your
disclosures to various VA personnel, alleging the VA wrongfully
denied you a reasonable accommodation; harassed you; made another
wrongful EAP referral; made an unwanted call to your wife; illegally
accessed your personnel records; and failed to address the issues you
raised.
Id. (quoting IAF, Tab 1 at 62).
Although the above allegations are not particularly detailed, they
nonetheless assert that the appellant contacted the “VA’s Harassment Prevention
Program,” IAF, Tab 1 at 62. Disclosures of information to any agency component
“responsible for internal investigation or review” are protected activity under
5 U.S.C. § 2302(b)(9)(C) regardless of their content, as long as such disclosures19
are made “in accordance with applicable provisions of law.” See Fisher,
2023 MSPB 11, ¶ 8. The agency’s website explains that the Harassment
Prevention Program (HPP), among other things, provides “centralized tracking,
monitoring and reporting processes to proactively respond to allegations of
harassment.” U.S. Department of Veterans Affairs, Office of Resolution
Management, Diversity & Inclusion (ORMDI), HPP,
https://www.va.gov/ORMDI/HPP.asp (last visited May 15, 2024); see Hessami,
979 F.3d at 1369 & n.5 (explaining that the Board may consider “matters of
public record” in determining whether an appellant nonfrivolously alleged she
made protected disclosures (citation omitted)). The website also indicates that
the agency formed the HPP in response to a mandate “to establish enterprise -wide
anti-harassment policies and procedures to ensure allegations of harassment
receive a prompt, thorough, and impartial investigation .”
https://www.va.gov/ORMDI/HPP.asp (emphasis added). The agency specifies
that harassment need not be “accompanied by an EEO basis” to fall within its
HPP. Id.
The Board’s IRA jurisdiction does not extend to claims of reprisal for
opposing practices made unlawful by either Title VII, Edwards v. Department of
Labor, 2022 MSPB 9, ¶¶ 10-23, aff’d, No. 2022-1967, 2023 WL 4398002 (Fed.
Cir. July 7, 2023), or the Rehabilitation Act, McCray, 2023 MSPB 10, ¶¶ 19-22.
Nor does the Board’s jurisdiction extend to claims of reprisal for filing EEO
complaints on one’s own behalf that do not seek to remedy whistleblower
reprisal, id., ¶¶ 23-30; Edwards, 2022 MSPB 9, ¶¶ 24-25. There is some evidence
in the file that the appellant’s March through June 2017 harassment complaints
may have been limited to matters arising under EEO law. IAF, Tab 6 at 40.
However, we find that, at the jurisdictional stage, the appellant has made a
nonfrivolous allegation that he engaged in protected activity under 5 U.S.C.20
§ 2302(b)(9)(C) through his contact with HPP, and that the parties may develop
this issue on remand.13
October 11, 2017 disclosure of falsification of Government records
Lastly, the appellant avers that he disclosed the falsification of Government
records. PFR File, Tab 1 at 6. To this end, he cites a page of an October 11,
2017 letter that his attorney sent on his behalf to the agency’s Professional
Standards Board. Id. (citing IAF, Tab 6 at 44, 53). This October 11, 2017 letter
states that, on October 4, 2016, the Human Resources Chief completed an
incident report concerning various improper agency actions; however, 1 week
after she completed this report, the appellant’s supervisor accessed and
“materially altered” the report to (1) change the name of a physician who had
treated the appellant and (2) falsely indicate that it was the appellant who had
changed the name of the physician. IAF, Tab 6 at 53-54. Deliberate falsification
of a Government document is prohibited by 18 U.S.C. § 1001(a)(3). Therefore,
we find that the appellant made nonfrivolous allegations that he made a protected
disclosure under 5 U.S.C. § 2302(b)(8) on October 11, 2017. See DiGiorgio,
84 M.S.P.R. 6, ¶ 14.
The appellant made nonfrivolous allegations of personnel actions.
In addition to the above-discussed disclosures and activities, the appellant
alleged that the agency took several retaliatory personnel actions against him. To
this end, he alleged that the agency wrongfully denied him incentive pay. IAF,
13 In support of his claim that he established jurisdiction over some of his alleged
protected disclosures, the appellant also states as follows in his petition: “[s]ee also the
fact that OAWP launched an investigation into these [disclosed] legal violations.” PFR
File, Tab 1 at 10. “OAWP” is the Department of Veterans Affairs Office of
Accountability and Whistleblower Protection, an agency component that, among other
things, “investigates . . . [a]llegations of whistleblower retaliation against VA
supervisors.” https://www.va.gov/accountability/ (last visited May 15, 2024). The
appellant does not claim that he contacted OAWP, or say when he made such a contact.
Therefore, he has failed to make a nonfrivolous allegation of Board jurisdiction. On
remand, he may seek to establish jurisdiction over his claim, if any, that he engaged in a
protected activity under 5 U.S.C. § 2302(b)(9)(C) by filing a complaint with OAWP. 21
Tab 1 at 52. Specifically, he asserted that, as part of a recruitment incentive, the
agency had agreed to provide him with “an additional 20% of his salary for
[2] years” but never did so, even after a September 2016 audit confirmed that he
was entitled to the payment. Id. As relevant here, the definition of “personnel
action” includes “a decision concerning pay, benefits, or awards.” 5 U.S.C.
§ 2302(a)(2)(A)(ix). Insofar as the appellant asserted that the agency rendered an
unfavorable incentive pay decision, we find that he made nonfrivolous allegations
of a personnel action under this provision.
The appellant alleged that the agency forced him to step down as Chief of
Imaging in October 2016. IAF, Tab 1 at 48. In this regard, he asserted that an
agency physician, acting on behalf of CAVHCS, informed him that he could be a
“tele-radiology provider,” i.e., that he could telework, only if he “step[ped] down
as the Chief of Imaging.” Id. He averred that he accepted the agency’s offer
because it met the needs of his family and he “was essentially forced to take it.”
Id. Included in the definition of “personnel action” is “a detail, transfer, or
reassignment.” 5 U.S.C. § 2302(a)(2)(A)(iv). To the extent the appellant alleged
that he was subjected to a reassignment under 5 U.S.C. § 2302(a)(2)(A)(iv), we
find his allegation unavailing.14 Indeed, the appellant did not allege that an
agency employee reassigned or threatened to reassign him; rather, he alleged that,
presented with unpleasant options, he elected to relinquish being Chief. IAF,
Tab 1 at 48; see 5 U.S.C. § 2302(b)(8)-(9) (describing it as unlawful for an
employee to “take or fail to take, or threaten to take or fail to take, a personnel
action . . . because of” a protected disclosure or activity). Accordingly, we find
14 As indicated herein, the appellant did not discernably allege that this change in
position resulted in a loss of pay or grade; accordingly, we construe his allegation as
pertaining to a reassignment, as opposed to a demotion. See Onasch v. Department of
Transportation, 63 M.S.P.R. 158, 162 (1994) (employing the definition at 5 C.F.R.
§ 210.102(b)(12), i.e., “a change of an employee, while serving continuously within the
same agency, from one position to another without promotion or demotion,” to
determine whether an appellant was reassigned for purposes of 5 U.S.C. § 2302(a)(2)
(A)(iv)).22
that the appellant’s assertions do not amount to a nonfrivolous allegation of a
personnel action under 5 U.S.C. § 2302(a)(2)(A)(iv).
Also 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). To the extent the appellant, through his allegations
regarding stepping down as Chief, sought to raise a constructive demotion claim,
his allegations are unavailing. The Board has held that an alleged constructive
removal may constitute a personnel action for purposes of an IRA appeal.
Colbert v. Department of Veterans Affairs , 121 M.S.P.R. 677, ¶ 12 & n.5 (2014);
see Mintzmyer v. Department of the Interior , 84 F.3d 419, 423 (Fed. Cir. 1996)
(“The legal standard for establishing a constructive discharge is the same
regardless of whether the discharge was allegedly in retaliation for
whistleblowing or for filing a discrimination claim.”). By analogy, a
nonfrivolous allegation of a constructive demotion may be a personnel action
under 5 U.S.C. § 2302(a)(2)(A)(iii). Here, the appellant did not allege that his
reassignment resulted in a reduction in grade or a reduction in pay . IAF, Tab 8
at 34; see Loggins v. U.S. Postal Service , 112 M.S.P.R. 471, ¶ 10 (2009)
(explaining that, for a reassignment to fall within the Board’s chapter 75
jurisdiction, it must result in a reduction in grade or a reduction in pay).
Accordingly, we find that the appellant failed to make a nonfrivolous allegation
of a personnel action regarding his apparent reassignment.
The appellant claimed that his supervisor did not allow him to attend “a
required VA training activity” in February 2017. IAF, Tab 1 at 53, 59. A
decision concerning training may constitute a personnel action under the statute.
See 5 U.S.C. § 2302(a)(2)(A)(ix). However, such a decision qualifies as a
personnel action only 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).]” Id. Thus, the plain wording of the
statute explicates that not all denials of training opportunities are covered23
personnel actions. Id.; see Simone v. Department of the Treasury , 105 M.S.P.R.
120, ¶ 9 (2007) (explaining that there must be, at a minimum, a moderate
probability that the training would have resulted in some type of personnel
action); see also Shivaee v. Department of the Navy , 74 M.S.P.R. 383, 387 (1997)
(same). Here, the appellant did not allege that the training would potentially lead
to an appointment, promotion, or a performance evaluation. Further, although he
said the training was “required,” he did not identify the nature of the training or
state that it was necessary for his continued employment. Thus, we find that his
allegation regarding training does not amount to a nonfrivolous allegation of a
personnel action under the statute.
The appellant alleged that he was subjected to both harassment and a
hostile work environment. IAF, Tab 1 at 31. He asserted, among other things,
that the following incidents occurred during his tenure at CAVHCS: (1) the
agency cancelled his telework agreement; (2) his immediate supervisor materially
altered an incident report relating to his job-induced emotional distress;
(3) agency management began documenting his conduct and performance
deficiencies; (4) agency management involuntary referred him to EAP; (5) he was
excluded from discussions and communications on a broad range of topics;
(6) the agency failed to respond to his concerns regarding Dr. A bringing a gun
onto agency premises; (7) the agency removed the Human Resources Chief, who
had reported improper agency actions on his behalf; (8) the agency threatened to
report him as AWOL; (9) the agency deliberately delayed his receipt of wages;
and (10) he was relocated to a small, hot room located 40 miles away from his
official primary duty station and not permitted to communicate with any Imaging
Department employees. Id. at 45-53. 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 on24
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,
2022 MSPB 17, ¶¶ 15-16. To this end, the agency actions must have practical
and significant effects on the overall nature and quality of the appellant’s
working conditions, duties, or responsibilities. Id. Here, we find that the
appellant’s allegations collectively amount to a nonfrivolous allegation of a
significant change in his working conditions. See id., ¶¶ 17-18 (concluding that
the appellant made a nonfrivolous allegation that the agency had subjected him to
a significant change in duties, responsibilities, or working conditions when he
alleged, among other things, that supervisory personnel both directed him to stop
attending leadership meetings and performing certain extra duties and subjected
him to multiple investigations). 15 Thus, the appellant has made a nonfrivolous
allegation of a personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii).
15 The appellant also alleged that he became the target of an agency investigation on
February 2, 2017, when he was temporarily reassigned. IAF, Tab 1 at 52-53. An
investigation into an allegation of misconduct is not a personnel action per se. Spivey v.
Department of Justice , 2022 MSPB 24, ¶ 10 (citing Sistek v. Department of Veterans
Affairs, 955 F.3d 948, 955 (Fed. Cir. 2020)). It is proper to consider evidence regarding
an investigation if it is so closely related to an alleged personnel action that it would
have been a pretext for gathering information to retaliate for whistleblowing. Id. The
appellant generally alleges that this investigation was accompanied by some of the other
incidents that constitute his harassment claim, such as his assignment to an isolated
room. IAF, Tab 1 at 52-53. However, he has not claimed that it resulted in a personal
action or that the manner in which he or others were questioned during the investigation
significantly changed his duties, responsibilities, or working conditions. Id. In
particular, we note that the appellant’s termination letter references an investigation that
began in or around September 2017, 7 months after the investigation the appellant
raises in his appeal. IAF, Tab 6 at 43. Accordingly, he has not established Board
jurisdiction over the alleged investigation. See Spivey, 2022 MSPB 24, ¶¶ 12-13
(finding that the appellant failed to nonfrivolously allege that an investigation was a
personnel action when it did not result in any proposal of disciplinary or corrective
action, the appellant’s detail, transfer, or reassignment, or any other personnel action
identified in 5 U.S.C. § 2302(a)(2)(A), and the appellant did not allege that the
investigation had any practical or significant effects on the overall nature and quality of
her working conditions, duties, or responsibilities).25
Lastly, the appellant alleged that, on October 23, 2017, the agency removed
him from his position during his probationary period. IAF, Tab 1 at 56, 62, Tab 6
at 43. The appellant’s termination letter indicates that he was appointed under
the authority of 38 U.S.C. § 7401(1) and subject to a 2-year probationary period.
IAF, Tab 6 at 43. As stated, the definition of “personnel action” includes “an
action under chapter 75 of this title or other disciplinary or corrective action.”
5 U.S.C. § 2302(a)(2)(A)(iii). An agency physician appointed under the authority
of 38 U.S.C. § 7401(1) may bring an IRA appeal alleging that termination was
retaliatory. Hawker v. Department of Veterans Affairs , 123 M.S.P.R. 62, ¶ 2 n.1
(2015). We find that the appellant made a nonfrivolous allegation of a personnel
action under 5 U.S.C. § 2302(a)(2)(A)(iii) regarding his termination.
Accordingly, we find that the appellant made nonfrivolous allegations of
the following three personnel actions: (1) the denial or withholding of his
recruitment incentive pay; (2) a significant change in duties, responsibilities, or
working conditions; and (3) his termination.
The appellant satisfied the contributing factor jurisdictional criterion and is
entitled to a hearing on the merits.
An appellant’s protected activity is a contributing factor if it in any way
affects an agency’s decision to take, or fail to take, a personnel action. See
Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 14 (2012). One way to
establish contributing factor is the knowledge/timing test. Wadhwa v.
Department of Veterans Affairs , 110 M.S.P.R. 615, ¶ 12, aff’d per curiam , 353 F.
App’x 435 (Fed. Cir. 2009). Under this test, an appellant can prove the
contributing factor element through evidence that the official taking the personnel
action knew of the appellant’s protected activity or disclosure and that the
personnel action occurred within a period of time such that a reasonable person
could conclude that the activity or disclosure was a contributing factor in the
personnel action. 5 U.S.C. § 1221(e)(1); see Wadhwa, 110 M.S.P.R. 615, ¶ 12 . 26
Here, the appellant alleged that agency leadership was collectively aware of
his disclosures and activities. IAF, Tab 1 at 40, 47. To this end, he alleged that
“[t]he entirety of illegal, unethical, and despicable acts committed over a many
month period and continuing to present [was] so extreme it could have only
occur[ed] with the full cooperation of CAVHCS’ leadership.” Id. at 47.
Moreover, it is undisputed that the appellant worked at CAVHCS for less than
2 years. IAF, Tab 6 at 43. Accordingly, we find that the appellant made
nonfrivolous allegations that, if proven, would satisfy the contributing factor
criterion via the knowledge/timing test.16 See Wadhwa, 110 M.S.P.R. 615, ¶ 12
(explaining that, if an appellant satisfies the knowledge/timing test, the appellant
has demonstrated that a protected disclosure was a contributing factor in a
personnel action); see also Mastrullo v. Department of Labor , 123 M.S.P.R. 110,
¶ 21 (2015) (explaining that the Board has held that a personnel action taken
within approximately 1 to 2 years of a protected disclosure satisfies the
knowledge/timing test).
Accordingly, we find that the appellant made nonfrivolous allegations of
protected disclosures under 5 U.S.C. § 2302(b)(8) and protected activity under
5 U.S.C. § 2302(b)(9)(C), which contributed to the following: (1) the denial or
withholding of recruitment incentive pay; (2) a significant change in duties,
responsibilities, or working conditions; and (3) his termination. 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 preponderant evidence.
16 Some of the allegations giving rise to the appellant’s claim of a significant change in
duties, responsibilities, or working conditions predate some of his alleged disclosures;
thus, the disclosures could not have contributed to those elements of this personnel
action. See El, 123 M.S.P.R. 76, ¶ 10 (explaining that, because the subject personnel
action predated the appellant’s protected disclosure, the disclosure could not have
contributed to the personnel action). For instance, the appellant’s December 5, 2016
Privacy Act-related disclosure could not have contributed to cancellation of his
telework agreement, which occurred in September/October 2016. IAF, Tab 7 at 19,
36-37. At the merits stage of the proceeding, the administrative judge should be
mindful of these timing issues.27
Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016). Thus, we
find that the appellant is entitled to his requested hearing and a decision on these
claims. IAF, Tab 1 at 2. If the appellant proves that a protected disclosure or
activity was a contributing factor in a personnel action taken against him, he is
entitled to corrective action unless the agency proves by clear and convincing
evidence that it would have taken the same personnel actions in the absence of the
protected disclosure. 5 U.S.C. § 1221(e); Salerno, 123 M.S.P.R. 230, ¶ 5.
The administrative judge should permit the parties to engage in discovery on
remand.
The appellant also asserts that the administrative judge “err[ed] by making
fact determinations . . . without the benefit of a developed record where discovery
was allowed.” PFR File, Tab 1 at 16. To the extent the appellant argues that the
administrative judge erred by making a jurisdictional determination before the
parties had engaged in discovery, his argument is unavailing.
An administrative judge has broad discretion in ruling on discovery
matters, and the Board will not find reversible error in such rulings absent an
abuse of discretion. Dieter v. Department of Veterans Affairs , 2022 MSPB 32,
¶ 25. The administrative judge advised the parties that they could initiate
discovery within 30 days of the February 26, 2018 Acknowledgment Order. IAF,
Tab 2 at 3. On the same date, he informed the parties that the record on
jurisdiction would also close in 30 days. IAF, Tab 3 at 8. A party does not need
the Board’s approval to engage in discovery, and the Board generally only
becomes involved in discovery matters if a party files a motion to compel. King
v. Department of the Navy , 98 M.S.P.R. 547, ¶ 10 (2005), aff’d per curiam , 167 F.
App’x 191 (Fed. Cir. 2006); see 5 C.F.R. § 1201.71 (explaining that parties are
expected to start and complete discovery with a minimum of Board intervention).
The appellant does not allege that he initiated a timely discovery request, and he
did not file a motion to extend the discovery period below. Therefore, we discern
no abuse of discretion by the administrative judge.28
In any event, given that we find jurisdiction and are remanding the appeal,
any inability to conduct discovery on the jurisdictional issue has not harmed the
appellant’s substantive rights. White v. Government Printing Office ,
108 M.S.P.R. 355, ¶ 9 (2008) (explaining that the Board will not find reversible
error in an administrative judge’s discovery rulings absent an abuse of discretion
that prejudiced the appellant’s substantive rights). Prior to holding a hearing, the
administrative judge shall afford the parties an opportunity to conduct discovery
and order the parties to submit any other evidence that he deems necessary to
adjudicate the merits of this appeal. See Lewis v. Department of Defense ,
123 M.S.P.R. 255, ¶ 14 (2016).
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.29 | Kassner_JulianAT-1221-18-0276-W-1__Remand_Order.pdf | 2024-05-15 | JULIAN KASSNER v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-18-0276-W-1, May 15, 2024 | AT-1221-18-0276-W-1 | NP |
1,462 | https://www.mspb.gov/decisions/nonprecedential/Knowlin_Tredith_H_DC-0752-17-0703-X-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TREDITH H. KNOWLIN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-0752-17-0703-X-1
DATE: May 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Allison B. Eddy , Esquire, Virginia Beach, Virginia, for the appellant.
Amanda E. Shaw , Esquire, Roanoke, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1In a June 22, 2023 compliance initial decision, the administrative judge
found the agency in noncompliance with the Board’s February 15, 2023 final
order reversing the appellant’s removal and ordering her restored to duty, with
back pay and appropriate benefits. Knowlin v. Department of Veterans Affairs ,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
MSPB Docket No. DC-0752-17-0703-C-1, Compliance File, Tab 7, Compliance
Initial Decision (CID); Knowlin v. Department of Veterans Affairs , MSPB Docket
No. DC-0752-17-0703-I-1, Final Order (Feb. 15, 2023). For the reasons
discussed below, we now find the agency in compliance and DISMISS the
petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
¶2On February 15, 2023, the Board affirmed the November 16, 2018 initial
decision of the administrative judge, which in pertinent part had reversed the
appellant’s removal and ordered the agency to restore her to duty and pay
appropriate back pay and benefits. Final Order at 11-2. Following the appellant’s
May 10, 2023 petition for enforcement of this order, the administrative judge
issued a compliance initial decision on June 22, 2023, finding that although the
agency had returned the appellant to duty, it had not paid her the required back
pay and benefits. CID at 4-6. The administrative judge ordered the agency to
submit evidence showing that it had paid appropriate back pay and benefits. CID
at 6.
¶3In the compliance initial decision, the administrative judge informed the
agency that, if it decided to take the actions required by the decision, it must
submit to the Office of the Clerk of the Board, within the time limit for filing a
petition for review under 5 C.F.R. § 1201.114(e), a statement that it had taken the
actions identified in the compliance initial decision, along with evidence
establishing that it had taken those actions. CID at 6-7; see 5 C.F.R.
§ 1201.183(a)(6)(i). She also informed the parties of their option to request
Board review of the compliance initial decision by filing a petition for review by
July 27, 2023, the date on which the findings of noncompliance would become
final unless a petition for review was filed. CID at 7; see 5 C.F.R.
§§ 1201.114(e), 1201.183(a)(6)(ii), 1201.183(b). Neither party filed any
submission with the Office of the Clerk of the Board within the time limit set
2
forth in 5 C.F.R. § 1201.114. Accordingly, pursuant to 5 C.F.R.
§ 1201.183(b)-(c), the administrative judge’s findings of noncompliance became
final, and the appellant’s petition for enforcement was referred to the Board for a
final decision on issues of compliance. Knowlin v. Department of Veterans
Affairs, MSPB Docket No. DC-0752-17-0703-X-1 , Compliance Referral File
(CRF), Tab 1.
¶4When the Board finds a personnel action unwarranted or not sustainable, it
orders that the appellant be placed, as nearly as possible, in the situation she
would have been in had the wrongful personnel action not occurred. House v.
Department of the Army , 98 M.S.P.R. 530, ¶ 9 (2005). The agency bears the
burden to prove its compliance with a Board order. Vaughan v. Department of
Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011). An agency’s assertions of compliance
must include a clear explanation of its compliance actions supported by
documentary evidence. Id. The appellant may rebut the agency’s evidence of
compliance by making “specific, nonconclusory, and supported assertions of
continued noncompliance.” Brown v. Office of Personnel Management ,
113 M.S.P.R. 325, ¶ 5 (2010).
¶5On August 14, 2023, the agency responded to the acknowledgement order
and submitted evidence that it had paid the appellant appropriate back pay, with
interest, and benefits. CRF, Tab 2. The appellant has not responded to this
submission, although the acknowledgement order informed her that if she did not
respond to the agency’s submission within 20 calendar days, the Board might
assume she was satisfied and dismiss her petition for enforcement. CRF, Tab 1
at 3.
¶6Accordingly, in view of the evidence submitted by the agency and the
appellant’s lack of response, we find the agency in compliance and dismiss the
petition for enforcement. This is the final decision of the Merit Systems
Protection Board in this compliance proceeding. Title 5 of the Code of Federal
Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
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 any
5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (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
6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 | Knowlin_Tredith_H_DC-0752-17-0703-X-1__Final_Order.pdf | 2024-05-15 | TREDITH H. KNOWLIN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-0752-17-0703-X-1, May 15, 2024 | DC-0752-17-0703-X-1 | NP |
1,463 | https://www.mspb.gov/decisions/nonprecedential/Tatum_Valerie_D_CH-0841-20-0082-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VALERIE D. TATUM,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-0841-20-0082-I-1
DATE: May 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Valerie D. Tatum , Detroit, Michigan, 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 her appeal as barred under the doctrine of res judicata. 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).
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).
BACKGROUND
The appellant filed an appeal of the July 17, 2019 final decision of the
Office of Personnel Management (OPM) finding her ineligible for an annuity
under the Federal Employees’ Retirement System (FERS) because she had
requested and received a refund of her contributions. Initial Appeal File (IAF),
Tab 1 at 3, 7-8. The administrative judge found that the issue of the appellant’s
eligibility for a FERS annuity was fully litigated on the merits in a prior appeal in
2017, and that the decision in that appeal was final.2 IAF, Tab 8, Initial Decision
(ID) at 5-6. He dismissed the current appeal as barred by the doctrine of
res judicata.3 ID at 6. The initial decision informed the appellant that it would
become final on March 3, 2020, unless a petition for review was filed by that
date. ID at 6.
The appellant filed a March 24, 2020 petition for review and an April 24,
2020 supplement. Petition for Review (PFR) File, Tabs 1-2, Tab 3 at 1. The
Clerk of the Board informed the appellant, among other things, that her petition
for review of the January 28, 2020 initial decision was untimely filed because it
was not received in the Clerk’s office or postmarked on or before March 3, 2020.
PFR File, Tab 3 at 2. The Clerk explained that the Board’s regulation required
the appellant to file a motion to accept the filing as timely and/or waive the time
2 The administrative judge observed that in Tatum v. Office of Personnel Management ,
MSPB Docket No. CH-0841-17-0077-I-1, Initial Decision (Feb. 23, 2017), a Board
administrative judge had ruled on the issues raised by the appellant in this appeal. IAF,
Tab 3 at 1. That decision became the Board’s final decision when neither party filed a
petition for review. In an order in this appeal, the administrative judge set forth the
doctrines of res judicata and collateral estoppel, and ordered the appellant to submit
evidence and argument establishing jurisdiction over her appeal, and addressing
whether it was appropriate to dismiss the appeal based on the appellant’s 2017 appeal.
Id. at 2-3. The appellant did not reply.
3 Although the administrative judge initially wrote that she dismissed the appeal for
lack of jurisdiction, she clarified later in the decision that the appellant established
jurisdiction over her appeal, and that OPM’s rescission of its final decision did not
divest the Board of jurisdiction because OPM had made plain that it did not intend to
issue a new decision. ID at 1, 4; IAF, Tab 7.2
limit for good cause.4 Id. The appellant filed a motion, “ask[ing] the Board to
waive the time limit for good cause due to blindness and the COVID-19 virus.”
PFR File, Tab 6 at 1. She provided contact information for her physicians and
asserted that she would be sending “proof of blindness documents from [her]
optometrist.” Id. at 2. She also asserted that she had missed surgical
appointments due to the coronavirus closing major offices and transportation
“limiting [her] from getting to [her] destination.” Id. With her reply to the
agency’s response, the appellant includes notes from a March 5, 2020
examination by a physician. PFR File, Tab 7 at 2-4.
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 party filing the petition shows that
the initial decision was received more than 5 days after it was issued, within
30 days after the party received the initial decision. Palermo v. Department of
the Navy, 120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R. § 1201.114(e). The date of a
filing submitted by mail is determined by the postmark date. 5 C.F.R.
§ 1201.4(l).
The initial decision provided the appellant with notice that March 3, 2020,
was the last day on which she could file a petition for review with the Board. ID
at 6. The appellant does not allege that she failed to receive the initial decision or
that she received it more than 5 days after it was issued on January 28, 2020. On
March 24, 2020, via the U.S. Mail, the appellant filed a document with the Clerk
of the Board updating her mailing address, and asserting that her filing was late
due to financial hardship and the COVID-19 virus. PFR File, Tab 1 at 2. That
document did not address the merits of the appellant’s appeal or allege error on
the part of the administrative judge. PFR File, Tab 1. Nevertheless, the Clerk of
the Board notified the appellant that the Board considered that March 24, 2020
4 The agency filed a response to the appellant’s petition for review. PFR File, Tab 5.3
filing as the appellant’s petition for review, and her April 24, 2020 pleading as a
supplement to her petition for review. PFR File, Tab 2, Tab 3 at 1. Thus, the
appellant filed her petition for review 21 days late.
The Board will waive the filing deadline for a petition for review only upon
a showing of good cause for the untimely filing. Palermo, 120 M.S.P.R. 694, ¶ 4;
5 C.F.R. §§ 1201.113(d), 1201.114(f). The party who submits an untimely
petition for review has the burden of establishing good cause for the untimely
filing by showing that she exercised due diligence or ordinary prudence under the
particular circumstances of the case. Palermo, 120 M.S.P.R. 694, ¶ 4. To
determine whether an appellant has shown good cause, the Board will consider
the length of the delay, the reasonableness of her excuse and her showing of due
diligence, whether she is proceeding pro se, and whether she has presented
evidence of the existence of circumstances beyond her control that affected her
ability to comply with the time limits or of unavoidable casualty or misfortune
which similarly shows a causal relationship to her inability to timely file her
petition. Moorman v. Department of the Army , 68 M.S.P.R. 60, 62-63 (1995),
aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
Here, as noted, the appellant filed her petition for review 21 days late.
While she is pro se and that weighs in favor of finding good cause, the initial
decision clearly placed her on notice of the filing deadline, and the 21-day filing
delay is not minimal. Bascom v. Department of the Navy , 101 M.S.P.R. 53, ¶ 9
(2006) (finding a 17-day filing delay not minimal); Allen v. Office of Personnel
Management, 97 M.S.P.R. 665, ¶ 8 (2004) (finding a 14-day delay not minimal).
In addition, the appellant has not presented evidence of the existence of
circumstances beyond her control or unavoidable casualty or misfortune that
affected her ability to comply with the time limits.5
5 Regarding the appellant’s claim that financial difficulties caused her filing delay, the
appellant has not explained this argument further. In any event, financial difficulties do
not constitute good cause for an untimely petition for review. Johnson v. Department of
Veterans Affairs, 64 M.S.P.R. 257, 259 (1994), aff’d, 56 F.3d 81 (Fed. Cir. 1995)4
As noted above, the appellant cited her blindness and the coronavirus as the
reason for the late filing of her petition for review. PFR File, Tab 6 at 1-2. To
establish that an untimely filing was the result of an illness, the appellant must:
(1) identify the time period during which she suffered from the illness; (2) submit
medical evidence showing that she suffered from the alleged illness during that
time period; and (3) explain how the illness prevented her from timely filing her
appeal or a request for an extension of time. Lacy v. Department of the Navy ,
78 M.S.P.R. 434, 437 (1998). The Clerk’s notice informed the appellant of these
requirements. PFR File, Tab 3 at 9 n.3.
However, the appellant’s health problems do not constitute good cause for
her untimely filing, because, as explained below, her medical evidence does not
explain how her health problems prevented her from filing a timely petition for
review. See Alford v. Office of Personnel Management , 108 M.S.P.R. 414,
¶¶ 10-11 (2008) (finding that a doctor’s statement that the appellant was under his
care did not establish good cause for her untimely petition for appeal based on
illness, when the statement contained no explanation as to how the medical
condition prevented the appellant from filing a timely appeal); Trachtenberg v.
Department of Defense , 104 M.S.P.R. 640, ¶ 10 (2007) (finding no good cause for
an untimely petition for review because the appellant failed to show that she
suffered from a medical condition that affected her at the time of the filing
deadline or during the entire period of the delay); Coleman v. U.S. Postal Service ,
91 M.S.P.R. 469, ¶ 10 (2002) (same).
The medical evidence the appellant submitted indicates that she was
examined for age-related cataracts in both of her eyes on March 5, 2020. PFR
File, Tab 7 at 2-4. The doctor’s notes indicate that the appellant’s vision has
decreased over the past 5 years, but there is nothing therein, or elsewhere in the
evidence, to indicate that the appellant experienced an acute episode concerning
her vision that impeded her ability to file a petition for review during the time
(Table).5
between the issuance of the initial decision on January 28, 2020, and March 3,
2020, when that initial decision became the Board’s final decision in this appeal.
Id. Also, the appellant’s medical evidence does not explain her subsequent
failure to file her petition for review during the time between her medical
appointment on March 5, 2020, and the date she filed her petition, March 24,
2020. Thus, the medical evidence fails to support the appellant’s assertion that
the delay in filing her petition for review was caused by her blindness. See
Alford, 108 M.S.P.R. 414, ¶ 10; Lacy, 78 M.S.P.R. at 437.
As for the appellant’s assertion that the shutdowns caused by COVID-19
and the coronavirus were responsible for her late filing, the chronology of events
in the appellant’s home state of Michigan do not support her assertion. The
Governor of Michigan declared a State of Emergency due to the coronavirus on
March 10, 2020, and she issued a statewide stay -at-home order limiting
nonessential travel, effective March 24, 2020. Executive Order 2020-21, https://
www.michigan.gov/whitmer/news/state-orders-and-directives/2020/03/23/
executive-order-2020-21 (last visited May 15, 2024). Because those orders were
issued after the March 3, 2020 filing deadline for the appellant’s petition for
review, they do not provide support for the appellant’s contention that the
shutdown of major offices and transportation caused the delay in filing her
petition for review. PFR File, Tab 6 at 2.
Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the application of res judicata to the appellant’s entitlement to a
FERS annuity. 6
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any8
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s9
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 10
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Tatum_Valerie_D_CH-0841-20-0082-I-1__Final_Order.pdf | 2024-05-15 | VALERIE D. TATUM v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0841-20-0082-I-1, May 15, 2024 | CH-0841-20-0082-I-1 | NP |
1,464 | https://www.mspb.gov/decisions/nonprecedential/Miller_Robert_L_AT-0845-18-0666-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT LEE MILLER, JR.,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0845-18-0666-I-1
DATE: May 15, 2024
THIS ORDER IS NONPRECEDENTIAL1
Robert Lee Miller, Jr. , Jackson, Mississippi, pro se.
Jane Bancroft , 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
affirmed a final decision of the Office of Personnel Management (OPM). For the
reasons discussed below, we GRANT the petition for review. We AFFIRM the
administrative judge’s findings as to the existence and amount of the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
overpayment, but otherwise VACATE the initial decision. We REMAND the
case to OPM for further adjudication in accordance with this Remand Order.
BACKGROUND
The essential undisputed facts as set forth in the initial decision are as
follows: Effective November 17, 2001, the appellant was removed from his
position as a Construction Representative with the Army Corps of Engineers.
Initial Appeal File (IAF), Tab 23, Initial Decision (ID) at 2. Thereafter, he
applied for and, on January 17, 2002, OPM authorized a refund of his retirement
contributions for his Federal service from September 6, 1987, through
November 17, 2001. Id. Effective April 7, 2002, the appellant’s removal was
cancelled, he was returned to duty, and he was retroactively placed on leave
without pay from November 17, 2001, through April 6, 2002. Id. The appellant
continued working until he retired, effective September 30, 2014. Id.
On March 3, 2015, OPM informed the appellant that his refund in the
amount of $5,116.62 became erroneous once he was reinstated without a break in
service. Id. The appellant requested reconsideration of OPM’s decision. IAF,
Tab 8 at 10-20. On April 27, 2018, OPM issued a final decision, affirming its
initial decision. Id. at 6-8.
The appellant filed a Board appeal. IAF, Tab 1. After holding the
appellant’s requested hearing, the administrative judge issued an initial decision,
affirming OPM’s final decision as to the existence and amount of the
overpayment. ID at 3-4. Regarding waiver, the administrative judge found that
the Board lacks jurisdiction to consider whether the appellant was entitled to a
waiver because OPM’s final decision did not address waiver of the erroneous
payment. ID at 4-5. The appellant has filed a petition for review, which the
agency has opposed. Petition for Review (PFR) File, Tabs 1, 4. 2
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant argues that the administrative judge improperly
denied his request to call a human resources representative as a witness at the
hearing. PFR File, Tab 1 at 1. The appellant requested to call this witness to
corroborate his contention that the refund was not erroneous because, following
his termination, he was not reinstated without a break in service, but rather
rehired as a new hire and never retroactively placed on leave without pay. IAF,
Tab 10 at 1, Tab 13 at 1. The administrative judge denied this witness as not
relevant. IAF, Tab 14 at 3. There is no evidence in the record indicating that the
appellant objected to the administrative judge’s denial of this witness, and thus,
he is precluded from doing so on review. See Tarpley v. U.S. Postal Service ,
37 M.S.P.R. 579, 581 (1988) (finding that the appellant’s failure to timely object
to the administrative judge’s rulings on witnesses precluded his doing so on
petition for review). Moreover, even if the appellant had preserved an objection,
he has not shown that the administrative judge abused her discretion in
disallowing the witness to the extent the appellant himself could have testified
concerning the circumstances surrounding his reinstatement and/or any alleged
inaccuracies in his Standard Form 50s or Individual Retirement Record. See
Franco v. U.S. Postal Service , 27 M.S.P.R. 322, 325 (1985) (finding that an
administrative judge has wide discretion to exclude witnesses when it has not
been shown that their testimony would be relevant, material, and nonrepetitious).
Although the appellant does not dispute the total amount of the refund, he
appears to dispute the administrative judge’s finding regarding the current
balance owed on the erroneous payment because he contends that the agency has
been withholding funds from his monthly annuity. PFR File, Tab 1 at 1. We
discern no error in the administrative judge’s finding that OPM proved by
preponderant evidence the existence and amount of the erroneous payment of the
refund in the amount of $5,116.62. ID at 3. The details concerning the amount
OPM has collected and the remaining amount owed are not clear from the record3
before us. Nonetheless, findings regarding the current amount owed are beyond
the scope of our review of the issues in OPM’s decision. Accordingly, we vacate
the administrative judge’s findings in this regard.
Regarding waiver, OPM maintained below that the appellant did not
request waiver of the erroneous payment because he did not check the box on the
form requesting reconsideration. IAF, Tab 8 at 4. OPM’s final decision states
that the appellant did not complete a financial resources questionnaire, despite
receiving two. Id. at 7. However, the record reflects that, with his request for
reconsideration, the appellant submitted a partially completed financial resources
questionnaire, in which he listed his total monthly income and expenses, as well
as indicated that he had growing debts due to medical conditions and loans and
would submit additional information at a later date. Id. 18-20.
Accordingly, to the extent the record is somewhat ambiguous regarding
whether the appellant requested a waiver, and in light of his current request for a
waiver, we find it appropriate to remand the appeal to OPM for consideration of
the issue. See, e.g., Murphy v. Office of Personnel Management , 103 M.S.P.R.
431, ¶ 19 (2006) (stating that the paramount concern in a retirement appeal is
whether the appellant is entitled to the benefits she seeks, not how well she
argues her case); Karker v. Office of Personnel Management , 80 M.S.P.R. 235,
¶ 9 (1998) (noting that the Board has placed a high priority on resolving
retirement benefit cases on the merits); Bowers v. Office of Personnel
Management, 41 M.S.P.R. 200, 203 (1989) (stating that the Board has jurisdiction
to review only issues adjudicated by OPM in its final decision).
ORDER
For the reasons discussed above, we remand this case to OPM for further
adjudication in accordance with this Remand Order.
OPM shall issue a new final decision addressing waiver of the overpayment
and, if applicable, the adjustment of a repayment schedule. OPM shall issue the4
new decision within 60 days of the date of this Order and in that decision shall
advise the appellant of the right to file an appeal with the Board if he disagrees
with that new decision. See 5 U.S.C. §§ 8347(d)(1), 8461(e)(1); 5 C.F.R.
§§ 831.110, 841.308. Any such appeal must be filed consistent with the Board’s
regulations. We ORDER the appellant to provide all necessary information that
OPM requests to help it carry out the Board’s Order. See 5 C.F.R. § 1201.181(b).
If OPM fails to issue the ordered decision within 60 days of the date of this
order, the appellant may file a petition for enforcement with the regional or field
office that issued the initial decision in this appeal. 5 C.F.R. § 1201.181(a). The
petition should contain specific reasons why the appellant believes that OPM has
not fully carried out the Board’s Order and should include the dates and results of
any communications with OPM about its progress in issuing its final decision.
5 C.F.R. § 1201.182(a). Any petition for enforcement must be filed within
90 days of the date of this order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.5 | Miller_Robert_L_AT-0845-18-0666-I-1__Remand_Order.pdf | 2024-05-15 | null | AT-0845-18-0666-I-1 | NP |
1,465 | https://www.mspb.gov/decisions/nonprecedential/Ghorab_Nadia_A_AT-0841-19-0311-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NADIA A. GHORAB,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0841-19-0311-I-2
DATE: May 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Magdy A. Ghorab , Rockledge, Florida, for the appellant.
Karla W. Yeakle , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her appeal of the Office of Personnel
Management’s (OPM) reconsideration decision denying her request for Federal
Employees Health Benefits (FEHB) insurance coverage for her son. On petition
for review, the appellant argues the merits of OPM’s reconsideration 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).
requests that the Board provide her with an attorney, and appears to assert that the
administrative judge erred in not holding her requested status conference.
Petition for Review (PFR) File, Tab 1 at 2-5. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The administrative judge correctly dismissed for lack of jurisdiction the
appellant’s appeal of OPM’s reconsideration decision denying her request for
FEHB insurance coverage for her son as a disabled, dependent child incapable of
self-support. Initial Appeal File, Tab 9, Initial Decision; see Rosano v.
Department of the Navy , 699 F.2d 1315, 1319 (Fed. Cir. 1983) (stating that the
FEHB regulations do not provide for review by the Board of “any insurance
decision”); Chamblin v. Office of Personnel Management , 112 M.S.P.R. 266, ¶ 7
(2009) (“In general, claims concerning . . . [F]ederal employee health insurance
programs are beyond the Board’s jurisdiction.”); Kearby v. Office of Personnel
Management, 47 M.S.P.R. 34, 37 (1991) (stating that OPM determinations
concerning health plan enrollment are final and not reviewable by the Board).
Regarding the appellant’s request below for a status conference, to the
extent she is claiming that the administrative judge erred or abused her discretion2
in not holding a status conference, the Board’s regulations do not entitle an
appellant to a status conference and grant the administrative judge the discretion
to determine whether a prehearing conference is necessary. See 5 C.F.R.
§ 1201.41(b)(12). The appellant has not demonstrated error or shown that the
administrative judge abused her discretion. In any event, the appellant has not
shown that any error on the part of the administrative judge prejudiced her
substantive rights, and thus provides no basis to disturb the initial decision. See
Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (finding that
an adjudicatory error that is not prejudicial to a party’s substantive rights
provides no basis for reversal of an initial decision).
As noted above, the appellant also appears to request that the Board
provide her with “support” with her appeal, noting that she has been unable to
find an attorney on her own. PFR File, Tab 1 at 5. To the extent the appellant is
requesting that the Board appoint or provide her with an attorney, it is the
appellant’s obligation to secure representation, and the Board is not required by
law, rule, or regulation to appoint counsel for an appellant. Grassell v.
Department of Transportation , 40 M.S.P.R. 554, 564 (1989).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Ghorab_Nadia_A_AT-0841-19-0311-I-2__Final_Order.pdf | 2024-05-15 | NADIA A. GHORAB v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0841-19-0311-I-2, May 15, 2024 | AT-0841-19-0311-I-2 | NP |
1,466 | https://www.mspb.gov/decisions/nonprecedential/Heimrich_Garry_C_SF-844E-19-0622-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GARRY C. HEIMRICH,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-844E-19-0622-I-1
DATE: May 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Garry C. Heimrich , Salem, Oregon, pro se.
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
dismissed his appeal for failure to prosecute. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The appellant ostensibly alleges that the administrative judge abused her
discretion in dismissing his appeal for failure to prosecute. Petition for Review
(PFR) File, Tab 1 at 7-8. To this end, he seemingly avers that the administrative
judge exhibited bias in adjudicating his appeal. Id. We find these assertions
unavailing. As set forth in the initial decision, the appellant failed to appear at
three scheduled prehearing conferences, he failed to file prehearing submissions
as ordered by the administrative judge, and he did not respond to the
administrative judge’s show cause order; thus, we find no abuse of discretion.
Initial Appeal File, Tab 23, Initial Decision at 2-3. Indeed, the Board has upheld
dismissals for failure to prosecute in similar situations. See, e.g., Leseman v.
Department of the Army , 122 M.S.P.R. 139, ¶ 7 (2015) (finding that the
administrative judge did not abuse her discretion when the appellant failed to
appear at two conferences, failed to submit prehearing submissions, and failed to
respond to an order to show cause). Moreover, insofar as the appellant’s broad
allegations of bias are unsubstantiated by the record, the appellant has failed to
rebut the presumption of honesty and integrity that accompanies all
administrative adjudicators. See Oliver v. Department of Transportation ,
1 M.S.P.R. 382, 386 (1980) (explaining that conclusory allegations of bias are2
insufficient to rebut the presumption of the administrative judge’s honesty and
integrity).
The appellant contends that he did not have “enough money to be
represented by [his] Representative.” PFR File, Tab 1 at 8 (punctuation as in
original). However, the inability to afford an attorney does not excuse an
appellant’s failure to comply with either an administrative judge’s order or Board
regulations; thus, a different outcome is not warranted. See Miller v. U.S. Postal
Service, 39 M.S.P.R. 18, 20 (1988) (finding that an appellant’s assertions that he
was unable to afford an attorney and did not think he would be able to represent
himself properly did not establish good cause to waive a filing time limit).
The appellant seemingly challenges the merits of the underlying agency
action. PFR File, Tab 1 at 8. However, because the merits of the underlying
agency action are not determinative of the propriety of the administrative judge’s
dismissal for failure to prosecute, see Bennett v. Department of the Navy ,
1 M.S.P.R. 683, 688 (1980), we find these assertions unavailing.
With his petition for review, the appellant provides a letter regarding the
status of a separate legal matter. PFR File, Tab 1 at 9-11. Insofar as this
information is not material to the outcome of this appeal, a different outcome is
not warranted. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980)
(stating that the Board will not grant a petition for review based on new evidence
absent a showing that it is of sufficient weight to warrant an outcome different
from that of the initial decision).
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL 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
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
review and the 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.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 of6
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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 | Heimrich_Garry_C_SF-844E-19-0622-I-1__Final_Order.pdf | 2024-05-15 | GARRY C. HEIMRICH v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-844E-19-0622-I-1, May 15, 2024 | SF-844E-19-0622-I-1 | NP |
1,467 | https://www.mspb.gov/decisions/nonprecedential/Burwell_Tarria_A_DC-0831-22-0059-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TARRIA ANN BURWELL,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0831-22-0059-I-1
DATE: May 15, 2024
THIS ORDER IS NONPRECEDENTIAL1
Tarria Ann Burwell , Laurel, Maryland, pro se.
Carla Robinson , 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
affirmed the decision of the Office of Personnel Management (OPM) to deny her
application for a survivor annuity under the Civil Service Retirement System
(CSRS). For the reasons discussed below, we GRANT the appellant’s petition for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
review, VACATE the initial decision, and REMAND this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant is the surviving spouse of a CSRS retiree. The retiree was
previously married, and he elected a CSRS survivor annuity at the time of his
retirement in December 2006. Initial Appeal File (IAF), Tab 4 at 40-42. His first
spouse died in August 2008, he notified OPM of her death, and he started to
receive an unreduced annuity. Id. at 17, 33, 37. In December 2018, the retiree
married the appellant and notified OPM of his remarriage. IAF, Tab 1 at 11,
Tab 4 at 16. OPM sent him a January 2019 form informing him of his options to
elect and receive information regarding a survivor annuity for his new spouse and
to add her to his health insurance plan. IAF, Tab 1 at 11. He checked the box to
add his new spouse to his health insurance plan, but he did not check the box
indicating his interest in electing a survivor annuity for his new spouse and
requesting OPM to provide information on making such an election. Id.
According to the appellant, she and her deceased spouse called OPM multiple
times to ascertain whether a survivor annuity was in place for her and OPM
assured them that it had all the documentation. IAF, Tab 1 at 5, Tab 6 at 1-2,
Tab 7 at 4, 9, 11. The retiree died in January 2020. IAF, Tab 4 at 14.
In February 2020, the appellant filed an application with OPM for a CSRS
survivor annuity. IAF, Tab 4 at 10-21. In April 2021, OPM issued its initial
decision denying the appellant’s request on the ground that her deceased spouse
had not filed an election to provide her with a survivor annuity within 2 years of
their marriage. Id. at 8. The appellant then requested reconsideration with OPM.
Id. at 5. In October 2021, OPM issued its reconsideration decision affirming its
initial decision. IAF, Tab 1 at 7-8.
The appellant filed a Board appeal challenging OPM’s determination that
she was not entitled to a CSRS survivor annuity. IAF, Tab 1 at 4. She asserts2
that her deceased spouse did not check the box on the January 2019 form
requesting more information on a survivor annuity because he had the information
he needed, and he submitted forms to provide her with a survivor annuity.
Id. at 5. She claims that they contacted OPM several times and were told that the
election was in place and once the agency processed the paperwork, the
annuitant’s monthly annuity would be reduced accordingly. IAF, Tab 1 at 4-5;
Tab 6 at 2. Because the appellant withdrew her request for a hearing,
the administrative judge issued an initial decision on the written record finding
that the appellant failed to prove her entitlement to a CSRS survivor annuity and
affirming OPM’s reconsideration decision. IAF, Tab 6 at 2, Tab 9, Initial
Decision (ID) at 2, 6.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. She reiterates that her deceased spouse completed
the forms to provide her with a survivor annuity and requests that the Board
inspect the recordings of her telephone conversations with OPM representatives.
Id. at 4-5. OPM has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
In her petition for review, the appellant argues that the doctrine of
respondent superior is applicable in her case. PFR File, Tab 1 at 5. The doctrine
of respondent superior imposes liability upon an employer for the negligent acts
of employees committed within the scope of their employment. Miller v.
Department of Health and Human Services , 8 M.S.P.R. 249, 252 n.1 (1981). The
appellant’s argument is better considered as a claim of equitable estoppel, i.e.,
OPM should be estopped from denying benefits based on the erroneous
information provided to her and her deceased husband regarding her entitlement
to a survivor annuity by one or more OPM employees.
The administrative judge addressed this argument in the initial decision
under the general rule of Office of Personnel Management v. Richmond , 496 U.S.3
414 (1990). ID at 5-6. However, he never fully apprised the appellant of the
standard for equitable estoppel. Accordingly, remand is necessary in order to
afford the appellant the opportunity to address this point. See Blaha v. Office of
Personnel Management , 106 M.S.P.R. 265, ¶ 11 (2007) (remanding to address the
issue of equitable estoppel because the appellant was not informed of the correct
standard).
To prove a claim of equitable estoppel against a Government agency,
an appellant must show affirmative misconduct on the part of Government
officials and her reasonable reliance on that misconduct. See Zacharin v. United
States, 213 F.3d 1366, 1371 (Fed. Cir. 2000); Perez Peraza v. Office of Personnel
Management, 114 M.S.P.R. 457, ¶ 9 (2010). The Board has repeatedly held that
an agency’s negligent provision of misinformation does not constitute affirmative
misconduct. Perez Peraza, 114 M.S.P.R. 457, ¶ 10; Scriffiny v. Office of
Personnel Management , 108 M.S.P.R. 378, ¶¶ 12-13 (2008), overruled on other
grounds by Nunes v. Office of Personnel Management , 111 M.S.P.R. 221, ¶ 15
(2009). On remand, t he parties should address whether the misinformation
provided by the relevant government officials was knowing, and thus, affirmative
misconduct, or mere negligence. Perez Peraza, 114 M.S.P.R. 457, ¶ 13;
see Nunes, 111 M.S.P.R. 221, ¶ 19.
The administrative judge should afford the parties the opportunity to
submit evidence and argument on this issue. Among other things, the appellant
should be afforded another opportunity to elect a hearing. Although the appellant
previously waived her right to a hearing, she might change her mind after
receiving a full and accurate notice of how to prove equitable estoppel.4
ORDER
For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.5 | Burwell_Tarria_A_DC-0831-22-0059-I-1__Remand_Order.pdf | 2024-05-15 | TARRIA ANN BURWELL v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0831-22-0059-I-1, May 15, 2024 | DC-0831-22-0059-I-1 | NP |
1,468 | https://www.mspb.gov/decisions/nonprecedential/Calhoun_Jeffrey_O_NY-844E-21-0145-X-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFFREY O. CALHOUN, JR.,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
NY-844E-21-0145-X-1
DATE: May 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeffrey O. Calhoun, Jr. , Rochester, New York, pro se.
Sherri A. McCall , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
¶1On July 29, 2022, the administrative judge issued a compliance initial
decision finding the Office of Personnel Management in noncompliance with a
November 2, 2021 initial decision that directed the agency “to award and process
the appellant’s disability retirement benefits within 60 days of this order” and “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).
inform the appellant of any additional information or action required of him to
effect the processing, and to inform him of steps it takes to comply with this
order.” Calhoun v. Office of Personnel Management , MSPB Docket No. NY-
844E-21-0145-C-1, Compliance File, Tab 4, Compliance Initial Decision (CID)
at 1–2; Calhoun v. Office of Personnel Management , MSPB Docket No.
NY-844E-21-0145-I-1, Initial Appeal File, Tab 9, Initial Decision at 6.2 Neither
party petitioned for review of the compliance initial decision. See Calhoun v.
Office of Personnel Management , MSPB Docket No. NY -844E-21-0145-X-1,
Compliance Referral File (CRF), Tab 1 at 2. Accordingly, the appellant’s
petition for enforcement has now been referred to the Board for a final decision
on issues of compliance pursuant to 5 C.F.R. § 1201.183(c)(1).
¶2On September 8, 2022, the Office of the Clerk of the Board issued an
acknowledgement order in the instant proceeding advising the parties that the
petition for enforcement had been referred to the Board for a final decision and
ordering the agency to submit evidence of compliance within 15 calendar days.
CRF, Tab 1 at 3. The agency did not respond. Consequently, on January 26,
2023, the Clerk’s Office issued an order directing the agency to “file evidence of
compliance with the Board’s order directing it to award and process the
appellant’s disability retirement benefits” within 21 calendar days. CRF, Tab 2
at 2. The January 26, 2023 order advised the appellant that he could file a
response within 21 days of the date of the agency’s compliance submission and
that the appellant’s failure to respond could result in the Board assuming that the
appellant is satisfied and dismissing the petition for enforcement. CRF, Tab 2
at 3.
2 The compliance initial decision did not include specific language directing the agency
to comply with the November 2, 2021 initial decision. CID at 2–3. However, given
that the appellant averred under penalty of perjury that the agency had not complied
with either provision of the initial decision and that the administrative judge found that
the agency had filed no evidence of compliance with the Board’s order for relief and
granted the petition for enforcement on that basis, it is apparent that the administrative
judge intended to order the agency to comply with the underlying initial decision. CID
at 1–2.
2
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
¶3On January 30, 2023, the agency filed a response to the January 26, 2023
order, in which it represented that Mr. Calhoun had received a net retroactive
payment of $49,100.48, for the period of November 11, 2019, through May 30,
2022. It further represented that it has paid Mr. Calhoun his Federal Employees
Retirement System (FERS) annuity monthly since June 1, 2022, to date. CRF,
Tab 3 at 4. The agency attached a printout to its compliance submission from its
computer system with numbers that correspond to the dollar amounts in its
response. CRF, Tab 3 at 6–7. The agency requests that the petition for
enforcement be dismissed as moot because it is in compliance. CRF, Tab 3 at 4.
The appellant has not filed a response to the agency’s submission, although the
Board informed him that failure to do so might result in dismissal of his petition
for enforcement. CRF, Tab 2 at 3.
¶4When an appellant files a petition for enforcement seeking compliance with
a Board order, the agency has the burden to prove its compliance with the Board
order by preponderant evidence. 5 C.F.R. § 1201.183(d). “Preponderant
evidence” is “[t]he 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). The
Board determines that the agency’s compliance submission meets this burden.
Further, since the appellant has not responded to the agency’s assertions and
evidence of compliance, the Board assumes he is satisfied. See Baumgartner v.
Department of Housing and Urban Development , 111 M.S.P.R. 86, ¶ 9 (2009).
¶5Based upon the foregoing, the Board finds the agency in compliance and
DISMISSES the petition for enforcement. This is the final decision of the Merit
Systems Protection Board in this compliance proceeding. Title 5 of the Code of
Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
3
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (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
6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
8 | Calhoun_Jeffrey_O_NY-844E-21-0145-X-1__Final_Order.pdf | 2024-05-15 | null | NY-844E-21-0145-X-1 | NP |
1,469 | https://www.mspb.gov/decisions/nonprecedential/Welch_LanetteNY-0752-18-0154-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LANETTE WELCH,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
NY-0752-18-0154-I-1
DATE: May 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chris Schirching , Amherst, New York, for the appellant.
Roderick Eves and Lori L. Markle , Esquire, St. Louis, Missouri, 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 constructive suspension appeal for lack of jurisdiction. For the
reasons set forth below, the appellant’s petition for review is DISMISSED as
untimely filed without good cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
¶2In an initial decision issued on September 13, 2018, the administrative
judge dismissed the appellant’s appeal of her alleged constructive suspension for
lack of jurisdiction. Initial Appeal File (IAF), Tab 15, Initial Decision (ID) at 1,
7. The initial decision contained a notice that the decision would become final on
October 18, 2018, unless a petition for review was filed by that date. ID at 7.
The record reflects that the initial decision was sent to the appellant and her
representative by electronic mail on September 13, 2018. IAF, Tab 16.
¶3On November 9, 2018, the appellant filed a petition for review. Petition for
Review (PFR) File, Tab 1. The Office of the Clerk of the Board informed the
appellant that her petition for review appeared to be untimely filed and afforded
her 15 days to file a motion, signed under penalty of perjury, or an affidavit
showing either that the petition was timely filed or that good cause existed to
waive the filing deadline. PFR File, Tab 2 at 1-2. On November 16, 2018, the
appellant filed a timely motion in which she requested that the Board waive the
filing deadline for good cause shown. PFR File, Tab 3. The agency filed a
response in opposition to the appellant’s motion. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4The Board’s regulations provide that a petition for review must be filed
within 35 days after the date of issuance of the initial decision or, if the party
shows she received the initial decision more than 5 days after it was issued,
within 30 days of her receipt of the decision. 5 C.F.R. § 1201.114(e). The
appellant has not alleged or established that she received the initial decision more
than 5 days after it was issued. PFR File, Tab 1 at 3. Thus, the appellant’s
petition for review should have been filed no later than October 18, 2018, the
35th day following the issuance of the initial decision. 5 C.F.R. § 1201.114(e).
She filed it on November 9, 2018, twenty-two days past the filing deadline. PFR
File, Tab 1.2
¶5The Board will waive the filing deadline for a petition for review only upon
a showing of good cause for the untimely filing. Palermo v. Department of the
Navy, 120 M.S.P.R. 694, ¶ 4 (2014); 5 C.F.R. § 1201.114(g). The party who
submits an untimely petition for review has the burden of establishing good cause
for the untimely filing by showing that she exercised due diligence or ordinary
prudence under the particular circumstances of the case. Palermo, 120 M.S.P.R.
694, ¶ 4. To determine whether a party has shown good cause, the Board will
consider the length of the delay, the reasonableness of her excuse and the party’s
showing of due diligence, whether she is proceeding pro se, and whether she has
presented evidence of the existence of circumstances beyond her control that
affected her ability to comply with the time limits or of unavoidable casualty or
misfortune which similarly shows a causal relationship to her inability to timely
file her petition. Id.
¶6Here, the appellant’s petition for review was filed 22 days after the filing
deadline. The Board has held that a nearly 3-week delay is significant. See
Reaves v. Department of Veterans Affairs , 92 M.S.P.R. 352, ¶ 8 (2002) (finding
an 18-day delay in filing a petition for review is significant). A significant delay
weighs against a finding of good cause.
¶7In her signed statement, the appellant asserted that she believed that “[she]
was supposed to appeal to [her employing agency],2 which [she] did on
[October 24, 2018],” and that she “sent [two] follow up emails” to which the
agency did not respond. PFR File, Tab 3 at 4. She further asserted that she sent a
November 6, 2018 email to the District Human Resources Manager, who
2 The appellant claims that she “was instructed to [file] an appeal with [her employing
agency].” PFR File, Tab 3 at 7. She does not identify the source of these instructions
or describe the circumstances under which she received these instructions. Regardless,
the initial decision afforded the appellant clear, accurate, and complete notice of her
appeal rights. ID at 7-8.3
informed her in a November 7, 2018 response that she should have appealed the
initial decision to the Board.3 PFR File, Tab 3 at 4, 6.
¶8The Board has declined to find good cause when, as here, the initial
decision clearly notified the appellant of the procedures and time limit within
which to file her petition for review. ID at 7-8; see Bonk v. Department of
Homeland Security , 109 M.S.P.R. 210, ¶ 7, aff’d, 301 F. App’x 965 (Fed. Cir.
2008). The appellant’s failure to follow these instructions, which ultimately
resulted in a misdirected filing, weighs against a finding of good cause, especially
in light of the appellant’s representation by an attorney. See Nunn v. Department
of Justice, 79 M.S.P.R. 368, ¶ 5 (1998) (stating that the appellant’s failure to
follow the straightforward instructions in the initial decision, and her failure to
file her petition for review with the Board in accordance with those unambiguous
instructions, constitutes a failure to exercise due diligence or ordinary prudence).
¶9A petition for review misdirected at the employing agency, but otherwise
timely, may be accepted by the Board.4 See Smith v. Department of
Transportation, 17 M.S.P.R. 335, 336 n.* (1983) (finding that good cause was
shown for a filing delay where a petition for review was timely filed with the
employing agency and it was able to respond in a timely manner). Even if we
were to consider her submission with her employing agency as her petition for
review, however, the appellant asserts that she filed it on October 24, 2018,
six days beyond the time limit. Thus, her filing was untimely, and it will not be
3 The copy of the email provided by the appellant shows that the District Human
Resources Manager supplied the appellant with the address of the New York Field
Office. PFR File, Tab 3 at 6. The impact of any misleading advice is negligible, given
that the petition for review was already untimely when the appellant received such
advice, and the appellant correctly filed it with the Office of the Clerk of the Board
within 3 days of ascertaining that the filing had been misdirected. PFR File, Tab 1.
4 The Board has applied the same standard to an initial appeal misdirected to the
employing agency within the filing period. See Sanford v. Department of Defense ,
61 M.S.P.R. 207, 210 (1994) (finding that good cause was shown for a filing delay
where an appellant timely but mistakenly mailed a copy of his appeal to his employing
agency and then filed the petition with the Board as soon as he learned of his mistake). 4
excused any more than if the filing were late but properly directed at the Board.
See Fleming v. U.S. Postal Service , 47 M.S.P.R. 409, 411 (1991) (observing that
a perfected petition for review was improperly directed to the Office of Personnel
Management but inexcusably late nonetheless).
¶10Accordingly, we dismiss the petition for review as untimely filed without
good cause shown. 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 constructive suspension
appeal.
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.
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
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you6
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 7
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 8
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Welch_LanetteNY-0752-18-0154-I-1__Final_Order.pdf | 2024-05-14 | LANETTE WELCH v. UNITED STATES POSTAL SERVICE, MSPB Docket No. NY-0752-18-0154-I-1, May 14, 2024 | NY-0752-18-0154-I-1 | NP |
1,470 | https://www.mspb.gov/decisions/nonprecedential/Snowden_Angela_T_AT-0353-18-0695-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANGELA T. SNOWDEN,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-0353-18-0695-I-1
DATE: May 14, 2024
THIS ORDER IS NONPRECEDENTIAL1
Angela T. Snowden , Silverhill, Alabama, pro se.
Eric B. Fryda , Esquire, Plano, Texas, 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 for lack of jurisdiction her appeal of the agency’s denial of her request
for restoration following her partial recovery from a compensable injury. 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
¶2In August 2018, the appellant, a Rural Carrier, filed a Board appeal
alleging, among other things, that the agency failed to accommodate her shoulder
injury with work inside the post office and that she was being forced to search for
work outside of the agency. Initial Appeal File (IAF), Tab 1. In an
August 23, 2018 acknowledgment order, the administrative judge informed the
appellant that it appeared she was attempting to file a restoration appeal as a
partially recovered employee and set forth the applicable law and burden of proof
to establish Board jurisdiction over such an appeal. IAF, Tab 3 at 2. She ordered
the appellant to file evidence and argument establishing jurisdiction within
15 days of the order and instructed the agency to submit an agency file
containing, among other things, copies of all documents that were relevant and
material to the appeal. Id. at 2, 10-11. The appellant did not respond to the
administrative judge’s order. On September 11, 2018, the agency responded,
arguing that it did not deny the appellant’s request for restoration and providing
evidence showing that it offered the appellant a limited -duty assignment on
January 29, 2018, which she did not accept. IAF, Tab 5 at 50-53.
¶3In an initial decision dated September 18, 2018, the administrative judge
found that, although the appellant suffered a compensable injury, the agency did
not deny her request for restoration as a partially recovered employee because it
offered her a full-time, limited-duty position that appeared to be within her
medical restrictions. IAF, Tab 6, Initial Decision (ID). Accordingly, she
dismissed the appeal for lack of jurisdiction without holding the appellant’s
requested hearing. ID at 1, 4.
¶4The appellant has timely filed a petition for review, and the agency has
responded. Petition for Review (PFR) File, Tabs 1, 3.2
2 In addition to the evidence discussed below, the appellant has submitted with her
petition for review copies of an October 11, 2017 work capacity evaluation and the
January 29, 2018 limited-duty job offer, both of which are already contained in the
record. IAF, Tab 5 at 48-50, 57; PFR File, Tab 1 at 4-7. Because these documents are2
ANALYSIS
¶5The Federal Employees’ Compensation Act and the implementing
regulations of the Office of Personnel Management (OPM) at 5 C.F.R. part 353
provide, inter alia, that Federal employees who suffer compensable injuries enjoy
certain rights to be restored to their previous or comparable positions.
Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365, ¶ 9 (2016); see 5 U.S.C.
§ 8151(b). Under OPM’s regulations, such employees have different substantive
rights based on whether they have fully recovered, partially recovered, or are
physically disqualified from their former or equivalent positions. Kingsley,
123 M.S.P.R. 365, ¶ 9 ; 5 C.F.R. § 353.301. Partially recovered employees, like
the appellant, are those who, “though not ready to resume the full range” of
duties, have “recovered sufficiently to return to part-time or light duty or to
another position with less demanding physical requirements.” Cronin v. U.S.
Postal Service, 2022 MSPB 13, ¶ 11; Kingsley, 123 M.S.P.R. 365, ¶ 9; 5 C.F.R.
§ 353.102.
¶6To establish jurisdiction over a claim of denial of restoration as a partially
recovered employee, an appellant is required to make nonfrivolous allegations of
the following: (1) she was absent from her position due to a compensable injury;
(2) she recovered sufficiently to return to duty on a part-time basis or to return to
work in a position with less demanding physical requirements than those
previously required of her; (3) the agency denied her request for restoration; and
(4) the denial was arbitrary and capricious because of the agency’s failure to
not new, they do not provide a basis for granting the petition for review. See Meier v.
Department of the Interior , 3 M.S.P.R. 247, 256 (1980) (stating that evidence that is
already a part of the record is not new); 5 C.F.R. § 1201.115(d). The appellant has also
submitted a July 27, 2018 letter from American Rehabilitation Consultant Services,
Inc., pertaining to a search for new employment for the appellant since her employing
agency was unable to offer her employment. PFR File, Tab 1 at 8. Because the
appellant has not shown that this document is new and material, however, we will not
consider it for the first time on review. See Cleaton v. Department of Justice ,
122 M.S.P.R. 296, ¶ 7 (2015) (explaining that the Board generally will not consider
evidence submitted for the first time on review absent a showing that it is new and
material), aff’d, 839 F.3d 1126 (Fed. Cir. 2016); 5 C.F.R. § 1201.115(d) (same). 3
perform its obligation under 5 C.F.R. 353.301(d) .3 Cronin, 2022 MSPB 13, ¶ 12;
Hamilton v. U.S. Postal Service , 123 M.S.P.R. 404, ¶ 12 (2016); 5 C.F.R.
§ 1201.57(a)(4), (b). Once an appellant establishes jurisdiction, she is entitled to
a hearing at which she must prove the merits of her restoration appeal, i.e., all
four of the above elements, by a preponderance of the evidence.4 Kingsley,
123 M.S.P.R. 365, ¶¶ 11-12; 5 C.F.R. § 1201.57(c)(4).
¶7The administrative judge found, and we agree, that the appellant satisfied
the first and second jurisdictional elements because the record establishes that she
suffered a compensable injury and that she recovered sufficiently to return to
work in a position with less demanding physical requirements than those
previously required of her. ID at 2; IAF, Tab 5 at 55-57. However, as to the
third jurisdictional requirement, the administrative judge found that there was no
denial of restoration because the agency submitted evidence showing that it
offered the appellant a facially reasonable limited-duty assignment, which she did
not accept. ID at 3. On review, the appellant argues that the limited -duty
assignment offered by the agency was not within her medical restrictions and has
submitted, for the first time on review, a March 21, 2018 letter from the Office of
Workers’ Compensation Programs (OWCP) to the agency stating that the
January 29, 2018 job offer was not within her medical restrictions and was not an
appropriate offer. PFR File, Tab 1 at 1, 9.
¶8Generally, the Board will not consider evidence submitted for the first time
with a petition for review absent a showing that it was unavailable before the
record was closed despite the party’s due diligence. Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980). Here, although the appellant has not shown
that the OWCP letter was unavailable below, we find that it is appropriate to
3 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
4 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).4
consider the letter for the first time on review for the following reasons. First,
the issue of jurisdiction is always before the Board and may be raised at any time.
Stoglin v. Department of the Air Force , 123 M.S.P.R. 163, ¶ 7 (2015), aff’d,
640 F. App’x 864 (Fed. Cir. 2016); see Boechler v. Department of the Interior ,
109 M.S.P.R. 542, ¶ 10 (2008) (observing that the Board has an interest in
ensuring that jurisdictional determinations are correct), aff’d, 328 F. App’x 660
(Fed. Cir. 2009). Second, although it was the appellant’s burden to establish
jurisdiction over her appeal, the OWCP letter reflects that the agency knew, or at
least had evidence indicating, that its job offer was not within the appellant’s
medical restrictions and was thus not a valid offer of restoration, despite its
assertions to the contrary.5 See Montalvo v. U.S. Postal Service , 91 M.S.P.R.
671, ¶ 11 (2002) (finding it appropriate to consider evidence for the first time on
review when, although it was the appellant’s burden to submit evidence regarding
the timeliness of his appeal, the agency failed to disclose evidence contradicting
its position that the appeal was untimely filed). Third, the appellant was not
afforded a reasonable opportunity to respond to the agency’s evidence showing it
had offered her a limited-duty assignment purportedly within her medical
restrictions because the administrative judge issued the initial decision 7 days
after the agency sent its response file to the appellant by regular U.S. mail.6 IAF,
Tab 5 at 58, ID at 1; see Nevins v. U.S. Postal Service , 107 M.S.P.R. 595, ¶ 17
5 The OWCP letter is addressed to the agency and was presumably in its possession at
the time it submitted its response file below. PFR File, Tab 1 at 9. However, the
agency did not provide a copy of this letter and instead maintained that the January 29,
2018 job offer deprived the Board of jurisdiction. IAF, Tab 5 at 7-8. An agency has an
obligation to come forward with relevant evidence in its possession and may not
conceal evidence that would change the result in a case . Hamilton v. Merit Systems
Protection Board , 75 F.3d 639, 648 (Fed. Cir. 1996). The United States Court of
Appeals for the Federal Circuit and the Board have uniformly condemned such agency
inaction as gamesmanship. Id.; Williams v. Equal Employment Opportunity
Commission, 75 M.S.P.R. 144, 149 (1997).
6 Assuming 5 days for mailing, the appellant received the agency’s response on or about
September 16, 2018—only 2 days before the administrative judge issued the initial
decision. See 5 C.F.R. § 1201.4(l). 5
(2008) (considering new evidence on review because the appellant was not
informed of the evidentiary conflict until she received the agency’s submission on
the date the record closed); 5 C.F.R. § 1201.59(c) (providing that additional
evidence may be considered after the close of the record if it is in rebuttal to new
evidence or argument submitted by the other party just before the record closed).
Accordingly, we will consider the OWCP letter for the first time on review.
¶9The March 21, 2018 OWCP letter reflects that OWCP determined that the
agency’s January 29, 2018 limited-duty job offer exceeded the appellant’s
medical restrictions and that it was not an appropriate offer of restoration. PFR
File, Tab 1 at 9. Although the agency questions on review whether the OWCP
claims examiner sufficiently reviewed the limited-duty job offer, PFR File, Tab 3
at 5-6, the Board is bound by OWCP’s suitability determination. Paszko v.
U.S. Postal Service, 119 M.S.P.R. 207, ¶ 9 (2013); see New v. Department of
Veterans Affairs , 142 F.3d 1259, 1264 (Fed. Cir. 1998) (holding that decisions on
the suitability of an offered position are within the exclusive domain of OWCP
and that it is that agency, not the employing agency or the Board, with the
requisite expertise to evaluate whether a position is suitable in light of that
employee’s particular medical condition). Accordingly, we find that the
January 29, 2018 limited-duty job offer was outside of the appellant’s medical
restrictions and was tantamount to a denial of restoration. See Paszko,
119 M.S.P.R. 207, ¶ 9. The appellant has thus nonfrivolously alleged that the
agency denied her request for restoration.
¶10Although we find that the appellant has satisfied the first, second, and third
jurisdictional requirements in this partial restoration appeal, we are unable to
make a determination about the fourth jurisdictional element at this time. A fter
the initial decision in this appeal was issued, the Board issued Cronin,
2022 MSPB 13, which clarified when a denial of restoration may be arbitrary and6
capricious.7 In Cronin, the Board explained that, in considering the fourth
jurisdictional element, the issue before the Board is limited to whether the agency
failed to comply with the minimum requirement of 5 C.F.R. § 353.301(d), i.e., to
search within the local commuting area for vacant positions to which it can
restore a partially recovered employee and to consider her for any such vacancies.
Cronin, 2022 MSPB 13, ¶ 20. The Board in Cronin further held that, contrary to
its prior suggestion in Latham v. U.S. Postal Service , 117 M.S.P.R. 400, ¶¶ 12-16
(2012), overruled by Cronin , 2022 MSPB 13, ¶¶ 20-21, claims of prohibited
discrimination or reprisal cannot serve as an “alternative means” of showing that
a denial of restoration was arbitrary and capricious. Cronin, 2022 MSPB 13,
¶ 21.
¶11Because the existing record is devoid of evidence or argument regarding
whether the agency’s denial of restoration was arbitrary and capricious, we
remand the matter to the regional office to provide the parties notice and an
opportunity to further develop the record. If the appellant makes a nonfrivolous
allegation regarding the fourth jurisdictional element, she is entitled to the
hearing she requested on the merits of her claim.
7 Because the Board issued Cronin while this appeal was pending, it is given retroactive
effect and applies to this appeal. See Desjardin v. U.S. Postal Service , 2023 MSPB 6,
¶ 18 n.8. 7
ORDER
¶12For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.8
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
8 In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.8 | Snowden_Angela_T_AT-0353-18-0695-I-1__Remand_Order.pdf | 2024-05-14 | ANGELA T. SNOWDEN v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0353-18-0695-I-1, May 14, 2024 | AT-0353-18-0695-I-1 | NP |
1,471 | https://www.mspb.gov/decisions/nonprecedential/Martens_Michael_D_SF-0845-19-0337-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL D. MARTENS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0845-19-0337-I-1
DATE: May 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Zedie E. Ramage , Fresno, California, for the appellant.
Alison Pastor and 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 reconsideration decision of the Office of Personnel Management
(OPM) denying his request for a waiver of the overpayment of his disability
retirement annuity benefits under the Federal Employees’ Retirement System. On
petition for review, the appellant does not dispute the existence or the amount 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 overpayment; instead, he alleges that (1) the overpayment was not his fault,
(2) the overpayment caused him to incur increased tax liability, and (3) OPM did
not participate in either the prehearing conferences or the hearing. Petition for
Review File, Tab 1 at 1-4. 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 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 | Martens_Michael_D_SF-0845-19-0337-I-1__Final_Order.pdf | 2024-05-14 | MICHAEL D. MARTENS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0845-19-0337-I-1, May 14, 2024 | SF-0845-19-0337-I-1 | NP |
1,472 | https://www.mspb.gov/decisions/nonprecedential/Laber_StanNY-0831-19-0130-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STAN LABER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
NY-0831-19-0130-I-1
DATE: May 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stan Laber , Albany, New York, pro se.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction because the Office of Personnel
Management (OPM) had not issued a final decision. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review as moot, as
OPM issued a final decision concerning the subject of the appeal after the initial
decision was issued. 5 C.F.R. § 1201.113(b).
On April 15, 2019, the appellant filed a Board appeal regarding the
commencement date of his Civil Service Retirement System (CSRS) annuity.
Initial Appeal File (IAF), Tab 1 at 4. In response to the acknowledgment order,
OPM moved to dismiss the appeal for lack of Board jurisdiction based on the fact
that it had not yet issued a final decision regarding the matter. IAF, Tab 4. In a
response to OPM’s motion, the appellant argued that OPM did not intend to issue
a final decision and the Board should retain jurisdiction over the appeal. IAF,
Tab 5. In response to the administrative judge’s order inquiring whether OPM
intended to issue a final decision in this matter, and if so, when such a decision
would be issued, OPM stated that it intended to issue a final decision within
14 days of its July 29, 2019 response. IAF, Tabs 6-7. That same day, the
administrative judge dismissed the appeal for lack of jurisdiction. IAF, Tab 8,
Initial Decision (ID) at 1-2.
On August 22, 2019, the appellant filed the instant petition for review
alleging that OPM still had not issued a final decision despite stating that it
would, and complaining that he has been trying to resolve his dispute with OPM
for 4 years. Petition for Review (PFR) File, Tab 1 at 3-6. OPM filed a response2
to the appellant’s petition, asserting that on July 31, 2019, it issued a final
appealable decision that changed the appellant’s annuity commencement date.
PFR File, Tab 4 at 4. OPM also included a copy of the July 31, 2019 final
decision addressed to the appellant, as well as a computation sheet reflecting the
new annuity commencement date and the resulting underpayment. Id. at 5-6.
Because it appeared that OPM had issued a final appealable decision regarding
the CSRS annuity commencement issue, the Office of the Clerk of the Board
issued an order instructing the appellant to provide evidence and argument
explaining why his appeal should not be dismissed as moot based on OPM’s
issuance of a final decision. PFR File, Tab 5. In a response to the order, the
appellant questioned the validity of OPM’s final decision letter and appeared to
suggest that satisfactory relief has not been granted.2 PFR File, Tab 6 at 4-5.
Generally, the Board has jurisdiction over OPM determinations affecting an
appellant’s rights or interests under CSRS only after OPM has issued a final or
reconsideration decision. 5 U.S.C. § 8347(d); Smith v. Office of Personnel
Management, 114 M.S.P.R. 395, ¶ 8 (2010); 5 C.F.R. § 831.110. As an exception
to this general rule, however, the Board may assert jurisdiction over an appeal
concerning a retirement matter in which OPM has refused or improperly failed to
issue a final decision. Okello v. Office of Personnel Management , 120 M.S.P.R.
498, ¶ 14 (2014). The administrative judge properly found that the Board did not
have jurisdiction over the appeal, as OPM had not issued a final decision at the
time the initial decision was issued, but stated that it intended to do so in short
order. ID at 2; IAF, Tab 7 at 3. The appeal has now been rendered moot based
on the fact that OPM has submitted evidence demonstrating that it has issued a
final appealable decision and provided the appellant with Board appeal rights.
2 The appellant also argues on review that the administrative judge erred in failing to
rule on his request for class certification. PFR File, Tab 6 at 4-5; see 5 C.F.R.
§ 1201.27. Because we conclude that this appeal has been rendered moot by OPM’s
issuance of a final appealable decision in this case, we need not address whether the
administrative judge erred in failing to rule on the appellant’s request for class
certification.3
PFR File, Tab 4 at 5. Accordingly, the appellant’s petition for review is denied
as moot.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 If the appellant is still dissatisfied with OPM’s reconsideration decision, he may file a
new Board appeal challenging that decision with the appropriate regional or field office.
See 5 U.S.C. § 8347(d); 5 C.F.R. § 831.110. However, any new appeal would be
subject to timeliness considerations and we make no representation about the timeliness
of any potential appeal. See 5 C.F.R. § 1201.22(b)(1).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If 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.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. 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 | Laber_StanNY-0831-19-0130-I-1__Final_Order.pdf | 2024-05-14 | STAN LABER v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. NY-0831-19-0130-I-1, May 14, 2024 | NY-0831-19-0130-I-1 | NP |
1,473 | https://www.mspb.gov/decisions/nonprecedential/Talley_Keith_F_AT-1221-19-0132-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEITH FRANKLIN TALLEY,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-1221-19-0132-W-1
DATE: May 14, 2024
THIS ORDER IS NONPRECEDENTIAL1
Keith Franklin Talley , Nunnelly, Tennessee, pro se.
Charles Andrew Bates , Louisville, Kentucky, for the agency.
Lois F. Prince , Nashville, Tennessee, 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 appellant’s petition for review,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
VACATE the initial decision, and REMAND the case to the Atlanta Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant, a GS-06 Program Assistant for the agency’s Tennessee
Valley Healthcare System (TVHS) in Nashville, Tennessee, contends that the
agency did not select him for numerous positions in reprisal for protected
whistleblowing activity. Initial Appeal File (IAF), Tab 1 at 7. Beginning in
2012, he raised concerns both inside and outside the agency that the agency
violated 5 C.F.R. § 300.605 by failing to credit his service in higher-graded
legislative branch positions as time in those grades when not selecting him for
various vacancies. E.g., IAF, Tab 1 at 11, Tab 9 at 7, 9, 11, 18-19. In March
2018, the agency agreed, at least as to some of the vacancies for which it did not
select the appellant. IAF, Tab 6 at 14. Specifically, it determined that the
appellant’s higher-graded legislative service was initially not credited in its
review of the applications. Id. The agency concluded that the error and
associated eligibility certificates were corrected prior to referral to the hiring
official. Id. The appellant disputes their conclusion. Id. at 4.
With his appeal, the appellant submitted copies of the complaint he filed
with the Office of Special Counsel (OSC) and the letter in which OSC notified
him of his right to seek corrective action from the Board. IAF, Tab 1 at 8-16,
Tab 6 at 11-13. The administrative judge provided the appellant with notice of
how to establish jurisdiction over his appeal. IAF, Tab 2. In response, the
appellant alleged that, in reprisal for his alleged protected disclosures of the
agency’s errors as to his time-in-grade, the agency continued to find that he did
not meet the time-in-grade requirement for numerous positions. IAF, Tab 6 at 4,
Tab 9 at 4. He also claimed that he had disclosed that the agency had enrolled
veterans seeking care at TVHS into the Choice Program, under the Veterans2
Access, Choice, and Accountability Act of 2014, without seeking their
permission. IAF, Tab 6 at 4-5.
On the written record, and without elaboration, the administrative judge
found that the appellant had “exhausted his administrative remedy before OSC
with respect to the alleged protected disclosures and personnel actions he raised
before OSC.” IAF, Tab 11, Initial Decision (ID) at 3. He then found that the
appellant made a nonfrivolous allegation that the agency had repeatedly not
selected him following his protected disclosure that, in previous nonselections, it
had ignored the requirements of 5 C.F.R. § 300.605 concerning his time-in-grade.
ID at 3-5. Nevertheless, because the appellant had failed to conclusively identify
any management official involved in those nonselections that also had any
knowledge of his disclosures, the administrative judge found that the appellant
failed to make a nonfrivolous allegation that his protected disclosures were a
contributing factor in his nonselections. ID at 5-7. Thus, the administrative
judge dismissed the appeal for lack of jurisdiction. ID at 7.
In his petition for review, the appellant identifies several specific
individuals that he alleges were aware of his protected disclosures considering
prohibited personnel practices and inappropriately enrolling veterans into the
Choice Program. Petition for Review (PFR) File, Tab 1 at 4-7. He provides
additional documentation in support of his arguments. Id. at 8-21. The agency
has responded to the appellant’s petition for review, and the appellant has filed a
reply to the agency’s response. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant established jurisdiction over his claim that the agency did not select
him in reprisal for his disclosure that, in previous nonselections, it had ignored
the requirements of 5 C.F.R. § 300.605 concerning his time-in-grade.
Under the Whistleblower Protection Enhancement Act of 2012, the Board
has jurisdiction over an IRA appeal if the appellant has exhausted his
administrative remedies before OSC and makes nonfrivolous allegations that3
(1) he made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or
engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
(C), or (D), and (2) the disclosure or protected activity was a contributing factor
in the agency’s decision to take or fail to take a personnel action as defined by
5 U.S.C. § 2302(a). Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5
(2016). 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
preponderant evidence. Id. If the appellant proves that his protected disclosure
or activity was a contributing factor in a personnel action taken against him, the
agency is given an opportunity to prove, by clear and convincing evidence, that it
would have taken the same personnel action in the absence of the protected
disclosure. Id. (citing 5 U.S.C. § 1221(e)(1)-(2)).
The administrative judge found that the appellant exhausted his
administrative remedy before OSC without identifying the alleged disclosures and
personnel actions the appellant raised before OSC. ID at 3. He then determined
that the appellant had made a protected disclosure, finding that a disinterested
observer with knowledge of the essential facts known to and readily ascertainable
by the appellant could reasonably conclude that he disclosed a violation of law,
rule, or regulation, concerning the agency’s alleged failure to properly credit his
time served in the legislative branch. ID at 3-4 (citing Lachance v. White ,
174 F.3d 1378, 1381 (Fed. Cir. 1999)). Next, he found that the nonselections the
appellant claimed qualified as personnel actions under whistleblower statutes. ID
at 5 (citing Ruggieri v. Merit Systems Protection Board , 454 F.3d 1323, 1327
(Fed. Cir. 2006) (finding that a nonselection is a personnel action for the purposes
of an IRA appeal)); IAF, Tab 1 at 14-15. The parties do not dispute these
findings, and we discern no reason to disturb them.
Nevertheless, the administrative judge found that the appellant failed to
make a nonfrivolous allegation that his protected disclosures were a contributing
factor in a personnel action because he failed to conclusively identify any4
management official involved in any of the alleged nonselections that knew of his
disclosures. ID at 6. Because the appellant failed to make a nonfrivolous
allegation that his protected disclosures were a contributing factor in a personnel
action, the administrative judge dismissed his IRA appeal for lack of jurisdiction.
ID at 7.
The administrative judge used an incorrect standard to evaluate the
appellant’s assertion that his disclosure was a contributing factor in his
nonselections. When the personnel action at issue is a nonselection, an appellant
can meet his burden to receive a hearing on his whistleblowing claim without
specifically identifying which management officials were responsible for the
reprisal. Bradley v. Department of Homeland Security , 123 M.S.P.R. 547, ¶ 16
(2016). Thus, the appellant’s assertion that agency officials did not select him in
reprisal for his protected disclosures is a nonfrivolous allegation that his
disclosures were a contributing factor in the agency’s decisions. Id.
Accordingly, he has established jurisdiction over his IRA appeal, and we must
remand the appeal for a hearing on the appellant’s whistleblowing claim.
The appellant did not exhaust his administrative remedy before OSC with respect
to his alleged disclosure concerning the Choice Program.
An employee is required to seek corrective action from OSC before seeking
corrective action from the Board, and the Board may only consider
those disclosures of information that the appellant raised before OSC. Ormond v.
Department of Justice , 118 M.S.P.R. 337, ¶ 5 (2012); Mason v. Department of
Homeland Security , 116 M.S.P.R. 135, ¶ 8 (2011). 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 the amended allegations. Mason,
116 M.S.P.R. 135, ¶ 8.5
The administrative judge found that the appellant exhausted his
administrative remedy with respect to the alleged protected disclosures and
personnel actions he raised before OSC. ID at 2-3; IAF, Tab 1 at 14-15.
Although the initial decision did not specifically identify the disclosures the
appellant exhausted, the administrative judge only considered the appellant’s
disclosure concerning the agency’s alleged violation of 5 C.F.R. § 300.605. ID
at 3-4. He did not discuss the appellant’s claim that he made a protected
disclosure that the agency inappropriately enrolled veterans in the Choice
Program without their knowledge. IAF, Tab 6 at 4-5. The appellant reiterates
that claim on review. PFR File, Tab 1 at 4. With his petition for review, he
provides additional documentation concerning, among other things, the Choice
Program. Id. at 7-9.2
The administrative judge advised the appellant of how to demonstrate
exhaustion of his administrative remedies before OSC. IAF, Tab 3 at 2.
Nevertheless, the appellant provided no evidence indicating that he raised
his disclosure concerning the Choice Program before OSC, either below
or on review. His OSC complaint solely identifies the disclosure concerning
5 C.F.R. § 300.605 and does not mention any disclosure concerning the Choice
Program. IAF, Tab 1 at 8-13. OSC’s closing letter similarly restricts its findings
2 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. Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980). The appellant makes no such showing.
Nevertheless, because the documents that the appellant submits on review, PFR File,
Tab 1 at 7-21, Tab 4 at 7-14, do not show that the appellant exhausted his
administrative remedies before OSC on his purported disclosure concerning the Choice
Program, even if we were to consider them, the documents do not demonstrate that the
administrative judge erred in tacitly finding that the appellant failed to establish that he
had exhausted this disclosure. To the extent that these documents address the
contributing factor issue pertaining to his disclosures concerning the agency’s alleged
violation of 5 C.F.R. § 300.605, PFR File, Tab 1 at 6, 10-21, Tab 4 at 7-14, because we
have found that the appellant established jurisdiction over this claim, we find it
unnecessary to address these documents. On remand, the appellant may resubmit these
documents, as appropriate, as evidence in support of the merits of his appeal. 6
to the appellant’s alleged disclosure concerning the agency’s alleged violation of
5 C.F.R. § 300.605. Id. at 14-16; IAF, Tab 6 at 11-13. Thus, the appellant failed
to establish that he exhausted this disclosure before OSC. To the extent that, by
raising this purported disclosure on review, the appellant intends to challenge the
administrative judge’s tacit finding that he failed to exhaust this disclosure,
because he fails to demonstrate in his petition for review that he raised the issue
before OSC, such a challenge must fail.
In conclusion, we find that the appellant has made nonfrivolous allegations
of fact sufficient to establish jurisdiction over his claim that the agency did not
select him in reprisal for his disclosures that it failed to properly credit his
time-in-grade under 5 C.F.R. § 300.605, and he is entitled to a hearing on the
merits. Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5.
Accordingly, we vacate the initial decision and remand the case to the
Atlanta Regional Office for further adjudication consistent with this Order.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.3
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
3 In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.7 | Talley_Keith_F_AT-1221-19-0132-W-1__Remand_Order.pdf | 2024-05-14 | KEITH FRANKLIN TALLEY v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-19-0132-W-1, May 14, 2024 | AT-1221-19-0132-W-1 | NP |
1,474 | https://www.mspb.gov/decisions/nonprecedential/Schacht_ElizabethDE-1221-19-0041-W-6__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ELIZABETH SCHACHT,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-1221-19-0041-W-6
DATE: May 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J. Cathryne Watson , Esquire, and Caroline Whitlock , Esquire,
Washington, D.C., for the appellant.
Robert C. Burlison III , Esquire, San Antonio, Texas, for the agency.
Rheanna Felton , Denver, Colorado, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1The agency has filed a petition for review and the appellant has filed a cross
petition for review of the initial decision, which granted the appellant’s request
for corrective action in this individual right of action (IRA) appeal with respect to
a negative proficiency report and performance pay but denied the appellant’s
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
request for corrective action regarding several other alleged personnel actions.
Generally, 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 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. Except as
expressly MODIFIED to clarify the appropriate corrective action, we AFFIRM
the initial decision.
BACKGROUND
¶2The appellant was most recently employed with the agency as a Physician.
Schacht v. Department of Veterans Affairs , MSPB Docket No. DE-1221-19-0041-
W-1, Initial Appeal File (IAF), Tab 1 at 1. In 2018, she filed a complaint with
the Office of Special Counsel (OSC) alleging that the agency had engaged in
whistleblower reprisal by taking a number of personnel actions against her. Id.
at 85-86. After OSC closed its investigation, the appellant filed the instant IRA
appeal. Id. at 1-5. Over the next several years, the administrative judge
dismissed and then re-docketed the appeal multiple times as the parties developed
the voluminous written record. IAF, Tab 116; Schacht v. Department of Veterans
Affairs, MSPB Docket No. DE-1221-19-0041-W-2, Appeal File (W-2 AF),
Tab 80; Schacht v. Department of Veterans Affairs , MSPB Docket No. DE-1221-
3
19-0041-W-3, Appeal File (W-3 AF), Tab 11; Schacht v. Department of Veterans
Affairs, MSPB Docket No. DE-1221-19-0041-W-4, Appeal File, Tab 11; Schacht
v. Department of Veterans Affairs , MSPB Docket No. DE-1221-19-0041-W-5,
Appeal File, Tab 7; Schacht v. Department of Veterans Affairs , MSPB Docket
No. DE-1221-19-0041-W-6, Appeal File (W-6 AF), Tab 1.
¶3Based on the written record,2 the administrative judge determined that the
appellant presented nine alleged disclosures and nine alleged retaliatory personnel
actions, i.e., Disclosures 1-9 and Personnel Actions 1-9. IAF, Tab 20
(recognizing eight alleged disclosures and eight alleged personnel actions),
Tab 46 (recognizing a ninth alleged disclosure and a ninth alleged personnel
action). He found that the appellant met the exhaustion requirement and
presented the requisite nonfrivolous allegations to establish jurisdiction over all
but Disclosure 3 and Personnel Action 3.3 IAF, Tab 46. Disclosures 1-2 and 4-9
covered a number of topics, such as scheduling and staffing, diversion of
controlled substances, inadequate care, and unsafe clinical practices. E.g.,
W-6 AF, Tab 32, Initial Decision (ID) at 7-8. Personnel Actions 1-2 and 4-9
ranged from a change in duties to the suspension of clinical privileges and
removal from service. ID at 8-9.4
¶4Turning to the merits of her claims, the administrative judge found that the
appellant proved by preponderant evidence that Disclosures 4-7 and 9 were
protected.5 ID at 12-14, 16-17. He then found that the appellant proved by
preponderant evidence the existence of Personnel Actions 4 and 6-8, and that they
2 The appellant waived her right to a hearing. W-6 AF, Tab 3 at 1.
3 According to the appellant, Disclosure 3 was one in which she revealed that she was
assigned to supervise new residents, which was a deviation from internal policy, while
Personnel Action 3 concerned officials soliciting negative reports about the appellant
from others. IAF, Tab 20 at 4-5, 7. The administrative judge found that the appellant
did not present nonfrivolous allegations for Disclosure 3 and did not prove the
exhaustion element for Personnel Action 3. Id. at 7, 11-13. He therefore found that the
Board lacked jurisdiction over those matters. Id.
4 As will become apparent, only some of these alleged disclosures and personnel actions
remain disputed, so we need not recount them in their entirety.
4
were the kinds of personnel actions covered under the whistleblower protection
statute.6 ID at 23-27. The administrative judge next considered the contributing
factor requirement. He found that the appellant proved that Disclosures 4-5 were
a contributing factor in Personnel Actions 4 and 6-8, while Disclosure 9 was a
contributing factor to just Personnel Action 8.7 ID at 31-32.
¶5For those claims for which he found that the appellant presented a prima
facie case of reprisal—Disclosures 4-5 and 9, and Personnel Actions 4 and 6-8—
the administrative judge shifted the burden to the agency to show by clear and
convincing evidence that it would have taken the same personnel actions absent
the appellant’s protected disclosures. He found that the agency proved that it
would have taken Personnel Actions 4, 6, and 8 in the absence of the appellant’s
whistleblowing. ID at 36-52. However, he found that the agency failed to meet
its burden as to Personnel Action 7. ID at 52-57. Consequently, the
administrative judge granted corrective action regarding that personnel action. ID
at 57.
¶6The agency has filed a petition for review. Schacht v. Department of
Veterans Affairs , MSPB Docket No. DE-1221-19-0041-W-6, Petition for Review
(PFR) File, Tab 4. The appellant has filed a response to the agency’s petition,
PFR File, Tab 18, and the agency replied, PFR File, Tab 20. The appellant has
5 Conversely, the administrative judge found that the appellant did not meet her
preponderant evidence burden for Disclosures 1, 2, and 8. ID at 9-12, 15-16. He
determined that the appellant did not prove that the alleged disclosures were protected,
but also that the appellant did not prove them as a factual matter. Id.
6 Conversely, the administrative judge found that the appellant did not prove by
preponderant evidence that Personnel Action 1 was a qualifying personnel action under
the statute or prove it as a factual matter. ID at 17-19. He found that Personnel
Action 2 was not a qualifying personnel action, ID at 19-23, and that the appellant did
not prove Personnel Action 5 as a factual matter, ID at 24-26. For Personnel Action 9,
the administrative judge found that the appellant failed to prove wrongdoing that
amounted to a hostile work environment and covered personnel action. ID at 27-29.
7 The administrative judge concluded that the appellant did not prove that
Disclosures 6-7 were a contributing factor to any personnel action. ID at 32-35.
5
filed a cross petition for review. PFR File, Tab 17. The agency has filed a
response to the appellant’s cross petition for review.8 PFR File, Tab 21.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7Under the Whistleblower Protection Enhancement Act of 2012, the Board
has jurisdiction over an IRA appeal if the appellant has exhausted her
administrative remedies before OSC and makes nonfrivolous allegations that
(1) she made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or
engaged in protected activity described under 5 U.S.C. § 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). Williams v. Department of Defense , 2023 MSPB 23 ¶ 8;
Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016). Once an
appellant establishes jurisdiction over her IRA appeal, she must prove her claim
by preponderant evidence. Williams, 2023 MSPB 23, ¶ 8; Salerno, 123 M.S.P.R.
230, ¶ 5.
¶8If the appellant proves, by preponderant evidence, that her protected
disclosure or activity was a contributing factor in a personnel action taken against
her, the agency is given an opportunity to prove, by clear and convincing
evidence, that it would have taken the same personnel action in the absence of the
protected disclosure or activity. Turner v. Department of Agriculture ,
2023 MSPB 25, ¶ 12; Salerno, 123 M.S.P.R. 230, ¶ 5. In making that
determination, the Board will consider all the relevant factors, including the
following: (1) the strength of the agency’s evidence in support of its action;
(2) the existence and strength of any motive to retaliate on the part of the agency
officials involved in the decision; and (3) any evidence that the agency takes
8 The appellant filed a motion asking for permission to submit a reply brief concerning
her cross petition for review and the agency’s response. PFR File, Tab 25. That
request is denied. See 5 C.F.R. § 1201.114(a) (listing the pleadings allowed on review
and noting that no other pleading will be accepted unless the Board grants leave for the
additional pleading).
6
similar actions against employees who did not engage in such protected activity,
but who are otherwise similarly situated. Carr v. Social Security Administration ,
185 F.3d 1318, 1322 -23 (Fed. Cir. 1999); Karnes v. Department of Justice ,
2023 MSPB 12, ¶ 24. The Board does not view these factors as discrete elements,
each of which the agency must prove by clear and convincing evidence. Rather,
the Board will weigh the factors together to determine whether the evidence is
clear and convincing as a whole. Karnes, 2023 MSPB 12, ¶ 24.
¶9The arguments presented on review are numerous but limited to the
following alleged disclosures and personnel actions: the appellant reasserts that
Disclosures 1, 2, and 8 were protected, and she disputes the administrative
judge’s conclusion that the agency rebutted her prima facie case of reprisal for
Personnel Actions 6 and 8. PFR File, Tab 17. Meanwhile, the agency argues that
the administrative judge erred regarding his grant of corrective action for
Personnel Action 7. PFR File, Tab 4. Because it makes more analytical sense,
we have largely addressed the arguments raised in the appellant’s cross petition
for review before addressing the agency’s petition for review.
The administrative judge correctly found that the appellant did not show by
preponderant evidence that Disclosures 1, 2, and 8 were protected.
¶10The administrative judge found that the appellant did not meet her burden of
proof for Disclosure 1, ID at 9-10, Disclosure 2, ID at 10-12, or Disclosure 8, ID
at 14-16, which have the common thread of involving disclosures about personnel
scheduling or attendance. The appellant disagrees. PFR File, Tab 17 at 18-23.
¶11A protected disclosure is one which the employee “reasonably believes
evidences: (i) any violation of any law, rule, or regulation; or (ii) 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). The
proper test for determining whether an employee had a reasonable belief that her
disclosure was protected is whether a disinterested observer with knowledge of
the essential facts known to and readily ascertainable by the employee could
7
reasonably conclude that the disclosure evidenced one of the circumstances
described in 5 U.S.C. § 2302(b)(8). Cooper v. Department of Veterans Affairs ,
2023 MSPB 24, ¶ 14. The disclosures must be specific and detailed, not vague
allegations of wrongdoing. Gabel v. Department of Veterans Affairs , 2023 MSPB
4, ¶ 6.
¶12Given the nature of the appellant’s assertions on review, we additionally
note the following about the types of disclosures that are protected under the
statute. For an alleged disclosure about a substantial and specific danger to
public health or safety, the Board must consider the following to determine
whether a disclosed danger is substantial and specific enough to warrant
protection under the whistleblower protection statute: (1) the likelihood of harm
resulting from the danger; (2) when the alleged harm may occur; and (3) the
nature of the harm, i.e., the potential consequences. Chambers v. Department of
the Interior, 602 F.3d 1370, 1376 (Fed. Cir. 2010). For an allegation of gross
mismanagement to be protected, the matter disclosed must be more than de
minimis wrongdoing or negligence; the matter disclosed must be a management
action or inaction that creates a substantial risk of a significant adverse impact on
the agency’s ability to accomplish its mission. Salazar v. Department of Veterans
Affairs, 2022 MSPB 42, ¶ 24.
Disclosure 1
¶13The administrative judge characterized Disclosure 1 as one involving an
allegation that the appellant informed her Deputy Chief of Staff, on July 25, 2017,
that a particular physician was providing fraudulent information to Human
Resources, falsely claiming that he was still working in a particular unit. ID at 7,
9. But the administrative judge found that the emails and deposition testimony
the appellant cited in support of this allegation did not prove that the appellant
made any such disclosure. ID at 9-10 (referencing W-2 AF, Tab 15 at 6-7, 13;
W-6 AF, Tab 18 at 115-17). Consequently, the administrative judge concluded
that the appellant did not prove Disclosure 1 as a factual matter. ID at 10. He
8
also concluded that the alleged disclosure was too vague to be protected under the
statute. Id.
¶14On review, the appellant characterizes Disclosure 1 somewhat differently
than the administrative judge, alleging that she revealed a physician’s failure to
fulfill his duties, critical staffing shortages, and a risk that the agency would lose
a certain accreditation. PFR File, Tab 17 at 19. She directs us to several pieces
of evidence. Id. at 19-20 (referencing W-2 AF, Tab 14 at 30-48, 54, Tab 15
at 6-7, 13, 15-17, 28, Tab 16 at 4-8; W-6 AF, Tab 18 at 109, 116-17). However,
we do not find that this evidence warrants a different result. Most notably, the
referenced evidence shows that a colleague accepted a move into a new position
as of July 23, 2017, W-2 AF, Tab 14 at 30-48, Tab 15 at 15-16, that the appellant
sent a letter a couple of days later, citing this, a broader staff shortage, and other
considerations as she requested appointment to interim chief of her unit, W-2 AF,
Tab 15 at 6-7, 13, and that the appellant’s colleague expressed various
administrative and staffing concerns about the unit in August 2017, while there
was ongoing confusion about whether he could change positions, W-2 AF, Tab 15
at 28, Tab 16 at 4-7. None of this demonstrates that the appellant made a
protected disclosure.
¶15Although the appellant disclosed her general belief that the departure of her
colleague would add to the unit’s understaffing and may threaten a certain
accreditation for the unit, her message contains little in terms of detail. W -2 AF,
Tab 15 at 6-7, 13. The disclosure was speculative and nonspecific. See Herman
v. Department of Justice , 193 F.3d 1375, 1378-80 (Fed. Cir. 1999) (finding that a
psychologist did not disclose a substantial and specific danger to public safety
under the Whistleblower Protection Act when he speculated that the prison
camp’s failure to have a suicide watch room on the premises was potentially
dangerous for suicidal inmates), abrogated on other grounds by Yunus v.
Department of Veterans Affairs , 242 F.3d 1367, 1372 n.1 (Fed. Cir. 2001). The
appellant did not, for example, indicate that her departing colleague would not be
9
replaced, nor did she disclose that understaffing had already or was likely to
result in imminent or significant harm to patients. Cf. Wilson v. Department of
Veterans Affairs , 2022 MSPB 7, ¶¶ 37-40 (finding that an appellant reasonably
believed she disclosed a substantial and specific danger to public health and
safety when she revealed equipment breakdowns that prevented medical
equipment from being sterilized in a timely manner); Chavez v. Department of
Veterans Affairs , 120 M.S.P.R. 285, ¶¶ 19-20 (2013) (reaching the same
conclusion regarding a disclosure that medical carts were not cleaned and
restocked at shift change because harm could result directly from delays in
providing immediate treatment or careful monitoring to patients who needed it).
We are therefore not persuaded by the appellant’s assertion that Disclosure 1 was
protected because it revealed her reasonable belief of a substantial and specific
danger to public health or safety. PFR File, Tab 17 at 19-20. We are similarly
unpersuaded by the appellant’s cursory suggestion that this disclosure also
revealed false documentation on the part of the departing colleague about his duty
status within their unit. PFR File, Tab 17 at 20. While other correspondence
from other officials calls into question his duty status and availability to transfer
from one position to another, the appellant has not pointed us to any evidence
showing she disclosed this or anything similar that might rise to the level of a
protected disclosure. W -2 AF, Tab 15 at 6-7, 13.
Disclosure 2
¶16For Disclosure 2, the appellant alleged that she informed her Deputy Chief
of Staff, on or around July 25, 2017, that her colleagues had created a fraudulent
schedule falsely indicating that they were providing clinical care when they were
not. ID at 7, 11. But the administrative judge found that the associated evidence
the appellant relied upon did not prove that she actually made such a disclosure.
ID at 11-12 (referencing W-2 AF, Tab 15 at 8; W-6 AF, Tab 18 at 15, 135-40).
He concluded that the appellant did not prove that she made Disclosure 2, and
that, in any event, the alleged disclosure was too vague to be protected. ID at 12.
10
¶17On review, the appellant argues that she disclosed her colleagues’
misleading schedule, and that the administrative judge relied too heavily on the
absence of the words “fraud” or “falsehood” in finding that her disclosure was not
proven as a factual matter or that it was not protected. According to the
appellant, her disclosure speaks for itself, without the inclusion of those words.
PFR File, Tab 17 at 21-22 (referencing W-2 AF, Tab 15 at 8-12, Tab 17 at 12,
Tab 21 at 91, 107; W-6 AF, Tab 18 at 135-36, 195-248). We disagree.
¶18We have reviewed the administrative judge’s findings, along with all the
appellant’s arguments and referenced evidence on review, but we find no reason
to conclude that the administrative judge erred on this point. The limited
evidence we located regarding Disclosure 2 seems to show that the appellant
verbally spoke to an agency official about staffing in her unit, including
something the appellant identified as an anomaly. But the recipient of this
information testified that he did not even understand what the appellant was
talking about at the time. W-6 AF, Tab 18 at 135-36. And the document the
appellant claims to have provided him is mostly just a list of dates and names,
without explanation. W-2 AF, Tab 15 at 8-12. The appellant has referred us to
other evidence, spanning the year after what she alleged as Disclosure 2, which
shows that other officials discussed policy requirements about scheduling and
their conclusion that some physicians violated those policies. W-2 AF, Tab 17
at 12, Tab 21 at 91, 107. However, the appellant has not proven that she
disclosed the same. She has not, for example, directed us to any sworn testimony
by her or others indicating that her July 2017 interaction with the Deputy Chief of
Staff included her alleging the same kinds of policy violations later identified by
other agency officials.
Disclosure 8
¶19For Disclosure 8, the appellant alleged that she provided management with a
copy of emails, on or around April 11, 2018, further demonstrating that her
colleagues had engaged in a fraudulent staffing scheme. ID at 8, 15. But the
11
administrative judge found that the evidence the appellant relied upon did not
prove that she made the disclosure alleged. ID at 15-16 (referencing W-2 AF,
Tab 21 at 5-9, 13-42). He further found that the alleged disclosure was too vague
to be protected. ID at 16.
¶20On review, the appellant argues that the administrative judge erred in
finding Disclosure 8 unproven and not protected. PFR File, Tab 17 at 22-23
(referencing W-2 AF, Tab 17 at 12-13). As with the previous disclosures, we are
unpersuaded. The evidence to which the appellant has referred on review are
emails from other agency officials about scheduling policies. W-2 AF, Tab 17
at 12-13. They are not emails or other evidence showing that the appellant made
a disclosure, or that she relayed someone else’s disclosure.
¶21More broadly, the appellant’s arguments about Disclosures 1, 2, and 8 are
unavailing for similar reasons. The record before us demonstrates that the
appellant raised some general staffing and scheduling concerns. It also shows
that, at some point, other officials concluded that physicians had not been
following certain scheduling policies. However, the appellant has not pointed us
to evidence proving that she disclosed this or anything else that rose to the level
of a protected disclosure under the whistleblower protection statute.
The appellant has not shown error in the administrative judge’s conclusion that
the agency proved by clear and convincing evidence that it would have taken
Personnel Actions 4, 6, and 8 in the absence of the appellant’s protected
disclosures.
¶22To recall, the administrative judge found that the appellant presented a
prima facie case of reprisal regarding Disclosures 4, 5, and 9, and Personnel
Actions 4 and 6-8. ID at 31-32. He then found that the agency rebutted that
prima facie case of reprisal for Personnel Actions 4, 6, and 8, ID at 35-52, but not
Personnel Action 7, ID at 52-57. In her cross petition for review, the appellant
challenges just the administrative judge’s conclusion as to Personnel Actions 6
and 8. She does not challenge the administrative judge’s conclusion as to
12
Personnel Action 4. Our analysis will focus on the personnel actions raised on
review and the appellant’s arguments regarding those personnel actions.
¶23For the sake of context, Disclosures 4, 5, and 9 include an August 2017
letter from the appellant and many others expressing concern that a particular
nurse might be diverting controlled substances, the appellant’s December 2017
complaint that a colleague was depriving patients of essential lab work and pain
medication, and an April 2018 letter in which the appellant responded to an
investigation about her conduct with assertions that other anesthesiologists were
engaging in unsafe clinical practices.9 ID at 7-8, 12-13, 16-17. Meanwhile,
Personnel Action 6 was the February 2018 suspension of the appellant’s
privileges, and Personnel Action 8 was her August 2018 removal from service.
ID at 9, 26-27.
¶24For additional context, it is worth noting that the appellant challenged the
revocation of her privileges and her removal from service through an internal
Disciplinary Appeals Board (DAB) while simultaneously pursuing this IRA
appeal. W-3 AF, Tab 5 at 11-18. Long before the initial decision in this IRA
appeal, the DAB collected evidence, held a hearing, and issued the DAB decision,
which concluded that each of the agency’s allegations were substantiated. Id.
The DAB recommended upholding the agency’s decisions to revoke the
appellant’s privileges and remove her from service. Id.
¶25The evidence in this appeal largely consists of the evidence collected and
considered by the DAB. The administrative judge relied on the same as he found
that the agency rebutted the appellant’s prima facie case of reprisal for Personnel
Action 6, ID at 39-44, and Personnel Action 8, ID at 45-52.
¶26Among other things, the administrative judge concluded that the evidence in
support of Personnel Action 6 was strong because it showed that the agency
suspended the appellant’s privileges in response to an unprecedented number of
complaints about various aspects of her conduct from a wide range of sources.
9 The April 2018 letter was prepared by the appellant’s attorney.
13
This included complaints from 16 medical residents at the University of
Colorado, which resulted in the University’s December 2017 decision to no
longer allow the appellant to supervise its medical residents. ID at 40
(referencing, e.g., W-2 AF, Tab 36 at 132-33; W-6 AF, Tab 12 at 18). The
administrative judge reached a similar conclusion about the strength of the
evidence in support of Personnel Action 8, finding that each specification
underlying the appellant’s removal was supported by extensive evidence ranging
from the sworn statements of numerous colleagues to the appellant’s own
admissions. ID at 45-52 (referencing, e.g., W-6 AF, Tab 12 at 20-21, 59-62, 227,
260). The administrative judge also determined that the agency had some limited
motive to retaliate for the appellant’s whistleblowing, ID at 40, 51, and that the
record was devoid of evidence regarding any similarly situated nonwhistleblowers
for purposes of comparison, ID at 41-44, 51.
¶27On review, the appellant disagrees with the administrative judge’s
conclusion that the agency met its burden regarding Personnel Actions 6 and 8.
Her arguments include ones about new evidence and res judicata, PFR File,
Tab 17 at 9-11, the strength of the agency’s evidence, id. at 26-32, and similarly
situated nonwhistleblowers, id. at 12-17, 23-26.
New evidence and res judicata
¶28The appellant’s first argument regarding the administrative judge’s
conclusion that the agency met its clear and convincing evidence burden is that
the administrative judge failed to consider new and material evidence she
submitted after the close of record but before the initial decision’s issuance. PFR
File, Tab 17 at 9-11 (referencing W-6 AF, Tab 30).10 According to the appellant,
that evidence shows that the Colorado Medical Board considered, but rejected, the
10 The close of record for this appeal was set for March 25, 2022. W-6 AF, Tab 10 at 1.
The documents the appellant is relying on for this argument are decisions by the
Colorado Medical Board in the months that followed that date. W-6 AF, Tab 30. So,
the appellant is correct to identify that evidence as evidence that was unavailable at the
time the record closed.
14
same allegations underlying Personnel Actions 6 and 8 in a proceeding regarding
the revocation of the appellant’s medical license. Id. The appellant argues that
this warrants a conclusion contrary to the ones reached by the administrative
judge, who found that the evidence in support of those personnel actions was
strong. Id. (referencing ID at 40, 45-51). She further argues that we should apply
res judicata to Personnel Actions 6 and 8 based on the Colorado Medical Board
decision. Id. at 11-12.
¶29We acknowledge that the initial decision does not mention the Colorado
Medical Board decision. However, the fact that the administrative judge did not
mention all the evidence 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). In any event,
even if the administrative judge should have but failed to consider this evidence,
which was submitted after the scheduled close of record, we are not persuaded
that it warrants a different result.
¶30The evidence shows that the agency permanently revoked the appellant’s
clinical privileges for alleged wrongdoing, W-6 AF, Tab 30 at 13-15, that the
Colorado Medical Board received notice of this and gave the appellant an
opportunity to respond for purposes of her medical license in October 2022, id.
at 9-12, and that the Colorado Medical Board dismissed the matter in
December 2022, citing “insufficient grounds to warrant the commencement of
formal disciplinary proceedings as required by the provisions of Colorado law,”
id. at 17.11 The Colorado Medical Board’s dismissal did not provide further
comment or analysis. Id. It did not, for example, substantively discuss the
allegations or describe whether it reviewed any associated evidence. Id.
¶31Without more, it seems that the Colorado Medical Board summarily
dismissed the matter because it had little or no evidence aside from the document
11 The evidence seems to indicate that the Colorado Medical Board followed these same
steps and reached the same conclusion once before, in 2021, regarding some of the same
alleged wrongdoing. W-6 AF, Tab 30 at 19-24.
15
indicating that the appellant lost her privileges, as compared to the DAB and the
administrative judge in this IRA appeal, who had extensive evidence to consider.
Thus, while the appellant suggests that the Colorado Medical Board decision
requires a particular result in this whistleblower reprisal appeal, we disagree. It
does not persuade us that the administrative judge erred in finding that the
agency’s evidence in support of Personnel Actions 6 and 8 was strong.
¶32We are also unmoved by the appellant’s invocation of res judicata. Among
other things, the appellant has not given us any basis to conclude that the
Colorado Medical Board decision was one on the merits or that the agency was a
party or privy in the matter. For those reasons, res judicata is inapplicable. See
Peartree v. U.S. Postal Service , 66 M.S.P.R. 332, 337 (1995) (recognizing that
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).
Strength of the agency’s evidence
¶33The appellant next presents a handful of arguments that implicate the first
Carr factor under the agency’s burden, i.e., the strength of the agency’s evidence
in support of Personnel Actions 6 and 8. PFR File, Tab 17 at 26-29. This
includes assertions that the agency did not prove the allegations underlying her
removal, id. at 29-31, and that the administrative judge did not properly analyze
the penalty of removal, id. at 31-32.
¶34To illustrate, the appellant describes a number of actions the agency could
have taken to counsel or otherwise support her, short of suspending her privileges
and removing her from service. Id. at 27-28. She also contends that the agency
violated internal procedures involving the timeliness of it reviewing her
suspension of clinical privileges. Id. at 28. In another example, the appellant
disputes the allegations underlying her removal by referring us to discrete
16
passages from the DAB decision, such as ones in which the DAB indicated that
the appellant “doesn’t lack competence.” Id. at 29-31 (referencing, e.g., W-3 AF,
Tab 5 at 11). But the appellant’s arguments are not especially persuasive,
especially when viewed in light of the DAB’s conclusion that the allegations
levied against the appellant were substantiated, that the appellant should have her
privileges revoked, and that she should be removed from service. Although we
have considered each of the appellant’s arguments as to the strength of the
agency’s evidence in support of its personnel actions, we are unmoved. We
instead agree with the administrative judge’s thorough and well-reasoned
analysis, some of which we discussed above, which found that the agency’s
evidence in support of Personnel Actions 6 and 8 was quite strong. ID at 39-40,
44-51.
Comparators
¶35The appellant next disputes the administrative judge’s conclusion that a
certain colleague was also a whistleblower and therefore not an appropriate
comparator for purposes of the agency’s burden under the third Carr factor, PFR
File, Tab 17 at 13-16, 23-25, and she argues that the administrative judge erred by
denying a motion to compel regarding evidence about that issue, id. at 16-17.
These arguments are also not persuasive. The administrative judge concluded
that the referenced colleague was not a valid comparator for the third Carr factor
because the colleague had engaged in whistleblowing, just like the appellant. ID
at 41; see Siler v. Environmental Protection Agency , 908 F.3d 1291, 1299 (Fed.
Cir. 2018) (finding that the Board erred in considering the treatment of similarly
situated whistleblowers under the third Carr factor). But he nevertheless
discussed this colleague’s alleged misconduct and found that, even if considered
as a comparator, the circumstances of that individual’s employment and
separation from the agency would not warrant a different result. ID at 41-43,
51-52. We discern no basis for deciding otherwise.
17
¶36The appellant has gone to great lengths to argue that this colleague’s
disclosures would not be protected under the whistleblower statute, and to imply
that the colleague was treated more favorably because “the [a]gency never
revoked his privileges or removed him.” PFR File, Tab 17 at 17, 23-25.
However, on the latter point, there is more to the story than the appellant has
acknowledged. Among other things, the agency suspended this colleague of the
appellant in 2018 based on one inappropriate interaction with a coworker, it
suspended his privileges in 2019 after a complaint involving patient care, and the
colleague then resigned in 2020 as management officials began the process to
remove him. W-2 AF, Tab 20 at 7; W-6 AF, Tab 13 at 364. So, even if we were
to agree with the appellant’s arguments that this colleague was not a
whistleblower and is a valid comparator for Carr factor three, the appellant has
not established that the agency’s treatment of him would meaningfully detract
from the conclusion that it would have suspended the appellant’s privileges and
removed her in the absence of her whistleblowing. Nor has the appellant shown
that the administrative judge abused his discretion by denying the appellant’s
motion to compel additional evidence beyond that which the agency had already
provided about this and any other potential comparator. See Wagner v.
Environmental Protection Agency , 54 M.S.P.R. 447, 452 (1992) (holding that the
Board will not reverse an administrative judge’s rulings on discovery matters
absent an abuse of discretion), aff’d, 996 F.2d 1236 (Fed. Cir. 1993) (Table).
¶37The appellant separately argues that the administrative judge erred by
rejecting several other nonwhistleblowers as comparators for purposes of the third
Carr factor based on the dissimilarity between their misconduct and that of the
appellant. PFR File, Tab 17 at 12-13, 16, 25-26. But the appellant has not
substantively and persuasively shown that these were valid comparators or that
the administrative judge erred in his analysis of at least 10 individuals that the
parties had identified for consideration. See W-2 AF, Tab 72 at 10-14. To
illustrate, the appellant’s petition summarily states that the conduct underlying
18
the suspension of her privileges and her removal from service was common for all
anesthesiologists. PFR File, Tab 17 at 12, 16. Yet the appellant has not directed
us to any supportive evidence. The appellant also states that no other clinicians
who lost their authority to supervise medical residents suffered the same
suspension of privileges and removal from service that she did. Id. at 16. But
again, she has not pointed us to any substantive evidence about those individuals.
Without more, the appellant has not established that the administrative judge
erred with respect to comparator nonwhistleblowers. More broadly, she has not
shown that the administrative judge erred in finding that the agency met its
burden of rebutting her prima facie case of reprisal for Personnel Actions 6 and 8.
The administrative judge correctly considered the appellant’s performance pay in
concert with Personnel Action 7.
¶38The agency’s petition for review argues that the administrative judge erred
by granting corrective action regarding performance pay in concert with
Personnel Action 7 because the appellant did not exhaust the matter with OSC and
because the administrative judge did not make a jurisdictional finding about any
such claim. PFR File, Tab 4 at 25-31. The agency further argues that the
administrative judge’s order of corrective action must be reversed because it was
based in part on an erroneous finding that the agency had not already provided the
appellant with performance pay for the relevant period. Id. at 31-33. In support
of this latter argument, the agency submitted evidence that it asks the Board to
consider for the first time on review. Id. at 33-34. Put more simply, the agency’s
argument is twofold: the appellant’s performance pay was not properly before the
Board for adjudication, and even if it was, the agency already provided her with
that performance pay.
¶39As mentioned above, to establish Board jurisdiction over an IRA appeal, an
appellant must prove by preponderant evidence that she exhausted administrative
remedies with OSC before seeking corrective action from the Board. Chambers v.
Department of Homeland Security , 2022 MSPB 8, ¶ 10. An appellant may
19
demonstrate exhaustion through their initial OSC complaint, other correspondence
with OSC, or other sufficiently reliable evidence, such as an affidavit or
declaration. Id., ¶ 11. The substantive requirements of exhaustion are met when
an appellant has provided OSC with a sufficient basis to pursue an investigation.
Id., ¶ 10. The purpose of the exhaustion requirement is to give OSC the
opportunity to take corrective action before involving the Board in the case. Id.
Thus, the Board’s jurisdiction in an IRA appeal is limited to those issues that
have been raised with OSC. Id.
¶40The administrative judge first identified Personnel Action 7 as the agency’s
request that the appellant sign a negative proficiency report. He initially found
that the appellant did not exhaust this claim with OSC. IAF, Tab 20 at 8. But the
administrative judge later reversed course, based on some correspondence the
appellant submitted between herself and OSC. IAF, Tab 35 at 6 (referencing IAF,
Tab 16 at 56, Tab 17 at 4). That correspondence explicitly discussed a
proficiency report that the appellant characterized as “fraudulent” and
“defamatory,” but it makes no mention of performance pay or awards. IAF,
Tab 16 at 56. However, while analyzing Personnel Action 7 in the initial
decision, the administrative judge recognized that testimony from two agency
officials indicated that the proficiency report is what the agency uses to determine
physician performance pay. ID at 52 (referencing W-6 AF, Tab 12 at 847, 1013).
¶41The agency argues that there is a meaningful distinction between the
negative proficiency report and the performance pay that the administrative judge
implicitly found to be one and the same for purposes of exhaustion with OSC and
Board jurisdiction. PFR File, Tab 4 at 27-28. The agency further argues that,
although the appellant may have raised her proficiency report with OSC, she did
not raise her performance pay with OSC, so the Board lacks jurisdiction to grant
corrective action regarding the latter. Id. at 28-29.12
12 While the appellant has filed a response to the agency’s petition, she has not
substantively responded to this argument. The appellant has not, for example, referred
us to any other correspondence in which she raised the issue of performance pay with
20
¶42As further detailed in the initial decision, the appellant’s supervisor
completed the appellant’s fiscal year 2017 (FY 17) proficiency report on
October 31, 2017, rating her performance as “low satisfactory.” W-2 AF, Tab 45
at 5-6. This is the report the appellant described to OSC as “fraudulent,”
“defamatory,” and not given to her until much later, on March 15, 2018. IAF,
Tab 16 at 56-57, 86-87; W-6 AF, Tab 18 at 42. The appellant’s supervisor also
completed and signed a performance pay form, dated November 7, 2017,
recommending that the appellant’s performance pay be set at $12,750. W-2 AF,
Tab 45 at 8; W-6 AF, Tab 12 at 1027-30. But the form is not signed by the
“approving official.” W-2 AF, Tab 45 at 8. Thus, it seems that the form was not
further acted upon, at least not at that time.
¶43Months later, on March 27, 2018, a new supervisor was in place and
completed a new performance pay form for FY 17, recommending that the
appellant receive no performance pay, “based on FY 17 [p]roficiency.” W-2 AF,
Tab 45 at 7. On this form and elsewhere, he explicitly cited the prior supervisor’s
proficiency report, stating that it “seems to preclude any” pay for performance,
despite the prior supervisor’s recommendation for performance pay. W-2 AF,
Tab 20 at 50, 81-83. Unlike the earlier one, the March 27, 2018 performance pay
form is signed by an approving official. W-2 AF, Tab 45 at 7.
¶44To the agency’s point, it is true that the appellant complained to OSC about
the October 2017 proficiency report by her original supervisor, without
mentioning either of the two performance pay forms that followed. Compare
IAF, Tab 16 at 56-57, 86-87, with W-2 AF, Tab 45 at 7. But it is also true that
the appellant’s description to OSC about the proficiency report included her
complaint that she only received that report in March 2018, which coincides with
the second performance pay form indicating that she should receive no
OSC, nor has she articulated how the proficiency report and performance pay might be
related. PFR File, Tab 18 at 4-5. Instead, the appellant summarily states that the
administrative judge reached the correct conclusion on this issue, and that we should
affirm the finding. Id.
21
performance pay. IAF, Tab 16 at 56-57. And while the agency has attempted to
cast them as wholly separate, PFR File, Tab 4 at 27-28, the agency’s argument
does not point us to any convincing evidence that would counter the evidence
indicating that the recommended denial of performance pay was based upon the
appellant’s proficiency report, W-2 AF, Tab 20 at 50, 81-83; W-6 AF, Tab 12
at 847, 1013.
¶45Under these circumstances, we are not persuaded by the agency’s argument
about exhaustion and Board jurisdiction. The appellant undoubtedly raised the
issue of her delayed proficiency report with OSC, and the evidence of record
supports a conclusion that her performance pay was inextricably tied to the same.
In a somewhat comparable situation, the Board found that an appellant exhausted
his claim about a performance evaluation being held in abeyance. Scoggins v.
Department of the Army , 123 M.S.P.R. 592, ¶¶ 4, 9-10 (2016). When the Board
granted corrective action in Scoggins, it ordered the agency to issue the
performance evaluation along with any resulting awards, bonuses, or similar
items that result from the performance evaluation. Id., ¶¶ 1, 48. We discern no
basis for concluding that the situation at hand is meaningfully different, given the
hearing testimony that evaluations are used to determine awards. See, e.g.,
Runstrom v. Department of Veterans Affairs , 123 M.S.P.R. 169, ¶ 19 (2016)
(explaining that corrective action in an IRA appeal may include status quo ante
relief, such as cancellation of the retaliatory personnel action; back pay; interest
on back pay; and other employment benefits that an employee would have
received had the retaliatory action not occurred); Rumsey v. Department of
Justice, 120 M.S.P.R. 259, ¶¶ 49-51 (2013) (granting corrective action as to a
performance rating and ordering an agency to provide an employee with pay or
other relief such that they are placed as nearly as possible in the same situation
the employee would have been in had the agency not retaliated).
¶46We recognize the agency’s separate but related argument that it was
unaware that the administrative judge would consider Personnel Action 7 to
22
encompass both the proficiency report and the associated performance pay. PFR
File, Tab 4 at 29-31. Among other things, the agency asserts that the
administrative judge did not explicitly describe Personnel Action 7 as including
the performance pay issue. E.g., IAF, Tab 35 at 6; ID at 9. However, we remain
unpersuaded.
¶47For the reasons described above, regarding the exhaustion element for
Board jurisdiction, we find the proficiency report and performance pay
inextricably tied, such that the agency should not have been surprised that the
administrative judge would consider both. In furtherance of this conclusion, we
note that the appellant raised the issue of the performance pay associated with her
proficiency report by at least February 2020, nearly 3 years before the initial
decision’s issuance. W -2 AF, Tab 11. She did so again in her opening brief.
W-6 AF, Tab 18 at 42-43. The agency recognized as much. Among other things,
the agency’s closing brief described the circumstances surrounding the FY 17
proficiency report and performance pay, together. W-6 AF, Tab 17 at 44-46.
While that closing brief asserted that the agency would only address the FY 17
proficiency report on the merits because the issue of FY 17 performance pay was
not exhausted before OSC and not within the scope of Personnel Action 7, the
agency did so at its own peril. Id. at 45 n.12, 46 n.13, 73.13
The administrative judge was correct to grant corrective action for Personnel
Action 7, but he erred with respect to the specific corrective action ordered.
¶48The administrative judge applied the proper analytical framework for
Personnel Action 7. ID at 53-58. He found that the first Carr factor weighed in
favor of the appellant because, although the evidence in support of the October
2017 proficiency report may have been strong, the explanations for delaying its
13 When the appellant submitted her closing brief, she again discussed the issue of the
performance pay recommendations while arguing that her proficiency report was
illegitimate and retaliatory. W-6 AF, Tab 18 at 86-87. In response to the agency’s
closing brief, the appellant further argued that she was “arbitrarily denied” performance
pay, citing the March 2018 recommendation that she receive no performance pay.
W-6 AF, Tab 22 at 46 (referencing W-2 AF, Tab 20 at 85).
23
issuance until many months later was not. ID at 52-56. He further found that the
second Carr factor also weighed in favor of the appellant, though only slightly,
and that the third Carr factor weighed in favor of the agency. ID at 56-57.
Considered together, the administrative judge concluded that the agency had not
met its burden. Id. He therefore granted corrective action, ordering the agency to
“cancel the March 15, 2018 proficiency report (which awarded $0 pay for
performance),” replace it with the “original October 31, 2017 proficiency report
(which recommended $12,750 pay for performance),” and “award the appellant
$12,750 in pay for performance.” ID at 57.
¶49As alluded to above, the agency argues on review that it had already paid
the appellant her FY 17 performance pay. We agree and modify the ordered
corrective action accordingly.
¶50During its closing brief before the administrative judge, the agency
indicated that it had already processed the original performance pay
recommendation and provided the appellant with FY 17 performance pay.
W-6 AF, Tab 17 at 46 n.13. At that time, the agency stated that it would not be
submitting associated evidence since it seemed irrelevant and unchallenged, and
to avoid adding to an already voluminous record. Id.
¶51Given the administrative judge’s grant of corrective action and associated
orders, which included $12,750 in FY 17 performance pay, the agency has now
submitted the evidence to which it previously referred, for the first time on
review. This includes, inter alia, an SF-50 and associated payroll records
indicating that the appellant received $12,000 in FY 17 performance pay,
effective March 2018. Id. at 177, 185-86. The evidence also shows that an
agency official had set a limit of $12,000 for all physicians at the appellant’s
facility, which would explain the difference between the November 7, 2017
recommendation of $12,750 in performance pay and the $12,000 given. E.g., id.
at 16-18, 197-98, 249-52.
24
¶52In her response to the agency’s petition, the appellant does not argue that
the $12,000 in FY 17 performance pay was not received, nor does she dispute the
difference between that amount and the $12,750 that her supervisor originally
recommended. PFR File, Tab 18. She does, however, object to the new evidence
on the basis that it was not submitted during the proceedings below. Id. at 5 n.1.
¶53Under 5 C.F.R. § 1201.115(d), 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. But 5 C.F.R. § 1201.115(e) provides that the Board nevertheless
reserves the authority to consider any issue in an appeal before it.
¶54Given the agency’s assertions from below that it had already provided the
appellant with FY 17 performance pay, W-6 AF, Tab 17 at 46 n.13, the absence of
any substantive allegation to the contrary from the appellant in her response to
that brief or the agency’s petition for review, W-6 AF, Tab 22; PFR File, Tab 18,
and the administrative judge’s apparent misunderstanding about whether the
appellant received any FY 17 performance pay, ID at 5, we find it appropriate to
consider the agency’s newly submitted evidence about this limited issue.
¶55We credit this newly submitted evidence, which shows that the agency
provided the appellant with the same $12,000 in performance pay that it provided
other physicians at her facility, albeit belatedly, in July 2018. Although this
evidence is notable for some of the reasons described by the agency, we also find
it notable for another reason. The agency repeatedly invokes the March 2, 2018
effective date for the appellant’s FY 17 performance pay as if it demonstrates that
the March 27, 2018 recommendation of no performance pay was too late and
meaningless. PFR File, Tab 4 at 31-32 (referencing W-2 AF, Tab 45 at 7). But
this ignores the fact that the agency did not process the appellant’s FY 17
performance pay award until July 2018. E.g., id. at 177, 184-86.14 By that time,
14 Within the agency’s arguments to the Board, it does not assert that the appellant
received her performance pay before the March 27, 2018 recommendation of no
performance pay. PFR File, Tab 4 at 17. But the agency did so in arguments it
25
the appellant had engaged in whistleblowing, retained an attorney, and
complained to OSC about her FY 17 proficiency report. E.g., IAF, Tab 16 at 56,
Tab 17 at 4, Tab 26 at 6. This delay is all the more glaring in light of the
agency’s acknowledgement that it was “required” to pay the FY 17 performance
pay no later than March 2018, PFR File, Tab 4 at 16-17, and evidence showing
that other physicians received their performance pay in a timelier manner, id.
at 308, 310, 313, 318.
¶56In any event, aside from its argument and evidence about the appellant
already receiving $12,000 in FY 17 performance pay, the agency has not
substantively disputed the administrative judge’s Carr factor analysis or
conclusion that the agency failed to rebut the appellant’s prima facie case of
reprisal for Personnel Action 7. Thus, we find no basis for otherwise disturbing
that analysis and conclusion. ID at 52-57. We affirm the administrative judge’s
conclusion that the agency did not meet its burden of proving by clear and
convincing evidence that it would have taken Personnel Action 7 in the absence
of the appellant’s whistleblowing.
¶57We modify the initial decision regarding the corrective action ordered. The
agency is not required to pay the $12,750 in FY 17 performance pay described in
the initial decision because it already provided the appellant with the same FY 17
performance pay it provided other physicians at the appellant’s facility, albeit
belatedly. However, the agency must still ensure that its records consist of the
original October 31, 2017 proficiency report and associated performance pay
recommendation from November 7, 2017, both of which the agency failed to
submitted to the Equal Employment Opportunity Commission, which the agency
attached to its petition for review. Id. at 243, 251. The agency argued that “by the time
[the appellant’s second supervisor] expressed that sentiment with a written
recommendation for no Performance Pay on March 27, 2018 [], it was too late.
Complainant’s Performance Pay had already been paid out more than three weeks
earlier.” Id. at 251. This is contradicted by the agency’s own evidence, which shows
that the agency did not pay the appellant her FY17 performance pay until July 2018. Id.
at 177, 184-86.
26
timely act upon. The agency must cancel the March 27, 2018 recommendation of
no FY 17 performance pay.
The appellant’s request for addendum proceedings was premature, and her request
for sanctions is denied.
¶58The initial decision notes that the appellant may request further relief
associated with Personnel Action 7 by requesting an addendum proceeding, and
that she may request attorney fees. ID at 62, 66. The initial decision noted that
the time for doing so would be no later than 60 days after the initial decision
became final. Id.
¶59Within her response to the agency’s petition for review, the appellant
requested addendum proceedings to determine attorneys’ fees, damages, and any
other relief to which she may be entitled. PFR File, Tab 18 at 6. However, this
request was premature because the parties filed competing petitions for review
and the initial decision was not yet final. 5 C.F.R. §§ 1201.113(a)-(c). If the
appellant still wishes to initiate addendum proceedings for damages and attorney
fees, she should file the request with the Denver Field Office after the issuance of
this decision.
¶60Within her response to the agency’s petition, the appellant has also asserted
that we should sanction the agency for failing to supplement certain responses to
interrogatory and document requests over the course of her years-long appeal and
for personally attacking the appellant’s character. PFR File, Tab 18 at 7-11. This
request for sanctions is denied. We have considered the appellant’s arguments
but discern no reason to exercise Board discretion to impose sanctions in this
appeal.
ORDER
¶61We ORDER the agency to ensure that its records consist of the original
October 31, 2017 proficiency report and associated performance pay
recommendation from November 7, 2017, both of which the agency failed to
27
timely act upon. The agency must cancel the March 27, 2018 recommendation of
no FY 17 performance pay. 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.
¶62We 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).
¶63No 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).
¶64For 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
28
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204.
In addition, the Whistleblower Protection Enhancement Act of 2012
authorized the award of compensatory damages including interest, reasonable
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
29
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 RIGHTS15
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
15 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
30
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
31
race, 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
32
other protected activities listed in 5 U.S.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.16 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
16 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
33
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐2) Settlement agreement, administrative determination, arbitrator award, or order.
☐3) Signed and completed “Employee Statement Relative to Back Pay”.
☐4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐6) All relevant benefit election forms (e.g., TSP, FEHB, etc.).
☐7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2.The following information must be included on AD-343 for Restoration:
a.Employee name and social security number.
b.Detailed explanation of request.
c.Valid agency accounting.
d.Authorized signature (Table 63).
e.If interest is to be included.
f.Check mailing address.
g.Indicate if case is prior to conversion. Computations must be attached.
h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3.Outside earnings documentation statement from agency.
4.If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5.Provide forms for FEGLI, FEHBA, or TSP deductions (if applicable).
6.If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a.Must provide same data as in 2, a-g above.
b.Prior to conversion computation must be provided.
c.Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630. | Schacht_ElizabethDE-1221-19-0041-W-6__Final_Order.pdf | 2024-05-14 | ELIZABETH SCHACHT v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-1221-19-0041-W-6, May 14, 2024 | DE-1221-19-0041-W-6 | NP |
1,475 | https://www.mspb.gov/decisions/nonprecedential/Rayman_Mary_E_SF-0752-19-0131-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARY E. RAYMAN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-0752-19-0131-I-1
DATE: May 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Linda Ward-Smith , Las Vegas, Nevada, for the appellant.
Erin L. Collins , Esquire, and Matthew S. Voss , Esquire, North Las Vegas,
Nevada, 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 without
holding the requested hearing. On petition for review, the appellant makes the
following arguments: (1) she was not aware of her “‘preference eligible’ veteran
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
status,” and she was hired into an excepted service position in error because she
did not have “the required eligibility documentation”; (2) she should have been
“reinstated under the competitive services [sic] appointment” when she was hired
in 2018; (3) the agency’s approval of her Family and Medical Leave Act of 1993
(FMLA) request demonstrates that she was an “employee” with Board appeal
rights; and (4) the agency committed a prohibited personnel practice by
discriminating against her due to her planned medical procedure. Petition for
Review (PFR) 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. 5 C.F.R. § 1201.113(b).
We have considered the appellant’s argument, made for the first time on
review, that the agency erred when she was appointed to an excepted service
position, and she should have been reinstated in the competitive service when she
was hired in 2018. PFR File, Tab 1 at 5. We have also considered her assertion
that she was unaware of her preference eligible status. Id. She identifies no
evidence in support of these arguments. Moreover, her argument regarding her
alleged preference eligible status appears contradictory to her own submission,2
which shows that she is a 5-point “Post-Vietnam-Era Veteran.”2 Initial Appeal
File (IAF), Tab 1 at 10, Tab 12 at 52-53 (the appellant’s DD-214). 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). The appellant has not made such a
showing. Even if we found for the purposes of our analysis that this argument
was based on new evidence, she has not persuaded us that she is an employee
pursuant to 5 U.S.C. § 7511(a)(1), such that she has Board appeal rights to
challenge her removal. See, e.g., Russo v. Veterans Administration , 3 M.S.P.R.
345, 349 (1980) (stating that the Board will not grant a petition for review based
on new evidence absent a showing that it is of sufficient weight to warrant an
outcome different from that of the initial decision) . Thus, this argument is
without merit.
The appellant additionally argues on petition for review that the agency
admitted that she was an employee when it granted her FMLA leave request. PFR
File, Tab 1 at 4-5. She also includes an FMLA fact sheet, which indicates that
FMLA leave is only available to individuals who, among other things, worked for
their employer for at least 12 months and completed at least 1,250 hours of
service during the preceding 12-month period. PFR File, Tab 1 at 6-9. Under
5 C.F.R. § 1201.115, the Board will generally not consider evidence submitted for
the first time with the petition for review absent a showing that it was
unavailable before the record was closed despite the party’s due diligence.
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980). The appellant has
not made such a showing. Moreover, the parties cannot confer jurisdiction by a
contract or agreement where none otherwise exists. Winns v. U.S. Postal Service ,
124 M.S.P.R. 113, ¶ 17 (2017), aff’d sub nom. , Williams v. Merit Systems
2 Her argument in this regard does not appear to implicate the Uniformed Services
Employment and Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C.
§§ 4301-4335) or the Veterans Employment Opportunities Act of 1998. 3
Protection Board , 892 F.3d 1156 (Fed. Cir. 2018). We are not persuaded by the
appellant’s argument, made below and on review, that the agency’s decision to
grant her request for FMLA leave warrants a finding that she is an employee with
Board appeal rights. Accordingly, the appellant’s argument is without merit.
Finally, the appellant asserts that the agency committed a prohibited
personnel practice by discriminating against her due to her planned medical
procedure. PFR File, Tab 1 at 5. As the administrative judge found, the Board
lacks jurisdiction over such a claim absent an otherwise appealable action. IAF,
Tab 16, Initial Decision at 7; see Penna v. U.S. Postal Service , 118 M.S.P.R. 355,
¶ 13 (2012). For the reasons described herein, we deny the petition for review
and affirm the initial decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read 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.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.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. 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 | Rayman_Mary_E_SF-0752-19-0131-I-1__Final_Order.pdf | 2024-05-14 | MARY E. RAYMAN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0752-19-0131-I-1, May 14, 2024 | SF-0752-19-0131-I-1 | NP |
1,476 | https://www.mspb.gov/decisions/nonprecedential/Brown_Gregory_B_PH-0752-19-0045-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GREGORY BENN BROWN,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
PH-0752-19-0045-I-1
DATE: May 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gregory Benn Brown , New London, Connecticut, pro se.
Alexandra Hudd Sandgren and Sean M. Connolly , Groton, 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
dismissed without prejudice his initial 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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). For
the reasons discussed below, we FORWARD this matter to the administrative
judge for her to refile the appeal, which was previously dismissed without
prejudice.
On review, the appellant argues that the record does not support the
administrative judge’s dismissal without prejudice of his appeal over his
objection. Petition for Review (PFR) File, Tab 1 at 5-10. He first contends that
the administrative judge’s order directing him to respond as to whether he
objected to a dismissal without prejudice “chill[ed]” the protection of law”
because he was recovering from a medical condition at the time. Id. at 8; Initial
Appeal File (IAF), Tab 41. He also states that the dismissal constituted harmful
error, an abuse of discretion, an erroneous interpretation of statute and
regulations, and did not serve the interests of fairness, due process, and
administrative efficiency. PFR File, Tab 1 at 5-10. He argues that the
administrative judge’s finding that the record is “replete” with examples of his
inability to meet deadlines due to his medical condition is unfounded and that it is
difficult for him to respond to orders because he is not an attorney. Id. at 9; IAF,
Tab 48, Initial Decision (ID) at 4-5. He further contends that the administrative
judge’s directive that, although the appeal will be automatically refiled on
October 15, 2019, he may refile his appeal sooner if he submits acceptable2
medical documentation is not supported by the Board’s case law because it is
impossible for a doctor to determine whether he is fit to pursue his appeal and
deprives him of his ability to challenge his removal. PFR File, Tab 1 at 8-10; ID
at 5. He requests that his case proceed and submits medical documentation
stating that he is medically stable from his chronic medical problems. PFR File,
Tab 1 at 10, 15.
The administrative judge did not abuse her discretion in dismissing the
appeal without prejudice. An administrative judge has wide discretion to control
the proceedings before her, and the dismissal without prejudice to refiling is a
procedural option committed to her sound discretion. Gingery v. Department of
the Treasury, 111 M.S.P.R. 134, ¶ 9 (2009); 5 C.F.R. § 1201.29(b). The
administrative judge must exercise her discretion in a manner consistent with the
policies set forth by the Board. Selig v. Department of the Army , 102 M.S.P.R.
189, ¶ 6 (2006). A dismissal without prejudice may be granted when the interests
of fairness, due process, and administrative efficiency outweigh any prejudice to
either party. Gingery, 111 M.S.P.R. 134, ¶ 9; 5 C.F.R. § 1201.29(b). We find no
evidence that the administrative judge’s order informing the parties of her intent
to dismiss the appeal without prejudice and directing them to respond was
harmful to the appellant, as she provided him with an opportunity to respond prior
to her dismissal of the case, and the appellant responded to the order; he has not
indicated how the outcome of the case would have been different had he had
additional time to respond. See IAF, Tabs 41, 43. Given the delays in the case
due to the appellant’s serious medical condition and medical documentation
establishing the appellant’s ongoing recovery from the condition, the
administrative judge did not abuse her discretion in dismissing the case without
prejudice. See, e.g., Padilla v. Department of the Air Force , 58 M.S.P.R. 561,
566 (1993) (finding that the administrative judge did not abuse her discretion in
dismissing the appeal without prejudice in light of the appellant’s medical3
condition and the need for a lengthy delay). The appellant has not shown, nor
does the record reflect, that he was prejudiced by the dismissal.
We also find no error in the administrative judge’s decision to
automatically refile the appeal approximately 6 months after the issuance of the
initial decision, but to provide the appellant with an opportunity to refile sooner
upon the submission of medical documentation showing that he is “medically
stable” and “fit to pursue his appeal.” ID at 5. The Board has approved of
language directing an appellant to refile an appeal within a certain time after his
physicians find that he is medically able to proceed and to provide medical
documentation to that effect. See, e.g., Padilla, 58 M.S.P.R. at 567. We find no
error in the administrative judge’s hybrid approach to refiling. Additionally, on
review, the appellant has submitted medical documentation stating that he is
“medically stable.” PFR File, Tab 1 at 15. Accordingly, we find it appropriate to
forward this matter to the administrative judge for her to refile the appeal.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
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
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Brown_Gregory_B_PH-0752-19-0045-I-1__Final_Order.pdf | 2024-05-14 | GREGORY BENN BROWN v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-0752-19-0045-I-1, May 14, 2024 | PH-0752-19-0045-I-1 | NP |
1,477 | https://www.mspb.gov/decisions/nonprecedential/Gomez_Crystal_M_SF-315H-19-0669-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CRYSTAL M. GOMEZ,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-315H-19-0669-I-1
DATE: May 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Justin Prato , Esquire, San Diego, California, for the appellant.
Gabriela Y. Ramos , Esquire, San Diego, 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 failed to provide her with
notice of the action and an opportunity to respond. Petition for Review (PFR)
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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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).
The administrative judge correctly dismissed the appellant’s probationary
termination appeal for lack of jurisdiction due to the appellant’s failure to
establish that she had a statutory or regulatory right to an appeal before the
Board. Initial Appeal File (IAF), Tab 7, Initial Decision. The appellant’s
argument on review that the agency failed to provide her with notice and an
opportunity to respond pursuant to 5 C.F.R. § 315.805 does not provide a basis to
disturb the initial decision. PFR File, Tab 1 at 4-5. That regulation applies to the
termination of “an employee serving a probationary or trial period for reasons
based in whole or in part on conditions arising before [her] appointment,” and it
is undisputed that, here, the appellant was terminated for performance issues,
which inherently occur post appointment. IAF, Tab 5 at 22. The appellant has
failed to otherwise allege or establish the Board’s jurisdiction over her appeal. 2
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on4
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Gomez_Crystal_M_SF-315H-19-0669-I-1__Final_Order.pdf | 2024-05-14 | CRYSTAL M. GOMEZ v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-315H-19-0669-I-1, May 14, 2024 | SF-315H-19-0669-I-1 | NP |
1,478 | https://www.mspb.gov/decisions/nonprecedential/Speltz_RobertSF-0752-22-0472-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT SPELTZ,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
SF-0752-22-0472-I-1
DATE: May 14, 2024
THIS ORDER IS NONPRECEDENTIAL1
Philip A. Gonzales , Reno, Nevada, for the appellant.
Douglas W. Hales , and Nancy Anderson Sinclair , Herlong, California, for
the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal, finding that the agency failed to prove its
charge of Excessive Absence. For the reasons discussed below, we GRANT the
agency’s petition for review, VACATE the initial decision, and REMAND 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).
case to the Western Regional Office for further adjudication in accordance with
this Remand Order.
BACKGROUND
The appellant was employed as a WG-6910-07 Materials Expediter at the
agency’s Sierra Army Depot in Herlong, California. Initial Appeal File (IAF),
Tab 27 at 4. The agency removed the appellant from his position effective
February 26, 2021, based on a charge of Excessive Absence for the appellant’s
absences from October 5 to November 2, 2020. IAF, Tab 7 at 46-64, 72. The
appellant timely filed an appeal with the Board, IAF, Tab 1, and requested a
hearing, id. at 2.
On appeal, the appellant alleged that the agency discriminated against him
on the basis of his disability when it removed him. Id. at 5. In its response, the
agency asserted that its removal decision was warranted and not the result of any
prohibited basis, and further indicated that the “[a]ppellant was an employee in
the competitive service as defined by 5 U.S.C. § 7511 at all times relevant to his
appeal.” IAF, Tab 7 at 7, 9. After implicitly finding that the Board had
jurisdiction over the appeal under chapter 75 and holding a hearing, the
administrative judge reversed the removal, finding that the agency did not prove
its Excessive Absence charge. IAF, Tab 29, Hearing Recording (HR), Tab 35,
Initial Decision (ID) at 1, 12-20, 26.
The agency has filed a petition for review of the initial decision. PFR File,
Tab 1. The appellant has not filed a response.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency asserts, for the first time on review, that the Board should
dismiss this appeal for lack of jurisdiction. PFR File, Tab 1 at 11. Specifically,
the agency contends that the Board lacks jurisdiction over the appellant’s appeal
because he is not an “employee” as defined by chapter 75. Id. at 9-11.
Generally, the Board will not consider a new argument on review absent a2
showing that it is based on new and material evidence that was not previously
available despite the party’s due diligence. Clay v. Department of the Army ,
123 M.S.P.R. 245, ¶ 6 (2016). However, we consider the agency’s new argument
because it implicates the Board’s jurisdiction, and the issue of jurisdiction is
always before the Board and may be raised by any party or sua sponte by the
Board at any time during Board proceedings. Lovoy v. Department of Health &
Human Services , 94 M.S.P.R. 571, ¶ 30 (2003).
We remand the appeal for a determination of whether the Board has chapter 75
jurisdiction over the appellant’s removal appeal.
The Board’s jurisdiction is not plenary, and it is limited to 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). Whether an
individual in the competitive service has the right to appeal an adverse action
depends on whether he is an “employee” under 5 U.S.C. § 7511(a)(1)(A). Walker
v. Department of the Army , 119 M.S.P.R. 391, ¶ 5 (2013).
Under 5 U.S.C. § 7511(a)(1)(A), an employee is an individual in the
competitive service (i) who is not serving a probationary or trial period under an
initial appointment, or (ii) who has completed 1 year of current continuous
service under other than a temporary appointment limited to 1 year or less.
However, at the time of the appellant’s appointment to the Materials Expeditor
position, individuals appointed to a competitive-service position at the
Department of Defense were subject to a 2 -year probationary period and only
qualified as an “employee” with chapter 75 appeal rights if they completed
2 years of current continuous service.2 5 U.S.C. § 7511(a)(1)(A)(ii); 10 U.S.C.
2 Congress enacted the National Defense Authorization Act for Fiscal Year 2016 (2016
NDAA) on November 25, 2015, Pub. L. No. 114-92, 129 Stat. 726. The 2016 NDAA
extended the probationary period for an individual appointed to a permanent
competitive-service position at the Department of Defense to a 2-year probationary
period and provided that such individual only qualifies as an “employee” under
5 U.S.C. § 7511(a)(1)(A)(ii) if he has completed 2 years of current continuous service.
Pub. L. No. 114-92, § 1105, 129 Stat. 726, 1023-24 (codified as relevant here at 10
U.S.C. § 1599e and 5 U.S.C. § 7511(a)(1)(A)(ii)). The National Defense Authorization3
§ 1599e(a), (b)(1)(A), (d) (repealed 2022); Bryant v. Department of the Army ,
2022 MSPB 1, ¶ 8 & n.2.
A Department of Defense employee who has not served his full 2-year
appointment can show that he has completed the probationary period by tacking
on prior service if: (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. Hurston v. Department of the Army ,
113 M.S.P.R. 34, ¶ 9 (2010); 5 C.F.R. § 315.802(b). Alternatively, an individual
can show that, while he may be a probationer, he is an “employee” with chapter
75 appeals rights because, immediately preceding the adverse action at issue, he
had completed at least 2 years of current continuous service without a break in
Federal civilian employment of a workday. Hurston, 113 M.S.P.R. 34, ¶ 9.
On review, the agency argues that the appellant did not meet his burden of
establishing that he was an “employee” because his removal on February 26,
2021, occurred less than a year after his appointment to the Materials Expeditor
position on June 7, 2020. PFR File, Tab 1 at 13. It also asserts that although the
appellant’s prior service with the agency as a Materials Handler immediately
preceded his June 2020 appointment without a break in service, he is unable to
tack on this service because the “positions are materially different and cannot be
considered to be in the same line of work.” Id. at 13-14. However, it is unclear
whether the appellant, albeit a probationer, could meet the definition of an
employee because he completed at least 2 years of current continuous service
without a break in Federal civilian employment of a workday.
Generally, an appellant has the burden of proving by preponderant evidence
that the Board has jurisdiction over his appeal, 5 C.F.R. § 1201.56(b)(2)(i)(A).
However, an appellant must receive explicit information on what is required to
Act for Fiscal Year 2022, enacted on December 27, 2021, repealed 10 U.S.C. § 1599e
and the 2-year probationary period, effective December 31, 2022. Pub. L. No. 117-81,
§ 1106, 135 Stat. 1541, 1950.4
establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection
Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). Based on our review of the
record, we find that the appellant did not receive explicit information regarding
the jurisdictional standard to show that he qualifies as an “employee” with appeal
rights under 5 U.S.C. Chapter 75.3 IAF, Tabs 2, 12, 27. Further, because the
agency did not dispute jurisdiction below, it deprived the appellant of the
opportunity to submit evidence and argument below in support of finding that he
was an “employee.” It also denied the administrative judge the ability to develop
the record and assess the relevant information concerning this significant issue.
We therefore find, in light of the evidence and argument submitted by the
agency, that this case should be remanded to allow the appellant to establish that
he is an “employee” as defined by chapter 75. On remand, the administrative
judge shall allow the parties to present additional evidence and argument relating
to the jurisdictional issue. If, on remand, the administrative judge finds that the
appellant has not established that he is an “employee” with chapter 75 appeal
rights, he shall issue a new initial decision dismissing the appeal for lack of
jurisdiction. If, however, he finds that the appellant is an “employee” and the
Board has jurisdiction over this appeal, the administrative judge may reiterate his
findings on the merits of the appellant’s removal in the new initial decision.
3 After the agency submitted its file, wherein it initially indicated that the appellant was
a chapter 75 employee, IAF, Tab 7 at 7, the appeal was reassigned to another
administrative judge, Tab 10. The appellant’s initial appeal also specifies that he had
over 14 years of service. IAF, Tab 1 at 1. Thus, it may not have been clear that this
jurisdictional issue needed to be addressed. Nevertheless, the agency’s apparent
concession of jurisdiction may not be dispositive. See Waldrop v. U.S. Postal Service ,
72 M.S.P.R. 12, 15 (1996) (stating the Board, as a limited-jurisdiction tribunal, must
satisfy itself that it has authority to adjudicate the matter before it, and may raise the
question of its own jurisdiction sua sponte at any time).5
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.6 | Speltz_RobertSF-0752-22-0472-I-1__Remand_Order.pdf | 2024-05-14 | ROBERT SPELTZ v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-0752-22-0472-I-1, May 14, 2024 | SF-0752-22-0472-I-1 | NP |
1,479 | https://www.mspb.gov/decisions/nonprecedential/Roberts-Harvey_LaGrace_B_DC-1221-20-0016-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAGRACE BETTINA ROBERTS-
HARVEY,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-1221-20-0016-W-1
DATE: May 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jennifer Duke Isaacs , Esquire, Atlanta, Georgia, for the appellant.
Kelly Lack, Rock Island, Illinois, for the agency.
Paul Carlson , 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 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;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 argues, among other things, that the agency
retaliated against her for disclosing the misconduct of a Government contractor
by suspending her security clearance, which also revoked her return rights, and
subsequently removing her. Petition for Review File, Tab 4 at 16-18. We agree
with the administrative judge that the appellant failed to nonfrivolously allege
that the agency took or failed to take a personnel action within the Board’s
jurisdiction in this appeal.2 Initial Appeal File, Tab 11, Initial Decision at 5-6.
Moreover, although not discussed by the administrative judge, a disclosure of
alleged wrongdoing committed by a non-Federal Government entity is protected
under 5 U.S.C. § 2302(b)(8) only when the Government’s interests and good
name are implicated in the alleged wrongdoing, and the employee shows that she
reasonably believed that the information she disclosed evidenced that
wrongdoing. Covington v. Department of the Interior , 2023 MSPB 5, ¶ 16; Miller
2 Although a removal is a covered personnel action under 5 U.S.C. § 2302(a)(2)(A), as the
administrative judge noted, when, as here, the employee has previously made a knowing
and informed and therefore binding election to file an adverse action appeal of such
removal, the Board need not adjudicate the removal in an IRA appeal. 5 U.S.C.
§ 7121(g); Agoranos v. Department of Justice , 119 M.S.P.R. 498, ¶ 14 (2013).2
v. Department of Homeland Security , 99 M.S.P.R. 175, ¶ 12 (2005). Here, the
appellant’s generalized assertions that the contractor mistreated its workers did
not specifically implicate the Government or particular Government officials in
alleged wrongdoing. Thus, the appellant also failed to nonfrivolously allege that
she made disclosures described under 5 U.S.C. § 2302(b)(8). For the reasons
stated above, the Board lacks jurisdiction over this IRA appeal.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order 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.3
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Roberts-Harvey_LaGrace_B_DC-1221-20-0016-W-1__Final_Order.pdf | 2024-05-14 | null | DC-1221-20-0016-W-1 | NP |
1,480 | https://www.mspb.gov/decisions/nonprecedential/Roberts-Harvey_LaGrace_B_CH-0752-19-0214-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAGRACE BETTINA ROBERTS-
HARVEY,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
CH-0752-19-0214-I-1
DATE: May 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tia Thornton , Esquire, Atlanta, Georgia, for the appellant.
Erika McPherson and Paul Carlson , 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
affirmed the agency’s removal action. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. We MODIFY the initial
decision (1) to find that the agency established nexus between the appellant’s
proven misconduct and the efficiency of the service, (2) to clarify the appellant’s
burden for proving her affirmative defense of sex discrimination, (3) to find that
the appellant’s disclosures of wrongdoing by a non-Federal Government entity
are not protected because they do not implicate the Government’s good name or
interests, and (4) to vacate the portions of the initial decision finding that the
appellant’s disclosures were not a contributing factor in the agency’s decision to
remove her and that the agency proved by clear and convincing evidence that it
would have taken such an action absent her disclosures. Except as expressly
modified as described herein, we AFFIRM the initial decision.
BACKGROUND
The agency employed the appellant as a GS-13 Procurement Analyst in
Kuwait. Initial Appeal File (IAF), Tab 6 at 16. On November 13, 2018, the
agency proposed the appellant’s removal based on three charges: (1) use of
official position and access to information to assist a non -Federal entity in
obtaining contracts with the U.S. Government in return for money; (2) acceptance
of gifts and gratuities from a non-Federal entity in exchange for using her official
position to help secure business with the U.S. Government; and (3) failure to2
disclose gifts from foreign entities as required by law. Id. at 25-32. The
appellant was provided with an opportunity to respond, and she did so. Id.
at 23-24. Effective February 5, 2019, the agency removed the appellant from her
position. Id. at 17-22.
The appellant filed an appeal with the Board challenging the removal.
IAF, Tab 1. She also raised affirmative defenses of sex discrimination, reprisal
for whistleblowing activity, and violations of due process. IAF, Tabs 1, 20.
After holding the appellant’s requested hearing, the administrative judge issued
an initial decision sustaining the removal. IAF, Tab 33, Hearing Compact Disc
(HCD), Tab 35, Initial Decision (ID). The administrative judge found that the
agency proved its charges by preponderant evidence, that the appellant did not
prove any of her affirmative defenses, and that the penalty of removal was
reasonable. ID at 3-28.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has not filed a response to the petition
for review.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved its charges by preponderant evidence.
On review, the appellant generally asserts that “the charges were not
substantiated,” PFR File, Tab 1 at 9, but she does not explain why she believes
that there was no evidence to support the agency’s charges. Based on her
credibility determinations, the parties’ stipulated facts, and other evidence in the
record, the administrative judge found that the agency proved all three charges,
ID at 3-18, and we find no basis to disturb the administrative judge’s findings in
this regard, see Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105-06 (1997)
(finding no reason to disturb the administrative judge’s findings when she
considered the evidence as a whole, drew appropriate inferences and reached3
well-reasoned conclusions); Broughton v. Department of Health & Human
Services, 33 M.S.P.R. 357, 359 (1987) (same).
The agency established nexus.
In addition to the requirement that the agency prove its charge, the agency
must also prove that there is a nexus, i.e., a clear and direct relationship between
the articulated grounds for the adverse action and either the appellant’s ability to
accomplish his duties satisfactorily or some other legitimate Government interest.
Hoofman v. Department of the Army , 118 M.S.P.R. 532, ¶ 16 (2012),
aff’d, 526 F. Appx. 982 (Fed. Cir. 2013). An agency may show a nexus between
off-duty misconduct2 and the efficiency of the service by three means:
(1) a rebuttable presumption in certain egregious circumstances; (2) preponderant
evidence that the misconduct adversely affects the appellant’s or co -workers’ job
performance or the agency’s trust and confidence in the appellant’s job
performance; or (3) preponderant evidence that the misconduct interfered with or
adversely affected the agency’s mission. Kruger v. Department of Justice ,
32 M.S.P.R. 71, 74 (1987). The administrative judge did not explicitly discuss
nexus in this case. We modify the initial decision to find that the agency
established nexus between the appellant’s proven misconduct and the efficiency
of the service.
The deciding official stated in the decision letter and her testimony that the
appellant’s misconduct adversely affected the agency’s trust and confidence in
her job performance. IAF, Tab 6 at 17; HCD (testimony of the deciding official).
The Board has held that the charge of use of official position for personal gain
has “an obvious impact on the efficiency of the service.” Lappin v. Department
2 Although it is not clear from the record, it appears that the misconduct in question
occurred off-duty, at least in part. Even if the misconduct in question involved a
combination of on- and off-duty misconduct, the outcome remains the same. See, e.g.,
Parker v. U.S. Postal Service, 819 F.2d 1113, 1116 (Fed. Cir. 1987 ) (noting that there is
a sufficient nexus between an employee’s conduct and the efficiency of the service
when the conduct occurred in part at work).4
of Justice, 24 M.S.P.R. 195, 196-97 (1984). Under the particular circumstances
of this case, we find that the agency has established nexus.
The appellant failed to prove her affirmative defenses of sex discrimination,
whistleblower reprisal, and a due process violation.
On review, the appellant generally challenges the administrative judge’s
finding that she failed to prove her affirmative defenses. PFR File, Tab 1
at 12-13. However, she does not support her vague allegations of sex
discrimination, retaliation for whistleblowing, and violation of due process with
any new and material evidence. See 5 C.F.R. § 1201.115(d). Although the
appellant raises no persuasive claim of error in the administrative judge’s
analysis, we modify the initial decision to clarify the appellant’s burden for
proving her affirmative defense of sex discrimination, and to evaluate whether, as
part of her claim of whistleblowing retaliation, the appellant’s disclosures
implicate the Government’s good name or interests, still finding that the appellant
has not proven any of her affirmative defenses.
Sex discrimination
The appellant asserts that the administrative judge erred in finding that she
failed to prove her claim of sex discrimination. PFR File, Tab 1 at 12. In
particular, she contends that the administrative judge refused to listen to her
claim at the hearing. Id. The record shows otherwise.
In the initial decision, the administrative judge considered her allegations
but noted that they were deficient. ID at 18-20. In so doing, she cited to the
burden-shifting framework set forth in McDonnell Douglas Corp. v. Green ,
411 U.S. 792, 802 (1973). ID at 18-19. As the Board has since clarified, to
prove a claim of sex discrimination, an appellant must show that the prohibited
consideration was at least a motivating factor in the action under appeal. Pridgen
v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 20-22.
In evaluating the appellant’s claim, we have applied the framework set
forth in Pridgen. We need not remand the appeal because the record is fully5
developed on this issue, however, and we agree with the administrative judge that
the appellant has not shown that her sex was a motivating factor in the agency’s
decision to remove her.
Whistleblower reprisal
The appellant asserts that the administrative judge erred in finding that she
failed to prove her claim of whistleblower reprisal. PFR File, Tab 1 at 12.
In particular, she contends that the administrative judge removed some of her
exhibits, but she does not identify any such exhibits. This argument is therefore
not persuasive.
Moreover, as the administrative judge properly noted, the appellant’s
allegations of wrongdoing were against a non-Federal Government entity. Under
the Whistleblower Protection Enhancement Act of 2012, a disclosure of alleged
wrongdoing committed by a non -Federal Government entity is protected under
5 U.S.C. § 2302(b)(8) only when the Government’s interests and good name are
implicated in the alleged wrongdoing, and the employee shows that she
reasonably believed that the information she disclosed evidenced that
wrongdoing. Covington v. Department of Interior , 2023 MSPB 5, ¶ 8.
Applying Covington to the facts of this case, we find that the appellant has
not shown that the Government’s interests and good name are implicated in the
alleged wrongdoing, and/or that she reasonably believed that the information she
disclosed evidenced such wrongdoing. See id. Accordingly, we modify the
initial decision to find that the appellant’s disclosures were not protected.
Because we have concluded that the appellant’s disclosures are not
protected under 5 U.S.C. § 2302(b)(8), we need not address whether any such
disclosures were a contributing factor in the agency’s decision to remove the
appellant or whether the agency proved by clear and convincing evidence that it
would have taken such an action absent the disclosures. Accordingly, we vacate
the portions of the initial decision that reach these issues.6
Due process violations
The appellant asserts that she was not provided with due process because
she was given “misleading [m]emorandums” that contained “falsified
information” in connection with the revocation of her security clearance.
PFR File, Tab 1 at 13. As the administrative judge observed, however, the
appellant raised no allegations that she did not receive notice of the charges
against her, an explanation of the agency’s evidence, or an opportunity to respond
to the charges. ID at 24. To the extent the appellant is alleging that the deciding
official was biased or relied on falsified information, she has produced no
evidentiary support for such a conclusion. See Martinez v. Department of
Veterans Affairs , 119 M.S.P.R. 37, ¶¶ 10-11 (2012) (finding that an appellant
alleging a due process violation has the burden of proving a decision maker’s
actual bias or an intolerable risk of unfairness); see also 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).
Accordingly, we agree with the administrative judge that the appellant was
provided with due process. ID at 22-24.3
The penalty of removal was reasonable.
Although the appellant argues that the penalty of removal was not
reasonable, PFR File, Tab 1 at 13, we agree with the administrative judge that the
penalty of removal does not exceed the tolerable bounds of reasonableness for the
sustained charges, see Herrera-Martinez v. Social Security Administration ,
84 M.S.P.R. 426, 427, 432 -33 (1999) (reversing the administrative judge’s
decision to mitigate the penalty of removal when the appellant defrauded the
3 We further find that the appellant’s remaining arguments regarding procedural and
evidentiary matters provide no basis for disturbing the administrative judge’s
evidentiary findings.7
Government and accepted gifts from claimants, despite his 7 ½ years of Federal
service and lack of prior discipline); see also Hayes v. Department of Labor ,
65 M.S.P.R. 214, 216-17, 219-20 (1994) (finding removal to be a reasonable
penalty when the appellant improperly accepted cash payments and interfered
with an official investigation, despite his 17 years of Federal service and lack of
prior discipline).
Accordingly, we affirm the initial decision as modified herein.
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.
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
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order 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 you9
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 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: 10
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.11
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Roberts-Harvey_LaGrace_B_CH-0752-19-0214-I-1__Final_Order.pdf | 2024-05-14 | null | CH-0752-19-0214-I-1 | NP |
1,481 | https://www.mspb.gov/decisions/nonprecedential/Galindo_Joseph_L_DC-0752-19-0057-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH L. GALINDO,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
DC-0752-19-0057-I-1
DATE: May 13, 2024
THIS ORDER IS NONPRECEDENTIAL1
Andrew Schwartz , Esquire, Los Angeles, California, for the appellant.
Christiann Burek and William T. Yon , 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 appeal for lack of jurisdiction. 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
On August 7, 2018, the agency proposed the appellant’s removal from his
Program Analyst position based on charges of failure to follow supervisory
instructions, lack of candor, and inappropriate conduct. Initial Appeal File (IAF),
Tab 5 at 34, 62. The appellant presented an oral reply to the proposal notice. Id.
at 60. In a letter dated September 18, 2018, the deciding official sustained the
removal, effective immediately. Id. at 35-42. After being notified of the removal
decision, the appellant submitted his application for immediate retirement, and
his retirement was effective September 18, 2018. Id. at 32-34, 42. His Standard
Form 52 concerning his retirement indicated, “AGENCY FINDING: RETIRED
AFTER RECEIVING WRITTEN NOTICE ON SEPTEMBER 18, 2018 OF
DECISION TO SEPARATE.” Id. at 33. In addition, his Standard Form 50
indicated that his stated reason for retirement was “TO OBTAIN RETIREMENT
BENEFITS.” Id. at 34.
On October 17, 2018, the appellant timely filed the present appeal
challenging his removal and involuntary retirement. IAF, Tab 1 at 2. He claimed
that the agency’s actions against him constituted whistleblower reprisal and
discrimination based on disability, age, race, and sex. Id. at 3. Without holding
the requested hearing, the administrative judge issued an initial decision
dismissing the appeal for lack of jurisdiction. Id. at 1; IAF, Tab 7, Initial
Decision (ID). She found that the appellant retired and that retirements are
presumed voluntary. ID at 3. She further found that his retirement was not
within the Board’s jurisdiction because he failed to nonfrivolously allege facts to
overcome the presumption of voluntariness. ID at 3-6. She noted that the
appellant could have challenged the removal action against him but chose to
submit an application for immediate retirement instead. ID at 4. She therefore
dismissed the appeal. ID at 6.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has replied in opposition. PFR File, Tab 3. 2
DISCUSSION OF ARGUMENTS ON REVIEW
Under 5 U.S.C. § 7701(j), “an individual’s status under any retirement
system established by or under Federal statute . . . may [not] be taken into
account” in “determining the appealability” of a removal. The Board and its
reviewing court have interpreted this section as providing that, even when an
employee retires on the scheduled effective date of his removal, the Board retains
jurisdiction over the employee’s removal appeal. See Mays v. Department of
Transportation, 27 F.3d 1577, 1579-81 (Fed. Cir. 1994); Taber v. Department of
the Air Force, 112 M.S.P.R. 124, ¶ 7 (2009). This is because an employee should
not be forced to choose between electing to receive his retirement benefits and
appealing the agency’s decision to remove him. Krawchuk v. Department of
Veterans Affairs , 94 M.S.P.R. 641, ¶ 6 (2003).
Here, it is undisputed that the appellant elected to retire after the agency
rendered a final decision to remove him. IAF, Tab 1 at 5, Tab 5 at 32-34. We
find, therefore, that the appellant’s decision to retire after receiving the removal
decision does not deprive the Board of jurisdiction to adjudicate an appeal of the
removal action. See Taber, 112 M.S.P.R. 124, ¶ 7. Accordingly, we remand the
appeal to the regional office for adjudication on the merits, including a hearing if
the appellant still seeks one. On remand, the administrative judge shall
adjudicate the appellant’s affirmative defenses of whistleblower reprisal and
discrimination based on disability, age, race, and sex. See Krawchuk,
94 M.S.P.R. 641, ¶ 11.3
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.4 | Galindo_Joseph_L_DC-0752-19-0057-I-1__Remand_Order.pdf | 2024-05-13 | JOSEPH L. GALINDO v. DEPARTMENT OF COMMERCE, MSPB Docket No. DC-0752-19-0057-I-1, May 13, 2024 | DC-0752-19-0057-I-1 | NP |
1,482 | https://www.mspb.gov/decisions/nonprecedential/Cogdell_RobertCH-0752-22-0133-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT COGDELL, JR.,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
CH-0752-22-0133-I-1
DATE: May 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert Cogdell, Jr. , Hillside, Illinois, pro se.
Stanislaus A. Gonsalves , Esquire, Oak Brook Terrace, 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
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. We AFFIRM the initial decision
except as expressly MODIFIED to address the appellant’s whistleblower reprisal
affirmative defense.
BACKGROUND
The appellant was employed as a GS-13 Intelligence Research Specialist
with Immigration and Customs Enforcement at the Chicago Office of Homeland
Security Investigations (HSI). Initial Appeal File (IAF), Tab 7 at 22. The agency
removed him from his position in December 2021 for failure to follow
supervisory instructions. Id. at 23-28. This appeal followed. IAF, Tab 1.
Following a hearing, the administrative judge issued an initial decision sustaining
the agency’s charge and the penalty of removal. IAF, Tab 28, Hearing Recording
(HR), Tab 30, Initial Decision (ID). The appellant has filed a petition for review,
and the agency has responded in opposition. Petition for Review (PFR) File,
Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant does not challenge the administrative judge’s
findings as to the agency’s charge, nexus to the efficiency of the service, or the
penalty of removal. PFR File, Tab 1. Rather, he re-raises his affirmative defense
of whistleblower reprisal and “previously identified EEOC issues.” PFR File,2
Tab 1 at 3-5; IAF, Tab 1 at 9, Tab 23 at 6-18. In her prehearing conference order,
the administrative judge sanctioned the appellant for violating her order to
compel him to respond to the agency’s deposition questions by prohibiting him
from introducing testimony and documentary evidence concerning his affirmative
defenses. IAF, Tab 19, Tab 26 at 2, 4-5. She found that, consequently, the
appellant failed to meet his burden of proving his affirmative defenses. ID at 11.
Thus, the issues on review are the following: (1) whether the administrative
judge abused her discretion in imposing this sanction; and (2) whether the
administrative judge correctly determined that the appellant did not prove his
affirmative defense after imposing this sanction.
The administrative judge did not abuse her discretion in not allowing the
appellant to introduce testimonial or documentary evidence concerning his
affirmative defenses.
Administrative judges have the authority to impose sanctions as necessary
to serve the ends of justice, including when a party fails to comply with an
administrative judge’s order. Simon v. Department of Commerce , 111 M.S.P.R.
381, ¶ 11 (2009); 5 C.F.R. § 1201.43. Among the sanctions expressly permitted
under 5 C.F.R. § 1201.43(a)(2) for failure to comply with an administrative
judge’s order is a prohibition “from introducing evidence concerning the
information sought, or from otherwise relying upon testimony related to that
information.” See Harp v. Department of the Army , 791 F.2d 161, 163 & n.2
(Fed. Cir. 1986). The Board ordinarily will not disturb an administrative judge’s
determination to impose a sanction unless it is shown that she abused her
discretion or that her erroneous ruling adversely affected a party’s substantive
rights. Simon, 111 M.S.P.R. 381, ¶ 11. The Board also may look to the Federal
Rules of Civil Procedure for guidance on a “just” sanction under the
circumstances and whether the administrative judge exercised her authority
accordingly. See Wagner v. Department of Homeland Security , 105 M.S.P.R. 67,
¶¶ 14-15 (2007); see also 5 C.F.R. § 1201.72(a); Fed. R. Civ. P. 37(b). A3
sanction under the Federal Rules should be “proportionate” to the offense, and,
when the possibility of a severe sanction is raised, a court should consider
carefully whether a lesser sanction would be more appropriate for a particular
violation. Wagner, 105 M.S.P.R. 67, ¶ 15.
The appellant has not shown that the administrative judge abused her
discretion when she prohibited the appellant from introducing testimonial or
documentary evidence concerning his affirmative defenses. She imposed the
sanction for the appellant’s repeated refusals to respond to the agency’s questions
regarding his alleged whistleblower disclosures at its second attempt to depose
him. IAF, Tab 26 at 2; e.g., IAF, Tab 22 at 17-37, 59-61. In doing so, he
knowingly violated the administrative judge’s May 9, 2022 order to compel
responses to depositions, which she re-affirmed in her May 11, 2022 order
denying the appellant’s motion to strike.2 IAF, Tabs 19, 21. The sanction
imposed was expressly permitted under 5 C.F.R. § 1201.43(a)(2) under these
circumstances. IAF, Tab 26 at 2. Moreover, the sanction was “just” under the
Federal Rules of Civil Procedure because it recognized that the evidence related
to the affirmative defenses was not subject to fair testing by the agency through
deposition. See Smets v. Department of the Navy , 117 M.S.P.R. 164, ¶ 12 (2011),
aff’d, 498 F. App’x 1 (Fed. Cir. 2012); Wagner, 105 M.S.P.R. 67, ¶¶ 13-15.
Accordingly, we find that the administrative judge did not abuse her discretion in
imposing this sanction.
Despite the administrative judge’s sanction precluding the appellant from
offering evidence in support of his affirmative defenses, the record nevertheless
contains some evidence, primarily submitted by the agency, in connection with
2 In his motion to strike, the appellant argued that he should not have been compelled to
answer the agency’s questions about his alleged whistleblower disclosures because
those questions should have been directed to the Department of Homeland Security
Policy Office for a policy determination. IAF, Tab 20 at 5. He also argued that the
venue of an oral deposition did not afford him whistleblower protections. Id. The
administrative judge found that his reasoning was not a proper basis for not responding
or objecting to the agency’s deposition questions. IAF, Tab 21 at 2. We agree.4
these issues. Therefore, we supplement the initial decision to expressly address
the appellant’s claim of whistleblower reprisal, which he re-raises on review.
PFR File, Tab 1 at 3-5; IAF, Tab 1 at 9.
The appellant did not prove his affirmative defense of whistleblower reprisal.
In an adverse action appeal, such as this, an appellant’s claim of
whistleblower reprisal is treated as an affirmative defense. Shannon v.
Department of Veterans Affairs , 121 M.S.P.R. 221, ¶ 21 (2014). To establish a
prima facie case of whistleblower reprisal, an appellant must prove by
preponderant evidence that he made a protected disclosure as described under
5 U.S.C. § 2302(b)(8) or engaged in protected activity as described under
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and the disclosure or protected
activity was a contributing factor in the agency’s decision to take or fail to take a
personnel action outlined in 5 U.S.C. § 2302(a)(2)(A). 5 U.S.C. § 1221(e)(1); see
Ayers v. Department of the Army , 123 M.S.P.R. 11, ¶ 12 & n.1 (2015).
A protected disclosure is a contributing factor if it in any way affects an
agency’s decision to take a personnel action. Dorney v. Department of the Army ,
117 M.S.P.R. 480, ¶ 14 (2012). One way to establish contributing factor is the
knowledge/timing test. Wadhwa v. Department of Veterans Affairs , 110 M.S.P.R.
615, ¶ 12, aff’d, 353 F. App’x 435 (Fed. Cir. 2009). Under that test, an appellant
can prove the contributing factor element through evidence showing that the
official taking the personnel action knew of the disclosure and that the personnel
action occurred within a period of time such that a reasonable person could
conclude that the disclosure was a contributing factor in the personnel action.
Id.; see 5 U.S.C. § 1221(e)(1). If an appellant fails to satisfy the
knowledge/timing test, the Board considers other evidence, such as that
pertaining to the strength or weakness of the agency’s reasons for taking the
actions, whether the whistleblowing was personally directed at the proposing or
deciding officials, and whether those individuals had a desire or motive to5
retaliate against the appellant. Rumsey v. Department of Justice , 120 M.S.P.R.
259, ¶ 26 (2013); Dorney, 117 M.S.P.R. 480, ¶ 15.
If the appellant establishes a prima facie case of whistleblower reprisal, the
burden shifts to the agency to show by clear and convincing evidence that it
would have taken the same personnel action in the absence of any protected
activity. See Ayers, 123 M.S.P.R. 11, ¶ 27. In determining whether the agency
made such a showing, we generally consider the following factors: (1) the
strength of the agency’s evidence in support of its action; (2) the existence and
strength of any motive to retaliate on the part of the agency officials who were
involved in the decision; and (3) any evidence that the agency takes similar
actions against employees who are not whistleblowers but who are otherwise
similarly situated. Id.; see Carr v. Social Security Administration , 185 F.3d 1318,
1323 (Fed. Cir. 1999).
In his initial appeal, the appellant raised a claim that the agency retaliated
against him for making protected disclosures. IAF, Tab 1 at 9. He filed an Office
of Special Counsel (OSC) complaint, on or around November 2021, which he
submitted to the agency as his reply to the notice of proposed removal.3 IAF,
Tab 7 at 23, 35-59. He also alleged several protected disclosures or activities in
his sworn pleading before the administrative judge. IAF, Tab 23 at 6-18. We
discern from these submissions the following alleged protected disclosures and
activities: participation in another employee’s EEO complaint in May 2015, IAF,
Tab 7 at 42, Tab 23 at 33; multiple emails sent to agency employees since
December 3, 2020, disclosing violations of law, rule or regulation, gross
mismanagement, gross waste of funds, or abuse of authority, IAF, Tab 7 at 42-43,
Tab 23 at 6-7, 14-15; an April 2021 “grievance escalation email” alleging a
hostile work environment, IAF, Tab 7 at 50, Tab 23 at 13; and email(s) in 2021
3 We have considered the appellant’s allegations in his November 2021 OSC complaint
as part of his allegations in this case. IAF, Tab 7 at 35-59; PFR File, Tab 1 at 3-5.
However, the appellant has not alleged retaliation for filing the November 2021 OSC
complaint. IAF, Tab 23; PFR File, Tab 1 at 3-5. 6
requesting to reopen a Department of Homeland Security Office of Inspector
General (OIG) complaint, IAF, Tab 23 at 7, 13, 17; PFR File, Tab 1 at 3.
Participation in another employee’s EEO complaint in May 2015
The appellant provided the deciding official with his OSC complaint in
reply to the notice of proposed removal. IAF, Tab 7 at 23, 35-59. In his OSC
complaint, he listed as a protected whistleblowing activity that, in May 2015, he
“participated in” another employee’s EEO complaint filed against the Chief
Intelligence Officer (CIO). Id. at 42.4 He appeared to re-raise a claim of
retaliation based on this protected activity before the administrative judge. IAF,
Tab 23 at 33.
Testifying for or otherwise lawfully assisting any individual in the exercise
of any appeal, complaint, or grievance right granted by any law, rule, or
regulation is a protected activity under 5 U.S.C. 2302(b)(9)(B). See Edwards v.
Department of Labor , 2022 MSPB 9, ¶¶ 26-27, aff’d, No. 2022-1967, 2023 WL
4398002 (Fed. Cir. Jul. 7, 2023); Alarid v. Department of the Army , 122 M.S.P.R.
600, ¶ 10 (2015). Accordingly, an affirmative defense of reprisal for this activity
is subject to the burden -shifting standards set forth in 5 U.S.C. § 1221(e). Alarid,
122 M.S.P.R. 600, ¶ 12. Here, the preponderant evidence shows that the deciding
official first learned of his alleged EEO activity in November 2021, when the
appellant supplied his OSC complaint in response to the proposal notice.5 IAF,
Tab 7 at 23, 42; HR (testimony of the deciding official). He decided to remove
4 On review, the appellant contends that there were “several previously identified EEOC
issues” that were not addressed in the initial decision. PFR File, Tab 1 at 5. The
appellant’s OSC complaint and prehearing submission also contain references to alleged
Title VII, Civil Rights Act violations, and a hostile work environment, for example.
IAF, Tab 7 at 44, 50, Tab 23 at 7. To the extent that the appellant is alleging that he
was removed because of retaliation in violation of Title VII outside the whistleblower
context, we have discerned no direct or circumstantial evidence that any consideration
prohibited under Title VII was at least a motivating factor in his removal. See Pridgen
v. Office of Management and Budget , 2022 MSPB 31. To the extent that the appellant
may have raised any additional affirmative defenses, IAF, Tab 23 at 6-10, he has not
made any arguments regarding them on petition for review, and we will not consider
them further.7
the appellant in December 2021. IAF, Tab 7 at 23-28. Thus, the contributing
factor standard is established through the knowledge/timing test. See Salinas v.
Department of the Army , 94 M.S.P.R. 54, ¶ 9 (2003) (stating that the acting
officials’ knowledge of the disclosure and the timing of the personnel action
constitute the circumstantial evidence relevant to contributing factor under the
knowledge/timing test).
We next turn to the question of whether the agency proved by clear and
convincing evidence that it would have separated the appellant absent his
protected activity. As to the first Carr factor, the strength of the agency’s
evidence in support of its action, the administrative judge found that the agency
proved all seven specifications of its charge of failure to follow instructions. ID
at 7; IAF, Tab 7 at 60-61. Significantly, the appellant did not deny the factual
basis of the charge, i.e., that he failed to complete his assignments as instructed.
HR (testimony of the appellant). Rather, he challenged the propriety of the
instructions based on, among other things, the U.S. Constitution. IAF, Tab 23
at 8-10; HR (testimony of the appellant). The administrative judge found the
appellant’s assertions of constitutional violations unpersuasive, and she credited
the testimonies of the appellant’s supervisors that the instructions comported with
agency policy and procedures. ID at 5-8. We discern no error in that regard.
Thus, we find that the agency had strong, legitimate reasons for the appellant’s
removal.
Regarding the second Carr factor, the record contains no evidence other
than circumstantial evidence of knowledge/timing concerning any retaliatory
motive on the part of the deciding official. The deciding official testified
persuasively regarding his decision to sustain the appellant’s removal, which did
5 We assume without deciding that the appellant engaged in protected activity under
section 2302(b)(9)(B). In any event, the Board has explained that whistleblower
protections extend to individuals who were perceived to engage in protected activity,
even if they had not done so. See Corthell v. Department of Homeland Security ,
123 M.S.P.R. 417, ¶¶ 9-12 (2016), overruled on other grounds by Requena v.
Department of Homeland Security , 2022 MSPB 39.8
not include any improper considerations. HR (testimony of the deciding official).
To the extent that the deciding official may have been influenced by the
retaliatory motives of other agency officials involved in the decision, there is no
indication in the record that any other official had knowledge of the appellant’s
purported activity except for—presumably—the CIO. According to the appellant,
the CIO was the accused official in the 2015 EEO case. IAF, Tab 7 at 42. The
agency’s specifications and underlying evidence reflect that the CIO was the
appellant’s second-line supervisor at the time of the removal action and was
involved to some degree in the issuance of the supervisory instructions
underlying its charge. Id. at 60-61, 68, 72-73; HR (testimony of the CIO).
However, the record does not contain other evidence of a retaliatory motive on
the part of the CIO, who, notably, had been a supervisor in the appellant’s chain
of command since the purported EEO activity in 2015 without incident. HR
(testimony of the CIO). Ultimately, we find that the agency has established that
there was not a strong motive to retaliate on the part of the agency officials who
were involved in the decision.
Lastly, the third Carr factor cannot weigh in the agency’s favor because the
record does not definitely establish that the agency has taken similar actions
against non-whistleblowers. See Karnes v. Department of Justice , 2023 MSPB 12
¶ 35. Here, there is no discussion in the record regarding the existence of
potential comparators. Given the complete absence of evidence on the issue, we
conclude that Carr factor 3 is removed from consideration and is a neutral factor.
See id., ¶ 36.
After weighing the Carr factors, we find that the agency proved by clear
and convincing evidence that it would have taken the removal action absent the
appellant’s protected activity under 5 U.S.C. 2302(b)(9)(B). 9
Multiple emails sent to agency employees since December 3, 2020,
disclosing violations of law, rule or regulation, gross mismanagement,
gross waste of funds, or abuse of authority
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. Pridgen v. Office of Management
and Budget, 2022 MSPB 31, ¶ 52. 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 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. Furthermore, to make a protected
disclosure of a law, rule, or regulation, an employee ordinarily must identify the
specific law, rule, or regulation that was violated, unless the statements and the
circumstances surrounding the making of those statements clearly implicate an
identifiable violation of law, rule, or regulation. Ayers, 123 M.S.P.R. 11, ¶ 24.
The disclosures must be specific and detailed, not vague allegations of
wrongdoing regarding broad or imprecise matters. Rzucidlo v. Department of the
Army, 101 M.S.P.R. 616, ¶ 13 (2006).
In his sworn prehearing submission, the appellant contended that HSI
managers in his office violated specific sections of the HSI Case Management
Handbook,6 as well as the Fourth Amendment of the U.S. Constitution, when
using their case management system to process cases because they failed to
provide an Investigative Case Management (ICM) case number for each
assignment. IAF, Tab 23 at 8-10. He alleged that, on December 3, 2020, and in
multiple other emails, he requested to discuss his concerns or obtain ICM case
numbers from Special Agents and supervisors. IAF, Tab 7 at 55-58, Tab 23
6 For purposes of our analysis, we assume without deciding that the provisions of the
HSI Case Management Handbook constitute “rule(s)” under section 2302(b)(8)(A)(i).10
at 6-7, 14-15. However, the only documentary evidence of his actual emails
reflects that his expressed concerns were vague and conclusory. IAF, Tab 7
at 42-43,7 Tab 8 at 94, 102, Tab 24 at 31-32, 34, 37-38. Although the emails
express his “firm opinion” that an ICM case number was required for completion
of his work assignments, e.g., IAF, Tab 24 at 31, he does not identify any specific
law, rule, or regulation that he believed was being violated by failing to provide
an ICM case number, IAF, Tab 7 at 42-43; Tab 8 at 94, 102; Tab 24 at 31-32, 34,
37-38. Indeed, in one instance, his supervisor responded to his email containing
the disclosure with a request that the appellant “[p]lease help [him] understand
why [he] ke[pt] raising this as a concern,” which further supports that the alleged
violation was not identifiable or ascertainable under the circumstances. IAF,
Tab 24 at 36. This is not a situation in which the circumstances clearly implicate
an identifiable violation of law, rule, or regulation. Cf. Ayers, 123 M.S.P.R. 11,
¶ 24. We therefore conclude that the appellant did not establish that these emails
contained disclosures that he reasonably believed constitute protected disclosures
of any type of wrongdoing described under 5 U.S.C. § 2302(b)(8). See Rzucidlo,
101 M.S.P.R. 616, ¶ 13; see also Young v. Merit Systems Protection Board ,
961 F.3d 1323, 1328-29 (Fed. Cir. 2020) (agreeing with the administrative judge
that allegations that employees were taking longer breaks than were permitted and
that “no work was being done” were so general in nature that they did not rise to
the level of nonfrivolous allegations of wrongdoing under 5 U.S.C.
§ 2302(b)(8)(A)).
7 In his sworn OSC complaint, the appellant identified as protected disclosures a May 6,
2020 email to the then Deputy Special Agent in Charge (DSAC), a May 8, 2020 email
to the Assistant Special Agent in Charge (ASAC), and a July 10, 2020 email to the
DSAC and the ASAC, IAF, Tab 7 at 42-43, and provided excerpts of these emails. We
have considered these excerpts as evidence of the content of these emails.11
April 2021 “grievance escalation email” alleging a hostile work
environment
The appellant reported to OSC that he filed a grievance under agency
grievance procedures in May 2020 and escalated his claim of “discriminatory
harassment hostile work environment” in an April 2021 email. IAF, Tab 7 at 38,
50. He argued in his prehearing submission that he sent a “grievance escalation
email” in April 2021, regarding hostile work environment and retaliation
concerns. IAF, Tab 23 at 13. The agency submitted evidence of an April 2021
email, in which the appellant complained of “ongoing and continually escalating
hostile workplace environment/activities,” which he believed were
“fundamentally rooted in [r]etaliation.” IAF, Tab 24 at 106. The deciding
official, who received his email, requested clarification and expressed that it was
“still not clear to [him] what exactly is [the] grievance.” Id. at 105.
We find no indication in these emails that the appellant was seeking to
remedy whistleblower reprisal. IAF, Tab 25 at 105-07; see 5 U.S.C.
§ 2302(b)(9)(A)(i). Assuming that the appellant sought to oppose Title VII
discrimination or retaliation in this email, we have discerned no direct or
circumstantial evidence that any consideration prohibited under Title VII was a
motivating factor in his removal. See Pridgen, 2022 MSPB 31, ¶¶ 20-24, 30;
supra note 4, at 7.8 Thus, we find that the appellant has not proven an affirmative
defense based on his April 2021 email.
Emails in 2021 requesting to reopen a Department of Homeland Security
OIG complaint
The appellant reported to OSC that he opened an OIG complaint in
November 2017. IAF, Tab 7 at 38. In his prehearing submission, he asserted that
8 A claim of retaliation for exercising grievance rights outside the whistleblower
context, i.e., a prohibited personnel practice under 5 U.S.C. § 2302(b)(9)(A)(ii), is
evaluated under the Warren standard. See Warren v. Department of the Army , 804 F.2d
654, 656-58 (Fed. Cir. 1986). To the extent that the appellant has raised this claim, we
find that it is unproven because the appellant has not shown a genuine nexus between
retaliation for protected grievance activity and his removal. See id.12
he notified HSI management in November 2021 that he was a “[w]histleblower”
because he previously reported retaliation to OIG. IAF, Tab 23 at 17. He also
alleged that he sent an email request to OIG to reopen his complaint sometime in
the timeframe of February 1 to April 30, 2021, and again following his notice of
proposed removal in November 2021. IAF, Tab 23 at 7, 13, 17; PFR File, Tab 1
at 3. The Board has found that disclosures to an agency’s OIG constitute
protected activity under 5 U.S.C. § 2302(b)(9)(C) regardless of their content. See
Pridgen, 2022 MSPB 31, ¶ 62. We note, however, that the record contains no
documentary evidence of the appellant’s alleged OIG complaint from November
2017 or the appellant’s subsequent email requests to reopen the case in 2021.
Nevertheless, the record shows that the deciding official became aware of
at least some of his purported OIG activity in November 2021, when he received
his OSC complaint in response to the notice of proposed removal. IAF, Tab 7
at 23, 38; HR (testimony of the deciding official). Therefore, we find that the
contributing factor standard is established through the knowledge/timing test
concerning the appellant’s alleged activity under 5 U.S.C. § 2302(b)(9)(C). See
Salinas, 94 M.S.P.R. 54, ¶ 9.
Applying the Carr factors once more, we again find that the agency had
strong, legitimate reasons for the appellant’s removal and that this factor
continues to weigh in the agency’s favor. See supra p. 8. Regarding the second
Carr factor, we note an additional consideration as it pertains to the appellant’s
OIG complaint(s). The U.S. Court of Appeals for the Federal Circuit (Federal
Circuit) has instructed the Board to fully consider whether agency officials
possessed a “professional retaliatory motive” because the whistleblower’s
disclosures implicated agency officials and employees in general. See Soto v.
Department of Veterans Affairs , 2022 MSPB 6, ¶¶ 14-15 (discussing the Federal
Circuit’s decisions on this issue). A reasonable inference based on the evidence
here is that the deciding official presumed that the appellant’s OIG complaint,
like his OSC complaint, generally implicated the deciding official and others by13
alleging that they ignored the appellant’s concerns regarding ICM Case numbers
and continued to violate suspects’ constitutional rights. IAF, Tab 7 at 42-43,
49-50. However, the agency officials testified credibly and persuasively
regarding the propriety of their actions, and there is no indication that they
believed the appellant’s OIG complaint would reflect poorly on them or the
agency at large. HR (testimonies of the first-line supervisor, the CIO, and the
deciding official). Because there was no other evidence submitted concerning
any retaliatory motive, we do not infer one. Overall, there is only weak,
circumstantial evidence of a retaliatory motive. Finally, we again find that the
third Carr factor is a neutral factor because the record is devoid of comparator
evidence. See supra p. 9. Weighing all three factors, we find that the agency
proved by clear and convincing evidence that it would have taken the same
removal action absent the appellant’s purported OIG complaints. Finally,
considering the appellant’s alleged protected activity collectively, i.e., both his
EEO activity in May 2015 and his OIG complaints, our findings are unchanged.
Accordingly, we affirm the initial decision as modified and sustain the
appellant’s removal.
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
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.14
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. The15
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 file16
with the EEOC no later than 30 calendar days after your representative 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.10 The court of appeals must receive your
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. 17
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. 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 | Cogdell_RobertCH-0752-22-0133-I-1__Final_Order.pdf | 2024-05-13 | null | CH-0752-22-0133-I-1 | NP |
1,483 | https://www.mspb.gov/decisions/nonprecedential/Hudson_Kenneth_D_AT-3443-23-0144-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KENNETH HUDSON,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
AT-3443-23-0144-I-1
DATE: May 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kenneth Hudson , Byron, Georgia, pro se.
Christine Helms , Robins AFB, Georgia, 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 for lack of jurisdiction his appeal challenging his performance rating.
On petition for review, the appellant argues that the Board has jurisdiction
because the agency committed several prohibited personnel practices when it
issued his performance appraisal rating. Petition for Review File, Tab 1 at 5-7.
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).
¶2The 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). As explained by the
administrative judge, performance ratings are generally not appealable actions.
See Bambl v. Department of the Treasury , 113 M.S.P.R. 55, ¶ 9 (2010). The
appellant has not made a nonfrivolous allegation that any exception to this
general rule should apply to his appeal. In particular, his allegation that the
agency committed multiple prohibited personnel practices is not an independent
source of jurisdiction. See Wren v. Department of the Army , 2 M.S.P.R. 1, 2
(1980) (explaining 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).2
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Hudson_Kenneth_D_AT-3443-23-0144-I-1__Final_Order.pdf | 2024-05-13 | KENNETH HUDSON v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-3443-23-0144-I-1, May 13, 2024 | AT-3443-23-0144-I-1 | NP |
1,484 | https://www.mspb.gov/decisions/nonprecedential/Aubart_KevinSF-1221-20-0324-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEVIN AUBART,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
SF-1221-20-0324-W-1
DATE: May 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kevin Aubart , Honolulu, Hawaii, pro se.
Wendall Hall , Esquire, Fort Shafter, Hawaii, 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 in this
appeal. For the reasons set forth below, we DISMISS the appeal as settled.
¶2After the filing of the appellant’s petition for review, the agency submitted
a document entitled “Global Negotiated Settlement Agreement,” signed by the
parties on June 1, 2023. Petition for Review (PFR) File, Tab 8 at 11. The
document provides, among other things, that the appellant agreed to “waive 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).
right to pursue administrative or judicial action in any forum,” including, among
others, the Board, concerning any matters “which have occurred prior to the
execution of this agreement.” Id. at 7. On April 10, 2024, the Board issued an
order instructing the appellant to show cause why his appeal should not be
dismissed pursuant to the settlement agreement. PFR File, Tab 9. The appellant
did not file a response.
¶3Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146,
149 (1988). In addition, before accepting a settlement agreement into the record
for enforcement purposes, the Board must determine whether the agreement is
lawful on its face and whether the parties freely entered into it. See Delorme v.
Department of the Interior , 124 M.S.P.R. 123, ¶¶ 10-11 (2017 ).
¶4Here, we find that the parties have entered into a settlement agreement,
understand its terms, and agree that the agreement will not be entered into the
record for enforcement by the Board. PFR File, Tab 8 at 10-11. Accordingly, we
find that dismissing the appeal with prejudice to refiling (i.e., the parties normally
may not refile this appeal) is appropriate under these circumstances. As the
parties do not intend for the Board to enforce the terms of the settlement
agreement, we do not enter the settlement agreement into the record for
enforcement.
¶5Accordingly, we dismiss this appeal as settled. This is the final decision of
the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal
Regulations, section 1201.113 (5 C.F.R. § 1201.113). 2
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ____________________________ __
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Aubart_KevinSF-1221-20-0324-W-1__Final_Order.pdf | 2024-05-13 | KEVIN AUBART v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-1221-20-0324-W-1, May 13, 2024 | SF-1221-20-0324-W-1 | NP |
1,485 | https://www.mspb.gov/decisions/nonprecedential/Tarrab_AlanDC-1221-16-0401-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALAN TARRAB,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
DC-1221-16-0401-W-1
DATE: May 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alan Tarrab , Reston, Virginia, pro se.
Elizabeth A. Sorrells , 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 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 by
this Final Order to find that the appellant did not exhaust his administrative
remedies with OSC for two alleged disclosures, we AFFIRM the initial decision.
BACKGROUND
The appellant was a General Engineer for the agency’s Federal Railroad
Administration. Initial Appeal File (IAF), Tab 1 at 1.2 In July 2015, he filed a
complaint with the Office of Special Counsel (OSC), alleging that the agency had
just denied him a career ladder promotion in reprisal for whistleblowing. Id.
at 7-17. In January 2016, OSC terminated its inquiry and notified the appellant of
applicable Board appeal rights. Id. at 18. The instant IRA appeal followed. Id.
at 5.
Without holding the requested hearing, the administrative judge dismissed
the appeal for lack of jurisdiction. IAF, Tab 15, Initial Decision (ID). He found
that the appellant failed to nonfrivolously allege that he made protected
disclosures. ID at 4-9. The appellant has filed a petition for review. Petition for
2 The appellant began working for the agency in February 2015, and he left the agency
in October 2015, for a position with the Environmental Protection Agency. IAF, Tab 4
at 4-5, Tab 5 at 4, Tab 7 at 14, 26. The agency indicated that it no longer had access to
his electronic official personnel file to document his exact dates of employment, but
February to October 2015 is reflected in the appellant’s own filings in this case. IAF,
Tab 4 at 4, n.1, Tab 7 at 14, 26.2
Review (PFR) File, Tab 1. The agency has filed a response, and the appellant has
replied. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board lacks jurisdiction over matters that were not exhausted before OSC.
The Board has jurisdiction over an IRA appeal if the appellant exhausts his
administrative remedies before OSC and makes nonfrivolous allegations that:
(1) he made a disclosure described under 5 U.S.C. § 2302(b)(8), or engaged in
protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D);
and (2) the disclosure or protected activity was a contributing factor in the
agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302(a)(2)(A).3 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Yunus v. Department of
Veterans Affairs , 242 F.3d 1367, 1371 (Fed. Cir. 2001). As to the exhaustion
requirement, the Board may only consider the matters raised before OSC. Coufal
v. Department of Justice , 98 M.S.P.R. 31, ¶¶ 14, 18 (2004).
As evidence of exhaustion, the appellant submitted his initial complaint to
OSC, along with OSC’s subsequent closeout letter. IAF, Tab 1 at 7-19. OSC
summarized his detailed complaint as involving disclosures that the agency was
(1) delegating Government authority to private entities, (2) assigning inherently
Governmental functions to contractors, (3) violating the Paperwork Reduction
Act, (4) violating the Federal Advisory Committee Act, and (5) failing to obtain
special permits.4 Id. at 18. OSC also identified the alleged personnel action as
the denial of a career ladder promotion. Id.
In the IRA appeal proceedings, the appellant has described the number and
nature of his disclosures somewhat differently. Compare IAF, Tab 1 at 5, with
IAF, Tab 7 at 4-5. Most notably, in one of his pleadings, the appellant reported
3 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.
4 For the sake of clarity, we will use “(1)-(5)” to identify these alleged disclosures,
despite their varying descriptions throughout the pleadings in this appeal. See, e.g.,
IAF, Tab 1 at 5, Tab 7 at 4-5.3
making two additional disclosures. IAF, Tab 7 at 5. The first concerned alleged
abuses of authority regarding a traffic citation. Id. The second concerned an
alleged disclosure about whistleblower retaliation. Id.
On review, the appellant argues that the administrative judge failed to
address these two alleged disclosures. PFR File, Tab 1 at 7 (referencing IAF,
Tab 7 at 5). However, there is no evidence that the appellant raised these matters
with OSC. Neither disclosure is reflected in his initial complaint to OSC or in
OSC’s closeout letter.5 IAF, Tab 1 at 7-17. Although the appellant indicated that
he sent OSC additional information after his initial complaint, IAF, Tab 7 at 8, he
failed to identify what that information entailed or otherwise show that he raised
additional disclosures with OSC. Therefore, we modify the initial decision to
find that the Board lacks jurisdiction over these alleged disclosures because the
appellant has not proven exhaustion. See Miller v. Federal Deposit Insurance
Corporation, 122 M.S.P.R. 3, ¶¶ 6-10 (2014) (finding that the Board lacked
jurisdiction over an appellant’s new allegations of protected activity separate
from the activity that was the core of the retaliation claim described in his
submissions to OSC), aff’d, 626 F. App’x 261 (Fed. Cir. 2015); Coufal,
98 M.S.P.R. 31, ¶¶ 14, 18 (same).
Though not raised in his petition for review, at least one of the appellant’s
pleadings also suggested that the agency retaliated by coercing his resignation.
IAF, Tab 5 at 4. To the extent that the appellant intended to pursue that or any
other alleged personnel action in the instant appeal, it similarly falls outside the
Board’s jurisdiction because he has not shown that he exhausted the matter before
OSC. IAF, Tab 1 at 7-18.
5 We located the additional disclosures in a letter requesting reconsideration of a
performance evaluation. IAF, Tab 7 at 10-11. However, the letter is not signed or
dated, and the appellant has not shown that it was provided to OSC for purposes of
exhaustion. Id. On review, the appellant submitted additional correspondence with
OSC, but none of the correspondence references either of these two disclosures. PFR
File, Tab 4 at 9-14.4
The appellant did not nonfrivolously allege that he made protected disclosures.
As stated above, the appellant’s jurisdictional burden required that he
present nonfrivolous allegations that he made a disclosure described under
5 U.S.C. § 2302(b)(8), or engaged in protected activity described under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D). Supra; see Rebstock Consolidation v.
Department of Homeland Security , 122 M.S.P.R. 661, ¶ 12 (2015) (recognizing
that vague, conclusory, and unsupported allegations do not satisfy the Board’s
nonfrivolous pleading standard). A “disclosure,” for purposes of an IRA appeal
such as this, “does not include a communication concerning policy decisions that
lawfully exercise discretionary authority unless the employee or applicant
providing the disclosure reasonably believes that the disclosure evidences” the
type of misconduct listed in section 2302(b)(8). 5 U.S.C. § 2302(a)(2)(D).
Disclosure (1), the alleged improper delegation of Government
authority to private entities
According to the appellant’s pleadings, he disclosed that the agency
unlawfully delegated to the American Association of Railroads (AAR) the
authority to review and approve tank car equipment. IAF, Tab 1 at 10, 18.
However, the actual disclosure was included in a written report he authored,
indicating that his audit “reveal[ed] substantial problems and call[ed] into
question the legality and advisability of having AAR continue in its current role.”
IAF, Tab 7 at 12. Among other things, the report indicated that 49 C.F.R. § 179.3
vested the AAR with the power to approve tank cars, “without a clear showing of
statutory authority” to do so. Id. According to the appellant, the AAR lacked
sufficient staffing and could face pressures to act in a particular way when
reviewing and approving tank car equipment. Id. at 13. He concluded by stating
that “[w]hile the insourcing of the delegated function will require additional
resources, it may be the only way to stay within the law and provide reasonable
assurance of the safety of the valves involved.” Id.5
The administrative judge found that the agency had successfully advocated
that it could delegate its authority in a similar dispute before the U.S. Supreme
Court, a case specifically referenced in the appellant’s written report. ID at 6-7
(citing Department of Transportation , et al. v. Association of American
Railroads, 575 U.S. 43 (2015))6; IAF, Tab 7 at 12. He further found that the
appellant’s disclosure reflected a debatable policy disagreement, subject to
significant litigation. ID at 7. Therefore, the administrative judge found that the
appellant failed to nonfrivolously allege that this was a protected disclosure. ID
at 6-7, 9; see 5 U.S.C. § 2302(b)(8).
On review, the appellant asserts that he had a reasonable belief that
disclosure (1) reflected a violation of law. PFR File, Tab 1 at 4-5; see, e.g.,
Applewhite v. Equal Employment Opportunity Commission , 94 M.S.P.R. 300, ¶ 12
(2003) (recognizing that a whistleblower need not prove that the matter he
disclosed actually established any of the conditions described in section 2302(b)
(8); instead, he must make a nonfrivolous allegation that the matter he disclosed
was one that a reasonable person in his position would believe evidenced any of
these conditions). We have considered the appellant’s argument, but we disagree.
The test to determine whether the appellant had a reasonable belief that his
disclosure evidenced any of the types of wrongdoing identified in 5 U.S.C.
§ 2302(b)(8) is whether a “disinterested observer with knowledge of the essential
facts known to and readily ascertainable by the employee [could] reasonably
conclude that the actions of the government evidence[d]” such wrongdoing.
Applewhite, 94 M.S.P.R. 300, ¶ 12 (citing Lachance v. White , 174 F.3d 1378,
1381 (Fed. Cir. 1999)). Determining whether an employee had a reasonable
belief that a law, rule, or regulation was violated turns on the facts of a particular
6 In fact, the Court’s decision was not so simple. The Court ruled in favor of the agency
regarding one discreet issue—whether Amtrak was a government entity for some
specific delegation purposes—but remanded for the lower courts to consider other
questions that remained, including ones “implicating the Constitution’s structural
separation of powers and the Appointments Clause.” Association of American
Railroads, 575 U.S. at 46.6
case. Drake v. Agency for International Development , 543 F.3d 1377, 1381 (Fed.
Cir. 2008).
Here, the discovered the issue described in disclosure (1) just weeks after
he began working for the agency as a General Engineer. Supra n.2; IAF, Tab 7
at 5; see Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶ 12, n.5 (2015)
(recognizing that an appellant’s involvement and understanding of the subject
matter at issue may be considered in determining whether he established that he
had a reasonable belief that he disclosed a violation of law, rule, or regulation).
In addition, the appellant’s concerns were based on his own reading of
complicated Supreme Court precedent concerning the delegation of Governmental
authority, some of which had just been issued days earlier. IAF, Tab 7 at 5, 12;
see Webb, 122 M.S.P.R. 248, ¶ 12, n.5.
But even if we were to set those facts aside, the appellant has failed to
nonfrivolously allege that he made a protected disclosure because his disclosure
was essentially a statement why he thought the existing policy might pose legal
and practical problems. See supra. Put another way, the appellant could not have
reasonably believed that he was disclosing a violation of law by stating that he
was unsure whether the law was violated. Id. If we were to find otherwise, an
employee such as the appellant could gain whistleblower protections by simply
lacking relevant knowledge about a particular policy and how it relates to a
particular law, rule, or regulation, and asking another employee to explain.
Compare Webb, 122 M.S.P.R. 248, ¶¶ 7-8 (finding that an appellant failed to
present nonfrivolous allegations of protected disclosures when the alleged
disclosures occurred in the context of a general discussion and constituted policy
disagreement), with Ingram v. Department of the Army , 114 M.S.P.R. 43, ¶¶ 3,
17-18 (2010) (finding that an appellant made nonfrivolous allegations of a
protected disclosure when he took ethics concerns to the agency’s legal
department and later disclosed that an agency employee was acting against the
advice of the legal department and violating ethics regulations). 7
We are mindful of the Federal Circuit’s decision in Hessami v. Merit
Systems Protection Board , 979 F.3d 1362 (Fed. Cir. 2020). In that case, the court
explained that the Board’s jurisdictional determination in an IRA appeal “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.” Id. at 1369. But
the Board need not consider an appellant’s allegations “in a vacuum.” Id. at 1369
n.5. Therefore, we find it appropriate to look beyond the characterization of this
disclosure in the appellant’s pleadings, e.g., IAF, Tab 1 at 6, 10-11, Tab 7 at 4-5,
to consider the documents he attached, showing that his disclosure was not as he
has described, IAF, Tab 7 at 12-13.
We are also mindful that a disclosure can be protected, even if it concerns a
robustly debated policy decision. Hessami, 979 F.3d at 1370. Therefore, the fact
that the appellant’s disclosure concerned a policy decision by the agency—its
delegation of authority to the AAR—does not necessarily preclude coverage
under 5 U.S.C. § 2302(b)(8). Nevertheless, for the reasons explained above, we
agree with the administrative judge that the appellant did not make a nonfrivolous
allegation that he reasonably believed his disclosure about the agency’s policy
revealed a violation of law or any other category protected by section 2302(b)(8).
He instead made a policy recommendation, based on what he perceived as
“question[s about] the legality and advisability” of the existing policy. IAF,
Tab 7 at 12. In other words, the appellant did not disclose that he believed the
existing policy violated the law; he disclosed that the existing policy raised
complicated legal and practical questions—questions that might be avoided by
changing the existing policy. Therefore, he did not meet his jurisdictional burden
regarding disclosure (1).8
Disclosures (3), (4), and (5), concerning the Paperwork Reduction
Act, the Federal Advisory Committee Act, and the alleged failure to
obtain special permits
The appellant’s complaint to OSC suggested that there were additional
process problems stemming from the matter described in disclosure (1), including
ones described in disclosure (3), concerning the Paperwork Reduction Act, and
disclosure (5), concerning a failure to obtain special permits. IAF, Tab 1 at 10.
In the instant appeal, the appellant similarly connected problems described in
disclosure (4), concerning the Federal Advisory Committee Act, to the matter
outlined in disclosure (1).7 IAF, Tab 5 at 5-6, Tab 7 at 4.
The administrative judge found that pendant claims to disclosure (1) were
not protected because they also constituted policy disagreements.8 ID at 7. On
review, the appellant states that his alleged disclosures about the Paperwork
Reduction Act and the alleged failure to obtain special permits were not pendant
claims and should be deemed protected, even if disclosure (1) is not. PFR File,
Tab 1 at 6. However, we discern no basis for reaching a conclusion different than
that provided in the initial decision.
To the extent that the appellant suggests that he had a reasonable belief that
disclosures (3), (4), and (5) revealed the type of wrongdoing described section
2302(b)(8), PFR File, Tab 1 at 4-5, our discussion above similarly applies. To
illustrate, in disclosure (3), the appellant stated that “[t]he Paperwork Reduction[]
Act . . . applies to forms required to be submitted to third parties,” but “AAR’s
7 Disclosure (4) is not reflected in the appellant’s initial complaint to OSC. IAF, Tab 1
at 7-17. It is, however, identified in OSC’s closeout letter. Id. at 18. The appellant
further referenced disclosure (4) and the alleged violation of the Federal Advisory
Committee Act in the instant appeal, but did so without substantive explanation of the
alleged violation. IAF, Tab 5 at 5-6, Tab 7 at 4.
8 The administrative judge described the pendant claims to disclosure (1) as “problems
with the process,” mirroring the language used by the appellant. Compare ID at 7, with
IAF, Tab 1 at 10. He specifically identified the pendant claims as including disclosures
(3) and (4), without mentioning disclosure (5). ID at 7. Nevertheless, we find that
disclosure (5) is similarly incorporated as a pendant claim and “problem[] with the
process,” just as the appellant asserted in his complaint to OSC. IAF, Tab 1 at 10. 9
forms do not have OMB control numbers” and “the failure to go through the
OMB clearance process has resulted in substantive problems with the forms,”
including the forms having a superfluous field. IAF, Tab 7 at 12. In disclosure
(4), the appellant stated that “[w]hile understood in a historical context, legal
developments over the last century further call into question the legality of
[AAR’s] practices” because “the Federal Advisory Committee Act (enacted in
1972) requires that such committees be advisory only.” IAF, Tab 7 at 12. The
context here is key. Despite the appellant’s post hoc characterization of his
disclosures, it is apparent that he disclosed general concerns—concerns that were
at least tangentially related to various laws and that he believed might warrant a
change in policy. But there is no indication that he reasonably believed he had
disclosed a violation of law or any other type of wrongdoing described in section
2302(b)(8). Therefore, the appellant has failed to nonfrivolously allege that he
made protected disclosures. See Rebstock, 122 M.S.P.R. 661, ¶ 12; Webb,
122 M.S.P.R. 248, ¶¶ 7-8.
Disclosure (2), the alleged improper assignment of inherently
Governmental functions to contractors
Separate from his written report discussed above, the appellant alleged that
he disclosed “concerns regarding the use of contractors to perform inherently
governmental functions.” IAF, Tab 7 at 10. Specifically, the appellant alleged
that he revealed that the agency assigned a specific contract employee to
participate in the processing of One-Time Movement Approvals (OTMAs), a task
that he apparently sought to perform himself. IAF, Tab 1 at 10-11, Tab 7 at 10.
According to the appellant, the agency’s assignment of that task to a contract
employee implicates a regulation found at 48 C.F.R. § 7.503(c)(15). IAF, Tab 1
at 10-11, Tab 7 at 10. That regulation provides that “[c]ontracts shall not be used
for the performance of inherently governmental functions.” 48 C.F.R. § 7.503(a).
However, it also provides an agency with the authority to determine whether a
function is inherently Governmental, while also providing the Office of10
Management and Budget the authority to review those determinations. 48 C.F.R.
§ 7.503(a)-(b). The regulation includes examples of inherently Governmental
functions, including “[t]he approval of Federal licensing actions and inspections.”
48 C.F.R. § 7.503(c)(15) (emphasis added).
The administrative judge found that the appellant’s disclosure about a
contractor participating in the processing of OTMAs was not protected because
delegation was within the agency’s broad discretionary authority, pursuant to
48 C.F.R. § 7.503(b),9 and the appellant’s disclosure amounted to a policy
disagreement. ID at 7-9. He found that it was within the agency’s discretion to
consider an OTMA a temporary one-time permit, and not a “license” within the
scope of 48 C.F.R. § 7.503(c)(15). ID at 8.
On review, the appellant generally disagrees with the administrative
judge’s conclusion that an OTMA is not a “license,” within the scope of
48 C.F.R. § 7.503(c)(15). PFR File, Tab 1 at 6-7. He cites the definition of
“license” in 5 U.S.C. § 551(8), a statute that appears to have no relation to the
matter at hand, without further explanation. Id. The appellant also cites an
agency bulletin concerning OTMAs, generally, again without further explanation.
Id. at 4 (citing www.fra.dot.gov/eLib/Details/L04844). It is unclear whether the
statute or bulletin the appellant now relies on supports his arguments.
See Rebstock, 122 M.S.P.R. 661, ¶ 12. In any event, to the extent that the
appellant suggests that he also had a reasonable belief that he was disclosing a
violation in this disclosure, PFR File, Tab 1 at 4-5, our discussion above similarly
applies. The record suggests that the appellant was a new employee, questioning
many of the agency’s policy decisions and processes, generally. It does not
suggest that a disinterested observer in his position could reasonably believe that
he had disclosed the type of wrongdoing described in section 2302(b)(8).
Accordingly, we affirm the initial decision as modified.
9 The appellant was aware of 48 C.F.R. § 7.503, as evidenced by his discussion of it in
the written report he drafted, containing some of his disclosures. IAF, Tab 7 at 12. 11
NOTICE OF APPEAL RIGHTS10
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
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.12
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 any13
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (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’s14
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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. 15
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Tarrab_AlanDC-1221-16-0401-W-1__Final_Order.pdf | 2024-05-13 | ALAN TARRAB v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. DC-1221-16-0401-W-1, May 13, 2024 | DC-1221-16-0401-W-1 | NP |
1,486 | https://www.mspb.gov/decisions/nonprecedential/Gauff_SaraCH-0752-23-0211-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SARA GAUFF,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-0752-23-0211-I-1
DATE: May 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shannon Eckman , Esquire, Minneapolis, Minnesota, for the appellant.
Scott Lawrence , Esquire, Minneapolis, Minnesota, 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 in this
appeal, which dismissed her appeal as settled. For the reasons set forth below, we
GRANT the appellant’s petition for review, VACATE the initial decision which
dismissed the appeal as settled pursuant to the parties’ May 19, 2023 settlement
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
agreement, and DISMISS the appeal as settled pursuant to the parties’ revised
settlement agreement submitted to the Board on August 10, 2023.
¶2On May 19, 2023, the parties submitted a fully executed settlement
agreement, which provided, among other things, for the withdrawal of the
appellant’s Board appeal. Initial Appeal File (IAF), Tab 14 at 6. The
administrative judge issued an initial decision entering the May 19, 2023
settlement agreement into the record and dismissing this appeal as settled. IAF,
Tab 17, Initial Decision (ID). The initial decision became final on June 30, 2023,
when neither party filed a petition for review.2 ID at 3.
¶3On August 10, 2023, the appellant submitted a document entitled “Revised
Settlement Agreement and Release,” signed by both parties. Petition For Review
(PFR) File, Tab 1 at 4-10. The document provides, among other things, for the
dismissal of this appeal, and states that the revised settlement agreement
“supersedes conflicting terms contained within the [May 19, 2023 settlement
agreement].” Id. at 6, 9.
¶4The parties are requesting that the Board enter the revised settlement
agreement into the record for enforcement purposes, replacing the May 19, 2023
settlement agreement. Id. at 7, 9. While this is an unusual situation, we find that
entering the revised settlement agreement into the record at the parties’ mutual
request promotes the strong public policy favoring settlement. See Spahn v.
Department of Justice , 93 M.S.P.R. 195, ¶ 24 (2003) (characterizing the public
policy favoring settlement as strong) . Accordingly, we must vacate the initial
decision because although the administrative judge properly accepted the May 19,
2023 settlement agreement and dismissed the appeal, he did so based on what is
now an outdated settlement agreement.
2 The Board has found that untimeliness is not a bar to accepting a settlement agreement
into the record. See McNamee v. Veterans Administration , 39 M.S.P.R. 530, 533 (1989)
(explaining that possible untimeliness was not a bar to entering a settlement agreement
into the record, and the agency, in deciding to settle, abandoned its claim that the
appeal was untimely). 2
¶5Next, we must consider whether it is proper to enter the revised settlement
agreement into the record for enforcement purposes, and to dismiss the appeal as
settled. Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146,
149 (1988). In addition, before accepting a settlement agreement into the record
for enforcement purposes, the Board must determine whether the agreement is
lawful on its face and whether the parties freely entered into it. See Delorme v.
Department of the Interior , 124 M.S.P.R. 123, ¶¶ 10-11 (2017 ). Here, we find
that the parties have entered into the revised settlement agreement, understand its
terms, and intend for the agreement to be entered into the record for enforcement
by the Board. PFR File, Tab 1 at 7.
¶6Accordingly, we find that dismissing the appeal with prejudice to refiling
(i.e., the parties normally may not refile this appeal) is appropriate under these
circumstances. In addition, we find that the revised agreement is lawful on its
face and freely entered into, and we accept the revised settlement agreement into
the record for enforcement purposes. Therefore, we dismiss this appeal as settled
pursuant to the revised settlement agreement submitted to the Board on
August 10, 2023.
¶7This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
NOTICE TO THE PARTIES OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the3
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
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 | Gauff_SaraCH-0752-23-0211-I-1__Final_Order.pdf | 2024-05-13 | SARA GAUFF v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-0752-23-0211-I-1, May 13, 2024 | CH-0752-23-0211-I-1 | NP |
1,487 | https://www.mspb.gov/decisions/nonprecedential/Harper_AdrianDA-315H-23-0204-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ADRIAN HARPER,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-315H-23-0204-I-1
DATE: May 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Charles A. Kabrich , Holland, Texas, for the appellant.
Raqueal Jones and Linda C. Fleck , New Orleans, Louisiana, for the agency.
Justin Wade Sweat , Esquire, 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 his probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant primarily reargues that he should have been
provided with advance notice of his termination, been provided time to respond,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
and had his response considered prior to a final decision “in accordance with”
5 C.F.R. § 315.805, agency policy, and its collective bargaining agreement. He
also appears to suggest that he should have had the option of filing a grievance.
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 | Harper_AdrianDA-315H-23-0204-I-1__Final_Order.pdf | 2024-05-13 | ADRIAN HARPER v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-315H-23-0204-I-1, May 13, 2024 | DA-315H-23-0204-I-1 | NP |
1,488 | https://www.mspb.gov/decisions/nonprecedential/Breedlove_RachelAT-1221-22-0296-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RACHEL BREEDLOVE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-1221-22-0296-W-1
DATE: May 13, 2024
THIS ORDER IS NONPRECEDENTIAL1
Rachel Breedlove , Rock Hill, South Carolina, 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
REMAND 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. For
the reasons discussed below, we GRANT the appellant’s petition for review,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
VACATE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant is a GS-13 Lead Human Resources Specialist in the
Consolidated Classification Unit (CCU) of the agency’s Veterans Health
Administration’s Veterans Integrated Service Network (VISN) 16 in Ridgeland,
Mississippi. Initial Appeal File (IAF), Tab 1 at 1, Tab 4 at 136-37, Tab 13 at 59.
The appellant’s major duties include providing grading and classification services
to other offices within the agency. IAF, Tab 12 at 211-12. In this capacity, she
provides position evaluations, determines appropriate pay systems, occupational
grouping, titles, and grades of positions, as well as advises on position and
organization design. Id. We will refer to the supervisors of the CCU as
Supervisors A, B, and C. The appellant’s prior Board appeal concerned incidents
occurring while she was on Supervisor A’s team. Breedlove v. Department of
Veterans Affairs , MSPB Docket No. AT-1221-19-0402-W-1 (0402 Appeal), Final
Order at 2 (May 9, 2024) (0402 Final Order). During the incidents at issue in the
instant appeal, it appears the appellant was on Supervisor C’s team. IAF, Tab 1
at 15-16, Tab 12 at 39, 171-76, 181, 187.
On November 20, 2018, the appellant filed a complaint with the Office of
Special Counsel (OSC) alleging that the agency issued her an October 24, 2018
letter of admonishment (LOA) and rated her performance as “fully successful” on
the “teamwork” critical element for her 2017-2018 performance year, in
retaliation for protected disclosures she made during an October 2018 staff
meeting wherein she raised concerns about her supervisors and coworkers
misclassifying position descriptions. 0402 Appeal, Initial Appeal File (0402
IAF), Tab 1 at 411, 414, 651, 653 -55, 841-44. She subsequently filed an IRA
appeal with the Board in connection with her OSC complaint. 0402 IAF, Tab 1
at 1-7. The Board affirmed the initial decision which found that the appellant2
made protected disclosures that were a contributing factor in the two personnel
actions but found that the agency proved by clear and convincing evidence that it
would have taken the same personnel actions in the absence of the protected
activity. 0402 Final Order.
On October 16, 2020, the appellant filed another complaint with OSC
alleging that the agency provided her with less than fully successful mid -year
performance feedback on June 19, 2020, and proposed her removal on
October 13, 2020, in retaliation for filing her 2018 OSC complaint. IAF, Tab 1
at 14-19, Tab 4 at 6. She stated on her complaint form that, after the agency took
these actions, she sought review on October 15, 2020, with the agency’s Office of
Accountability and Whistleblower Protection (OAWP). IAF, Tab 1 at 12. On
March 31, 2022, OSC issued a letter notifying her that it had closed its
investigation into her claims and that she could file an appeal with the Board. Id.
at 54-55. The appellant then filed the instant IRA appeal. Id. at 3-4. She did not
request a hearing. Id. at 2.
The administrative judge notified the appellant of her jurisdictional burden
and ordered her to file evidence and argument on the jurisdictional issue. IAF,
Tab 3. In response, the appellant alleged that she made the following disclosures
and engaged in the following activities: she filed an OSC disclosure complaint
on November 20, 2018; she filed the 0402 Appeal on April 10, 2019; she sent an
email on July 20, 2020, requesting Supervisor C be removed from Federal
service; she filed the October 15, 2020 OAWP complaint discussed above;2 and
she filed the October 16, 2020 OSC whistleblower reprisal complaint discussed
above. IAF, Tab 4 at 5-6, 38-44, 123-25. According to the appellant, the agency
retaliated against her by issuing her the LOA on October 24, 2018; providing her
with a less than Fully Successful rating during her June 19, 2020 Fiscal Year
(FY) 2020 mid -year review; detailing her effective September 21, 2020;
2 The appellant did not provide a copy of her October 2020 OAWP complaint, and
indicated both October 15 and 16, 2020, as the filing date below. IAF, Tab 4 at 6, 23.
For the sake of clarity, we will use the earlier filing date of October 15, 2020. 3
proposing her removal on October 13, 2020; and rating her performance as
Unacceptable in her FY 2020 end-of-year performance review on December 6,
2020.3 IAF, Tab 4 at 7, 26-27, 113, 228, Tab 10 at 50-51, Tab 12 at 5-12, 171-76,
187; 0402 IAF, Tab 1 at 3, 29-20.
The administrative judge issued an initial decision dismissing the appeal
for lack of jurisdiction. IAF, Tab 18, Initial Decision (ID) at 1, 7. He found that
the appellant exhausted her OSC remedy as to all of her alleged activities and
personnel actions with the exceptions of her July 20, 2020 email and September
21, 2020 detail. ID at 3-4. He further found that, while the appellant
nonfrivolously alleged that she engaged in protected whistleblowing activity, she
had failed to nonfrivolously allege that her activities were a contributing factor in
the personnel actions at issue. ID at 4-7.
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 4-5. For the following reasons, we find that the appellant established
jurisdiction over her IRA appeal and remand this appeal to the regional office for
adjudication on the merits.
DISCUSSION OF ARGUMENTS ON REVIEW
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 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 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). McCray v. Department of the Army , 2023 MSPB 10, ¶ 11. Any doubt
or ambiguity as to whether the appellant made nonfrivolous jurisdictional
3 The appellant’s 2020 performance year, like the fiscal year, ran from October 1, 2019,
to September 30, 2020. IAF, Tab 4 at 221.4
allegations should be resolved in favor of finding jurisdiction. Skarada v.
Department of Veterans Affairs , 2022 MSPB 17, ¶ 6.
The appellant exhausted before OSC her claims that the agency retaliated against
her for filing a November 20, 2018 OSC disclosure complaint and the 0402
Appeal.
An employee seeking corrective action for whistleblower reprisal is
required to seek corrective action from OSC before seeking corrective action
from the Board. Chambers v. Department of Homeland Security , 2022 MSPB 8,
¶ 5. This requirement is met when an appellant has provided OSC with a
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. (citations
omitted). However, an appellant may give a more detailed account of her
whistleblowing activities before the Board than she did to OSC. Id. (citation
omitted). An appellant may demonstrate exhaustion through her initial OSC
complaint or correspondence with OSC. Id., ¶ 11. In the alternative, exhaustion
may be proven through other sufficiently reliable evidence, such as an affidavit or
declaration attesting that the appellant raised with OSC the substance of the facts
in her Board appeal. Id. (citation omitted). The appellant must prove exhaustion
with OSC by preponderant evidence, not just present nonfrivolous allegations of
exhaustion. Id. (citing 5 U.S.C. § 1214(a)(3); 5 C.F.R. § 1201.57(c)(1)).
Below, the administrative judge generally found that the appellant had
shown by preponderant evidence that she exhausted her administrative remedies
as to the alleged protected disclosures, activities, and personnel actions detailed
in OSC’s closure letter.4 ID at 3-4; IAF, Tab 1 at 54-55. We analyze each of
4 According to the March 31, 2022 closure letter from OSC, the appellant alleged that
the agency also retaliated against her for filing a 2018 complaint with her agency’s
Office of Inspector General (OIG). IAF, Tab 1 at 54. The administrative judge did not
make specific findings regarding the alleged OIG complaint. ID at 3-4. The appellant
did not indicate that she filed an OIG complaint in her 2020 OSC complaint. IAF,
Tab 4 at 23-29. Nor did she claim that she filed an OIG complaint below, and she again
does not do so on review. Id. at 5-10; PFR File, Tab 1. Based on the record before us,
we cannot conclude that it is more likely than not that the appellant alleged to OSC that5
those in turn, agreeing in part. For the purpose of our analysis, we discuss the
alleged disclosures, activities, and personnel actions in the order in which the
appellant alleges that they took place, except as noted below.
The October 24, 2018 letter of admonishment
The appellant exhausted before OSC her allegation that the agency
retaliated against her by issuing the October 24, 2018 LOA. IAF, Tab 1 at 54,
Tab 4 at 29. However, as correctly noted by the administrative judge, and as
confirmed by the appellant on review, she is not raising the LOA in the instant
appeal. PFR File, Tab 1 at 6 n.2; ID at 6 n.5; IAF, Tab 17 at 2. Therefore, we
will not consider it further.
The November 20, 2018 OSC disclosure complaint
The administrative judge found that the appellant exhausted before OSC
her allegation that the agency retaliated against her for filing a November 20,
2018 OSC disclosure complaint. ID at 3; IAF, Tab 1 at 54, Tab 4 at 24-25, 35,
38-44. We agree.
On review, the appellant alleges that she also raised to OSC what was
identified in OSC’s closure letter as “several disclosures regarding [the agency’s]
methods of classifying positions.” PFR File, Tab 1 at 9 n.4; IAF, Tab 1 at 54.
She alleges that she made these disclosures prior to filing her OSC complaint in
November 2018. PFR File, Tab 1 at 9 n.4. The OSC letter contains no other
specifics regarding these alleged disclosures. The appellant’s jurisdictional
response, below, did not address disclosures made during this time period. IAF,
Tab 1 at 54, Tab 4 at 5.
she filed an OIG complaint. See 5 C.F.R. 1201.4(q) (defining a preponderance of the
evidence as 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). Therefore, we find that she did not meet her burden to prove
she exhausted any such alleged protected activity.6
We need not determine if the appellant separately exhausted the disclosures
she previously raised in her November 20, 2018 OSC complaint. A complaint to
OSC is a protected activity under 5 U.S.C. § 2302(b)(9)(C) regardless of its
content. See Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 62
(explaining that disclosing information to OSC is a protected activity under
5 U.S.C. § 2302(b)(9)(C) regardless of the content of the disclosures). To the
extent the appellant is raising disclosures she made outside of her OSC disclosure
complaint, we find that she failed to exhaust them.
The appellant’s 0402 Appeal
The administrative judge found that the appellant exhausted her
administrative remedies as to the alleged protected activities listed in OSC’s
letter, which included the appellant’s prior Board appeal. We agree with the
administrative judge that the appellant proved she exhausted this activity. IAF,
Tab 1 at 54.
However, the administrative judge determined that he would not consider
the prior Board appeal further because the appellant did not include it in her
response to his order on jurisdiction. ID at 3-4 n.3; IAF, Tab 4 at 5-10. On
review, the appellant argues that she raised her prior Board appeal below. PFR
File, Tab 1 at 9 n.4. The issue of the Board’s jurisdiction is always before the
Board, and it may be raised by either party or sua sponte by the Board at any
time. Ney v. Department of Commerce , 115 M.S.P.R. 204, ¶ 7 (2010). Thus,
regardless of whether the appellant raised her prior Board appeal below, she may
do so on review.
The June 19, 2020 mid-year performance review, October 13, 2020
notice of proposed removal, and December 6, 2020 performance
appraisal
We discuss the appellant’s FY 2020 mid- and end-of-year performance
appraisals and her October 2020 proposed removal together because all three
matters relate to the appellant’s performance. IAF, Tab 4 at 221-29, Tab 127
at 5-11, 171-76, 181-86. The administrative judge noted that the appellant
asserted to OSC that, in retaliation for her protected activities, the agency gave
her a “less than fully successful rating during [her] mid-year appraisal for FY
2020, an Unacceptable rating on [her] FY2020 performance appraisal, and a
Proposed Removal . . . dated October 13, 2020” thereby implicitly finding that
she had exhausted these personnel actions. ID at 3 (quoting IAF, Tab 1 at 54).
We agree. ID at 4.
The July 20, 2020 email regarding Supervisor C
The administrative judge found that the appellant did not exhaust before
OSC her alleged disclosure in her July 20, 2020 email requesting Supervisor C’s
removal. ID at 3-4; IAF, Tab 1 at 6-25, 54-55, Tab 4 at 123-25. On review, the
appellant has not disputed this finding. PFR File, Tab 1 at 4. We discern no
basis to disturb the administrative judge’s finding and do not address it further on
review.
The September 18, 2020 detail
Similarly, the administrative judge found that the appellant had not
exhausted before OSC her allegation that the agency retaliated against her by
detailing her on September 21, 2020. ID at 3-4; IAF, Tab 1 at 54-55, Tab 4
at 24-30, 123-25. On review, the appellant has not disputed this finding. PFR
File, Tab 1 at 7. We discern no basis to disturb the administrative judge’s finding
and do not address it further on review.
The October 2020 OAWP complaint
The administrative judge found that the appellant exhausted before OSC
that she engaged in protected activity by filing an OAWP complaint. ID at 3-4.
We disagree. In her OSC complaint, the appellant identified contacting OAWP in
2020 as another action she had taken to remedy the agency’s alleged wrongdoing.
IAF, Tab 4 at 23. She did not allege that the agency was motivated by her OAWP8
complaint to take action against her. Id. at 24-30. Consistent with our
interpretation of her OSC complaint, OSC did not include the alleged OAWP
complaint in its closure letter. IAF, Tab 1 at 12, 54. Moreover, the appellant has
not alleged either below or on review, and the record does not support, that she
provided any additional information to OSC regarding the October 15, 2020
OAWP complaint, other than the date she filed it. IAF, Tab 4 at 6.
For the first time on review, the appellant provides documentation related
to a separate OAWP complaint that she filed on July 27, 2020 about Supervisor
C. PFR File, Tab 5 at 5, 10. She includes a copy of an OAWP closure notice,
dated August 2022, correspondence related to her Freedom of Information Act
request for her OAWP case documents, and a redacted OAWP decision. Id. at 5,
10-22, 34.5 Under 5 C.F.R. § 1201.115, the Board generally will not consider
evidence or argument 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. See Avansino v. U.S.
Postal Service, 3 M.S.P.R. 211, 213-14 (1980). However, we have considered the
appellant’s new evidence to the extent it impacts the Board’s jurisdiction. See
Ney, 115 M.S.P.R. 204, ¶ 7. While the appellant is permitted to provide more
detailed information before the Board than she did to OSC, the documents and
emails she provides on review are all dated in July and August 2022, which
postdate the March 31, 2022 OSC closure letter. IAF, Tab 1 at 54; PFR File,
Tab 5 at 10-34. She has not shown that she provided any of this information to
OSC thereafter. Thus, we find that OSC did not have a sufficient basis to
investigate the July 27, 2020 OAWP complaint, and the Board is precluded from
considering it. See Chambers, 2022 MSPB 8, ¶ 10.
5 She also attaches emails regarding her settlement discussions with the agency
concerning the instant appeal. PFR File, Tab 5 at 25-32. These discussions are not
relevant to jurisdiction, and therefore we have not considered them here.9
The October 16, 2020 OSC whistleblower reprisal complaint
The administrative judge found that the appellant exhausted before OSC
that she engaged in protected activity by filing her October 16, 2020 OSC
whistleblower reprisal complaint. ID at 3. We disagree. While the appellant
included the October 16, 2020 OSC complaint as a protected activity in her
jurisdictional response, IAF, Tab 4 at 9, it is this complaint that initiated the OSC
investigation and is the subject of the instant appeal, IAF, Tab 1 at 4. The
appellant has not alleged that she later amended her OSC complaint to include the
actual filing of the complaint as a protected activity and it is not included in
OSC’s closure letter. Id. at 54. Thus, we find that OSC did not have a sufficient
basis to investigate the filing of the October 16, 2020 OSC complaint and the
Board is therefore precluded from considering it. See Chambers, 2022 MSPB 8,
¶ 10.
In sum, we find that the appellant exhausted the following alleged
protected activities: filing the November 20, 2018 OSC disclosure complaint and
the 0402 Appeal in April 2019. We also find that the appellant exhausted the
following alleged personnel actions: the June 19, 2020 mid-year performance
review; the October 13, 2020 notice of proposed removal; and the December 6,
2020 performance appraisal.
The appellant has made nonfrivolous allegations that her November 20, 2018
OSC disclosure complaint and 0402 Appeal are protected activities under
5 U.S.C. § 2302(b)(9)(C) and 5 U.S.C. § 2302(b)(9)(A)(i).
We turn next to whether the appellant nonfrivolously alleged that she
engaged in a protected activity. McCray, 2023 MSPB 10, ¶ 11. 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); see 5 C.F.R. § 1201.4(s) (defining a
nonfrivolous allegation as an assertion that, if proven, could establish the matter
at issue). 10
As noted by the administrative judge, under 5 U.S.C. § 2302(b)(9)(C) it is a
prohibited personnel practice to take a personnel action against an employee for
“cooperating with or disclosing information to . . . the Special Counsel, in
accordance with applicable provisions of law.” ID at 5. As such, he found that
the appellant nonfrivolously alleged that she engaged in protected activity when
she filed her November 20, 2018 OSC complaint. Id. The parties do not dispute
this finding on review, and we discern no basis to disturb it.
Pursuant to 5 U.S.C. § 2302(b)(9)(A)(i), an appellant engages in protected
activity when she “exercise[s] . . . any appeal, complaint, or grievance right
granted by any law, rule, or regulation with regard to remedying a violation of
[5 U.S.C. § 2302(b)(8)].” Graves v. Department of Veterans Affairs ,
123 M.S.P.R. 434, ¶ 18 (2016) (quoting 5 U.S.C. § 2302(b)(9)(A)(i)). The
appellant sought to remedy reprisal for protected disclosures in her 0402 Appeal,
and thus it constituted protected activity under this provision. 0402 Final Order
at 2-3; see Elder v. Department of the Air Force , 124 M.S.P.R. 12, ¶ 40 (2016)
(stating that the appellant’s claim that the agency’s removal action was taken in
retaliation for his prior Board appeal, in which he had raised an affirmative
defense under 5 U.S.C. § 2302(b)(8), should be analyzed under 5 U.S.C.
§ 2302(b)(9)(A)(i)).
The appellant made a nonfrivolous allegation that her November 20, 2018 OSC
disclosure complaint and 0402 Appeal contributed to the June 19, 2020 mid-year
performance review, October 13, 2020 proposed removal, and December 6, 2020
performance appraisal.
To satisfy the contributing factor criterion at the jurisdictional stage an
appellant need only raise a nonfrivolous allegation that the fact of, or content of,
the protected disclosure or activity was one factor that tended to affect the
personnel action in any way. Chambers, 2022 MSPB 8, ¶ 14. One way to
establish this criterion is the knowledge/timing test, under which an employee
may nonfrivolously allege that the activity was a contributing factor in a
personnel action through circumstantial evidence, such as evidence that the11
official taking the personnel action knew of the activity, and that the personnel
action occurred within a period of time such that a reasonable person could
conclude that the activity was a contributing factor in the personnel action.6 Id.,
¶ 15; see 5 U.S.C. § 1221(e)(1).
Due to our findings on exhaustion, we need only consider whether the
appellant’s November 20, 2018 OSC disclosure complaint and subsequent 0402
Appeal were contributing factors in her 2020 performance assessments and
proposed removal. The administrative judge found that the alleged personnel
actions were too remote in time from the appellant’s November 2018 disclosure
complaint to satisfy the knowledge/timing test. ID at 6-7. Thus, he concluded
that the appellant failed to nonfrivolously allege that her disclosure complaint
was a contributing factor in these alleged personnel actions. ID at 5-7. Because
he found that the appellant did not raise her 0402 Appeal as an alleged personnel
action in the instant appeal, he did not make any findings regarding whether the
appellant met her jurisdictional burden as to that protected activity. We find that
the appellant has nonfrivolously alleged that both her OSC disclosure complaint
and her 0402 Appeal were contributing factors in all three alleged personnel
actions.
The Board has held that personnel actions taken within 1 to 2 years of the
protected activity satisfy the timing prong of the knowledge/timing test, but those
that take place more than 2 years after the activity are too remote to satisfy this
test. Pridgen, 2022 MSPB 31, ¶ 63; Agoranos v. Department of Justice ,
6 On review, the appellant asserts that she has a “mixed case” and references the Report
of Investigation submitted below which she generally alleges supports the contributing
factor element. PFR File, Tab 1 at 8. However, the Board’s IRA jurisdiction does not
extend to claims of discrimination arising under equal employment opportunity (EEO)
statutes unless the appellant testified, or otherwise assisted, in connection with someone
else’s complaint. McCray, 2023 MSPB 10, ¶¶ 18-30 (addressing this issue as it
concerns claims arising under the Rehabilitation Act of 1973); Edwards v. Department
of Labor, 2022 MSPB 9, ¶¶ 10-28 (addressing this issue as it concerns claims arising
under Title VII), aff’d, No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023).
Thus, the appellant’s EEO claims are not relevant to our jurisdictional determination
here. 12
119 M.S.P.R. 498, ¶ 21 (2013). Here, the appellant filed her OSC disclosure
complaint in November 2018 and her prior Board appeal in April 2019. She has
nonfrivolously alleged that less than 2 years later she received an unfavorable
mid-year review on June 19, 2020, and was issued a proposed removal in
October 13, 2020. Therefore, the appellant has nonfrivolously alleged that she
meets the timing prong of the knowledge/timing test as to these two personnel
actions. Further, the appellant has nonfrivolously alleged that she filed and
pursued her 0402 Appeal within 2 years of her December 6, 2020 performance
appraisal. Therefore, she has also nonfrivolously alleged that she meets the
timing prong as to this personnel action and her 0402 Appeal.
The only remaining question regarding timing is whether the appellant’s
December 6, 2020 performance appraisal was sufficiently proximate in time to
her November 2018 disclosure complaint. While actions occurring more than
2 years after a disclosure or activity are generally too remote to satisfy the timing
prong of the knowledge/timing test, the Board has found the timing prong can be
satisfied when an action was part of a continuum of related personnel actions,
some of which took place within 2 years of the disclosure or activity. Agoranos,
119 M.S.P.R. 498, ¶¶ 21-22. Here, the proposed removal and the appellant’s
December 2020 performance evaluation both refer to and rely on the agency’s
June 2020 assessment of the appellant’s performance. IAF, Tab 1 at 26-31, Tab 4
at 225-27. We find that this information in the record supports a finding that
there is a nonfrivolous allegation that all three personnel actions were part of the
same continuum beginning with the mid-year performance assessment and ending
with the end-of-year performance appraisal. Therefore, we find that the appellant
has satisfied the timing prong of the knowledge/timing test for purposes of
jurisdiction.
We also determine that the record contains sufficient allegations to satisfy
the knowledge prong of the knowledge/timing test at the jurisdictional stage. The
knowledge prong can be established with allegations of either actual or13
constructive knowledge. Abernathy v. Department of the Army , 2022 MSPB 37,
¶ 15. In her November 20, 2018 OSC disclosure complaint, the appellant accused
her Supervisors A, B, and C of misclassifying positions. IAF, Tab 4 at 42. These
supervisors are the same officials involved in the 0402 Appeal and all three
supervisors testified at that hearing. 0402 IAF, Tab 23 at 4-10, Tab 36, Hearing
Recording, Day 1, Track 1 (testimony of Supervisor A), Track 4 (testimony of
Supervisor C), Track 5 (testimony of Supervisor B). Therefore, they had
knowledge of her appeal. Further, the appellant submitted into the record in that
appeal a copy of her November 20, 2018 OSC disclosure complaint. 0402 IAF,
Tab 4 at 42-49. We find that this is sufficient to infer, for purposes of
jurisdiction, that they had knowledge of the November 20, 2018 OSC disclosure
complaint as well. The less than fully successful FY 2020 mid-year performance
feedback on June 19, 2020, was issued by Supervisor C. IAF, Tab 12 at 171-76.
The December 6, 2020 end -of-year performance appraisal was also issued by
Supervisor C, and was approved by the Chief Human Resources Officer. IAF,
Tab 4 at 228. This is sufficient to establish the knowledge prong of the
knowledge/timing test at the jurisdictional stage for both performance
assessments.
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.
Abernathy, 2022 MSPB 37, ¶ 15. The October 13, 2020 proposed removal was
issued by the Chief Human Resources Officer. IAF, Tab 1 at 26-32. In the notice
of proposed removal, the appellant was charged with conduct unbecoming a
Federal employee for failure to comply with instructions given by Supervisor C.
Id. at 26. She was also charged with unacceptable performance due to the
deficiencies identified in the June 19, 2020 mid-year performance review by
Supervisor C as well as subsequent deficiencies, some of which occurred while
working with Supervisor B. Id. at 26-31. At the jurisdictional stage, we find that14
the fact that the appellant’s removal was proposed in connection with incidents
involving Supervisors B and C, whom she has nonfrivolously alleged had
knowledge of her protected activity, is sufficient to establish constructive
knowledge on the part of the Chief Human Resources Officer. Thus, we find that
the appellant has raised a nonfrivolous allegation that filing her November 20,
2018 OSC disclosure complaint and pursuing her 0402 Appeal were contributing
factors in her less than fully successful FY 2020 mid-year performance feedback,
proposed removal on October 13, 2020, and an Unacceptable performance rating
in her FY 2020 end -of-year performance appraisal.
We need not determine whether the administrative judge abused his discretion in
light of our decision to remand the appeal.
On review, the appellant argues that the administrative judge abused his
discretion by ordering her to respond to discovery at the jurisdictional stage. PFR
File, Tab 1 at 10, IAF, 17 at 1. An administrative judge has broad discretion in
ruling on discovery matters and, absent a showing of abuse of discretion, the
Board will not find reversible error in such rulings. Sobczak v. Environmental
Protection Agency , 64 M.S.P.R. 118, 122 (1994). The Board has found that, to be
entitled to discovery in an IRA appeal, an appellant must set forth nonfrivolous
jurisdictional allegations. Id.; see Davis v. Department of Defense , 103 M.S.P.R.
516, ¶ 13 (2006) (finding no prejudice to an appellant’s substantive rights when
the administrative judge did not rule on his motions to compel because, as
relevant here, the determination of whether an appellant has exhausted his
remedies with OSC is typically made based on his submissions to OSC, which
were in his possession and included in the record below).
Similarly, here, we question whether requiring the appellant to provide
discovery responses was appropriate. 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 1369.15
Thus, to the extent the agency sought to obtain evidence contradicting the
appellant’s factual assertions and defeating a jurisdictional finding, the Board
could not consider such evidence. IAF, Tab 14 at 9-15. Further, to the extent the
agency sought information regarding the merits of her claims, it would not have
been able to rely on such evidence unless jurisdiction was resolved. Id.
However, we need not resolve here whether the administrative judge abused his
discretion. An adjudicatory error that is not prejudicial to a party’s substantive
rights provides no basis for reversal of an initial decision . Panter v. Department
of the Air Force , 22 M.S.P.R. 281, 282 (1984). Here, we have found jurisdiction
and are remanding the appeal for further adjudication. Therefore, the appellant
has not been harmed by any error.
The appellant also alleges that the administrative judge erred in dismissing
her appeal for lack of jurisdiction and argues it should have been decided on the
entire record because she did not request a hearing. PFR File, Tab 1 at 10.
However, the Board must first resolve the threshold issue of jurisdiction before
proceeding to the merits of an appeal. Schmittling v. Department of the Army ,
219 F.3d 1332, 1337 (Fed. Cir. 2000). Here, the administrative judge has not yet
given the parties an opportunity to address the merits of her claims. See Rittgers
v. Department of the Army , 123 M.S.P.R. 31, ¶ 5 (2015) (explaining that
determining when to close the record is within an administrative judge’s sound
discretion, but such discretion must comport with basic requirements of fairness
and notice). Because we are finding jurisdiction and remanding this appeal for
adjudication on the merits, our ruling here effectively provides the appellant with
her requested remedy and her determination on the merits will be made on
remand.
Conclusion
In sum, we find that the appellant has established jurisdiction over her IRA
appeal. Specifically, the appellant exhausted before OSC her allegations that she
engaged in protected activity by filing the November 20, 2018 OSC disclosure16
complaint and the 0402 Appeal. The appellant also exhausted before OSC the
following alleged personnel actions: the June 19, 2020 mid-year performance
review; the October 13, 2020 notice of proposed removal; and the December 6,
2020 performance appraisal. The appellant nonfrivolously alleged that her
November 20, 2018 OSC disclosure complaint and 0402 Appeal are protected
activities under 5 U.S.C. § 2302(b)(9)(C) and 5 U.S.C. § 2302(b)(9)(A)(i).
Finally, the appellant nonfrivolously alleged that her protected activity
contributed to the June 19, 2020 mid-year performance review, October 13, 2020
proposed removal, and December 6, 2020 performance appraisal.
Thus, we grant the appellant’s petition for review and vacate the initial
decision, which dismissed the appeal for lack of jurisdiction. We remand the
appellant’s IRA appeal for further adjudication, as explained below.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. On remand, the
administrative judge shall provide for a hearing, or provide the parties with an
opportunity to file additional evidence and argument before deciding the appeal
on the written record. The administrative judge shall then issue a new initial
decision deciding the following issues: (1) whether the appellant established by
preponderant evidence that she engaged in protected activity by filing the
November 20, 2018 OSC disclosure complaint; (2) whether the appellant
established by preponderant evidence that she engaged in protected activity by
filing the 0402 Appeal in April 2019; and (3) whether the appellant established by
preponderant evidence that a protected activity was a contributing factor in the
following alleged personnel actions: the June 19, 2020 mid-year performance
review; the October 13, 2020 notice of proposed removal; and the December 6,
2020 performance appraisal. If the administrative judge finds that the appellant
has established a prima facie case of whistleblower reprisal, then the17
administrative judge shall determine whether the agency established by clear and
convincing evidence that it would have taken the personnel actions identified in
(3) above in the absence of any protected activity by the appellant.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.18 | Breedlove_RachelAT-1221-22-0296-W-1__Remand_Order.pdf | 2024-05-13 | RACHEL BREEDLOVE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-22-0296-W-1, May 13, 2024 | AT-1221-22-0296-W-1 | NP |
1,489 | https://www.mspb.gov/decisions/nonprecedential/McCardle_TrevorSF-0752-15-0230-X-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TREVOR MCCARDLE,
Appellant,
v.
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Agency.DOCKET NUMBER
SF-0752-15-0230-X-1
DATE: May 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cori M. Cohen , Esquire, and Stephanie M. Herrera , Esquire, Silver Spring,
Maryland, for the appellant.
Holly V. Franson , Esquire, Denver, Colorado, for the appellant.
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Yolanda Acuna , South Gate, California, for the appellant.
Anabia Hasan , Esquire, Alexandra Schwartzman , and Natasja D. H. Handy ,
Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
FINAL ORDER
This case is before the Board pursuant to the May 24, 2023 compliance
initial decision of the administrative judge, which found the agency not in
compliance with the Board’s January 6, 2023 nonprecedential Final Order.
McCardle v. Equal Employment Opportunity Commission , MSPB Docket No.
SF-0752-15-0230-C-1, Compliance File (CF), Tab 8, Compliance Initial Decision
(CID); McCardle v. Equal Employment Opportunity Commission , MSPB Docket
No. SF-0752-15-0230-I-1, Final Order (Jan. 6, 2023) (Final Order). For the
reasons set forth below, we find the agency in compliance and DISMISS the
petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
On January 2, 2015, the appellant appealed his indefinite suspension.
McCardle v. Equal Employment Opportunity Commission , MSPB Docket No.
SF-0752-15-0230-I-1, Initial Appeal File (IAF), Tab 1. On December 28, 2015,
the administrative judge cancelled the appellant’s suspension and ordered that he
be retroactively restored to his position and paid the appropriate amount of back
pay, but found that the appellant failed to prevail on his affirmative defenses of
reprisal for whistleblowing and Equal Employment Opportunity activities, as well
as his claim that his Fourth Amendment rights were violated. IAF, Tab 74, Initial
Decision at 11, 18-19.
The agency filed a petition for review, and the appellant filed a
cross-petition for review. McCardle v. Equal Employment Opportunity
Commission, MSPB Docket No. SF-0752-15-0230-I-1, Petition for Review File,
Tabs 3, 15. On January 6, 2023, the Board issued its Final Order, ordering the
agency to rescind the indefinite suspension, restore the appellant effective
December 8, 2014, and pay the appellant the appropriate amount of back pay,
interest on the back pay, and other benefits. Final Order at 23. The Board also
took official notice that the appellant had passed away on August 4, 2019, and his
2
counsel had untimely moved to substitute his current wife, Yolanda Acuna, as his
“sole beneficiary.” Id. at 1, n.1. The Board further held that though the motion
for substitution was untimely, “we find it appropriate to continue with the
processing of [the] appeal. Both Ms. Acuna and Mr. McCardle will be referred to
as ‘the appellant.’” Id.
On April 14, 2023, the substitute party appellant filed a petition for
enforcement, contending that the agency had not yet fulfilled the Board’s order to
pay her the appropriate amount of back pay and interest. CF, Tab 1. On
April 20, 2023, the agency filed a “request for guidance re backpay,” explaining
that, although Ms. Acuna was now a substituted party, in 2010, the appellant had
signed a Standard Form 1152 (SF-1152), entitled “Designation of
Beneficiary-Unpaid Compensation of Deceased Civilian Employee,” which
designated his then-wife, Monica McCardle (now Monica Gaya), as his
beneficiary. CF, Tab 3 at 21. The agency requested “guidance from the Board as
to how to properly direct payment to the Appellant’s estate.” Id. at 6. On the
same day, the administrative judge issued an opinion denying the agency’s
request for guidance, because “the Board is prohibited from issuing advisory
opinions.” CF, Tab 4 at 1.
On May 24, 2023, the administrative judge issued a compliance initial
decision, holding that the agency “failed to meet its burden of proving it has
complied with the Board’s final order to pay the appellant the correct amount of
back pay, interest on back pay, and other benefits for the indefinite suspension
period at issue that was effective December 28, 2014.” CID at 11.2
2 The compliance initial decision informed the agency that, if it decided to take the
actions required by the decision, it must submit to the Clerk of the Board, within the
time limit for filing a petition for review under 5 C.F.R. § 1201.114(e), a statement that
it has taken the actions identified in the compliance initial decision, along with
evidence establishing that it has taken those actions. CID at 11-12; see 5 C.F.R.
§ 1201.183(a)(6)(i). The compliance initial decision also informed the parties that they
could file a petition for review if they disagreed with the compliance initial decision.
CID at 12-13; see 5 C.F.R. §§ 1201.114(e), 1201.183(a)(6)(ii). Neither party petitioned
for review of the compliance initial decision.
3
On June 6, 2023, the agency submitted a “Response Demonstrating
Compliance With Board’s May 24, 2023 Order.” McCardle v. Equal Employment
Opportunity Commission , MSPB Docket No. SF-0752-15-0230-X-1, Compliance
Referral File (CRF), Tab 1. The agency provided evidence that it had issued the
ordered back pay in the amount of $74,003.11 to the appellant’s designated
beneficiary, Ms. Gaya. Id. at 5, 17-26. The agency also attached correspondence
from the Office of Personnel Management to the agency stating that 5 U.S.C.
§ 5582 and 5 C.F.R. § 178.204 require the agency to pay the money due the
appellant to the designated beneficiary. Id. at 7. Following the agency’s
submission, the Office of the Clerk of the Board issued an Acknowledgement
Order notifying the parties that a new docket number had been assigned
(reflecting the referral of the matter to the Board for a final compliance
determination) and notifying the substitute appellant of her right to respond to the
agency’s submission within 20 days. CRF, Tab 2 at 1-2.
On June 14, 2023, Ms. Acuna submitted her “Response to
Acknowledgement Order.” CRF, Tab 3. In her response, Ms. Acuna contends
that the agency has not complied with the Board’s Final Order because it issued
the back pay to the wrong person. Id. at 5-6. She argues the appellant’s SF-1152
form does not govern the payment of back pay because back pay is not governed
by 5 U.S.C. § 5582, but instead by 5 U.S.C. § 5596 (“Back pay due to unjustified
personnel action”). Id.
On June 27, 2023, the agency submitted a reply to appellant’s response,
arguing that the SF-1152 was in full force and effect unless the appellant
expressly revoked it in writing, transferred to another agency, or was reemployed
by the same or another federal agency or department, none of which had occurred.
CRF, Tab 5 at 5.
On June 28, 2023, Ms. Acuna filed an “Appellant's Objection and Reply to
Agency's June 27, 2023 Response” contending that “a retirement specialist” she
had consulted stated that the SF-1152 “has nothing to do with backpay for an
4
MSPB case” but instead “is used to ‘clean up’ all incidentals of pay due as a
result of a government employee’s death.” CRF, Tab 6 at 4-5.
ANALYSIS
The agency bears the burden of proving that it has complied with a Board
order. Mercado v. Office of Personnel Management , 115 M.S.P.R. 65, ¶ 4 (2010).
The agency is required to produce relevant, material, and credible evidence of
compliance in the form of documentation or affidavits. Spates v. U.S. Postal
Service, 70 M.S.P.R. 438, 443 (1996). The appellant may rebut the agency's
evidence of compliance by making “specific, nonconclusory, and supported
assertions of continued noncompliance.” Brown v. Office of Personnel
Management, 113 M.S.P.R. 325, ¶ 5 (2010).
Here, the agency’s outstanding compliance issue was to pay the appropriate
amount of back pay and interest on the back pay. CID at 11. The agency has
submitted a narrative statement, supported by evidence, explaining that it has
provided the designated beneficiary with all back pay and benefits owed. CRF,
Tab 1 at 17-26. Neither party has contested the agency’s calculations or its
evidence that the resulting payment was issued. The only question remaining is
whether Monica Gaya, the designated beneficiary on the apparently valid
SF-1152 form signed by the appellant, is the appropriate recipient of the back pay
and benefits. We hold that she is.
5 U.S.C. § 5582(b) and 5 C.F.R. § 178.204 provide an order of precedence
for “money due an employee at the time of his death.” The first in the order of
preference is “the beneficiary or beneficiaries designated by the employee in a
writing received in the employing agency before his death.” Here, the appellant’s
SF-1152 Designation of Beneficiary form, which states that it applies to “unpaid
compensation due and payable after [the employee’s] death,” designated
Ms. Gaya as his beneficiary.
5
Ms. Acuna does not contest that the beneficiary form designated Ms. Gaya,
but argues that although the form is otherwise valid, it should not control,
because back pay is not “unpaid compensation,” but “represents money owed to
[the appellant] which has nothing to do with his death or money earned just prior
to his death.” CRF, Tab 3, at 5-6. We find, however, that back pay is “unpaid
compensation,” and thus falls within the definition of “money due” to the
appellant at the time of his death under 5 U.S.C. § 5581(2) and 5 C.F.R.
§ 178.202(b). See Bario v. Department of Justice , 9 M.S.P.R. 170, 173 (1981)
(“Under 5 U.S.C. §§ 5583(a) and 5596, any back pay that might be owed to the
appellant as the result of this appeal would be payable to the appellant’s widow,
since the appellant apparently never designated another beneficiary”); cf. Equal
Employment Opportunity Commission v. Baltimore County , 904 F.3d 330, 332 n.3
(4th Cir. 2018) (back pay generally encompasses the compensation an employee
would have received but for the employer’s violation of law); Noel v. New York
State Office of Mental Health Central New York Psychiatric Center , 697 F.3d
209, 213 (2d Cir. 2012) (Title VII judgments for back pay are “wages” as defined
under the Internal Revenue Code). Accordingly, we hold that the agency properly
paid the back pay amount to the appellant’s designated beneficiary, Ms. Gaya,
and not to Ms. Acuna.
For the reasons discussed above, we find the agency in compliance and
DISMISS the petition for enforcement. This is the final decision of the Merit
Systems Protection Board in this compliance proceeding. Title 5 of the Code of
Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
6
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
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
NOTICE OF APPEAL 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.
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 on
8
race, 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
9
other protected activities listed in 5 U.S.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.
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 | McCardle_TrevorSF-0752-15-0230-X-1__Final_Order.pdf | 2024-05-13 | TREVOR MCCARDLE v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, MSPB Docket No. SF-0752-15-0230-X-1, May 13, 2024 | SF-0752-15-0230-X-1 | NP |
1,490 | https://www.mspb.gov/decisions/nonprecedential/Tran_Nguyen_Lan_T_SF-0842-18-0369-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAN THI TRAN NGUYEN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0842-18-0369-I-1
DATE: May 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lan Thi Tran Nguyen , La Habra, California, pro se.
Jo Bell , 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 a decision of the Office of Personnel Management (OPM) denying her
request for a deferred annuity. 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).
The appellant filed an appeal challenging OPM’s final decision denying her
application for a deferred annuity under the Federal Employees Retirement
System (FERS). Initial Appeal File (IAF), Tab 1. On May 25, 2018, the
administrative judge issued an initial decision affirming OPM’s decision, finding
that the appellant failed to prove by a preponderance of the evidence that she had
5 years of creditable civilian service at the time of her separation necessary to be
entitled to a deferred FERS annuity. IAF, Tab 18. On February 1, 2019, the
appellant filed a petition for review. Petition for Review (PFR) File, Tabs 1, 4.
The Board’s regulations provide that a petition for review must be filed
within 35 days of the date of issuance of the initial decision, or if the party filing
the petition shows that the initial decision was received more than 5 days after it
was issued, within 30 days after the party received the initial decision. 5 C.F.R.
§ 1201.114(e). Here, the initial decision was issued via electronic mail on
May 25, 2018, and clearly notified the appellant that the deadline for filing a
petition for review was June 29, 2018. IAF, Tabs 18-19. Thus, the appellant’s
February 1, 2019 petition for review was over 7 months untimely.2
The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the delay in filing. 5 C.F.R. §§ 1201.113(d),
1201.114(g). To establish good cause for the untimely filing, a party must show
that she exercised due diligence or ordinary prudence under the particular
circumstances of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R.
180, 184 (1980). The appellant has filed a motion to accept the petition for
review as timely filed or to set aside the deadline in which she asserts that she did
not file her petition within the deadline because she was overseas, tired of
litigation, and it was too expensive.3 PFR File, Tab 5 at 8. We are not persuaded
2 The appellant does not contend that she received the initial decision more than 5 days
after it was issued.
3 The appellant has also filed a motion to submit an additional pleading. PFR File,
Tab 7. We deny the appellant’s motion to the extent it does not appear to raise facts
material to the timeliness issue in this appeal. See 5 C.F.R. 1201.114(a), (k).2
that these assertions warrant a waiver of the deadline for filing a petition for
review. See, e.g., Melendez v. Department of Homeland Security , 112 M.S.P.R.
51, ¶¶ 13-14 (2009) (finding that vacations and other such competing time
demands do not constitute good cause for an untimely filing); Lawson v.
Department of Homeland Security , 102 M.S.P.R. 185, ¶ 6 (2006) (finding no good
cause for an untimely petition where the appellant alleged that he lacked the
financial resources to hire an attorney to represent him). 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 affirming OPM’s final
decision.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
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
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain4
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 5
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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 | Tran_Nguyen_Lan_T_SF-0842-18-0369-I-1__Final_Order.pdf | 2024-05-13 | LAN THI TRAN NGUYEN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0842-18-0369-I-1, May 13, 2024 | SF-0842-18-0369-I-1 | NP |
1,491 | https://www.mspb.gov/decisions/nonprecedential/Kuilan_BenignaCH-0752-18-0408-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BENIGNA KUILAN,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
CH-0752-18-0408-I-1
DATE: May 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Steve Newman , Esquire, New York, New York, for the appellant.
Kathleen D. Crawford , Esquire, and 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 the Federal service. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to apply the disparate penalty analysis set forth in Singh v. U.S.
Postal Service, 2022 MSPB 15, we AFFIRM the initial decision.
BACKGROUND
At all times relevant to the present appeal, the appellant held the position
of Customer Service Manager at the Roselle Branch of the Schaumburg Post
Office. Initial Appeal File (IAF), Tab 3, Tab 6 at 71, Tab 18 at 4. The agency
removed her based on the following charges: (1) unacceptable conduct (misuse
of U.S. Postal Service postage) and (2) providing false information during an
official investigation. IAF, Tab 6 at 36-42, 73-77. The unacceptable conduct
charge, which the deciding official sustained, related to a March 2017 incident in
which the appellant, the senior official at the post office, reused postage on two
packages and instructed a subordinate employee to process the packages. IAF,
Tab 6 at 36-38, 73-76, 102-27, Tab 18 at 5-6. The deciding official also sustained
the charge of providing false information during an official investigation, finding
that the appellant had made statements during a predisciplinary interview that
contradicted those made to the Office of Inspector General (OIG) special agents
in which the appellant had admitted to the misconduct. IAF, Tab 6 at 37-38,
122-23, Tab 18 at 5-6.2
The appellant timely appealed her removal. IAF, Tabs 1, 3. After holding
a hearing, the administrative judge issued an initial decision affirming the
appellant’s removal. IAF, Tab 21, Initial Decision (ID) at 1, 20. The
administrative judge found that the agency proved the charge of unacceptable
conduct by preponderant evidence,2 making detailed credibility findings regarding
the testimony of the appellant, deciding official, the OIG special agents who
conducted the investigation into the alleged misconduct, and another agency
employee who testified regarding similar behavior by the appellant at another
post office. ID at 3-11. She gave no weight to the absence of video evidence of
the appellant’s misconduct, despite the appellant’s argument that the agency’s
failure to produce such evidence was “suspect,” noting that the existence of any
such evidence was disputed by the agency. ID at 9 -10. The administrative judge
did not sustain the charge of providing false information during an official
investigation, finding that the predisciplinary interview and oral reply during
which the appellant provided contradictory statements to those she made to OIG
investigators were not part of an official investigation. ID at 11 -12.
Regarding the appellant’s affirmative defenses, the administrative judge
found that the appellant had waived her due process allegation by not addressing
the issue at the hearing and had failed to show by preponderant evidence that
discrimination on the basis of national origin (Hispanic) was a motivating factor
in her removal. ID at 13-15. The appellant had alleged that she was subjected to
disparate treatment compared to an African-American employee who had engaged
in varied misconduct and had received lesser discipline. IAF, Tab 11 at 4-5. The
administrative judge credited the testimony of the proposing and deciding
officials that they did not make their respective decisions based on any
discriminatory animus and found that nothing in the record rebutted their
testimony. ID at 15. Finally, the administrative judge found that the agency had
2 A preponderance of the evidence is that degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q). 3
established a nexus between the appellant’s misconduct and the efficiency of the
service and that the penalty of removal was reasonable. ID at 15-19.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant alleges that she was prejudiced by the agency’s
failure to provide video evidence of the incident that led the agency to propose
and effectuate her removal. Petition for Review (PFR) File, Tab 1 at 3. She
repeats her disparate penalty claim and asserts that the alleged comparator
employee was given only a letter of warning for engaging in misconduct that
caused a financial loss to the agency. Id. at 4. The appellant asserts that the
administrative judge did not adequately consider her almost 18 years of Federal
service with a “clear record” and her “word” that she did not engage in the
alleged misconduct in upholding the agency’s penalty. Id. at 5. Finally, she asks
that the Board mitigate the penalty of removal to a demotion. Id. at 6.
The appellant has failed to provide a basis for disturbing the administrative
judge’s finding sustaining the charge of unacceptable conduct.
As stated in the initial decision, the charge of unacceptable conduct has no
specific elements of proof but rather is established by proving that the employee
committed the acts alleged. ID at 3 (citing Alvarado v. Department of the Air
Force, 103 M.S.P.R. 1, ¶ 22 (2006), aff’d, 626 F. Supp. 2d 1140 (D.N.M. 2009),
aff’d, 490 F. App’x 932 (10th Cir. 2012); Otero v. U.S. Postal Service ,
73 M.S.P.R. 198, 204 (1997)). The administrative judge found that the agency
proved by preponderant evidence the narrative supporting the charge regarding
the March 2017 incident in which the appellant mailed two packages using reused
postage stamps. ID at 3-11. The proposing official testified that she had
examined photographs of the stamps, since they could not remove a package from
processing once it had been accepted into the U.S. mail, and referred the matter to
OIG for investigation. ID at 3. The administrative judge credited the consistent
testimony of the two OIG special agents who interviewed the appellant, took4
contemporaneous notes of the appellant’s responses (including her admission that
she used reused stamps on both packages), and interviewed the subordinate
employee to whom the appellant presented the packages for mailing. ID at 4-7.
In finding the testimony of the agency witnesses more credible than the
appellant regarding the charged misconduct and affirmative defense, the
administrative judge applied the appropriate factors set forth in
Hillen v. Department of the Army , 35 M.S.P.R. 453, 460 (1987). ID at 3-11. In
particular, the administrative judge did not credit the appellant’s denial during the
hearing that she engaged in the misconduct or admitted to it during her OIG
interview because her testimony was internally inconsistent and conflicted with
the testimony of several witnesses (including one of the appellant’s witnesses,
who had no incentive to provide false testimony), and because her demeanor and
body language during the hearing “indicated that she was not telling the truth.”
ID at 5-8. Finally, the administrative judge noted that the appellant had offered
three different explanations of the incident during the disciplinary and appeal
process and that the appellant’s failure to adhere to a single consistent version
rendered her varied explanations non-credible. ID at 8. The administrative judge
made reasonable credibility determinations based on a review of the record as a
whole, and we identify no basis to disturb them on review. See Haebe v.
Department of Justice , 288 F.3d 1288, 1302 (Fed. Cir. 2002) (holding that the
Board may overturn credibility determinations only when it has “sufficiently
sound” reasons for doing so).
Regarding the appellant’s claim on review that she was prejudiced by the
agency’s failure to submit video evidence of the incident into the record, which
she alleges would show that she did not engage in misconduct, she has not
provided any evidence or argument that such evidence exists beyond her bare
assertion. PFR File, Tab 1 at 3. The administrative judge correctly noted that the
record is devoid of any evidence that the appellant requested that the agency
produce any video evidence during the discovery process. ID at 10. The5
administrative judge provided clear instructions regarding the discovery process
in the acknowledgment order, and the appellant was represented by counsel. IAF,
Tab 1 at 5, Tab 2 at 3. In these circumstances, we find that the administrative
judge properly declined to draw an adverse inference based on the absence of any
video evidence. ID at 10.
The appellant has not challenged, and we see no reason to disturb, the
administrative judge’s findings that she failed to prove her affirmative defense of
discrimination on the basis of national origin (Hispanic), the agency failed to
prove the charge of providing false information during an official investigation,
or that the agency established a nexus between her misconduct and the efficiency
of the service. PFR File, Tab 1 at 3-6; ID at 11-16; see Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the
administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions on issues of
credibility); Broughton v. Department of Health & Human Services , 33 M.S.P.R.
357, 359 (1987); see also Haebe, 288 F.3d at 1302.
The administrative judge properly sustained the penalty of removal.
When an agency proves fewer than all of its charges, the Board may not
independently determine a reasonable penalty; it may mitigate to the maximum
reasonably penalty so long as the agency has not indicated in its final decision or
during proceedings before the Board that it desires that a lesser penalty be
imposed on fewer charges. Alaniz v. U.S. Postal Service , 100 M.S.P.R. 105, ¶ 14
(2005). The Board may impose the same penalty imposed by the agency if, after
balancing the mitigating factors, it is the maximum reasonable penalty. Id. The
Board’s function with regard to its review of an agency’s penalty selection is not
to displace management’s responsibility but to determine whether management
exercised its judgment within the tolerable limits of reasonableness. Id. For the6
following reasons, we agree with the administrative judge that the record supports
the reasonableness of the removal penalty.
The administrative judge thoroughly discussed the detailed testimony of the
deciding official regarding her consideration of the relevant Douglas3 factors in
sustaining the appellant’s proposed removal. ID at 17-19; IAF, Tab 20. In
particular, we agree with the administrative judge that the sustained misconduct is
serious because the appellant acted for her own financial gain at the expense of
the agency and that, as the senior employee, the appellant was expected to set the
standard of conduct for the post office branch. ID at 17. The administrative
judge properly noted that the appellant had acknowledged that she was on clear
notice not to reuse stamps, and we agree with the administrative judge’s
explained finding that the mitigating factors of her length of Federal service and
lack of prior discipline were insufficient to outweigh the seriousness of the
misconduct. ID at 17-18. Finally, the record supports the deciding official’s
testimony that the appellant did not show remorse during her oral reply and
instead questioned why the proposing official did not simply caution her not to
engage in such misconduct in the future. ID at 19; IAF, Tab 6 at 52. Therefore,
we find that the administrative judge properly found that the record supported the
reasonableness of the removal penalty. ID at 19.
As to the appellant’s allegation of disparate penalties, the Board has
recently clarified that, in assessing such a claim, the relevant inquiry is
whether the agency knowingly and unjustifiably treated employees differently.
Singh, 2022 MSPB 15, ¶ 14. Proper comparators for disparate penalty purposes
should be limited to those employees whose misconduct and/or other
circumstances closely resemble those of the appellant, id., ¶ 13, and the Board
should not attempt to weigh the relative seriousness of various offenses in order
to determine whether two employees who committed different acts of misconduct
3 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981 ), the Board set
forth a nonexhaustive list of 12 factors that are relevant in assessing the penalty to be
imposed for an act of misconduct. 7
were treated disparately, id., ¶ 17. Although the administrative judge did not
have the benefit of Singh when she issued the initial decision, we find that she
properly found that the appellant failed to make an initial showing that the agency
treated a similarly situated employee differently and thus failed to establish her
claim of disparate penalties. ID at 18. Consistent with Singh, the administrative
judge found that the employee the appellant identified as similarly situated had
not engaged in similar misconduct, had never directed subordinates to violate a
regulation for his personal benefit, and was a lower-level supervisor while the
appellant was the senior official at the post office branch. ID at 18-19. The
appellant’s bare assertion on review that the alleged comparator had also caused a
monetary loss to the agency in paying an employee for hours not worked does not
render his misconduct similar to the sustained misconduct, and she fails to
provide a basis for disturbing the administrative judge’s finding that this
employee was not a proper comparator for disparate penalty purposes. PFR File,
Tab 1 at 4. Based on the foregoing, we find that the appellant has failed to
establish that the agency knowingly and unjustifiably treated employees
differently, as required under Singh, 2022 MSPB 15, ¶ 14.
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
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
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. The9
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 file10
with the EEOC no later than 30 calendar days after your representative 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. 11
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 12
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Kuilan_BenignaCH-0752-18-0408-I-1__Final_Order.pdf | 2024-05-13 | BENIGNA KUILAN v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-0752-18-0408-I-1, May 13, 2024 | CH-0752-18-0408-I-1 | NP |
1,492 | https://www.mspb.gov/decisions/nonprecedential/Donovan_Constance__A_DC-1221-18-0551-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CONSTANCE ANN DONOVAN,
Appellant,
v.
PENSION BENEFIT GUARANTY
CORPORATION,
Agency.DOCKET NUMBER
DC-1221-18-0551-W-1
DATE: May 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
K. Scott Rocio , Esquire, Washington, D.C., for the appellant.
Michael W. Macomber , Esquire, Albany, New York, for the appellant.
Alexander Kopit , Esquire, and Sara Robinson , 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 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;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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. We MODIFY the initial decision to
clarify that the appellant did not exhaust her specific disclosures with the Office
of Special Counsel (OSC), we VACATE as unnecessary any additional findings
as to disclosures that the appellant did not exhaust, and we otherwise AFFIRM
the initial decision.
BACKGROUND
The appellant has been the Participant and Plan Sponsor Advocate
(Advocate) at the agency since 2013. Initial Appeal File (IAF), Tab 1 at 5,
Tab 12 at 185. She was the first person appointed to this statutorily created
position. IAF, Tab 11 at 17-18; see 29 U.S.C. § 1304 (discussing the
appointment, duties, and other employment details regarding the position). The
statute sets forth the duties of the position, which include identifying participants
and plan sponsors’ persistent problems at the agency, proposing changes to
legislation and the practices of the agency to mitigate problems, and referring
instances of fraud, waste, abuse, and violations of law to the Office of the
Inspector General. IAF, Tab 12 at 136-37; see 29 U.S.C. § 1304(b). The
Advocate is required to submit an annual report to Congress, which summarizes
requests for assistance received, identifies significant problems, includes
3
legislative and regulatory proposals to address any identified problems, and
identifies actions taken to correct problems identified in prior reports. 29 U.S.C.
§ 1304(e).
On June 12, 2017, the appellant filed a complaint with OSC, in which she
alleged that she made protected disclosures in her annual reports to Congress
between 2014 and 2016. IAF, Tab 6 at 31-32. Specifically, she asserted that her
reports detailed violations of Title IV of the Employee Retirement Income
Security Act of 1974 (ERISA), mismanagement, and abuse of authority. Id. The
appellant asserted to OSC that, because of these disclosures, the agency refused
to issue performance standards for her position and awarded her lower
performance-based bonuses. Id. at 31-32, 44. OSC issued a close-out letter on
March 20, 2018. Id. at 44-46.
On May 23, 2018, the appellant filed an IRA appeal with the Board. IAF,
Tab 1. The administrative judge issued a jurisdictional order, IAF, Tab 3, to
which both parties responded. IAF, Tabs 6, 11, 13, 16.
The administrative judge dismissed the appeal for lack of jurisdiction.
IAF, Tab 17, Initial Decision (ID) at 1. Specifically, she found that the appellant
had exhausted some of her more general disclosures with OSC. ID at 5-11.
However, the administrative judge found that the appellant did not make a
nonfrivolous allegation that her disclosures were protected. ID at 13.
The appellant has timely filed a petition for review. Petition for Review
(PFR) File, Tab 6. The agency has filed a response to the petition. PFR File,
Tab 8.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant challenges the administrative judge’s finding that
she did not nonfrivolously allege that she had a reasonable belief that her
disclosures evidenced any violation of law, rule, or regulation, gross
mismanagement, or an abuse of authority. PFR File, Tab 6 at 15, 19-22. We find
4
that this argument provides no basis for reversing the administrative judge’s
dismissal of the appeal for lack of jurisdiction.
We affirm the administrative judge’s findings regarding the appellant’s
exhaustion of her disclosures before OSC, except as modified to clarify that the
appellant did not exhaust her specific disclosures.
Under the Whistleblower Protection Enhancement Act of 2012 (WPEA),
the Board has jurisdiction over an IRA appeal if the appellant has exhausted her
administrative remedies before OSC and makes nonfrivolous allegations that
(1) she made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or
engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
(C), or (D), and (2) the disclosure or protected activity was a contributing factor
in the agency’s decision to take or fail to take a personnel action as defined by
5 U.S.C. § 2302(a).2 Salerno v. Department of the Interior , 123 M.S.P.R. 230,
¶ 5 (2016). The administrative judge properly found that the appellant exhausted
her general disclosures that the agency violated Title IV of ERISA and that plan
sponsors alleged that the agency committed a form of “extortion” in the way that
it enforced section 4062(e) of ERISA. ID at 10-11; IAF, Tab 6 at 31. She then
found that, even if the appellant had exhausted her specific disclosures, i.e., the
contents of the annual reports she submitted to Congress between 2014 and 2016,
they were not protected. ID at 13 . The appellant does not dispute the
administrative judge’s findings as to exhaustion on review. PFR File, Tab 6
at 15. We modify the initial decision to clarify that the appellant did not prove
exhaustion over her specific disclosures.3
2 The appellant has not alleged that she engaged in a protected activity, and thus we will
limit our discussion to whether she made a protected disclosure under 5 U.S.C.
§ 2302(b)(8).
3 On review, the appellant argues that whether her alleged that disclosures were made
during the normal course of her duties pursuant to 5 U.S.C. § 2302(f)(2) is irrelevant to
whether those disclosures are protected under 5 U.S.C. § 2302(b)(8). PFR File, Tab 6
at 15. However, the administrative judge did not find that any of the alleged
disclosures were not protected on this basis. ID at 12-22.
5
In Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶¶ 10-11, the
Board 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. To
establish Board jurisdiction, the appellant must prove exhaustion with OSC by
preponderant evidence, not just present nonfrivolous allegations of exhaustion.
5 C.F.R. § 1201.57(c)(1).
Here, the appellant provided, in relevant part, her OSC complaint, OSC’s
preliminary determination letter, her response to the preliminary determination
letter, and OSC’s letter closing her complaint. IAF, Tab 6 at 31-32, 35-46. In her
OSC complaint, the appellant stated that she made protected disclosures in the
annual reports she submitted to Congress between 2014 and 2016. Id. at 31. She
indicated that her 2014 report “noted violations of certain provisions of Title IV
of ERISA . . . by [the agency] in their dealings with both participants and plan
sponsors subject to their regulatory authority.” Id. She indicated that her 2015
and 2016 annual reports included some of the “same violations of laws and
regulations and some additional ones.” Id. She also stated that plan sponsors
described the agency’s efforts to enforce section 4062(e) as a form of “extortion.”
Id. Further, she generally alleged that the agency’s actions constituted
mismanagement and an abuse of authority. Id. at 31. We agree with the
6
administrative judge’s finding that the appellant exhausted these general
allegations with OSC. ID at 11.
The appellant also asserted that the annual reports would be added to her
complaint and “highlighted for ease in identifying the violations of rules, laws
and regulations as the basis of this complaint.” IAF, Tab 6 at 31. However, there
is no indication that these highlighted annual reports were subsequently provided
to OSC. In OSC’s correspondence with the appellant, her disclosures are broadly
categorized as documenting violations of laws, rules, or regulations in her annual
reports to Congress, but OSC does not provide any specifics on the alleged
protected disclosures or reference the highlighted annual reports the appellant
previously stated that she would submit to supplement her complaint. Id. at 35,
37, 44. Additionally, in the appellant’s correspondence with OSC, she does not
provide additional clarifying information regarding her alleged protected
disclosures or reference the purportedly submitted highlighted annual reports. Id.
at 40-43. Moreover, while the appellant provided a sworn declaration in response
to the administrative judge’s order on jurisdiction below, IAF, Tab 11 at 17-26,
she did not provide further information as to what she told OSC regarding her
disclosures or claim she submitted her annual reports to OSC, see Chambers,
2022 MSPB 8, ¶¶ 10-11 (explaining that an appellant may establish exhaustion
through an affidavit or a declaration attesting that the appellant raised with OSC
the substance of the facts in the Board appeal). Thus, the appellant only proved
that she exhausted her general allegations that the agency violated Title IV of
ERISA and that plan sponsors alleged that the agency’s enforcement of section
4062(e) of ERISA was a form of extortion. IAF, Tab 6 at 31-32.
In the initial decision, the administrative judge observed that the
highlighted annual reports were not provided to the Board and implicitly found
that the appellant did not exhaust her more specific alleged disclosures. ID at 11.
The administrative judge then proceeded to analyze whether the appellant
nonfrivolously alleged that her more specific disclosures were protected. ID
7
at 13-22. However, because the appellant did not prove that she exhausted these
disclosures, we vacate these findings as to an alternative theory of why the
appellant did not meet her jurisdictional burden as unnecessary. Further, we
modify the initial decision to expressly find that the appellant did not prove by
preponderant evidence that she exhausted these specific disclosures. Id. Because
the appellant failed to establish by preponderant evidence that these specific
disclosures were exhausted, the Board lacks jurisdiction to consider them. See
Ward v. Merit Systems Protection Board , 981 F.2d 521, 526 (Fed. Cir. 1992)
(finding that the administrative judge “justifiably refused to consider an issue that
[the appellant] had not properly raised before [OSC]”); see also 5 C.F.R.
§ 1201.57(c)(1) (providing that an appellant must prove exhaustion with OSC by
preponderant evidence).
The appellant failed to nonfrivolously allege that she reasonably believed her
disclosures evidenced a violation of law, rule, or regulation, gross
mismanagement, or an abuse of authority.
The next jurisdictional inquiry is whether, as to the general disclosures the
appellant exhausted with OSC, she nonfrivolously alleged that they were
protected. See Salerno, 123 M.S.P.R. 230, ¶ 5. 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. The disclosures must be
specific and detailed, not vague allegations of wrongdoing regarding broad or
8
imprecise matters. Id.; Rzucidlo v. Department of the Army , 101 M.S.P.R. 616,
¶ 13 (2006). To the extent the administrative judge found that the appellant failed
to nonfrivolously allege that her general disclosures were protected, we agree. ID
at 14-22.
The appellant failed to nonfrivolously allege that she reasonably
believed that her disclosure that the agency had violated “certain
provisions of Title IV of ERISA” evidenced a violation of law, rule,
or regulation.
The appellant only raised broad assertions of alleged violations of laws and
regulations to OSC, without describing what the alleged violations were. IAF,
Tab 6 at 31-32. The appellant stated to OSC that she disclosed that the agency
violated Title IV of ERISA “in their dealings with both participants and plan
sponsors subject to their regulatory authority.” Id. at 31. She did not explain
specifically what the purported violations of law and regulation were, and only
made conclusory allegations about the agency’s alleged wrongdoing. We find,
therefore, that the appellant has not made a nonfrivolous allegation that these
disclosures were protected. See Rzucidlo, 101 M.S.P.R. 616, ¶ 17 (finding that
the Board requires an appellant to provide more than vague and conclusory
allegations of wrongdoing by others); see also McCorcle v. Department of
Agriculture, 98 M.S.P.R. 363, ¶ 21 (2005) (finding that conclusory allegations
lacking in specificity do not constitute nonfrivolous allegations of IRA
jurisdiction).
The appellant failed to nonfrivolously allege that she reasonably
believed her disclosure that plan sponsors described the agency’s
efforts to enforce section 4062(e) as a form of extortion evidenced
gross mismanagement or an abuse of authority.
In her OSC complaint, the appellant also appeared to allege that the
agency’s actions constituted mismanagement and an abuse of authority because
plan sponsors described the agency’s efforts to enforce section 4062(e) of ERISA
as a form of “extortion.” IAF, Tab 6 at 31-32. Gross mismanagement is more
9
than de minimis wrongdoing or negligence; it means a management action or
inaction that creates a substantial risk of significant adverse impact on the
agency’s ability to accomplish its mission. Swanson v. General Services
Administration, 110 M.S.P.R. 278, ¶ 11 (2008). An abuse of authority is defined
as an arbitrary or capricious exercise of power by a Federal official or employee
that adversely affects the rights of any person or that results in personal gain or
advantage to himself or to preferred other persons. Chavez v. Department of
Veterans Affairs , 120 M.S.P.R. 285, ¶ 22 (2013). Even under the expanded
protections afforded to whistleblowers under the WPEA, general philosophical or
policy disagreements with agency decisions that “lawfully exercise discretionary
authority” are not protected unless the appellant has a reasonable belief that the
disclosed information separately evidences one of the categories of wrongdoing
listed in section 2302(b)(8)(A). 5 U.S.C. § 2302(a)(2)(D); Webb v. Department of
the Interior, 122 M.S.P.R. 248, ¶ 8 (2015).
In the instant case, the appellant disclosed that plan sponsors described the
agency’s efforts to enforce section 4062(e) of ERISA as a form of “extortion.”
IAF, Tab 6 at 31-32. Section 4062(e) is a provision of ERISA that provides a
formula by which the agency calculates the amount an employer who sponsors its
own pension plan must pay to protect pensions when it ceases operations at a
facility and workers lose their jobs. Employee Retirement Income Security Act
of 1974, Pub. L. No. 93-406, § 4062(e), 88 Stat. 823, 1030 (codified as amended
at 29 U.S.C. § 1362(e)); see 29 C.F.R. § 4062.8(a) (explaining that the formula
applies when “an employer ceases operations at a facility . . . and, as a
result . . . more than 20% of the total number of . . . employees who are
participants under a plan established and maintained by the employer are
separated from employment”). The appellant did not provide additional
information on how the agency’s actions created a substantial risk of significant
adverse impact upon the agency’s ability to accomplish its mission, nor does
she provide sufficient factual information for us to infer such a finding. As the
10
administrative judge observed, the agency’s mission is to protect the retirement
incomes of American workers in specified pension plans. ID at 14; see Pension
Benefit Guaranty Corporation Mission Statement,
https://www.pbgc.gov/about/who-we - are (last visited May 8, 2024). We agree
with the administrative judge that this allegation fails to identify any specific risk
to the agency’s ability to accomplish its mission of protecting retirement incomes,
and that the appellant did not provide any basis for finding that the agency’s
interpretation of its authority was unlawful or unreasonable. ID at 15, 17. Thus,
the appellant failed to nonfrivolously allege that her allegations evidenced a
reasonable belief that the agency’s enforcement of section 4062(e) constituted
gross mismanagement or an abuse of authority.
Accordingly, we deny the petition for review and affirm, as modified, the
initial decision dismissing the appellant’s IRA appeal for lack of jurisdiction.4
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice 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
4 Because the appellant failed to nonfrivolously allege that her exhausted disclosures
were protected, we decline to address her argument that these disclosures were
contributing factors in the alleged personnel action. PFR File, Tab 6 at 22.
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.
11
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.
12
(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:
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.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.
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. | Donovan_Constance__A_DC-1221-18-0551-W-1__Final_Order.pdf | 2024-05-10 | CONSTANCE ANN DONOVAN v. PENSION BENEFIT GUARANTY CORPORATION, MSPB Docket No. DC-1221-18-0551-W-1, May 10, 2024 | DC-1221-18-0551-W-1 | NP |
1,493 | https://www.mspb.gov/decisions/nonprecedential/Pedretti_AprilSF-0714-17-0696-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
APRIL PEDRETTI,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-0714-17-0696-I-1
DATE: May 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
McRae Cleaveland , Bobby Devadoss , Esquire, and Megan Zeller , Esquire,
Dallas, Texas, for the appellant.
Eric Lazare , San Diego, 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 the agency’s demotion decision pursuant to 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 and REVERSE the initial decision to the extent
the administrative judge sustained the demotion action. The appellant’s demotion
is REVERSED. We AFFIRM the initial decision to the extent the administrative
judge found that the appellant failed to prove her affirmative defenses of
discrimination based on disability and sex, as MODIFIED to apply the correct
standards applicable to those claims.
BACKGROUND
By a letter dated August 8, 2017, the agency proposed to remove the
appellant from her position as a GS-12 National Cemetery Administrator (NCA),
pursuant to 38 U.S.C. § 714, based on a charge of lack of proper oversight.
Initial Appeal File (IAF), Tab 4 at 19-21. The deciding official issued a decision
letter sustaining the charge and mitigating the removal penalty to a demotion to a
GS-9 Budget Analyst position, effective September 17, 2017. Id. at 23-26. The
appellant timely filed the instant Board appeal challenging her demotion,
asserting that the charge and specifications were not supported by the record; the
agency action did not promote the efficiency of the Federal service; and the
agency decision was motivated by unlawful discrimination. IAF, Tab 1 at 6.
After the appellant filed a motion withdrawing her request for a hearing
and requested a trial by submission, IAF, Tab 16, the administrative judge issued
a close of record order in which she identified the issues to be adjudicated, set
forth the applicable law and burdens of proof with respect to the charge and the
affirmative defenses, and ordered the parties to submit closing evidence and
argument, IAF, Tab 18.
In an initial decision based on the parties’ written submissions, the
administrative judge found that the agency proved the charge by substantial
evidence and that the appellant failed to prove her disability and sex
discrimination affirmative defenses. IAF, Tab 24, Initial Decision (ID) at 3-20.
The administrative judge further determined that, pursuant to 38 U.S.C.2
§ 714(d)(2)(B), she was precluded from mitigating the penalty, and so, she
affirmed the demotion without addressing the reasonableness of the penalty. ID
at 11, 20-22.
The appellant has timely filed a petition for review of the initial decision,
and the agency has filed a response in opposition to the petition for review.2
Petition for Review (PFR) File, Tabs 3, 5.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant generally takes issue with the administrative
judge’s credibility determinations and argues that the agency failed to meet its
burden of proving all three specifications of the charge. PFR File, Tab 3 at 7-13.
She also argues that the agency’s chosen penalty was excessive and the agency’s
action did not promote the efficiency of the service. Id. at 17-18. Finally, she
challenges the administrative judge’s finding that she failed to establish her
affirmative defenses of discrimination based on her disability and sex. Id.
at 13-17.
2 With her petition for review, the appellant has included a number of exhibits,
including emails she exchanged with agency officials, a copy of a sworn affidavit, a
copy of the agency’s discovery responses, and a number of other documents related to
the demotion action, most of which were included in the record below and thus are not
new. PFR File, Tab 3 at 20-72; see Meier v. Department of the Interior , 3 M.S.P.R.
247, 256 (1980) (explaining that evidence that is already a part of the record is not
new). To the extent that the appellant submits documents that were not part of the
record below, 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). Further, the submitting party must show that the
evidence is material . See Okello v. Office of Personnel Management , 112 M.S.P.R. 563,
¶ 10 (2009). All of the newly submitted documents predate the initial decision, and the
appellant does not assert that any of the documents were first obtained after the initial
decision was issued. See Avansino, 3 M.S.P.R. at 214. In addition, the appellant has
not shown that any of the evidence is of sufficient weight to change the outcome of the
appeal. Accordingly, we have not considered these documents.3
The demotion action must be reversed based on recent U.S. Court of Appeals for
the Federal Circuit (Federal Circuit) and Board precedent.
We do not reach the parties’ arguments regarding the charge and penalty
because we conclude that the agency improperly demoted the appellant for
conduct predating the VA Accountability Act. See Wilson v. Department of
Veterans Affairs , 2022 MSPB 7, ¶ 26 (handling the arguments on review similarly
in a section 714 appeal in which the action was reversed because the charged
conduct predated the VA Accountability Act). After the initial decision in this
appeal was issued, the Board and the Federal Circuit issued precedential decisions
addressing the application of the VA Accountability Act to events that occurred
before the date of its enactment. Based on that precedent, which was not
available to the administrative judge when she issued the initial decision, we
conclude that the appellant’s demotion must be reversed.
In Sayers v. Department of Veterans Affairs , 954 F.3d 1370, 1374, 1380-82
(Fed. Cir. 2020), the Federal Circuit concluded that 38 U.S.C. § 714 cannot be
applied to events occurring before its enactment because Congress did not
authorize its retroactive application, and the statute’s lowered substantial
evidence standard of proof and elimination of the Board’s authority to mitigate
the penalty detrimentally affected Dr. Sayers’s property right to continued
employment. The court also acknowledged that the notice of proposed removal in
that case had not been issued until after the enactment of the VA Accountability
Act but determined that “[s]ection 714’s impermissible retroactive effect on
Dr. Sayers’s substantive employment right is not eliminated by the prospective
application of § 714’s procedures.” Id. at 1381. Consequently, the court held
that the agency may not use the VA Accountability Act to discipline an employee
for matters that occurred before its effective date, June 23, 2017, and vacated
Dr. Sayers’s removal. Id. at 1380-82.
As in Sayers, in this case, the agency removed the appellant under the VA
Accountability Act based entirely on misconduct that predated the Act’s June 23,4
2017 enactment date. IAF, Tab 4 at 19-21, 23-26. Additionally, as the court held
in Sayers, the fact that the proposal and decision letters were issued after the
enactment date is of no consequence because 38 U.S.C. § 714 may not be applied
to conduct that predates the passage of the Act, irrespective of the date that the
agency action was proposed and effectuated. Sayers, 954 F.3d at 1380-81.
Accordingly, the agency’s charge is not sustained, and the appellant’s demotion
must be reversed. See id. at 1380-82; Wilson, 2022 MSPB 7, ¶ 33.
We agree with the administrative judge that the appellant failed to prove her
discrimination affirmative defenses, but we modify the initial decision to clarify
the proper standard applicable to these claims.
Sex Discrimination
In the initial decision, the administrative judge determined that the
appellant failed to establish her affirmative defense of sex discrimination,
concluding that none of the statements she identified evinced a discriminatory
animus and the appellant failed to provide any evidence that she or other female
employees were treated worse than their male counterparts. ID at 18-20.
Consequently, the administrative judge determined that the appellant failed to
provide any evidence that her sex was a motivating factor in the agency’s
decision to demote her, and thus did not meet her burden of proof with respect to
this affirmative defense. ID at 20.
On review, the appellant argues that the administrative judge afforded
insufficient weight to credible evidence of discriminatory animus by the
appellant’s supervisor who initiated the investigation that eventually resulted in
her demotion. PFR File, Tab 3 at 15-16. Specifically, she argues that the
administrative judge “seemingly brush[ed] [] away” her supervisor’s statement
that “the last woman we had here barely met my expectations,” and his
instruction to the appellant not to “screw it up.” Id. at 16.
In an order setting forth the appellant’s burdens for her affirmative
defenses, the administrative judge identified the standard set forth in Savage v.5
Department of the Army , 122 M.S.P.R. 612 ¶¶ 41-42, 51 (2015), as clarified by
Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647 (2016), as the
standard applicable to the appellant’s sex discrimination claim. IAF, Tab 9
at 2-5. She similarly applied this standard in the initial decision. ID at 18-19.
Following the issuance of the initial decision in this case, the Board issued
Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 20-25, 30,
which overruled parts of Savage and clarified the proper analytical framework to
be applied to affirmative defenses of Title VII discrimination and retaliation.
Based on our review of the record, we conclude that the outcome of this
appeal under the standard set forth in Pridgen would be the same as that arrived
at by the administrative judge. Regarding the appellant’s argument that the
administrative judge improperly dismissed her supervisor’s statement to her that
“the last woman we had here barely met my expectations,” and his warning that
the appellant not “screw it up,” the appellant argues that the administrative judge
seemingly dismissed the offending statement on temporal grounds. PFR File,
Tab 3 at 16. The record does not support the appellant’s assertion.
After noting that the supervisor made the statement shortly after the
appellant became the new NCA in November 2015, the administrative judge
pointed out that the supervisor appeared to have made the statement in the context
of explaining what his expectations were of all cemetery directors. ID at 19. The
administrative judge observed that, contextually understood, the supervisor’s
harsh statements about the prior NCA’s performance and his cautionary statement
to the appellant not to “screw it up” were indicative of his stern management
style, generally, irrespective of the sex of his subordinates. ID at 19. This
reading is bolstered by the administrative judge’s observation that one of the
appellant’s comparators for her disability discrimination claim (who is male) also
alleged that he was harassed by the supervisor and was also eventually proposed
for removal during the same time frame as the appellant, leading the
administrative judge to conclude that the supervisor was “apparently stern with6
all of his employees.” ID at 20. Based on our review of the record, we agree
with the administrative judge’s finding that there is no evidence that
discriminatory animus by the appellant’s supervisor influenced the deciding
official. Further, we find that the administrative judge appropriately considered
all of the relevant evidence. Consequently, we affirm the administrative judge’s
finding that the appellant failed to meet her burden of proving that sex
discrimination played any part in the demotion action, as modified herein to apply
the standard set forth in Pridgen.
Disability Discrimination
As previously noted, the appellant raised an affirmative defense of
disability discrimination due to her post-traumatic stress disorder (PTSD)
condition based on failure to accommodate and disparate treatment theories. IAF,
Tab 12 at 6-7, Tab 21 at 10-13, 39-40. As the administrative judge correctly
observed, 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 of 1973, which has incorporated the
standards of the Americans with Disabilities Act of 1990, as amended by the
Americans with Disabilities Act Amendments Act of 2008. ID at 13 n.3; Pridgen,
2022 MSPB 31, ¶ 35; Haas v. Department of Homeland Security , 2022 MSPB 36,
¶ 28. Therefore, we apply those standards here to determine if there has been a
Rehabilitation Act violation. Pridgen, 2022 MSPB 31, ¶ 35.
Regarding the appellant’s failure to accommodate claim, the administrative
judge concluded that the agency was not obligated to accommodate the appellant
because there was no evidence that she had requested any accommodation. ID
at 13-15. We agree with this finding. In finding that the appellant did not prove
her failure to accommodate claim, the administrative judge observed that the
appellant was granted all the leave she requested for her counseling appointments
for her condition, and further, that her requests to attend a funeral and for7
temporary housing were not requests for a reasonable accommodation. ID
at 14-15.
On review, the appellant concedes that she did not request a reasonable
accommodation from the agency but argues that the agency nonetheless had an
obligation to investigate any “facts and/or circumstances that give rise to a link
between an employee’s medical condition and issues or problems in the
workplace.” PFR File, Tab 3 at 15. Consequently, she appears to suggest that the
onus was on the agency to initiate the interactive process and to offer some sort
of unstated accommodation, and that by failing to do so, the agency failed to
accommodate her PTSD condition. Id. The Rehabilitation Act requires an
agency to provide reasonable accommodation to the known physical or 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. Clemens v. Department of the Army , 120 M.S.P.R. 616, ¶ 10 (2014).
An employee only has a general responsibility to inform her employer that she
needs accommodation for a medical condition, and once an employee requests a
reasonable accommodation, the employer must engage in the interactive process
to determine an appropriate accommodation. Id., ¶ 12.
To trigger an agency’s obligation, an employee needs to link her request to
a medical condition. EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act,
Question 1, Notice No. 915.002 (Oct. 17, 2002), available at https://
www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-
and-undue-hardship-under-ada . Because the appellant has conceded that she did
not request reasonable accommodation, we agree with the administrative judge
that she failed to meet her burden of establishing her disability discrimination
claim based on a failure to accommodate theory. ID at 15. She also has not
alleged any facts below or on review that would have informed the agency that
she believed her PTSD condition required accommodation, nor has she asserted8
that she made any request for accommodation of her PTSD condition that the
agency did not grant.
The administrative judge also rejected the appellant’s disparate treatment
disability discrimination claim, concluding that she failed to present any evidence
that any similarly situated employees without a disability were treated more
favorably than the appellant. ID at 15-17. Further, the administrative judge
determined that the appellant had not provided any evidence that the deciding
official had any knowledge of her PTSD condition at the time she decided to
sustain the charge and mitigate the removal to a demotion. ID at 17.
Additionally, the administrative judge considered the appellant’s argument
that she and a number of other employees with PTSD were treated less favorably
because of their PTSD. ID at 16-17. The same standards and methods of proof
set forth above for the appellant’s Title VII claim apply to her disability
discrimination claim based on alleged disparate treatment. Pridgen, 2022 MSPB
31, ¶¶ 40, 42. One way an appellant may establish a discrimination claim is
through comparator evidence, or evidence relating to the allegedly more favorable
treatment of similarly situated employees outside her protected group. Id., ¶¶ 24,
27. To be similarly situated, comparators must have reported to the same
supervisor, been subject to the same standards governing discipline, and engaged
in conduct similar to the appellant’s without differentiating or mitigating
circumstances. Id., ¶ 27.
Although she did not have the benefit of the Board’s Pridgen decision, the
administrative judge’s analysis was consistent with Pridgen. ID at 14-17. She
evaluated the sworn affidavits from purported comparator employees but
concluded the following: (1) one of the purported comparators was not similarly
situated to the appellant because he was not supervised by the same supervisor as
the appellant; (2) another comparator, who was supervised by the appellant’s
supervisor and who had PTSD, was a valid comparator, but that employee’s
sworn affidavit indicated that the supervisor was intensely critical of all of his9
subordinates, including those without disabilities, and so that comparator’s
affidavit did not provide any evidence of discrimination; and (3) the appellant did
not indicate whether any of the final group of potential comparators were
individuals with a disability, so the administrative judge could not determine
whether they were valid comparators. ID at 16; IAF, Tab 21 at 90-110. Further,
the administrative judge considered, and rejected, the appellant’s argument that
several statements by her supervisor concerning PTSD being “50%
service-connected” and the appellant being “too sensitive” were evidence of
discriminatory animus. ID at 15-16. Finally, the administrative judge noted that
the appellant had not provided any evidence that the deciding official was aware
of the appellant’s disability when she decided to sustain the charge and mitigate
the removal penalty to a demotion. ID at 17.
Other than generally disagreeing with the weight the administrative judge
assigned to the written affidavits of the purported comparator employees, the
appellant does not specifically address these findings on review, and we agree
with the administrative judge that the record is devoid of any evidence tending to
show that the agency was motivated by discriminatory animus when it proposed
or effectuated the demotion action at issue in this appeal. PFR File, Tab 3
at 10-11. We discern no basis to disturb the administrative judge’s conclusions,
and we affirm her finding that the appellant failed to prove this affirmative
defense, as modified to incorporate the correct applicable standard set forth in
Pridgen. See Pridgen, 2022 MSPB 31, ¶¶ 20-25.
ORDER
We ORDER the agency to cancel the demotion action and to reinstate the
appellant to her former position as a GS-12 National Cemetery Administrator,
effective September 17, 2017. 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. 10
We also ORDER the agency to pay the appellant the correct amount of
back pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
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.11
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice 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.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.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. 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
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. | Pedretti_AprilSF-0714-17-0696-I-1__Final_Order.pdf | 2024-05-10 | APRIL PEDRETTI v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0714-17-0696-I-1, May 10, 2024 | SF-0714-17-0696-I-1 | NP |
1,494 | https://www.mspb.gov/decisions/nonprecedential/Hodge_DianeDE-0714-17-0420-X-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DIANE HODGE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-0714-17-0420-X-1
DATE: May 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Diane Hodge , Prescott Valley, Arizona, pro se.
Karl Lynch , Esquire, Garland, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
This case is before the Board pursuant to a December 28, 2021 compliance
initial decision finding the agency in noncompliance with the Board’s July 2,
2021 initial decision. Hodge v. Department of Veterans Affairs , MSPB Docket
No. DE-0714-17-0420-C-1, Compliance File (CF), Tab 9, Compliance 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 (CID) at 1-17; Hodge v. Department of Veterans Affairs , MSPB Docket
No. DE-0714-17-0420-M-1, Remand File (RF), Tab 12, Initial Decision (ID)
at 1-15. For the reasons discussed below, we find the agency in compliance and
DISMISS the petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
On July 2, 2021, the administrative judge issued an initial decision
reversing the appellant’s demotion and ordering the agency to pay the appellant
the correct amount of back pay, including interest, and all other benefits to which
she was entitled. ID at 1-15.2 On September 23, 2021, the appellant filed a
Petition for Enforcement contending that the agency had failed to provide an
accounting of the back pay it had provided appellant. CF, Tab 1 at 4-5.
After affording the parties an opportunity to file evidence and argument
regarding the back pay issue, the administrative judge issued a compliance initial
decision on December 28, 2021, finding the agency in noncompliance “with its
obligation to provide full back pay to Appellant.” CID at 4. The initial decision
stated that “[a]lthough the agency undisputedly has provided a back pay payment
to Appellant, the agency has failed to provide any evidence of how it calculated
the back pay, including any interest ‘if interest was included.’” CID at 4.3
On February 7, 2022, the Office of the Clerk of the Board issued an
Acknowledgement Order notifying the parties that a new docket number had been
assigned (reflecting the referral of the matter to the Board for a final compliance
2 Neither party filed a petition for review of the July 2, 2021 decision, and thus, the
initial decision became the Board’s final decision on August 6, 2021.
3 The compliance initial decision informed the agency that, if it decided to take the
actions required by the decision, it must submit to the Clerk of the Board, within the
time limit for filing a petition for review under 5 C.F.R. § 1201.114(e), a statement that
it has taken the actions identified in the compliance initial decision, along with
evidence establishing that it has taken those actions. CID at 6-8; see 5 C.F.R.
§ 1201.183(a)(6)(i). The compliance initial decision also informed the parties that they
could file a petition for review if they disagreed with the compliance initial decision.
CID at 6-8; see 5 C.F.R. §§ 1201.114(e), 1201.183(a)(6)(ii). Neither party petitioned
for review of the compliance initial decision.
2
determination) and notifying the appellant of her right to respond to the agency’s
submission within 20 days. Hodge v. Department of Veterans Affairs , MSPB
Docket No. DE-0714-17-0420-X-1, Compliance Referral File (CRF), Tab 1
at 1-3.
On February 22, 2022, the agency submitted an “Agency Report on
Compliance” in which it stated that “not all interest payments on the back pay
have been made . . . .” CRF, Tab 2 at 1.
On March 3, 2022, the appellant filed her “Response to Agency Report on
Compliance,” arguing that the agency had failed to provide information on how
much money the appellant was owed, how much interest on the total amount of
back pay was owed, and how those amounts were calculated. CRF, Tab 3 at 4-5.
The appellant further requested that the Board sanction the agency for its lack of
compliance. Id. at 5.
On June 7, 2023, the Office of the Clerk of the Board issued an order
requiring the agency to submit an update to its compliance efforts, including:
(1) a detailed narrative explanation of the calculations of the back
pay and interest owed to appellant; (2) evidence of all back pay
payments and interest already made to the appellant; and (3) an
explanation of what amount of back pay the agency believes it still
owes the appellant, if any, along with a statement regarding why it
has not yet paid this amount to the appellant.
CRF, Tab 5 at 2.
On June 28, 2023, the agency submitted a response to the June 7, 2023
Order. CRF, Tab 6 at 1-49. In the response, the agency explained that it owed
the appellant a gross amount of $33,747.65 in back pay and $12,585.76 in interest
on the back pay for the period between the appellant’s demotion, effective August
20, 2017, and her reinstatement to her former higher-graded position in 2021. Id.
at 12. The agency also submitted spreadsheets and charts detailing the amounts
owed the appellant and the varying applicable rates of interest during the back
pay period. Id. at 7-48.
3
On July 11, 2023, the appellant filed a reply to the agency’s response,
which confirmed that she had received the back pay payments but argued that the
agency’s submissions show “a lot of numbers but not really given explicit
explanation [sic] of how the final figures were created.” CRF, Tab 7 at 4. The
appellant requested a “simple written explanation.” Id.
ANALYSIS
The agency bears the burden of proving that it has complied with a Board
order. Mercado v. Office of Personnel Management , 115 M.S.P.R. 65, ¶ 4 (2010).
The agency is required to produce relevant, material, and credible evidence of
compliance in the form of documentation or affidavits. Spates v. U.S. Postal
Service, 70 M.S.P.R. 438, 443 (1996). The appellant may rebut the agency's
evidence of compliance by making “specific, nonconclusory, and supported
assertions of continued noncompliance.” Brown v. Office of Personnel
Management, 113 M.S.P.R. 325, ¶ 5 (2010).
In its June 28, 2023 submission, the agency provided spreadsheets and a
chart evidencing the difference between the salary the appellant earned and the
salary she should have earned without the demotion and adding up the amount
owed the appellant per pay period from 2017 to 2021. CRF, Tab 6 at 7-11. The
agency stated that the appellant was paid in three installments on June 5, 2021;
August 28, 2021; and October 8, 2022. Id. at 4; 12. The submission included a
Defense Finance and Accounting Service (DFAS) report detailing the gross back
pay owed per year. For 2017, the appellant was owed a gross amount of
$2,972.80; for 2018, $8,497.55; for 2019, $8,606.45; for 2020, $10,308.77; and
for 2021, $3,362.08. Id. at 7, 12.4 The DFAS report also provides the interest
amount owed for each date the appellant was paid her back pay, as well as
deductions from the back pay for taxes and benefits, and the net amounts paid in
each back pay installment. Id. at 12. The agency also submitted “Back Pay
4 The amount owed in back pay for 2017 was not included on the DFAS report but was
provided on a spreadsheet in the agency’s submissions. Id. at 7.
4
Computation Summary Reports” for each of the three back pay payments, which
provide the breakdown of the time periods covered by each payment; calculations
of the interest on the back pay; and spreadsheets detailing gross earnings and
certain deductions. Id. at 13-48.
Thus, the agency has produced detailed, credible evidence that it has
complied with the Board’s July 2, 2021 initial decision to pay the appellant all the
back pay, interest, and benefits to which she was entitled. RF, Tab 12. The
appellant specifically questioned several items, which we address in turn.
First, the appellant asserts that the interest rates used to calculate the
interest on the back pay vary. CRF, Tab 7 at 4. Interest on back pay is computed
using Internal Revenue Service quarterly rates, which vary. 5 U.S.C. § 5596;
5 C.F.R. §§ 550.806. Second, the appellant states that the agency did not specify
whether the payments included step increases. CRF, Tab 7 at 4. The
spreadsheets detailing the differences between the salary she received and the
salary she was owed reflect step increases. CRF, Tab 6 at 7-11. Third, the
appellant asserts that the agency did not specify when the interest on the back pay
stopped accruing. CRF, Tab 7 at 4. For each payment she received, the agency
provides a “Back Pay Computation Summary Report” which states the dates on
which the back pay interest stopped accruing (including interest on the interest
owed to the appellant). CRF, Tab 6 at 13, 22, 35, 39.5
In sum, although the appellant challenges several aspects of the agency’s
compliance explanations, she has not convincingly demonstrated that the
agency’s explanations and calculations are incorrect; and she does not contest that
she received the amounts stated. As a result, we find the agency in compliance.
Finally, regarding the appellant’s request for sanctions, we deny the
request. The Board’s sanction authority is limited to the sanctions necessary to
obtain compliance with a Board order. Mercado v. Office of Personnel
5 Interest accrual ends at a time selected by the agency that is no more than 30 days
before the date of the back pay interest payment. 5 C.F.R. § 550.806.
5
Management, 115 M.S.P.R. 65. ¶ 8 (2010) (stating that the Board’s ability to
award sanctions is a means to enforce compliance, and once compliance has been
demonstrated, it would be inappropriate to impose sanctions). Because the
agency has complied with the Board’s orders, we are without authority to impose
sanctions in this matter.
Accordingly, in light of the agency’s evidence of compliance, the Board
finds the agency in compliance and dismisses the petition for enforcement. This
is the final decision of the Merit Systems Protection Board in this compliance
proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1)
(5 C.F.R. § 1201.183(c)(1)).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
NOTICE OF APPEAL 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
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
Systems Protection 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 at
7
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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,
8
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.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,
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.
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 | Hodge_DianeDE-0714-17-0420-X-1__Final_Order.pdf | 2024-05-10 | DIANE HODGE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-0714-17-0420-X-1, May 10, 2024 | DE-0714-17-0420-X-1 | NP |
1,495 | https://www.mspb.gov/decisions/nonprecedential/Branch-Haines_Rosetta_H_AT-315H-20-0050-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROSETTA H. BRANCH-HAINES,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-315H-20-0050-I-1
DATE: May 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rosetta H. Branch-Haines , Gainesville, Florida, pro se.
Luis E. Ortiz , Esquire, Orlando, 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 her probationary termination appeal for lack of jurisdiction . On
petition for review, the appellant asserts that she failed to respond to the
jurisdictional order because she lacked adequate knowledge and financial
resources to obtain legal representation, and argues for the first time and without
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
elaboration or explanation that her termination was based in whole or in part on
pre-appointment reasons under 5 C.F.R. § 315.806. 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).
2 The appellant has submitted additional documents with her petition for review,
including journal notes, emails, and training materials. Petition for Review (PFR) File,
Tab 1 at 3-56. 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 newly submitted 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). The appellant acknowledges that the journal notes predate the initial
decision, and she does not otherwise assert that any of the documents were first
obtained after the initial decision was issued. PFR File, Tab 1 at 3; see Avansino,
3 M.S.P.R. at 214. Additionally, she has not explained how these documents are
relevant to the jurisdictional question at issue in this appeal. Accordingly, we need not
consider them. Nevertheless, we have reviewed the provided documents for any
allegation that the appellant’s termination was for pre -appointment reasons, and the
documents all concern personal conflicts, training issues, and negative interactions the
appellant had with supervisors or other staff following her appointment to her position
in May 2019, and nothing in the provided documents identifies any allegation that her
termination was taken for pre-appointment reasons. PFR File, Tab 1 at 3-56.2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Branch-Haines_Rosetta_H_AT-315H-20-0050-I-1__Final_Order.pdf | 2024-05-10 | null | AT-315H-20-0050-I-1 | NP |
1,496 | https://www.mspb.gov/decisions/nonprecedential/Allen_MarimekkoAT-0714-18-0278-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARIMEKKO ALLEN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0714-18-0278-I-1
DATE: May 10, 2024
THIS ORDER IS NONPRECEDENTIAL1
Wendell J. Echols , Esquire, Tuskegee, Alabama, for the appellant.
Kimberly K. Ward , Decatur, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed her removal. For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision, and REMAND the
appeal 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
¶2The appellant was employed by the agency as a Certified Nursing Assistant
with the Central Alabama Veterans Health Care System in Tuskegee, Alabama.
Initial Appeal File (IAF), Tab 1 at 6, Tab 5 at 6. Her duties included providing
nursing care for patients and residents, such as maintaining their personal
hygiene, observing and reporting symptoms of distress, and performing complex
treatment. IAF, Tab 5 at 75. After reports from coworkers that she, among other
things, spoke harshly with patients, yelled at coworkers that she would not bathe
patients alone, failed to properly bathe patients, failed to dress a patient as
instructed, and was observed sleeping in unoccupied rooms while on duty, the
agency opened an investigation into the appellant’s alleged misconduct. Id.
at 17-52.
¶3As a result of the investigation, the agency proposed the appellant’s
removal, pursuant 38 U.S.C. § 714, which codified the relevant provision of the
Department of Veterans Affairs Accountability and Whistleblower Protection Act
of 2017, Pub. L. No. 115-41, § 202(a), 131 Stat. 862, 869-73 (VA Accountability
Act or the Act). IAF, Tab 5 at 14. The proposal was based on four charges:
(1) inappropriate conduct (five specifications); (2) loafing (two specifications);
(3) patient neglect (one specification); and (4) failure to follow instructions (one
specification).2 Id. at 14-15. The underlying conduct took place between March
and June 2017. Id. The appellant replied to the proposed removal, but she sent
her reply to an agency official other than the deciding official named in the
proposal notice. IAF, Tab 1 at 22-25, Tab 5 at 15-16. On February 6, 2018, the
deciding official issued a final decision finding that the charges were supported
by substantial evidence and removing the appellant from Federal service. IAF,
Tab 5 at 11. At the time she made her decision, the deciding official did not have
2 The notice of proposed removal appears to misnumber the charges, listing charges 1,
2, 4, and 5, and omitting a charge 3. IAF, Tab 5 at 15. This appears to be a
typographical error, as the notice of proposed removal lists four charges. Id. at 14-15. 2
a copy of the appellant’s reply. IAF, Tab 13, Hearing Recording (HR) (testimony
of the deciding official).
¶4The appellant filed the instant appeal with the Board, challenging the
removal and raising as affirmative defenses reprisal for whistleblower and equal
employment opportunity (EEO) activity, and harmful procedural error. IAF,
Tab 1 at 1, Tab 12 at 2-3. After holding a hearing, the administrative judge
issued an initial decision sustaining all the charges and specifications except for
one specification of the inappropriate conduct charge. IAF, Tab 15, Initial
Decision (ID) at 3-9. She also found that the appellant failed to prove any of her
affirmative defenses, and she affirmed the removal action. ID at 9 -15.
¶5The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. She does not challenge the administrative judge’s findings regarding
the charges; rather, she reasserts her affirmative defenses that her removal was
the result of retaliation for whistleblower and EEO activity, and that the agency
engaged in harmful procedural error. PFR File, Tab 1 at 3-4. She also argues on
review that the agency failed to engage in settlement discussions, subjected her to
a hostile work environment, and engaged in disparate treatment. Id. She asserts
that the agency was required to consider progressive discipline under the parties’
collective bargaining agreement (CBA). Id. at 3. The agency has filed a
response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
We sustain the inappropriate conduct charge but do not sustain charges two,
three, and four.
¶6As noted above and detailed in the notice of proposed removal, the
underlying conduct of the four charges against the appellant took place between
March and June 2017. IAF, Tab 5 at 14-15. Specifically, the instances of
misconduct specified under charge one (inappropriate conduct) occurred on
March 6, 2017; June 6, 2017; June 26, 2017; May 24, 2017; and June 14, 2017.3
Id. The misconduct underlying charge two (loafing) occurred on June 21 and 22,
2017. Id. at 15. The one incident of misconduct specified under charge three
(patient neglect) occurred on June 22, 2017, and the misconduct specified under
charge four (failure to follow instructions) happened on June 14, 2017. Id. After
a thorough discussion of the alleged misconduct and the agency’s evidence in
support thereof, the administrative judge sustained all the charges. ID at 3-9.
¶7Following the issuance of the initial decision in this appeal, the U.S. Court
of Appeals for the Federal Circuit (Federal Circuit) issued Sayers v. Department
of Veterans Affairs , 954 F.3d 1370 (Fed. Cir. 2020). In Sayers, the court held that
“[38 U.S.C.] § 714 does not apply to proceedings instituted based on conduct
occurring before its enactment” on June 23, 2017. Harrington v. Department of
Veterans Affairs , 981 F.3d 1356, 1357, 1359 (Fed. Cir. 2020) (citing Sayers,
954 F.3d at 1380-82 (finding that application of section 714 to events occurring
prior to its enactment has “an impermissible retroactive effect”)).
¶8Here, all of the misconduct underlying charges two through four predate the
VA Accountability Act’s June 23, 2017 enactment. Accordingly, these charges
must be reversed. See Harrington, 981 F.3d at 1357, 1359 (vacating a 38 U.S.C.
§ 714 removal based on pre-enactment conduct); Sayers, 954 F.3d at 1372-73,
1382 (same).
¶9Turning to charge one (inappropriate conduct), the misconduct alleged in
specifications one, two, four, and five also occurred prior to the enactment of the
VA Accountability Act and, therefore, cannot be sustained.3 IAF, Tab 5 at 14;
see Harrington , 981 F.3d at 1357, 1359; Sayers, 954 F.3d at 1372-73, 1382.
However, the incident underlying specification three is alleged to have occurred
on or about June 26, 2017, which postdates the Act. IAF, Tab 5 at 14. In Wilson
v. Department of Veterans Affairs , 2022 MSPB 7, ¶¶ 30-33, the Board considered
whether a charge can be sustained based solely on conduct that postdated the VA
3 Because we find that the first specification must be reversed on this basis, we need not
address the administrative judge’s unchallenged determination that the agency failed to
prove this specification on the merits. ID at 3. 4
Accountability Act when that charge includes misconduct that also occurred prior
to the Act. It recognized that an error that affects one charge does not necessarily
require vacating the remaining charges; rather, if the remaining unrelated charges
are untainted by the error, they may be reviewed on the merits. Id., ¶ 30 (citing
Boss v. Department of Homeland Security , 908 F.3d 1278, 1279, 1281-84 (Fed.
Cir. 2018) (holding that an agency’s due process violation as to one charge did
not require an arbitrator to vacate the two remaining charges that were not tainted
by the due process violation and were based on “distinct facts”)).
¶10Here, the specification at issue alleged that, on or about June 26, 2017, a
nursing assistant witnessed the appellant telling a veteran that he could not tell
her what to do “because he’s been to prison,” or words to that effect. IAF, Tab 5
at 14. The misconduct alleged in the specification occurred on a single date after
the enactment of the VA Accountability Act and does not depend on or
encompass conduct that occurred on any other date. Id. Further, the veteran
involved and the witness to the incident are not referenced elsewhere in the
proposed removal notice. Id. at 14-15. We find that the misconduct is not so
factually interrelated to other alleged misconduct in the charge that it cannot be
fairly separated. See Boss, 908 F.3d at 1282-83 (declining to vacate a removal
based on an error as to one of the three charges “[i]n the absence of evidence
indicating that the procedural defect tainted the decision-making on the other
charges, or circumstances where the charges are so factually interrelated that they
cannot be fairly separated”).
¶11In the initial decision, the administrative judge credited the testimony of the
nursing assistant who observed the appellant’s conduct. ID at 4. The
administrative judge further stated that she “discerned no reason” why the nursing
assistant would fabricate the event to harm the appellant. ID at 4-5.
Additionally, the administrative judge explained that the appellant made the
statement in front of another patient and that it was inappropriate to discuss that5
subject in that manner. ID at 5. Accordingly, she found that the agency met its
burden with respect to this specification.
¶12When an administrative judge has held a hearing and has made credibility
determinations that were, as is the case here, explicitly or implicitly based on
witness demeanor, the Board must defer to those credibility determinations and
may overturn such determinations only when it has “sufficiently sound” reasons
for doing so. Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir.
2002). The appellant has not challenged the administrative judge’s credibility
determination on review, or any of her findings relating to this specification, and
we otherwise discern no “sufficiently sound” reason to disturb her credibility
findings. As such, we defer to them here. See id. Further, we agree with the
administrative judge that the appellant’s conduct was inappropriate, as it
demonstrated disrespect towards a patient when the appellant’s position
description specifically requires her to display courtesy in her contacts with
patients. IAF, Tab 5 at 77. 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. Department of the
Army, 918 F.2d 170, 172 (Fed. Cir. 1990). Accordingly, we decline to disturb the
administrative judge’s decision to sustain the specification, which is sufficient to
sustain the charge.
We remand this appeal for further adjudication consistent with Semenov v.
Department of Veterans Affairs , 2023 MSPB 16.
¶13Although we ultimately sustain the charge of inappropriate conduct, remand
is still necessary. As noted above, the deciding official applied the substantial
evidence standard to her review of the removal action. IAF, Tab 5 at 11. After
the initial decision in this case was issued, however, the Federal Circuit decided
Rodriguez v. Department of Veterans Affairs , 8 F.4th 1290 (Fed. Cir. 2021). In
Rodriguez, 8 F.4th at 1296-1301, the court found that the agency had erred by
applying the substantial evidence standard of proof to its internal review of a6
disciplinary action under 38 U.S.C. § 714. The court found that substantial
evidence is the standard of proof to be applied by the Board, not the agency, and
that the agency’s deciding official must apply the preponderance of the evidence
standard to “determine” whether the appellant’s “performance or
misconduct . . . warrants” the action at issue. Semenov v. Department of Veterans
Affairs, 2023 MSPB 16, ¶ 21 (quoting Rodriguez, 8 F4th at 1298-1301 (quoting
38 U.S.C. § 714(a)(1))); see Bryant v. Department of Veterans Affairs , 26 F.4th
1344, 1347 (Fed. Cir. 2022) (agreeing with a petitioner that the agency’s decision
was “legally flawed” when the deciding official found the charge proved merely
by substantial evidence rather than preponderant evidence, as required under
Rodriguez).
¶14The Federal Circuit’s decision in Rodriguez applies to all pending cases,
regardless of when the events at issue took place. Semenov, 2023 MSPB 16, ¶ 22.
The administrative judge and the parties did not have the benefit of Rodriguez or
the Board’s application of it in Semenov; therefore, we are unable to address its
impact on this appeal. Accordingly, following the return of the appeal to the
administrative judge after the agency issues its penalty redetermination, as
addressed in greater detail below, the administrative judge shall adjudicate
whether the agency’s application of the substantial evidence standard of proof
was harmful error. See id., ¶¶ 22-24 (finding it appropriate to apply the harmful
error standard from 5 U.S.C. § 7701(c)(2) to actions taken under 38 U.S.C.
§ 714).
¶15We must also remand this appeal on the issue of penalty. When addressing
the penalty of removal, the administrative judge did not address whether the
penalty of removal was reasonable, explaining only that, “[p]ursuant to 38 U.S.C.
§ 714(d)(2)(B), the Board may not mitigate the penalty selected by the agency.”
ID at 14. Following the issuance of the initial decision, however, the Federal
Circuit issued Connor v. Department of Veterans Affairs , 8 F.4th 1319, 1326-27
(Fed. Cir. 2021), wherein it found that the agency and the Board must still apply7
the Douglas4 factors to the selection and review of penalties in disciplinary
actions taken under 38 U.S.C. § 714. See Semenov, 2023 MSPB 16, ¶ 49. The
Board’s review of the penalty to determine if it is supported by substantial
evidence is part of its overall review of the agency’s adverse action. Connor,
8 F.4th at 1326. Indeed, the Board’s “longstanding” practice of reviewing the
penalty in adverse actions appeals “avoids absurd, unconstitutional results” such
as a removal over the “theft of a paperclip.” Sayers, 954 F.3d at 1378.
¶16Although the deciding official appears to have vaguely considered some of
the Douglas factors in the decision notice, IAF, Tab 5 at 11, we need not
determine whether such consideration is sufficient under Connor and Semenov
because the agency has not otherwise shown by substantial evidence that the
penalty of removal is within the tolerable limits of reasonableness for the
sustained conduct. When, as here, not all the charges are sustained, the Board
will consider carefully whether the sustained charges merit the penalty imposed
by the agency. Suggs v. Department of Veterans Affairs , 113 M.S.P.R. 671, ¶ 6
(2010), aff’d per curiam , 415 F. App’x 240 (Fed. Cir. 2011). Here, we have
sustained only one of the four charges, and the sole sustained charge is based on a
single specification. Notably, in the decision notice, the deciding official
emphasized the repeated nature of the appellant’s misconduct, and she considered
the “several incidents” that support the charged misconduct. IAF, Tab 5 at 11.
Given that there is no additional evidence in the record justifying the penalty of
removal in light of the one sustained charge, we find that the agency failed to
prove by substantial evidence that its penalty was within the limits of
reasonableness. See Tyron v. U.S. Postal Service , 108 M.S.P.R. 148, ¶¶ 7, 9
(2008) (concluding that the penalty of removal for one instance of hugging a
customer exceeded the bounds of reasonableness); Smith v. Department of the Air
Force, 48 M.S.P.R. 594, 596-600 (1991) (concluding that a 90-day suspension
4 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of factors relevant to the penalty determination in
adverse actions. 8
was the maximum reasonable penalty for an appellant’s refusal, for 45 minutes, of
a security police officer’s order to move her car, and her subsequent refusal of the
same officer’s order produce her driver’s license and remain in the agency’s
parking lot to receive a parking citation). However, because the Board cannot
mitigate the penalty in actions taken pursuant to 38 U.S.C. § 714, see 38 U.S.C.
§ 714(d)(2)(B), the administrative judge must remand the appellant’s removal to
the agency “for a redetermination of the penalty,” see Connor, 8 F.4th at 1326-27;
Semenov, 2023 MSPB 16, ¶¶ 49-50.
On remand, the administrative judge should also reconsider the appellant’s
whistleblower reprisal affirmative defense.
¶17As noted above, the appellant raised an affirmative defense of, among other
things, whistleblower reprisal. IAF, Tab 11 at 3-4, Tab 12 at 2. In order to
prevail on this defense, the appellant must prove by preponderant 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 action. 5 U.S.C.
§ 1221(e)(1); Covington v. Department of the Interior , 2023 MSPB 5, ¶ 15.
¶18Below, the appellant alleged that she made three protected disclosures
relating to the alleged stealing of time by not entering leave, nepotism, and
coworkers’ relationships with patients, and that the agency removed her in
reprisal for those disclosures. IAF, Tab 11 at 3-4, Tab 12 at 2. In the initial
decision, the administrative judge declined to determine whether the disclosures
were protected under 5 U.S.C. § 2302(b)(8) because she found that the appellant
failed to prove that they were a contributing factor in her removal. ID at 12. The
administrative judge relied exclusively on the knowledge/timing test, by which an
appellant can establish the contributing factor element by 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 the9
personnel action. ID at 11-12; see Covington, 2023 MSPB 5, ¶ 43. She found
that because there was no evidence that either the proposing or deciding official
were aware of the appellant’s alleged disclosures, the appellant failed to establish
this affirmative defense. ID at 12.
¶19On review, the appellant does not appear to directly challenge the
administrative judge’s findings.5 PFR File, Tab 1 at 4. Nonetheless, in light of
our decision to remand this appeal, we find it appropriate to revisit the appellant’s
whistleblower reprisal claim. The respondent in a corrective action appeal is the
agency, not its individual officials; therefore, a lack of actual knowledge by a
single official is not dispositive to the issue of contributing factor. Karnes v.
Department of Justice , 2023 MSPB 12, ¶ 20. Rather, contributing factor can be
established by a showing that an individual with actual or constructive knowledge
of the disclosure influenced the official taking the action. Id. The appellant has
not alleged or proven any such facts here, and therefore, we discern no basis for a
finding of constructive knowledge.
¶20In any event, the knowledge/timing test is not the only way for an appellant
to satisfy the contributing factor element. Rather, when an appellant fails to meet
this test, the Board will consider other evidence such as evidence pertaining to
the strength or weakness of the agency’s reason for taking the personnel action,
5 In the petition for review, the appellant reiterates her three disclosures. PFR File,
Tab 1 at 4. She asserts that after she made them, she was also subjected to a hostile
work environment. Id. While not entirely clear, it appears that the appellant may be
reasserting her claim, from below, that she disclosed to the investigative board that she
was subjected to “[h]arrassment, bullying, and threats.” IAF, Tab 11 at 4. If she is, we
agree with the administrative judge that this disclosure was not protected. IAF, Tab 12
at 2. The only information the appellant claimed to have specifically disclosed to the
investigative board was her conclusion that she was harassed. IAF, Tab 11 at 3-4, 36.
Disclosures of harassment may be protected. Ayers v. Department of the Army ,
123 M.S.P.R. 11, ¶ 13 (2015). However, her general suggestion of a hostile work
environment is too vague and conclusory to constitute a protected disclosure. See Lewis
v. Department of Defense , 123 M.S.P.R. 255, ¶ 12 (2016) (determining that vague and
conclusory allegations of a hostile work environment and mismanagement are
insufficient to merit a finding of Board jurisdiction over an individual right of action
appeal). 10
whether the whistleblowing was personally directed at the proposing or deciding
official, 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).
Thus, on remand, the administrative judge should consider whether the appellant
established the contributing factor element apart from the knowledge/timing test,
and if so, whether the alleged disclosures were protected under 5 U.S.C.
§ 2302(b)(8).
We discern no basis to disturb the administrative judge’s findings regarding the
appellant’s remaining affirmative defenses.
¶21As noted, the appellant also asserted below that the agency retaliated
against her because of her EEO activity and committed harmful error when the
deciding official did not review her response to the notice of proposed removal.
IAF, Tab 8 at 2, Tab 9 at 3, Tab 12 at 3. The administrative judge found that the
appellant failed to establish either affirmative defense. ID at 12 -14.
¶22As to the harmful error argument, we agree with the administrative judge’s
finding that the appellant failed to prove this claim because the record
demonstrates that it was the appellant’s own actions that resulted in the deciding
official not reviewing her response to the notice of proposed removal.6 ID
6 The appellant’s allegation that the deciding official did not consider her response to
the notice of proposed removal also implicates due process concerns as it relates to her
meaningful opportunity to respond to the charges against her. See Cleveland Board of
Education v. Loudermill , 470 U.S. 532, 546 (1985). The Board has held that an
employee cannot be said to have had a meaningful opportunity to present her side of the
story and to invoke the discretion of the deciding official if the deciding official did not
read the employee’s written response to the proposal notice before issuing a decision.
Hodges v. U.S. Postal Service , 118 M.S.P.R. 591, ¶ 6 (2012). Here, however, the
deciding official’s failure to consider the appellant’s reply is directly derived from the
appellant’s failure to submit it to her and her decision to, instead, submit it to the
agency official responsible for considering step 3 grievances. IAF, Tab 14; PFR File,
Tab 1 at 3. The appellant’s decision to rely on a memorandum to submit her reply to an
agency employee other than the one explicitly named in the proposal notice does not
negate the agency’s effort to provide her with the opportunity to reply. Further, even if
due process required the agency to ensure that the appellant’s reply was eventually
forwarded to the deciding official for consideration, the appellant submitted her reply
on the due date, and the removal decision was issued 8 business days later, leaving the11
at 13-14; HR (testimony of the appellant). With respect to the appellant’s EEO
reprisal claim, the administrative judge discussed both the motivating factor
standard, citing to Savage v. Department of the Army , 122 M.S.P.R. 612, ¶ 41
(2015), overruled in part on other grounds by Pridgen v. Office of Management
and Budget, 2022 MSPB 31, and the standard applied by the Board for general
reprisal claims, citing to Warren v. Department of the Army , 804 F.2d 654,
656-58 (Fed. Cir. 1986). ID at 12-13. Ultimately, she found that the appellant
did not provide evidence that her EEO activity was a motivating factor in the
decision to remove her, and that she, therefore, did not show that her removal
“was the consequence of illegal retaliation.” ID at 13.
¶23When an appellant alleges reprisal based on EEO activity, the Title VII
standard applies, not the Warren standard. Pridgen, 2022 MSPB 31, ¶¶ 30-32.
Although the administrative judge discussed the Warren standard in the initial
decision, she nonetheless appropriately found that the appellant failed to prove
that her EEO activity was a motivating factor in her removal, as required under
Title VII. See Pridgen, 2022 MSPB 31, ¶¶ 20-22, 30. We discern no basis to
disturb this finding.
ORDER
¶24For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with Semenov, 2023 MSPB
16, and this Remand Order. On remand, the administrative judge shall first set a
deadline for the agency to conduct the penalty redetermination, reissue an agency
decision, and notify the administrative judge of that decision.
¶25After the agency provides the administrative judge with the penalty
redetermination, the administrative judge shall then address whether the agency’s
agency with little time to fulfill such obligation. IAF, Tab 5 at 11, 16. Moreover, the
appellant has not proven, or even alleged, that the deciding official knew or should have
been aware that the appellant had submitted a reply to another agency employee. Based
on the foregoing, we find that the agency met its due process requirement to provide the
appellant with a meaningful opportunity to reply.12
error in applying the substantial evidence standard of proof to its original action
was harmful, see 5 U.S.C. § 7701(c)(2)(A); Semenov, 2023 MSPB 16, ¶¶ 21-24,
and whether its new penalty is supported by substantial evidence, Connor, 8 F.4th
at 1325-36. In so doing, the administrative judge shall provide the parties with an
opportunity to present evidence and argument addressing these issues.7
¶26The administrative judge shall then issue a new initial decision including
her findings on whether the agency committed harmful error in applying the
substantial evidence standard of proof to its action and, if not, whether the new
penalty is supported by substantial evidence. See 5 U.S.C. § 7701(a)(1), (b)(1);
Sayers, 954 F.3d at 1376-77; Semenov, 2023 MSPB 16, ¶¶ 24-25 . Regardless of
whether the appellant proves harmful error in the agency’s application of the
substantial evidence standard of proof in its decision, if any argument or evidence
adduced on remand affects the administrative judge’s prior analysis on the
appellant’s affirmative defenses of EEO reprisal and harmful error for failing to
consider her reply to the agency’s notice of proposed removal, she should address
such argument or evidence in the remand initial decision. See Semenov,
2023 MSPB 16, ¶ 25. The remand initial decision should also include additional
analysis of the appellant’s whistleblower reprisal affirmative defense, as set forth
7 The administrative judge shall hold a hearing limited to the issues on remand if one is
requested by the appellant. 5 U.S.C. § 7701(a)(1), (b)(1); see Semenov, 2022 MSPB 16,
¶ 24 (instructing an administrative judge to hold a supplemental hearing addressing
whether the agency’s use of the substantial evidence standard in a 38 U.S.C. § 714
removal decision constituted harmful error).13
above. When issuing a new initial decision on these matters, the administrative
judge may incorporate the findings and conclusions of the prior initial decision,
consistent with this Remand Order, into that new initial decision.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.14 | Allen_MarimekkoAT-0714-18-0278-I-1__Remand_Order.pdf | 2024-05-10 | MARIMEKKO ALLEN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0714-18-0278-I-1, May 10, 2024 | AT-0714-18-0278-I-1 | NP |
1,497 | https://www.mspb.gov/decisions/nonprecedential/DeVane_Yolanda_B_NY-0752-18-0202-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
YOLANDA BELLE DEVANE,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
NY-0752-18-0202-I-1
DATE: May 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christine Burns , Holtsville, New York, for the appellant.
Alison Stump , Esquire, New York, New York, for the agency.
Byron D. Smalley , 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 removal. On petition for review, the appellant argues that she did
not know she had done anything wrong when she claimed unemployment benefits
for weeks during which she was in a pay status with the agency. She reiterates
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
her argument that she did not intend to take the money for personal gain because
she needed it to commute to work on public transportation. The appellant also
reiterates her argument that she was disparately punished and, for the first time
on review, asserts that the reason for her disparate punishment is race
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).
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 During the pendency of the petition for review, the Board issued Singh v. U.S. Postal
Service, 2022 MSPB 15, ¶ 9, in which it overruled some of the precedent upon which
the administrative judge relied in analyzing the consistency of the penalty.
Nevertheless, we find that Singh does not warrant a different outcome in this 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. 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 | DeVane_Yolanda_B_NY-0752-18-0202-I-1__Final_Order.pdf | 2024-05-10 | YOLANDA BELLE DEVANE v. DEPARTMENT OF THE TREASURY, MSPB Docket No. NY-0752-18-0202-I-1, May 10, 2024 | NY-0752-18-0202-I-1 | NP |
1,498 | https://www.mspb.gov/decisions/nonprecedential/Adoue_RayneDC-0752-19-0154-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RAYNE ADOUE,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-0752-19-0154-I-1
DATE: May 10, 2024
THIS ORDER IS NONPRECEDENTIAL1
Rayne Adoue , Bourg, Louisiana, pro se.
Misty Addison , APO, APO/FPO Europe, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal with prejudice 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 Washington 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
By letter of decision dated October 25, 2018, the Department of the Army
removed the appellant from her Nurse position at the Landstuhl Regional Medical
Center in Landstuhl, Germany. Initial Appeal File (IAF), Tab 1 at 12-15; Tab 6
at 10. She appealed her removal to the Board and elected to register as an e-filer.
IAF, Tab 1 at 2, 5. The administrative judge arranged a telephonic status
conference for December 20, 2018. IAF, Tab 3. The appellant failed to appear
for the conference. Accordingly, the administrative judge ordered the appellant
to show cause as to why she failed to appear. IAF, Tab 9. He set a deadline to
respond of January 3, 2019, and informed the appellant that if she failed to
respond, sanctions may be imposed. Id. Due to the partial Government shutdown
of 2018-19, the administrative judge extended the deadline to respond until
February 6, 2019. IAF, Tab 10.
One day before the deadline to respond, on February 5, 2019, the appellant
withdrew her registration as an e-filer and updated her address from one in
Germany to one in Baton Rouge, Louisiana. IAF, Tab 11 at 2. However, the
appellant did not respond to the order to show cause. Thus, on February 7, 2019,
the administrative judge ordered the appellant again to show cause as to why she
failed to appear for the telephonic status conference and respond to the first order
to show cause. IAF, Tab 12. This time, he warned the appellant that if she failed
to respond her appeal would be dismissed with prejudice for failure to prosecute.
Id. at 1-2. This second show cause order was mailed to the appellant’s old
address in Germany. Id. at 3. The appellant again did not respond.
On February 27, 2019, the administrative judge issued an initial decision
dismissing the appeal for failure to prosecute. IAF, Tab 13, Initial Decision (ID)
at 1. He found that by failing to respond to his orders, the appellant had not
exercised basic due diligence and thus had abandoned her appeal. ID at 2. He
further found that the imposition of sanctions was warranted to serve the interests
of justice. Id. He informed the appellant that the initial decision would become2
final on April 3, 2019, unless she filed a petition for review by that date. ID at 3.
Like the second show cause order, the initial decision was mailed to the
appellant’s old address in Germany. IAF, Tab 14.
On April 7, 2019, the appellant re-registered as an e-filer. IAF, Tab 15
at 2. On May 1, 2019, she filed a petition for review. Petition for Review (PFR)
File, Tab 1 at 1, 123. In an acknowledgment letter, the Acting Clerk of the Board
informed the appellant that her petition was untimely, as it was not postmarked or
received by April 3, 2019, and that she must submit a motion to accept the filing
as timely and/or waive the time limit for good cause. The Board set the deadline
to file said motion as May 18, 2019. PFR File, Tab 2 at 1-2.
On May 16, 2019, the appellant filed a motion to accept her filing as timely
and/or to waive the time limit. PFR File, Tab 4 at 4. She asserts, under penalty
of perjury, that because the second show cause order and the initial decision were
served on her old address in Germany, she did not receive notice of them until
April 7, 2019, the date she re-registered as an e-filer. Id. at 3-5, 15. According
to the appellant, it was only then that she was able to access all of the records
submitted in the appeal. Id. at 5. She also claims, in the alternative, that there is
good cause for the waiver of the filing deadline due to extenuating personal
circumstances. Id. at 6. These circumstances include her alcoholism, moving
from Germany to the United States, finding tenants and a property manager for
her home in Germany, and having general difficulties with the e -Appeal system.
Id. at 9-13.
The agency has responded to the appellant’s petition for review. PFR File,
Tab 5. In its response, the agency concedes that the appellant did not timely
receive the second show cause order or the initial decision. Id. at 6. Despite this,
the agency argues that the appellant nonetheless failed to show good cause for her
failure to appear at the telephonic status conference or respond to the first show
cause order. Id. at 7. The appellant has replied to the agency’s response. PFR
File, Tab 6. 3
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s petition for review is timely under 5 C.F.R. § 1201.114(e).
In her sworn affidavit, the appellant contends that she did not receive the
initial decision until more than 5 days after the date of its issuance because the
regional office sent it to her old address despite the fact that she terminated her
e-filer status and notified the administrative judge of her new address. PFR File,
Tab 4 at 17-18. The record supports the appellant’s explanation.
On February 5, 2019, the appellant terminated her e-filer status and advised
the administrative judge that her address had changed and listed her new address.
IAF, Tab 11 at 2. Nevertheless, the initial decision, which was issued on
February 27, 2019, was sent to the appellant’s old address. IAF, Tab 14. Under
5 C.F.R. § 1201.114(e), when a party has shown that the initial decision was
received more than 5 days after the date of its issuance, a petition for review will
be considered timely if it is filed within 30 days of the date the initial decision
was received. Buniff v. Department of Agriculture , 79 M.S.P.R. 118, ¶ 6 (1998).
Here, the appellant re-registered as an e-filer and thus gained access to the initial
decision on April 7, 2019, which is more than 5 days after the initial decision’s
issuance. IAF, Tab 15 at 2. Because the appellant filed her petition for review on
May 1, 2019, which was within 30 days from the date she received the initial
decision, we find that her petition was timely filed.
The extreme sanction of dismissal with prejudice for failure to prosecute is not
warranted.
Dismissal for failure to prosecute is an extreme sanction that may be
imposed if a party fails to prosecute or defend an appeal. 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, however, must be used only when
necessary to serve the ends of justice, such as when a party has failed to exercise
basic due diligence in complying with an order or has exhibited negligence or bad
faith in her efforts to comply. Chandler, 87 M.S.P.R. 369, ¶ 6.4
The administrative judge here found that the appellant failed to comply
with the Board’s order to appear for a telephonic status conference and failed to
respond to both subsequent show cause orders. ID at 2. However, like the initial
decision discussed above, the second show cause order, issued on February 7,
2019, was mailed to the appellant’s old address. IAF, Tab 12 at 3. This is
despite the fact that 2 days prior the appellant had terminated her e-filer status
and advised the administrative judge that her address had changed and listed her
new address. IAF, Tab 11 at 2. Accordingly, we find that the appellant was not
properly served the second show cause order.2 Thus, the appellant’s failure to
comply only applies to the telephonic status conference and the first show cause
order. Her failures here do not support the extreme sanction of dismissal for
failure to prosecute.
The Board has declined to affirm a dismissal for failure to prosecute when,
as here, the appellant failed to obey two Board orders and the administrative
judge did not specifically warn her of his intent to dismiss the appeal for failure
to prosecute. Wiggins v. Department of the Air Force , 113 M.S.P.R. 443,
¶¶ 13-14 (2010); Tully v. Department of Justice , 95 M.S.P.R. 481, ¶ 12 (2004)
(finding dismissal for failure to prosecute too severe when the appellant twice
failed to file prehearing submissions and failed to appear at a status conference).
The administrative judge here never specifically warned the appellant that he
intended to dismiss the appeal for lack of prosecution, but rather generally
warned the appellant that “sanctions may be imposed” if she failed to respond.3
IAF, Tab 9 at 1. The fact that the administrative judge issued a second show
cause order further demonstrates that the appellant’s failure to respond to the first
show cause order was insufficient to warrant the extreme sanction of dismissal for
2 The agency here concedes that neither the initial decision nor the second show cause
order were timely received. PFR File, Tab 5 at 6.
3 While the administrative judge’s second show cause order specifically informed the
appellant that the appeal would be dismissed with prejudice if she failed to respond, this
order was not properly served on the appellant. Supra p. 5.5
failure to prosecute. Under these circumstances, we find that the sanction of
dismissal for failure to prosecute is too severe. Because we find the petition for
review was timely filed and that dismissal was unwarranted, we do not reach the
appellant’s arguments related to the reasons for her alleged delay and failure to
respond. PFR File, Tab 1 at 9, Tab 4 at 6-13.
ORDER
For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this remand order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Adoue_RayneDC-0752-19-0154-I-1__Remand_Order.pdf | 2024-05-10 | RAYNE ADOUE v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-0752-19-0154-I-1, May 10, 2024 | DC-0752-19-0154-I-1 | NP |
1,499 | https://www.mspb.gov/decisions/nonprecedential/Johnson_Michael_T_DC-0752-18-0791-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL T. JOHNSON,
Appellant,
v.
DEPARTMENT OF STATE,
Agency.DOCKET NUMBER
DC-0752-18-0791-I-1
DATE: May 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael T. Johnson , Washington, D.C., pro se.
Trent Buatte , Esquire, Marianne Perciaccante , and Camille V’Estres ,
Washington, D.C., for the agency.
Moustapha Goumballa , Rockville, 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 constructive removal appeal for lack of jurisdiction. For the
reasons set forth below, the appellant’s petition for review is DISMISSED as
untimely filed without good cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
Effective August 20, 2018, the agency indefinitely suspended the appellant
from his Information Technology Specialist position. Initial Appeal File (IAF),
Tab 12 at 197. He retired from Federal civilian service effective August 21,
2018. IAF, Tab 12 at 191, Tab 14 at 8. Thereafter, he filed a Board appeal
raising an involuntary retirement claim, and he requested a hearing. IAF, Tab 1
at 1-5, Tab 10 at 7. On December 17, 2018, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction without holding the
requested hearing. IAF, Tab 19, Initial Decision (ID) at 1 & n.1, 11-12.
On August 30, 2019, the appellant filed a two-sentence petition for review
arguing that his case was “adversely affected” by the Government shutdown and
that he never received any information concerning his appeal rights or how the
shutdown or the Board’s lack of a quorum affected those rights. Petition for
Review (PFR) File, Tab 1 at 3. The agency filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has failed to show good cause for the 6-month delay in filing his
petition for review.
Generally, 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 issuance, within 30 days after
the date he received the initial decision. 5 C.F.R. § 1201.114(e). Here, the
administrative judge informed the appellant that the initial decision would
become the Board’s final decision on January 21, 2019, unless a petition for
review was filed by that date. ID at 12. She further informed him that, if he
received the initial decision more than 5 days after the date of issuance, he could
file a petition for review within 30 days after the date of receipt. Id.
The certificate of service reflects that, on December 17, 2018, the initial
decision was served electronically by email on the appellant, who had registered
as an e-filer. IAF, Tab 1 at 2, Tab 20; see 5 C.F.R. § 1201.14(e)(1) (2019)2
(providing that registration as an e-filer constitutes consent to accept electronic
service of documents issued by the Board). Thus, we find that the appellant
received the initial decision on the same date it was issued on December 17,
2018. ID at 1; IAF, Tab 20; see 5 C.F.R. § 1201.14(m)(2) (2019) (providing that
Board documents served electronically on registered e-filers are deemed received
on the date of electronic submission). Because the 35th day after December 17,
2018, fell on Monday, January 21, 2019, which was a Federal holiday,2 the
original deadline for filing a petition for review was Tuesday, January 22, 2019.
See 5 C.F.R. §§ 1201.23, 1201.114(e).
However, as explained in the Office of the Clerk of the Board’s
September 4, 2019 letter acknowledging the appellant’s petition for review, the
Board ceased operations from December 22, 2018, through January 25, 2019, due
to the partial shutdown of the Federal Government. PFR File, Tab 2 at 1-2. The
Board issued a press release on December 21, 2018, notifying the public that all
filing and processing deadlines would be extended by the number
of calendar days that the Board was shut down. 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_Part
ial_Government_Shutdown_1580906.pdf (last visited May 9, 2024). Because the
Board was shut down for 35 calendar days, the original January 22, 2019 deadline
for filing a petition for review was extended by 35 days to February 26, 2019.
Therefore, we find that the appellant’s August 30, 2019 petition for review was
untimely filed by over 6 months.3 PFR File, Tab 1.
2 We take official notice that January 21, 2019 was a Federal holiday. See 5 C.F.R.
§ 1201.64 (providing that the Board may take official notice of matters of common
knowledge or matters that can be verified).
3 The Office of the Clerk of the Board docketed the appellant’s pleading that was
electronically filed with the Board’s Washington Regional Office on August 30, 2019,
as a petition for review. PFR File, Tab 1, Tab 2 at 1. Thus, we find that the filing date
of the appellant’s petition for review is the August 30, 2019 date of electronic3
The Board may waive the time limit for filing a petition for review upon a
showing of good cause for the untimely filing. 5 C.F.R. § 1201.114(g). To
establish good cause, 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). 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).
As discussed above, the appellant argued in his brief petition for review
that his case was “adversely affected” by the Government shutdown “for over
two months and counting.” PFR File, Tab 1 at 3. He further claimed that he
never received any information concerning his appeal rights or how the shutdown
or lack of a quorum affected those rights. Id. In its acknowledgment letter, the
Office of the Clerk of the Board informed the appellant that his petition for
review appeared to be untimely filed and that he could file a motion (including a
statement signed under penalty of perjury or an affidavit) with the Board to
accept his filing as timely or to waive the time limit for good cause. PFR File,
Tab 2 at 2. The appellant has not filed any additional argument or evidence
concerning the timeliness of his petition for review.
Although the appellant’s pro se status weighs in favor of finding good
cause, we find that this factor is outweighed by the remaining Moorman factors.
See Allen v. Office of Personnel Management , 97 M.S.P.R. 665, ¶¶ 8, 10 (2004)
submission. See 5 C.F.R. § 1201.4( l) (providing that the date of filing by e-filing is the
date of electronic submission).4
(finding that, although the appellant’s pro se status was a factor weighing in his
favor, it was insufficient to excuse his unexplained, 14-day filing delay). In
particular, we find that the length of the appellant’s 6-month filing delay is
significant. See Summerset v. Department of the Navy , 100 M.S.P.R. 292, ¶ 7
(2005) (finding a 33-day filing delay significant). We further find unreasonable
the appellant’s arguments that he was adversely affected by the Government
shutdown and that he did not receive information about his appeal rights or how
the shutdown or lack of a quorum affected those rights. PFR File, Tab 1 at 3.
The initial decision contained clear notice of his appeal rights, the relevant time
limits, and how the Board’s lack of a quorum rendered the Board unable to issue
decisions on petitions for review until a quorum was restored. ID at 12-19. The
initial decision further explained that the lack of a quorum did not serve to extend
the time limit for filing a petition for review. ID at 13. Moreover, as discussed
above, the Board issued a press release on December 21, 2018, notifying the
public that all filing and processing deadlines would be extended by the number
of calendar days that the Board was shut down. 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 9, 2024).
Considering the significant length of the filing delay, that the appellant does not
dispute receiving the initial decision, and that the press release was available on
the Board’s website, we find that he has failed to show that he exercised due
diligence or ordinary prudence in pursuing his appeal rights.4 In addition, the
appellant has not presented any evidence of circumstances beyond his control or
4 As explained above, the original deadline for filing a petition for review was
January 22, 2019. Although the initial decision incorrectly stated that the initial
decision would become final on January 21, 2019, unless a petition for review was filed
by that date, we find that this relatively minor error does not provide a reasonable
excuse for the appellant’s 6-month untimely filing. ID at 12.5
of unavoidable casualty or misfortune that prevented him from timely filing a
petition for review. Therefore, under the particular circumstances of the case, we
find that the appellant has failed to establish good cause for his untimely filing.
See, e.g., Carrasquillo v. Department of Agriculture , 98 M.S.P.R. 83, ¶¶ 2, 5-6
(2004) (dismissing the appellant’s petition for review as untimely filed by 2
weeks in an involuntary retirement appeal).
Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the Board’s lack of jurisdiction over the appellant’s constructive
removal appeal.
NOTICE OF APPEAL RIGHTS
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time 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. 6
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you7
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 8
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If
so, and your judicial petition for review “raises no challenge to the Board’s disposition
of allegations of a prohibited personnel practice described in section 2302(b) other than
practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then
you may file a petition for judicial review either with the U.S. Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction .5 The court of
appeals must receive your petition for review within 60 days of the date of
issuance of this decision. 5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Johnson_Michael_T_DC-0752-18-0791-I-1__Final_Order.pdf | 2024-05-10 | MICHAEL T. JOHNSON v. DEPARTMENT OF STATE, MSPB Docket No. DC-0752-18-0791-I-1, May 10, 2024 | DC-0752-18-0791-I-1 | NP |
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