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1,600 | https://www.mspb.gov/decisions/nonprecedential/Fischer_DanielleSF-315H-19-0636-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIELLE FISCHER,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
SF-315H-19-0636-I-1
DATE: April 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Danielle Fischer , Kapolei, Hawaii, pro se.
James L. Paul , Esquire, Schofield Barracks, Hawaii, 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 a
hearing. On petition for review, the appellant attaches a copy of a Military
Protective Order and a copy of her performance appraisal. She challenges the
merits and timing of the agency’s termination action and asks that she be allowed
to resign in lieu of termination. Generally, we grant petitions such as this one
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you3
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Fischer_DanielleSF-315H-19-0636-I-1__Final_Order.pdf | 2024-04-30 | DANIELLE FISCHER v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-315H-19-0636-I-1, April 30, 2024 | SF-315H-19-0636-I-1 | NP |
1,601 | https://www.mspb.gov/decisions/nonprecedential/Donahue_Maria_S_DC-315H-23-0248-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARIA SUSANA DONAHUE,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-315H-23-0248-I-1
DATE: April 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Maria Susana Donahue , Poquoson, Virginia, pro se.
Everett L. Bensten , Esquire, Norfolk, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant, among other things, disputes the merits of the
agency’s termination action, indicates that she has new evidence relevant to her
appeal but does not describe or attach such evidence, indicates that she believes
that the administrative judge erred in his interpretation or application of the 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).
suggests that she is at a disadvantage because she does not have legal
representation, and requests a hearing. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Donahue_Maria_S_DC-315H-23-0248-I-1__Final_Order.pdf | 2024-04-30 | MARIA SUSANA DONAHUE v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-315H-23-0248-I-1, April 30, 2024 | DC-315H-23-0248-I-1 | NP |
1,602 | https://www.mspb.gov/decisions/nonprecedential/Johns_DelonSF-315H-18-0043-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DELON JOHNS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-315H-18-0043-I-1
DATE: April 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
S
teven E. Brown , Esquire, Westlake Village, California, for the appellant.
Chung H. Han , 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 his termination appeal as moot. 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).
2
BACKGROUND
The appellant filed this appeal of the agency’s decision to terminate him
from his Police Officer position. Johns v. Department of Veterans Affairs , MSPB
Docket No. SF-315H-18-0043-I-1, Initial Appeal File (0043 IAF), Tab 1. The
agency submitted evidence that it had rescinded the termination, restored the
appellant to duty, and paid him back pay and benefits. 0043 IAF, Tab 12 at 7,
Tab 17 at 6-7, Tab 20 at 7-8. The appellant, through counsel, indicated that he
did not oppose the dismissal of the appeal as moot. 0043 IAF, Tab 22 at 4. On
February 20, 2018, the administrative judge issued an initial decision dismissing
the appeal as moot. 0043 IAF, Tab 23, Initial Decision (ID) at 1. Therein, the
administrative judge informed the appellant that the initial decision would
become final on March 27, 2018, if neither party filed a petition for review. ID
at 3. No timely petition for review was filed.
Approximately 2 years and 8 months later, on November 25, 2020, the
appellant filed a new appeal challenging various matters including, among other
things, his uniform allowance, denial of overtime, the timing of step increases,
and issues with his accrual of leave. Johns v. Department of Veterans Affairs ,
MSPB Docket No. SF-3443-21-0104-I-1, Initial Appeal File (0104 IAF), Tab 2
at 7, Tab 12 at 3, Tab 13 at 3-4. The administrative judge dismissed that appeal
for lack of subject matter jurisdiction, and the appellant filed a petition for
review. While that matter was pending on review, the appellant clarified that he
had intended some of his arguments to be a challenge to the February 20, 2018
initial decision dismissing this termination appeal as moot. Johns v. Department
of Veterans Affairs , MSPB Docket No. SF-3443-21-0104-I-1, Petition for Review
(0104 PFR) File, Tabs 5-6. Thus, some of his pleadings were docketed as a
petition for review in this termination appeal. Johns v. Department of Veterans
Affairs, MSPB Docket No. SF-315H-18-0043-I-1, Petition for Review (0043 PFR)
File, Tabs 1-4. The Clerk’s Office notified the appellant of the issue regarding
3
the timeliness of his petition for review, but the appellant has not responded to
that notice. 0043 PFR File, Tab 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). Here, the initial
decision was issued on February 20, 2018, and correctly informed the appellant
that the deadline to file a petition for review was March 27, 2018. ID at 3. The
appellant did not file his petition for review until November 25, 2020,
approximately 2 years and 8 months after the filing deadline. 0043 PFR File,
Tabs 1, 4. Accordingly, his petition for review is untimely filed.
The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the delay in filing. Palermo, 120 M.S.P.R.
694, ¶ 4; 5 C.F.R. § 1201.114(g). The party who submits an untimely petition for
review has the burden of establishing good cause for the untimely filing by
showing that he 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 his excuse and the party’s 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 Office of the Clerk of the Board notified the appellant that his petition
for review appeared untimely filed and directed the appellant to submit a motion
asking the Board to accept his petition for review as timely filed or to waive the
4
time limit for good cause, accompanied by a statement signed under penalty of
perjury or an affidavit showing either that his petition was timely filed or that
there is good cause for the late filing. 0043 PFR File, Tab 4 at 1-2. The
appellant did not submit a motion or signed statement in response to that notice.
Nevertheless, his petition for review and supplements contain attestations and
declarations under the penalty of perjury that his assertions therein are from his
personal knowledge and are true and correct. 0043 PFR File, Tab 1 at 2, Tab 2
at 3, Tab 3 at 3. Thus, we have considered those pleadings to the extent they
contain assertions related to the issues of timeliness and whether good cause
exists to waive the filing time limit. Cf. 5 C.F.R. § 1201.114(g) (requiring a
motion to waive the petition for review filing time limit to be accompanied by an
affidavit or sworn statement under the penalty of perjury).
Despite the appellant’s pro se status, we find that the delay of
approximately 2 years and 8 months in filing his petition is lengthy.2 See
Wirzberger v. Department of the Treasury , 101 M.S.P.R. 448, ¶ 8 (2006) (noting
that a 1-year delay in filing a petition for review was significant, even when
considering an appellant’s pro se status). The appellant alleges that the
underlying termination appeal is not moot because he did not receive the correct
back pay resulting from the agency’s rescission of the removal action, including
the correct pay step, uniform allowance, and annual and sick leave. 0043 PFR
File, Tab 1 at 7, Tab 2 at 3, Tab 3 at 3. In a pleading dated December 30, 2020,
the appellant asserts that he did not learn of this error until “a few months ago,”
which prompted his untimely filed petition for review. 0043 PFR File, Tab 2 at 3.
The appellant’s claim that he did not realize that he had grounds for a petition for
review does not establish good cause for the untimely filing of his petition. See
Damaso v. Office of Personnel Management , 86 M.S.P.R. 371, ¶ 5 (2000).
Similarly, the discovery of, or the decision to pursue, a new legal argument after
2 Although the appellant was represented before the administrative judge, he appears to
be proceeding pro se on review. 0043 PFR File, Tab 2 at 1, Tab 3 at 1.
5
the period for filing a petition for review has expired does not constitute good
cause for a delayed filing. Id. When the initial decision was issued, the appellant
was represented by counsel, who asserted on the appellant’s behalf at that time
that the appellant “no longer opposes the dismissal of this appeal as moot.”
0043 IAF, Tab 22 at 4. That was the time for the appellant to confirm that he had
received all of the relief to which he would have been entitled had he prevailed in
this appeal. We see no indication from his submissions that he could not have
discovered the alleged discrepancies in his pay, uniform allowance, or leave at
that time. He has not alleged or shown that the agency engaged in any fraud,
misrepresentation, or deception that impeded any effort by him or his counsel to
confirm those matters. Under these circumstances, we find that he has failed to
demonstrate good cause for waiving the time limit.3
The appellant’s remaining arguments involve the merits of the mootness
issue. E.g., 0043 PFR File, Tab 1 at 4-15. These arguments do not concern the
timeliness of his petition for review, and we therefore decline to consider them.4
See Brame v. Department of Veterans Affairs , 98 M.S.P.R. 224, ¶ 5 (2005).
Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
3 To the extent that the appellant has attempted to characterize his petition as seeking
agency compliance with the administrative judge’s order resolving this termination
appeal, we find no basis for considering it as such. The administrative judge dismissed
the appeal as moot, and the initial decision did not order the agency to provide any
relief to the appellant. ID at 3. Thus, there is no basis for considering this as an
enforcement matter. 5 C.F.R. part 1201, subpart F.
4 As discussed, the appellant filed a separate appeal challenging various alleged actions
including, among other things, the agency’s alleged failure to pay him at the correct
step level and correctly pay his uniform allowance. 0104 IAF, Tab 2. The
administrative judge issued an initial decision dismissing that appeal for lack of
jurisdiction, and the appellant filed a petition for review. 0104 IAF, Tab 15, Initial
Decision (Jan. 14, 2021); 0104 PFR File, Tab 1. The Board will address that petition
for review in a separate order in Johns v. Department of Veterans Affairs , MSPB Docket
No. SF-3443-21-0104-I-1.
6
of the petition for review. The initial decision remains the final decision of the
Board regarding the mootness issue.
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
8
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.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
9
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
10
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Johns_DelonSF-315H-18-0043-I-1_Final_Order.pdf | 2024-04-30 | DELON JOHNS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-315H-18-0043-I-1, April 30, 2024 | SF-315H-18-0043-I-1 | NP |
1,603 | https://www.mspb.gov/decisions/nonprecedential/Kinnard_BarbaraAT-0752-20-0449-I-2__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BARBARA KINNARD,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0752-20-0449-I-2
DATE: April 30, 2024
THIS ORDER IS NONPRECEDENTIAL1
Shaun C. Southworth and Georgia A. Lawrence , Esquire, Atlanta, Georgia,
for the appellant.
Kathleen Pohlid , 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 her involuntary retirement appeal for lack of jurisdiction. For the
reasons discussed below, we GRANT the appellant’s petition for review,
REVERSE the administrative judge’s findings that the appellant (1) did not make
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
nonfrivolous allegations that the agency coerced her retirement based on its
decisions to deny her requested accommodation and propose her removal when it
knew or should have known that it could not sustain the action, and (2) did not
show good cause for the delay in refiling the appeal, and AFFIRM the remainder
of the initial decision. As such, we REMAND the case to the Atlanta Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant was an Advanced Medical Support Assistant at the agency’s
Nashville, Tennessee office. Kinnard v. Department of Veterans Affairs , MSPB
Docket No. AT-0752-20-0449-I-1, Initial Appeal File (IAF), Tab 1 at 7. On
September 13, 2018, the agency proposed to remove her based on charges of
inappropriate conduct, absence without leave, and failure to follow leave
requesting procedures. Id. at 7-9. The appellant retired, effective September 27,
2018, before the agency issued a decision on the proposed removal. IAF, Tab 5
at 41. She subsequently filed a formal complaint of employment discrimination
alleging reprisal for whistleblowing activity and prior equal employment
opportunity (EEO) activity, and stating that her retirement was involuntary. Id.
at 38. The agency issued a final agency decision (FAD), finding that she did not
prove retaliation for prior EEO activity or that she was constructively discharged.
IAF, Tab 1 at 10-16.
Following the agency’s FAD, the appellant filed a Board appeal
challenging her retirement as involuntary. Id. at 3, 5. The appeal was dismissed
without prejudice because the appellant sought representation, and the
administrative judge advised her to refile her appeal by August 21, 2020. IAF,
Tab 15 at 1-2. The appellant refiled her appeal on August 22, 2020. Kinnard v.
Department of Veterans Affairs , MSPB Docket No. AT-0752-20-0449-I-2,
Refiled Appeal File (RAF), Tab 1. The administrative judge issued orders
informing the parties that the refiled appeal appeared to be untimely filed and that
3
it was unclear whether the appeal was within the Board’s jurisdiction. RAF,
Tabs 8-9. After the parties responded on the issues of jurisdiction and timeliness,
RAF, Tabs 16-18, the administrative judge issued an initial decision dismissing
the appeal for lack of jurisdiction, RAF, Tab 19, Initial Decision (ID) at 1-2. He
found that the appellant failed to nonfrivolously allege that her retirement was
involuntary based on the agency’s failure to grant her requested accommodation
of an ergonomic chair, the proposal removal, or union advice. ID at 6-10. In the
alternative, the administrative judge also found that the appellant’s refiled appeal
was untimely filed without good cause shown for the delay.2 ID at 10 n.10.
The appellant has filed a petition for review and the agency has responded.
Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
An employee-initiated action, such as a resignation or retirement, is
presumed to be voluntary, and thus, outside the Board’s jurisdiction. Searcy v.
Department of Commerce , 114 M.S.P.R. 281, ¶ 12 (2010). However, an
employee may establish Board jurisdiction over an involuntary resignation or
2 Although the appellant does not challenge on review the administrative judge’s
alternative finding that the refiled appeal was untimely filed without a showing of good
cause for the delay, a dismissal without prejudice should not become a trap that would
deny the unwary pro se appellant the opportunity to have her case decided on the
merits. Brown v. Office of Personnel Management , 86 M.S.P.R. 417, ¶ 8 (2000). The
Board will find good cause for the untimeliness when a refiled appeal is untimely by
only a few days, there is some indication of confusion by the appellant, the decision
dismissing the original appeal without prejudice set a relatively arbitrary refiling
deadline, and there was no showing that the agency would be prejudiced by the delay.
Id. At the time of refiling, the appellant was pro se. RAF, Tab 1. The delay in filing
here was just 1 day. IAF, Tab 15 at 2; RAF, Tab 1 at 1. According to the appellant’s
declaration, made under penalty of perjury, she attempted to refile the appeal on the
date identified by the administrative judge, August 21, 2020, but was “unsuccessful”
due to “technological errors” and confusion about the Board’s error messages.
RAF, Tab 17 at 11. Moreover, the deadline of 60 days to refile the appeal is arbitrary,
and there is no indication that the agency was prejudiced in any way by the 1 -day delay.
Accordingly, we find that the appellant has established good cause for the de minimis
delay in refiling her appeal, and we waive the time limit for the refiled appeal. Slate v.
U.S. Postal Service , 92 M.S.P.R. 85, ¶ 7 (2002).
4
retirement by proving that she lacked a meaningful choice in the matter and the
agency’s wrongful actions deprived her of that choice. Bean v. U.S. Postal
Service, 120 M.S.P.R. 397, ¶¶ 8, 11 (2013). Among the ways that an employee
can establish involuntariness is by proving that the agency obtained the action
through duress or coercion. Searcy, 114 M.S.P.R. 281, ¶ 12. Alternatively, an
appellant may establish that her retirement was involuntary by showing that the
agency made misleading statements upon which she reasonably relied to her
detriment. Paige v. U.S. Postal Service , 106 M.S.P.R. 299, ¶ 9 (2007).
The touchstone of a voluntariness analysis is whether, considering the totality of
the circumstances, factors operated on the employee’s decision-making process
that deprived her of freedom of choice. Searcy, 114 M.S.P.R. 281, ¶ 12. If the
appellant presents a nonfrivolous allegation of Board jurisdiction in this regard,3
she is entitled to a hearing at which she must prove jurisdiction by a
preponderance of the evidence. Carey v. Department of Health & Human
Services, 112 M.S.P.R. 106, ¶ 6 (2009).
The appellant nonfrivolously alleged that the agency coerced her retirement based
on its decisions to deny her requested accommodation and propose her removal
when it knew or should have known that it could not sustain the action.
In her declaration made under penalty of perjury, the appellant made the
following assertions: (1) she had 32 years of service with the agency; (2) she
worked approximately 20 years in the Advanced Medical Support Assistant
position or a similarly titled position; (3) she had “31 years of exceptional service
with no write ups or disciplinary actions”; (4) “the vast majority of [her]
performance appraisal[s] throughout [her] tenure [were] outstanding”; and (5) in
the last 12-18 months of her employment, she was admonished4 and the agency
3 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s). An allegation will generally be considered 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. Id.
4 Although unclear, the appellant’s declaration made under penalty of perjury appears to
state that the admonishment occurred on or around June 2017, and it was “based on
5
proposed her removal, and such actions “were all a part of the intimidating and
retaliatory behavior” by the agency. RAF, Tab 16 at 16. Significantly, the
appellant alleged that in 2017 she was transferred to a different agency location
and was forced to work with a non -ergonomic office chair despite previously
having access to such equipment for a back-related disability from 2005. Id.
at 17; IAF, Tab 5 at 64. After the transfer, she requested an ergonomic chair as a
reasonable accommodation. RAF, Tab 16 at 17. According to the appellant,
despite numerous requests for an ergonomic chair to various agency personnel,
starting in June 2017, she could “no longer take the physical pain” of working
without an ergonomic chair, and was forced to retire. Id. She also alleged that
the agency’s proposed removal was unfounded and retaliatory. Id. at 16-20. In
particular, the appellant declared under penalty of perjury that specification 1 of
charge 1 and charges 2 and 3 were “factually false,” specification 2 of charge 1
was based on her protected activity (opposing discriminatory treatment), and the
proposed removal was based on retaliation for protected activity. Id. at 18-19.
In the initial decision, the administrative judge found that the length of
time between the denial of the appellant’s request for a reasonable
accommodation and her subsequent retirement—approximately 1 year and
3 months—rendered the denial immaterial to the jurisdictional issue and whether
she lacked a meaningful choice regarding her retirement. ID at 6-7. Regarding
the proposed removal, the administrative judge determined that the appellant
failed to make a nonfrivolous allegation that it was the agency’s wrongful actions
that deprived her of the choice to retire. ID at 8. In particular, he noted that the
appellant did not dispute that the agency had a basis for its most serious charge,
and she did not allege that the agency acted without evidence; he also interpreted
and rejected her contention that the agency relied upon evidence falsified by a
union official. Id.
unfounded allegations of [the appellant] yelling in a threatening manner.” RAF, Tab 16
at 16-17. The appellant also stated that the supervisor who admonished her harbored
“retaliatory animus” against her. Id. at 18.
6
On review, the appellant argues that the agency’s denial of her request for
an accommodation of her disability coerced her retirement. PFR File, Tab 1 at 6.
She further asserts that the proposed removal was based on unfounded allegations
and was a “retaliatory tool” used by the agency. Id. She asserts that she retired
due to the agency’s “intimidating and hostile actions.” Id. at 7.
The proper approach here is to view the appellant’s allegations collectively,
rather than individually. Trinkl v. Merit Systems Protection Board , 727 F. App’x
1007, 1010 (Fed. Cir. 2018).5 By doing so, we conclude that the appellant has
made a nonfrivolous allegation that the agency coerced her retirement by
engaging in discrimination and retaliation by denying her requested
accommodation, issuing her an admonishment, and proposing her removal based
on largely unfounded allegations. In Trinkl, 727 F. App’x at 1010, our reviewing
court held that, at the nonfrivolous allegation stage, the Board may not consider
the relative probative value of an appellant’s allegations over time; rather,
weighing allegations as more or less probative is appropriate only following a
jurisdictional hearing. Accordingly, we find that the administrative judge erred in
weighing the evidence and discounting the denied request for accommodation due
to its lack of temporal proximity to the appellant’s retirement. Moreover, the
Board has found that an appellant’s allegation that her retirement was involuntary
because the agency denied her request for an accommodation that would have
permitted her to continue working sufficed as a nonfrivolous allegation of the
Board’s jurisdiction. Carey, 112 M.S.P.R. 106, ¶ 7; see Hernandez v. U.S. Postal
Service, 74 M.S.P.R. 412, 416-18 (1997) (finding the appellant’s claim that the
agency denied his request for an orthopedic chair to accommodate his disability
was a nonfrivolous allegation that his resignation was involuntary).
Although the fact that an employee is faced with the unpleasant choice of
retiring or opposing an adverse action does not rebut the presumption of
5 The Board may follow a nonprecedential decision of the U.S. Court of Appeals for the
Federal Circuit when, as here, it finds its reasoning persuasive. LeMaster v.
Department of Veterans Affairs , 123 M.S.P.R. 453, ¶ 11 n.5 (2016).
7
voluntariness, Green v. Department of Veterans Affairs , 112 M.S.P.R. 59, ¶ 8
(2009), an appellant can establish that her retirement was involuntary by showing
that the agency knew or should have known that the threatened adverse action
could not be substantiated, Bean, 120 M.S.P.R. 397, ¶ 10. Indeed, the choice
between resigning and contesting an unfounded adverse action is not a
meaningful one because it is a choice between false alternatives. Id. We find
that the appellant has nonfrivolously alleged that the agency knew or should have
known that it could not substantiate the charged misconduct and it was therefore
coercive. We therefore find that through the series of events, starting with the
agency’s denial of the requested accommodation and culminating in the proposed
removal, the appellant made nonfrivolous allegations that she lacked a
meaningful choice in the decision to retire based on the agency’s wrongful
actions. Therefore, the appellant has made nonfrivolous allegations of the
Board’s jurisdiction sufficient for a jurisdictional hearing. Accordingly, we must
remand this case for the appellant’s requested hearing. At the hearing, the
appellant must prove jurisdiction by a preponderance of the evidence.6 5 C.F.R.
§ 1201.56(b)(2)(i)(A).
The administrative judge correctly found that the appellant failed to
nonfrivolously allege that her retirement was caused by the agency’s misleading
statements.
The administrative judge found that the appellant failed to identify any
misleading statements attributable to the agency which led to her retirement. ID
at 7-10. On review, the appellant alleges that she was incorrectly advised by her
union representative to retire, rather than oppose the proposed removal, in order
to preserve her retirement benefits. PFR File, Tab 1 at 7. We are not persuaded
by this argument. The appellant may feel that she was misled by the union
representative; however, that union representative was not a representative of the
6 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).
8
agency, and thus, the union representative’s misleading statements cannot be
attributed to the agency. See Green, 112 M.S.P.R. 59, ¶ 9 . Thus, the appellant
has failed to nonfrivolously allege that her retirement was involuntary as a result
of the union representative’s statements.7 See Bean, 120 M.S.P.R. 397, ¶ 8
(noting that it must be the agency’s wrongful actions that deprived the appellant
of meaningful choice).
ORDER
For the reasons discussed above, we REMAND this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
7 In the initial decision, the administrative judge noted that the appellant alleged that the
evidence relied upon in the proposed removal was falsified by a different union official,
and he concluded that the appellant has not explained how the union official’s actions
could be imputed to the agency. ID at 8. The appellant does not appear to challenge
this finding on review, and we do not address it further. | Kinnard_BarbaraAT-0752-20-0449-I-2__Remand_Order.pdf | 2024-04-30 | BARBARA KINNARD v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-20-0449-I-2, April 30, 2024 | AT-0752-20-0449-I-2 | NP |
1,604 | https://www.mspb.gov/decisions/nonprecedential/Johns_DelonSF-3443-21-0104-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DELON JOHNS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-3443-21-0104-I-1
DATE: April 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
D
eLon Johns , Hemet, California, pro se.
Mickel-Ange Eveillard , 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 his appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant reraises numerous arguments relating to whether
the agency correctly paid him over the course of several years. Specifically, he
argues that the agency underpaid him the amount owed for a uniform allowance,
incorrectly denied him overtime payments, and paid him at the step 8 level for a
period of time when he should have been paid at the step 9 level. Initial Appeal
File (IAF), Tab 2 at 7, 9, Tab 7 at 3; Petition for Review (PFR) File, Tab 1 at 3.
The appellant additionally appears to argue that the payment issues stem from his
2017 Board appeal for wrongful termination. IAF, Tab 12 at 3; PFR File, Tab 4
at 3. The administrative judge found that the appellant failed to nonfrivolously
allege that any of the agency’s actions challenged fell within the Board’s
jurisdiction and thus he was not entitled to a jurisdictional hearing. IAF, Tab 15,
Initial Decision (ID) at 1, 3-5. We agree.
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Kim v. Department of the Army ,
119 M.S.P.R. 429, ¶ 6 (2013). An appellant bears the burden of proving that the
Board has jurisdiction over his appeal. Id.; 5 C.F.R. § 1201.56(b)(2)(i)(A). If the
appellant makes a nonfrivolous allegation of fact that, if proven, would establish2
the Board’s jurisdiction, then he is entitled to a hearing at which he must prove
jurisdiction by preponderant evidence. Kim, 119 M.S.P.R. 429, ¶ 6. As relevant
here, the Board has jurisdiction over adverse actions such as removals, reductions
in grade or pay, suspensions for more than 14 days, furloughs for 30 days or less,
and the denial of a within grade increase (WIGI). 5 U.S.C. §§ 5335(c), 7512,
7513(d); 5 C.F.R. § 1201.3(a)(1), (8).
The appellant argues that the agency paid him less than he was owed for his
uniform allowance per pay period and that the administrative judge failed to
consider his pay stubs as proof that the agency owes him back pay for uniform
allowance. PFR File, Tab 1 at 3. The appellant additionally argues that the
agency refused to pay him for overtime worked. Id. The administrative judge
held that the Board does not have jurisdiction over whether the appellant was paid
the correct uniform allowance, but did not address the issue of overtime. ID at 4.
An appealable reduction in pay only occurs when the rate of basic pay
fixed by law or administrative action for the position held by an employee is
decreased. 5 U.S.C. §§ 7511(a)(4), 7512(4); Pann v. Department of the Navy ,
82 M.S.P.R. 294, ¶ 8 (1999); Strickland v. Veterans Administration , 5 M.S.P.R.
526, 528 (1981). As relevant here, “pay” is defined as the rate of basic pay
“exclusive of additional pay of any kind.” 5 C.F.R. § 752.402. Thus, although
the Board has jurisdiction over reductions in the rate of basic pay, matters
including premium pay such as overtime are not included. Nigg v. Merit Systems
Protection Board , 321 F.3d 1381, 1384 (Fed. Cir. 2003) (“This court’s precedent
has long distinguished between ‘basic pay’ and ‘premium pay,’ such as overtime
or night differential; we have consistently held that a denial of premium pay does
not constitute a reduction in pay that is appealable to the Board.”); Pann v.
Department of the Navy , 265 F.3d 1346, 1348 (Fed. Cir. 2001) (stating that items
such as availability pay, overtime pay, or premium pay are “additional pay” and
not part of “basic pay” as that term is used in the Board’s jurisdictional statute);
Richardson v. Department of the Treasury , 41 M.S.P.R. 40, 42-43 (1989)3
(affirming the administrative judge’s finding that unscheduled overtime was not
part of basic pay in determining whether the appellant had suffered an appealable
reduction in pay). Thus, we find that the appellant’s assertions regarding lost
overtime pay are not appealable to the Board as a reduction in pay under 5 U.S.C.
chapter 75.
We also agree with the administrative judge’s conclusion that the Board
lacks jurisdiction to consider the appellant’s claims regarding his uniform
allowance. The appellant has provided no authority for concluding that his
uniform allowance should be deemed part of his rate of basic pay for purposes of
establishing the Board’s jurisdiction over this matter pursuant to 5 U.S.C. chapter
75. Uniform allowances are generally authorized under 5 U.S.C. §§ 5901-5902
and 5 C.F.R. §§ 591.101-.104. Such allowances are generally excluded from
definitions of rate of basic pay. See, e.g., 5 U.S.C. § 8331(3) (expressly
excluding uniform allowances under 5 U.S.C. § 5901 from the definition of “basic
pay” for civil service retirement purposes); 5 C.F.R. § 591.201 (excluding
allowances and differentials from rate of basic pay for purposes of 5 C.F.R. part
591, subpart B); see also 5 C.F.R. §§ 530.202, 531.203, 550.103 (implicitly
excluding uniform allowances from definitions of basic pay). Similarly, the
relevant regulation for purposes of the Board’s authority to review reductions in
pay, 5 C.F.R. § 752.402, provides that “pay” means rate of basic pay “exclusive
of additional pay of any kind.” Consistent with this authority, the appellant’s pay
stubs specifically list his uniform allowance as separate from his regular pay.
IAF, Tab 6 at 5, Tab 8 at 4. Therefore, we find no basis for considering the
appellant’s uniform allowance as part of basic pay for purposes of determining
the Board’s jurisdiction under 5 U.S.C. chapter 75 and 5 C.F.R. § 752.402. Cf.
Fernandez v. Department of the Army , 84 M.S.P.R. 550, ¶¶ 2-3 (1999) (holding
that the denial of a living quarters allowance was not an appealable reduction in
rate of basic pay), aff’d, 234 F.3d 553 (Fed. Cir. 2000). 4
To the extent the appellant challenges his payment at the step 8 level as
opposed to the step 9 level, we similarly find that the Board lacks the authority to
review the matter. IAF, Tab 7 at 3; PFR File, Tab 1 at 3. The administrative
judge found that the Board lacks jurisdiction over a WIGI denial in the absence of
a reconsideration decision from the agency. ID at 3. We agree with the
administrative judge. The Board can exercise jurisdiction over an appeal from
the withholding of a WIGI only if the agency has affirmed its initial decision on
reconsideration. Hunt v. Department of Veterans Affairs , 88 M.S.P.R. 365, ¶ 6
(2001), overruled on other grounds by Brookins v. Department of the Interior ,
2023 MSPB 3, ¶ 8; see 5 U.S.C. § 5335(c); 5 C.F.R. § 531.410(d). It appears that
the appellant received a WIGI from step 8 to step 9 in October 2019. IAF, Tab 14
at 5. In June 2020, when he was reassigned to a new location, he again was listed
as receiving a WIGI from step 8 to step 9 despite already being at the step 9 level.
Id. at 4. The agency apparently corrected this error shortly thereafter. Id. at 8. It
is unclear from the record whether this was merely a clerical error or if the
appellant’s WIGI was withheld and he was actually paid at the step 8 level from
October 2019 until June 2020. In any event, as there is no reconsideration
decision in the record, we agree with the administrative judge that the Board
lacks jurisdiction over this matter. ID at 3-4.
The appellant additionally raises issues surrounding his 2017 wrongful
termination appeal, alleging that the agency underpaid him for over 3 years
following the decision in that matter. PFR File, Tab 4 at 3; IAF, Tab 12 at 3.
The administrative judge considered this argument but found it was not a source
of jurisdiction. ID at 4. As noted by the administrative judge, the appellant’s
prior appeal was dismissed as moot after the agency rescinded his termination and
was found to have paid him all back pay and benefits owed; the appellant, who
was represented by counsel, conceded the appeal was moot. Id.; Johns v.
Department of Veterans Affairs , MSPB Docket No. SF-315H-18-0043-I-1, Initial
Appeal File, Tab 22 at 4, Tab 23, Initial Decision at 2-3 (Feb. 20, 2018). As there5
is no enforceable order for any relief in that matter, we agree with the
administrative judge that there is no basis to consider this matter as a petition for
enforcement to the extent that was the appellant’s intent. ID at 4; cf. 5 C.F.R.
§§ 1201.181-.182. The appropriate mechanism to challenge the February 20,
2018 decision before the Board is through a petition for review in that matter.
PFR File, Tabs 5-6. The appellant’s submissions in this regard have been so
docketed and will be addressed by a separate order in Johns v. Department of
Veterans Affairs , MSPB Docket No. SF-315H-18-0043-I-1.
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.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.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Johns_DelonSF-3443-21-0104-I-1_Final_Order.pdf | 2024-04-30 | DELON JOHNS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-3443-21-0104-I-1, April 30, 2024 | SF-3443-21-0104-I-1 | NP |
1,605 | https://www.mspb.gov/decisions/nonprecedential/Simpkins_Edward_J_DC-0842-20-0541-I-2 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EDWARD J. SIMPKINS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0842-20-0541-I-2
DATE: April 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Edward J. Simpkins , Greenbelt, Maryland, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) finding that his refunded service is not creditable in his annuity
computation under the Federal Employees’ Retirement System (FERS).
Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant filed a Board appeal of OPM’s reconsideration decision
affirming its initial decision calculating the appellant’s FERS retirement annuity.
Simpkins v. Office of Personnel Management , MSPB Docket No. DC-0842-20-
0541-I-1, Initial Appeal File (IAF), Tab 1. Specifically, OPM found that the
appellant’s service from September 26, 1987, through February 9, 1996, was not
creditable for retirement purposes because the appellant received a refund of his
retirement contributions for that period. IAF, Tab 10 at 6-9, 18-20. OPM further
found that, because the appellant was not covered under FERS on or after
October 28, 2009, he was not eligible to redeposit any refunded amounts. Id.
at 7-8, 18-19. OPM additionally did not include the appellant’s claimed service
with the D.C. Department of Parks and Recreation in 1979 and 1980 in its
retirement calculation because the appellant failed to submit information
verifying that service. Id. at 8.2
In a prehearing conference, the parties agreed upon the following three
issues to be adjudicated: (1) whether OPM correctly determined that the
appellant’s service from 1987 to 1996 was not creditable due to his refund of
retirement contributions, and that he was not eligible to redeposit any refunded
amounts; (2) whether the appellant should be able to redeposit the refunded
amounts because he submitted the application for refund contributions under
duress; and (3) whether OPM correctly found that the appellant’s additional
service with the D.C. Department of Parks and Recreation in 1979 and 1980 was
properly not included in his annuity computation. Simpkins v. Office of Personnel
Management, MSPB Docket No. DC-0842-20-0541-I-2, Appeal File (I -2 AF),
Tab 1, Tab 8 at 2. The agency’s representative failed to appear for the scheduled
hearing and, after unsuccessful attempts to reach her, the administrative judge
held the telephonic hearing without her. I-2 AF, Tab 11, Initial Decision (ID)
at 2. Following the hearing, the administrative judge issued an initial decision
affirming OPM’s reconsideration decision. ID at 1-3.
The appellant has filed a petition for review, and the agency has responded.
Petition for Review (PFR) File, Tabs 1, 3. The appellant argues that he should
have been eligible to redeposit his refunded contributions. PFR File, Tab 1
at 1-5. He reiterates his duress argument, asserting that the administrative judge
failed to consider his financial duress and the influence of him taking pain
medication at the time of filing an application for a refund. Id. He further
alleges that his service with the D.C. Department of Parks and Recreation should
have been included in his annuity calculation, and asserts that he submitted
sufficient information supporting his service therewith. Id. He contends that the
administrative judge was biased against him, challenges various statements made
by the administrative judge, and argues that both his employing agency and OPM
breached the settlement agreement that led to his resignation in 2009.2 Id.
2 After the close of the record on review, the appellant filed a motion for leave to
submit an additional pleading. PFR File, Tab 6. In this motion, the appellant asserts
that he recently received emails from his union representative that prove he is allowed3
DISCUSSION OF ARGUMENTS ON REVIEW
An individual seeking retirement benefits bears the burden of proving
entitlement to those benefits by preponderant evidence. Resnick v. Office of
Personnel Management , 120 M.S.P.R. 356, ¶ 5 (2013); 5 C.F.R. § 1201.56(b)(2)
(ii). A preponderance of the evidence is that degree of relevant evidence that a
reasonable person, considering the record as a whole, would accept as sufficient
to find that a contested fact is more likely to be true than untrue. 5 C.F.R.
§ 1201.4(q).
The administrative judge correctly found that the appellant’s refunded service
from 1987 to 1996 was not creditable towards his retirement annuity and that he
was not eligible to redeposit the refunded amounts.
The administrative judge found, and the parties do not dispute, that the
appellant took a refund for his service from September 26, 1987, to February 9,
1996. ID at 8. We decline to disturb this finding. The appellant argues,
however, that, based on his subsequent resignation date, he was eligible to
redeposit his refunded FERS deductions. PFR File, Tab 1 at 2. The
administrative judge found that he resigned before the relevant cutoff date and
therefore was not eligible to redeposit his refunded deductions. ID at 8-14. We
agree.
An employee separated for at least 31 consecutive days is entitled to be
paid a lump-sum credit of retirement deductions taken during the service period.
5 U.S.C. § 8424(a); Moore v. Department of Veterans Affairs , 109 M.S.P.R. 386,
¶ 9 (2008). Receipt of a lump-sum credit “voids all annuity rights . . . based on
“to repay” for some of his prior Federal service. Id. at 2. The appellant avers that he
was “not able to locate” these emails “until now.” Id. We find that the appellant’s
vague assertions do not provide a basis for accepting additional evidence into the
record; accordingly, we deny the appellant’s motion. See 5 C.F.R. § 1201.114(k)
(stating that once the record on review closes, no additional evidence or argument will
be accepted unless it is new and material as defined in § 1201.115(d) and the party
submitting it shows that the evidence or argument was not readily available before the
record closed); see also 5 C.F.R. § 1201.115(d) (explaining that, to constitute new
evidence, the information contained in the documents, not just the documents
themselves, must have been unavailable despite due diligence when the record closed). 4
the service on which the lump-sum credit is based . . . .” 5 U.S.C. § 8424(a).
Furthermore, the regulations provide that “[p]eriods of service for which
employee contributions have been refunded are not creditable service . . . .”
5 C.F.R. § 843.202(b). The appellant filed an application for a refund of
retirement deductions for, as relevant here, his service with the U.S. Postal
Service from 1987 to 1996. IAF, Tab 10 at 60. The application specifically
informed the appellant that “payment of a refund will result in permanent
forfeiture of any retirement rights that are based on the period(s) of [FERS]
service which the refund covers . . . .” Id.
On October 28, 2009, Congress passed the National Defense Authorization
Act for Fiscal Year 2010 (NDAA), which amended 5 U.S.C. § 8422(a) to provide
that employees who received a refund of retirement contributions under FERS
could redeposit those refunds and receive credit for the service covered by the
refund. Pub. L. No. 111-84, § 1904, 123 Stat. 2190 (2009). Prior to this, only
individuals who received a refund of retirement contributions under the Civil
Service Retirement System (CSRS), rather than FERS, were eligible to deposit
the refunded amounts to receive credit for the refunded service. See Taylor v.
Office of Personnel Management , 230 F.3d 1383, *2 (Fed. Cir. 2000) (Table)
(noting that only employees covered by CSRS, and not FERS, could redeposit
refunded amounts);3 see also Moore, 109 M.S.P.R. 386, ¶ 9 (noting that, pursuant
to OPM guidance, “an employee cannot repay the money in the future to
reestablish credit for the refunded FERS service”) (emphasis in original).
The regulations covering refunded service under FERS specifically
separate an employee’s ability to deposit refunded amounts based on whether
their separation from service occurred before or after October 28, 2009, the date
the NDAA was enacted. 5 C.F.R. § 843.202(b). Indeed, the regulations state
that, “[f]or a retirement based on a separation before October 28, 2009, periods of
3 The Board may rely on unpublished 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
service for which employee contributions have been refunded are not creditable”
for any purpose. 5 C.F.R. § 843.202(b)(1). On the contrary, “[f]or a retirement
based on a separation on or after October 28, 2009, periods of service for which
employee contributions have been refunded” are not creditable for annuity
computation purposes unless those refunds have been redeposited. 5 C.F.R.
§ 843.202(b)(2)(ii). As such, the appellant’s eligibility to redeposit his refunded
amounts and thus receive credit for service covered by the refund turns on
whether his separation from the Federal service occurred before, or on or after,
October 28, 2009.
The administrative judge found that, regardless of the date of any
settlement agreement, the appellant resigned effective April 16, 2009. ID
at 11-13. On review, the appellant appears to assert that he was not separated
from the agency until on or after October 28, 2009, because the settlement
agreement reflecting his resignation was not fully executed until that date. PFR
File, Tab 1 at 2. We are unpersuaded.
The settlement agreement clearly denotes April 16, 2009 as the effective
date of the appellant’s resignation, and he has provided no support for the
proposition that the date the agreement was fully executed affects the
agreed-upon effective date. See McDavid v. Department of the Army ,
58 M.S.P.R. 673, 677 (1993) (finding that the meaning of terms in a settlement
agreement is the meaning the parties intended to convey); see also Howarth v.
U.S. Postal Service , 77 M.S.P.R. 1, 3 n.1 (1997) (noting that the effective date of
a suspension was the stated retroactive date as set forth in the settlement
agreement and not the date the settlement agreement was actually signed).
Moreover, as stated by the administrative judge, the letter of resignation, the
settlement agreement, and the appellant’s Standard Form (SF) 50 associated with
his resignation all list April 16, 2009 as the date of the appellant’s resignation.
ID at 12-13; IAF, Tab 10 at 67; I-2 AF, Tab 7 at 12-16. Accordingly, we agree
with the administrative judge and OPM that the appellant separated from service6
prior to October 28, 2009, and, thus, he was not eligible to redeposit any refunded
retirement contribution amounts.
The appellant additionally alleges that both his employing agency and OPM
materially breached the settlement agreement by referencing his separation from
the employing agency as a removal instead of a resignation. PFR File, Tab 1
at 3-4. Thus, he argues, because the settlement agreement was breached, the
terms no longer apply and he was still employed beyond the October 28, 2009
cutoff date, rendering him eligible to redeposit the refunded contributions. Id.
The administrative judge considered this argument but found it unavailing. ID
at 13. We agree.
Specifically, the administrative judge found that she did not have the
authority to consider whether the settlement agreement was breached in the
instant appeal of OPM’s reconsideration decision regarding the appellant’s
retirement annuity calculation. Id. Rather, she found that the appellant would
need a ruling finding that the settlement was breached, that the breach somehow
officially changed his resignation date to a date on or after October 28, 2009, and
that he then would have to request OPM to allow him to make a redeposit of his
refunded retirement contributions. Id. The appellant on review merely points to
more evidence purportedly showing that a breach occurred but does not explain
how the administrative judge erred in finding that the breach issue was not
properly before the Board in the instant appeal. The appellant’s arguments
constitute mere disagreement with the administrative judge’s findings, and we
discern no reason to disturb them. 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). 7
The administrative judge correctly rejected the appellant’s argument that he is
eligible to redeposit the refund of his retirement contributions because he signed
the refund application under duress.
The appellant argues that the administrative judge failed to give proper
weight to his statements that he requested a refund of retirement contributions
because of “financial duress” and being under the influence of pain medication.
PFR File, Tab 1 at 2. He further challenges the applicability of the administrative
judge’s cited case law and asserts that this was not a matter of equitable relief.
Id. at 3. The administrative judge considered his duress arguments but found
them unpersuasive. ID at 14-15. We agree.
To the extent the appellant is arguing that he should be allowed to redeposit
the refunded amount or that the amount should be waived based on his alleged
duress, we find that no statutory or regulatory provision allows for a waiver or
redeposit under such circumstances. See e.g., Harper v. Office of Personnel
Management, 116 M.S.P.R. 309, ¶ 7 (2011). Indeed, as noted by the
administrative judge, such a resolution is not permitted under the law. ID at 15.
Thus, even if the appellant sufficiently proved that he filed the application for a
refund of contributions under duress, OPM cannot be forced to grant him service
credit for the period of time covered by the refund or allow a redeposit of the
refund not otherwise permitted by law. See Office of Personnel Management v.
Richmond, 496 U.S. 414, 434 (1990) (finding that the Government cannot be
estopped from denying a benefit when Congress has not authorized expenditure
for that benefit); Conway v. Office of Personnel Management , 59 M.S.P.R. 405,
410-12 (1993) (finding that, even if the appellant succeeded in demonstrating that
he filed an application for a refund of his retirement contributions under improper
circumstances, OPM nevertheless was not estopped from denying him service
credit for the period of time covered by his refund). Thus, the appellant’s
challenge to the administrative judge’s reliance on Richmond is unpersuasive. 8
The administrative judge correctly found that the appellant failed to meet his
burden of proving that his claimed service with the D.C. Department of Parks and
Recreation is creditable towards his annuity computation.
The appellant argues that the administrative judge erred in finding that he
failed to demonstrate that his claimed service with the D.C. Department of Parks
and Recreation was creditable towards his retirement annuity. PFR File, Tab 1
at 2, 5. The administrative judge found that OPM properly relied on the SF-2806,
“Certified Summary of Federal Service,” in determining that the appellant failed
to demonstrate that the alleged service was creditable towards his retirement
annuity. ID at 15-17. We agree.
The Board has the authority to review the accuracy and completeness of an
Individual Retirement Record (IRR) in the context of appeals from OPM final
decisions that rely on them. Conner v. Office of Personnel Management ,
120 M.S.P.R. 670, ¶ 6 (2014), aff’d, 620 F. App’x 892 (Fed. Cir. 2015).
Nonetheless, the appellant bears the burden of proving entitlement to those
benefits by preponderant evidence. Resnick, 120 M.S.P.R. 356, ¶ 5. Although
the appellant listed his service with the D.C. Department of Parks and Recreation
in the summers of 1979 and 1980 on his application for deferred retirement, his
IRR does not confirm any such service. IAF, Tab 10 at 33, 39-40. Moreover,
despite the appellant raising the issue with OPM, it informed him that this service
was not verified by his IRR and instructed him that he could submit additional
information to verify the service. Id. at 8, 15. As the administrative judge found,
the appellant’s Social Security earnings record purportedly submitted in support
of the service does not specifically verify any service with the D.C. Department
of Parks and Recreation. ID at 17. Although the earnings record shows that he
worked and was taxed in 1979 and 1980, the record does not identify with whom
the appellant was employed, whether it was creditable for CSRS annuity benefits,
or whether any retirement contributions were deducted from the appellant’s pay
for that service. I-2 AF, Tab 7 at 22-23. Accordingly, the administrative judge9
correctly held that the appellant failed to meet his burden of proving that this
service was creditable for retirement purposes or that OPM erred in excluding it
from his annuity computation. The appellant questions why OPM did not contact
the Social Security Administration to determine whether this work was creditable
under CSRS and asserts that it is not his job to recertify his SF-2806 to include
the service in question. PFR File, Tab 1 at 2. However, he has not identified any
active duty on the part of OPM to seek additional information beyond his IRR.
The appellant has provided no further evidence that his service with the D.C.
Department of Parks and Recreation was creditable towards his retirement
annuity, and we therefore see no reason to disturb the administrative judge’s
findings.
The appellant’s remaining arguments on review are unpersuasive.
The appellant challenges the administrative judge’s statement that, because
the appellant did not request a hearing, the decision was made on the written
record. PFR File, Tab 1 at 3. The appellant correctly points out that, in
contradiction to the administrative judge’s prior statement discussing the hearing
in this appeal, she stated that no hearing was requested and that the initial
decision was based on the written record. ID at 3. While the administrative
judge erred in stating that no hearing was requested and that the decision was
based on the written record, this statement appears to have been mistakenly
added. The appellant requested and and participated in a hearing, and the
administrative judge repeatedly referenced and considered the appellant’s
testimony in reaching her determinations in the initial decision. ID at 11, 14 -15,
18. As such, the administrative judge’s error in this regard was harmless. 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 additionally alleges that the administrative judge showed bias
in favor of the agency. PFR File, Tab 1 at 4. Seemingly in support of this10
assertion, the appellant questions the administrative judge’s conduct in attempting
to contact the agency’s representative when she failed to appear for the telephonic
hearing. Id. In making a claim of bias or prejudice against an administrative
judge, a party must overcome the presumption of honesty and integrity that
accompanies administrative adjudicators. Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980). We find nothing inappropriate with
the administrative judge’s efforts to contact the agency’s representative when the
representative failed to appear for the hearing. Moreover, when these efforts
were unsuccessful, the administrative judge nonetheless held the hearing without
the agency’s representative, affording the appellant the opportunity to present his
case without the agency’s rebuttal. ID at 3. The appellant has not explained how
the administrative judge’s actions favored the agency in this appeal.
Accordingly, we find that the appellant has failed to overcome the presumption of
honesty and integrity accompanying the administrative judge.
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.
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.11
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you12
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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.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. 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.15 | Simpkins_Edward_J_DC-0842-20-0541-I-2 Final Order.pdf | 2024-04-30 | EDWARD J. SIMPKINS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0842-20-0541-I-2, April 30, 2024 | DC-0842-20-0541-I-2 | NP |
1,606 | https://www.mspb.gov/decisions/nonprecedential/Rafferty_Colette_I_CH-844E-19-0289-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
COLETTE I. RAFFERTY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-844E-19-0289-I-1
DATE: April 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Colette I. Rafferty , Green Bay, Wisconsin, pro se.
Linnette Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) denying her application for disability retirement benefits under the
Federal Employees’ Retirement System (FERS). Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to clarify the administrative judge’s analysis regarding FERS
disability retirement benefits, we AFFIRM the initial decision.
On petition for review, the appellant raises the following arguments: she
provided sufficient evidence to prove that she had disabling medical conditions
prior to her removal; the administrative judge failed to consider evidence showing
that she was unable to work full-time after her removal; the administrative judge
failed to consider that she has suffered multiple traumas in her life; her supervisor
told her that her mental health conditions could not be accommodated; and she
was recently diagnosed with a new medical condition. Petition for Review (PFR)
File, Tabs 1-2. Further, the appellant requests the Board to order her employing
agency to enter into a settlement agreement concerning her removal. PFR File,
Tab 2 at 5.
After considering the appellant’s arguments on review and reviewing the
record, we discern no basis to disturb the administrative judge’s finding that the
appellant has failed to show that any of her listed medical conditions, alone or in
the aggregate, rendered her unable to perform useful and efficient service in her
former position. Initial Appeal File, Tab 23, Initial Decision (ID) at 14; see
5 U.S.C. § 8451(a)(1)(B); Henderson v. Office of Personnel Management ,2
117 M.S.P.R. 313, ¶¶ 16, 20 (2012); 5 C.F.R. § 844.103(a)(2).2 Further, we
decline to address the appellant’s claim that her supervisor told her that her
mental health conditions could not be accommodated because the appellant has
failed to establish that she had a disabling medical condition prior to her removal.
PFR File, Tab 2 at 3; see, e.g., Guthrie v. Office of Personnel Management ,
105 M.S.P.R. 530, ¶ 13 (2007) (declining to consider the appellant’s argument
about accommodation in a FERS disability retirement case because she did not
demonstrate that she had a disabling condition that would require any
accommodation); see also 5 C.F.R. § 844.103(a). In addition, we deny the
appellant’s request for a settlement because the Board lacks the authority to force
her employing agency to enter into a settlement agreement. PFR File, Tab 2 at 5;
see 5 U.S.C. § 1204. Moreover, the appellant’s removal is outside the scope of
this retirement proceeding.
For the following reasons, we modify the initial decision to clarify the
administrative judge’s analysis as follows. The administrative judge stated that,
in determining whether the appellant is entitled to disability retirement benefits,
the Board must consider, among other things, evidence that she was not qualified
for reassignment to a vacant position at the same grade or level as the position
she last occupied. ID at 5. However, such evidence is immaterial in FERS
disability retirement cases. See, e.g., Gooden v. Office of Personnel Management ,
471 F.3d 1275, 1280 (Fed. Cir. 2006) (concluding that there is no statutory or
regulatory support for requiring an inquiry into whether an applicant for FERS
disability retirement was qualified for reassignment to a vacant position). In any
event, we discern no prejudice to the appellant’s substantive rights because there
is no indication that the administrative judge actually considered any evidence
that the appellant was not qualified for reassignment to a vacant position. See
2 The administrative judge properly considered the appellant’s evidence of her recent
diagnosis to the extent it related to the medical conditions on which she based her
disability retirement application. ID at 9-10, 13-14; see Fletcher v. Office of Personnel
Management, 118 M.S.P.R. 632, ¶ 9 (2012).3
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).
Accordingly, we affirm OPM’s reconsideration decision denying the
appellant’s application for FERS disability retirement benefits.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Rafferty_Colette_I_CH-844E-19-0289-I-1__Final_Order.pdf | 2024-04-30 | COLETTE I. RAFFERTY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-844E-19-0289-I-1, April 30, 2024 | CH-844E-19-0289-I-1 | NP |
1,607 | https://www.mspb.gov/decisions/nonprecedential/Patton_Gery_SF-0752-19-0063-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GERY PATTON,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
SF-0752-19-0063-I-1
DATE: April 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jennifer Duke Isaacs , Esquire, Atlanta, Georgia, for the appellant.
Blaine Markuson , Esquire, Fort McCoy, Wisconsin, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal. On petition for review, the appellant argues that the
agency should have conducted an investigation before issuing the notice of
proposed removal and that the administrative judge erred in finding his denial of
the charged misconduct not credible. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On petition for review, the appellant argues that the administrative judge
erred in failing to find that the agency should have followed its Anti-Harassment
Policy and conducted an investigation that would have allowed him to respond to
the specifications of misconduct under the inappropriate discussion in the
workplace charge prior to the issuance of the proposal notice. Petition for
Review File, Tab 1 at 8-10. There is no requirement that an agency’s inquiry into
a harassment allegation under the policy take a particular form or that a formal
investigation be conducted. Thus, even if the Board were to find that the
agency’s policy was applicable in this case, the appellant’s allegation is
unavailing. The appellant also argues that the administrative judge erred in
discounting his version of events based on an inherent bias. Id. at 10-13. The
Board has held that, while witness bias is a factor in resolving credibility issues,
testimony should not be discounted merely because it is self-serving or the
witness has an interest in the outcome. Baldwin v. Department of Veterans
Affairs, 111 M.S.P.R. 586, ¶ 23 (2009); see Bennett v. Department of the Air
Force, 84 M.S.P.R. 132, ¶¶ 10-11 (1999). Instead, self-serving testimony must be
evaluated for credibility in the same manner as all other testimony presented by2
the parties. Bennett, 111 M.S.P.R. 586, ¶ 23; Hillen, 35 M.S.P.R. at 458 (finding
that witness bias is a factor in resolving credibility issues). Under the
circumstances of this appeal, we believe that the appellant has not shown
prejudicial error in the administrative judge’s consideration of his bias as one of
several in reaching her credibility determination.
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 | Patton_Gery_SF-0752-19-0063-I-1__Final_Order.pdf | 2024-04-30 | GERY PATTON v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-0752-19-0063-I-1, April 30, 2024 | SF-0752-19-0063-I-1 | NP |
1,608 | https://www.mspb.gov/decisions/nonprecedential/Poree_Carlos_R_DA-831E-19-0133-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARLOS R. POREE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-831E-19-0133-I-1
DATE: April 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carlos R. Poree , Baton Rouge, Louisiana, pro se.
Jo Antonette 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 the final decision of the Office of Personnel Management denying his
application for disability retirement under the Civil Service Retirement System.
On petition for review, the appellant raises the following arguments: it is
reasonable to conclude that he was disabled when he was a Federal employee
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
based on the 11-month period from his separation to his diagnosis of a mental
illness; and the fact that he was diagnosed with a mental illness means that he was
disabled. Petition for Review File, Tab 1. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
After considering the appellant’s arguments on review and reviewing the
record, we discern no basis to disturb the administrative judge’s conclusion that
the appellant has failed to meet his burden of proving by preponderant evidence
that he is entitled to disability retirement benefits. Initial Appeal File, Tab 10,
Initial Decision at 12.
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).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Poree_Carlos_R_DA-831E-19-0133-I-1__Final_Order.pdf | 2024-04-30 | CARLOS R. POREE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-831E-19-0133-I-1, April 30, 2024 | DA-831E-19-0133-I-1 | NP |
1,609 | https://www.mspb.gov/decisions/nonprecedential/Middleton_Hilda_J_DA-844E-19-0273-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HILDA J. MIDDLETON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-844E-19-0273-I-2
DATE: April 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Hilda J. Middleton , Humble, Texas, pro se.
Linnette Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management dismissing her
application for a disability retirement annuity under the Civil Service Retirement
System (CSRS) as untimely filed. On review, the appellant filed a statement that
she “wish[ed] to file a petition for review,” but she did not submit any arguments
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
regarding her appeal. Petition for Review File, Tab 1 at 2. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to clarify that the statutory and regulatory standards
governing the timeliness of applications for disability retirement under CSRS are
set forth at 5 U.S.C. § 8337(b) and 5 C.F.R. § 831.1204(a), (d), we AFFIRM the
initial decision.2
2 The statutory and regulatory standards governing the timeliness of disability
retirement applications under CSRS and the Federal Employees’ Retirement System,
and the circumstances under which the time limit may be waived, are essentially
identical and have been construed consistently with one another. See McLaughlin v.
Office of Personnel Management , 353 F.3d 1363, 1368 (Fed. Cir. 2004); compare
5 U.S.C. § 8337(b) with 5 U.S.C. § 8453; compare 5 C.F.R. § 831.1204(a), (d) with
5 C.F.R. § 844.201(a)(1), (4). The administrative judge erroneously cited to 5 U.S.C.
§ 8453 and 5 C.F.R. § 844.201(a)(4) in the initial decision. Middleton v. Office of
Personnel Management , MSPB Docket No. DA-844E-19-0273-I-2, Appeal File (I-2
AF), Tab 9, Initial Decision at 3. However, the administrative judge correctly cited to
5 U.S.C. § 8337(b) in two orders during the pendency of the appeal. I-2 AF, Tab 4
at 1-2, Tab 6 at 2. The record is clear that the appellant received proper notice of her
burden to demonstrate that she was entitled to a waiver of the 1-year time limit for
filing her disability retirement application due to her mental incompetence on the date
of her separation from Federal service or within 1 year thereafter. See Burgess v. Merit
Systems Protection Board , 758 F.2d 641, 643-44 (Fed. Cir. 1985); Panter v. Department
of the Air Force, 22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory error that is
not prejudicial to a party’s substantive rights provides no basis for reversal of an initial
decision).2
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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 | Middleton_Hilda_J_DA-844E-19-0273-I-2__Final_Order.pdf | 2024-04-30 | HILDA J. MIDDLETON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-844E-19-0273-I-2, April 30, 2024 | DA-844E-19-0273-I-2 | NP |
1,610 | https://www.mspb.gov/decisions/nonprecedential/Hechavarria_Omar_L_AT-0841-19-0741-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
OMAR L. HECHAVARRIA,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0841-19-0741-I-1
DATE: April 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Omar L. Hechavarria , Miami, Florida, pro se.
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
finding that he is not eligible to receive a Federal Employees’ Retirement System
(FERS) annuity supplement. Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
of material fact; the initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After
fully considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On review, the appellant challenges the administrative judge’s reliance on
5 U.S.C. § 8421(a) and argues that she should have applied 5 C.F.R.
§ 842.503(a)(1). Petition for Review File, Tab 1 at 1. Under 5 U.S.C. § 8421(a),
only an individual entitled to an immediate retirement annuity under
5 U.S.C. § 8412(a), (b), (d)(1), (e), and (f), or an early retirement annuity under
5 U.S.C. § 8414(a), (b), and (c), is entitled to a FERS annuity supplement. As a
deferred retirement annuitant under 5 U.S.C. § 8413(a), the appellant does not fall
within any of the subsections of 5 U.S.C. § 8421(a). Accordingly, the
administrative judge properly found that the appellant is not entitled to a FERS
annuity supplement under 5 U.S.C. § 8421(a). Initial Appeal File, Tab 16, Initial
Decision at 4.
Nor does the regulation cited by the appellant, 5 C.F.R. § 842.503(a)(1),
compel a different result. Under 5 C.F.R. § 842.503(a)(1), an individual
receiving an immediate retirement annuity under 5 C.F.R. § 842.204(a)(1) is
entitled to receive an annuity supplement if he completed at least 30 years of
service. Because it is undisputed that the appellant did not receive an immediate2
retirement annuity, we find that he is not entitled to an annuity supplement under
5 C.F.R. § 842.503(a)(1). We therefore affirm the initial decision.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 | Hechavarria_Omar_L_AT-0841-19-0741-I-1__Final_Order.pdf | 2024-04-30 | OMAR L. HECHAVARRIA v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0841-19-0741-I-1, April 30, 2024 | AT-0841-19-0741-I-1 | NP |
1,611 | https://www.mspb.gov/decisions/nonprecedential/Faris_Andrew_D_CH-0752-21-0099-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW DALE FARIS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
CH-0752-21-0099-I-1
DATE: April 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew Dale Faris , Indianapolis, Indiana, pro se.
Alison D. Alvarez , Esquire, 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 his indefinite suspension appeal as untimely filed . On petition for
review, the appellant challenges the merits of the indefinite suspension decision
and generally alleges that he filed his appeal when he became aware of the agency
action.2 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).
2 The appellant also challenges the validity of a last chance agreement (LCA) he had
with the agency. Petition for Review File, Tab 1 at 4. As the administrative judge
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
noted in the initial decision, the appellant’s challenge to the LCA is the subject of
another Board appeal. Initial Appeal File, Tab 18 at 5; see Faris v. U.S. Postal Service ,
MSPB Docket No. CH-0752-20-0205-I-1. Accordingly, we have not addressed this
claim.
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 | Faris_Andrew_D_CH-0752-21-0099-I-1__Final_Order.pdf | 2024-04-30 | ANDREW DALE FARIS v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-0752-21-0099-I-1, April 30, 2024 | CH-0752-21-0099-I-1 | NP |
1,612 | https://www.mspb.gov/decisions/nonprecedential/Faris_Andrew_D_CH-0353-20-0494-I-1__CH-3443-20-0495-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW D. FARIS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
CH-0353-20-0494-I-1
DATE: April 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew D. Faris , Indianapolis, Indiana, pro se.
Alison D. Alvarez , Esquire, 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 his constructive suspension appeal for lack of jurisdiction . On petition
for review, the appellant makes the following arguments: the administrative
judge was not impartial and was biased against him; the agency discriminated
against him on the basis of his race in connection with his alleged constructive
suspension; the agency retaliated against him due to his union activity; and 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 made erroneous factual determinations and credibility
findings. The appellant also provides additional evidence in the form of
employee assignment work sheets that he alleges reflect safety violations by the
agency. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Regarding the appellant’s specific challenges to the administrative judge’s
factual findings and credibility determinations, the appellant restates his claims
that he provided a copy of his light duty request form to his supervisors by U.S.
postal mail, and that one of his supervisors verbally informed him that he was
removed as of January 3, 2020, both of which the administrative judge considered
and rejected below. Petition for Review (PFR) File, Tab 1 at 4-5; see Initial
Appeal File (IAF), Tab 44, Initial Decision (ID) at 9-11. The administrative
judge based her decision to credit the supervisors’ testimony that they did not
receive a copy of the light duty request form over the appellant’s claim that he
sent it by postal mail, and one supervisor’s testimony denying that she ever
informed the appellant that he was removed as of January 3, 2020, on her
demeanor-based credibility determination of each witness’s testimony. See ID
at 8-11 (citing Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987)).
The appellant’s arguments on review are not sufficient to disturb the2
administrative judge’s finding. See Haebe v. Department of Justice , 288 F.3d
1288, 1301 (Fed. Cir. 2002) (observing that the Board generally must give
deference to an administrative judge’s credibility determinations when they are
based, explicitly or implicitly, on the observation of the demeanor of witnesses
testifying at a hearing); Mithen v. Department of Veterans Affairs , 122 M.S.P.R.
489, ¶ 13 (2015) (noting that an administrative judge’s credibility determinations
are “virtually unreviewable”), aff’d, 652 F. App’x 971 (Fed. Cir. 2016); 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).
With respect to the appellant’s allegation that the administrative judge was
not impartial and was biased against him, it is well established that conclusory
claims of bias which do not involve extrajudicial conduct do not overcome the
presumption of honesty and integrity that accompanies administrative
adjudicators. Simpkins v. Office of Personnel Management , 113 M.S.P.R. 411,
¶ 5 (2010). An administrative judge’s conduct during the course of a Board
proceeding will warrant a new adjudication only if her 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). The appellant’s conclusory assertion of bias and allegation that
administrative judges “always side[] with” the government, unsupported by any
objective evidence, does not meet this standard. PFR File, Tab 1 at 4.
Regarding the appellant’s argument that the agency discriminated against
him and treated him differently on the basis of his race, in the prehearing
conference summary, the administrative judge identified the relevant issues to be
decided in the appeal, including the appellant’s affirmative defenses, and
specifically noted that during the prehearing conference the appellant confirmed
that he was not asserting race discrimination or age discrimination as an3
affirmative defense. IAF, Tab 41 at 6 n.3. The administrative judge provided the
appellant with the opportunity to object to the summary in writing, which the
appellant failed to do, and he did not raise a race discrimination claim at any
point thereafter until his petition for review filing. Id. at 13. Accordingly, to
whatever extent the appellant is now attempting to raise a race discrimination
claim, he effectively waived his right to raise such a claim. See Thurman v. U.S.
Postal Service, 2022 MSPB 21, ¶¶ 17-18 (setting forth a nonexhaustive list of
relevant factors to be considered in determining whether an appellant has waived
or abandoned an affirmative defense, such as whether he failed to object to a
summary of issues that did not include it). Similarly, regarding the appellant’s
claim that agency officials retaliated against him due to his union activity, the
appellant did not raise this argument below, so we need not consider it. See Clay
v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016) (noting that the Board
generally will not consider an argument raised for the first time in a petition for
review absent a showing that it is based on new and material evidence not
previously available despite the party’s due diligence); Banks v. Department of
the Air Force, 4 M.S.P.R. 268, 271 (1980) (same); 5 C.F.R. § 1201.115(d).
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b).
2 Regarding the employee assignment worksheets the appellant provides for the first
time with his petition for review, the appellant has not shown that any of this
information is both new and material. PFR File, Tab 1 at 5, 7-10; 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). All of the
records are dated to the period from December 13 through December 21, 2018, which is
well before the February 23, 2021 initial decision was issued in this case, and the
appellant has not explained why they were not provided before the record closed.
See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980) (explaining that, under
5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted for the
first time on review absent a showing that it was unavailable before the record was
closed despite the party’s due diligence). Further, the appellant has not explained how
these documents, which appear to identify a number of job duties the appellant
completed on the identified workdays, are relevant to the dispositive jurisdictional
matter at issue in this appeal, which is whether he was constructively suspended during4
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:
the period from January 3, 2020 through February 14, 2020. Accordingly, we have not
considered them.
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 | Faris_Andrew_D_CH-0353-20-0494-I-1__CH-3443-20-0495-I-1_Final_Order.pdf | 2024-04-30 | ANDREW D. FARIS v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-0353-20-0494-I-1, April 30, 2024 | CH-0353-20-0494-I-1 | NP |
1,613 | https://www.mspb.gov/decisions/nonprecedential/Faris_Andrew_D_CH-3443-22-0155-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW D. FARIS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
CH-3443-22-0155-I-1
DATE: April 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew D. Faris , Indianapolis, Indiana, pro se.
Maryl Rosen , Esquire, St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal on the basis of adjudicatory efficiency. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review. We VACATE the initial decision and DISMISS the appeal for lack of
jurisdiction.
The appellant was a Laborer Custodial for the United States Postal Service.
Initial Appeal File (IAF), Tab 10 at 28. Effective February 14, 2020, the agency
removed him for violating a last chance agreement (LCA). Id. at 16-17. That
same month, he appealed his removal to the Board. Faris v. United States Postal
Service, MSPB Docket No. CH-0752-20-0205-I-1, IAF (0205 IAF), Tab 1. The
administrative judge dismissed the appeal for lack of jurisdiction. 0205 IAF,
Initial Decision (0205 ID) at 1, 8. After the appellant filed a petition for review,
the Board issued a Final Order that affirmed the initial decision. Faris v. United
States Postal Service , MSPB Docket No. CH-0752-20-0205-I-1, Final Order
(April 26, 2024) (0205 Final Order).
In January 2022, the appellant filed the instant appeal, again challenging
the merits of the agency’s decision to remove him for violating the LCA, and
alleging that the agency discriminated against him based on unspecified purviews
in connection to the removal, the LCA was invalid, the LCA included a
non-disclosure agreement (NDA) in violation of 5 U.S.C. § 2302(b)(13), and the
agency inconsistently applied its policies regarding absence without leave
(AWOL) and unscheduled leave. IAF, Tab 1 at 3, 5, Tab 4 at 5. In an order to
show cause, the administrative judge noted that, the appellant alleged that he was
“the subject of an adverse action from the United States [P]ostal [S]ervice almost2
every other week.” IAF, Tab 3 at 2 (quoting IAF, Tab 1 at 5). She ordered the
appellant to identify the agency actions that he was appealing. Id. at 2, 4-5. She
provided a list of matters appealable to the Board. Id. at 2-4. The appellant
responded, reiterating his claims concerning the removal, discrimination, the
NDA, and AWOL and unscheduled leave while adding allegations that the agency
breached the LCA, defamed him in its February 3, 2020 removal decision letter,
and denied his due process rights by not allowing him “an opportunity to reply to
the charge” of removal. IAF, Tab 8 at 4-6, Tab 9 at 4, 8-11, 13. The agency
responded to the order to show cause. IAF, Tab 10. The agency argued that the
administrative judge must dismiss the appeal for a variety of reasons, including
on the grounds of adjudicatory efficiency because the appellant previously filed
several other appeals with the Board asserting identical claims. Id. at 10-12.
In her initial decision, the administrative judge dismissed the instant appeal
for lack of jurisdiction. IAF, Tab 11, Initial Decision (ID). She reasoned that it
was appropriate to dismiss the appellant’s claims regarding the merits of his
removal, the validity of the LCA, and the agency’s alleged breach of the LCA on
grounds of adjudicatory efficiency, finding that he had raised the matter in a prior
appeal, Faris v. United States Postal Service , MSPB Docket
No. CH-0752-20-0205-I-1 (0205 Appeal), that was then awaiting Board action on
the appellant’s petition for review.1 ID at 1, 4. Regarding the appellant’s AWOL
1 Besides the 0205 Appeal, the appellant has filed a number of other appeals prior to the
instant one, including at least two that challenge his removal. See Faris v. United
States Postal Service , MSPB Docket No. CH-0752-21-0099-I-1, Initial Decision (March
2, 2021) (dismissing the appeal as untimely filed without good cause); Faris v. United
States Postal Service , MSPB Docket No. CH-3443-20-0495-I-1, Initial Decision
(November 6, 2020) (dismissing the appeal for lack of jurisdiction and declining to
consider the appellant’s claims related his the LCA and his removal on the basis of
adjudicatory efficiency). The appellant has filed petitions for review in those appeals,
which are still pending with the Board. He subsequently filed at least one additional
appeal concerning his removal, Faris v. United States Postal Service , MSPB Docket No.
CH-3443-22-0253-I-1 (0253 Appeal). The parties have not sought review of the
administrative judge’s June 2022 initial decision dismissing that appeal, and that
decision is now final. 0253 Appeal, Initial Decision (June 7, 2022) (finding that the
Board lacks jurisdiction over the appellant’s challenge to the agency’s determination3
and unscheduled leave claim, she found that was connected to his removal, which,
as just stated, she refused to adjudicate. Id. She also determined that the Board
had no jurisdiction over the appellant’s defamation allegation and due process
claims. ID at 4-5. As to his discrimination claims, the administrative judge noted
that the appellant had not raised a claim of discrimination based on uniformed
service. ID at 5 n.2. In addition, she observed that the appellant had not alleged
a violation of his veterans’ preference rights. Id.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. In his petition for review, he reiterates his claims concerning the
merits of his removal, reasserts that the LCA is invalid and that the agency
violated his right to due process, and provides examples of “discrimination or
harassment.”2 Id. at 4-5. He also argues that, to the extent he untimely filed his
appeal, it was for good cause. Id. at 5-6. The agency has filed a response.
PFR File, Tab 3.
When an appellant files an appeal that is identical to claims raised in an
earlier appeal after the initial decision in an earlier appeal was issued, but before
that he was AWOL, and declining to consider the appellant’s removal-related claims on
the basis of adjudicatory efficiency); see 5 C.F.R. § 1201.113(a) (stating that an initial
decision generally becomes final after 35 days if neither party files a timely petition for
review).
2 On review, the appellant submits the following new documentation: a December 11,
2019 message cancelling a doctor’s appointment for the next day; and emails dated
December 17, 2019, and January 3, 2020, between the appellant, agency, and union
personnel. PFR File, Tab 1 at 8-10. The rest of the documentation submitted with the
petition for review is in the record below. IAF, Tab 8 at 10, Tab 9 at 4-16; PFR File,
Tab 1 at 7, 11-19. The Board may consider new and material evidence or legal
argument on review if, despite the party’s due diligence, it was not available when the
record closed. Spivey v. Department of Justice , 2022 MSPB 24, ¶ 15; 5 C.F.R.
§ 1201.115(d). The documents submitted by the appellant with his petition for review
predate his appeal. He has not explained why he was unable to obtain them previously.
In any event, the documents are not relevant to the dispositive collateral estoppel issue,
and therefore provide no basis for granting review. Russo v. Veterans Administration ,
3 M.S.P.R. 345, 349 (1980) (explaining that the Board will not grant a petition for
review based on new evidence absent a showing that it is of sufficient weight to warrant
an outcome different from that of the initial decision).4
the full Board has acted on the appellant’s petition for review, it is appropriate to
dismiss the subsequent appeal on the grounds of adjudicatory efficiency.
See McNeil v. Department of Defense , 100 M.S.P.R. 146, ¶ 11 (2005). At the
time the administrative judge issued her initial decision, the appellant’s petition
for review in his 0205 Appeal was still pending at the Board. However, the
Board now has issued its decision on the petition for review in that case,
affirming the initial decision dismissing his appeal for lack of Board jurisdiction,
so the administrative judge’s basis for dismissing the appeal is no longer valid.
See id.; 0205 Final Order. Under these circumstances, it remains appropriate to
dismiss the instant appeal, though on jurisdictional grounds relying on the
doctrine of collateral estoppel, rather than on the basis of adjudicatory efficiency.
McNeil, 100 M.S.P.R. 146, ¶ 11.
The purpose of collateral estoppel is to “relieve the parties of the cost and
vexation of multiple lawsuits, conserve judicial resources, and, by preventing
inconsistent decisions, encourage reliance on adjudication.” Peartree v. U.S.
Postal Service, 66 M.S.P.R. 332, 336-37 (1995) (quoting Allen v. McCurry ,
449 U.S. 90, 94 (1980)). Collateral estoppel may be grounds for dismissing an
appeal for lack of jurisdiction if a jurisdictional determination in a prior decision
is afforded collateral estoppel effect and the appellant provides no other valid
basis of Board jurisdiction. Noble v. U.S. Postal Service , 93 M.S.P.R. 693, ¶ 11
(2003). It is appropriate when: (1) the issue is identical to that involved in the
prior action; (2) the issue was actually litigated in the prior action; (3) the
determination on the issue in the prior action was necessary to the resulting
judgment; and (4) the party against whom the issue preclusion is sought had a full
and fair opportunity to litigate the issue in the prior action. McNeil, 100 M.S.P.R.
146, ¶ 15 (2005).
The Board’s jurisdiction over the appellant’s removal was actually litigated
before the Board in the appellant’s 0205 Appeal. The “actually litigated” element
is satisfied when the issue was properly raised by the pleadings, was submitted5
for determination, and was determined. Kavaliauskas v. Department of the
Treasury, 120 M.S.P.R. 509, ¶ 6 (2014). In the initial decision in that case, the
administrative judge found, after providing the parties with an opportunity to
address the jurisdictional issue, that the appellant failed to allege that he complied
with the LCA; did not knowingly and voluntarily enter into the LCA; the agency
materially breached the LCA or acted in bad faith; and that the LCA resulted from
fraud or mistake. 0205 ID at 4-8. These findings were necessary to the
administrative judge’s determination in the initial decision that the Board lacks
jurisdiction over the appellant’s removal. Faris v. United States Postal Service ,
0205 ID at 4-5, 8 (citing Willis v. Department of Defense , 105 M.S.P.R. 466, ¶ 17
(2007) (stating that the Board lacks jurisdiction over an action taken pursuant to
an LCA in which an appellant waives his right to appeal to the Board unless an
appellant establishes one of these bases for not enforcing the LCA). After the
appellant petitioned for review, the Board affirmed that decision. 0205 Final
Order. Finally, the appellant has fully represented himself in every one of his
appeals. Fischer v. Department of Defense , 64 M.S.P.R. 509, 515 (1994)
(determining that a party’s pro se status does not preclude the application of
collateral estoppel). Thus, the doctrine of collateral estoppel is appropriate here.
Because the doctrine of collateral estoppel prevents the appellant from relitigating
the issue of the Board’s jurisdiction over his removal, the Board does not have
jurisdiction over the instant appeal.
On review, in addition to challenging the enforceability of the LCA on
various bases, the appellant disputes the merits of his removal, argues that the
agency denied him procedural due process, and expands on his discrimination
claims. PFR File, Tab 1 at 4-5, 8-10, 12-16. He still does not specify the nature
of the agency’s alleged discrimination. Id. at 5. In the absence of jurisdiction,
we lack the authority to review the merits of the appellant’s removal.
See Schmittling v. Department of the Army , 219 F.3d 1332, 1337 (Fed. Cir. 2000)
(finding that the Board cannot review the merits of an appeal if it lacks6
jurisdiction (citations omitted)). His remaining claims do not provide an
independent source of Board jurisdiction absent an otherwise appealable action.
See Penna v. U.S. Postal Service , 118 M.S.P.R. 355, ¶ 13 (2012) (finding that
absent an otherwise appealable action, the Board lacks jurisdiction over a claims
of harmful error and discrimination, and that the agency engaged in other
prohibited personnel practices); Smith v. Department of Defense , 106 M.S.P.R.
228, ¶ 13 (2007) (recognizing that the Board has no jurisdiction to review
constitutional claims that are not coupled with an independently appealable
action). Finally, although the appellant does not reassert his defamation claim on
review, we agree with the administrative judge that the Board lacks jurisdiction
over this claim. ID at 4-5; Paul v. Department of Agriculture , 66 M.S.P.R. 643,
650 (1995). Accordingly, we dismiss the instant appeal for lack of jurisdiction.3
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
3 Because we find that the Board lacks jurisdiction over the appeal, we need not address
the appellant’s arguments concerning timeliness. PFR File, Tab 1 at 5-6.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal 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 you8
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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.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. 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 | Faris_Andrew_D_CH-3443-22-0155-I-1__Final_Order.pdf | 2024-04-29 | ANDREW D. FARIS v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-3443-22-0155-I-1, April 29, 2024 | CH-3443-22-0155-I-1 | NP |
1,614 | https://www.mspb.gov/decisions/nonprecedential/Chesney_James_W_PH-0752-19-0210-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES W. CHESNEY,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
PH-0752-19-0210-I-1
DATE: April 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joseph J. Chester , Esquire, Pittsburgh, Pennsylvania, for the appellant.
Donna G. Marshall , Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his chapter 75 demotion appeal as moot. For the reasons discussed
below, we GRANT the appellant’s petition for review, VACATE the initial
decision, and DISMISS the appeal as moot on petition for review.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
BACKGROUND
Effective March 30, 2019, the agency reduced the appellant in pay and
grade from EAS-21 Postmaster to EAS-17 Operations Programs Specialist.
Initial Appeal File (IAF), Tab 1 at 9-27, Tab 6 at 8.2 The appellant filed a Board
appeal and requested a hearing. IAF, Tab 1 at 3. Although the appellant initially
indicated that he was “incorporat[ing] discrimination allegations [from] pending
[equal employment opportunity] claims,” id. at 5, he subsequently withdrew his
discrimination-based claims, IAF, Tab 26 at 39, Tab 38 at 4.
On November 3, 2020, prior to a hearing on the matter, the agency
informed the appellant via letter that it had rescinded his demotion and that it
would provide him with “the difference in pay from March 31, 2019 through
present.” IAF, Tab 74 at 6. The agency also filed a motion to dismiss the appeal
as moot, arguing that it had restored the appellant to the status quo ante. Id.
at 4-5. The appellant thereafter argued that the appeal was not moot and that he
was entitled to a hearing on the issue of mootness. IAF, Tab 78 at 4-7, Tab 83
at 4-15.
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal as moot. IAF, Tab 84, Initial
Decision (ID) at 2, 4. She explained that the appellant had withdrawn his
discrimination claims and, therefore, was ineligible for either compensatory or
consequential damages. ID at 3. She concluded that the appellant had therefore
received all of the relief to which he would have been entitled if the matter had
been adjudicated and he had prevailed. Id.
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, 3-4. In his petition and reply, the appellant argues that the administrative
2 The agency initially proposed to reduce the appellant to the position of EAS-16
Business Service Network Representative; however, the agency explained in its decision
letter that this had been an administrative error and that no such position was available.
IAF, Tab 1 at 9, 24.
3
judge erred in dismissing the appeal as moot insofar as he was entitled to, but did
not receive, the following: (1) compensatory damages; (2) consequential
damages; (3) attorney fees; (4) restoration of his support staff; (5) restoration of
sick and annual leave that he used to work on his Board appeal; and
(6) “restoration of sick and vacation days he used rather than administrative leave
as [an] exempt employee.” PFR File, Tab 1 at 4-18, Tab 4 at 4-7.
Approximately 2 months after the appellant filed his reply, the agency
moved for leave to file a supplemental response in opposition to the appellant’s
petition for review. PFR File, Tab 7 at 4-5. The Office of the Clerk of the Board
issued an order that granted the agency’s motion. PFR File, Tab 9 at 1-2. The
agency then filed a supplemental response in which it averred that it had credited
the appellant with sick and annual leave that he would not have been required to
use had he not been temporarily demoted. PFR File, Tab 10 at 4-6. The appellant
has not replied to the agency’s supplemental response.
ANALYSIS
The Board may dismiss an appeal as moot if the appealable action is
cancelled or rescinded by the agency. Harris v. Department of the Air Force ,
96 M.S.P.R. 193, ¶ 5 (2004). For an appeal to be deemed moot, the agency’s
rescission of the appealed action must be complete, and the employee must be
returned to the status quo ante. Id. Status quo ante relief generally requires that
the appellant be placed back in his former position or in one substantially
equivalent in scope and status to his former position, with back pay. Id., ¶ 6; see
Murphy v. Department of Justice , 107 M.S.P.R. 154, ¶ 6 (2007) (explaining that
for an appeal to be rendered moot, an appellant must receive all of the relief that
he could have received if the matter had been adjudicated and he had prevailed).
Here, the appellant argues that the administrative judge erred in dismissing
the matter as moot because he was entitled to, but did not receive, compensatory
damages. PFR File, Tab 1 at 5-6, 15-16, Tab 4 at 5-6. He argues that he was
4
entitled to such damages “as a result of estoppel and laches” and because the
agency exhibited “bad-faith conduct” during the pendency of his appeal before
the administrative judge. PFR File, Tab 1 at 6, 15-16. However, we find no basis
to disturb the administrative judge’s reasoned conclusion that, because the
appellant withdrew his discrimination claims, he was ineligible for compensatory
damages. ID at 3; IAF, Tab 26 at 39, Tab 38 at 4; see Currier v. U.S. Postal
Service, 72 M.S.P.R. 191, 196-98 (1996) (explaining that compensatory damages
are available only when an appellant raises a claim of prohibited discrimination in
connection with an otherwise appealable action); see also 5 C.F.R. § 1201.201(d)
(stating that the Board may authorize an award of compensatory damages to a
prevailing party who is found to have been intentionally discriminated against
based on race, color, religion, sex, national origin, or disability).
The appellant contends that he was entitled to, but did not receive,
consequential damages, to include compensation for travel and commuting
expenses that he incurred because his demotion temporarily changed his duty
station. PFR File, Tab 1 at 10-11; IAF, Tab 79 at 23-37. Again, however, we
find no basis to disturb the administrative judge’s conclusion that the appellant
was ineligible for such damages. ID at 3; see 5 C.F.R. § 1201.201(c) (explaining
that the Board may award consequential damages only when it orders corrective
action in a whistleblower appeal under 5 U.S.C. § 1221 or when it orders
corrective action in a Special Counsel complaint under 5 U.S.C. § 1214). Thus, a
different outcome is not warranted.
The appellant asserts that the administrative judge erred in dismissing his
appeal as moot because he had claimed entitlement to $48,081.00 in attorney fees
and associated costs. PFR File, Tab 1 at 12-13. Outstanding attorney fee issues,
however, do not prevent the dismissal of an appeal as moot. Currier, 72 M.S.P.R.
at 198. Indeed, the Board considers attorney fee issues in an addendum
proceeding after an appellant files a separate petition on that issue. See 5 C.F.R.
5
§§ 1201.201-1201.205. Thus, the appellant’s assertion regarding attorney fees
does not provide a basis to disturb the initial decision.
The appellant also argues that the appeal was not moot because he was
entitled to, but did not receive, restoration of either (1) the same “quantum” of
support staff that he enjoyed prior to his demotion or (2) leave that he used to
“prepare and defend” his Board appeal. PFR File, Tab 1 at 5, 11-12. We
disagree. Indeed, the appellant does not cite, and we are unable to locate, any
legal authority, such as a provision in the Postal Service’s Employee and Labor
Relations Manual (ELM),3 to support his apparent assertion that, had the matter
been adjudicated and he had prevailed, the agency would have been required to
either restore staffing levels or compensate him for leave that he used to work on
his Board appeal. See Murphy, 107 M.S.P.R. 154, ¶ 6.
Last, the appellant argues that he was entitled to “restoration of sick and
vacation days he used rather than administrative leave as [an] exempt employee.”
PFR File, Tab 1 at 5. Essentially, the appellant is arguing that he was required to
use more of his sick and annual leave during the period of his demotion because
the temporary downgrade in position rendered him ineligible for “personal
absence time.” We agree with the appellant that this is additional relief to which
he would have been entitled if the appeal had been fully adjudicated and he had
prevailed. See Galatis v. U.S. Postal Service , 110 M.S.P.R. 399, ¶ 7 (finding that
the appellant was entitled to the restoration of certain leave that he used while
temporarily demoted because he would not have been required to use the leave
had he remained in his supervisory position), modified on reconsideration ,
111 M.S.P.R. 484 (2009); see also ELM § 519.72 (stating that Fair Labor
Standards Act exempt Postal Service employees may request time off to attend to
personal matters during the workday, which may be considered “personal absence
time” and not charged as annual leave, sick leave, or leave without pay). The
record shows that the agency had not yet restored this leave to the appellant at the
3 https://about.usps.com/manuals/elm/elm.htm (last visited Apr. 29, 2024).
6
time the initial decision was issued. PFR File, Tab 10 at 4-5, 32; ID. Therefore,
the appeal was not moot when the administrative judge dismissed it.
Nevertheless, we find that the appeal became moot during the pendency of
the petition for review. The agency has filed evidence showing that, on or about
May 27, 2021, it restored all leave to which the appellant may have been entitled
pursuant to ELM § 519.72, i.e., leave that may properly have been categorized as
“personal absence time” had the appellant remained in his EAS-21 Postmaster
position. PFR File, Tab 10 at 6, 32. The appellant does not dispute this matter.
Accordingly, we find that no factual dispute remains regarding leave owed to the
appellant by virtue of his temporary ineligibility for personal absence time, and
therefore, the appeal is now moot. See Murray v. Department of Defense ,
92 M.S.P.R. 361, ¶ 16 (2002) (explaining that mootness can arise at any stage of
litigation and that the Board must dismiss an appeal as moot when it cannot grant
any effectual relief in favor of the appellant).
ORDER
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).
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.
7
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
9
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.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
10
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Chesney_James_W_PH-0752-19-0210-I-1__Final_Order.pdf | 2024-04-29 | JAMES W. CHESNEY v. UNITED STATES POSTAL SERVICE, MSPB Docket No. PH-0752-19-0210-I-1, April 29, 2024 | PH-0752-19-0210-I-1 | NP |
1,615 | https://www.mspb.gov/decisions/nonprecedential/Patrick_Kimberly_A_NY-0752-12-0130-I-6__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KIMBERLY PATRICK,
Appellant,
v.
FEDERAL DEPOSIT INSURANCE
CORPORATION,
Agency.DOCKET NUMBER
NY-0752-12-0130-I-6
DATE: April 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kimberly Patrick , Parlin, New Jersey, pro se.
Beth A. Wilt , Esquire, Arlington, Virginia, for the agency.
Scott David Cooper , Esquire, Fairfax, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The agency has filed a petition for review of the initial decision that
reversed the appellant’s removal, and the appellant has filed a cross petition for
review of the initial decision and a motion to dismiss the agency’s petition for
review for failure to comply with the administrative judge’s interim relief 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).
For the reasons discussed below, we DENY the appellant’s motion to dismiss,
GRANT the agency’s petition for review, DENY the appellant’s cross petition for
review, and REVERSE the initial decision. The appellant’s removal is
SUSTAINED.
BACKGROUND
The appellant was a Grade -12 Examiner for the agency. Patrick v. Federal
Deposit Insurance Corporation , MSPB Docket No. NY-0752-12-0130-I-4,
Appeal File (I-4 AF), Tab 43 at 41. In her position, she participated in, and
sometimes directed, the examination of banks in order to determine their financial
condition, evaluate their management, and ascertain their compliance with
applicable laws and regulations. I-4 AF, Tab 44 at 103.
On October 15, 2008, the agency proposed the appellant’s removal based
on 16 specifications of “excessive absences resulting in [the appellant’s] inability
to perform [her] duties on a regular basis.” I-4 AF, Tab 43 at 63. The
specifications charged that the appellant was absent from duty and had been
granted leave without pay (LWOP) for the partial pay period from March 5, 2008,
through March 14, 2008, and for each full pay period from March 17, 2008,
through October 3, 2008. Id. at 64-66. Following the appellant’s written
response, in which she challenged the action and alleged retaliation for
whistleblowing activity, id. at 52-61, the deciding official issued a January 9,
2009 decision sustaining the charge and removing the appellant, effective
January 16, 2009, id. at 43-49.
After some proceedings in Federal district court, on March 28, 2012, the
appellant filed this Board appeal, challenging her removal and raising an
affirmative defense of whistleblower retaliation. Patrick v. Federal Deposit
Insurance Corporation , MSPB Docket No. NY-0752-12-0130-I-1, Initial Appeal
File (IAF), Tab 1 at 5, 10-11. There ensued several years of delay related to the
district court proceedings. Ultimately, however, the Board appeal proceeded to2
adjudication, and the administrative judge issued an initial decision reversing the
removal on due process grounds. Patrick v. Federal Deposit Insurance
Corporation, MSPB Docket No. NY-0752-12-0130-I-6, Appeal File (I-6 AF),
Tab 87, Initial Decision (ID). Specifically, she found that the deciding official
violated the appellant’s right to due process by basing his decision on absences
that occurred both before and after those set forth in the charge.2 ID at 14-16.
She ordered the agency to provide the appellant interim relief in the event that
either party petitioned for review. ID at 17.
The agency has filed a petition for review, Petition for Review (PFR) File,
Tab 1, and the appellant has filed a motion to dismiss the agency’s petition for
failure to provide interim relief, PFR File, Tab 3, a response to the agency’s
petition, PFR File, Tab 9, and a cross petition for review. PFR File, Tab 10. The
agency has filed a reply to the appellant’s response to its petition for review, PFR
File, Tab 13, and a response to her cross petition for review. PFR File, Tab 15.
ANALYSIS
The appellant’s motion to dismiss the agency’s petition for review for failure to
provide interim relief is denied.
When, as here, the appellant was the prevailing party in the initial decision
and interim relief was ordered, a petition for review filed by the agency must be
accompanied by a certification that the agency has complied with the interim
relief order, either by providing the interim relief ordered, or by making a
determination that returning the appellant to the place of employment would
cause undue disruption to the work environment. 5 U.S.C. § 7701(b)(2)(A)(ii),
(B); 5 C.F.R. § 1201.116(a); see Ayers v. Department of the Army , 123 M.S.P.R.
11, ¶ 6 (2015).
In its petition for review, the agency questions the propriety of the interim
relief order because the appellant admitted that her impairment prevents her from
2 The administrative judge found that the appellant did not prove her whistleblower
defense. ID at 12-14.3
returning to duty, and because the appellant is currently receiving disability
payments from both the Social Security Administration and the Office of
Personnel Management. PFR File, Tab 1 at 16-17. Nevertheless, the agency
representative also certified under oath that the agency has fully complied with
the administrative judge’s interim relief order. Id. at 16. In her motion to
dismiss, the appellant argues that the agency has not provided her interim relief,
chiefly because it has not sent her a standard form (SF) 50 documenting the
cancellation of its removal action. PFR File, Tab 3. The appellant has included
copies of correspondence with the agency regarding her return to duty. PFR File,
Tab 3 at 13-18, Tab 4 at 5-8.
Ordinarily, when an appellant challenges the agency’s certification of
compliance with an interim relief order, the Board will issue an order affording
the agency the opportunity to submit evidence of compliance. 5 C.F.R.
§ 1201.116(b). If the agency fails to provide evidence of compliance in response
to such an order, the Board may, at its discretion, dismiss the agency’s petition
for review. 5 C.F.R. § 1201.116(e). In this case, however, we find it unnecessary
to issue such an order because the appellant has herself submitted evidence
demonstrating that the agency is in compliance with the administrative judge’s
interim relief order. That evidence shows that the agency has restored the
appellant to her former position by ordering her to return to duty and describing
how that process would be accomplished, and it has explained that an SF-50
documenting her restoration is available to her through the agency’s secure email
system once she returns to duty. PFR File, Tab 3 at 13-18, Tab 4 at 5-8. That the
SF-50 documenting the appellant’s restoration to duty was not mailed to her is
immaterial. An SF-50 is only documentation of a personnel action; it does not
constitute the personnel action itself, and it does not control an employee’s status
and rights. Fox v. Department of the Army , 120 M.S.P.R. 529, ¶ 22 (2014);
Hunt-O’Neal v. Office of Personnel Management , 116 M.S.P.R. 286, ¶ 10 (2011);
see Grigsby v. Department of Commerce , 729 F.2d 772, 774–76 (Fed. Cir. 1984).4
That the appellant disagrees with the agency’s position on this matter and has
chosen not to return to the workplace fails to support a finding that the agency is
not in compliance with the administrative judge’s interim relief order, and we
therefore decline to dismiss the agency’s petition for review on that basis.
The agency did not violate the appellant’s right to due process.
The administrative judge reversed the appellant’s removal, finding that the
agency violated the appellant’s right to due process because the deciding official
based his decision on the appellant’s absences from October 23, 2007, through
January 9, 2009, the date the decision letter was issued, despite the fact the
charge only referenced the appellant’s absences from March 5, 2008, through
October 3, 2008. ID at 14-15. Specifically, the administrative judge found that
the deciding official referred several times in the decision letter to having
considered the appellant’s absences from October 22, 2007, and continuing, and
that his hearing testimony was essentially in accord, until he began to “catch on”
to the “problem,” whereupon he then stated that he only considered the
appellant’s excessive absences as set forth in the specifications under the charge.
ID at 15; I-4 AF, Tab 43 at 43-49; Hearing Transcript (HT) at 51, 68-69
(testimony of the deciding official). In suggesting that the deciding official
thereby considered new and material evidence, and that such consideration
constituted a violation of the appellant’s due process rights, the administrative
judge relied upon Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368
(Fed. Cir. 1999). ID at 14. The agency argues on review that Stone does not
support reversing the appellant’s removal. PFR File, Tab 1 at 9-10. We agree.
In Stone, the court held that the introduction of new and material
information by means of ex parte communications to the deciding official
undermines the public employee’s constitutional due process guarantee of notice
and the opportunity to respond, and that procedural due process guarantees are
not met if the employee has notice only of certain charges or portions of the5
evidence and the deciding official considers new and material information.3
Stone, 179 F.3d at 1376. Here, although the administrative judge found that the
deciding official based his decision on absences that occurred both before and
after those identified in the specifications, ID at 14, we find that the deciding
official found “all specifications contained in the October 15, 2008 Letter of
Proposed Removal [] sustained.”4 I-4 AF, Tab 43 at 48 (emphasis removed). To
the extent that the deciding official described all of the appellant’s absences,
those the administrative judge referred to as an ex parte communication were also
clearly referenced in the proposal notice in describing the appellant’s continuous
absence. Id. at 63-64.
Moreover, even if the absences that occurred both before and after those
described in the proposal notice were considered an ex parte communication, not
every ex parte communication is a procedural defect so substantial and so likely
to cause prejudice that it undermines the due process guarantee and entitles the
claimant to an entirely new administrative proceeding, and only ex parte
communications that introduce new and material information to the deciding
official will violate the due process guarantee of notice. Stone, 179 F.3d
at 1376-77. Among the factors deemed useful for the Board to weigh in
considering whether new and material information has been introduced by means
3 Ex parte communications have been broadly construed to include information known
by the deciding official. Stone, 179 F.3d at 1376. The real focus of Stone and its
progeny is the consideration of information of which the appellant was not afforded
notice and an opportunity to respond and is grounded in the Supreme Court’s decision
in Cleveland Board of Education v. Loudermill , 470 U.S. 532 (1985), which extended
the Fifth Amendment Due Process Clause to an individual’s loss of Government
employment.
4 We have reviewed the deciding official’s hearing testimony, particularly that
described by the administrative judge as his “catching on” to “the problem.” ID at 15.
Contrary to the administrative judge’s findings, we find that, after his memory was
refreshed by his examination of the decision letter, which was drafted approximately
9 years before the Board hearing, the deciding official testified that he considered as
excessive absences those set forth under the specifications in the notice of proposed
removal. HT at 67-69 (testimony of the deciding official). 6
of ex parte contacts are whether the ex parte communication introduces
cumulative information or new information; whether the employee knew of the
error and had a chance to respond to it; and whether the ex parte communication
was of the type likely to result in undue pressure upon the deciding official to
rule in a particular manner. Stone, 179 F.3d at 1377.
Although the administrative judge cited Stone, ID at 14, she did not address
the Stone factors. We do so now. First, in the decision letter, the deciding
official described the appellant’s absences from the time they began in 2007,
prior to considering the absences charged in the proposal notice, I-4 AF, Tab 43
at 43, as did the proposal notice itself, id. at 63, and therefore that information
cannot be considered “new.” Moreover, the appellant addressed her absences
beginning in 2007 in her reply to the proposal notice. Id. at 52-53. While the
deciding official briefly noted in the decision letter that the appellant had not
returned to work “to date,” that is, to the date the decision letter was issued, id.
at 63, such that the appellant did not have an opportunity to address those
absences, there is no suggestion that the deciding official’s description of any of
the appellant’s absences either before or after the significant 7-month period of
absences set forth in the proposal notice’s specifications was likely to result in
undue pressure upon him to rule in a particular manner. Weighing the Stone
factors, we find that the information alleged to be an ex parte communication was
not “so likely to cause prejudice that no employee can fairly be required to be
subjected to a deprivation of property under such circumstances.” Stone,
179 F.3d at 1377. We therefore find that the agency did not violate the
appellant’s due process rights and that the removal cannot be reversed on that
basis.5
5 Although we have found that there was no due process violation, we must determine
whether the deciding official’s consideration of the information at issue may have
constituted harmful procedural error. We find that the appellant has not shown that any
such error was likely to have caused the agency to have reached a different conclusion
about the removal action, given the extent of her absences. See Mathis v. Department
of State, 122 M.S.P.R. 507, ¶ 16 n.4 (2015); Tom v. Department of the Interior ,7
The agency has proven its charge of excessive absences.
As a general rule, an agency may not take an adverse action based on an
employee’s use of approved leave. Coombs v. Social Security Administration ,
91 M.S.P.R. 148, ¶ 12 (2002). However, an exception exists when the following
criteria are met: (1) the employee was absent for compelling reasons beyond his
control so that agency approval or disapproval of leave was immaterial because
he could not be on the job; (2) the absences continued beyond a reasonable time,
and the agency warned the employee that an adverse action could be taken unless
he became available for duty on a regular, full-time or part -time basis; and (3) the
agency showed that the position needed to be filled by an employee available for
duty on a regular, full-time or part-time basis. Cook v. Department of the Army ,
18 M.S.P.R. 610, 611-12 (1984) . This exception is applicable only under unusual
circumstances, such as when the employee is unable to return to duty because of
the continuing effects of illness or injury. Id.
For the reasons explained in the initial decision, we agree with the
administrative judge that the first criterion is met. ID at 10; I-6 AF, Tab 53. As
to the second criterion, we observe that the agency did not warn the appellant
until on or about August 6, 2008, that she could be removed for excessive
approved absences unless she returned to duty by August 18, 2008. I-4 AF,
Tab 43 at 113-14. The Board has held that absences that predate the warning
required under Cook cannot be used to support an excessive absence charge.
Williams v. Department of Commerce , 2024 MSPB 8, ¶¶ 6-8. In light of this
holding, and given the nature of the agency’s return-to-work letter, we find that
specifications 1 through 12 of the charge cannot be sustained. I-4 AF, Tab 43
at 64-65. Nevertheless, specifications 13 through 16 cover the period from
August 18, 2008, onward and encompass 280 hours of approved LWOP. Id.
at 65-66. We agree with the administrative judge that these specifications are
sustained, ID at 10, and we find that the appellant’s complete absence from work
97 M.S.P.R. 395, ¶ 43 (2004).8
during these 7 consecutive weeks continued beyond a reasonable time, see Curtis
v. U.S. Postal Service , 111 M.S.P.R. 626, ¶¶ 2, 10 (2009) (sustaining a charge of
excessive absence based on 77 days of LWOP over a 4-month period), overruled
on other grounds by McCauley v. Department of the Interior , 116 M.S.P.R. 484
(2011); Gartner v. Department of the Army , 104 M.S.P.R. 463, ¶¶ 10-11 (2007)
(sustaining a charge of excessive absence based on 333.5 hours of absence over a
6-month period). We also agree with the administrative judge that the third Cook
criterion is satisfied because there were insufficient staff in the appellant’s unit to
cover the workload in her absence. ID at 10; HT at 15-16 (testimony of the
deciding official), 73, 115 (testimony of the appellant’s supervisor). Therefore,
even excluding the 944 hours of absence covered in specifications 1 through 12,
we find that the Cook exception applies.
In her cross petition for review, the appellant argues that some of the hours
of approved leave cited in the proposal notice were covered under the Family and
Medical Leave Act of 1993 (FMLA) and therefore the charge cannot be sustained.
PFR File, Tab 10 at 8. However, we find that the administrative judge handled
this issue correctly by excluding the FMLA-protected leave from her analysis. ID
at 10; I-4 AF, Tab 44 at 7. Although FMLA-protected leave cannot be used to
support a charge of excessive absence, McCauley, 116 M.S.P.R. 484, ¶ 11, an
agency’s inclusion of such leave in its charge does not require automatic reversal.
The remedy in this situation is for the Board to exclude the FMLA-covered leave
from its tabulation of the total absences at issue. See Hamilton v. U.S. Postal
Service, 84 M.S.P.R. 635, ¶¶ 16-17 (1999). Because all of the claimed FMLA-
protected leave falls within the 944 hours already excluded above, the appellant’s
argument provides insufficient basis to disturb the initial decision.
The appellant also argues that, by removing her “during the statutory
one-year period,” the agency effectively deprived her of her right to restoration.
PFR File, Tab 10 at 9. The appellant’s argument pertains to the removal of9
compensably injured employees and does not apply to the instant appeal, in which
no compensable injury is involved.
The appellant also argues that, in removing her based on the charge of
excessive absences, the agency should not have considered the medical
documents she submitted to the administrative judge, who placed them under seal.
I-6 AF, Tab 53. She argues that the agency’s doing so was in violation of a
protective order issued by the district court. PFR File, Tab 10 at 13-15.
Although the appellant did not serve these documents on the agency at the time
she submitted them to the administrative judge, she provided some of the
documents to the agency during the period from 2007-2008 and acknowledges
that they were subsequently returned to her in connection with her district court
litigation. I-6 AF, Tab 53 at 1. To the extent the appellant is alleging that the
agency violated the Privacy Act in considering these documents, the Board does
not have jurisdiction to adjudicate Privacy Act claims, Calhoon v. Department of
the Treasury, 90 M.S.P.R. 375, ¶ 15 (2001), and in any event, the appellant has
fully litigated her Privacy Act claims through the courts, Patrick v. Federal
Deposit Insurance Corporation , MSPB Docket No. NY-0752-12-0130-I-5,
Appeal File, Tab 32 at 4-11; I-4 AF, Tab 4, Tab 11 at 9. In addition, citing
5 C.F.R. part 339, regarding Medical Qualification Requirements, the appellant
argues that the agency’s Occupational Medicine Consultant was not authorized to
consider her medical documents because her position does not have medical
standards. PFR File, Tab 10 at 19. However, part 339 does not preclude an
agency from asking for and considering medical documentation in support of an
employee’s request for LWOP based on the assertion that she is unable to perform
her duties. 5 C.F.R. § 339.303. The appellant further argues that the
administrative judge omitted consideration of what she describes as certain
“material facts” regarding these matters. PFR File, Tab 10 at 16. However, an
administrative judge’s failure to mention all of the evidence of record does not
mean that she did not consider it in reaching her decision. Marques v.10
Department of Health and Human Services , 22 M.S.P.R. 129, 132 (1984), aff’d,
776 F.2d 1062 (Fed. Cir. 1985) (Table).
For the reasons discussed above, the charge of excessive absence is
sustained.
The appellant has not proven her whistleblower defense or her defense of
retaliation for grievance activity.
In an adverse action appeal such as this, an appellant’s claim of
whistleblower retaliation is treated as an affirmative defense. As applicable here,
to prove such a claim, an appellant must show by preponderant evidence that she
engaged in whistleblowing activity by making a protected disclosure under
5 U.S.C. § 2320(b)(8) that was a contributing factor in the agency’s personnel
action. Shannon v. Department of Veterans Affairs , 121 M.S.P.R. 221, ¶ 21
(2014).
In this case, the administrative judge found that the appellant made
disclosures protected under 5 U.S.C. § 2302(b)(8). ID at 12. Specifically, the
administrative judge found that, in 2004 and 2005, the appellant complained to
her supervisor and a manager about changes that were made to the reports of bank
examinations that she prepared. She further found that, because the appellant was
not consulted about the changes and the information she deemed critical was
deleted from some reports, the appellant reasonably believed that her supervisor
and the manager had abused their authority. Id.; see 5 U.S.C. § 2302(b)(8)(A);
Chavez v. Department of Veterans Affairs , 120 M.S.P.R. 285, ¶ 18 (2013). We
agree that these disclosures were protected.
Nevertheless, the administrative judge found that these disclosures were
not a contributing factor in the appellant’s removal. ID at 12-14. The most
common way of proving contributing factor is the knowledge/timing test of
5 U.S.C. § 1221(e), under which contributing factor may be inferred based on the
responsible agency officials’ knowledge of the disclosures and the temporal
proximity between the disclosures and the action under appeal. In her initial11
decision, the administrative judge found, and the appellant did not dispute, that
the deciding official lacked actual knowledge of the disclosures. ID at 12-13; HT
at 14, 27-29 (testimony of the deciding official). On review, the appellant argues
that the deciding official “should have exercised proper due diligence and
reasonable care to gain knowledge.” PFR File, Tab 10 at 24. However, even if
the appellant is correct, we find that this is insufficient to impute knowledge of
the disclosures to the deciding official. Nor does there appear to be any evidence
that any other official who influenced the removal had knowledge of the
appellant’s disclosures. We therefore find that the knowledge portion of the
knowledge/timing test is not satisfied. See Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶ 64.
Furthermore, even if the knowledge portion of the knowledge/timing test
had been satisfied, the timing portion was not. As the administrative judge
correctly noted, the appellant’s disclosures predated the proposed removal by 3 or
more years. ID at 12-13. This gap in time is too great to satisfy the timing
portion of the knowledge/timing test. See Salinas v. Department of the Army ,
94 M.S.P.R. 54, ¶ 10 (2003) (holding that a gap of more than 2 years between the
appellant’s disclosure and the challenged personnel action was too great to satisfy
the timing portion of the knowledge/timing test). On review, the appellant argues
that, under the statute, a disclosure will be considered protected regardless of the
amount of time that has elapsed since the disclosure. PFR File, Tab 10 at 25.
Although this is true, see 5 U.S.C. § 2302(f)(1)(G), the question is not whether
the appellant’s disclosures were protected, but whether they were a contributing
factor in the appellant’s removal. For the reasons explained above, we find that
the appellant has not established contributing factor under the knowledge/timing
test.
If an appellant has failed to satisfy the knowledge/timing test, the Board
will consider other evidence of contributing factor, such as evidence pertaining to
the strength or weakness of the agency’s reasons for taking the personnel action,12
whether the whistleblowing was personally directed at the proposing or deciding
officials, and whether these individuals had a desire or motive to retaliate against
the appellant. Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 15 (2012).
Here, the evidence shows that, in light of the appellant’s lengthy absence with no
foreseeable end, the agency had strong reasons in support of its removal action.
In addition, the disclosures in 2004 and 2005 were not directed at either the
proposing or deciding officials. The evidence further shows that the deciding
official did not know the appellant, HT at 14 (testimony of the deciding official),
and the proposing official was far removed from her organizationally. The
appellant has not alleged that either had a motive or desire to retaliate against her.
We therefore agree with the administrative judge that the appellant failed to prove
that her disclosures were a contributing factor in her removal.6
The appellant also argues on review that the eight grievances she filed or
attempted to file were also protected disclosures under the Whistleblower
Protection Enhancements Act of 2012 (WPEA).7 PFR File, Tab 10 at 26.
According to her, these disclosures generally described wrongdoing by the
agency, including interfering in the way she performed her job duties, unfairly
criticizing her work in performance evaluations, and denying her telework.
I-6 AF, Tab 27 at 16-19. Although the administrative judge noted that the
appellant filed grievances in 2005 and 2006, and also filed suit against the
agency, ID at 5, the administrative judge did not specifically consider these
6 Because we have found that the appellant failed to prove that her disclosures were a
contributing factor in her removal, we do not reach the issue of whether the agency
proved by clear and convincing evidence that it would have removed her absent her
disclosures. See Clarke v. Department of Veterans Affairs , 121 M.S.P.R. 154, ¶ 19 n.10
(2014), aff’d per curiam, 623 F. App’x 1016 (Fed. Cir. 2015).
7 According to the appellant, she “attempted to file” certain of these grievances, but
either the union steward would not sign the paperwork or the agency refused to hear the
matter. The appellant did not enter any of the grievances into the record, insisting that
doing so would violate the court’s protective order, IAF, Tab 8 at 7, and the
administrative judge did not disagree. The appellant did, however, describe each of the
grievances. I-6 AF, Tab 27 at 16-19.13
filings in the discussion of the appellant’s whistleblower retaliation claim. The
agency argues that any such consideration is precluded under the WPEA because
the appellant filed her grievances in 2005 and 2006 and was removed in January
2009, nearly 4 years before the December 12, 2012 effective date of the
legislation enacting the WPEA.8 PFR File, Tab 15 at 10. Even if the WPEA does
not apply, however, the appellant’s claim of retaliation for her having filed
grievances remains viable because, prior to the enactment of the WPEA, 5 U.S.C.
§ 2302(b)(9) made it a prohibited personnel practice to retaliate against an
employee or applicant for employment “because of the exercise of any appeal,
complaint, or grievance right granted by any law, rule, or regulation.” Wheeler v.
Department of Veterans Affairs , 88 M.S.P.R. 236, ¶ 9 (2001).
For an appellant to establish such a claim of retaliation, she must show
that: (1) she engaged in the activity; (2) the accused official knew of such
activity; (3) the adverse action under review could, under the circumstances, have
been retaliation; and (4) there was a genuine nexus between the alleged retaliation
and the adverse employment action. Warren v. Department of the Army , 804 F.2d
654, 656-58 (Fed. Cir. 1986). When, as here, the record is complete, the Board
will not inquire as to whether the action under review “could have been”
retaliatory, but will proceed to the ultimate question, which is whether, upon
weighing the evidence presented by both parties, the appellant has met her overall
burden of proving by preponderant evidence that the action under appeal was
retaliatory. See Simien v. U.S. Postal Service , 99 M.S.P.R. 237, ¶ 28 (2005).
8 Citing the Board’s decision in Day v. Department of Homeland Security , 119 M.S.P.R.
589 (2013), the appellant argues that the WPEA was retroactive. PFR File, Tab 10
at 29. In Day, the Board found an exception to the broadly applicable presumption that
statutes are not retroactive, explaining that certain provisions of the WPEA were
retroactive because they specifically sought to clarify then-existing interpretations of
the statutory scheme and not create new rights and liabilities. Landgraf v. USI Film
Products, 511 U.S. 244, 265-66 (1994); Day, 119 M.S.P.R. 589, ¶¶ 10-26. The
statutory provisions identified in Day are not at issue in this appeal. Furthermore, the
appellant has not identified another basis for finding the WPEA applicable to an appeal
in which the protected disclosures, the personnel action, and even the filing of the
appeal all pre-dated the passage of the statute.14
The administrative judge found that the manager who was the subject of the
appellant’s disclosures retired more than 1 year before the appellant’s removal
was recommended and that, while her supervisor who was also named knew that
the appellant had filed grievances, he testified that he did not know what was
stated in them and did not know, when he recommended her removal, that she had
filed suit against the agency. ID at 12-13; HT at 7, 92 (testimony of the
appellant’s supervisor). In addition, as noted, the deciding official testified that
he had no knowledge of the appellant’s disclosures, including her grievances,
apart from what she said in her response to the notice of proposed removal. HT
at 27-29 (testimony of the deciding official).
To establish a genuine nexus between the protected activity and the adverse
action, the appellant must prove that the action was taken because of the
protected activity. Williams v. Social Security Administration , 101 M.S.P.R. 587,
¶ 12 (2006). This requires the Board to weigh the intensity of the motivation to
retaliate against the gravity of the misconduct, id., considering the gravity of the
misconduct as it appeared to the deciding official at the time he took the adverse
action, Otterstedt v. U.S. Postal Service , 96 M.S.P.R. 688, ¶ 23 (2004). The
deciding official testified that he considered the appropriate factors in
determining to uphold the appellant’s proposed removal, notably, that she had
taken excessive leave with no prospect of returning, no lesser penalty seemed
feasible, the position needed to be filled, and the appellant’s allegation of
retaliation had no impact on his decision. HT at 31-32 (testimony of the deciding
official). Although we find that the appellant engaged in protected activity by
filing grievances, there was little or no motivation to retaliate against her on the
part of the deciding official, given his lack of knowledge, and that the agency had
legitimate reasons for effecting the non-disciplinary removal. We therefore find
that the appellant failed to show that the agency retaliated against her for filing
grievances.15
The agency has established that there is a nexus between the sustained charge and
the efficiency of the service and that removal is a reasonable penalty. 9
Disciplinary action is warranted based on a sustained charge of excessive
absence. The Board has held that a prolonged absence with no foreseeable end
can provide just cause for removal because it constitutes a burden that no
employer can efficiently endure and it therefore establishes a nexus to the
efficiency of the service. Campbell v. U.S. Postal Service , 94 M.S.P.R. 646, ¶ 17
(2003).
Regarding the penalty, when, as here, the agency’s charge is sustained, the
Board will review the agency-imposed penalty to determine if the agency
considered all of the relevant factors and exercised management discretion within
the tolerable limits of reasonableness. Singletary v. Department of the Air Force ,
94 M.S.P.R. 553, ¶ 9 (2003), aff’d, 104 F. App’x 155 (Fed. Cir. 2004). In making
this determination, the Board must give due weight to the agency’s primary
discretion in maintaining employee discipline and efficiency. Douglas v.
Veterans Administration , 5 M.S.P.R. 280, 306 (1981) .
In his decision letter, the deciding official stated that he considered that the
appellant’s prolonged absence for which there was no foreseeable end detracted
from the efficiency of the agency’s examination program, and that her position
needed to be filled; that her supervisors had lost confidence in her dependability
and reliability in the performance of her duties; that the removal decision was
consistent with actions taken by the agency against other similarly situated
employees; that the appellant was on clear notice that her excessive absences had
caused an undue hardship on the operation of the field office; and that there was
little potential for her rehabilitation. I-4 AF, Tab 43 at 45-48. The deciding
official also considered that the appellant had no prior disciplinary record; that
she had more than 10 years of Federal service and more than 7 years of service
with the agency, during which time she progressed from Grade 7 to Grade 12; and
9 These are issues that the administrative judge did not address. However, we find that
the record is sufficiently developed for the Board to address them on review.16
that her annual performance ratings for the last 3 years were “Meets
Expectations.” Id. at 46. Notwithstanding, the deciding official stated that there
was no other appropriate action than removal. Id. at 48. His hearing testimony
was in accord. HT at 24, 31 (testimony of the deciding official).
Based on the deciding official’s consideration of the appropriate Douglas
factors, both aggravating and mitigating, we find that the agency’s determination
does not exceed the bounds of reasonableness and that its removal penalty must
be accorded deference. See Beard v. General Services Administration , 801 F.2d
1318, 1322 (Fed. Cir. 1986).
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
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.17
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal 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 obtain18
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S.420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 19
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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
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. 1510.20
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.21 | Patrick_Kimberly_A_NY-0752-12-0130-I-6__Final_Order.pdf | 752-12-01 | KIMBERLY PATRICK v. FEDERAL DEPOSIT INSURANCE CORPORATION, MSPB Docket No. NY-0752-12-0130-I-6, April 29, 2024 | NY-0752-12-0130-I-6 | NP |
1,616 | https://www.mspb.gov/decisions/nonprecedential/Richards_JoelPH-315H-23-0181-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOEL RICHARDS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-315H-23-0181-I-1
DATE: April 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joel Richards , Bridgeport, West Virginia, pro se.
Craig Allen Komorowski , Esquire, Huntington, West Virginia, for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his termination appeal for lack of jurisdiction. On petition for review,
the appellant requests that the Board consider the merits of his appeal including
his claims of Equal Employment Opportunity (EEO) retaliation and disability
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
discrimination. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you3
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Richards_JoelPH-315H-23-0181-I-1__Final_Order.pdf | 2024-04-29 | JOEL RICHARDS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-315H-23-0181-I-1, April 29, 2024 | PH-315H-23-0181-I-1 | NP |
1,617 | https://www.mspb.gov/decisions/nonprecedential/McIver_JimmieDC-3330-19-0289-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JIMMIE MCIVER,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-3330-19-0289-I-1
DATE: April 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jimmie McIver , Washington, D.C., pro se.
Vanessa M. Rogala , Hampton, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his Veterans Employment Opportunities Act of 1998 (VEOA) appeal
for lack of jurisdiction. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On petition for review, the appellant reiterates his assertion, made below,
that he made several attempts to file a VEOA complaint with Department of
Labor (DoL), but his attempts were unsuccessful because DoL representatives
would not accept his oral complaint and barred him from entering the building.
Petition for Review (PFR) File, Tab 1 at 1; Initial Appeal File, Tab 8 at 2. The
appellant disagrees with the administrative judge’s statement that he
acknowledged that he had not exhausted his remedy with DoL. PFR File, Tab 1
at 2. However, he submits no evidence below or on review that he complied with
the statutory requirement that a DoL complaint “shall be in writing.” 5 U.S.C.
§ 3330a(a)(2)(A)-(B). Accordingly, we affirm the administrative judge’s finding
that he did not exhaust his administrative remedy with DoL.2
2 We have considered the appellant’s documentation submitted on review. PFR File,
Tab 1 at 5-21. These documents were submitted below and are not new evidence.
Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980). Moreover, this
documentation is not 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).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 | McIver_JimmieDC-3330-19-0289-I-1__Final_Order.pdf | 2024-04-29 | JIMMIE MCIVER v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-3330-19-0289-I-1, April 29, 2024 | DC-3330-19-0289-I-1 | NP |
1,618 | https://www.mspb.gov/decisions/nonprecedential/Mathew_TobyDA-0752-17-0275-I-2__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TOBY MATHEW,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-0752-17-0275-I-2
DATE: April 29, 2024
THIS ORDER IS NONPRECEDENTIAL1
Peter Broida , Esquire, Arlington, Virginia, for the appellant.
Alfred E. Steinmetz , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal as moot based on the administrative judge’s finding
that the agency had completely rescinded the removal. For the reasons discussed
below, we GRANT the appellant’s petition for review, VACATE 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).
2
decision, and REMAND the case to the Dallas Regional Office for further
adjudication in accordance with this Remand Order.
BACKGROUND
The agency removed the appellant from his position as Director of its
Shreveport, Louisiana Veterans Affairs Medical Center (VAMC) based on
4 specifications of conduct unbecoming an agency senior leader, 13 specifications
of failure to provide effective oversight, and 1 specification of failure to follow
policy, effective April 13, 2017. Mathew v. Department of Veterans Affairs ,
MSPB Docket No. DA-0752-17-0275-I-1, Initial Appeal File (IAF), Tab 7
at 28-40, 100-07. The appellant timely appealed his removal to the Board and
requested a hearing. IAF, Tab 1. During the proceedings below, the agency
informed the administrative judge that it had rescinded the removal action and
requested a period of time to provide the appellant with status quo ante relief, to
which the appellant did not object. Mathew v. Department of Veterans Affairs ,
MSPB Docket No. DA-0752-17-0275-I-2, Appeal File (AF), Tab 4 at 1-2.
Accordingly, the administrative judge granted the agency a period of
approximately 1 month to restore the appellant to the status quo ante. Id. at 2.
Shortly after the 1-month period ended, the appellant moved for a
protective order to protect him against the agency’s alleged harassment and for an
order to reinstate him to a permanent position within the agency. AF, Tabs 7-8.
Specifically, the appellant alleged that the agency harassed him when an agency
official told a reporter that the agency “had to take back” the appellant “as a
result of a flawed and outdated civil service personnel system that makes it
difficult to remove employees for legitimate reasons.” AF, Tab 7 at 4-6. The
administrative judge docketed a separate protective order proceeding and denied
the appellant’s motion, finding that the appellant failed to show that the
statements rose to the level of harassment or were the proximate cause of
negative, and sometimes threatening, online comments in response to the
3
published article. Mathew v. Department of Veterans Affairs , MSPB Docket
No. DA-0752-17-0275-D-1, Protective Order File, Tab 15 at 4-6.
The administrative judge then afforded the parties an opportunity to show
cause as to why the removal appeal should not be dismissed as moot. AF, Tab 16
at 3-4. The appellant responded, arguing that the appeal should not be dismissed
as moot because (1) the agency subjected him to a hostile work environment
when the agency official made disparaging comments to a reporter; (2) the agency
failed to remove a July 25, 2016 letter of reprimand from the appellant’s Official
Personnel File which the agency had relied on in the removal action; (3) the
appellant was detailed to another position instead of performing his position of
record; and (4) his 2017 performance appraisal contained references to his
removal and his appeal.2 AF, Tab 17; Tab 21 at 3, 10. The agency responded,
arguing that the appeal should be dismissed as moot. AF, Tab 18.
The administrative judge issued an initial decision, finding the appeal to be
moot and dismissing it for lack of jurisdiction. AF, Tab 25, Initial Decision (ID).
First, the administrative judge found that the appellant had not made a
nonfrivolous allegation that the agency subjected him to a hostile work
environment. ID at 4-6. Next, he found that the agency was not required to
remove the July 2016 letter of reprimand from the appellant’s official personnel
file, and this was not relief the Board could have ordered had the appellant
prevailed in his appeal. ID at 6-7. Then, the administrative judge found that the
appellant’s detail upon reinstatement was appropriate, finding that the agency had
a strong overriding interest not to reinstate the appellant to his former position,
and noting that the appellant had agreed to the detail, and the agency has
the authority to liberally reassign members of the Senior Executive Service.
ID at 7-9. Finally, the administrative judge determined that the appellant’s
2 Originally, the appellant argued that the appeal was not moot because he had yet to
receive a 2017 performance appraisal. AF, Tab 17 at 12. However, subsequent to the
closing of the record, the appellant received his 2017 performance appraisal. AF,
Tab 21.
4
2017 performance appraisal did not evaluate him based on the charges
and allegations in the removal action. ID at 10-12. Accordingly, the
administrative judge found that the appellant had received full status quo ante
relief. ID at 12-13.
The appellant has timely filed a petition for review in which he argues that
his appeal is not moot based largely on the reasons he asserted below and requests
that the Board remand his appeal for the administrative judge to rule on his
request for a protective order. Petition for Review (PFR) File, Tab 1. The
agency has filed an opposition to the appellant’s petition, and the appellant has
filed a reply to the agency’s opposition. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board’s jurisdiction is determined by the nature of an agency’s action
at the time an appeal is filed with the Board. Hagan v. Department of the Army ,
99 M.S.P.R. 313, ¶ 6 (2005). An agency’s unilateral modification of its adverse
action after an appeal has been filed cannot divest the Board of jurisdiction unless
the appellant consents to such divesture or unless the agency completely rescinds
the action being appealed. Id.; Harris v. Department of the Air Force ,
96 M.S.P.R. 193, ¶ 5 (2004). Thus, the Board may dismiss an appeal as moot if
the appealable action is canceled or rescinded by the agency. Harris,
96 M.S.P.R. 193, ¶ 5. However, an appeal may not be dismissed as moot until the
agency provides acceptable evidence showing that it has actually afforded the
appellant all of the relief that he could have received if the matter had been
adjudicated and he had prevailed. Haskins v. Department of the Navy ,
106 M.S.P.R. 616, ¶ 22 (2007). If an appeal is not truly moot despite cancellation
of the action under appeal, the proper remedy is for the Board to retain
jurisdiction and to adjudicate the appeal on the merits. See id., ¶ 15; see Tyrrell
v. Department of Veterans Affairs , 60 M.S.P.R. 276, 279 (1994).
5
The agency did not return the appellant to the status quo ante because his 2017
performance appraisal contains references to the underlying basis of the
removal action.
On review, the appellant renews his argument that the appeal is not moot
because the agency failed to provide him with a 2017 performance rating that is
permanent and the narrative in his performance review references the events
underlying his rescinded removal. PFR File, Tab 1 at 14-18. In its response to
the petition for review, the agency provides an updated performance rating,
contends that the appellant delayed the agency’s efforts to make the rating
permanent, and argues that the performance appraisal does not refer to the
allegations and charges contained in the rescinded removal. PFR File, Tab 3
at 9-10, 14-22.
An employee who has been given improperly lowered performance element
ratings upon his restoration has not been restored to the status quo ante.
Normoyle v. Department of the Air Force , 63 M.S.P.R. 391, 394 (1994). In order
to restore an employee to the status quo ante, the agency must give the employee
the same ratings on restoration that he would have received in the absence of the
removal. Id. at 395-96. While the duty to restore an employee to the status quo
ante does not protect an employee from the consequences of performance
deficiencies that occur after the employee’s restoration, or from the consequences
of any prior deficiencies that were unrelated to the removal, the employee may
not be evaluated based on the charges and allegations set forth in the rescinded
action. See id. at 396; see also Manley v. Department of the Air Force ,
75 M.S.P.R. 103, 106 (1997) (interpreting Normoyle to require that the agency
remove from the appellant’s appraisal all references to the unsustained action,
charges, and allegations).
Here, the appellant challenges the language in the narrative of his 2017
performance appraisal, specifically:
During the period of performance for Mr. Mathew, the Shreveport
VAMC met its critical elements successfully; however, under
6
Mr. Mathew’s leadership serious allegations regarding his leadership
were raised, investigated, and substantiated. Additionally, there
were external reviews from the [Office of Inspector General],
[Emergency Operations Center] and [Federal Drug Administration]
where significant deficiencies were found that were a result of a
failure of leadership. Mr. Mathew was detailed from his position
effective February 1, 2017, as a change in direction was needed in
Shreveport for the facility to move forward and to improve the
culture of psychological safety within the medical center.
Mr. Mathew’s rating reflects the overall rating of the Shreveport
facility which was a level 4 or excellent.
PFR File, Tab 1 at 14-17, Tab 3 at 20. We agree with the appellant that this
narrative rating is not only incongruous with his overall rating of “excellent,” but
also impermissibly references the allegations underlying the removal action.
PFR File, Tab 1 at 14-18. First, the comments that there were “serious
allegations” regarding the appellant’s leadership, that were substantiated by
external entities which found “significant deficiencies” as a result of “a failure of
leadership,” clearly references the events underlying the agency’s charge of
failure to provide effective oversight in the removal action. Compare PFR File,
Tab 3 at 20, with IAF, Tab 7 at 101-05. Similarly, the comments regarding the
basis for the appellant’s detail, i.e., to allow “the facility to move forward and
improve the culture of psychological safety,” clearly references the events
underlying the charge of conduct unbecoming a VA senior leader. Compare
PFR File, Tab 3 at 20, with IAF, Tab 7 at 100-101.
As explained earlier, in order to restore an appellant to the status quo ante,
an agency must remove from the appellant’s appraisals all references to an
unsustained action, charges, or allegations. Manley, 75 M.S.P.R. at 106. Because
the appellant’s appraisal still contains references to the underlying allegations of
the cancelled removal action, the agency has not restored the appellant to the
status quo ante. See Manley v. Department of the Air Force , 91 F.3d 117, 119
(Fed. Cir. 1996) (“The agency’s refusal to adjust the performance evaluation to
7
remove adverse appraisals that had been based on allegations not sustained by the
Board is inimical to a return to the status quo ante.”).
There is no basis to disturb the remaining findings in the initial decision.
We do not find the appellant’s other arguments on review to be persuasive.
First, the appellant renews his argument that the agency official’s statements to
a reporter constituted a hostile work environment, which supported his motion for
a protective order and precluded dismissal of the appeal as moot. PFR File,
Tab 1 at 20-30. We agree with the administrative judge that the appellant failed
to establish that the statements rose to the level of hostile work environment.
ID at 5-6. Furthermore, the Board may grant a protective order if it is necessary
to protect a witness or individual from “harassment.” See 5 C.F.R. § 1201.55(d);
see also 5 U.S.C. § 1204(e)(1)(B). Because the appellant failed to show that
he suffered harassment because of his Board appeal, we also agree with the
administrative judge’s denial of the appellant’s request for a protective order.
Protective Order File, Tab 15; see In re Uriarte, 93 M.S.P.R. 183, ¶ 8 (2002)
(holding that, in order to show that he is entitled to a protective order, the movant
must show that he has suffered harassment because of his involvement or
potential involvement in the Board appeal).3
The appellant also reiterates that the cancellation of the removal action
warranted the rescission of the July 2016 letter of reprimand because the agency
relied on it in its penalty analysis when effecting the removal. PFR File, Tab 1
at 18-20; see IAF, Tab 7 at 33-37. The Board has held that, in rescinding an
adverse action, nothing requires an agency to expunge records of prior
disciplinary actions upon which the agency relied in effecting the action appealed
because those actions are not properly before the Board. Rojas v. U.S. Postal
Service, 70 M.S.P.R. 400, 404 (1996), overruled on other grounds by Fernandez
3 We certainly do not condone the agency’s statements about the appellant, and it may
be that, under different circumstances, an appellant may well be able to show that
similar public remarks contribute to a finding of harassment.
8
v. Department of Justice , 105 M.S.P.R. 443, ¶ 5 n.1 (2007). Accordingly, the
administrative judge properly concluded that the agency was not required to
rescind the past discipline relied upon in effecting the rescinded adverse action.
ID at 6-7.
Finally, the appellant renews his argument that the agency failed to
reassign him to a substantially equivalent position, challenging, specifically, the
agency’s decision to detail him to a set of unclassified duties with no fixed
support staff or supervisory chain of command commensurate with that of his
former position. PFR File, Tab 1 at 7-14. In response, the agency asserted that
this issue was moot because the detail has ended, PFR File, Tab 3 at 8, and the
appellant conceded that point, and did not dispute that he is now performing the
duties of the permanent position to which he was reinstated, PFR File, Tab 4 at 4.
Accordingly, there appears to be no remedy the Board can award the appellant
regarding this issue, and we conclude that the matter of the reinstatement of the
appellant to a permanent position is moot. See Dalton v. Department of Justice ,
66 M.S.P.R. 429, 434 (1995) (finding that, when the appellant’s placement in a
home duty status had ended, and there was no loss of pay or benefits to the
appellant, the matter of the agency’s compliance with the administrative judge’s
order in the removal decision was moot because there was no remedy the Board
could award the appellant).
In conclusion, as discussed above, the agency did not return the appellant
to the status quo ante because his 2017 performance appraisal still contained
references to the underlying basis of the removal action. Therefore, this appeal is
not moot, and we remand it for adjudication on the merits. See Fernandez v.
Department of Justice , 105 M.S.P.R. 443, ¶ 5 (2007) (finding that, if an appeal is
not truly moot, even though the action underlying the appeal was cancelled, the
proper remedy is for the Board to retain jurisdiction and to adjudicate the appeal
on the merits).
9
ORDER
For the reasons discussed above, we remand this case to the Dallas
Regional Office for further adjudication in accordance with this Remand Order.4
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
4 In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order. | Mathew_TobyDA-0752-17-0275-I-2__Remand_Order.pdf | 2024-04-29 | TOBY MATHEW v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-0752-17-0275-I-2, April 29, 2024 | DA-0752-17-0275-I-2 | NP |
1,619 | https://www.mspb.gov/decisions/nonprecedential/Lundlee_Sheila_M_SF-3330-18-0282-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHEILA M. LUNDLEE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-3330-18-0282-I-1
DATE: April 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Giancarlo Facciponte , Esquire, Washington, D.C., for the appellant.
Chau Phan , Denver, Colorado, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied her 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant, who was a 10-point preference-eligible veteran, applied for
the position of GS-07 Veterans Service Representative under the vacancy
announcement number 346-18-1-AM-10058041-OCA-BU. Initial Appeal File
(IAF), Tab 4 at 10-11, Tab 7 at 18-25, 86-99. The vacancy announcement stated,
in pertinent part, that applicants must meet one of the following qualification
requirements: (A) 1 year of specialized experience equivalent to the GS-05 level,
(B) 1 year of graduate-level education related to the competencies required to
perform in the position or a bachelor’s degree with superior academic
achievement (S.A.A.),2 or (C) a combination of such experience and education.
IAF, Tab 7 at 20-21.
2 S.A.A. is based on (1) a grade point average of 3.0 or higher out of a possible 4.0,
(2) class standing in the upper third of the graduating class, or (3) election to
membership in a national scholastic honor society. IAF, Tab 7 at 21; U.S. Office of
Personnel Management General Schedule Qualification Policies , https://www.opm.gov/
policy-data-oversight/classification-qualifications/general-schedule-qualification-
policies/#url=General-Policies (last visited April 29, 2024). 2
The appellant’s application included, among other things, a resume,3 a
letter of enrollment at American Public University (APU), which showed her
class standing as a senior at the time of her application, an unofficial transcript
from APU that indicated she had not yet been conferred a bachelor’s degree,
an invitation to join the APU chapter of an international honor society, and a
completed application, including payment of dues, for admission into the honor
society. Id. at 75-85. After reviewing the appellant’s application, the agency
deemed her ineligible for the position on the basis that she “[did] not meet the
minimum education and/or experience requirements for this series/specialty/grade
combination.” IAF, Tab 1 at 8. On December 8, 2017, the agency informed the
appellant of her nonselection.4 Id.
The appellant made a query with the agency regarding her nonselection.
IAF, Tab 7 at 49. In a December 15, 2017 email, the agency responded that the
appellant was found ineligible due to the fact that she did not provide a transcript
that confirmed degree conferral but that she had the option to upload a transcript
and reapply because the vacancy announcement was still open. Id. On or around
December 26, 2017, the appellant filed a VEOA complaint with the Department
of Labor (DOL) alleging that, because the agency misapplied the Office of
Personnel Management (OPM) S.A.A. criteria to her application and failed to
provide her with the contact information for the Selective Placement Coordinator,
her application was not considered under the guidelines of VEOA. IAF, Tab 1
at 5, 11-13. On January 5, 2018, the last day that the vacancy announcement was
open, the appellant uploaded her transcript and other documents and essentially
reapplied for the position. IAF, Tab 17 at 43-46. By letter dated February 21,
2018, DOL notified her that it had completed its investigation of her complaint
3 In her resume, she stated that she was scheduled to obtain her degree in October 2017.
IAF, Tab 7 at 79.
4 The agency provided evidence that it selected a number of candidates, including
preference-eligibles and veterans, from the certificate for the position at issue. IAF,
Tab 7 at 37-46, Tab 17 at 22-24. 3
filed under 5 U.S.C. §§ 3330a, 3304(b), and 3304(f), determined her VEOA claim
had merit, but was unable to resolve her complaint. IAF, Tab 1 at 14.
The appellant subsequently filed an appeal with the Board and did not
request a hearing. IAF, Tab 1. The administrative judge issued an order on
VEOA jurisdiction, apprising the appellant of her burden of proving Board
jurisdiction over her appeal. IAF, Tab 3. After receiving responses from the
parties on the jurisdictional issue and finding that the appellant made
nonfrivolous allegations of Board jurisdiction over her claims under VEOA but
had waived her right to a hearing, the administrative judge decided the merits of
the appeal based on the written record. IAF, Tabs 11, 15. He notified the parties
that he intended to close the record in the appeal but provided the parties with an
opportunity to file additional evidence and argument for consideration.
IAF, Tabs 11, 15.
After the record closed, the administrative judge issued an initial decision
in which he denied the appellant’s request for corrective action under VEOA.
IAF, Tab 22, Initial Decision (ID). He found in pertinent part that the appellant
failed to prove that the agency violated 5 U.S.C. § 3304(b) when it deemed her
ineligible for the position. ID at 10-14. He further found that the appellant did
not prove that the agency violated her right to compete under 5 U.S.C. § 3304(f)
(1) because it considered her application and made a determination, after a
thorough review, that she was ineligible for the position due to insufficient
documentation. ID at 14-19.
The appellant filed a petition for review. Petition for Review (PFR) File,
Tab 1. The agency responded in opposition to the appellant’s petition for review.
PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
There are generally two types of VEOA claims: (1) the violation of a
statute or regulation relating to veterans’ preference under 5 U.S.C. § 3330a(a)(1)4
(A), and (2) the denial of a right to compete under 5 U.S.C. § 3330a(a)(1)(B).5
The appellant, who is a preference-eligible veteran, may raise a right to compete
claim under 5 U.S.C. § 3330a(a)(1)(A) and (a)(1)(B). Montgomery v. Department
of Health & Human Services , 123 M.S.P.R. 216, ¶ 9 (2016).
Neither party disputes the administrative judge’s findings that the appellant
exhausted her administrative remedies with DOL and made a nonfrivolous
allegation that, in deeming her ineligible for the position, the agency violated
5 U.S.C. § 3304(b) and denied her the right to compete for the subject vacancy
under U.S.C. § 3304(f)(1). ID at 7. The appellant does not challenge on review
the administrative judge’s finding that she failed to exhaust her remedy before
DOL regarding her claim that the agency violated 5 U.S.C. § 3305(b) and/or
5 C.F.R. § 332.331(a) when it failed to add her name to the certificate of eligibles
after she resubmitted her application.6 ID at 12-14. Nor does she challenge the
administrative judge’s conclusion that she failed to make a nonfrivolous
allegation that the agency violated a statute or regulation relating to veterans’
preference by derogating from or misapplying OPM’s General Schedule
Qualification Policies or an agency checklist concerning vacancy documentation.
ID at 7; IAF, Tab 11 at 6 n.4. Accordingly, we need not address these issues on
review.
5 In amending 5 U.S.C. § 3330a(a)(1), Congress extended to non-preference-eligible
veterans the right to compete under 5 U.S.C. § 3304(f)(1) that was previously provided
to preference-eligibles. Montgomery v. Department of Health & Human Services ,
123 M.S.P.R. 216, ¶ 4 n.1 (2016); Walker v. Department of the Army , 104 M.S.P.R. 96,
¶ 14 (2006). The Board found that an interpretation of the statute that would preclude
preference-eligibles from filing such complaints would lead to the absurd result of
non-preference-eligible veterans having greater remedial rights under VEOA than
preference-eligibles. Walker, 104 M.S.P.R. 96, ¶ 14.
6 The agency advised DOL that the appellant did not reapply for the position prior to the
January 5, 2018 deadline, IAF, Tab 7 at 16, but this statement is contradicted by the
record, IAF, Tab 9 at 5-6; ID at 13. We need not resolve this discrepancy because of
our finding that the appellant did not exhaust this claim before DOL.5
To prevail on the merits of a veterans’ preference claim, the appellant must
prove by preponderant evidence7 that (1) she is a preference-eligible within the
meaning of VEOA, (2) the action(s) at issue took place on or after the
October 31, 1998 enactment date of VEOA, and (3) the agency violated her rights
under a statute or regulation relating to veterans’ preference. Lazaro v.
Department of Veterans Affairs , 666 F.3d 1316, 1319 (Fed. Cir. 2012); Isabella v.
Department of State , 106 M.S.P.R. 333, ¶¶ 21-22 (2007), aff’d on recons. ,
109 M.S.P.R. 453 (2008). To prevail on the merits of a right-to-compete claim,
the appellant must prove by preponderant evidence that (1) she is a veteran within
the meaning of 5 U.S.C. § 3304(f)(1), (2) the actions at issue took place on or
after the December 10, 2004 enactment date of the Veterans’ Benefits
Improvement Act of 2004 (VBIA), and (3) the agency denied her the opportunity
to compete under merit promotion procedures for a vacant position for which the
agency accepted applications from individuals outside its own workforce in
violation of 5 U.S.C. § 3304(f)(1). Becker v. Department of Veterans Affairs ,
115 M.S.P.R. 409, ¶ 5 (2010); Graves v. Department of Veterans Affairs ,
114 M.S.P.R. 209, ¶ 19 (2010).
As the administrative judge noted, the appellant proved that she was a
preference-eligible veteran under 5 U.S.C. § 3330a(a)(1)(A) and (a)(1)(B) and
that the nonselection at issue took place in 2017, after the enactment of
VEOA and the VBIA. ID at 5, 9; IAF, Tab at 1 at 8, Tab 7 at 86-90; see
5 U.S.C. § 2108(2)-(3) (defining a preference-eligible as a disabled veteran);
5 U.S.C. § 3304(f)(1) (defining a covered individual as a preference-eligible or a
veteran who has been separated from the armed forces under honorable conditions
after 3 years or more of active service). The following issues remain in dispute:
(1) whether the appellant proved that the agency violated her rights under a
statute or regulation relating to veterans’ preference, and (2) whether she proved
7 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).6
that the agency denied her the opportunity to compete under merit promotion
procedures for a vacant position for which the agency accepted applications from
individuals outside its own workforce in violation of 5 U.S.C. § 3304(f)(1). For
the reasons set forth below, we find that the appellant has failed to prove her
claims under 5 U.S.C. § 3330a(a)(1)(A) and (a)(1)(B) by preponderant evidence.
We affirm the administrative judge’s finding that the appellant failed to prove by
preponderant evidence that the agency violated her veterans’ preference rights
under 5 U.S.C. § 3330a(a)(1)(A).
The appellant does not challenge, and we discern no error with, the
administrative judge’s finding that the appellant failed to prove that the agency
violated 5 U.S.C. § 3304(b), which provides that an individual may be appointed
in the competitive service only if she has passed an examination or is excepted
from examination under section 3302. ID at 11-12. The administrative judge
properly noted in the initial decision that 5 U.S.C. § 3304(b) is a statute relating
to veterans’ preference, and we discern no error with his conclusion that the
appellant failed to prove that the agency violated this statutory provision. ID
at 11-13 (citing Dean v. Department of Agriculture , 99 M.S.P.R. 533, ¶¶ 17-19
(2005), aff’d on recons. , 104 M.S.P.R. 1 (2006)). Thus, we affirm the
administrative judge’s finding that the appellant failed to prove by preponderant
evidence that the agency violated her veterans’ preference rights under
5 U.S.C. § 3330a(a)(1)(A).
The appellant argues for the first time on review that the agency “pass[ed]
[her] over in the selection process” without providing her the notice that she
should have been afforded as a preference-eligible who has a compensable
service-connected disability of 30% or more. PFR File, Tab 1 at 4. This
allegation implicates the requirement in 5 U.S.C. § 3318(c)(2) that the appointing
authority has to notify OPM and a preference-eligible who is a veteran with a
30% or more service-connected disability of a proposed pass-over on a certificate
and an opportunity to respond. The Board will generally not consider an7
argument raised for the first time in a petition for review absent a showing that it
is based on new and material evidence not previously available despite the party’s
due diligence. Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271
(1980). The appellant has not made this showing.8
We affirm the administrative judge’s finding that the appellant failed to prove by
preponderant evidence that the agency denied her a right to compete.
The appellant asserts that the agency’s Human Resources (HR) office did
not consider her application “based on a lack of awareness of the provisions
contained in [OPM’s S.A.A.] policy.” PFR File, Tab 1 at 4. She notes that “the
only issue HR had with [her] application was the lack of a degree conferral,”9 but
the agency did not request “clarification of [her] application materials” even
though she was in email and telephone contact with HR, and instead applied
“more stringent requirements than OPM has published.” Id. She concludes that
the administrative judge did not properly apply 5 U.S.C. § 3304(f)(1), and
disagrees with his finding that the agency allowed her an opportunity to compete
for the vacancy at issue. Id.
8 Even if we were to consider her claim, there is no evidence in the record that the
appellant exhausted this claim before DOL. IAF, Tab 1 at 11-15. Although the Board
uses a liberal pleading standard for allegations of veterans’ preference violations in a
VEOA appeal, Slater v. U.S. Postal Service , 112 M.S.P.R. 28, ¶ 6 (2009 ), evidence of
the exhaustion requirement is mandatory under the statute and is not subject to the same
liberal construction, 5 U.S.C. § 3330a(d). Because the appellant failed to exhaust her
remedy before DOL as to this claim, the Board lacks jurisdiction over this claim.
9 The record reflects that the HR Specialist who conducted qualification assessments for
the subject vacancy stated that there were two issues with the appellant’s application:
(1) the documentation submitted did not show confirmed/accepted membership in a
national scholastic honor society, and (2) the documentation submitted did not indicate
an expected graduation date. IAF, Tab 18 at 14. We need not further discuss the
appellant’s eligibility based on her documents concerning membership in a national
scholastic honor society because we find that the appellant did not prove that she was
denied a right to compete based on the agency’s failure to accept her self-certification
of her graduation date.8
Here, the administrative judge addressed the appellant’s right to compete
claim under 5 U.S.C. §§ 3304(f)(1) and 3330a(a)(1)(B).10 ID at 10-11. Pursuant
to 5 U.S.C. § 3304(f)(1),
Preference eligibles or veterans who have been separated from the
armed forces under honorable conditions after 3 years or more of
active service may not be denied the opportunity to compete for
vacant positions for which the agency making the announcement will
accept applications from individuals outside its own workforce under
merit promotion procedures.
The appellant was a preference-eligible veteran and the agency accepted
applications from individuals outside its own workforce under merit promotion
procedures. IAF, Tab 7 at 17-25. Thus, it was required to provide the appellant
the right to compete under 5 U.S.C. § 3304(f)(1). See Montgomery , 123 M.S.P.R.
216, ¶ 7 (clarifying that the right to compete is not limited merely to situations in
which an agency elects to use merit promotion procedures, but rather is triggered
when an agency accepts applications from individuals outside its own workforce);
5 C.F.R. § 330.102 (describing that an agency has the discretion to fill a vacant
position by any authorized method).
After fully considering the record, the administrative judge properly found
that the appellant was allowed to compete for the Veterans Service Representative
position, in that she applied for the position and the agency thoroughly considered
her application but ultimately determined that she was ineligible for the position
due to her failure to meet the specialized experience and/or S.A.A. proxy
parameters, as required in the vacancy announcement. ID at 19. In making this
finding, the administrative judge relied, in part, on the declaration made under
10 The administrative judge noted that he was not aware of an independent ground for
corrective action regarding a violation of 5 U.S.C. § 3304(f)(1) beyond a
right-to-compete claim under 5 U.S.C. § 3330a(a)(1)(B), and declined to address an
independent claim of a violation of 5 U.S.C. § 3304(f)(1) as a statute relating to
veterans’ preference. ID at 10-11. Although the administrative judge’s statement was
in error, see Montgomery, 123 M.S.P.R. 216, ¶ 5 & n.2, it is not a prejudicial error
because the outcome of this appeal would be the same under 5 U.S.C. § 3330a(a)(1)(A)
or (a)(1)(B). 9
penalty of perjury of the HR specialist who conducted qualification assessments
for the subject vacancy.11 ID at 17-19; IAF, Tab 18 at 13-15. In her declaration
made under penalty of perjury, the HR Specialist attested that the appellant did
not provide acceptable documentation at the time of her application that showed
that she qualified for the position under OPM’s S.A.A. provision. IAF, Tab 18
at 14. She noted, in particular, that the APU letter of enrollment and the APU
unofficial transcript did not substantiate that the appellant was expected to
graduate with her bachelor’s degree within 9 months of her application. Id. In
contrast, she stated that all the applicants who were found qualified for the
position under OPM’s S.A.A. provision provided proof of actual degree conferral.
Id. at 15.
Ultimately, the issue before us is whether the appellant’s self-certification
of her anticipated date of graduation was sufficient under the S.A.A. provision,
and if so, whether the agency’s failure to accept her self-certification denied her
the right to compete under 5 U.S.C. § 3304(f)(1). OPM’s General Schedule
Qualification Policies define acceptable documentation, for the purposes of
meeting minimum qualification requirements, as “[a]n official transcript;
statement from the institution’s registrar, dean, or other appropriate official; or
equivalent documentation.” IAF, Tab 7 at 100. In using the term “equivalent
documentation,” the S.A.A. provision gives the agency discretion in determining
what other documentation is acceptable to show that an applicant is expected to
complete all the requirements for a bachelor’s degree within 9 months of the
11 The appellant alleges that the administrative judge improperly accorded weight to the
agency’s “post hoc” evidence without an analysis of the contradictions in the agency’s
arguments. PFR File, Tab 1 at 4. She does not identify the evidence that she considers
“post hoc” or the contradictions to which she is referring. Id. Based on our review of
the record, we believe that the evidence in question is the HR Specialist’s declaration.
IAF, Tab 18 at 13-15, Tab 19 at 4-5. In the initial decision, the administrative judge
rejected the appellant’s similar claim that the declaration was a de facto surprise, ID
at 17 & n.9, considered the purported contradictions therein, and decided to accord
weight to the assertions made in the HR Specialist’s declaration, ID at 16-19. We
discern no reason to disturb his findings.10
submitted application. The administrative judge considered the appellant’s
argument that the agency improperly failed to honor her equivalent
documentation in the form of self-certification, and observed that the agency’s
documentary requirements could be perceived as stringent, but determined that
the agency was not required to accept the appellant’s self -certification under
OPM’s S.A.A. provision, nor was required to accept applications from
non-graduates seeking to avail themselves of this provision. ID at 16-19. The
administrative judge further found that the agency’s handling of her application
appeared consistent with the terms of the OPM’s S.A.A. provision and its
assessment of the other applications for the position at issue. ID at 19. He noted
that VEOA does not empower the Board to supplant the agency’s criteria with its
own. Id. (citing Jones v. Department of Veterans Affairs , 629 F. App’x 956, 960
(Fed. Cir. 2015)). We discern no basis to disturb the administrative judge’s
findings in this regard.
Because the record reflects that the agency considered the appellant’s
application, we find that she was given an opportunity to compete for the position
at issue. The right to compete under § 3304(f)(1) does not preclude an agency
from eliminating a preference-eligible veteran, such as the appellant, from further
consideration for a position based on her qualifications for the position.
Harellson v. U.S. Postal Service , 113 M.S.P.R. 534, ¶ 11 (2010). No authority
requires that a preference-eligible or a veteran be considered at every stage of the
selection process. Id.
The appellant’s arguments on review constitute mere disagreement with the
administrative judge’s reasoned findings that are supported by the record and
entitled to deference. 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 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). Thus, we find that the appellant failed to11
prove that the agency denied her the right to compete, and we affirm the initial
decision.
NOTICE OF APPEAL RIGHTS12
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
12 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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.13 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
13 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 | Lundlee_Sheila_M_SF-3330-18-0282-I-1__Final_Order.pdf | 2024-04-29 | SHEILA M. LUNDLEE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-3330-18-0282-I-1, April 29, 2024 | SF-3330-18-0282-I-1 | NP |
1,620 | https://www.mspb.gov/decisions/nonprecedential/Hessami__Negar_PH-1221-17-0271-M-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NEGAR HESSAMI ,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-1221-17-0271-M-2
DATE: April 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kellee B. Kruse , Esquire, and R. Scott Oswald , Esquire, Washington, D.C.,
for the appellant.
Kaitlin Fitzgibbon , Esquire, Buffalo, New York, for the agency.
Shelly S. Glenn , Esquire, Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in her individual right of action (IRA)
appeal. 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. Except as expressly MODIFIED to
VACATE the administrative judge’s analysis of whether the agency proved by
clear and convincing evidence that it would have taken the same personnel
actions in the absence of the disclosures, we AFFIRM the initial decision.
The appellant was employed with the agency as the Chief of Pharmacy
Service at the agency’s medical center in Martinsburg, West Virginia. Hessami
v. Department of Veterans Affairs, MSPB Docket No. PH-1221-17-0271-W-1,
Initial Appeal File, Tab 1. In her appeal, she alleged that she was detailed out of
her position, suspended for 14 days, and demoted to a nonsupervisory position in
reprisal for her disclosures concerning the prescribing practices of a particular
physician and the effect those practices had on the agency’s budget for
Hepatitis C treatment. Id. at 17-21. After the administrative judge originally
dismissed her appeal for lack of jurisdiction for failing to nonfrivolously allege
that she made a protected disclosure under 5 U.S.C. § 2302(b)(8), Hessami v.
Department of Veterans Affairs, MSPB Docket No. PH-1221-17-0271-W-2,
Appeal File (W-2 AF), Tab 15, the U.S. Court of Appeals for the Federal Circuit
vacated that finding, found that the appellant nonfrivolously alleged that she
made a protected disclosure, and remanded the appeal for further adjudication,2
Hessami v. Merit Systems Protection Board, 979 F.3d 1362, 1369 -71 (Fed. Cir.
2020). On remand, and following a hearing, the administrative judge issued an
initial decision finding that the appellant established jurisdiction over her appeal
by making sufficient nonfrivolous allegations but concluding that she failed to
prove by preponderant evidence that she made a protected disclosure under
5 U.S.C. § 2302(b)(8) that was a contributing factor in her detail, suspension, and
demotion. Hessami v. Department of Veterans Affairs, PH-1221-17-0271-M-2,
Refiled Remand File (M -2 AF), Tab 29, Initial Decision (ID) at 8-18. The
administrative judge further found that the agency proved by clear and convincing
evidence that it would have taken the same actions even in the absence of the
appellant’s disclosures, and he denied the appellant’s request for corrective
action. ID at 18-27.
The administrative judge correctly found that the appellant failed to establish a
prima facie case of whistleblower reprisal.
In the initial decision, the administrative judge considered whether the
appellant proved that her disclosures regarding a particular physician’s
prescribing practices and the effect of those practices on the agency’s Hepatitis C
treatment budget constituted disclosures of wrongdoing that she reasonably
believed 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 pursuant to 5 U.S.C. § 2302(b)(8). ID at 10-18.
He analyzed each of these categories of wrongdoing separately and found that the
appellant failed to prove by preponderant evidence that she reasonably believed
that she was disclosing any of the above-referenced categories of wrongdoing.
Id.
On review, the appellant challenges the administrative judge’s findings as
inconsistent with the Federal Circuit’s opinion, particularly with respect to the
categories of gross mismanagement and a substantial and specific danger to3
public health or safety. Petition for Review (PFR) File, Tab 1 at 14-16.2
Regarding the claim of gross mismanagement, the Federal Circuit stated in its
opinion that “[a] reasonable person could conclude that the [] prescribing practice
constituted gross mismanagement because the unjustified higher cost of therapies
was likely to have a substantial detrimental impact on the [agency’s] ability to
complete its mission of providing care to [Hepatitis C] patients because the
prescriptions were rapidly depleting” the budget. Hessami, 979 F.3d at 1370.
With respect to a substantial and specific danger to public health or safety, the
court found that her alleged disclosure “that a specific [G]overnment physician is
directing patients to take medications with known risks and side effects for an
unnecessarily long period of time, paired with her reasonable belief that there was
no clinical justification for doing so, does not represent a ‘negligible, remote, or
ill-defined peril.’” Id. at 1370 (internal citations omitted). Thus, the appellant
2 In her petition for review, the appellant also challenges the administrative judge’s
findings that she failed to prove that she reasonably believed she was disclosing a
violation of law, rule, or regulation and a gross waste of funds. PFR File, Tab 1
at 14-15. Regarding her argument that she disclosed a violation of a law, rule, or
regulation, she argues for the first time on review that the agency’s treatment directives
constitute a “rule” under 5 U.S.C. § 551(4). Id. at 14. 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 that was not previously available despite the
party’s due diligence. See Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6
(2016). The appellant has not made such a showing. In any event, the appellant has not
provided any authority demonstrating that the Board has interpreted the word “rule” in
the context of the whistleblower reprisal statutes in accordance with 5 U.S.C. § 551(4),
and, beyond her bare assertion, she has not explained how the agency’s Hepatitis C
treatment guidance would qualify under the definition provided there. Thus, this
argument does not provide a basis to disturb the initial decision. We have reviewed her
remaining arguments on review regarding whether her disclosures evidenced a violation
of law, rule, and regulation and a gross waste of funds but find that they also do not
provide a basis to disturb the initial decision. See Crosby v. U.S. Postal Service,
74 M.S.P.R. 98, 105 -06 (1997) (finding no reason to disturb the administrative judge’s
findings when she considered the evidence as a whole, drew appropriate inferences, and
reached well-reasoned conclusions); Broughton v. Department of Health & Human
Services, 33 M.S.P.R. 357, 359 (1987 ) (same). The appellant does not specifically
challenge the administrative judge’s finding that she failed to prove that she reasonably
believed she disclosed an abuse of authority, and we discern no basis to disturb that
finding here. 4
argues on review that, based on the Federal Circuit’s assessment of her
disclosures, she made protected disclosures of gross mismanagement and a
substantial and specific danger to public health or safety under 5 U.S.C.
§ 2302(b)(8).
The appellant’s arguments do not persuade us to disturb the administrative
judge’s finding that she failed to make a protected disclosure. Notably, the
court’s statements regarding the disclosures were made as a part of a
jurisdictional finding and, by definition, did not include a weighing of the record
evidence. See id. at 1364 (holding that, when determining whether an appellant
has nonfrivolously alleged that she disclosed information that she reasonably
believed evidenced misconduct under the whistleblower protection statutes, the
Board’s inquiry should be limited to evaluating whether the appellant has alleged
sufficient factual matter, accepted as true, to state a claim that is plausible on its
face). Indeed, as reiterated in Hessami, to establish jurisdiction, an appellant
need only assert nonfrivolous allegations—allegations that are not vague,
conclusory, or facially insufficient—that she made a protected disclosure that was
a contributing factor to a reprisal. Id. at 1367; see 5 C.F.R. § 1201.4(s). When
seeking to prove the merits of a whistleblower reprisal claim, however, an
appellant must show by preponderant evidence—the degree of 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—that she made a
protected disclosure that was a contributing factor in a personnel action taken
against her. Smith v. Department of the Army, 2022 MSPB 4, ¶ 13 & n.7;
5 C.F.R. § 1201.4(q). Thus, at this stage, the administrative judge was tasked—
after weighing both parties’ evidence— with determining whether the appellant
proved by preponderant evidence that she made a disclosure that she reasonably
believed evidenced gross mismanagement or a substantial and specific danger to
public health or safety. See Smith, 2022 MSPB 4, ¶¶ 13-14; 5 C.F.R. § 1201.4(q).5
An integral part of a disclosure of gross mismanagement is that the action
or inaction disclosed creates a substantial risk of significant adverse impact on
the agency’s ability to accomplish its mission. Cassidy v. Department of Justice,
118 M.S.P.R. 74, ¶ 8 (2012). Here, the agency’s mission is to treat its veteran
patients. The appellant’s disclosure related directly to a physician’s practices in
treating his patients and did not include allegations that such treatment was
ineffective or medically harmful. Thus, the content of the appellant’s disclosure
failed to demonstrate that the physician’s practices were detrimental to the
agency’s mission to care for and treat veteran patients. W-2 AF, Tab 3 at 21, 23.
To the extent the alleged wrongdoing threatened the agency’s budget and, by
extension, its ability to accomplish its mission, the record also establishes that,
given the appellant’s position with the agency as the Chief of Pharmacy Service
and her involvement in the Hepatitis C treatment program, she would have known
that the prescribing practices and their relationship to the budget were constantly
under review by the agency’s Hepatitis Interdisciplinary Team (HIT), which is
comprised of prescribing providers, representatives from the fiscal offices, social
workers, nursing staff, and representatives from the pharmacy, and that every
dollar and pill was carefully tracked and every prescribing decision thoroughly
considered. Id. at 20-21, 72-75, 157. Given this oversight and the appellant’s
familiarity with the same, we discern no error in the administrative judge’s
finding that the appellant failed to prove that she reasonably believed that the
wrongdoing she disclosed evidenced gross mismanagement. ID at 15.
Regarding a substantial and specific danger to public health or safety,
although we recognize that the appellant’s allegations may have been sufficient to
constitute a nonfrivolous allegation of a protected disclosure adequate to establish
jurisdiction over her claims in the instant appeal, the Federal Circuit has
explained that specific evidence of detailed circumstances giving rise to a
likelihood of impending harm is needed to demonstrate by preponderant evidence
that a disclosure evidences a substantial and specific danger to public health or6
safety. See Chambers v. Department of the Interior, 602 F.3d 1370, 1376
(Fed. Cir. 2010). Here, the record does not demonstrate that the appellant could
have reasonably believed that impeding harm to the agency, to its patients, or to
the public was likely. Again, the record demonstrates that the physician
treatment plans for individual patients were regularly reviewed and approved by
the HIT and that the agency regularly monitored the effect the high costs of its
Hepatitis C treatment plans had on the budget. W-2 AF, Tab 3 at 20-22, 157.
Moreover, the appellant conceded that she did not have any information that
patients were put at risk by the physician’s treatment plan, and she admitted that
no patients were denied treatment because of the budget issues she disclosed.
Id. at 57-58. Accordingly, we discern no error in the administrative judge’s
finding that the appellant failed to prove by preponderant evidence that she
reasonably believed that she disclosed a substantial and specific danger to public
safety or health. ID at 15-16.
Based on the foregoing, we agree with the administrative judge that the
appellant failed to establish a prima facie case of whistleblower reprisal.3
We vacate the administrative judge’s finding that the appellant proved by clear
and convincing evidence that it would have taken the same personnel actions
against the appellant even in the absence of her disclosure.
Although the administrative judge correctly found that the appellant failed
to establish a prima facie case of whistleblower reprisal, he nonetheless
proceeded to consider whether the agency met its burden of showing by clear and
convincing evidence that it would have detailed, suspended, and demoted the
3 In the initial decision, the administrative judge proceeded to consider whether the
appellant proved by preponderant evidence that her disclosures were a contributing
factor in a personnel action. ID at 18-21; see Smith, 2022 MSPB 4, ¶ 13. He concluded
that, although the appellant met the knowledge/timing test, she failed to meet any of the
other factors relevant to determining whether she met the contributing factor element.
ID at 19-21. Although we conclude this finding is in error, see 5 U.S.C. § 1221(e)(1)
(A)-(B) (providing that the knowledge/timing test is sufficient to meet the contributing
factor element), we need not determine the effect of this error because we otherwise
agree with the administrative judge that the appellant failed to prove that she made a
protected disclosure under 5 U.S.C. § 2302(b)(8). 7
appellant even in the absence of any protected whistleblowing activity.
ID at 21-27 (citing Carr v. Social Security Administration, 185 F.3d 1318
(Fed. Cir. 1999)). Because we agree with the administrative judge that the
appellant failed to establish a prima facie case of whistleblower reprisal, it was
improper for the administrative judge to consider whether the agency met its
burden to show by clear and convincing evidence that it would have taken the
same action in the absence of the appellant’s protected activity. See 5 U.S.C.
§ 1221(e)(2); Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19
n.10 (2014), aff’d per curium, 623 F. App’x 1016 (Fed. Cir. 2015).4
Accordingly, we vacate the initial decision’s finding that the agency showed by
clear and convincing evidence that it would have detailed, suspended, and
demoted the appellant even in the absence of her disclosures.
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 Although the U.S. Court of Appeals for the Seventh Circuit has disagreed with the
Board’s decision in Clarke, it did so on other grounds. Delgado v. Merit Systems
Protection Board, 880 F.3d 913, 923-25 (7th Cir .), as amended on denial of reh’g and
reh’g en banc (7th Cir. 2018).
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.8
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit 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.6 The court of appeals must receive your petition for
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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 | Hessami__Negar_PH-1221-17-0271-M-2__Final_Order.pdf | 2024-04-29 | NEGAR HESSAMI v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-1221-17-0271-M-2, April 29, 2024 | PH-1221-17-0271-M-2 | NP |
1,621 | https://www.mspb.gov/decisions/nonprecedential/Garand_AntoineAT-0714-18-0599-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTOINE GARAND,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0714-18-0599-I-1
DATE: April 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kevin C. Crayon, II , Esquire, Kennesaw, Georgia, for the appellant.
Dana C. Heck , Esquire, St. Petersburg, Florida, for the agency.
Joved Gonzalez-Rivera , Mayaguez, Puerto Rico, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal pursuant to 38 U.S.C. § 714. 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 MODIFIED to
clarify (1) why, given the particular circumstances of this case, further
adjudication regarding the agency’s charges and penalty is unwarranted and
(2) why the appellant failed to prove his due process claim, we AFFIRM the
initial decision.
BACKGROUND
Effective November 27, 2017, the agency removed the appellant from his
Administrative Officer position under the authority of the Department of Veterans
Affairs Accountability and Whistleblower Protection Act of 2017 (VA
Accountability Act), codified at 38 U.S.C. § 714, based on the following charges:
(1) one specification of careless or negligent performance of duties in 2016;
(2) one specification of inappropriate and unprofessional conduct occurring on
July 18, 2017, and a second specification of inappropriate and unprofessional
conduct occurring on April 11, 2017; and (3) two specifications of unacceptable
rating in two critical elements of his performance plan. Initial Appeal File (IAF),
Tab 1 at 9, Tab 9 at 38, 41. After the appellant filed an equal employment
opportunity (EEO) complaint of discrimination regarding the removal and the
agency issued its final agency decision in the matter, he filed the present appeal.2
2 After briefing by the parties on the issue of timeliness, the administrative judge found
that, although the appeal was untimely filed under 38 U.S.C. § 714, the application of
equitable tolling was appropriate under the circumstances. IAF, Tab 23. Since the2
IAF, Tab 1, Tab 9 at 20-34. On appeal, the appellant argued that the VA
Accountability Act should not apply retroactively to the misconduct at issue in
his appeal. IAF, Tab 1 at 6. He also raised the following affirmative defenses:
(1) discrimination based on race, color, sex, religion, and national origin;
(2) retaliation based on prior EEO activity; (3) due process violations;
(4) harmful procedural error; and (5) not in accordance with law. IAF, Tabs 1,
30-31, 37.
Prior to holding the requested hearing, the administrative judge issued an
order finding that the VA Accountability Act could be applied retroactively to the
present appeal. IAF, Tab 27. Thereafter, he issued an initial decision affirming
the removal action. IAF, Tab 38, Initial Decision (ID). He found that the agency
proved charges 1 and 2 by substantial evidence but that the agency failed to prove
charge 3 because of a fatal flaw in its labeling of the charge. ID at 3-11. He
additionally found that the appellant failed to prove his affirmative defenses. ID
at 11-17. He further noted that the Board had no authority to mitigate the penalty
if the agency proves its charge. ID at 3.
The appellant filed a petition for review, the agency filed a response, and
the appellant filed a reply thereto. Petition for Review (PFR) File, Tabs 1, 3-4.
Thereafter, the agency filed a pleading asserting that it intended to file a motion
to dismiss the appeal as moot once it completed the rescission of the appellant’s
removal. PFR File, Tab 5. As a result, the Acting Clerk of the Board ordered the
administrative judge issued that ruling, the Board issued its decision in Wilson v.
Department of Veterans Affairs , 2022 MSPB 7, ¶ 25, concluding that, when an agency
action is taken pursuant to section 714 and the appellant files a mixed-case Board
appeal after filing a formal discrimination complaint with the agency, the appeal is
governed by the procedures set forth in 5 U.S.C. § 7702 and the Board’s implementing
regulations. Because the appellant filed his mixed-case appeal within 30 days of receipt
of the final agency decision, we find that his appeal was timely filed. IAF, Tabs 1, 6,
24; see 5 C.F.R. § 1201.154(b)(2). Any error by the administrative judge in finding the
appeal untimely filed and applying equitable tolling was harmless. Panter v.
Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (concluding that an
adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis
for reversal of an initial decision). 3
parties to submit evidence regarding the steps the agency had taken to return the
appellant to the status quo ante and whether the appeal had been rendered moot.
PFR File, Tab 6. Both parties replied. PFR File, Tabs 9-10. The agency
thereafter submitted two additional filings regarding the mootness issue. PFR
File, Tabs 11-12. The Acting Clerk of the Board thereafter ordered the appellant
to address whether the matter had been rendered moot. PFR File, Tab 13 at 1-2.
In response, the appellant argued that the matter was not moot because his
petition for review, which raised arguments regarding discrimination-based
affirmative defenses, was still pending before the Board. PFR File, Tab 14 at 3.
He also contended that he intended to seek attorney’s fees because he had
correctly argued before the administrative judge that the agency had
impermissibly applied 38 U.S.C. § 714 retroactively. Id. The agency did not
respond to the appellant’s filing.
ANALYSIS
The appeal is not moot.
The Board will dismiss an appeal as moot if the agency action has been
completely canceled or rescinded, and the appellant has received all of the relief
that he could have received if the matter had been adjudicated and he had
prevailed. Green v. Department of the Air Force , 114 M.S.P.R. 340, ¶ 7 (2010).
In the agency’s most recent filing, it avers that it has taken the following actions:
(1) rescinded the removal action; (2) processed general adjustments to pay and a
within grade increase that would have occurred had the appellant remained an
agency employee3; and (3) provided the appellant with all back pay and benefits
owed to him. PFR File, Tab 12 at 4-5. The appellant does not dispute that the
agency has taken these actions. We therefore find that the agency has completely
rescinded the removal action; however, this finding does not end our inquiry. See
Hodge v. Department of Veterans Affairs , 72 M.S.P.R. 470, 472 (1996). As
3 The agency explained that, rather than return to duty, the appellant elected to resign
from the agency effective October 25, 2021. PFR File, Tab 5 at 9, Tab 12 at 4.4
discussed, the appellant contends that two issues remain outstanding: (1) his
potential entitlement to attorney fees and (2) his discrimination-based affirmative
defenses, for which he seeks compensatory damages. PFR File, Tab 9 at 3,
Tab 14 at 3.
Regarding attorney fees, the appellant contends that the agency rescinded
its removal action because of the U.S. Court of Appeals for the Federal Circuit’s
decision in Sayers v. Department of Veterans Affairs , 954 F.3d 1370 (Fed. Cir.
2020), which was issued subsequent to the initial decision. PFR File, Tab 9 at 3,
Tab 14 at 3. In Sayers, the Federal Circuit found that 38 U.S.C. § 714 has an
impermissible retroactive effect, and Congress did not authorize its retroactive
application; thus, the agency may not use the VA Accountability Act to discipline
an employee for conduct that occurred before June 23, 2017, i.e., the effective
date of the Act. See Sayers, 954 F.3d at 1380-82. The appellant asserts that, in
light of Sayers, he raised a meritorious claim before the administrative judge and,
accordingly, is entitled to attorney fees. PFR File, Tab 9 at 3, Tab 14 at 3; IAF,
Tab 1 at 6. To the extent the appellant argues that his intent to file for such fees
precludes the Board from dismissing the matter as moot, we disagree.4 Indeed,
the Board has long held that an appellant’s intention to file a motion for attorney
fees does not prevent dismissal of an otherwise moot appeal. Alleman v.
Department of the Army , 79 M.S.P.R. 233, 239 (1998); see Murphy v. Department
of Justice, 107 M.S.P.R. 154, ¶ 6 (2007) (explaining that the potential recovery of
attorney fees under 5 U.S.C. § 7701(g)(1) does not prevent the dismissal of an
appeal as moot; instead, the award of attorney fees to a prevailing party is
considered to be separate from relief on the merits). Thus, the appellant’s intent
to seek attorney fees does not preclude a finding of mootness.
The appellant, however, also contends that he raised “viable discrimination
claims,” for which he seeks compensatory damages. PFR File, Tab 9 at 3, Tab 14
4 In his filings, the appellant acknowledges that he can petition for attorney fees “at the
appropriate time.” PFR File, Tab 14 at 3.5
at 3. When an agency cancels an action after an appellant files a Board appeal
and the appellant has a viable outstanding compensatory damages claim, such as a
discrimination claim, the appeal is not rendered moot by the cancellation. See
Hess v. U.S. Postal Service , 124 M.S.P.R. 40, ¶¶ 9, 18-19 (2016) (explaining that
the Board has the authority to award compensatory damages related to
discrimination and EEO reprisal claims). We therefore agree that the agency’s
actions have not rendered the matter moot; accordingly, we herein consider the
appellant’s arguments on review.
Federal Circuit precedent issued subsequent to the initial decision would typically
warrant remand; however, given the particular circumstances of this case, further
adjudication is unnecessary.
In his petition and reply, the appellant raises a series of specific challenges
to the administrative judge’s conclusion that the agency proved two of its
charges. PFR File, Tabs 1, 4. As indicated above, he also more broadly argues
that the agency impermissibly applied 38 U.S.C. § 714 to him because “virtually
all of the acts giving rise to the charges occurred prior to the June 23, 2017
enactment of the [VA Accountability Act].” PFR File, Tab 1 at 11.
After the administrative judge issued the initial decision in this appeal, the
Federal Circuit issued a series of precedential decisions regarding 38 U.S.C.
§ 714 cases that impact this appeal. First, as discussed, in Sayers, the court found
that 38 U.S.C. § 714 has an impermissible retroactive effect; accordingly, the
agency may not use the VA Accountability Act to discipline an employee for
matters that occurred before its effective date, i.e., June 23, 2017. Sayers,
954 F.3d at 1374, 1380 -82. Subsequently, the Federal Circuit issued an opinion
in Brenner v. Department of Veterans Affairs , 990 F.3d 1313, 1327-30 (Fed. Cir.
2021), addressing the section 714 removal of an employee for performance issues
both predating and postdating June 23, 2017. The court in Brenner vacated the
petitioner’s removal and remanded the appeal to the Board to determine whether6
the agency’s removal action was “supported by substantial evidence on the
evidence of record that postdates the Act.” Id. at 1330.
Here, the agency removed the appellant under the VA Accountability Act
based largely on conduct that predated its June 23, 2017 enactment. IAF, Tab 9
at 38, 41. Thus, the agency erroneously applied the VA Accountability Act
retroactively. See Sayers, 954 F.3d at 1380. Under these circumstances, we
would typically remand this case to the administrative judge for a determination
of whether the removal can be sustained based solely on the sustained conduct
that postdates the VA Accountability Act; that is, the inappropriate and
unprofessional conduct occurring on July 18, 2017. IAF, Tab 9 at 41; see
Brenner, 990 F.3d at 1330. However, because the agency has rescinded its
removal action, remand for such a determination is unnecessary.
Second, the Federal Circuit held in Rodriguez v. Department of Veterans
Affairs, 8 F.4th 1290, 1298-1301 (Fed. Cir. 2021), that, although the Board uses
the substantial evidence standard in reviewing an action under section 714, the
agency itself must apply a preponderant evidence standard in determining
whether the charges should be sustained. Here, the deciding official sustained the
proposed removal based on his finding that the charges were “supported by
substantial evidence.” IAF, Tab 9 at 38. Although the agency’s removal
decision predated Rodriguez, the holding in Rodriguez applies to all pending
cases, regardless of when the events at issue took place. Semenov v. Department
of Veterans Affairs , 2023 MSPB 16, ¶ 22. The administrative judge and the
parties did not have the benefit of Rodriguez, and thus they were unable to
address its impact on this appeal. Accordingly, we would typically remand this
case for adjudication of whether the agency’s apparent error in applying the
substantial evidence standard of proof was harmful. Id., ¶ 23 (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). However, given the circumstances, remand
on these grounds would be an exercise in futility. 7
Third, in Connor v. Department of Veterans Affairs , 8 F.4th 1319, 1325-26
(Fed. Cir. 2021), the Federal Circuit determined that the Board must consider and
apply the 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 the VA
Accountability Act. The court held that, although the Act precludes the Board
from mitigating the agency’s chosen penalty, “[i]t does not alter the penalty
review with respect to the Douglas factors,” id. at 1326, 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,” id.
at 1326-27 (citing Brenner, 990 F.3d at 1325) (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”).
As we found with the Rodriguez case, the Federal Circuit’s decision in Connor
applies to all pending cases, regardless of when the events at issue took place.
See Semenov, 2023 MSPB 16, ¶¶ 49-50.
Here, the administrative judge did not review the agency’s penalty, finding
that the Board was precluded from mitigating the penalty under 38 U.S.C. § 714.
ID at 6. Moreover, in the deciding official’s decision letter upholding the
proposed removal, he did not reference Douglas or cite to the Douglas factors.
IAF, Tab 9 at 38-39. Thus, the record is unclear as to whether the agency
properly considered the Douglas factors in making the decision to remove the
appellant. Again, this issue would typically warrant remand; however, given the
agency’s rescission of the removal action, remand is unwarranted.
We agree that the appellant failed to show that the agency violated his due
process rights; however, we clarify the basis for this finding.
The appellant argues that the deciding official committed a due process
violation when he considered the fact that the appellant previously had been8
placed on performance improvement plans (PIPs) even though those prior PIPs
were not mentioned in the proposed removal. PFR File, Tab 1 at 21-23.
In the initial decision, the administrative judge found that the agency had
provided the appellant evidence of his prior PIPs with the proposed removal, and
therefore, there was no due process violation. ID at 16. As the appellant
correctly argues on review, however, the PIPs were not contained in the evidence
file attached to the proposed removal or otherwise mentioned in the proposed
removal. PFR File, Tab 1 at 21-22; IAF, Tab 36. Moreover, we have reviewed
the hearing testimony and the deciding official did testify that he considered the
appellant’s prior performance issues as an aggravating factor in deciding to
remove him, as alleged by the appellant. PFR File, Tab 1 at 21-22; Hearing
Compact Disc (HCD), #4.5 Nevertheless, according to notes taken by the Human
Resources Specialist during the appellant’s oral reply to the proposed removal,
which the appellant reviewed and corrected, the appellant raised the issue of his
prior PIPs to the deciding official in responding to the charges. IAF, Tab 19
at 114, 116.
The Board has held that a deciding official does not violate an employee’s
right to due process when he considers issues raised by an employee in his
response to the proposed adverse action and then rejects those arguments in
reaching a decision. E.g., Grimes v. Department of Justice , 122 M.S.P.R. 36,
¶¶ 12-13 (2014); Wilson v. Department of Homeland Security , 120 M.S.P.R. 686,
¶¶ 10-11 (2014), aff’d, 595 F. App’x 995 (Fed. Cir. 2015). Accordingly, although
we agree that the deciding official did not violate the appellant’s right to due
process when he considered the existence of his prior PIPs in deciding to remove
him, we clarify the basis for this finding.
5 The deciding official testified that he was aware of the appellant’s performance issues
because he had been the deciding official in a prior proposed removal of the appellant
based on performance and, rather than remove him, he decided to extend the underlying
PIP for an additional 90 days. HCD #4; IAF, Tab 19 at 70, 114. 9
The appellant failed to prove his discrimination-based affirmative defenses.
Here, although the appellant raised claims of race, color, sex, religion, and
national origin discrimination, he presented no evidence or argument to support
these claims. ID at 11-17. As to his EEO retaliation claim, the appellant argues
in his petition for review that the administrative judge ignored “abundant
evidence tending to show” that the agency removed him in retaliation for his prior
EEO activity. PFR File, Tab 1 at 30. However, the record reflects that the
administrative judge considered the evidence regarding the appellant’s retaliation
claim and concluded, based in part on witness testimony, that he failed to show
by preponderant evidence that retaliation was a motivating factor in his removal.
ID at 11-16 (citing Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647
(2016), and Savage v. Department of the Army , 122 M.S.P.R. 612 (2015))6; see
Purifoy v. Department of Veterans Affairs , 838 F.3d 1367, 1372-73 (Fed. Cir.
2016) (finding that the Board must defer to an administrative judge’s
demeanor-based credibility determinations, “[e]ven if demeanor is not explicitly
discussed”); see also Marques v. Department of Health and Human Services ,
22 M.S.P.R. 129, 132 (1984) (explaining that an administrative judge’s failure to
discuss 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). Notably, as to the
appellant’s arguments on review that the agency’s inability to prove charge 3
raises an inference of retaliation, the administrative judge found that he would
have sustained the underlying conduct had the agency drafted the charge properly.
ID at 14-15. Under these circumstances, we find the appellant has shown no
basis to disturb the administrative judge’s well-reasoned and explained findings.
6 The Board recently called certain aspects of Gardner and Savage into question in
Prigden v. Office of Management and Budget , 2022 MSPB 31. However, even after
Pridgen, claims of EEO retaliation in violation of Title VII are subject to a motivating
factor standard. Pridgen, 2022 MSPB 31, ¶¶ 30-31. To the extent the appellant may
have claimed retaliation for opposing disability discrimination, which is subject to a
higher “but-for” standard, his failure to meet the lower motivating factor standard
necessarily means that he cannot meet the “but-for” standard. Desjardin v. U.S. Postal
Service, 2023 MSPB 6, ¶¶ 31-33.10
See Diggs v. Department of Housing and Urban Development , 114 M.S.P.R. 464,
¶ 8 (2010). Thus, we agree that the appellant failed to prove his
discrimination-based affirmative defenses.
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 on12
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.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) or13
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a 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.15 | Garand_AntoineAT-0714-18-0599-I-1__Final_Order.pdf | 2024-04-29 | ANTOINE GARAND v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0714-18-0599-I-1, April 29, 2024 | AT-0714-18-0599-I-1 | NP |
1,622 | https://www.mspb.gov/decisions/nonprecedential/Green_DavidPH-0432-19-0370-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID GREEN,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
PH-0432-19-0370-I-1
DATE: April 29, 2024
THIS ORDER IS NONPRECEDENTIAL1
David Green , Bel Air, Maryland, pro se.
Jennifer Murphy , Aberdeen Proving Ground, Maryland, 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 his removal under 5 U.S.C. chapter 43. For the reasons set forth below,
we GRANT the petition for review, VACATE the initial decision, and REMAND
the appeal to the Northeastern Regional Office for further adjudication consistent
with Santos v. National Aeronautics and Space Administration , 990 F.3d 1355
(Fed. Cir. 2021).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 an NH-03 Physical Scientist for the agency’s Aberdeen
Test Center.2 Initial Appeal File (IAF), Tab 1 at 1, Tab 9 at 4. The appellant’s
duties involved providing scientific services to the Department of Defense and
other customers, particularly materials testing in a laboratory setting. IAF, Tab 9
at 7-9. The appellant’s position is subject to an Office of Personnel Management
(OPM)-approved demonstration project known as the “Contribution-based
Compensation and Appraisal System” (CCAS). IAF, Tab 9 at 21-25, Tab 12
at 81; see generally 5 U.S.C. § 4703 (authorizing OPM to conduct demonstration
projects); Civilian Acquisition Workforce Personnel Demonstration (AcqDemo)
Project, Department of Defense (DOD), 82 Fed. Reg. 52104-01 (Nov. 9, 2017).
CCAS is a “contribution-based” appraisal system, as opposed to the
“performance-based” systems normally contemplated under 5 U.S.C. chapter 43.
82 Fed. Reg. at 52127-37. Positions under CCAS are grouped into four
“broadbands,” rather than assigned particular grades and steps as under the
General Schedule. Id. at 52114. Contribution is rated through “contribution
scores” in each of the following factors: (1) Job Achievement and/or Innovation;
(2) Communication and/or Teamwork; and (3) Mission Support. Id. at 52115.
Each factor has multiple levels of increasing contribution corresponding to the
broadband levels and contains descriptors for each respective level within the
relevant career path. Id. at 52127-28.
Acceptable contribution for any given broadband is determined by
reference to the “contribution score” assigned to that broadband, i.e., the
contribution level expected of an employee occupying a position under that
broadband. Id. at 52128, 52136. Because CCAS is a contribution-based system,
under-contributing employees are subjected to “contribution-based,” rather than
“performance-based,” actions. Id. at 52136. An employee who fails to
2 NH-03 is a pay band for business and technical management professionals which
corresponds to Grades 12 and 13 of the General Schedule. Initial Appeal File, Tab 12
at 243.
3
demonstrate acceptable contribution overall, or in any single contribution factor,
may be placed on a contribution improvement plan (CIP), which is analogous to
the opportunity to demonstrate acceptable performance under 5 C.F.R.
§ 432.103(d). Id. at 52136-37. All three contribution factors are considered
critical elements. Id. 52136. If an employee fails to demonstrate acceptable
contribution during the CIP, he may be reassigned, reduced in broadband or pay,
or removed. Id. at 52137. A contribution-based adverse action under CCAS is
appealable to the Board under 5 U.S.C. chapter 43. Id. at 52123, 52136.
Turning to the particular facts of this case, for the rating year ending
September 30, 2018, the appellant’s contribution score fell below the acceptable
level for each of the three critical factors. IAF, Tab 9 at 21-25. On February 6,
2019, the appellant’s supervisor placed him on a 60-day CIP. IAF, Tab 6
at 42-52. The CIP notice stated that, despite counseling since the end of the 2018
rating year, the appellant’s contribution remained unacceptable in all three
critical factors, and it provided examples of his unacceptable contribution in each.
Id. at 42, 44-48. The CIP notice also set forth the contribution standards and
specified three actions for each element that the appellant was required to
perform in order to demonstrate acceptable contribution during the CIP. Id.
at 43-50. The notice further stated that the appellant’s supervisor would meet
with him weekly, provide feedback, and help him address any problems as
needed. Id. at 51. The appellant was warned that failure to demonstrate
acceptable contribution during the CIP could result in his removal. Id.
After the close of the CIP, on June 11, 2019, the appellant’s supervisor
issued him a notice of proposed removal under the provisions of 5 U.S.C.
chapter 43, for unacceptable contribution during the CIP in two of the three
critical factors (Job Achievement and/or Innovation and Mission Support). Id.
at 7-15. After the appellant responded, the deciding official issued a decision
sustaining the charge and removing him effective July 18, 2019. IAF, Tab 6
at 4-6, Tab 9 at 4.
4
The appellant filed a Board appeal, contesting the merits of his removal and
raising affirmative defenses of harmful procedural error, denial of due process,
and deception or willful obstruction with respect to his right to compete for
employment. IAF, Tab 1 at 3, 5, Tab 31. After a hearing, the administrative
judge issued an initial decision affirming the appellant’s removal. IAF, Tab 38,
Initial Decision (ID). She found that the agency carried its burden on each
element of its case, and that the appellant failed to prove his affirmative defenses
of harmful procedural error and violation of due process. Id.
The appellant has filed a petition for review contesting certain portions of
the administrative judge’s analysis and arguing that he has been denied due
process in his Board appeal. Petition for Review (PFR) File, Tab 1. The agency
has filed a response. PFR File, Tab 3.
ANALYSIS
The Board has recognized that the elements an agency must prove to
prevail in an appeal of a CCAS contribution-based action are somewhat different
than those in a traditional performance-based action under chapter 43, but that
contribution-based actions are still appealable to the Board under 5 U.S.C.
chapter 43. Thompson v. Department of the Army , 122 M.S.P.R. 372, ¶ 3 (2015);
Lin v. Department of the Air Force , 2023 MSPB 2, ¶¶ 12-18. Under the CCAS at
issue in this appeal, the agency was required to show the following by substantial
evidence: (1) it notified the appellant that he would be placed on a CIP; (2) it
informed him of what he must do during the CIP to demonstrate acceptable
contribution and warned him that failure to do so could result in an adverse
action; (3) it gave him a reasonable opportunity to demonstrate acceptable
contribution during the CIP; and (4) the appellant’s contribution was
unacceptable during the CIP. Thompson, 122 M.S.P.R. 372, ¶ 7. The
administrative judge in this case applied a more traditional framework for
reviewing chapter 43 performance-based actions. ID at 6. Nevertheless, even
5
assuming that the administrative judge erred in not applying the Thompson
standard, we find that the appellant’s substantive rights were not prejudiced
because the initial decision addressed all four factors set forth in Thompson. 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 to reverse an initial decision). Specifically, the administrative
judge found that the agency proved by substantial evidence that: (1) it notified
the appellant that he would be placed on a CIP; (2) it informed him of what he
must do during the CIP to demonstrate acceptable contribution and warned him
that failure to do so could result in an adverse action; (3) it gave him a reasonable
opportunity to demonstrate acceptable contribution during the CIP; and (4) the
appellant’s contribution was unacceptable during the CIP. ID at 5-6, 14-28.
These findings are supported by the record, and the appellant does not challenge
them on review. We therefore find that the agency has met its burden as set forth
in Thompson. See 5 C.F.R. § 1201.115.
Applying the more traditional chapter 43 framework, the administrative
judge went on to find that the agency proved by substantial evidence that its
appraisal system was approved by OPM and that the appellant’s contribution
standards were valid. ID at 6-7, 10-14. The appellant appears to contest both of
these findings on petition for review. PFR File, Tab 1 at 4-8. Assuming, without
deciding, that the agency is also required to prove these matters by substantial
evidence, for the following reasons, we find that it has met its burden.
The appraisal system at issue is the AcqDemo CCAS. It is evident that this
appraisal system has been approved by OPM because it the centerpiece of the
OPM-approved AcqDemo demonstration project. 82 Fed. Reg. at 52104, 52110,
52127-38. On petition for review, the appellant argues that the agency changed
his occupational series code from Chemist (1320) to Physical Scientist (1301) and
back again several times, but OPM did not approve these changes. PFR File,
Tab 1 at 4, 6, 7; IAF, Tab 21 at 6. However, even if the agency’s actions in this
6
regard were improper, we are unaware of any law, rule, or regulation requiring
OPM approval of such changes with regard to a particular employee. See Whitney
v. Department of the Treasury , 28 M.S.P.R. 330, 333-34 (1985) (explaining that,
under 5 C.F.R. §§ 430.209(a), 430.210, it is the overall appraisal system, not the
particular performance standards, which require OPM approval). For the reasons
explained in the initial decision, we agree with the administrative judge that the
appellant’s argument has no bearing on whether OPM approved CCAS, and that
the agency carried its burden on this issue by substantial evidence. ID at 6-7.
The appellant also contests the validity of his contribution standards based
on the agency’s failure to settle on a firm classification for his position. PFR
File, Tab 1 at 4-7. The Board has found that, in order to be valid, performance
standards must be reasonable, realistic, and attainable, clearly stated in writing,
and to the maximum extent feasible, permit the accurate appraisal of performance
based on objective criteria. Towne v. Department of the Air Force , 120 M.S.P.R.
239, ¶ 21 (1990). In the initial decision, the administrative judge found that there
was no evidence that the title of the appellant’s position at the time he was placed
on the CIP had any bearing on the validity of the standards under which his work
was assessed. ID at 12. She found no evidence that the tasks assigned to
Chemists differed from those assigned to the appellant, or that the level of
performance expected of a Chemist differed from that of a Physical Scientist. Id.
On petition for review, the appellant argues that Chemist and Physical
Scientist are two distinct specialties, and he argues that the agency held him
“responsible for performing in two occupational series simultaneously.” Id. at 4,
6-7. After carefully considering the appellant’s argument, we agree with the
administrative judge that there is no indication that the classification assigned to
the appellant’s position had any bearing on the job duties to which he was
assigned or on the standards by which his contribution was judged. The OPM
classification standards, to which the appellant cites in support of his argument,
bear this out.
7
Both Chemist and Physical Scientist are part of the same Physical Sciences
Occupational Group 1300. IAF, Tab 35 at 5-6. The various occupational series
within the group, including the 1320 Chemistry Series, all pertain to the
application of a particular scientific discipline, e.g., chemistry, geophysics,
astronomy, or metallurgy, with the exception of the 1301 General Physical
Science Series, which “includes positions that involve professional work in the
physical sciences when there is no other more appropriate series, that is, the
positions are not classifiable elsewhere,” or the position “includes work in a
combination of physical science fields, with no one predominant.” Id. It
therefore appears that the duties of Chemist and Physical Scientist are not
mutually exclusive, the latter being something of a catchall that could include
duties proper to the former. Although the agency seems to have had some trouble
deciding exactly how to classify the appellant’s position, there is no evidence that
this affected the nature of his duties or the standards under which his
contributions were assessed. Nor do we find any support for the appellant’s
assertion that he was being required to perform in two occupational series
simultaneously. For the reasons explained in the initial decision, we agree with
the administrative judge that the agency proved by substantial evidence that the
contribution standards were valid.3 ID at 10-14.
The appellant also argues that he was denied due process during Board
proceedings because the administrative judge heard unduly prejudicial testimony
from the deciding official. PFR File, Tab 1 at 4-5. According to the appellant,
the deciding official gave certain testimony that was meant to suggest to the
administrative judge that the appellant was mentally ill.4 Id.; IAF, Hearing
3 To the extent that the appellant means to renew his affirmative defense of harmful
procedural error based on the agency’s alleged failure to classify his position properly,
for the reasons explained above, we agree with the administrative judge that he has
failed to show that any such error prejudiced his substantive rights. ID at 26-28; see
Stephen v. Department of the Air Force , 47 M.S.P.R. 672, 681 (1991).
4 In his closing argument below, the appellant raised a due process defense based on the
deciding official’s testimony, arguing that his removal was based on reasons not set
8
Recording, Day 1, Track 4 at 7:40, 11:50 (testimony of the deciding official).
However, the initial decision does not reflect any reliance on this testimony, and
there is otherwise no indication that improper factors actually influenced the
administrative judge’s decision. We find that the appellant’s argument is wholly
speculative and is insufficient to show that his substantive rights were prejudiced
by the introduction of this evidence. See Zych v. U.S. Postal Service ,
21 M.S.P.R. 638, 642 (1984); Johnson v. Department of the Air Force ,
13 M.S.P.R. 236, 239 (1982).
Finally, the appellant argues that his removal was based on a prohibited
personnel practice under 5 U.S.C. § 2302(b)(4) because, by continually changing
his occupational series, the agency deceived or willfully obstructed him with
respect to his right to compete for employment. PFR File, Tab 1 at 7-8.
Although the administrative judge did not address this claim below, we find that
this prohibited personnel practice pertains to hiring practices, and not to adverse
actions such as the one at issue in this appeal. We find no basis to conclude that
the appellant has been deceived or obstructed in his right to compete for
employment.
Nonetheless, we 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 part of
the agency’s burden under 5 U.S.C. chapter 43 is to justify the institution of a
forth in the proposal notice, i.e., the deciding official’s personal observation of the
appellant’s demeanor during work meetings. IAF, Hearing Recording, Day 2 at 13:40
(the appellant’s closing argument). The administrative judge addressed this claim in
her initial decision, but she found that no due process violation occurred because the
deciding official did not consider the matter in reaching his decision. ID at 26 n.12.
We do not interpret the appellant’s argument on review as a challenge to this finding;
instead, we interpret it as a new argument that he was deprived of a fair and impartial
adjudication before the Board because the administrative judge heard unduly prejudicial
testimony concerning his mental health. PFR File, Tab 1 at 4-5. In any event, to the
extent that the appellant is contesting the administrative judge’s analysis of his due
process claim, we find that he has provided no basis to disturb her reasoned and
explained findings on the issue.
9
performance improvement plan (PIP) by proving by substantial evidence that the
employee’s performance was unacceptable prior to that time. Following the
issuance of Santos, the Board issued an Opinion and Order in Lee v. Department
of Veterans Affairs , 2022 MSPB 11, ¶ 15, which incorporated the changes made
by Santos and set forth the agency’s burden of proof, concluding that in order to
defend an action under chapter 43 the agency must prove the following by
substantial evidence: (1) OPM approved its performance appraisal system and
any significant changes thereto; (2) the agency communicated to the appellant the
performance standards and critical elements of her position; (3) the appellant’s
performance standards are valid under 5 U.S.C. § 4302(c)(1); (4) the appellant’s
performance during the appraisal period was unacceptable in one or more critical
elements; (5) the agency warned the appellant of the inadequacies in her
performance during the appraisal period and gave her an adequate opportunity to
demonstrate acceptable performance; and (6) after an adequate improvement
period, the appellant’s performance remained unacceptable in at least one critical
element.
Although Santos involved a performance-based action under a traditional
performance-based appraisal system, the court’s reasoning applies equally well to
contribution-based adverse actions under CCAS. See Lin, 2023 MSPB 2, ¶ 19
(applying Santos to a performance-based actions arising out of a similar
contribution-based system). The agency’s authority to initiate a CIP under CCAS
is predicated on “[a]n inadequate contribution assessment in any one contribution
factor at any time during the appraisal period.” 82 Fed. Reg. at 52136. A CIP
notice must explain how the employee’s contribution scores are inadequate and
what improvements are required, and inform him that he may face an adverse
action “unless the employee’s contribution increases.” Id.; cf. Santos, 990 F.3d
at 1360-61 (examining similar statutory language to conclude that that an agency
must justify institution of a PIP when an employee challenges a
performance-based removal under chapter 43).
10
The Federal Circuit’s decision in Santos applies to all pending cases,
including this one, regardless of when the events took place. Lee, 2022 MSPB
11, ¶ 16. Although the record in this appeal already contains some evidence
suggesting that the appellant’s contribution leading up to the CIP was
unacceptable, IAF, Tab 6 at 42, 44-48, Tab 9 at 21-25, we remand the appeal to
give the parties the opportunity to present argument and additional evidence on
the issue, see Lee, 2022 MSPB 11, ¶¶ 15-17. On remand, the administrative
judge shall accept argument and evidence on this issue, and shall hold a
supplemental hearing if appropriate. Id., ¶ 17.
The administrative judge shall then issue a new initial decision consistent
with Santos. See id. If the agency makes the additional showing required under
Santos on remand, the administrative judge may incorporate her prior findings on
the other elements of the agency’s case and the appellant’s affirmative defenses
in the remand initial decision. See id. However, regardless of whether the
agency meets its burden, if the argument or evidence on remand regarding the
appellant’s pre-CIP performance affects the administrative judge’s analysis of the
appellant’s affirmative defenses, she should address such argument or evidence in
the remand initial decision. See Spithaler v. Office of Personnel Management ,
1 M.S.P.R. 587, 589 (1980) (explaining that an initial decision must identify all
material issues of fact and law, summarize the evidence, resolve issues of
credibility, and include the administrative judge’s conclusions of law and his
legal reasoning, as well as the authorities on which that reasoning rests).
11
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. | Green_DavidPH-0432-19-0370-I-1__Remand_Order.pdf | 2024-04-29 | DAVID GREEN v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-0432-19-0370-I-1, April 29, 2024 | PH-0432-19-0370-I-1 | NP |
1,623 | https://www.mspb.gov/decisions/nonprecedential/Johns_William_K_DA-0839-22-0371-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM K. JOHNS,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DA-0839-22-0371-I-1
DATE: April 29, 2024
THIS ORDER IS NONPRECEDENTIAL1
William K. Johns , Pine Bluff, Arkansas, pro se.
Paul Andrew Schorn , 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 Federal Erroneous Retirement Coverage Corrections Act
(FERCCA) appeal as untimely filed without good cause shown. For the reasons
set forth herein, we GRANT the appellant’s petition for review. We REVERSE
the administrative judge’s conclusion that the appellant failed to show good cause
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
for the untimeliness of his appeal and REMAND the matter to the Dallas
Regional Office for further adjudication in accordance with this Remand Order.
BACKGROUND
On May 31, 2022, the agency issued a final decision indicating that the
appellant had been erroneously placed in the Civil Service Retirement System
(CSRS) rather than in the CSRS Offset system on December 29, 1994, following
a “break-in-service” that lasted more than 1 year.2 Initial Appeal File (IAF),
Tab 1 at 16-17. The agency’s decision explained that, because this error had
lasted for over 3 years, the appellant was entitled to corrective action under
FERCCA. Id. at 16. The decision indicated that the agency was required to
convert the appellant to the CSRS Offset system; however, the agency would
make corresponding “corrections for retirement deductions and Social Security.”
Id. The decision notified the appellant that, if he wished to appeal the matter, he
must file an appeal with the Board within 30 days of his receipt of the decision.
Id. at 17. The decision also informed the appellant that, if he had any questions
or needed any additional information, he could contact a particular agency
employee, A.W. Id.
On July 19, 2022, the appellant filed a Board appeal challenging the
agency’s May 31, 2022 decision, explaining that he was in the process of retiring.
Id. at 4, 27. He did not request a hearing on the matter. Id. at 1. On his initial
appeal form, the appellant asserted that he had received the agency’s final
decision letter on July 8, 2022. Id. at 2. Presumably to support this assertion, the
appellant provided a July 8, 2022 email sent to him by A.W. Id. at 14-15. In this
email, A.W. conveyed that “the correction to CSRS Offset must stand,” and she
explained that, if the appellant felt that agency human resources personnel had
2 The CSRS Offset system is a version of CSRS for employees whose service is subject
to deductions for both CSRS and the Old Age, Survivors and Disability Insurance
program under the Social Security Act. Warren v. Department of Transportation ,
116 M.S.P.R. 554, ¶ 2 (2011), aff’d, 493 F. App’x 105 (Fed. Cir. 2013); see Wible v.
Department of the Army , 120 M.S.P.R. 333, ¶ 6 (2013) (summarizing the relationship
between CSRS, the Federal Employees’ Retirement System, and CSRS Offset). 2
not handled his “appointment” correctly, he could appeal “through the Merit
Systems Protection Board.” Id. at 14. She indicated that the appellant could
“include a copy of this email with [his] claim in order to meet the 30 -day
requirement for appealing [the] final decision.” Id.
After notifying the appellant that his appeal may be untimely and providing
him with an opportunity to address the timeliness issue, IAF, Tab 6, the
administrative judge issued an initial decision dismissing the matter as untimely
filed without good cause shown, IAF, Tab 15, Initial Decision (ID) at 6-7. The
administrative judge concluded, based on documents submitted by the appellant,
that he had received the agency’s decision letter not later than June 5, 2022, and,
therefore, that his appeal was “at least 14 days late.” ID at 4. She also found that
the appellant had failed to show good cause for his untimeliness. ID at 4-6. In so
finding, she reasoned that the appellant’s explanation for his delay appeared to be
that he had communicated with the agency via email prior to submitting his Board
appeal; however, she found that the appellant had failed to explain why his
communications with the agency precluded him from timely filing with the
Board. ID at 5-6.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1.3 The agency has not filed a response.
3 The appellant provides additional documents with his petition for review, i.e., medical
records and documents regarding his receipt of the initial decision. PFR File, Tab 1
at 3-11. 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. 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 this matter. 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).3
ANALYSIS
We reverse the administrative judge’s conclusion that the appellant failed to show
good cause for his untimeliness.
The appellant does not appear to challenge the administrative judge’s
conclusion that his Board appeal was untimely filed; however, he seemingly
argues that good causes exists for his filing delay. PFR File, Tab 1 at 2. For the
following reasons, we reverse the administrative judge’s conclusion that the
appellant failed to show good cause for his untimeliness.
The Board may waive the time limit for filing an appeal if the appellant has
shown good cause for the delay. Smith v. Office of Personnel Management ,
117 M.S.P.R. 527, ¶ 6 (2012); 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 appeal.
Moorman v. Department of the Army , 68 M.S.P.R. 60, 62-63
(1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
Here, after the administrative judge notified the appellant of the timeliness
issue, he submitted a series of emails that he exchanged with A.W. following his
receipt of the agency’s decision letter. E.g., IAF, Tab 10 at 9-11. In a June 5,
2022 email sent to A.W., the appellant conveyed his belief that he should have
remained under CSRS throughout his Federal tenure, and he inquired where he
could file an appeal or grievance. Id. at 9-10. A.W. responded on June 7, 2022,
by stating, in pertinent part, as follows: “It sounds like I will need to review your4
electronic Official Personnel Folder [] again. I’m in training this week, but I’ll
plan to take a look next week.” Id. at 9. Her response did not mention the Board.
Subsequently, in a June 14, 2022 email, A.W. indicated that it appeared as though
the agency’s May 31, 2022 decision was correct; however, she also stated as
follows: “I’m not seeing any documentation showing that you elected to continue
CSRS coverage while [working in a nonappropriated fund (NAF)] position. If
you have anything that reflects this, please forward it to me and I’ll be happy to
review.” Id. at 10. On July 5, 2022, A.W. sent the appellant a follow-up email
stating as follows: “I did receive the documents you sent regarding your NAF
service. I will review them in detail and let you know if any changes are
necessary, hopefully yet this week. Thank you for your patience.” Id. at 11
(grammar in original). Thereafter, as summarized above, A.W. sent the appellant
a July 8, 2022 email indicating that the agency’s decision “must stand,” but that
the appellant could provide her July 8, 2022 email to the Board to “meet the
30-day requirement for appealing [the] final decision.” Id. at 13.
Although the Board has previously found that an appellant pursuing a
remedy in another forum does not constitute good cause for an untimely appeal,
e.g, Little v. Government Printing Office , 99 M.S.P.R. 292, ¶ 9 (2005), given the
particular circumstances of this case, we find that the agency’s actions may have
misled and confused the pro se appellant regarding the applicability of the 30 -day
filing deadline, see Miles v. Department of Veterans Affairs , 84 M.S.P.R. 418, ¶ 6
(1999) (explaining that the Board construes pro se pleadings liberally) . To this
end, as summarized above, following the issuance of the May 31, 2022 decision,
the agency’s designated point of contact repeatedly conveyed to the appellant that
the agency was actively reconsidering whether his placement in CSRS on
December 29, 1994, was, in fact, incorrect, i.e., whether an error implicating
FERCCA had even occurred. See Poole v. Department of the Army , 117 M.S.P.R.
516, ¶ 13 (2012) (indicating that FERCCA addresses problems created when
employees are in the wrong retirement plan for an extended period); 5 C.F.R.5
§ 839.101(a). Accordingly, the appellant may reasonably have been anticipating
a subsequent final agency decision on the matter. Indeed, insofar as he indicated
on his initial appeal form that he had received the agency’s final decision letter
on July 8, 2022, IAF, Tab 1 at 2, the appellant presumably believed that A.W.’s
July 8, 2022 email constituted such a decision, id. at 14-15.4 Given A.W.’s
assertion that the appellant could provide the Board with the July 8, 2022 email to
“meet the 30-day requirement,” it appears that this belief was shared by at least
some agency personnel involved in this matter.5 Id. at 14. Accordingly, we find
that good cause exists for the appellant’s untimely filing and we reverse the
initial decision in this regard. See Funk v. Department of the Army , 52 M.S.P.R.
52, 55 (1991) (finding it appropriate to waive the filing deadline when the record
showed that the appellant’s confusion was entirely believable and not a result of
his lack of diligence in pursuing his appeal).
We remand the matter for further adjudication.
As stated in its FERCCA decision, the agency concluded that the appellant
was erroneously placed in CSRS rather than in CSRS Offset when he was
“rehire[d]” on December 29, 1994. IAF, Tab 1 at 16. In his pleadings before the
administrative judge, the appellant disputed this conclusion, arguing that he was
properly placed in CSRS. Id. at 7. In response, the agency contended that,
although the appellant was properly placed in CSRS on March 21, 1982, he
should have been switched to CSRS Offset beginning on December 29, 1994.
4 We acknowledge the 11-day delay between the July 8, 2022 email, and July 19, 2022,
the date on which the appellant filed his Board appeal. However, given that the pro se
appellant likely believed that the July 8, 2022 email constituted a new final decision
that reset the 30-day filing period, this delay does not warrant a different outcome.
See Walls v. Merit Systems Protection Board , 29 F.3d. 1578, 1582 (Fed. Cir. 1994)
(reasoning that the appellant demonstrated due diligence and ordinary prudence in filing
his appeal within the regulatory time period as he construed it).
5 The agency argued before the administrative judge that the appeal was untimely filed
without good cause shown. IAF, Tab 12 at 4-7. Although the agency acknowledged the
appellant’s email communications with A.W., id. at 4 n.1, 6, it did not substantively
address the contents of the same. 6
IAF, Tab 5 at 4-5. To this end, the agency averred that, from September 16,
1990, to December 29, 1994, the appellant had served in an NAF position. Id.
The agency contended before the administrative judge that NAF positions are
generally “not in the civil service for purposes of Title 5,” including retirement
issues; thus, the agency argued that the appellant’s September 16, 1990, to
December 29, 1994 period of employment constituted a break in service that
removed him from CSRS.6 IAF, Tab 5 at 4-6, Tab 8 at 4.
In retirement annuity cases, the paramount concern is whether the appellant
is entitled to the benefit he seeks. Moore-Meares v. Office of Personnel
Management, 105 M.S.P.R. 613, ¶ 8 (2007); Edney v. Office of Personnel
Management, 79 M.S.P.R. 60, ¶ 6 (1998) (explaining that, unlike the competing
interests of agency management and employee rights involved in a disciplinary
appeal, there is only one primary interest involved in a retirement appeal, that of
the applicant’s entitlement under law to a benefit). Although service in an NAF
position is generally not creditable, there are statutory exceptions to this general
rule. CSRS and FERS Handbook for Personnel and Payroll Offices , §§ 12A5.1-4,
20A2.1-5, https://www.opm.gov/retirement-center/publications-forms/csrsfers-
handbook/ (last visited April 29, 2024). Accordingly, on remand, the
administrative judge shall order both parties to submit additional evidence and
argument regarding the appellant’s employment history and his potential
entitlement to CSRS retirement benefits. The parties’ filings shall address
whether any such exceptions apply to the appellant. The administrative judge
shall thereafter issue a decision on the merits of the agency’s May 31, 2022
decision.7
6 The agency’s close of the record submission substantively addressed only the
timeliness issue. IAF, Tab 12 at 4-7.
7 To the extent the administrative judge concludes on remand that the appellant should
have been placed in CSRS Offset on December 29, 1994, the appellant is not entitled to
any additional relief under FERCCA. To this end, if an employee is erroneously placed
in CSRS when he should have been placed in CSRS Offset, FERCCA’s implementing
regulations require that the employee’s coverage be corrected to CSRS Offset. See7
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.
Nasdahl v. Department of Veterans Affairs , 119 M.S.P.R. 283, ¶ 4 (2013); 5 C.F.R.
§ 839.701. Indeed, the only remedies available to such an employee are (1) the
agency’s adjustment of retirement deductions and Social Security taxes, which the
agency has already awarded to the appellant in this matter, and (2) a claim for losses in
accordance with 5 C.F.R. part 839, subpart L of FERCCA’s implementing regulations,
which is not reviewable by the Board. IAF, Tab 1 at 16; 5 C.F.R.
§§ 839.702, .1302(a), .1303. 8 | Johns_William_K_DA-0839-22-0371-I-1__Remand_Order.pdf | 2024-04-29 | WILLIAM K. JOHNS v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-0839-22-0371-I-1, April 29, 2024 | DA-0839-22-0371-I-1 | NP |
1,624 | https://www.mspb.gov/decisions/nonprecedential/Roberts_Susie_V_DA-1221-20-0113-C-1_DA-1221-20-0113-X-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SUSIE ROBERTS,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DA-1221-20-0113-C-1
DA-1221-20-0113-X-1
DATE: April 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Debra D'Agostino , Esquire, and Erica Bilkis , Esquire, Washington, D.C.,
for the appellant.
Katherine Siereveld , Esquire, Cincinnati, Ohio, for the agency.
Mridula Tirumalasetti , Esquire, Kansas City, Kansas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The agency has filed a petition for review of the compliance initial
decision, granting the appellant’s petition for enforcement, finding that the
agency materially breached the parties’ settlement agreement. Because the
administrative judge’s finding of noncompliance was docketed as Roberts v.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
Department of Justice , MSPB Docket No DA-1221-20-0113-X-1 , we JOIN the
two matters under 5 C.F.R. § 1201.36 and address them both in this decision.2
For the reasons discussed below, we DENY the agency’s petition for review and
AFFIRM the compliance initial decision, but, based on the agency’s evidence on
review, we FIND the agency in compliance, and we DISMISS the appellant’s
petition for enforcement as moot.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant filed a petition for enforcement of the parties’ settlement
agreement entered into Roberts v. Department of Justice , MSPB Docket No.
DA-1221-20-0113-W-2, Appeal File, Tab 23,3 alleging that the agency materially
breached the agreement when it suspended her from duty without pay for 5 days
based on alleged conduct that occurred before the parties entered into the
agreement, Compliance File (CF), Tab 1. The administrative judge issued a
compliance initial decision granting the appellant’s petition for enforcement,
finding that the agency materially breached the terms of the settlement agreement
by suspending the appellant based on past conduct which the parties intended to
resolve with the agreement. CF, Tab 9, Compliance Initial Decision (CID) at 11.
Accordingly, the administrative judge ordered the agency to cancel the 5-day
suspension, retroactively restore the appellant, and pay her the appropriate
amount of back pay. CID at 12-13.
The agency has filed a petition for review. Petition for Review (PFR) File,
Tab 1. On review, the agency challenged the underlying merits of the compliance
initial decision, but nevertheless stated that it had taken steps to comply with the
2 Joinder of two or more appeals filed by the same appellant is appropriate where doing
so would expedite processing of the cases and will not adversely affect the interests of
the parties. Tarr v. Department of Veterans Affairs , 115 M.S.P.R. 216, ¶ 9 (2010);
5 C.F.R. § 1201.36(a)(2), (b). We find that these appeals meet the regulatory
requirement; therefore, we join them here.
3 The administrative judge dismissed that appeal as settled and accepted the settlement
agreement into the record for enforcement purposes. Roberts v. Department of Justice ,
MSPB Docket No. DA-1221-20-0113-W-2, Initial Decision (Oct. 28, 2020).
3
administrative judge’s orders, including correcting the appellant’s time and
attendance records, restoring the appellant to duty, and processing her back pay
and request to expunge her electronic personnel file. PFR File, Tab 1 at 4-12.
The appellant responded in opposition to the agency’s petition for review but did
not dispute the agency’s claims of compliance. PFR File, Tab 3.
The Office of the Clerk of the Board issued a show cause order, ordering
the agency to submit evidence and argument addressing whether it fully complied
with the administrative judge’s orders in the compliance initial decision, and if
so, to show cause as to why its petition for review should not be dismissed as
moot. PFR File, Tab 6 at 2-3. The agency responded to the order, confirming
that it had fully complied with the compliance initial decision, but arguing that
the Board could still consider its petition for review challenging the underlying
merits of the compliance initial decision.4 PFR File, Tab 8 at 4-12. The appellant
did not file a response to the show cause order or otherwise challenge the
agency’s assertions that it complied with the compliance initial decision.
On review, the agency disagrees with the administrative judge’s finding
that it breached the settlement agreement when it suspended the appellant from
duty for 5 days. PFR File, Tab 1. However, we discern no basis for disturbing
the administrative judge’s well-reasoned findings on this issue.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
4 The agency attached documentation to its response to the show cause order confirming
that it had complied with the compliance initial decision. PFR File, Tab 8 at 8-24.
5 If the agency wishes to challenge the validity of the settlement agreement on the basis
of mutual mistake, such a claim is properly raised in a petition for review of the initial
decision that dismissed the appeal pursuant to the settlement agreement. See
Hazelton v. Department of Veterans Affairs , 112 M.S.P.R. 357, ¶ 8 (2009); see also
Bruhn v. Department of Agriculture , 124 M.S.P.R. 1, ¶ 18 (2016) (explaining that a
party may challenge the validity of a settlement agreement if the party believes that the
agreement is unlawful, involuntary, or the result of fraud or mutual mistake). We make
no finding here, however, about the timeliness of any petition for review of the initial
decision dismissing the appellant's appeal as settled.
4
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (same).
The Board has held that it does not retain jurisdiction over a petition for
enforcement once an agency has submitted evidence of compliance.
Garstkiewicz v. U.S. Postal Service , 46 M.S.P.R. 689, 690 (1991); Eikenberry v.
Department of the Interior , 39 M.S.P.R. 119, 120-21 (1988). As mentioned
above, the agency submitted proof of compliance, and the appellant does not
dispute such proof. Under the circumstances, we find that there is no effective
relief that the Board can provide, and thus, this compliance matter is moot.
Milner v. U.S. Postal Service , 118 M.S.P.R. 600, ¶ 4 (2012) (explaining that an
issue is moot when there is no effective relief that the Board can provide) .
Based on the foregoing, we deny the agency’s petition for review of the
compliance initial decision, and we dismiss the appellant’s petition for
enforcement as moot.
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Roberts_Susie_V_DA-1221-20-0113-C-1_DA-1221-20-0113-X-1__Final_Order.pdf | 2024-04-29 | SUSIE ROBERTS v. DEPARTMENT OF JUSTICE, MSPB Docket No. DA-1221-20-0113-C-1, April 29, 2024 | DA-1221-20-0113-C-1 | NP |
1,625 | https://www.mspb.gov/decisions/nonprecedential/Ryals_EvaAT-0752-21-0308-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EVA RYALS,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
AT-0752-21-0308-I-2
DATE: April 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J.R. Pritchett , McCammon, Idaho, for the appellant.
Jeanelle L. Graham , 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 affirmed her removal. Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
of material fact; the initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appeal or
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 were not consistent with required procedures or involved
an abuse of discretion, and the resulting error affected the outcome of the case;
or new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After
fully considering the filings in this appeal, we conclude that 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
update the administrative judge’s analysis of the agency’s charge and the
appellant’s claims of discrimination and retaliation, we AFFIRM the initial
decision.
BACKGROUND
In 2014, the appellant sustained work-related injuries to her knee, finger,
ribs, and chest while serving as a GS-11 Teacher in the agency’s Bureau of
Prisons (BOP) at the Federal Correctional Complex in Coleman, Florida. Ryals v.
Department of Justice , MSPB Docket No. AT-0752-21-0308-I-1, Initial Appeal
File (IAF), Tab 1 at 1, Tab 7 at 141-42. She never returned to work following her
injuries and, in August 2020, the agency removed her for physical and medical
inability to perform. IAF, Tab 6 at 16-18.
As background, BOP first attempted to remove the appellant in June 2016,
in part for failing to report for a fitness for duty examination (FFD). IAF, Tab 8
at 126, 140. The appellant filed an equal employment opportunity (EEO)
complaint challenging the 2016 removal. Id. at 126. In October 2017, the agency
issued a final agency decision (FAD) finding that BOP should have rescheduled
the appellant’s FFD as a reasonable accommodation for her disability after she
failed to attend the exam for medical reasons. Id. at 137-43. As a result, the
agency ordered BOP to schedule an FFD examination to determine whether the
appellant was able to perform the essential duties of her position and, if so, to2
reinstate her. Id. at 142. The appellant attended an FFD in November 2017 and
was found fit for duty; BOP ordered her to report to duty on February 2, 2018.
IAF, Tab 6 at 127-30. However, the appellant did not return to duty and instead
provided a note from her knee surgeon, stating that she was “attending physical
therapy” and had “not been released from [his] care.” IAF, Tab 6 at 123-26,
Tab 16 at 5. The agency placed the appellant in a leave without pay status and
she continued to receive Office of Workers’ Compensation Programs (OWCP)
benefits. IAF, Tab 6 at 126.
Seven months later, the agency issued a letter with eight specific medical
questions for her medical provider (8-point letter), including her diagnosis and
estimated date of recovery. IAF, Tab 9 at 4-6. Although she did not provide
responses to the eight questions, the appellant submitted medical documents,
including a second opinion medical examination report requested by OWCP,
which stated that she had reached maximum medical improvement and was
unable to perform the physical requirements of her position. Id. at 8, 20, 23-24.
As a result, the agency found that the appellant was not medically qualified to
perform her duties and invited her to complete a reasonable accommodation
request form. IAF, Tab 6 at 84-87, 105-07. The appellant completed the form,
requesting, as relevant here, reassignment. Id. at 86. The agency conducted a
search for vacant funded positions to which she could be reassigned. Id. at 51-78,
80-81. However, the agency advised the appellant that it could not find any such
positions. Id. at 44-45. The appellant submitted a response, which the agency
interpreted as a request for reconsideration. Id. at 40-43. In reply, the agency
reiterated that it had been unable to identify any vacant funded positions to which
she could be reassigned. Id. at 38-39.
The agency removed the appellant in August 2020, for physical and
medical inability to perform the essential duties of her position. Id. at 16-21.
The appellant filed an EEO complaint challenging her 2020 removal, and the
agency issued a FAD finding no discrimination. IAF, Tab 1 at 7-20. 3
The appellant then filed this appeal of her removal. Id. at 2. After holding
a hearing, the administrative judge issued an initial decision affirming the
removal. Ryals v. Department of Justice , MSPB Docket No. AT-0752-21-0308-I-
2, Appeal File (I-2 AF), Tab 14, Initial Decision (ID) at 2, 28. He found that the
agency proved its charge of medical inability to perform by preponderant
evidence. ID at 7-15. He determined that the appellant failed to prove her
affirmative defenses of failure to accommodate, disparate treatment based on
disability, EEO retaliation, and harmful error. ID at 16-28. He concluded that
removal was reasonable because the appellant could not meet the physical
requirements of her position and there were no vacant funded positions to which
she could be reassigned. ID at 28.
The appellant has filed a petition for review, and the agency has filed a
response. Petition for Review (PFR) File, Tabs 1, 3. On review, the appellant
disputes the administrative judge’s finding that the agency proved she was
medically unable to meet the physical requirements of her position and, therefore,
the charge. PFR File, Tab 1 at 4-5, 7-8. She also reasserts that she is a qualified
individual with a disability and that the agency denied her reasonable
accommodation and retaliated against her for prior EEO activity. Id. at 9-14.
She disputes the denial of her harmful error affirmative defense. Id. at 14-15.
DISCUSSION OF ARGUMENTS ON REVIEW
We modify the initial decision to find that the agency proved its charge under the
standard articulated in Haas v. Department of Homeland Security , 2022 MSPB
36, ¶¶ 14-15.
The administrative judge found that the agency proved that the appellant
was medically unable to perform the physical requirements of her position.
ID at 14. In reaching this conclusion, the administrative judge applied the
standard for removals based on medical history, which the Board articulated in
Sanders v. Department of Homeland Security , 122 M.S.P.R. 144, ¶ 11, aff’d,
625 F. App’x 549 (Fed. Cir. 2015), overruled in part by Haas , 2022 MSPB 36,4
¶¶ 10-14. ID at 7, 15. Although we agree with the administrative judge’s
conclusion, we modify his reasoning.
After the administrative judge issued the initial decision in this matter, the
Board decided Haas. In Haas, the Board clarified that the standard set forth in
Sanders only applies to removals based solely on medical history. Haas,
2022 MSPB 36, ¶¶ 11-14. A removal is based solely on medical history if the
only basis for concluding that the employee is medically unable to perform the
core duties of her position is the fact that her medical records reflect that, at some
time in the past, she was classified as having, was examined for, or was treated
for the medical condition or impairment in question. Id., ¶ 12. In contrast, when
an agency removes an employee for a present medical inability to perform,
it must prove either a nexus between her medical condition and observed
deficiencies in her performance or conduct, or a high probability, given the nature
of the work involved, that her condition may result in injury to herself or others.
Id., ¶¶ 14-15. In other words, the agency must establish that the appellant’s
medical condition prevents her from being able to safely and efficiently perform
the core duties of her position. Id., ¶ 15.
The agency removed the appellant due to physical limitations associated
with her right knee, left wrist, and left shoulder. IAF, Tab 6 at 17-18, 27-28,
116-20. The appellant’s medical evidence states that she had “permanent
impairment in her right knee” and limited range of motion in her shoulder and
wrist. IAF, Tab 7 at 93-94, 103. Further, according to both medical opinions
obtained by the appellant and the OWCP second opinion physician, the appellant
had reached “maximum medical improvement.” IAF, Tab 6 at 26, 115, Tab 7
at 90, 107. When “a party is diagnosed with a medical condition that is by its
nature ‘permanent or progressive’ in severity, it will be assumed to continue to
exist after the date of diagnosis absent rebuttal evidence of record to the
contrary.” Pyles v. Merit Systems Protection Board , 45 F.3d 411, 415 (Fed. Cir.
1995). According to OWCP, maximum medical improvement “means that5
[an impairment] is well -stabilized and unlikely to improve substantially with or
without treatment.” 20 C.F.R. § 30.911(a). The parties do not dispute that the
appellant suffered from these conditions at the time of her removal. IAF, Tab 7
at 103-07; PFR File, Tab 1, Tab 3 at 10-11. The appellant did not provide any
evidence or testimony below suggesting, and has not argued on review, that she
has fully recovered. Therefore, we must consider whether the appellant’s medical
condition prevented her from being able to safely and efficiently perform the core
duties of her position.2 See Haas, 2022 MSPB 36, ¶ 20.
The agency proved its charge of medical inability to perform.
The Board has indicated that the core duties of a position are synonymous
with the essential functions of a position under the Americans with Disabilities
Act of 1990 (ADA), as amended, i.e., the fundamental job duties of the position,
not including marginal functions. Id., ¶ 21 (citing Clemens v. Department of the
Army, 120 M.S.P.R. 616, ¶ 6 (2014); 29 C.F.R. § 1630.2(n)). Because the
administrative judge adjudicated this appeal before Haas was issued, he did not
make a finding regarding the appellant’s core duties in connection with the
charge. However, in adjudicating the appellant’s affirmative defense that the
agency failed to accommodate her disability, the administrative judge determined
that the appellant’s correctional officer duties were an essential function of her
position. ID at 16-17. The parties do not dispute this finding on review. Further,
2 To extent the appellant argues on review that the agency was required to prove that the
appellant’s return to work posed “a significant risk of substantial harm . . . that cannot
be eliminated or reduced by reasonable accommodation,” we are not persuaded. PFR
File, Tab 1 at 5-6 (quoting 29 C.F.R. § 1630.2(r)). The Board considered the
application of a similar standard in Haas. Haas, 2022 MSPB 36, ¶¶ 11, 14-16
(considering whether to apply 5 C.F.R. § 339.206, which provides that an employee
may not be “disqualified” for a position subject to medical standards “solely on the
basis of medical history” unless, as relevant here, “recurrence of the condition would
pose a significant risk of substantial harm . . . that cannot be eliminated or reduced by
reasonable accommodation or any other agency efforts to mitigate risk”). The Board
rejected the application of the standard to a case in which the agency’s charge of
medical inability is based on an appellant’s current medical condition or impairment.
Id. The appellant does not provide a basis for revisiting that reasoning here. PFR File,
Tab 1 at 5-6. 6
we discern no basis to disturb this finding, which is consistent with the record.
IAF, Tab 7 at 5, Tab 9 at 79, Tab 15 at 4-5, Tab 16 at 4-5.
We turn now to whether the agency proved that the appellant’s medical
conditions prevent her from being able to safely and efficiently perform the core
duties of her position. See Haas, 2022 MSPB 36, ¶ 15. Again, in the context of
the appellant’s reasonable accommodation claim, the administrative judge found
that the appellant failed to prove that she could perform her correctional officer
duties. ID at 17. However, because the agency bears the burden of proving its
charge by preponderant evidence, we reexamine this issue here and conclude that
the agency met its burden. See Thomas v. Department of the Army , 2022 MSPB
35, ¶ 17.
Correctional officers like the appellant must be able “to recognize and
respond effectively to emergencies.” IAF, Tab 7 at 5. According to the agency,
failure to do so “may jeopardize the security of the institution and the safety of
staff and inmates.” Id. To ensure that applicants and incumbents can respond to
emergencies, BOP requires them to meet 14 physical standards. Id. at 5-7. These
standards include “[w]alking for up to one hour,” “[s]tanding for up to one hour,”
“[p]erform[ing] self-defense movements,” “[r]unning an extended distance,”
“[d]ragging a body an extended distance,” “[c]arrying a stretcher with one other
person,” “[c]limbing stairs,” and “[l]ifting objects weighing 25 pounds.” Id. The
agency based its charge on the appellant’s inability to meet these standards. IAF,
Tab 6 at 17-18, 27-28, 114.
The administrative judge determined that the agency proved that the
appellant was unable to perform the core duties because she was physically
unable to lift 25 pounds, climb, drag a body an extended distance, and carry a
stretcher with another person. ID at 14-15. He reasoned that the weight of the
medical evidence showed that the appellant was limited to lifting no more than
10-20 pounds and should not climb, squat, or kneel. Id. In reaching this
conclusion, the administrative judge considered the opinions of five different7
medical doctors, as well as the conclusions of BOP’s Chief of Occupational
Safety and Health, who was also a physician. ID at 8-15.
In assessing the probative weight of a medical opinion, the administrative
judge must consider whether the opinion was based on a medical examination,
whether the opinion provides a reasoned explanation for its findings as distinct
from mere conclusory assertions, the qualifications of the expert rendering the
opinion, and the extent and duration of the expert’s familiarity with the treatment
of the appellant. Bahm v. Department of the Air Force , 38 M.S.P.R. 627, 632
(1988). The appellant argues that there was conflicting medical evidence and
there should be a “separate and independent assessment of the ‘inconsistent’
medical documents” and an independent medical examination to determine
whether she could perform the physical requirements. PFR File, Tab 1 at 10.
In essence, the appellant suggests that another medical assessment is necessary.
We are not persuaded.
Between 2017 and 2022, six doctors opined on the appellant’s medical
condition, and she has not offered evidence of a new opinion or explained why
such an opinion would resolve any conflicts among the medical reports in the
record. IAF, Tab 6 at 109, 113-15, 128-31, Tab 7 at 88-107, Tab 9 at 88-90.
In reaching his conclusions, the administrative judge properly weighed the
medical evidence. ID at 14-15. For example, he found most persuasive the
opinion of the appellant’s knee surgeon because he continued to treat her for both
her shoulder and her knee, and his opinion and observations were largely
consistent with four other doctors whose opinions the administrative judge
credited. ID at 14. Comparatively, the administrative judge reasoned that two
outlier opinions were less persuasive. ID at 14-15. He explained that the first,
which stated that the appellant had reached maximum medical improvement while
also temporarily reducing her medical restrictions, was inconsistent with the
weight of the remaining medical evidence, was internally inconsistent, and did
not provide a reasoned medical explanation for the appellant’s improvement. Id.8
The second, which stated that the appellant was fit for duty in 2017, was based on
a single examination conducted nearly 3 years before the appellant’s removal.
ID at 15. In performing that assessment, the doctor noted that he was unable to
evaluate all of the physical requirements. Id. The appellant argues that it is “still
in dispute” whether she could perform the physical requirements of her position,
relying on the two medical opinions that the administrative judge determined
were entitled to little weight. PFR File, Tab 1 at 9-10; ID at 14-15. The
appellant has not provided any specific reason as to why the administrative
judge’s weighing of the medical evidence was incorrect, and we discern none.
Therefore, we affirm the administrative judge’s finding that the appellant’s
condition prevented her from safely and efficiently performing the core duties of
her position.3
Nevertheless, in determining whether the agency has met its burden,
the Board will consider whether a reasonable accommodation, short of
reassignment, exists that would enable the appellant to safely and efficiently
perform her core duties. Haas, 2022 MSPB 36, ¶ 25. The administrative judge
concluded that the appellant failed to identify any form of reasonable
accommodation that would allow her to perform her correctional officer duties.
ID at 17. Again, because he reached this finding in the context of the appellant’s
affirmative defense of failure to accommodate her disability, he placed the burden
on the appellant. Id. Because the agency bears the burden of proving its charge,
we will make findings on the fully developed record here. See Haas,
2022 MSPB 36, ¶ 20; Thomas, 2022 MSPB 35, ¶ 17.
An agency is not required to restructure a job to eliminate its essential
functions, nor is it required to create a new position for the appellant to provide
3 As indicated above, one of the physical standards of the appellant’s position required
lifting objects weighing 25 pounds. IAF, Tab 7 at 7. The administrative judge
determined that the appellant could not lift over 20 pounds. ID at 14. In light of this
finding, we need not reach the appellant’s argument that the administrative judge erred
in finding she was required to lift up to 65 pounds. PFR File, Tab 1 at 4-5. 9
reasonable accommodation. Clemens, 120 M.S.P.R. 616, ¶ 9; Gonzalez-Acosta v.
Department of Veterans Affairs , 113 M.S.P.R. 277, ¶ 13 (2010) (citations
omitted). The appellant alleged below, and again asserts on review, that the
agency could reasonably accommodate her by allowing her to teach inmates by
video conference or “by other means than physically being present within the
facility.” IAF, Tab 7 at 81; I-2 AF, Tab 8 at 5; PFR File, Tab 1 at 10-11.
However, such an accommodation would make it impossible for her to perform
her correctional responsibilities, which “precede all others required by [her]
position.” IAF, Tab 9 at 79; PFR File, Tab 1 at 10-11. As discussed above, “[a]ll
positions located in correctional institutions are hazardous duty law enforcement
officer positions, and require individuals to be physically able and medically
qualified to perform correctional work safely and successfully.” IAF, Tab 7 at 5.
The appellant’s proposed accommodation would therefore eliminate an essential
function of her position. See Gonzalez-Acosta , 113 M.S.P.R. 277, ¶ 13. Thus, as
modified above, we affirm the administrative judge’s finding that the agency
proved its charge that the appellant was physically and medically unable to
perform the duties of her position.
We affirm, as modified in part, the administrative judge’s finding that the
appellant failed to prove her discrimination and retaliation affirmative defenses.
The administrative judge found that the appellant did not prove her
affirmative defenses. The appellant’s petition for review reraises her argument
that the agency failed to engage in the interactive process for identifying a
reasonable accommodation, discriminated against her on the basis of disability,
and retaliated against her for engaging in protected EEO activity. PFR File,
Tab 1 at 9-14. She also disputes the administrative judge’s determination that she
did not prove that the agency’s decision was the result of harmful error. Id.
at 14-15. We affirm the administrative judge’s findings as to these affirmative
defenses.10
The administrative judge correctly held that the appellant failed to
establish her affirmative defense of disability discrimination.
The administrative judge found that the appellant is not a qualified
individual with a disability, and thus, is not entitled to reasonable
accommodation. ID at 16-17. The appellant argues on review that the
administrative judge did not resolve whether she is a qualified individual because
there were disputes in the medical evidence. PFR File, Tab 1 at 9-10. We
disagree.
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. Haas, 2022 MSPB 36, ¶ 28. The
Rehabilitation Act incorporated the standards of the ADA. Id. Therefore, the
Board applies those standards to determine if there has been a Rehabilitation Act
violation. Id. Only a qualified individual with a disability is entitled to relief
under the Rehabilitation Act for claims of either status-based discrimination or
denial of reasonable accommodation. See id., ¶¶ 28-29. A qualified individual
with a disability is one who can perform the essential functions of her position or
one that she desires with or without reasonable accommodation. 42 U.S.C.
§ 12111(8); Haas, 2022 MSPB 36, ¶ 28.
As discussed above, the administrative judge correctly found that the
appellant was unable to perform the essential functions of her position with or
without reasonable accommodation. ID at 14-17. He also observed that she did
not challenge the agency’s efforts to locate a vacant funded position to which
she could be reassigned. ID at 17. The appellant does not argue on review that
such a position exists. Therefore, we discern no basis to conclude that the
agency’s efforts were deficient. IAF, Tab 6 at 51-78.
The appellant argues on review, as she did in her closing argument, that the
agency failed to accommodate her by failing to engage in the interactive process.
I-2 AF, Tab 13 at 9-11; PFR File, Tab 1 at 10-11. Contrary to the appellant’s11
assertions, the administrative judge resolved the dispute in medical evidence in
favor of the agency. ID at 14-15. Therefore, the administrative judge properly
found that the appellant is not a qualified individual, and she is not entitled to
relief under the Rehabilitation Act for a claim of denial of accommodation. ID
at 17.
The appellant also contended that BOP subjected her to disparate treatment
on the basis of her disability. IAF, Tab 19 at 1-3. The administrative judge
found that the appellant was disabled and that her removal was based on medical
restrictions resulting from that disability, but he found that the appellant failed to
demonstrate that the agency’s proffered reason for removal was pretextual. ID
at 19-21. After the administrative judge issued the initial decision, we clarified
the standards applied to status-based disability discrimination claims.
Specifically, as we note above, we held that, as with a failure to accommodate
claim, only an otherwise qualified individual with a disability is entitled to relief
for a claim of status-based discrimination. Haas, 2022 MSPB 36, ¶¶ 28-29. As
stated above, the appellant is not “qualified,” and her disability discrimination
claim fails on that threshold issue. Id. Accordingly, we modify the
administrative judge’s findings as to the appellant’s status-based disability
discrimination claim.
The administrative judge’s improper analysis of the disability
discrimination claim was harmless because he properly found that the appellant
failed to prove she was a qualified individual with a disability. 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). Because we agree that
she was not qualified, we need not address the appellant’s argument that the
agency treated her less favorably than other employees as to the 8-point letter.
PFR File, Tab 1 at 11. Specifically, she claims that the agency failed to present
evidence that it had accepted, as it did in her case, responses to 8-point letters12
that came in the form of medical documentation, rather than specific answers to
the questions posed. Id. We decline to reach this issue not only because the
appellant failed to prove that she was “qualified” under the Rehabilitation Act,
but also because she alleges disparate treatment on this basis for the first time on
review without explaining why she could not assert this claim below. See Clay v.
Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016) (stating that the Board
generally will not consider an argument raised for the first time in a petition for
review absent a showing that it is based on new and material evidence not
previously available despite the party’s due diligence).
We modify the initial decision to find that the appellant failed to
establish her affirmative defense of EEO retaliation under the
standard articulated in Pridgen v. Office of Management and Budget,
2022 MSPB 31.
The appellant alleged that her removal was in retaliation for her 2016 EEO
complaint and the resulting FAD. I-2 AF, Tab 13 at 12-13. Both in his
prehearing conference summary and in the initial decision, the administrative
judge notified the parties of, and applied, the standard set forth in Warren v.
Department of the Army , 804 F.2d 654, 656-58 (Fed. Cir. 1986). IAF, Tab 19
at 8; ID at 22. The Warren standard does not apply to claims of reprisal for
engaging in EEO activity; therefore, the use of this standard was in error. See
Pridgen, 2022 MSPB 31, ¶ 32.
In the underlying EEO complaint, the appellant raised claims arising under
both the Rehabilitation Act and Title VII. IAF, Tab 1 at 7-8. The Board recently
clarified in Pridgen, 2022 MSPB 31, ¶¶ 43-47, that an appellant alleging
retaliation for activity protected under the Rehabilitation Act must prove that her
protected activity was a “but-for” cause of the agency’s action. The Board also
clarified that for claims of reprisal for engaging in activity protected by Title VII,
an appellant must show that the prohibited consideration was a motivating factor
in the action. Id., ¶¶ 20-22, 30. “But-for” causation is a higher burden than
“motivating factor” causation. Id. An appellant who fails to meet the motivating13
factor standard necessarily fails to meet the more stringent “but-for” standard.
See id. (concluding that, because an appellant did not show that his sex was a
motivating factor in the agency’s action, he necessarily failed to meet the more
stringent “but-for” standard). Because the record is fully developed on the
relevant issue, we modify the initial decision to find that the appellant failed to
prove that her prior EEO activity was a motivating factor in her removal, without
reaching the issue of whether the appellant proved it was a but-for cause.4 See
Forte v. Department of the Navy , 123 M.S.P.R. 124, ¶ 27 (2016) (applying the
correct standard to an appellant’s discrimination claim on review, rather than
remanding, when the administrative judge applied an incorrect standard but the
record was fully developed).
In reaching his conclusion, the administrative judge considered the
appellant’s “circumstantial evidence of retaliatory intent” and concluded that she
did not establish that her removal was “because of” her EEO activity. ID
at 22-25. The appellant argued below, and again asserts on review, that the
deciding official minimized the extent of his knowledge of her protected activity
during an EEO investigation and that an internal memorandum requesting the
FFD unnecessarily referenced the FAD. I -2 AF Tab 13 at 12-13; PFR File, Tab 1
at 11-13. On review, she also challenges the administrative judge’s credibility
determinations regarding the testimony from the deciding official, the former
Human Resources Manager (HRM), and the former Assistant Human Resources
Manager (AHRM). PFR File, Tab 1 at 13-14.
4 The parties do not challenge the administrative judge’s reliance on the Warren
standard on review. Further, the appellant was aware of, and addressed, the motivating
factor standard during the proceedings below. Specifically, the agency advised the
appellant of the burden of proving her prior EEO activity was a motivating factor in her
removal in connection with the underlying EEO complaint. IAF, Tab 1 at 7, 16.
Further, the appellant demonstrated her knowledge of that standard by asserting both in
connection with that EEO complaint and in her closing argument in the instant appeal
that her EEO activity was a motivating factor in her removal. IAF, Tab 8 at 94, 99;
I-2 AF, Tab 12 at 12-13. Because the administrative judge’s error was not prejudicial
to the appellant’s substantive rights, it does not provide a basis for reversing the initial
decision. See Panter, 22 M.S.P.R. at 282.14
The methods by which an appellant may prove a claim of discrimination
under Title VII include the following: (1) direct evidence; (2) circumstantial
evidence, which may include (a) evidence of “suspicious timing, ambiguous
statements oral or written, behavior toward or comments directed at other
employees in the protected group, and other bits and pieces from which
an inference of discriminatory intent might be drawn,” also known as “convincing
mosaic”; (b) comparator evidence, consisting of “evidence, whether or not
rigorously statistical, that employees similarly situated to the plaintiff other than
in the characteristic . . . on which an employer is forbidden to base a difference in
treatment received systematically better treatment”; (c) evidence that the agency’s
stated reason for its action is “unworthy of belief, a mere pretext for
discrimination” (i.e., the burden-shifting standard under McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04 (1973)); and (3) some combination of direct
and indirect evidence. Pridgen, 2022 MSPB 31, ¶ 24 (citations omitted).
The prior EEO activity that served as the basis for the appellant’s reprisal
claim was the EEO claim that led to the October 2017 FAD. IAF, Tab 8 at 99;
ID at 22. The administrative judge found that the deciding official’s limited
knowledge of the appellant’s prior EEO activity was insufficient to establish
nexus. ID at 23-25. The administrative judge did not limit the type of evidence
the appellant could use to establish nexus and analyzed both direct and
circumstantial evidence. ID at 22-25.
The day after the agency issued the FAD, the agency’s Senior EEO
Specialist sent to the deciding official and the HRM a copy of the October 2017
FAD,5 along with a procedural summary and action items required for agency
5 The administrative judge stated that the Senior EEO Specialist’s email “contain[ed]
little information about the underlying complaint beyond a brief summary of its
procedural background” and that there was “no evidence that either [the deciding
official, the [HRM], or the [AHRM] were notified of anything beyond what was in that
summary.” ID at 23 (citing IAF, Tab 18 at 131-32). Although the appellant did not
directly challenge this description of the email, the record does not support the
administrative judge’s statement. The referenced email reflects that the FAD was
attached, and the attachment line includes a file named “[Complaint Adjudication15
compliance. IAF, Tab 18 at 131-32. The administrative judge explicitly credited
the deciding official’s testimony and corroborating evidence that he did not recall
the email because of the passage of time, but that his focus would have been on
the content of the request for compliance and seeing that it was properly routed to
human resources to ensure compliance. ID at 23-25. We afford these explicit
credibility-based factual findings deference. See Purifoy v. Department of
Veterans Affairs , 838 F.3d 1367, 1373 (Fed. Cir. 2016); Haebe v. Department of
Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002).
In reaching his conclusions, the administrative judge did not explicitly
consider whether any individual, motivated by the appellant’s prior EEO activity,
influenced the deciding official to remove the appellant. On review, the appellant
argues that the HRM and AHRM, who had knowledge of the October 2017 FAD,
harbored retaliatory animus. PFR File, Tab 1 at 11-14. The U.S. Supreme Court
has adopted the term “cat’s paw” to describe a case in which a particular
management official, acting because of an improper animus, influences an agency
official who is unaware of the improper animus when implementing a personnel
action. Staub v. Proctor Hospital , 562 U.S. 411, 422 (2011). The administrative
judge credited the HRM’s testimony that she did not see the email discussing the
appellant’s EEO case because she was on extended leave for 4 months. ID at 25.
He also credited the AHRM’s denial of retaliatory animus and her testimony that
“she was not aware of the details of the appellant’s EEO activity other than [the
appellant] was being brought back to work in February 2018 after a ‘hearing’ of
some type.’” ID at 24. The Human Resources Specialist, who authored a
memorandum to the Health and Safety Office requesting a second FFD, included
a reference to the appellant’s EEO complaint and FAD. IAF, Tab 9 at 193. The
Office] Decision.pdf.” IAF, Tab 18 at 131. Nonetheless, for the reasons discussed
below, we find that this mistake had no impact on the outcome of the initial decision.
Cf. 5 C.F.R. § 1201.115(a)(1) (indicating that the Board may grant a petition for review
based on an error of sufficient weight to warrant an outcome different from that of the
initial decision). Therefore, it does not provide a basis for reversing the initial
decision. See Panter, 22 M.S.P.R. at 282.16
administrative judge credited her testimony that she included the reference
“merely as background to [explain] . . . why a second fitness for duty
determination was being requested. ID at 24-25.
We afford these explicit and implicit credibility -based factual findings
deference. See Purifoy, 838 F.3d at 1373; Haebe, 288 F.3d at 1299. Moreover,
the appellant has not provided any evidence or argument suggesting that any of
these individuals influenced the deciding official’s determination that removal
was appropriate. Any causal link is further attenuated by the fact that the October
2017 FAD was issued nearly 3 years before her proposed removal and the
removal decision in July and August 2020. IAF, Tab 6 at 17, 27, Tab 8 at 126;
see Pridgen, 2022 MSPB 31, ¶¶ 24, 43, 48 (declining to find that the timing of an
appellant’s removal 4 years after her protected Rehabilitation Act activity was
suspicious). Thus, the record does not support a cat’s paw claim as to these
human resources professionals. Accordingly, we affirm the administrative
judge’s findings regarding the appellant’s EEO retaliation claim, as modified
above.
The administrative judge properly found that the appellant failed to establish her
claim of harmful error.
The appellant reraises the claim, originally raised in her closing argument,
that the agency committed harmful error by considering her response to the
8-point letter, which she states was not completed by a health care provider.
I-2 AF, Tab 13 at 12; PFR File, Tab 1 at 14. The administrative judge found that
the appellant failed to raise this issue prior to the prehearing conference and did
not show good cause for her delay. ID at 26. Nonetheless, he considered the
claim, reasoning that the agency did not violate any law, rule, or regulation by
relying on the medical documentation that the appellant submitted in response to
the 8-point letter. ID at 26-27. He also concluded that the appellant failed to
show that the agency’s error was harmful. ID at 26. We agree. 17
An agency’s error is harmful only when the record shows that a 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. Forte,
123 M.S.P.R. 124, ¶ 19. Here, the error claimed is that a medical provider did
not complete the 8-point letter. I -2 AF, Tab 13 at 12; PFR File, Tab 1 at 14.
The appellant has not cited, nor are we aware of, a legal authority, rule, or policy
setting forth a requirement that a medical provider complete the 8-point letter.
The administrative judge credited the testimony from the agency’s Chief of
Occupational Safety and Health that she asks additional questions if the 8-point
letter is not answered adequately, which was not necessary here. ID at 26-27.
On review, the appellant still has not identified the requirement that she believes
the agency violated, and concedes that she cannot “quantify” the harm resulting
from any such error. PFR File, Tab 1 at 14. Thus, we discern no basis to disturb
the administrative judge’s finding that the appellant failed to establish this claim.
In light of this determination, we decline to reach the appellant’s argument that
she demonstrated good cause for raising this claim for the first time in her closing
argument. ID at 26; PFR File, Tab 1 at 14.
The administrative judge also rejected the appellant’s argument that the
October 2017 FAD required BOP to return her to a duty status regardless of
whether she had medical restrictions. I -2 AF, Tab 13 at 5; ID at 27. He reasoned,
in part, that the FAD did “not discuss a situation in which the appellant notifies
the Bureau of additional medical restrictions after the examination.” ID at 27.
Further, he found that she failed to show that any error was harmful. ID at 27-28.
On review, the appellant reiterates that she was entitled to reinstatement once she
passed the FFD exam and that the administrative judge failed to consider that the
letter from her knee surgeon did not identify medical restrictions.6 PFR File,
6 We note that although the appellant alleges that the agency committed harmful error
when it did not reinstate her after she passed the FFD, as required by the FAD, whether
the agency violated the FAD’s terms may more appropriately be raised with the agency
as a question of compliance. See 29 C.F.R. § 1614.504(a). However, we need not18
Tab 1 at 14-15. The error claimed is that the agency failed to reinstate the
appellant after she passed her FFD examination, which the FAD required.
IAF, Tab 8 at 142; PFR File, Tab 1 at 14-15. Contrary to the appellant’s
assertion, the record reflects that the agency reinstated the appellant after she was
found fit for duty. IAF, Tab 6 at 126. Thus, there was no error according to the
terms of the FAD. IAF, Tab 8 at 142.
Although the agency reinstated her, the appellant informed the agency at
the time she was to return to work that she had not been released from her
doctor’s care. IAF, Tab 6 at 126. She conceded below that she “did not
physically return to duty, in light of [the doctor’s] note.” IAF, Tab 16 at 5. The
appellant has claimed on review that her doctor’s note should have been
insufficient to place her off-duty. PFR File, Tab 1 at 14. However, she does not
address evidence in the record that she claimed on February 5, 2018, that she had
not been released to full duty by her doctor. IAF, Tab 6 at 123-26. Further, as
discussed above, the appellant did not provide evidence or testimony below
suggesting, and has not argued on review, that she fully recovered and is able to
perform the essential duties of her previous position. IAF, Tab 8 at 142. Thus,
we discern no basis to disturb the administrative judge’s findings that the
appellant failed to establish that the agency committed any error and, even
assuming the agency did err, that she failed to prove that any error was harmful.
See Forte, 123 M.S.P.R. 124, ¶ 9 (“Reversal of an action for harmful error is
warranted where the procedural error likely had a harmful effect upon the
outcome of the case before the agency.”).
The appellant has not challenged the administrative judge’s determination
that her removal did not exceed the tolerable limits of reasonableness, and we
address this issue because we agree with the administrative judge that the appellant
failed to prove harmful error. 19
decline to disturb that conclusion. ID at 28. Therefore, we affirm the initial
decision as modified above.7
NOTICE OF APPEAL RIGHTS8
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
7 The appellant requests that the Board remand this case to the Equal Employment
Opportunity Commission (EEOC) for adjudication. PFR File, Tab 1 at 15-16. The
appellant’s appeal rights are discussed below. We are without authority to remand the
case as the appellant has requested. See generally Hess v. U.S. Postal Service ,
124 M.S.P.R. 40, ¶ 11 (2016) (discussing the interplay between the Board and the
EEOC in mixed cases).
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.20
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal 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 you21
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.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: 22
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 23
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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.24 | Ryals_EvaAT-0752-21-0308-I-2__Final_Order.pdf | 2024-04-29 | EVA RYALS v. DEPARTMENT OF JUSTICE, MSPB Docket No. AT-0752-21-0308-I-2, April 29, 2024 | AT-0752-21-0308-I-2 | NP |
1,626 | https://www.mspb.gov/decisions/nonprecedential/Philip_ShijuNY-0752-21-0095-X-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHIJU PHILIP,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
NY-0752-21-0095-X-1
DATE: April 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Paul Bartels , Esquire, Garden City, New York, for the appellant.
Arthur K. Purcell , Esquire, and Keturah Carr , Esquire, New York, New
York, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
In a March 16, 2023 compliance initial decision, the administrative judge
found the agency in partial noncompliance with the final decision in the
underlying appeal. Philip v. Department of Homeland Security , MSPB Docket
No. NY-0752-21-0095-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 3. For the reasons discussed below, we find the agency in
compliance and DISMISS the petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
In an initial decision issued on February 25, 2022, the administrative judge
directed the agency to mitigate the appellant’s removal to a five-day suspension
without pay; provide the appellant with the appropriate amount of back pay and
interest on the back pay; and adjust the appellant’s benefits with appropriate
credits and deductions. Philip v. Department of Homeland Security , MSPB
Docket No. NY-0752-21-0095-I-1, Initial Appeal File, Tab 47, Initial Decision
at 8.2
On June 22, 2022, the appellant filed a petition for enforcement,
contending that the agency had not provided him with back pay. CF, Tab 1 at 3.
On July 7, 2022, the agency provided evidence that it had deposited the back pay
into appellant’s bank account. CF, Tab 3 at 5. The appellant then argued, in part,
that the agency had not calculated his back pay correctly, because the appellant
should have been paid at the GS-12, Step 8 salary level after July 2021; and that
the agency had not restored all his sick leave. CF, Tab 5 at 3. In the compliance
initial decision, dated March 16, 2023, the administrative judge ordered the
agency to (1) review the appellant’s sick leave record and restore any sick leave
he lost as a result of the removal action and to which he remained entitled; and
(2) determine whether the appellant would have been granted a salary step
increase to GS-12, Step 8 in July 2021, and if so, provide him with the additional
funds he would have received if not for the removal action. CID at 3.3
2 Neither party filed a petition for review of the initial decision, and it became the
Board’s final decision on March 31, 2022.
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 10-11; see 5 C.F.R.
§ 1201.183(a)(6)(i). The compliance initial decision also informed the parties that they
2
On April 13, 2023, the agency filed a statement of compliance asserting it
had restored 1,304 total hours of sick leave to the appellant on July 18 and
October 20, 2022; and paid the appellant additional funds in the gross amount of
$2,812.56 for backpay, plus interest of $93.08, for his step increase to GS-12,
Step 8 on August 15, 2021. Philip v. Department of Homeland Security ,
NY-0752-21-0095-X-1, Compliance Referral File (CRF), Tab 1 at 1-7. The
agency also submitted emails between the parties, dated March 16 and 17, 2023,
confirming that the appellant had received his back pay and restored sick leave.
Id. at 8.
On April 13, 2023, the Board issued an Acknowledgement Order noting the
agency’s filing and informing the appellant that he must file any response within
20 calendar days. CRF, Tab 2 at 2. The order specifically informed the appellant
that if he failed to file a response, the Board might assume he was satisfied and
dismiss the petition for enforcement. Id.
The appellant has not filed any response to the agency’s compliance
submission.
When the Board finds a personnel action unwarranted or not sustainable, it
orders that the appellant be placed, as nearly as possible, in the situation he 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).
could file a petition for review if they disagreed with the compliance initial decision.
CID at 11; see 5 C.F.R. §§ 1201.114(e), 1201.183(a)(6)(ii). Neither party petitioned for
review of the compliance initial decision.
3
Here, the agency filed evidence of compliance to which the appellant did
not respond, despite being apprised that the Board might construe lack of
response as satisfaction with the agency’s response. Accordingly, in light of the
appellant’s failure to respond, we find that the agency is now in full compliance
with the February 25, 2022 decision, and dismiss the petition for enforcement.
This is the final decision of the Merit Systems Protection Board in this
compliance proceeding. Title 5 of the Code of Federal Regulations, section
1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. 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 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
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
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
6
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.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.
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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Philip_ShijuNY-0752-21-0095-X-1__Final_Order.pdf | 2024-04-29 | SHIJU PHILIP v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. NY-0752-21-0095-X-1, April 29, 2024 | NY-0752-21-0095-X-1 | NP |
1,627 | https://www.mspb.gov/decisions/nonprecedential/Arizmendi_Michael_A_DC-3330-19-0357-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL A. ARIZMENDI,
Appellant,
v.
COURT SERVICES AND OFFENDER
SUPERVISION AGENCY FOR DC,
Agency.DOCKET NUMBER
DC-3330-19-0357-I-1
DATE: April 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Steven L. Herrick , Esquire, San Diego, California, for the appellant.
Donald Tanguilig , Marvelle Butler , Esquire, and Tiffany Butler , 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 as withdrawn his appeal alleging a violation of his rights under the
Veterans Employment Opportunities Act of 1998. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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).
An appellant’s withdrawal of a Board appeal is an act of finality which
removes the appeal from the Board’s jurisdiction. Lincoln v. U.S. Postal Service ,
113 M.S.P.R. 486, ¶ 7 (2010). A voluntary withdrawal must be clear, decisive,
and unequivocal. Id. The Board will generally grant a motion to withdraw an
appeal unless the nonmoving party would suffer a clear legal prejudice. Kravitz
v. Office of Personnel Management , 75 M.S.P.R. 44, 46-47 (1997). Because an
appellant’s withdrawal of an appeal is generally an act of finality, in the absence
of unusual circumstances, such as if the appellant received misinformation, was
under mental distress at the time of withdrawal, or presents new and material
evidence on review, the Board will not reinstate an appeal once it has been
withdrawn merely because the appellant has had a change of mind and now
wishes to proceed before the Board. Lincoln, 113 M.S.P.R. 486, ¶¶ 8-9; Auyong
v. Department of the Navy , 97 M.S.P.R. 267, ¶ 4 (2004).
The appellant withdrew his appeal by submitting a filing to the Board,
through his legal counsel, titled “Notice of Withdrawal and Proposed Order,”
which stated that the appellant “hereby withdraws this Appeal.” Initial Appeal
File (IAF), Tab 15 at 4. The filing also included a proposed order dismissing the2
appeal as withdrawn. Id. at 6. In his petition for review, the appellant does not
argue that he withdrew his appeal due to misinformation or mental duress, nor
does he request that his appeal be reinstated due to new and material evidence.
Petition for Review (PFR) File, Tab 1. Instead, he concedes that he withdrew his
appeal “at the urging of” his legal counsel, but asserts that he has “discovered
omissions of important information which are germane to the specifics of [his]
case,” and makes a number of arguments regarding the merits of his appeal.
Id. at 4-8.
The appellant’s filing stating that he “hereby withdraws this Appeal,” is
clear, decisive, and unequivocal, and his request to reinstate his appeal because
he has had an apparent change of mind does not warrant reinstatement in this
case. See Lincoln, 113 M.S.P.R. 486, ¶¶ 8-9; Auyong, 97 M.S.P.R. 267, ¶ 4
(2004). Additionally, to whatever extent the appellant is alleging that his
attorney erred in withdrawing his appeal, it is well settled that an appellant is
responsible for the errors of his chosen representative. See Pacilli v. Department
of Veterans Affairs , 113 M.S.P.R. 526, ¶ 13, aff’d sub nom. Pacilli v. Merit
Systems Protection Board , 404 F. App’x 466 (Fed. Cir. 2010); Sofio v. Internal
Revenue Service , 7 M.S.P.R. 667, 670 (1981). Accordingly, we discern no reason
to disturb the initial decision, and we deny the petition for review and affirm the
initial decision dismissing the appeal as withdrawn.2
2 On review, the appellant submits a number of documents, some of which were
included in the record below. PFR File, Tab 1 at 9-19. We have reviewed all of the
documents, and we find that the appellant has not shown that any of the information he
has provided for the first time on review is material, so we have not considered it.
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). The agency has also provided a number of documents with its response to the
petition for review, all of which were included in the record below, and so we also have
not considered them. PFR File, Tab 3 at 14-133; IAF, Tab 8 at 13-132; see id.; Meier v.
Department of the Interior , 3 M.S.P.R. 247, 256 (1980 ) (explaining that evidence that is
already a part of the record is not new). 3
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s6
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Arizmendi_Michael_A_DC-3330-19-0357-I-1__Final_Order.pdf | 2024-04-26 | MICHAEL A. ARIZMENDI v. COURT SERVICES AND OFFENDER SUPERVISION AGENCY FOR DC, MSPB Docket No. DC-3330-19-0357-I-1, April 26, 2024 | DC-3330-19-0357-I-1 | NP |
1,628 | https://www.mspb.gov/decisions/nonprecedential/Chu_PeggyDC-1221-17-0172-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PEGGY CHU,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
DC-1221-17-0172-W-1
DATE: April 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Peggy Chu , Alexandria, Virginia, pro se.
Benjamin K. Ahlstrom and Jennifer Williams , Alexandria, Virginia,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied her 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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. We MODIFY the initial decision to clarify the findings on
exhaustion, the scope of the appellant’s protected disclosures, and the
contributing factor analysis and findings and to adjust the Carr factor analysis.
We VACATE the finding that the agency met its burden of proving by clear and
convincing evidence it would have relocated the appellant to a cubicle absent her
protected disclosures. We otherwise AFFIRM the initial decision.
BACKGROUND
The appellant is employed by the agency as an Information Technology
(IT) Specialist, GS-2210-13. Initial Appeal File (IAF), Tab 64 at 5-6, Tab 24
at 4. She filed a complaint with the Office of Special Counsel (OSC), alleging
that the agency moved her from a shared office to a cubicle, lowered her fiscal
year (FY) 2015 performance appraisal, forced her to work overtime without pay,
withheld a performance bonus and award, and suspended her for 1 day in reprisal
for disclosing her officemate’s harassing conduct that violated Government
policies against disturbances and contractors’ nonperformance that violated the
Federal Acquisitions Regulations (FAR) and resulted in a gross waste of
Government resources. IAF, Tab 45 at 7-17, Tab 70 at 116-22.
The appellant filed a Board appeal after OSC failed to resolve her
complaint within 120 days, reasserting many of the claims that she raised before2
OSC. IAF, Tab 1 at 840-58. During the adjudication of her case below, she
alleged that her disclosure to the agency’s Chief Investigator of the Workforce
Relations Division (WRD) (formerly known as the Employee Relations Division)
in February 2016—that she had worked over 2,000 hours of overtime without pay
and with the knowledge of her supervisor—constituted a protected disclosure of a
Fair Labor Standards Act (FLSA) violation. IAF, Tab 51 at 13, Tab 68 at 22,
Tab 70 at 15-16. The appellant initially requested a hearing; however, through
counsel, she withdrew her request. IAF, Tab 3 at 4, Tab 59 at 4.
After the close of the record, the administrative judge issued an initial
decision based on the written record, finding that the appellant had established
Board jurisdiction over her appeal, but denying her request for corrective action.
IAF, Tab 63 at 1, Tab 73, Initial Decision (ID) at 1, 22. He found that the
appellant made the following protected disclosures: (1) Government contractors
violated the FAR; (2) the contractors’ nonperformance constituted a gross waste
of funds; and (3) she was denied overtime pay in violation of the FLSA. ID
at 8-10. However, he found that the appellant’s disclosures about her officemate
were not protected. ID at 7. He further found that the appellant proved that her
two protected disclosures about contractors’ nonperformance were a contributing
factor in her lowered performance rating and 1 -day suspension, but not in the
agency’s decision to reassign her to a cubicle. ID at 11-12. He nevertheless
denied the appellant’s request for corrective action because the agency proved by
clear and convincing evidence that it would have reassigned her to a cubicle,
lowered her performance appraisal, and suspended her absent her
contractor-related disclosures. ID at 12-22.
The appellant has filed a petition for review, arguing that the administrative
judge erred in denying her request for corrective action. Petition for Review
(PFR) File, Tab 7. She claims that all of her disclosures were protected and that
the agency failed to prove by clear and convincing evidence that it would have
lowered her performance rating, relocated her to a cubicle, or suspended her3
absent her protected disclosures. Id. at 7-21. The agency has filed a response to
the petition for review. PFR File, Tab 11.
DISCUSSION OF ARGUMENTS ON REVIEW2
The appellant exhausted with OSC her disclosure that she was forced to work
uncompensated overtime hours in violation of the FLSA.
Although the administrative judge found that the appellant made a
protected disclosure that the agency violated the FLSA, he did not make any
findings addressing whether she exhausted this claim with OSC. ID at 9-10. We
turn now to consider in the first instance whether the appellant exhausted it with
OSC.
The Board has jurisdiction over an IRA appeal if the appellant proves by
preponderant evidence that she exhausted her administrative remedy 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 protected
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).
Edwards v. Department of Labor , 2022 MSPB 9, ¶ 8, aff’d, No. 2022-1967,
2023 WL 4398002 (Fed. Cir. July 7, 2023); Salerno v. Department of the Interior ,
123 M.S.P.R. 230, ¶ 5 (2016). The substantive requirements of exhaustion are
met when an appellant has provided OSC with sufficient basis to pursue an
investigation that might lead to corrective action. Chambers v. Department of
Homeland Security , 2022 MSPB 8, ¶ 10. The Board’s jurisdiction is limited to
those issues that have been previously raised with OSC. Skarada v. Department
of Veterans Affairs , 2022 MSPB 17, ¶ 7.
However, an appellant may give a more detailed account of her
whistleblowing activities before the Board than she did to OSC. Id.; Chambers,
2 The parties do not challenge the administrative judge’s finding that the Board has
jurisdiction over the appeal, and we decline to disturb that finding. ID at 5.4
2022 MSPB 8, ¶ 10. An appellant may demonstrate exhaustion through her initial
OSC complaint, evidence that she 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. Skarada, 2022 MSPB 17, ¶ 7. An appellant
may also establish exhaustion through other sufficiently reliable evidence, such as
an affidavit or declaration attesting that the appellant raised with OSC the
substance of the facts in the Board appeal. Chambers, 2022 MSPB 8, ¶ 11.
Finally, the appellant must prove exhaustion with OSC by preponderant evidence,
not just present nonfrivolous allegations of exhaustion. Id.; see 5 U.S.C.
§ 1214(a)(3); 5 C.F.R. § 1201.57(c)(1).
The appellant alleged in her OSC complaint that she worked a significant
number of overtime hours without pay. IAF, Tab 45 at 14-15. In additional
submissions to OSC, she asserted that her supervisor was aware that she was
working overtime. IAF, Tab 2 at 22, 296, 356-68, 375. In her submission to the
Board, the appellant clarified that she disclosed that she was denied overtime pay
to the Chief Investigator of the WRD during a meeting on February 25, 2016,
concerning the agency’s investigation into her apparent time and attendance
discrepancies. IAF, Tab 1 at 823-28, Tab 6 at 13. The appellant also provided a
written summary the Chief Investigator of the WRD produced detailing his
February 25, 2016 meeting with the appellant. These notes corroborate her claim
that she made disclosures that her supervisor permitted her to work excessive
hours. IAF, Tab 1 at 823-28. Id. at 824, 826-28. The record reflects that the
appellant provided these documents to OSC during its investigation of her
whistleblower retaliation complaint. IAF, Tab 23 at 16-17 (November 20, 2016
email providing OSC with additional documents related to her whistleblower
complaint and requesting OSC to reconsider its stay decision); Tab 45 at 18-19
(September 15, 2016 email from OSC seeking additional information regarding
the appellant’s unpaid overtime claim), 20-21 (October 5, 2016 email denying the5
appellant’s stay request); see Chu v. Department of Commerce , MSPB Docket
No. DC-1221-17-0018-S-1, Stay File, Tabs 1-2 (providing the OSC investigator
with the February 25, 2016 meeting summary).3 Accordingly, we find that the
appellant exhausted with OSC her claim that she disclosed to the Chief
Investigator of the WRD that she was forced to work significant amounts of
overtime without pay and with the knowledge of her supervisor.
The administrative judge found that a disinterested observer in the
appellant’s position could reasonably believe that her statements to the Chief
Investigator alleging that she was required to work uncompensated overtime
evidenced a violation of the FLSA. ID at 9-10. The parties do not question this
finding on review.4
The administrative judge properly found that the appellant’s disclosures about her
officemate were unprotected, but erred in finding that all of her disclosures about
contractors’ nonperformance were protected.
Disclosures concerning the appellant’s officemate’s disruptive behavior
An employee discloses a gross waste of funds when she alleges that a more
than debatable expenditure is significantly out of proportion to the benefit
reasonably expected to accrue to the Government. Fisher v. Environmental
Protection Agency , 108 M.S.P.R. 296, ¶ 9 (2008). On review, the appellant
challenges the administrative judge’s finding that her officemate’s behavior was
3 The appellant filed a stay request with the Board in October 2016, but an
administrative judge dismissed the request as premature. Chu v. Department of
Commerce, MSPB Docket No. DC-1221-17-0018-S-1, Order Dismissing Stay Request
at 1-2 (Oct. 14, 2016).
4 We find it unnecessary to revisit this finding here. The parties do not dispute this
determination. See 5 C.F.R. § 1201.115 (reflecting that the Board generally will
consider only the issues raised on review). As discussed below, we agree with the
administrative judge that the agency met its burden to prove that it would have taken
the actions at issue here absent the appellant’s disclosure. Therefore, any error is
harmless. Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984)
(explaining that an adjudicatory error that is not prejudicial to a party’s substantive
rights provides no basis for reversal of an initial decision). However, we observe that
according to a Standard Form 50 the appellant submitted below, she was designated as
FLSA “exempt”. IAF, Tab 25 at 4.6
too trivial to constitute a protected disclosure. PFR File, Tab 7 at 7-10. She
asserts that she reasonably believed that she disclosed that her officemate violated
41 C.F.R. § 102-74.390, a Federal regulation prohibiting disturbances on public
property, and that any violation is the basis for a protected disclosure, even if de
minimis.5 Id. at 9-10. Under 41 C.F.R. § 102-74.390, all persons are prohibited
from “creat[ing] loud or unusual noise or a nuisance” or otherwise disrupting
employees in the performance of their duties. A violation of that regulation
carries a criminal penalty. 41 C.F.R. § 102-74.450. A disclosure of a violation of
a criminal law is a disclosure of a law, rule, or regulation. Scalera v. Department
of the Navy, 102 M.S.P.R. 43, ¶ 18 (2006).
We agree with the administrative judge that the appellant disclosed a trivial
office dispute between she and her coworker. ID at 6-7 (citing Langer v.
Department of the Treasury , 265 F.3d 1259, 1266 (Fed. Cir. 2001) (concluding
that disclosures of “trivial violations do not constitute protected disclosures.”))
Specifically, the appellant alleged that her officemate was loud and disruptive
when she used the speakerphone, held meetings, and gossiped and spoke in a
foreign language with another coworker in their shared office. PFR File, Tab 7
at 7; IAF, Tab 70 at 6, 16. The appellant also described her coworker’s behavior
as “treat[ing] the office space as though it was her own,” “us[ing] the office as a
conference room,” “belligerent,” and “inconsiderate.” IAF, Tab 70 at 6, 17, 60,
62, 82-84, 238-42. It appears that the appellant and her officemate generally
disagreed about the use of the office space and the arrangement of office
furniture. Id. at 17, 60, 62-63, 238-42. In fact, the appellant’s officemate
requested to be moved at one point due to the appellant’s “offensive and
disrespectful” conduct. Id. at 251-53.
5 The parties do not dispute that 41 C.F.R. § 102-74.390 applied to the appellant’s
office. IAF, Tab 24 at 4, Tab 31 at 33-34; PFR File, Tab 7 at 8-9 (citing 41 C.F.R.
§§ 102-2.10, 102-2.20). We make no finding on this issue, but we agree with the
administrative judge’s implicit finding that a reasonable person in the appellant’s
position would have believed the regulation applies. ID at 7. 7
We find that any reasonable person in the appellant’s position could not
believe her coworker’s actions were the type of criminal conduct contemplated by
the identified regulation. Cf. Drake v. Agency for International Development ,
543 F.3d 1377, 1380-82 (2008) (finding that, based on the facts and
circumstances of the case, it was reasonable for the appellant to believe that he
had disclosed that his colleagues violated agency policy by being intoxicated
while on duty); see generally United States v. Broxton , 666 F. App’x 149, 150,
153 (3d Cir. 2016) (affirming the criminal conviction, under 41 C.F.R.
§ 102-74.390, of a Federal security guard for creating a disturbance by engaging
in a physical altercation with a coworker in the employee locker room).6
Therefore, the appellant has shown no error in the administrative judge’s finding
that her disclosure was not protected.
Disclosures concerning contractor wrongdoing
As for the appellant’s disclosures of contractors’ nonperformance, they
generally fall into two categories—disclosures of substantial nonperformance by
a Government contractor, Phacil, and several disclosures about other contractors’
more discrete performance issues. From August through October 2015, the
appellant disclosed that Phacil should not be awarded an IT contract for FY 2016
because of its documented nonperformance. IAF, Tab 2 at 35-39, 49-160, Tab 70
at 125-28. At least as early as October 12, 2015, the appellant further disclosed
that the agency was wasting money paying Phacil because it performed
substantially below expectations and had serious product delivery delinquencies
that significantly affected the agency’s ability to fulfill its mission, especially
regarding an applications system, which accounted for nearly 10% of the
agency’s annual operating budget. IAF, Tab 2 at 19-20, 164, Tab 8 at 4-11.
6 While decisions of the U.S. Court of Appeals for the Federal Circuit are controlling
authority for the Board, other circuit courts’ decisions are considered persuasive, but
not controlling, authority. Morris v. Department of the Navy , 123 M.S.P.R. 662,
¶ 15 n.12 (2016).8
The appellant also disclosed that another contractor failed to maintain
appropriate staffing levels as required by the contract and other contract
employees failed to meet individual performance expectations. IAF, Tab 2
at 41-49. She contended that the contractors’ failure to perform constituted a
violation of FAR § 9.104-1 and § 52.249-13 and that the agency’s failure to take
remedial action for their nonperformance constituted a gross waste of funds.7
IAF, Tab 23 at 4-7. The administrative judge did not distinguish the appellant’s
disclosures, finding instead that she “produced sufficient evidence to show that
she reasonably believed that the contractors violated the FAR, and that the
contractors’ nonperformance resulted in a misuse of [G]overnment funds.” ID
at 9. This distinction is significant, as only the disclosures about Phacil are
protected.8
Federal agencies generally may only award a competitive contract bid to a
responsible contractor. 41 U.S.C. § 3703(c). Under FAR §§ 9.104-1(c) and
9.104-3(b), a prospective contractor is presumed to be “nonresponsible” if it “is
or recently has been seriously deficient in contract performance.” When the
appellant made her disclosure, the agency had awarded Phacil the FY 2016
contract. IAF, Tab 8 at 7-8. Based on the appellant’s expertise, observations,
and confirmation from other management officials, it was reasonable for her to
believe that Phacil’s nonperformance was substantial enough such that the
agency’s decision to award Phacil the FY 2016 contract violated the FAR. IAF,
Tab 8 at 4-11; see Embree v. Department of the Treasury , 70 M.S.P.R. 79, 85
(1996) (considering the appellant’s asserted subject matter expertise in finding
7 The FAR regulations are located in Title 48 of the Code of Federal Regulations.
8 The administrative judge also erred in finding that the appellant reasonably believed
that she disclosed a violation of FAR § 52.249-13. ID at 8-9. That provision, which
concerns facilities contracts, was eliminated over 8 years before the appellant’s
disclosures. Id.; Federal Acquisition Regulations, 72 Fed. Reg. 27364-02, 27381,
27394 (May 15, 2007). The administrative judge’s error was not harmful, as we have
nevertheless found that the appellant reasonably disclosed a violation of the FAR on
another basis. Panter, 22 M.S.P.R. at 282.9
that she made a nonfrivolous allegation of gross mismanagement); Van Ee v.
Environmental Protection Agency , 64 M.S.P.R. 693, 698 (1994) (considering the
appellant’s expertise in finding that she made a nonfrivolous allegation of a gross
waste of funds).
Further, it was also reasonable to believe that the agency was committing a
gross waste of funds by paying millions of dollars for services it was not
receiving due to Phacil’s nonperformance and that its nonperformance affected a
project that accounted for nearly 10% of the agency’s operating budget.9 IAF,
Tab 3 at 7, Tab 8 at 4-11; see, e.g., Smith v. Department of the Army , 80 M.S.P.R.
311, ¶¶ 6, 10 (1998) (finding that the appellant made a nonfrivolous allegation
that he had disclosed a gross waste of funds by disclosing that the agency spent
$15,000 on a fuel management system that would provide no benefit to the
Government); cf. Jensen v. Department of Agriculture , 104 M.S.P.R. 379, ¶ 10
(2007) (finding no protected disclosure of a gross waste of funds when the
appellant failed to indicate the scale of the expenditure she claimed was
improper). In contrast, the appellant could not reasonably believe that she was
disclosing a violation of law, rule, or regulation, or a gross waste of funds by
disclosing her concerns about other contractors’ staffing issues and minor,
discrete performance issues. See Lane v. Department of Homeland Security ,
115 M.S.P.R. 342, ¶¶ 17-18 (2010) (finding that the appellant did not prove he
reasonably believed he disclosed Government wrongdoing by disclosing that
9 The appellant’s disclosures—that agency officials ignored contract violations by
failing to remediate Phacil’s nonperformance—reveal wrongdoing on the part of the
agency, as opposed to only identifying wrongdoing by a private Government contractor
because Phacil’s nonperformance implicated the Government’s interest. See Johnson v.
Department of Health and Human Services , 93 M.S.P.R. 38, ¶¶ 10-11 (2002) (finding
that the appellant’s disclosures of wrongdoing by a private Government contractor were
protected because the identified wrongdoing implicated the Government’s interest and
reputation); see also Covington v. Department of the Interior , 2023 MSPB 5, ¶¶ 15-19
(finding that the Whistleblower Protection Enhancement Act of 2012 did not change the
longstanding principle that a disclosure of wrongdoing committed by a non -Federal
Government entity may be protected only when the Federal Government’s interests and
good name are implicated in the alleged wrongdoing).10
contractors failed to fulfill their contractual obligations to maintain staffing
levels).
The appellant proved that her disclosure concerning contractor nonperformance
was a contributing factor in the agency’s decisions to lower her FY 2015
performance rating and to issue a 1-day suspension.
The administrative judge found that the appellant proved that her
disclosures of contractors’ nonperformance, beginning in August 2015, were a
contributing factor in the agency’s October 2015 decision to lower her FY 2015
performance rating and October 2016 decision to suspend her for 1 day. ID
at 10-12. Based on our modifications to the administrative judge’s findings as to
the appellant’s disclosures, we further modify the initial decision to find that she
proved that her protected disclosures about the agency’s failure to act on Phacil’s
nonperformance were a contributing factor in those two personnel actions. We
also vacate the administrative judge’s finding that she proved contributing factor
as to her disclosures concerning other contractors.
To prevail in an IRA appeal, an appellant also must prove by preponderant
evidence that her disclosure was a contributing factor in a personnel action.
5 U.S.C. § 1221(e)(1); Smith v. Department of the Army , 2022 MSPB 4, ¶ 19. To
prove that a disclosure was a contributing factor in a personnel action, the
appellant need only demonstrate that the fact of, or the content of, the disclosure
was one of the factors that tended to affect the personnel action in any way.
Covington v. Department of the Interior , 2023 MSPB 5, ¶ 43. One way to
establish contributing factor is the knowledge/timing test. Smith, 2022 MSPB 4,
¶ 19. The appellant can satisfy the test by proving that the official taking the
action had actual or constructive knowledge of the disclosure, and the action
occurred within a period of time such that a reasonable person could conclude
that the disclosure was a contributing factor in the personnel action. Id. The
knowledge portion of the knowledge/timing test can be met with allegations of
either actual or constructive knowledge. Abernathy v. Department of the Army ,11
2022 MSPB 37, ¶ 15. However, the knowledge/timing test is not the only way to
prove contributing factor. Dorney v. Department of the Army , 117 M.S.P.R. 480,
¶ 14 (2012). The Board will also consider other evidence, such as evidence
pertaining to the strength or weakness of the agency’s reasons for taking the
personnel action, whether the whistleblowing was personally directed towards the
officials taking the action, and whether these individuals had a desire or motive to
retaliate against the appellant. Id., ¶ 15.
The appellant’s former supervisor rated the appellant’s performance for
FY 2015 as fully successful on October 9, 2015, and suspended her on October 3,
2016. IAF, Tab 5 at 4, Tab 31 at 33, 35-36. As previously noted, the appellant
disclosed that Phacil should not be awarded an IT contract for FY 2016 and that
the agency was wasting money on Phacil from August through October 2015.
IAF, Tab 2 at 19-20, 35-39, 49-160, 164, Tab 8 at 4-11, Tab 70 at 125-28. Thus,
the appellant has proven, under the knowledge/timing test, that her protected
disclosures concerning the agency’s FAR violation and gross waste of funds as to
Phacil were contributing factors in the agency’s decision to take both personnel
actions. See Abernathy, 2022 MSPB 37, ¶ 15.
Regarding contributing factor as it relates to the appellant’s move to a
cubicle from her shared office, although the appellant raises other arguments on
review as to her office move, she does not contend that the responsible officials—
the Director of Program Management, the Director of the Workforce Management
Division (WMD), and a Labor Relations employee—had knowledge of her
protected disclosures regarding Phacil. PFR File, Tab 7 at 10-12; IAF, Tab 70
at 20, 22, 49. She also does not contend that they were influenced by anyone
with knowledge of her protected disclosures. PFR File, Tab 7 at 10-12; IAF,
Tab 70 at 20, 22-24, 47-53; see Dorney, 117 M.S.P.R. 480, ¶ 11 (explaining that
an appellant may establish constructive knowledge by showing that an individual
with actual knowledge of the disclosure influenced the official accused of taking
the retaliatory action). 12
As to non-knowledge/timing evidence, the agency provided strong evidence
supporting its decision to move the appellant to a cubicle. See Dorney,
117 M.S.P.R. 480, ¶ 15. Specifically, the WMD Director provided a declaration
detailing the agency’s efforts in resolving the dispute between the appellant and
her officemate and explaining its decision to move her into a cubicle instead of
into a single-occupancy office or another double-occupancy office with a
different officemate. IAF, Tab 68 at 17-20. The WMD Director explained that
WMD recommended to the Union President that the appellant be moved into a
cubicle from her double office because the appellant’s division was facing
significant space limitations at the time and so no GS-13 employees were being
provided with single offices, and further, because the appellant’s statements and
behaviors led the agency to believe that moving her into another double office
with a different officemate would be futile. Id. Additionally, the WMD Director
noted that although WMD made the recommendation that the appellant be moved
into a cubicle, the final decision on the office assignment was made by the union.
Id. at 18, 20.
Although the appellant reasserts that the decision to move her to a cubicle
was retaliatory, she has not specifically disputed the agency’s explanation for its
decision on review. PFR File, Tab 7 at 15-16. Additionally, there is no evidence
in the record that any of the appellant’s whistleblowing disclosures were directed
at any of the officials that were involved in the decision to move the appellant to
a cubicle—the Director of Program Management, the WMD Director, and the
Labor Relations Specialist—or that any of these officials had any motive to
retaliate against the appellant. IAF, Tab 2 at 377-79, Tab 23 at 56-57, Tab 68
at 17-21, Tab 70 at 47-49, 75-76; see Dorney, 117 M.S.P.R. 480, ¶ 15.
Accordingly, we agree with the administrative judge that the appellant has not
proven that the agency moved her from a shared office to a cubicle in reprisal for
her protected disclosures. ID at 11-12.13
The appellant proved that her disclosure of potential FLSA violations was a
contributing factor in the agency’s decision to issue the 1-day suspension.
The administrative judge did not make specific findings addressing whether
the appellant’s February 25, 2016 FLSA disclosure was a contributing factor in
the agency’s October 2015 decision to lower her FY 2015 performance rating, the
October 2016 decision to suspend her for 1 day, or the July 19, 2016 decision to
move her from a double-occupancy office to a cubicle, and so we do so in the
first instance.
The timing prong of the knowledge/timing test is met for the 1-day
suspension and the move to a cubicle because the agency took those actions less
than 1 year after the appellant made the disclosure to Chief Investigator of the
WRD on February 25, 2016. IAF, Tab 1 at 823-28, Tab 2 at 377, Tab 31 at 33,
35-36, Tab 68 at 20; see Abernathy, 2022 MSPB 37, ¶ 15 (recognizing that
personnel actions occurring within 1 to 2 years after the protected disclosures are
sufficient to meet the timing portion of the test). However, because the appellant
first disclosed the potential FLSA violations on February 25, 2016, after the
October 2015 decision to lower her FY 2015 performance rating, the disclosure
could not have contributed to the agency’s decision to take that action. IAF,
Tab 5 at 4; see Johnson v. Department of Justice , 104 M.S.P.R. 624, ¶ 26 (2007)
(determining that a disclosure made after the personnel actions at issue could not
have been a contributing factor in those personnel actions).
Regarding the knowledge prong of the test, as set forth in greater detail
above, the only agency official the appellant alleged was aware of her disclosure
was the Chief Investigator of the WRD.10 IAF, Tab 1 at 823-28, Tab 70 at 63-64.
The appellant also alleged that the Chief Investigator was involved in the
suspension decision by assisting her former first-line supervisor with the
10 Although the appellant noted that her former first-line supervisor was aware that she
often worked overtime hours, she did not allege that she made a protected disclosure of
wrongdoing to her supervisor in connection with her overtime work, nor did she exhaust
any such claim with OSC. IAF, Tab 70 at 30-31.14
suspension proposal and decision and by coordinating the oral reply. IAF, Tab 23
at 17, 51, Tab 70 at 35, 65. Accordingly, we conclude, based on the
knowledge/timing test, that the appellant proved that her disclosure of potential
FLSA violations was a contributing factor in the decision to issue the 1-day
suspension.
With respect to the decision to move her from an office to a cubicle, the
appellant has not alleged that the Chief Investigator of the WRD played any role
in that decision, nor has she alleged that any of the other agency officials
responsible for that decision had knowledge of her FLSA disclosure. The
appellant also has not alleged that any person involved in the cubicle move
decision was influenced by the Chief Investigator—the only official with
knowledge of the FLSA disclosure. See Dorney, 117 M.S.P.R. 480, ¶ 11.
Further, as previously set forth in greater detail, the agency’s reasons for moving
the appellant to a cubicle were valid and there is no evidence that the appellant’s
FLSA disclosure was directed at any of the officials involved in the office move
decision, and so the appellant failed to prove contributing factor based on
non-knowledge/timing evidence.
In summary, we conclude that the appellant established that her
February 25, 2016 disclosure of potential FLSA violations was a contributing
factor in the agency’s decision to issue the 1-day suspension, but it did not
contribute to the decisions to lower the appellant’s FY 2015 performance rating
or to move her from a shared office to a cubicle.
The agency proved by clear and convincing evidence that it would have lowered
the appellant’s performance rating and suspended her absent her protected
disclosures.
In determining whether an agency has met this burden, the Board will
consider all of the relevant factors, including the following (“ Carr factors”):
(1) the strength of the agency’s evidence in support of the action; (2) the
existence and strength of any motive to retaliate on the part of the agency15
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. Soto v. Department of Veterans Affairs , 2022 MSPB
6, ¶ 11; see also 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. Lu v. Department of Homeland Security ,
122 M.S.P.R. 335, ¶ 7 (2015). The Board considers all of the evidence presented,
including evidence that detracts from the conclusion that the agency met its
burden. Soto, 2022 MSPB 6, ¶ 11; see also Whitmore v. Department of Labor ,
680 F.3d 1353, 1368 (Fed. Cir. 2012).
We vacate the administrative judge’s finding that the agency met its burden
of proving that it would have relocated the appellant to a cubicle absent
her protected disclosures.
On review, the appellant alleges that the administrative judge erred in
finding that the agency proved by clear and convincing evidence that it would
have moved her to a cubicle absent her protected disclosures. PFR File, Tab 7
at 15-16. Given that we agree with the administrative judge that the appellant did
not prove that her disclosures were a contributing factor in the agency’s decision
to move her to a cubicle, it is unnecessary to determine whether the agency
proved by clear and convincing evidence that it would have taken the action at
issue in the absence of her protected activity. ID at 11-12; see Fisher v.
Department of the Interior , 2023 MSPB 11, ¶ 10. Accordingly, we decline to
consider the appellant’s other challenges to the administrative judge’s findings on
this point.16
The agency proved by clear and convincing evidence that it would have
lowered the appellant’s performance rating and suspended her in the
absence of her protected disclosures.
Regarding the first Carr factor and the appellant’s lowered performance
rating, the administrative judge found that the agency offered evidence supporting
its decision. ID at 16-17. In reaching that finding, he relied upon the explanation
of the appellant’s former supervisor and rating official as to why he rated the
appellant commendable in FY 2014, and lowered her rating in FY 2015 to fully
successful. Id. In FY 2014, the rating official rated the appellant commendable
in all performance elements, earning her a summary rating of commendable.11
IAF, Tab 4 at 23. In FY 2015, he rated her commendable in three performance
elements and fully successful in two performance elements, from which she
earned enough points for a summary rating of fully successful. IAF, Tab 5 at 26.
On review, the appellant argues that her work product was outstanding, as
shown by the seven statements from “high level directors” attesting to her
performance in FY 2015, and so the agency failed to clearly and convincingly
show that her performance was deserving of a performance rating less than
commendable. PFR File, Tab 7 at 13-14. We agree that these statements show
she performed at a high level, and her former supervisor expressly recognized her
positive contributions by rating her commendable in three categories. IAF,
Tab 43 at 62-66, Tab 70 at 191-202. Nevertheless, his decision to lower her
rating to fully successful in the areas of “Individual Leadership” and “Customer
Support” was supported by the record. He received several complaints from a
manager about the appellant’s conduct during meetings and other interactions
indicating that she was increasingly challenging to work with, overstepped her
boundaries, dominated meetings, and had difficulties working on a team. IAF,
Tab 67 at 8-12. The appellant has provided no reason for discrediting the
11 The agency rated the appellant on a five-tier scale with potential ratings, from lowest
to highest, of unacceptable/unsatisfactory, marginal/minimally satisfactory, fully
successful, commendable, and outstanding. IAF, Tab 4 at 18, 21. 17
veracity of the complaints and has set forth no persuasive argument for excluding
them from consideration in her performance appraisal.
Regarding the appellant’s 1-day suspension, the agency suspended the
appellant based on one charge of improper conduct, supported by four
specifications—one specification based on her failure to work at her assigned
workstation and three specifications of sending inappropriate and highly critical
emails concerning contractors’ nonperformance. IAF, Tab 32 at 32-37. The
administrative judge failed to consider that specification 2 was grounded in the
appellant’s protected disclosure. ID at 19-21. The specification was based on an
email the appellant sent to agency officials that criticized Phacil for its
nonperformance. IAF, Tab 32 at 32, Tab 42 at 7-18. The highly critical nature of
the appellant’s email is not unexpected and is insufficient to render her disclosure
unprotected. See Greenspan v. Department of Veterans Affairs , 464 F.3d 1297,
1305-06 (Fed. Cir. 2006) (recognizing that a disclosure is not exempt from
protection simply because it may have been presented in a critical manner).
Thus, specification 2 cannot serve as evidence in support of the agency’s burden
of establishing that it would have disciplined the appellant for reasons unrelated
to her protected disclosure. Id. at 1305 (finding that the agency failed to show by
clear and convincing evidence that it would have disciplined the appellant absent
his protected disclosures when those same disclosures served as the basis for the
discipline); see also 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). The critical question is whether the agency proved by clear and
convincing evidence that it would have suspended the appellant for 1 day based
on her misconduct as set forth in specifications 1, 3, and 4 alone. See Parikh v.
Department of Veterans Affairs , 116 M.S.P.R. 197, ¶¶ 8, 40 (2011) (assessing
whether the agency would have removed an appellant for unauthorized release
and disclosure of private and protected information based only his disclosures of18
information that were not protected whistleblowing). We find that the agency
met its burden.12
As to specification 1, the agency stated that the appellant had worked over
700 hours from an unauthorized location within the agency’s headquarters. IAF,
Tab 32 at 32. The appellant admitted that she was not working at her assigned
workstation during those hours but rather in the lobby and cafeteria of the
agency’s headquarters. PFR File, Tab 7 at 17; ID at 21. Although the appellant
argues that she was permitted to work in those other locations, PFR File, Tab 7
at 17-18, the administrative judge correctly found that the evidence supported the
agency’s contention that agency policy prohibited her from using those
unapproved alternate worksites as her primary workstation. ID at 21; IAF,
Tab 66 at 81-88 (deposition testimony of the appellant), Tab 67 at 13-14, 17-22,
Tab 68 at 5-6, 12-13. The administrative judge also found that the agency
provided evidence in support of specifications 3 and 4. ID at 21.
On review, the appellant argues that her emails were not improper, but
rather were protected disclosures of wrongdoing that she was permitted to raise
directly with the contractors. PFR File, Tab 7 at 18-20. However, as explained
above, these disclosures were not protected. The appellant’s former supervisor,
who was the deciding official, emphasized that it was not within the appellant’s
job duties to supervise contractors and that, based on her improper
communications, she risked binding the agency to unauthorized contractual
obligations or exposing it to added liabilities. IAF, Tab 68 at 7. The appellant
12 The appellant submits emails dated August to September 2016 regarding her oral
reply and an undated instant message conversation with her former supervisor about
properly recording her telework in the time and attendance system. PFR File, Tab 7
at 22-30. These documents, which are dated prior to the issuance of the initial decision,
do not appear to be in the record below, and the appellant has not explained why she
failed to submit them below. 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). Thus, we decline to
consider these documents. 19
also disputes that she admitted her emails were improper. PFR File, Tab 7
at 18-19. Regardless of the lack of admission, it is apparent, given the tone and
content of the identified emails, that her conduct was improper. IAF, Tab 31
at 70-71, Tab 42 at 22-23, 27-30; see Carr, 185 F.3d at 1326 (observing that
Federal whistleblower protections are “not meant to protect employees from their
own misconduct”); Redfearn v. Department of Labor , 58 M.S.P.R. 307, 316
(1993) (recognizing that an agency is entitled to expect its employees to conform
to certain accepted standards of civil behavior and decorum). In any event, the
deciding official stressed that the agency was particularly concerned with time
and attendance issues and that he would have suspended the appellant for 1 day
based on specification 1 alone. IAF, Tab 68 at 6. Accordingly, the agency has
submitted strong evidence showing that it would have suspended the appellant for
1 day even absent specification 2 and her other protected disclosures.
Regarding the second Carr factor, the administrative judge found that the
appellant’s former supervisor had no motive to retaliate against her. ID at 17.
On review, the appellant argues that he had a motive to retaliate against her
because he was implicated by her disclosures, given that he was the Branch Chief
overseeing the Phacil contract in 2014. PFR File, Tab 7 at 14-15.
Agency officials may have a motive to retaliate even when they are not
directly implicated by the disclosures, are not directly involved in the retaliatory
actions, or are not personally named in the disclosure because the disclosure
could reflect poorly on them in their capacity as managers and employees.
Whitmore, 680 F.3d at 1370-72; Mattil v. Department of State , 118 M.S.P.R. 662,
¶ 27 (2012). Although the appellant identifies evidence showing that Phacil was
not performing to the terms of its contract in 2014, she has not identified any
evidence in the record showing that her former supervisor was responsible for
overseeing the Phacil contract in 2014, and thereby directly or indirectly
implicated by her disclosures. PFR File, Tab 7 at 15; IAF, Tab 70 at 123. To the
extent that the Phacil disclosures may have reflected poorly on the appellant’s20
former supervisor as a manager or employee, we find that her former supervisor
had a strong motive to retaliate against her based on those disclosures. See
Robinson v. Department of Veterans Affairs , 923 F.3d 1004, 1019 (Fed. Cir.
2019) (considering under the second Carr factor whether there was a professional
motive to retaliate); Wilson v. Department of Veterans Affairs , 2022 MSPB 7,
¶ 65 (addressing the second Carr factor consistent with Whitmore to find that the
appellant’s disclosures generally put higher-level management officials in a
critical light by disclosing problems for which they were responsible); Chavez v.
Department of Veterans Affairs , 120 M.S.P.R. 285, ¶¶ 32-33 (2013) (finding that
an appellant’s disclosures of subordinate employees’ wrongdoing created a
motive to retaliate on the part of their first- and second -level supervisors).
The appellant does not argue that the Chief Investigator of WRD—the only
official to whom she disclosed potential violations of the FLSA—had any motive
to retaliate against her based on her disclosure. There is also no evidence in the
record that the Chief Investigator influenced any of the officials responsible for
taking any of the challenged personnel actions. However, the appellant does
suggest that her former supervisor was implicated in the disclosure because he
was aware that she was working excessive hours and permitted or encouraged her
to do so. IAF, Tab 70 at 15-16, 30-31. Accordingly, to the extent that the
appellant’s disclosure of potential FLSA violations reflected poorly on her former
supervisor, we find that the supervisor had a strong motive to retaliate. We
modify the initial decision in this regard.
Further, the appellant argues that her former supervisor sent an email on
April 14, 2016, showing that his decision to take “adverse actions” against the
appellant was motivated by her protected disclosures. PFR File, Tab 7 at 15. In
the email, he commented on a string of emails forwarded to him by a human
resources employee from the appellant complaining about another supervisor’s
decision to move her to another shared office. IAF, Tab 70 at 231-42. The
appellant does not allege that she exhausted that disclosure with OSC; therefore,21
the Board lacks jurisdiction to consider it in connection with the instant IRA
appeal. Mason v. Department of Homeland Security , 116 M.S.P.R. 135, ¶ 8
(2011) (explaining that the Board may only consider those disclosures of
information and personnel actions that the appellant raised before OSC). There is
no indication that her former supervisor was discussing or otherwise referencing
the appellant’s protected disclosures. Accordingly, this email is not a basis for
finding that her former supervisor had a motive to retaliate against her.
Finally, the administrative judge weighed the third Carr factor in the
agency’s favor. ID at 17, 21. As to her FY 2015 performance evaluation, the
appellant does not dispute the administrative judge’s findings that her former
supervisor issued fully successful ratings to non-whistleblowers for FY 2015. ID
at 16-17. As to her 1-day suspension, she argues that the comparators that the
agency offered were not similarly situated because they engaged in more severe
misconduct. PFR File, Tab 7 at 20-21. The U.S. Court of Appeals for the Federal
Circuit clarified that employees may be similarly situated even if there are
differences in the degrees of misconduct, but that such differences “should be
accounted for” in “arriv[ing] at a well reasoned conclusion.” Whitmore, 680 F.3d
at 1373-74. With regard to the lowered performance rating, the agency offered
evidence showing that the appellant’s former supervisor rated eight of his twenty
employees fully successful, five of whom were also GS-13 employees. ID at 17;
IAF, Tab 68 at 9.
Thus, we agree with the administrative judge that the appellant’s former
supervisor rated non-whistleblowers the same as the appellant under similar
circumstances. ID at 17. The agency also submitted a spreadsheet listing over
180 instances in which the agency proposed discipline for employees’ time and
attendance-related misconduct between 2013 and 2015. IAF, Tab 68 at 24, 27-45.
Further, the agency submitted a declaration from the Chief Investigator of the
WRD, in which he asserted under penalty of perjury that the agency “considered
employees working from an unauthorized location to be absent without leave.”22
IAF, Tab 68 at 23. The agency also identified two employees that received more
severe punishment for their time and attendance abuse—primarily for claiming
time not worked. IAF, Tab 31 at 15-16. The evidence shows that the agency
consistently punishes employees for time and attendance violations and issues
proportionate punishment relative to the severity of the misconduct, regardless of
their whistleblowing activities or lack thereof.
When balancing the three Carr factors, we find that the agency met its
burden of proving by clear and convincing evidence that it would have lowered
the appellant’s performance rating and suspended her in the absence of her
protected disclosures, even considering the presence of a strong retaliatory
motive, because of the strength of the agency’s evidence in support of its
decisions and the comparator evidence presented. Accordingly, we affirm the
initial decision as modified.
NOTICE OF APPEAL RIGHTS13
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
13 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.23
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 24
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 25
If you submit a request for review to the EEOC by regular U.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.14 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
14 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 26
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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.27 | Chu_PeggyDC-1221-17-0172-W-1__Final_Order.pdf | 2024-04-26 | PEGGY CHU v. DEPARTMENT OF COMMERCE, MSPB Docket No. DC-1221-17-0172-W-1, April 26, 2024 | DC-1221-17-0172-W-1 | NP |
1,629 | https://www.mspb.gov/decisions/nonprecedential/Armstrong_JosephDC-0752-22-0621-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH ARMSTRONG,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
DC-0752-22-0621-I-1
DATE: April 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joseph Armstrong , Rochester, New York, pro se.
Beth Leech , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1The appellant, a WG-10 Electrician, has filed a petition for review of the
initial decision that sustained his chapter 75 removal based on charges of failure
to follow supervisory instructions and inappropriate statements. On review, the
appellant maintains, among other things, that he was justified in failing to follow
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
supervisory instructions because he was being harassed.2 Petition for Review
(PFR) File, Tab 4 at 5; Initial Appeal File (IAF), Tab 5 at 67, 75, 86-87.
¶2Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the supervisor’s instructions were proper and were not outweighed by
any legitimate, countervailing interest in opposing harassment, we AFFIRM the
initial decision.
The appellant’s arguments that he was justified in failing to follow supervisory
instructions are not persuasive.
¶3The agency’s failure to follow instructions charge included two
specifications. IAF, Tab 25, Initial Decision (ID) at 7-11; IAF, Tab 5 at 75. The
first specification concerned the appellant’s failure to follow his supervisor’s
instructions to stop recording him with his personal cell phone while the two of
2 The appellant appears to suggest, for the first time in his petition for review, that the
agency also retaliated against him for his report to the Department of Homeland
Security that his supervisor broke into his workspace. PFR File, Tab 1 at 6. To the
extent that the appellant raises a claim of whistleblower reprisal, or reprisal based on
otherwise protected, non-EEO activity, he has not shown that his argument is based on
new and material evidence not previously available despite his due diligence. Thus, we
decline to consider this new argument on review. See Pridgen v. Office of Management
and Budget, 2022 MSPB 31, ¶ 34 n.10.2
them were performing a routine repair job. IAF, Tab 5 at 71-72, 75. The
appellant argued that he continued recording his supervisor despite the
instructions because he believed his supervisor was harassing him. Id. at 67. The
second specification concerned misconduct the following day when the appellant
failed to follow his supervisor’s instructions to accompany him to repair a light.
Id. at 75. The appellant argued that it had been “imperative” that he speak with
his second-level supervisor instead of accompanying his supervisor to the repair
job because his supervisor was speaking to him in a derogatory way. Id.
at 75, 86-87; IAF, Tab 23-1, Hearing Recording (HR) (testimony of the
appellant). On review, the appellant maintains that he was justified in failing to
follow his supervisor’s instructions. PFR File, Tab 4 at 5.
¶4To prove a charge of failure to follow instructions, an agency must establish
that: (1) the employee was given proper instructions, and (2) the employee failed
to follow the instructions. Archerda v. Department of Defense , 121 M.S.P.R. 314,
¶ 16 (2014) (citing Hamilton v. U.S. Postal Service , 71 M.S.P.R. 547, 556
(1996)). The administrative judge, citing Smith v. Department of Transportation ,
106 M.S.P.R. 59, ¶ 17 (2007), noted that an employee’s conduct is not immune
from discipline merely because it touches upon concerns of discrimination. ID
at 9. Concerning the first specification, he found that the appellant’s harassment
concerns did not excuse or justify his decisions to ignore and refuse to follow his
supervisor’s instructions to stop recording the interaction. Id. Concerning the
second specification, he stated that, even if the appellant believed he was being
spoken to in a derogatory way, this did not excuse his failure to follow his
supervisor’s instructions. ID at 11.
¶5We modify the initial decision to provide clarification of this issue. The
Board has recognized that when an employee’s conduct underlying discipline
involves opposition to discrimination, the Board “must balance the purpose of the
statutory provisions affording protection from discrimination against Congress’s
equally manifest desire not to tie the hands of employers in the objective control3
of personnel.” Bonanova v. Department of Education , 49 M.S.P.R. 294, 300
(1991); see generally 42 U.S.C. § 2000e-3(a) (protecting an employee’s right to
oppose discrimination). Thus, we must consider whether the appellant had a
legitimate, countervailing interest in opposing harassment that outweighed the
supervisor’s otherwise proper instructions to complete the job assignments.
¶6We answer this question in the negative based on the administrative judge’s
thorough and well-reasoned credibility findings. The administrative judge found
credible the accounts of the appellant’s supervisor as well as the appellant’s
coworker, who witnessed the interaction related to the agency’s first
specification. ID at 7; IAF, Tab 11 at 79, 81. The appellant’s coworker explicitly
stated that the supervisor “did not threaten or pick on [the appellant] at all.” IAF,
Tab 5 at 81. The administrative judge also credited the supervisor’s account over
the appellant’s account as to the second specification. ID at 12-16. He accurately
noted, among other things, that the appellant was unable to identify at the hearing
any specific “derogatory” things that his supervisor had said that he allegedly
sought to oppose. ID at 15; HR (testimony of the appellant). We find no
sufficiently sound reason for disturbing these credibility findings, which are
entitled to deference. See Haebe v. Department of Justice , 288 F.3d 1288, 1301
(Fed. Cir. 2002). Thus, because the appellant’s allegations of harassment were
not credible, we conclude that the agency’s interest in having the appellant
complete the assigned job duties outweighed the appellant’s desire to oppose what
he allegedly perceived as harassment.3 Accordingly, we find that the supervisory
instructions were proper and affirm the administrative judge’s finding sustaining
both specifications of this charge.
¶7Accordingly, we affirm the initial decision as modified.
3 In light of this finding, we need not determine in what circumstances an employee’s
right to oppose harassment would outweigh an agency’s instruction to complete a job
assignment.4
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s7
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Armstrong_JosephDC-0752-22-0621-I-1 Final Order.pdf | 2024-04-26 | JOSEPH ARMSTRONG v. DEPARTMENT OF COMMERCE, MSPB Docket No. DC-0752-22-0621-I-1, April 26, 2024 | DC-0752-22-0621-I-1 | NP |
1,630 | https://www.mspb.gov/decisions/nonprecedential/Roberts_Ian_SF-0752-22-0241-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
IAN ROBERTS,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
SF-0752-22-0241-I-1
DATE: April 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
John J. Rigby , Esquire, Arlington, Virginia, for the appellant.
Catherine Kellogg , Esquire, and Glenna Lusk , Esquire, Fort Meade,
Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal for failure to meet a condition of employment based on the
revocation of his security clearance.2 On petition for review, the appellant argues
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 Although 5 U.S.C. § 7511(b)(8) typically excludes individuals employed by the
appellant’s employing agency, the National Security Agency, from the coverage of
chapter 75, because the appellant is a preference-eligible employee who was employed
that the agency violated his due process rights and committed harmful error by
failing to identify the true deciding official, and the administrative judge abused
his discretion by denying the appellant’s request for a dismissal without prejudice
or a case suspension.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).
in the excepted service for more than 1 year of continuous service, the Board has
jurisdiction over his removal. 5 U.S.C. § 7511(a)(1)(B), (b)(8).
3 The appellant argues on review that the administrative judge abused his discretion by
denying his request for a dismissal without prejudice or case suspension to conduct
depositions. Petition for Review File, Tab 1 at 8. It is well established that an
administrative judge has wide discretion to control the proceedings of an appeal.
Sanders v. Social Security Administration , 114 M.S.P.R. 487, ¶ 10 (2010); 5 C.F.R.
§ 1201.41. Further, the Board will not reverse an administrative judge’s rulings on
discovery matters absent an abuse of discretion . Wagner v. Environmental Protection
Agency, 54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d 1236 (Fed. Cir. 1993) (Table).
We discern no error in the administrative judge’s ruling, especially given that the
parties had over 2 months to conduct discovery, and the appellant has offered no
compelling reason as to why depositions could not have been taken during that time.
Initial Appeal File, Tab 2, Tab 3 at 2. Furthermore, the appellant has set forth no
evidence that, had he taken depositions, it would have resulted in a different outcome in
this appeal. Thus, the appellant has failed to establish his abuse of discretion claim. 2
On review, the appellant renews his argument that the agency violated his
due process rights because the agency never identified the actual deciding
official, claiming that the agency identified the Deputy Chief of Employee
Relations (ER) as the deciding official in its discovery responses, but during the
hearing, the Deputy Chief of ER testified that she was not the deciding official,
and her role in his removal from Federal service was purely ministerial. Petition
for Review File, Tab 1 at 5-7. The appellant mischaracterizes the agency’s
discovery responses. The agency identified the Deputy Chief of ER in response
to the appellant’s interrogatory requesting that it identify any individual who was
“involved in any way” in the appellant’s removal. Initial Appeal File, Tab 16
at 10. The agency did not state that the Deputy Chief of ER was the deciding
official. Id. In fact, in the response to the appellant’s next interrogatory asking
the agency to identify any individuals with facts relevant to this appeal, the
agency identified the Chairperson of the Access Appeals Panel, stating that she
has “[k]nowledge of the Access Appeals Panel and the final decision held for [the
appellant].” Id. Thus, contrary to the appellant’s claims, the agency identified
the Access Appeals Panel as the decision maker. Therefore, as correctly found by
the administrative judge, the appellant had a meaningful opportunity to invoke the
discretion of a decision maker, because the appellant had the opportunity to
appeal the revocation of his security clearance, as well as his proposed removal,
to the Access Appeals Panel, which then issued a final decision on the agency’s
actions. Initial Decision at 15. Thus, the appellant has failed to establish that the
agency violated his due process rights.
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
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular4
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 5
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of6
competent jurisdiction.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. 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 | Roberts_Ian_SF-0752-22-0241-I-1__Final_Order.pdf | 2024-04-26 | IAN ROBERTS v. DEPARTMENT OF DEFENSE, MSPB Docket No. SF-0752-22-0241-I-1, April 26, 2024 | SF-0752-22-0241-I-1 | NP |
1,631 | https://www.mspb.gov/decisions/nonprecedential/Shank_Vanessa_J_CH-0432-17-0451-I-2__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VANESSA J. SHANK,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
CH-0432-17-0451-I-2
DATE: April 26, 2024
THIS ORDER IS NONPRECEDENTIAL1
C. Mike Moulton , Esquire, Elizabethtown, Kentucky, for the appellant.
Glenn Houston Parrish , Esquire, Fort Knox, Kentucky, 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 for unacceptable performance under chapter 43. For the
reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the appeal to the regional office for
further adjudication consistent with Santos v. National Aeronautics & Space
Administration, 990 F.3d 1355 (Fed. Cir. 2021), and the guidance below.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
The appellant most recently held the position of Physician at the agency’s
Ireland Army Hospital in Fort Knox, Kentucky. Shank v. Department of the
Army, MSPB Docket No. CH-0432-17-0451-I-1, Initial Appeal File (IAF), Tab 1
at 1, 12; Shank v. Department of the Army , MSPB Docket No. CH -0432-17-0451-
I-2, Refiled Appeal File (RAF), Tab 25, Initial Decision (ID) at 1.2 In October
2016, the agency rated her performance as failing. IAF, Tab 4 at 344-49. The
associated performance appraisal explained that while she had largely met or
exceeded other standards, the appellant consistently failed to meet one
performance objective. Id. at 345-46. Specifically, the appellant failed to
“[c]omplete all charting within 72 hrs of visit (codes correctly in accordance with
ICD-10).” Id. at 346. As further explained in the initial decision, ICD-10 is an
industry-wide diagnosis coding system. ID at 2-3; RAF, Tab 27, Hearing
Transcript (HT1) at 34 (testimony of appellant’s supervisor). The associated
performance objective was, in effect, both a timeliness and quality standard for
the documentation of a patient visit. The appellant was not responsible for
inputting a particular code; she was responsible for timely providing adequate
information for purposes of follow-up care and reimbursement from the likes of
Medicare or Tricare. ID at 2-3; HT1 at 13-19 (testimony of the appellant’s
supervisor).
Because of her failing performance rating, the agency placed the appellant
on a performance improvement plan (PIP). IAF, Tab 4 at 351-52. The PIP
singled out the aforementioned performance objective and recognized that the
appellant had a backlog of incomplete/unclosed patient charts totaling 239. Id.
at 351. In order to be minimally successful, the PIP indicated that the appellant
was required to do two things—adhere to the charting requirement and eliminate
her charting backlog.3 Id. Rather than shrink over the next 5 weeks, the
appellant’s backlog grew to a total of 620. Id. at 351, 356-61. Nevertheless, in
2 There are two docket numbers associated with this one appeal because the
administrative judge dismissed the appeal without prejudice for automatic refiling at a
later date to accommodate discovery delays. IAF, Tab 31 at 1-3.
3
the final days of her PIP, the appellant closed all of those open encounters,
eliminating her backlog of incomplete charts. Id. at 362, 366.
The agency initially informed the appellant that she had successfully
completed the PIP.4 Id. However, in doing so, the agency noted that it would
conduct a peer review to determine the appropriateness of her work. Id. at 366.
Following that peer review, the agency reversed course. Citing extensive
deficiencies in her charting for patient encounters, the agency determined that the
appellant had not successfully completed the PIP or achieved the required
improvements. E.g., id. at 372-73. To illustrate, a physician found that of
60 randomly chosen charts, half contained poor documentation of diagnosis and
treatment, id. at 400, and a nonphysician found that more than two-thirds of the
600+ charts reviewed did not contain adequate information for purposes of coding
and reimbursement, id. at 380-81.
In February 2017, the agency proposed the appellant’s removal for
unacceptable performance. IAF, Tab 1 at 12-15. In short, the agency alleged that
the appellant’s performance was unacceptable in the lone objective identified in
the PIP—completion of all charting within 72 hours of a patient visit in
accordance with ICD-10. Id. at 12-13. The agency later amended the proposal to
3 The specific language of the PIP described the required improvement as closing
patient charts within 72 hours and completing all delinquent charts within the PIP
period, but another bullet point provided as follows: “[f]ailure to close charts in
72 hours.” IAF, Tab 4 at 351. As the administrative judge recognized, it is apparent
that this last bullet point was a typographical error or some other mistaken inclusion in
the required improvement portion of the appellant’s PIP. ID at 10 n.9.
4 As the administrative judge also recognized, the date on the memorandum noting that
the appellant closed out all of her patient encounters before the PIP’s end contains a
typographical error, seemingly identifying both the incorrect day and year. See ID at 9
n.8; compare IAF, Tab 4 at 351 (original PIP documentation, indicating that the PIP
would begin on October 31, 2016, and end on December 19, 2016), 361 (memo dated
December 14, 2016, indicating that the appellant’s PIP had not yet ended and the
appellant still had 620 open encounters), with id. at 362 (memo dated December 12,
2015, indicating that the appellant’s PIP had ended and she had no open encounters
remaining), 366 (PIP final review certification, dated December 22, 2016). These
discrepancies do not warrant a different outcome.
4
account for additional documentation and a change in the deciding official. Id.
at 18-21. After the appellant responded, IAF, Tabs 14-18, 20, the deciding
official sustained the appellant’s removal, which became effective June 13, 2017,
IAF, Tab 1 at 23-26. This appeal followed. IAF, Tab 1.
The administrative judge developed the record and held the requested
hearing before sustaining the action. ID at 1-2. He found that the agency met its
burden of proving the elements required in a chapter 43 performance case such as
this. ID at 4-17. He further found that the appellant failed to prove the
affirmative defenses she raised—disability discrimination, sex discrimination,
reprisal for filing grievances, and harmful procedural error. ID at 17-32. The
appellant has filed a petition for review. Shank v. Department of the Army ,
MSPB Docket No. CH-0432-17-0451-I-2, Petition for Review (PFR) File, Tab 1.
The agency has filed a response and the appellant has replied. PFR File,
Tabs 3-4.
The administrative judge properly found that the agency proved its chapter 43
removal action under pre- Santos law.
At the time the initial decision was issued, the Board’s case law stated that,
to prevail in an appeal of a performance-based removal under chapter 43, the
agency must establish by substantial evidence5 that: (1) the agency communicated
to the appellant the performance standards and critical elements of her position;
(2) the appellant’s performance standards are valid under 5 U.S.C. § 4302(c)(1);
(3) the agency warned the appellant of the inadequacies of her performance
during the appraisal period and gave her an adequate opportunity to improve; and
(4) after an adequate improvement period, the appellant’s performance remained
unacceptable in at least one critical element. Towne v. Department of the Air
Force, 120 M.S.P.R. 239, ¶ 6 (2013).6 On review, the appellant presents
arguments that implicate the first, second, and fourth elements of the agency’s
5 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
burden, so we affirm the administrative judge’s findings regarding the remaining
elements and address the others below. PFR File, Tab 1 at 13-22.
Communication of standards
Concerning the first element of the agency’s burden—that it communicated
the performance standards and critical elements—the appellant argues that while
the agency did communicate performance standards to her, including the charting
requirements, it never identified the charting requirement or any other as a
critical element. Id. at 13-16. Among other things, she notes that the term
“critical element” is not included in her performance evaluations or other
documents, and asserts that she had never heard of the term until after the
conclusion of her PIP. Id. at 13-14. We are not persuaded.
A June 2016 performance evaluation plan, signed by the appellant, is
devoid of the term “critical element” but lists her “major performance
objectives/individual performance standards.” IAF, Tab 4 at 336-37. The first of
several items listed is to “[c]omplete all charting within 72 hrs of visit (codes
correctly in accordance with ICD-10).” Id. at 336. The accompanying materials
indicate that if an individual fails to do so at least 95% of the time, their
performance would be failing. Id. at 338. In a separate memorandum, similarly
signed by the appellant on the same date, the agency indicated that the appellant
was not meeting the charting standard. Id. at 340. The memorandum described
how the appellant acknowledged understanding the standard, but had fallen
behind, “plac[ing] patients’ health and safety at risk.” Id. It directed the
appellant to catch up on her charting backlog and adhere to the 72-hour rule going
forward, otherwise she may be subject to removal. Id.
In October 2016, the agency completed the appellant’s performance
evaluation. Id. at 344-47. That evaluation rated her overall performance as
6 Additionally, we note that the agency also has the burden of proving that the Office of
Personnel Management has approved its performance appraisal system and any
significant changes thereto, but only if the appellant raises such a challenge, which does
not appear to have occurred in this appeal. See Towne, 120 M.S.P.R. 239, ¶ 6 n.5.
6
unsuccessful, describing how she had consistently failed to meet the charting
standard, and indicating that she would be placed on a PIP for the same. Id.
at 345-46. This document was also signed by the appellant, as was the PIP that
followed. Id. at 344-47, 351-52. It appears that the PIP was the first document
that explicitly used the term, “critical element,” albeit without explicitly tying the
term to the charting standard. Id. at 351. The PIP once again identified the
appellant’s performance objective as “[c]omplet[ing] all charting within 72 hours
of visit (codes correctly in accordance with (ICD-10)).” Id. at 351-52. It, too,
warned that if she failed to achieve the results expected and required, the
appellant may be subject to removal. Id. at 352.
While the appellant would have us find that the repeated warnings we just
described were insufficient in the absence of the agency explicitly labeling the
charting standard with the term “critical element,” she has failed to identify any
such requirement and we are aware of none. See 5 C.F.R. § 430.203 (defining a
critical element as a work assignment or responsibility of such importance that
unacceptable performance on the element would result in a determination that an
employee’s overall performance is unacceptable). In fact, we have previously
approved of the agency’s use of the term “objective” in lieu of “critical element.”
Greer v. Department of the Army , 79 M.S.P.R. 477, 480 n.1 (1998) (recognizing
that the Department of the Army used the term “objectives” instead of “critical
elements” on an employee’s written performance standards and describing the
two terms as equivalent). We therefore find no merit to the appellant’s arguments
and instead agree with the administrative judge. ID at 5-7. The charting
requirement was a critical element and the agency met its burden of proving that
it communicated the same to the appellant.
Validity of standards
In order to be valid, an appellant’s performance standards must be
reasonable, realistic, attainable, reasonably objective, and tailored to the specific
requirements of the position. Towne, 120 M.S.P.R. 239, ¶¶ 21, 23. To the extent
7
that the appellant suggests that the administrative judge erred in concluding that
the agency’s performance standards were valid, PFR File, Tab 1 at 17-21, we find
her arguments unavailing.
The appellant first asserts that the agency has treated its charting standard
as a guideline, rather than a stringent requirement, as demonstrated by physicians
routinely exceeding the 72-hour allotment for completing a patient’s chart. Id.
at 17-18 (citing IAF, Tab 4 at 419-998). Setting aside her assumption that
inconsistent enforcement of a performance standard could invalidate the standard
or otherwise render her removal improper, the record does not reflect the
inconsistency the appellant suggests. As we previously recognized, the agency’s
performance standard did not require absolute adherence to the 72-hour rule; it
instead required adherence to the rule for at least 95% of patient encounters.
Supra, ¶ 9. In addition, while the record does show that others failed to meet the
72-hour standard to varying degrees, it further shows that the appellant’s failures
far exceeded that of all other providers. IAF, Tab 4 at 419-998. In fact, the
backlog of the one particular provider the appellant referred us to never exceeded
100 during the documented period, id. at 447-48, while the appellant’s routinely
exceeded 200, eventually peaking at more than 600, id. at 492, 521, 712, 741,
765, 791, 819, 846, 874, 900, 927, 959. Moreover, it is undisputed that the
provider to which she referred was also placed on a PIP for failing to meet the
charting requirements. RAF, Tab 6 at 22, 133-34. Accordingly, we are not
persuaded by the appellant’s arguments of inconsistency.
The appellant separately argues that the charting standard at issue in this
appeal is invalid because it is too vague and too subjective. PFR File, Tab 1
at 17-21. We disagree. 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 the standard. Henderson v. National
Aeronautics & Space Administration , 116 M.S.P.R. 96, ¶ 23 (2011). Instead, the
Board has explained that performance standards must be sufficiently precise and
8
specific as to invoke a general consensus as to their meaning and content and
provide firm benchmarks toward which the employee may aim her performance.
Id.
Once more, the standard at issue required that the appellant complete
charting within 72 hours of a patient’s visit, in accordance with ICD-10. While
the appellant has alluded to the mechanics of ICD-10 and the associated coding,
which was completed by a third party, as if those mechanics create ambiguity in
the performance standard or improperly held her responsible for someone else’s
actions, PFR File, Tab 1 at 17, 19-20, we are not persuaded. The administrative
judge found that the performance standard simply required that the appellant
timely complete a patient’s chart by providing adequate information, i.e., the
information necessary for both follow-up treatment and reimbursement by the
likes of Medicare or Tricare. ID at 2-3; see, e.g., HT1 at 13-19 (testimony of the
appellant’s supervisor). The appellant has failed to identify any basis for us to
conclude otherwise.
The appellant also asserts that because she was receiving feedback during
the PIP, and none of that feedback reflected negatively about the quality of her
charting, subsequent allegations of deficiencies in that regard demonstrate that
the standard is too subjective. PFR File, Tab 1 at 19-21. Again, we are not
persuaded. In essence, the appellant would have us fault agency officials for not
recognizing deficiencies in the substance of her charting during the PIP when it
was the appellant who effectively prevented the agency from doing so. As we
previously discussed, the appellant’s backlog of incomplete charts ballooned from
more than 200 at the start of the PIP to more than 600 with just a few days
remaining in the PIP, before the appellant eliminated her entire backlog at the
final hour. These actions insulated the appellant from complete reviews of those
600 cases during the PIP, leaving the agency unable to review them prior to the
PIP’s end. Accordingly, any absence in criticism about the substance of her
9
charting during the PIP appears to be attributable to the appellant, not excessively
subjective performance standards.
Performance remained unacceptable
As previously discussed, the agency initially informed the appellant that
she successfully completed the PIP by closing all open encounters before the
PIP’s end. IAF, Tab 4 at 362, 366. But in conveying that conclusion, the agency
noted that the appellant had not adhered to the schedule for eliminating her
backlog. Id. at 362. The agency also indicated that a peer review would follow
to verify the appropriateness of the appellant’s charting. Id. at 366. After that
peer review, the agency concluded that the appellant had failed the PIP. E.g., id.
at 372-73, 380-81, 400-01.
On review, the appellant points to a contradiction in the letter indicating
that she failed the PIP. PFR File, Tab 1 at 18. The first paragraph of the letter
states that the appellant failed the PIP, while the second paragraph states that she
successfully completed the PIP. IAF, Tab 4 at 373. The administrative judge
credited the agency’s explanation for that latter paragraph, i.e., that it was
inadvertently left in the second memoranda while cutting and pasting from the
first. ID at 14 n.10 (referencing HT1 at 105-06 (testimony of appellant’s
supervisor); compare IAF, Tab 4 at 362 (initial success letter, explaining how the
appellant had closed all open encounters by the PIP’s end), with id. at 373
(subsequent fail letter, including the mirror image paragraph). While the
appellant now argues that this explanation was not credible, PFR File, Tab 1
at 18-19, she has not presented any basis for us to disturb the administrative
judge’s conclusion to the contrary, see Haebe v. Department of Justice , 288 F.3d
1288, 1300-01 (Fed. Cir. 2002) (the Board will defer to the credibility
determinations of an administrative judge when they are based, explicitly or
implicitly, upon the observation of the demeanor of witnesses testifying at a
hearing because the administrative judge is in the best position to observe the
10
demeanor of the witnesses and determine which witnesses were testifying
credibly).
In concert with her bare assertion that the agency’s explanation for the
aforementioned contradiction is not credible, the appellant seems to suggest that
she had successfully completed at least a portion of the PIP by adhering to the
agency’s timeliness standard of closing charts within 72 hours of a patient’s visit.
PFR File, Tab 1 at 18. However, she has not identified any evidence of the same,
and the assertion cannot be reconciled with the well-documented ballooning of
her backlog during the PIP. See, e.g., IAF, Tab 4 at 351, 356-61, 948-59; HT1
at 104-05 (testimony of appellant’s supervisor). Moreover, the appellant
ultimately acknowledged that “the quality was poor” on the large number of
patient charts that she closed at the final hour of her PIP. IAF, Tab 14 at 5; RAF,
Tab 28, Hearing Transcript (HT2) at 329 (testimony of the appellant).
Accordingly, to the extent that the appellant disputes the administrative judge’s
conclusion that her performance remained unacceptable, we are not persuaded.
The record shows that the appellant failed to meet the agency’s standards, both in
terms of timeliness and quality. E.g., IAF, Tab 4 at 380-81, 400, 948-59.
Remand is required in light of Santos .
During the pendency of the petition for review in this case, the U.S. Court
of Appeals for the Federal Circuit held in Santos, 990 F.3d at 1360-61, 1363, that,
in addition to the elements of the agency’s case set forth above, the agency must
also “justify the institution of the PIP” by proving by “substantial evidence that
the employee’s performance was unacceptable . . . before 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. Accordingly, we remand the appeal to give the parties the
opportunity to present argument and additional evidence on whether the
appellant’s performance during the period leading up to the PIP was unacceptable
in one or more critical elements. See id., ¶¶ 15-17. On remand, the
11
administrative judge shall accept argument and evidence on this issue, and shall
hold a supplemental hearing if appropriate. Id., ¶ 17.
The appellant has not shown that the administrative judge abused his discretion in
ruling on discovery matters.
Below, the appellant submitted a motion to compel the production of
documents associated with a risk management assessment involving the
appellant’s treatment of a particular patient. IAF, Tab 23 at 4-10, 17. Although
her removal was not based on the assessment or treatment of any particular
patient, the appellant argued that the documents associated with the risk
management assessment were relevant, particularly because the two actions had
some overlap in time and she suspected that the agency was singling her out for
the assessment to exhibit discriminatory animus. Id. at 4-9. The agency objected
based on relevancy, but also on the basis that the documents were protected under
10 U.S.C. § 1102. IAF, Tab 23 at 17, Tab 24 at 4-11. That statute deems certain
medical quality assurance records confidential and privileged, authorizing
disclosure only in specifically delineated circumstances. 10 U.S.C. § 1102. The
administrative judge found that the records at issue were privileged under
section 1102 and, therefore, denied the appellant’s motion to compel. IAF,
Tab 26. The administrative judge did not base his ruling on the relevancy of the
documents or reach a conclusion concerning the same.
On review, the appellant argues that the denial of her motion to compel was
prejudicial to her case. PFR File, Tab 1 at 22-23. She refers back to the
argument from her motion to compel, while further describing how the requested
documents may have been relevant to the agency’s motive, her health, and her job
performance. Id. In other words, while the appellant’s petition reiterates why
she believes the requested records were relevant to her case, her petition fails to
address the administrative judge’s rationale for denying her motion to compel,
12
i.e., the applicability of 10 U.S.C. § 1102.7 Accordingly, we discern no basis for
concluding that the administrative judge abused his discretion and we will not
address the matter further. Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365,
¶ 16 (2016) (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); Weaver v. Department of the Navy , 2 M.S.P.R. 129, 133 (1980)
(finding that, before the Board will undertake a complete review of the record, the
petitioning party must explain why the challenged factual determination is
incorrect and identify the specific evidence in the record which demonstrates the
error).
The appellant failed to establish her affirmative defense of disability
discrimination based on a failure to accommodate.
As previously mentioned, the appellant raised a number of affirmative
defenses below, but the administrative judge found that she did not prove any of
them. ID at 17-32. On review, the appellant has limited her substantive
arguments to ones concerning disability discrimination, so this decision will be
similarly focused.8
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). With
7 In its response to the appellant’s petition for review, the agency argued that the
administrative judge properly applied the privilege at issue. PFR File, Tab 3 at 13-19.
Having failed to do so in her petition, the appellant then argued otherwise in her reply
brief. PFR File, Tab 4 at 11-14. We need not consider those arguments because the
Board’s regulations preclude a party from raising new allegations of error in their reply.
5 C.F.R. § 1201.114(a)(4). The agency’s response did not open the door for the
appellant to raise brand new arguments that she failed to raise in her petition for review.
8 The appellant also referred to reprisal, summarily asserting that she met her associated
burden of proof. PFR File, Tab 1 at 23, 25. However, in the absence of any substantive
argument, we will not address that claim further. Weaver, 2 M.S.P.R. at 133.
13
exceptions not applicable here, the term “qualified” means that the individual
satisfies the requisite skill, experience, education and other job-related
requirements of the employment position the individual holds or desires and, with
or without reasonable accommodation, can perform the essential functions of such
position.9 Id.; 29 C.F.R. § 1630.2(m). Reasonable accommodation includes
modifications to the manner in which a position is customarily performed in order
to enable a qualified individual with a disability to perform the essential job
functions, or reassigning the employee to a vacant position whose duties the
employee can perform. Clemens, 120 M.S.P.R. 616, ¶ 10.
The administrative judge assumed that the appellant had a disability for the
purposes of his decision, but found that the appellant’s failure to accommodate
claim failed because the appellant never articulated a reasonable accommodation
that would permit her to perform the essential functions of her position. ID
at 18-22. Among other things, he noted that after the appellant’s attorney
included a vague reference to the Americans with Disabilities Act (ADA) in
response to the proposed removal, the agency responded by asking if the
appellant had a disability and needed a reasonable accommodation, but the
appellant failed to respond. ID at 20-21 (citing IAF, Tab 4 at 996; RAF, Tab 9
at 66).
On review, the appellant argues that while she may not have ever used the
term “accommodation” in discussions with the agency, the record showed that she
did request help, triggering the agency’s obligation to engage in the interactive
process. PFR File, Tab 1 at 23-24 (referencing HT2 (testimony of appellant’s
union representative)); see Clemens, 120 M.S.P.R. 616, ¶ 12 (recognizing that an
employee only has a general responsibility to inform her employer that she needs
accommodation for a medical condition, after which the employer must engage in
the interactive process to determine an appropriate accommodation). However,
9 The initial decision contains a typographical error regarding the pertinent regulations.
ID at 18 (citing 5 C.F.R. §§ 1630.2, 1630.9); see 29 C.F.R. §§ 1630.2, 1630.9.
14
even if we agreed that the appellant met her obligation to trigger the interactive
process, she has failed to explain how the agency failed to do its part. Again,
during the response period for her proposed removal, the agency specifically
asked if the appellant had a disability and needed an associated reasonable
accommodation. IAF, Tab 4 at 996. In doing so, the agency acknowledged that
the appellant’s response could result in her retention, rather than removal, via
reasonable accommodation. Id. Yet it seems that the appellant provided no
response.10 Accordingly, we agree with the administrative judge; the appellant’s
failure to accommodate claim is unavailing. See Miller v. Department of the
Army, 121 M.S.P.R. 189, ¶ 15 (2014) (recognizing that both parties must engage
in the interactive process in good faith); Simpson v. U.S. Postal Service ,
113 M.S.P.R. 346, ¶ 18 (2010) (finding that an employee did not prove the denial
of reasonable accommodation where he was unresponsive to the agency’s good
faith attempts to engage in the interactive process).
On remand, the administrative judge shall make new findings as to the appellant’s
disparate treatment disability discrimination claims.
After the administrative judge issued the initial decision, the Board
clarified the standards for a disability discrimination disparate treatment claim.
Specifically, we recognized that such claims are subject to a motivating factor
standard. Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 40.
On remand, the administrative judge shall reconsider the appellant’s disparate
treatment disability discrimination claim under the recently-clarified legal
standard along with any additional evidence adduced.
10 In her reply, the appellant suggests that the agency erred by asking her attorney about
any potential disability or need for accommodation, rather than asking the appellant
herself. PFR File, Tab 4 at 14. Yet it was the appellant’s attorney who implicated the
Rehabilitation Act and advised, “[s]hould anyone wish to discuss any issue involved
with [the appellant], please do not hesitate to contact me. I ask that [the appellant’s
representation] by counsel be accorded the appropriate and required deference.” RAF,
Tab 9 at 66.
15
ORDER
For the reasons discussed above, we REMAND this appeal to the Central
Regional Office for further adjudication in accordance with this Remand Order.
On remand, the judge shall accept argument and evidence and make findings as to
whether the agency showed that the appellant’s performance was unacceptable
prior to the PIP. The administrative judge shall also reconsider the appellant’s
affirmative defense of disparate treatment disability discrimination and make new
findings on that issue. The administrative judge may incorporate his prior
findings, as appropriate.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Shank_Vanessa_J_CH-0432-17-0451-I-2__Remand_Order.pdf | 2024-04-26 | VANESSA J. SHANK v. DEPARTMENT OF THE ARMY, MSPB Docket No. CH-0432-17-0451-I-2, April 26, 2024 | CH-0432-17-0451-I-2 | NP |
1,632 | https://www.mspb.gov/decisions/nonprecedential/Melendez_Manuel_AT-0752-22-0630-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MANUEL MELENDEZ,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-0752-22-0630-I-1
DATE: April 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Daniel Patrick Meyer , Esquire, and Michael R. Goldstein , Esquire,
Washington, D.C., for the appellant.
Bobbie Garrison , Esquire, Doral, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
sustained his removal. For the reasons discussed below, we GRANT the
appellant’s petition for review and REVERSE the initial decision. The removal
action is NOT SUSTAINED.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
¶2Prior to his removal, the appellant held the position of International
Security Assistance Program Manager, GS-0301-13, with U.S. Southern
Command (USSOUTHCOM), Strategy, Policy, and Plans Directorate, Security
Cooperation Division. Initial Appeal File (IAF), Tab 5 at 15. On December 14,
2021, the agency appointed an Investigating Officer, pursuant to Army
Regulation 15-6, to conduct an informal investigation into the facts and
circumstances surrounding an informal complaint alleging that the appellant
“engaged in behavior tantamount to sexual harassment.” IAF, Tab 12 at 49-53.
The Investigating Officer issued a final report of investigation (ROI) on March 4,
2022. Id. at 25-192.
¶3On May 23, 2022, the Director of Strategy, Policy, and Plans notified the
appellant that he was proposing his removal based on a charge of Conduct
Unbecoming a Federal Employee, supported by six specifications. IAF, Tab 5
at 56-60. The specifications were based on incidents described in the ROI, but
the proposal did not contain an allegation that the appellant engaged in sexual
harassment, nor did it make any reference to the legal standards applicable to a
sexual harassment charge. Id. In July 2022, the Director rescinded the proposal
notice and issued a new proposal, which designated a different deciding official
but was otherwise unchanged from the original version. Id. at 34-38, 61-166.
The appellant provided a written reply.2 IAF, Tab 6.
¶4After considering the appellant’s reply, the deciding official, the
USSOUTHCOM Chief of Staff, issued a decision sustaining five of the six
specifications and approving the penalty of removal. IAF, Tab 5 at 16-33. The
deciding official personally completed an agency-supplied Douglas factors
worksheet in support of his penalty determination. Id. at 21-30; Hearing
2 Prior to his reply, the appellant obtained a redacted copy of the ROI through a
Freedom of Information Act request. IAF, Tab 10 at 72-251, 355.2
Recording (HR), Track 6 (testimony of deciding official). The appellant was
removed effective August 26, 2022. Id. at 15.
¶5The appellant filed a timely appeal with the Board contesting the charge and
penalty and raising affirmative defenses of harmful procedural error, denial of
due process, and discrimination based on national origin. IAF, Tabs 1, 10.
Following a hearing, the administrative judge sustained the charge, including the
five specifications that had been sustained by the deciding official. IAF, Tab 19,
Initial Decision (ID) at 3-11. The administrative judge further found that the
appellant had not established his affirmative defenses. ID at 12-17. Finally, the
administrative judge found that the deciding official had properly considered the
relevant Douglas factors and that the penalty of removal was within the bounds of
reasonableness. ID at 17-20. The appellant filed a petition for review, in which
he again argues that the agency committed harmful error and denied him due
process.3 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
¶6When an agency intends to rely on aggravating factors as the basis for the
imposition of a penalty, such factors should be included in the advance notice of
adverse action so that the employee will have a fair opportunity to respond to
those factors before the deciding official. Lopes v. Department of the Navy ,
116 M.S.P.R. 470, ¶ 5 (2011). If an employee has not been given notice of
aggravating factors, an ex parte communication with the deciding official
regarding such factors may constitute a constitutional due process violation
because it potentially deprives the employee of notice of all the evidence being
used against him and the opportunity to respond to it. Ward v. U.S. Postal
Service, 634 F.3d 1274, 1280 (Fed. Cir. 2011). As our reviewing court has
explained, “[t]here is no constitutionally relevant distinction between ex parte
3 The appellant does not contest the administrative judge’s findings regarding his
discrimination claim. 3
communications relating to the underlying charge and those relating to the
penalty.” Id. Furthermore, the Board has found no basis for distinguishing
between ex parte information provided to the deciding official and information
personally known by the deciding official if the information was considered in
reaching the decision and not previously disclosed to the appellant. See Lopes,
116 M.S.P.R. 470, ¶ 10.
¶7Here, the deciding official indicated on the Douglas factors worksheet that
the agency’s table of penalties recommended removal for a second or third
offense of sexual harassment/assault, which he identified as the most closely
related charge. IAF, Tab 5 at 26 (factor 7). He testified that while he had
reviewed the entire table, which includes separate recommendations for sexual
harassment and the actual charge of conduct unbecoming, the sustained
misconduct nonetheless “smelled” to him like sexual harassment. HR, Track 6;
see IAF, Tab 5 at 184, 191. However , the agency did not inform the appellant in
its notice of proposed removal that it would consider the recommended penalty
for a charge other than those set forth in the notice itself. Nor was the appellant
on notice that he would be disciplined for a second or third offense of any charge,
given his undisputed lack of prior discipline.
¶8Accordingly, we find that the deciding official considered ex parte
information in making his penalty determination. However, such ex parte
information will only violate an employee’s right to due process when it
introduces new and material evidence. Ward, 634 F.3d at 1279; Stone v. Federal
Deposit Insurance Corporation , 179 F.3d 1368, 1387 (Fed. Cir. 1999). To
determine whether the deciding official’s consideration of ex parte information
constituted a due process violation, we must inquire whether the ex parte
communication is “so substantial and so likely to cause prejudice that no
employee can fairly be required to be subjected to a deprivation of property under
such circumstances.” Ward, 634 F.3d at 1279 (citations omitted). The Board will
consider the following factors, among others, to determine whether ex parte4
information is constitutionally impermissible: (1) whether the ex parte
information merely introduces cumulative information or new information;
(2) whether the employee knew of the error and had a chance to respond to it; and
(3) whether the ex parte information was of the type likely to result in undue
pressure upon the deciding official to rule in a particular manner. Id.
¶9Here, the deciding official’s reliance on the recommended penalty for a
charge other than one set forth in the notice of proposed removal cannot fairly be
deemed cumulative or immaterial to his decision. See Jenkins v. Environmental
Protection Agency , 118 M.S.P.R. 161, ¶ 12 (2012). Moreover, in a situation like
this, when the deciding official has admitted that the ex parte information
influenced his penalty determination, the information in question is clearly
material. Howard v. Department of the Air Force , 118 M.S.P.R. 106, ¶ 6 (2012).
We further find that, because the agency omitted this information from the notice
of proposed removal, the appellant was unaware that the deciding official would
consider it and had no chance to respond before the deciding official issued his
decision. With respect to whether the information resulted in undue pressure on
the deciding official, the absence of such pressure is less relevant when, as in this
case, the deciding official admits that the information influenced his penalty
determination. Id. (citing Ward, 634 F.3d at 1280 n.2). In sum, we conclude that
the deciding official’s consideration of aggravating factors without the appellant’s
knowledge was “so likely to cause prejudice that no employee can fairly be
required to be subjected to a deprivation of property under such circumstances.”
Stone, 179 F.3d at 1377.
¶10Because the agency violated the appellant’s due process guarantee to notice,
the agency’s error cannot be excused as harmless, and the appellant’s removal
must be cancelled. Lopes, 116 M.S.P.R. 470, ¶ 13. The appellant may not be
removed unless and until he is afforded a “new constitutionally correct removal
procedure.” Ward, 634 F.3d at 1280; Jenkins, 118 M.S.P.R. 161, ¶ 12; Lopes,
116 M.S.P.R. 470, ¶ 13. Accordingly, we reverse the initial decision and do not5
sustain the removal action. Given this result, we do not reach the appellant’s
remaining arguments.
ORDER
¶11We ORDER the agency to rescind the removal action and restore the
appellant effective August 26, 2022. 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.
¶12We 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.
¶13We 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).
¶14No 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).6
¶15For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL 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
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit 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.5 The court of appeals must receive your
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 10
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
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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
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 | Melendez_Manuel_AT-0752-22-0630-I-1_Final_Order.pdf | 2024-04-26 | MANUEL MELENDEZ v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-0752-22-0630-I-1, April 26, 2024 | AT-0752-22-0630-I-1 | NP |
1,633 | https://www.mspb.gov/decisions/nonprecedential/deBeck_ChristianDC-1221-22-0114-X-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTIAN DEBECK,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-1221-22-0114-X-1
DATE: April 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Nicholas Woodfield , Esquire, Washington, D.C., for the appellant.
Elizabeth Bidwill , Honolulu, Hawaii, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
This case is before the Board on the appellant’s petition to enforce the
parties’ settlement agreement resolving his underlying appeal. In a December 6,
2022 compliance initial decision, the administrative judge found that the agency
had not fully complied with the agreement because it had not changed the reason
for the appellant’s separation from termination to resignation for personal
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
reasons. DeBeck v. Department of the Army , MSPB Docket No. DC-1221-22-
0114-C-1, Compliance File (CF), Tab 9, Compliance Initial Decision (CID) at 4.
For the reasons discussed below, we now find the agency in compliance and
DISMISS the appellant’s petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
In a February 15, 2022 initial decision, the administrative judge accepted
into the record for enforcement the parties’ settlement agreement disposing of the
underlying dispute. DeBeck v. Department of the Army , MSPB Docket No.
DC-1221-22-0114-W-1, Initial Appeal File, Tab 13, Initial Decision (ID). The
initial decision became the final decision of the Board on March 22, 2022, after
neither party petitioned for administrative review. ID at 3.
On October 6, 2022, the appellant filed a petition for enforcement in which
he alleged that the agency had not complied with the terms of the settlement
agreement because it had not issued a Standard Form 50 (SF-50) documenting his
resignation. CF, Tab 1. In the compliance initial decision, the administrative
judge granted the petition based on his finding that the agency had failed to
comply with its promise to amend the appellant’s personnel records within a
reasonable amount of time. CID at 4. The administrative judge ordered the
agency to amend the appellant’s records as contemplated by the settlement
agreement and submit evidence of compliance. CID at 5. The administrative
judge notified the appellant that he could file evidence and argument in response
to the agency’s submission within 20 days of the date of filing of the agency’s
submission. CID at 6.
On January 9, 2023, the agency submitted evidence that it had cancelled the
appellant’s termination and replaced it with a resignation. DeBeck v. Department
of the Army, MSPB Docket No. DC-1221-22-0114-X-1, Compliance Referral File
(CRF), Tab 1. Specifically, the agency produced an SF-50 that documents the
2
appellant’s resignation as effective June 2, 2021, and indicates that his
resignation was for personal reasons. CRF, Tab 1 at 4.
On January 11, 2023, the Office of the Clerk of the Board issued an order
acknowledging that the agency had filed a response to the compliance initial
decision with accompanying evidence. CRF, Tab 2 at 1. The Office of the Clerk
of the Board notified the appellant that his response to the agency’s evidence of
compliance must be filed within 20 calendar days of the date of service of the
agency’s submission. Id. at 2. The Office of the Clerk of the Board further
advised that, if the appellant did not respond to the agency’s evidence of
compliance within 20 days, the Board may assume the appellant is satisfied and
dismiss the petition for enforcement. Id. The appellant has not filed a response
to the agency’s evidence.
Accordingly, we find the agency in compliance and dismiss the petition for
enforcement. This is the final decision of the Merit Systems Protection Board in
this compliance proceeding. Title 5 of the Code of Federal Regulations, section
1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. 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.
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 | deBeck_ChristianDC-1221-22-0114-X-1__Final_Order.pdf | 2024-04-26 | CHRISTIAN DEBECK v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-1221-22-0114-X-1, April 26, 2024 | DC-1221-22-0114-X-1 | NP |
1,634 | https://www.mspb.gov/decisions/nonprecedential/Coy_ColbyPH-0752-21-0328-X-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
COLBY COY,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
PH-0752-21-0328-X-1
DATE: April 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Colby Coy , Shippensburg, Pennsylvania, pro se.
Joleen Payeur Olsen , Esquire, and Gabriel Tese , Chambersburg,
Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
In an October 20, 2022 compliance initial decision, the administrative
judge found the agency in partial noncompliance with a settlement agreement that
had been accepted into the record for enforcement by the Board in a prior
compliance appeal. Coy v. Department of the Army , MSPB Docket No. PH-0752-
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
21-0328-C-3, Compliance File (C-3 CF), Tab 4, Compliance Initial Decision (C-3
CID); Coy v. Department of the Army , MSPB Docket No. PH-0752-21-0328-C-2,
Compliance File (C-2 CF), Tab 12, Tab 13, Compliance Initial Decision (C-2
CID). Accordingly, the administrative judge granted in part the appellant’s
petition for enforcement and ordered the agency to comply with the term of the
settlement agreement requiring the agency to pay the appellant a lump sum of
$25,000. C-3 CID at 5. For the reasons discussed below, we now find the agency
in compliance and DISMISS the appellant’s petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
On August 18 and 19, 2022, the parties signed a settlement agreement
providing, in relevant part, that the agency would pay the appellant a lump sum of
$25,000 within 30 days, i.e., by September 18, 2022, and that the appellant would
withdraw with prejudice his petition for enforcement of the Board’s final decision
in the underlying appeal. C -2 CF, Tab 12; Coy v. Department of the Army , MSPB
Docket No. PH-0752-21-0328-I-1, Initial Decision (Dec. 29, 2021). The
administrative judge accepted the settlement agreement into the record for
enforcement by the Board and dismissed the compliance appeal as settled. C-2
CID.
On September 20, 2022, the appellant petitioned for enforcement of the
settlement agreement, arguing that he had still not received the lump sum
payment. C-3 CF, Tab 1. In the October 20, 2022 compliance initial decision,
the administrative judge found the agency in noncompliance to the extent it had
failed to pay the appellant the $25,000 lump sum by the agreed upon deadline and
ordered the agency to do so within 21 days of the decision.2 C-3 CID at 4-5.
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. C-3 CID at 5-6; 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.
2
On November 22, 2022, and March 31, 2023, the agency provided evidence
and argument demonstrating that the Defense Finance and Accounting Service
(DFAS) paid the appellant a $25,000 lump sum payment on November 4, 2022.
Coy v. Department of the Army , MSPB Docket No. PH-0752-21-0328-X-1,
Compliance Referral File (CRF), Tab 1, Tab 3 at 30-43. The appellant did not
respond to the agency’s submissions.
A settlement agreement is a contract and, as such, will be enforced in
accordance with contract law. Burke v. Department of Veterans Affairs ,
121 M.S.P.R. 299, ¶ 8 (2014). The Board will enforce a settlement agreement
that has been entered into the record in the same manner as a final Board decision
or order. Id. When the appellant alleges noncompliance with a settlement
agreement, the agency must produce relevant material evidence of its compliance
with the agreement or show that there was good cause for noncompliance. Id.
The ultimate burden, however, remains with the appellant to prove breach by a
preponderance of the evidence. Id.
As described above, the administrative judge found that the agency was not
in compliance with the settlement agreement because it had failed to pay the
appellant the $25,000 lump sum by the agreed upon deadline. C-3 CID at 4-5.
The agency’s submissions show that it has now made this payment. In particular,
as set forth above, the agency provided evidence and argument reflecting that
DFAS paid the appellant $25,000 on November 4, 2022. CRF, Tabs 1, 3. As the
appellant has not responded to the agency’s assertions and evidence of
compliance, the Board assumes that he is satisfied. See Baumgartner v.
Department of Housing and Urban Development , 111 M.S.P.R. 86, ¶ 9 (2009).
In light of the foregoing, we find that the agency is now in compliance and
dismiss the petition for enforcement. This is the final decision of the Merit
C-3 CID at 6-7; see 5 C.F.R. §§ 1201.114(e), 1201.183(a)(6)(ii). Neither party
petitioned for review of the compliance initial decision.
3
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 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 | Coy_ColbyPH-0752-21-0328-X-1__Final_Order.pdf | 2024-04-26 | COLBY COY v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-0752-21-0328-X-1, April 26, 2024 | PH-0752-21-0328-X-1 | NP |
1,635 | https://www.mspb.gov/decisions/nonprecedential/Colton_Carmen_J_SF-3443-18-0444-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARMEN J. COLTON,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
SF-3443-18-0444-I-1
DATE: April 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carmen J. Colton , Meridian, Idaho, pro se.
Dusty Parson and Scott Hulbert , Boise, Idaho, 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 nonselection appeal for lack of jurisdiction without holding the
requested hearing. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings 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).
By letter dated March 22, 2018, the agency withdrew an offer of
employment it had made to the appellant after a background check indicated that
she had some criminal history. Initial Appeal File (IAF), Tab 7 at 28-37. The
appellant then filed this appeal, asserting that the agency’s action constituted a
negative suitability action and that the agency committed a harmful procedural
error. IAF, Tab 1.
The administrative judge informed the appellant that the Board generally
lacks authority to address a claim that an applicant was not hired, but noted six
exceptions to this rule, including when the agency’s action constitutes a
suitability action. IAF, Tab 2 at 2-5. Ultimately, the administrative judge found
that the appellant failed to nonfrivolously allege that the agency’s action
constituted a suitability action or an appealable cancellation of an appointment.
IAF, Tab 12, Initial Decision (ID). Accordingly, she dismissed the appeal for
lack of jurisdiction without holding the requested hearing. ID at 1.
On petition for review, the appellant argues that she was denied notice and
an opportunity to be heard regarding the results of the background check, and
alleges that agency officials abused their power by finding her unsuitable for
personal reasons. Petition for Review (PFR) File, Tab 1 at 5. She also asserts
that one of the statements in the initial decision, that she never reported for duty,2
“is only partially accurate” because she had completed some training as
demonstrated by some copies of emails she provides for the first time on review.
Id. at 5-9. The agency has filed a reply. PFR File, Tab 3.
As an initial matter, we note that, prior to issuing the initial decision, the
administrative judge did not give the appellant notice of how to establish
jurisdiction over a cancelled appointment. See Burgess v. Merit Systems
Protection Board , 758 F.2d 641, 643-44 (Fed. Cir. 1985) (finding that an
appellant must receive explicit information on what is required to establish an
appealable jurisdictional issue). Nevertheless, to the extent that the appellant was
claiming that she was given an appointment that was later cancelled, the lack of
prior Burgess notice was cured in the initial decision. ID at 4-5; see Caracciolo
v. Department of the Treasury , 105 M.S.P.R. 663, ¶ 11 (2007) (finding that the
failure to provide an appellant with proper Burgess notice in an acknowledgement
order or show cause order can be cured if the initial decision itself puts the
appellant on notice of what she must do to establish jurisdiction, so as to afford
her the opportunity to meet her jurisdictional burden for the first time on review).
Ordinarily, 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 closed despite the party’s due diligence. Dodson v. Department of the
Navy, 111 M.S.P.R. 504, ¶ 6 n.2 (2009). However, the Board will consider such
evidence if the appellant did not receive Burgess notice prior to the issuance of
the initial decision. See id.; Boudousquie v. Department of the Air Force ,
102 M.S.P.R. 397, ¶ 8 (2006). Accordingly, we have considered the appellant’s
evidence submitted on review.
The appellant’s evidence on review consists of emails between herself and
agency officials in March 2018. PFR File, Tab 1 at 6-9. In an email from
March 16, 2018, the appellant acknowledged that her start date had been delayed
pending completion of her background check. Id. at 7. In that same email, the3
appellant attached some signed or completed documents regarding the rules of
behavior and computer security, as the agency had requested. Id. at 7-8.
We find that the evidence and argument submitted by the appellant on
review does not warrant a different outcome. To be entitled to a jurisdictional
hearing over an alleged cancellation of an appointment, an appellant must
nonfrivolously allege that: (1) the promotion or appointment actually occurred,
i.e., it was approved by an authorized appointing official aware that he or she was
making the promotion or appointment; (2) the appellant took some action
denoting acceptance of the promotion or appointment; and (3) the promotion or
appointment was not revoked before the appellant actually performed in the
position. See Deida v. Department of the Navy , 110 M.S.P.R. 408, ¶¶ 14-15
(2009).
On February 28, 2018, an agency official emailed the appellant to inform
her that she was selected for the position to which she had applied. IAF, Tab 7
at 27. However, there is no indication that this official was an authorized
appointing official, and the email noted that the appellant’s start date was
tentative. Id. The appellant also has not otherwise nonfrivolously alleged that an
authorized appointing official approved her appointment. We therefore find that
she failed to establish her entitlement to a jurisdictional hearing over the
cancellation of an appointment. See Hoever v. Department of the Navy ,
115 M.S.P.R. 487, ¶ 8 (2011) (finding that no appointment of a Federal employee
can occur in the absence of the “last act” required by the person or body vested
with appointment power); Deida, 110 M.S.P.R. 408, ¶ 15. Accordingly, the
appellant’s argument and evidence concerning whether she actually reported for
duty and performed in the position is inconsequential.
We also find that the appellant failed to nonfrivolously allege that she was
subjected to a suitability action. See Sapla v. Department of the Navy ,
118 M.S.P.R. 551, ¶ 12 (2012) (finding that a denial of appointment or
nonselection for a position is not a suitability action). Additionally, the Board4
lacks jurisdiction over the appellant’s claims that agency officials abused their
power by finding her unsuitable for personal reasons and denied her notice and an
opportunity to be heard regarding the results of the background check. See
5 C.F.R. § 1201.3 (identifying matters within the Board’s appellate jurisdiction).
For the reasons stated above, we affirm the initial decision and dismiss this
appeal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
2 Since the issuance of the initial decision in this matter, the Board has 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. 5
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file6
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 7
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and you wish to challenge the Board’s rulings on your whistleblower claims
only, excluding all other issues , then you may file a petition for judicial review
either with the U.S. Court of Appeals for the Federal Circuit or any court of
appeals of competent jurisdiction. The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 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 | Colton_Carmen_J_SF-3443-18-0444-I-1_Final_Order.pdf | 2024-04-26 | CARMEN J. COLTON v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. SF-3443-18-0444-I-1, April 26, 2024 | SF-3443-18-0444-I-1 | NP |
1,636 | https://www.mspb.gov/decisions/nonprecedential/Brailey_KipDC-0752-19-0391-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KIP BRAILEY,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
DC-0752-19-0391-I-1
DATE: April 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
William A. Lichtenfels , Esquire, Guilford, Connecticut, for the appellant.
Joseph Capone , Cynthia Clark , and Phillip John Dickerson , Esquire,
Vienna, Virginia, for the agency.
Adrienne F. Boone , 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 agency’s indefinite suspension action based on his failure to
maintain eligibility to access classified information and to maintain a security
clearance. 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).
For the reasons provided in the initial decision, we agree with the
administrative judge’s finding that the appellant received sufficient notice under
5 U.S.C. § 7513(b) to be able to make a meaningful response to the underlying
suspension of his security clearance and access to classified information. Initial
Appeal File (IAF), Tab 33, Initial Decision (ID) at 11-13. In particular, she
found that the agency informed the appellant that the suspension of his security
clearance and access to classified information was based on his alleged conduct in
the workplace that led to his removal from duty and placement on administrative
leave. Id. She further found that the nature of his alleged conduct was clear to
him based on his awareness of a detailed search warrant that was executed against
him at the workplace and a newspaper article discussing an ongoing investigation
related to his employment. Id.
On petition for review, the appellant challenges the administrative judge’s
finding that he received sufficient notice under 5 U.S.C. § 7513(b) by raising the
following arguments: (1) the agency’s notices regarding the suspension of his
access to classified information and his indefinite suspension did not mention any2
investigation, complaint, warrant, or newspaper articles; (2) the search warrant
did not contain any detailed information regarding his alleged conduct; and
(3) the administrative judge mischaracterized the nature of his attorney’s
comments in a newspaper article. Petition for Review (PFR) File , Tab 1 at 6-7,
11-13.2 In addition, he relies on Cheney v. Department of Justice , 479 F.3d 1343,
1352-53 (Fed. Cir. 2007), in which our reviewing court found that the employee
was not provided with the opportunity to make a meaningful response to the
notice of proposed indefinite suspension when he had to guess at the reasons for
his security clearance suspension. PFR File, Tab 1 at 9-10.
After considering the appellant’s arguments and reviewing the record, we
discern no basis to disturb the administrative judge’s well-reasoned findings.
Specifically, the record reflects that the search warrant included an attachment
specifying the nature and time period of the appellant’s allegedly unlawful
conduct in the workplace. IAF, Tab 14 at 14-19. Further, the appellant has failed
to provide a reason to disturb the administrative judge’s finding that his
testimony that he did not recall receiving a search warrant or being made aware of
one lacks credibility. ID at 12; see Crosby v. U.S. Postal Service , 74 M.S.P.R.
98, 106 (1997) (finding no reason to disturb the administrative judge’s credibility
findings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions). Moreover, the appellant does not
dispute that the agency provided his attorney with a copy of the search warrant
with the notice of proposed indefinite suspension and that his attorney referenced
the warrant in his written reply to the proposed action. ID at 6, 12; IAF, Tab 5
at 37, 39. In addition, we find that any mischaracterization of his attorney’s
comments in the newspaper article is immaterial because it does not provide a
reason to disturb the administrative judge’s finding that the appellant was aware
of the ongoing investigation related to his employment after reading the article.
2 With his petition for review, the appellant has included a copy of the hearing
transcript that already is a part of the record before the administrative judge. PFR File,
Tab 1 at 17-157; IAF, Hearing Transcript.3
ID at 5, 13; IAF, Tab 14 at 49-53. Therefore, unlike in Cheney, we find that the
appellant here did not have to guess at the reasons for his security clearance
suspension.
Further, the appellant generally asserts on review that the Board denied him
the ability to obtain information about the basis of his suspension through
discovery, citing Mason v. Department of the Navy , 70 M.S.P.R. 584 (1996).
PFR File, Tab 1 at 14. Unlike in Mason, 70 M.S.P.R. at 587-88, the agency here
provided specific information prior to the hearing regarding the appellant’s
alleged conduct that led to the suspension of his security clearance and access to
classified information. IAF, Tab 14 at 10-55. Although the appellant
subsequently filed a renewed motion to compel to depose two agency witnesses,
IAF, Tab 18 at 4-6, the administrative judge stated in the Order and Summary of
Prehearing Conference that the parties were able to resolve the motion to compel
and that they arrived at stipulations prior to the prehearing conference, IAF,
Tab 20 at 2. Moreover, the appellant did not object to the contents of such
summary prior to the start of the hearing despite being informed that he could do
so. Id. at 5; IAF, Hearing Transcript at 5-8. Therefore, we find that the
appellant’s argument regarding discovery is unavailing.
Finally, the appellant argues that the administrative judge failed to consider
his past work record. PFR File, Tab 1 at 5-6. In Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board recognized that an
employee’s past work record is one of 12 nonexhaustive factors that are relevant
for consideration in determining the appropriateness of an imposed penalty for
alleged misconduct. For the reasons provided in the initial decision, we agree
with the administrative judge’s finding that the Douglas factors do not apply to
this case. ID at 14; see Munoz v. Department of Homeland Security ,
121 M.S.P.R. 483, ¶¶ 15-16 (2014). Thus, we discern no error in the
administrative judge’s failure to consider the appellant’s past work record.
Accordingly, we affirm the initial decision.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).
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
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on6
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or7
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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. 8
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Brailey_KipDC-0752-19-0391-I-1__Final_Order.pdf | 2024-04-26 | KIP BRAILEY v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DC-0752-19-0391-I-1, April 26, 2024 | DC-0752-19-0391-I-1 | NP |
1,637 | https://www.mspb.gov/decisions/nonprecedential/White_Douglas_R_DA-1221-21-0101-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DOUGLAS R. WHITE,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
DA-1221-21-0101-W-1
DATE: April 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jacque L. Pearsall , Oklahoma City, Oklahoma, for the appellant.
Dolores Francis , 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).
2
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the Board lacks jurisdiction because the appellant failed to satisfy the
exhaustion requirement, we AFFIRM the initial decision.
BACKGROUND
At all times relevant, the appellant was a GS-15 Director of the Inspector
Training and Qualifications Division (TQ) within the agency’s Pipeline and
Hazardous Materials Safety Administration. Initial Appeal File (IAF), Tab 1 at 1,
16. The agency conducted climate surveys which uncovered allegations of
unprofessional conduct by the appellant. IAF, Tab 8 at 11-50. Accordingly, the
appellant’s supervisor involuntarily detailed him from TQ effective July 1, 2020,
and directed him to report to the Director of Field Operations, Office of Pipeline
Safety. IAF, Tab 1 at 40.
On July 13, 2020, the appellant filed a complaint with the Office of Special
Counsel (OSC), alleging that his supervisor had given unauthorized preference to
two subordinates and had engaged in improper personnel actions in violation of
the merit systems principles. IAF, Tab 1 at 22, Tab 6 at 34-44. On July 29, 2020,
OSC issued a preliminary determination stating, in part, that it was unable to
conclude that a prohibited personnel practice had taken place. IAF, Tab 1 at 22.
The appellant’s attorney responded to the preliminary determination; however, on
October 14, 2020, OSC issued a close-out letter reiterating that it could not
3
conclude that a prohibited personnel practice had taken place. Id. at 24-34,
38-39. The appellant responded to the close-out letter requesting that OSC
reopen the matter, which it denied. Id. at 36-38.
Subsequently, the appellant filed an IRA appeal, alleging that the agency
retaliated against him for engaging in protected disclosures in violation of
5 U.S.C. § 2302(b)(8). Id. at 16-21. The administrative judge issued
a jurisdiction order, notifying the appellant of the applicable legal standards and
ordering him to produce evidence and/or argument establishing that the Board had
jurisdiction over his IRA appeal. IAF, Tab 3. The appellant responded to the
order, and the administrative judge issued an initial decision dismissing the
appeal for lack of jurisdiction, finding that, although the appellant had exhausted
his administrative remedies with OSC, he failed to nonfrivolously allege that
he made a protected disclosure or engaged in a protected activity. IAF, Tab 6,
Tab 11, Initial Decision (ID), at 13, 21.
The appellant has filed a petition for review, arguing that the administrative
judge made factual errors and erred in finding that he failed to meet the
nonfrivolous standard. Petition for Review (PFR) File, Tab 1. The agency
responded in opposition to the appellant’s petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
In an IRA appeal, the Board may consider only matters that the appellant
first raised before OSC. 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 preliminary determination letter and other
letters from OSC referencing any amended allegations, and the appellant’s written
responses to OSC referencing the amended allegations. Id. To establish Board
jurisdiction, the appellant must prove exhaustion with OSC by preponderant
4
evidence, not just present nonfrivolous allegations of exhaustion. 5 C.F.R.
§ 1201.57(c)(1).
The purpose of the requirement that an appellant exhaust his remedies with
OSC prior to filing an IRA appeal with the Board is to give OSC “the opportunity
to take corrective action before involving the Board in the case.” Ward v. Merit
Systems Protection Board, 981 F.2d 521, 526 (Fed. Cir. 1992). The
Whistleblower Protection Enhancement Act provides that, if OSC finds that there
is a substantial likelihood that the information received discloses a violation of
the Act, it “shall transmit the information to the head of the agency involved for
investigation and report.” Id. (making this finding based on the same language in
the prior Whistleblower Protection Act); see 5 U.S.C. § 1213(b), (c). These
inquiries by OSC and their transmittal to agencies for remedial action are a major
component of OSC’s work. Ward, 981 F.2d at 526. Thus, the substantive
requirements of exhaustion are met when an appellant has provided OSC with
sufficient basis to pursue an investigation that might lead to corrective action.
Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶ 10.
We are unable to discern any evidence that the appellant raised to OSC the
protected disclosures that he set forth in his response to the administrative judge’s
jurisdiction order.2 Compare IAF, Tab 1 at 34-44, with IAF, Tab 6 at 7-29. In his
response to the jurisdiction order, the appellant claimed that the agency retaliated
against him because he engaged in protected disclosures, summarized as follows:
(1) he ended the agency’s practice of relying on industry instructors, which
created a conflict of interest and resulted in substandard training, and instead
required TQ instructors already employed by the agency to teach the materials;
(2) he reduced employees’ attendance at seminars because the practice was not
effective and the travel costs were significant; (3) he demanded that TQ
instructors create course content to facilitate mastery of safety objectives instead
2 Because the appellant only alleges that he made protected disclosures under 5 U.S.C.
§ 2302(b)(8), we limit our analysis to whether allegations of protected disclosures were
raised with OSC. IAF, Tab 1 at 16-21, Tab 6 at 7-29.
5
of teaching “off-the-shelf” materials; and (4) he refused to allow a subordinate to
use a shortcut on a test and teach others how to use the same shortcut. IAF, Tab 6
at 7-29. The appellant asserted that each of these disclosures was included in
his February 2016 strategic plan and/or included in status reports which were
made periodically to upper management. Id. at 9-10, 14-15, 19-20, 25.
However, the appellant never raised these allegations to OSC. In fact, in
his original OSC complaint, he did not even allege retaliation for whistleblowing.
In the complaint form, i.e., OSC Form-14, he selected the following prohibited
personnel practices: unauthorized preference and improper actions in violation of
merit system principles. Id. at 34-35. Although the appellant could have selected
retaliation for whistleblowing as a basis for his complaint, he did not. Id. at 34.
Additionally, in describing the alleged prohibited personnel practices, he claimed
that his supervisor gave unauthorized preference to two subordinates and
encouraged them to “spy on” him and fabricate false allegations, and then
involuntarily detailed him. Id. at 41. He did not claim that he made a protected
disclosure or that he was subjected to a personnel action in reprisal for the
protected disclosure, and there is no reference to the disclosures set forth in his
jurisdictional response. Compare id., with IAF, Tab 6 at 7-29.
Although the appellant had several communications with OSC regarding
his complaint, none identified a protected disclosure he is alleged to have made.
IAF, Tab 1 at 24-34, 36-38. For instance, in his response to OSC’s preliminary
determination letter, he did not identify any protected disclosures; instead,
he accused the agency of sabotage, character assassination, and of dismantling the
program he created. Id. at 24-34. There is no reference to switching from
industry instructors to TQ instructors, reducing attendance at seminars, requiring
TQ instructors to teach specific content, or reprimanding an employee for using
shortcuts, i.e., the protected disclosures set forth in his jurisdictional response.
Compare id., with IAF, Tab 6 at 7-29. Similarly, in his response to OSC’s
close-out letter, he again failed to mention any of the disclosures set forth in
6
his jurisdictional response, instead questioning OSC’s investigation and disputing
OSC’s characterization of his behavior. Compare IAF, Tab 1 at 36-38 with IAF,
Tab 6 at 7-29. Even in his sworn statement provided to OSC, there are no
references to the protected disclosures set forth in his jurisdictional response.
Compare IAF, Tab 6 at 7-29, with IAF, Tab 6 at 49-54.
Therefore, we conclude that the protected disclosures set forth in the
appellant’s jurisdictional response were not raised in front of OSC. This is
supported by the fact that OSC did not reference any claims of protected
disclosures in its correspondence with the appellant regarding his complaint.
IAF, Tab 1 at 22, 38-39. Indeed, OSC did not even characterize his complaint as
a whistleblower retaliation complaint nor did it provide him with notice that he
had the right to file an IRA appeal because he had alleged a violation of 5 U.S.C.
§ 2302(b)(8) or (b)(9).3 Id. The appellant, who was properly advised by the
administrative judge as to the exhaustion requirement, has not provided evidence
or argument that establishes he raised his claims of protected disclosures with
OSC. IAF, Tab 3 at 2. Accordingly, we conclude that the appellant has failed to
exhaust his remedies with OSC, and thus the appeal must be dismissed.
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
3 While the Board is not required to adopt OSC’s exact characterization of the
appellant’s claims, he has not claimed that OSC mischaracterized his allegations.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
8
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
9
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.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.
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. | White_Douglas_R_DA-1221-21-0101-W-1__Final_Order.pdf | 2024-04-26 | DOUGLAS R. WHITE v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. DA-1221-21-0101-W-1, April 26, 2024 | DA-1221-21-0101-W-1 | NP |
1,638 | https://www.mspb.gov/decisions/nonprecedential/Johns_DelonSF-3443-23-0039-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DELON JOHNS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-3443-23-0039-I-1
DATE: April 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
DeLon Johns , Hemet, California, pro se.
Mickel-Ange Eveillard , 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 his appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On petition for review, the appellant argues that the agency engaged in
harassment, discrimination, and retaliation. Petition for Review (PFR) File,
Tab 1 at 3, Tab 2 at 3.2 He also asserts that he was subjected to a hostile work
environment. PFR File, Tab 2 at 3. The appellant’s assertions do not provide a
basis to disturb the administrative judge’s conclusion that the Board lacks
jurisdiction over the matter; indeed, as set forth in the initial decision, prohibited
personnel practices under 5 U.S.C. § 2302(b) are not an independent source of
Board jurisdiction. Initial Appeal File, Tab 12, Initial Decision (ID) at 6; 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 the appellant argues that he established Board
jurisdiction over the matter as an individual right of action appeal, he does not
provide a basis to disturb the administrative judge’s conclusion that he did not
show that he exhausted his administrative remedies with the Office of Special
2 The appellant provides additional documents with his petition for review, i.e., a
memorandum of counseling that he received on November 28, 2022, the day that the
initial decision was issued. PFR File, Tab 1 at 4-5; Initial Appeal File, Tab 12, Initial
Decision. These documents are not material to the jurisdictional issue; thus, 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).2
Counsel, as required. ID at 5-6; see Chambers v. Department of Homeland
Security, 2022 MSPB 8, ¶¶ 10-11. Thus, a different outcome is not warranted.
In his reply to the agency’s response to his petition for review, the
appellant asserts, for the first time, that the agency retaliated against him to keep
him “from filing complaints and leaking information about veterans who are
suicidal not receiving help in a timely fashion.”3 PFR File, Tab 5 at 3. 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. See Banks v. Department of the Air
Force, 4 M.S.P.R. 268, 271 (1980); 5 C.F.R. § 1201.115(d). Moreover, pursuant
to 5 C.F.R. § 1201.114(a)(4), a reply is limited to the factual and legal issues
raised by the agency in the response to the petition for review. Boston v.
Department of the Army , 122 M.S.P.R. 577, ¶ 5 n.3 (2015). In any event, the
appellant’s assertions regarding retaliation do not provide a basis to disturb the
administrative judge’s conclusion regarding jurisdiction. ID at 3-6.
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
3 On the certificate of service for his reply, the appellant indicated that he would, by the
end of the next business day, fax additional documents to the Board to support this
assertion; however, no such documents were ever received. PFR File, Tab 5 at 5.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The4
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Johns_DelonSF-3443-23-0039-I-1__Final_Order.pdf | 2024-04-26 | DELON JOHNS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-3443-23-0039-I-1, April 26, 2024 | SF-3443-23-0039-I-1 | NP |
1,639 | https://www.mspb.gov/decisions/nonprecedential/Boyer_BethDE-1221-19-0357-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BETH BOYER,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-1221-19-0357-W-1
DATE: April 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David J. Holdsworth , Esquire, Sandy, Utah, for the appellant.
Bradley M. Shaughnessy , Esquire, Fayetteville, Arkansas, for the agency.
Thomas Herpin , Esquire, Houston, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1The agency has filed a petition for review of the initial decision, which
granted the appellant’s 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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).
¶2The appellant filed the instant IRA appeal, alleging that the agency engaged
in whistleblower retaliation. Initial Appeal File (IAF), Tab 1. After providing
the parties an opportunity to further develop the jurisdictional record, the
administrative judge found that the appellant established jurisdiction over some,
but not all, of her claims. IAF, Tab 21. In particular, the administrative judge
found that the appellant met her jurisdictional burden regarding her claim that the
agency’s March 2019 decision to reassign her was the product of retaliation for
her July 2018 disclosures about a supervisor. Id. at 6-8. That retaliation claim is
the only one at issue on review.
¶3The following facts, as further detailed throughout the record and the initial
decision, do not appear to be disputed. The appellant worked as a Medical
Support Assistant (MSA) for the agency’s West Valley Clinic, in Utah. IAF,
Tab 10 at 79, Tab 64, Initial Decision (ID) at 3. In May 2018, the clinic received
a new Supervisory MSA. IAF, Tab 1 at 19, 25; ID at 3.
¶4On July 31, 2018, the appellant made disclosures to her Director about the
new Supervisory MSA. IAF, Tab 1 at 27. Among other things, she disclosed that
the Supervisory MSA had threatened her and another MSA; he was purposefully2
assigning individuals tasks that they disliked, in hopes that they would resist so
he could charge them with insubordination; he planned to have veteran friends
file complaints against his staff for further pretextual discipline; and he allowed
favored employees to take unaccounted for leave. E.g., IAF, Tab 1 at 18, Tab 6
at 4; ID at 8-9.
¶5In September 2018, the Supervisory MSA was reassigned from the West
Valley Clinic to a nearby hospital. IAF, Tab 1 at 23; ID at 10-11. He was later
indicted for criminal charges unrelated to this appeal, though it is not clear to us
whether it was those looming charges, the appellant’s disclosures, or some other
matter that led to the Supervisory MSA’s apparent reassignment. IAF, Tab 46
at 169-70; ID at 10-11.
¶6In October 2018, the agency began an investigation regarding allegations
throughout the West Valley Clinic, unrelated to those from the appellant’s
disclosures.2 IAF, Tab 10 at 46-78. Soon thereafter, the agency began another
more focused investigation into an allegation that the appellant and the other
target of the Supervisor MSA’s threats had created a hostile work environment for
a third coworker. Id. at 31-40. Over these and the subsequent months, the
appellant raised her disclosures with numerous agency officials, while also
expressing concern that the agency was retaliating for them. IAF, Tab 10 at 39,
Tab 52 at 6-16, 19-20.
¶7In March 2019, the agency decided to reassign both the appellant and the
other threatened MSA to a different facility. IAF, Tab 1 at 6, Tab 18 at 13;
ID at 19-20. The notices of reassignment indicated that the actions were
“necessary given ongoing concerns regarding interactions between [the two being
reassigned] and other staff.” IAF, Tab 1 at 6, Tab 18 at 13.
2 As a result of the October 2018 investigation, the agency issued a formal
admonishment of the appellant for improperly accessing the medical records of her
Supervisory MSA, i.e., the subject of her disclosures, many months earlier. IAF,
Tab 10 at 23-25, 43-45. That admonishment was grieved and settled; it was not a claim
for adjudication in the instant appeal. ID at 14.3
¶8After pursuing a claim of whistleblower retaliation with the Office of
Special Counsel (OSC), the appellant filed the instant IRA appeal. IAF, Tab 1.
The administrative judge developed the record and held a telephonic hearing, at
the appellant’s request. E.g., IAF, Tab 41 at 1 n.1, Tab 62, Hearing Recording
(HR). In the resulting initial decision, he first found that the appellant met her
burden of proving that she made protected disclosures. ID at 22-25. He next
found that the appellant proved that those disclosures were a contributing factor
in her reassignment. ID at 25-28. Finally, the administrative judge found that the
agency failed to prove that it would have taken the same personnel action in the
absence of the appellant’s protected disclosures. ID at 28-43. Consequently, he
granted the appellant’s request for corrective action. ID at 43-44.
¶9The agency has filed a petition for review. Petition for Review (PFR) File,
Tab 1. On review, the agency does not dispute that the appellant exhausted her
claim with OSC and made protected disclosures. The agency does, however,
dispute the administrative judge’s findings for the contributing factor criterion.
Id. at 9-11. In the alternative, the agency argues that the administrative judge
erred in finding that the agency failed to meet its burden of rebutting the
appellant’s prima facie case of reprisal. Id. at 12-15. The appellant has filed a
response.3 PFR File, Tab 3.
¶10Under 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
3 Within her response, the appellant asked that we dismiss the agency’s petition for
review, asserting that the agency failed to meet its interim relief obligations in that
(1) there was a 2-week delay between the initial decision and her return to the West
Valley Clinic, (2) the agency has not yet rescinded the reassignment from her personnel
file, (3) the agency has not yet restored her prior duties, and (4) the agency has not yet
returned her to her prior tour-of-duty start time. PFR File, Tab 3 at 5-6. Because we
are not persuaded by the agency’s petition for review, we need not determine whether
there is any merit to the appellant’s arguments about interim relief. See Elder v.
Department of the Air Force , 124 M.S.P.R. 12, ¶¶ 18-20 (2016) (finding that any failure
on the part of the agency regarding its interim relief obligations was moot because the
agency’s petition had no merit).4
(1) she made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or
engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
(C), or (D), and (2) the disclosure or protected activity was a contributing factor
in the agency’s decision to take or fail to take a personnel action as defined by
5 U.S.C. § 2302(a). Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5
(2016). 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.4 Id.
¶11If the appellant proves that her protected disclosure or activity was a
contributing factor in a personnel action taken against her, the agency is given an
opportunity to prove, by clear and convincing evidence,5 that it would have taken
the same personnel action in the absence of the protected disclosure or activity.
Id. In determining whether the agency has met this burden, the Board will
consider the following factors: (1) the strength of the agency’s evidence in
support of its action; (2) the existence and strength of any motive to retaliate on
the part of the agency officials involved in the decision; and (3) any evidence that
the agency takes similar actions against employees who are not whistleblowers,
but who are otherwise similarly situated. Carr v. Social Security Administration ,
185 F.3d 1318, 1323 (Fed. Cir. 1999). The Board does not view these factors as
discrete elements, each of which the agency must prove by clear and convincing
evidence, but rather, the Board will weigh the factors together to determine
whether the evidence is clear and convincing as a whole. Phillips v. Department
of Transportation , 113 M.S.P.R. 73, ¶ 11 (2010). We are also mindful that
“[e]vidence only clearly and convincingly supports a conclusion when it does so
4 Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
5 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 preponderant evidence. 5 C.F.R. § 1209.4(e).5
in the aggregate considering all the pertinent evidence in the record, and despite
the evidence that fairly detracts from that conclusion.” Whitmore v. Department
of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012).
The agency has failed to establish any basis for us to disturb the administrative
judge’s findings about the appellant’s prima facie case of reprisal.
¶12Once again, the agency does not dispute the administrative judge’s
determination that the appellant made protected disclosures to her Director on
July 31, 2018, as follows: The appellant disclosed gross mismanagement and an
abuse of authority by revealing that the Supervisory MSA was, for vindictive
reasons, trying to provoke insubordination or otherwise establish a pretext for
disciplining his subordinates. ID at 23-24; see 5 U.S.C. § 2302(b)(8)(A)(ii).
She also disclosed a violation of rule by revealing that the Supervisory MSA was
permitting leave for certain favored employees, unaccounted for in the agency’s
leave tracking system. ID at 24-25; see 5 U.S.C. § 2302(b)(8)(A)(i).
¶13Although the agency does not dispute that these were protected disclosures,
it does dispute the next element of the appellant’s burden—proof that the
protected disclosures were a contributing factor in her reassignment. PFR File,
Tab 1 at 9-11. On that point, the administrative judge provided two reasons for
concluding that the contributing factor element was satisfied in this case, using
the knowledge/timing test. ID at 25-28; see Mastrullo v. Department of Labor ,
123 M.S.P.R. 110, ¶¶ 18, 21 (2015) (explaining that the knowledge/timing test
allows an employee to demonstrate that a protected disclosure was a contributing
factor in a personnel action through circumstantial evidence, such as evidence
that the official taking the personnel action knew of the disclosure and that the
personnel action occurred within 1 to 2 years of the appellant's disclosures).
First, the administrative judge found that the Deputy Director of the West Valley
Clinic, who decided to reassign the appellant less than a year after the appellant’s
disclosures, had personal knowledge about the appellant’s protected disclosures.
ID at 26. In particular, the administrative judge determined that the Deputy6
Director knew of the appellant’s disclosures because he read the February 2019
investigative report that discussed those disclosures before his March 2019
decision to reassign the appellant. Id. Second, the administrative just found that
two Human Resources officials influenced the Deputy Director’s decision to
reassign the appellant, and those Human Resources officials also knew of the
appellant’s protected disclosures. ID at 26-27.
¶14Concerning his first rationale for finding the contributing factor criterion
satisfied, the agency argues that the administrative judge erred because both
parties agreed that the Deputy Director lacked knowledge of the appellant’s
disclosures prior to the reassignment decision. PFR File, Tab 1 at 9. The agency
directs us to deposition and hearing testimony in which the agency asked the
appellant if the Deputy Director knew of her disclosures prior to his reassignment
decision, and the appellant responded in the negative. Id. The agency also
references the Deputy Director’s similar testimony. Id.
¶15Regarding the appellant’s testimony about the matter, the agency suggests
that the appellant’s negative response when asked about the Deputy Director’s
knowledge of her disclosures precludes the administrative judge from finding that
the Deputy Director had the requisite knowledge for purposes of the
knowledge/timing test. Id. at 9-10. The agency separately asserts that the
appellant repeatedly lied under oath about this matter and the administrative judge
erred by failing to render credibility findings about the same. Id. at 10-11.
Setting aside the contradiction of these arguments, the agency has not identified
any instance of the administrative judge relying on the appellant’s testimony to
resolve a relevant and disputed matter, and we found none. Therefore, we are not
convinced that the absence of credibility findings about the appellant’s testimony
is consequential. In addition, the appellant’s negative response, when asked
about the Deputy Director’s knowledge, does not foreclose the possibility that the
Deputy Director knew of the appellant’s disclosures, without the appellant
realizing the same. E.g., IAF, Tab 57 at 147. That is consistent with the7
administrative judge’s findings; he noted that both parties seemed to overlook the
fact that the February 2019 investigative report referenced the appellant’s
disclosures. ID at 26.
¶16Regarding the Deputy Director’s testimony about the matter, personally
denying that he had knowledge of the appellant’s disclosures, the administrative
judge did not find him credible. ID at 26, 31-33. To the extent that these
credibility findings may have implicitly relied on determinations about the
Deputy Director’s demeanor, they are not entitled to the deference we would have
afforded them if the hearing occurred via video, rather than telephone. See
Rapp v. Office of Personnel Management , 108 M.S.P.R. 674, ¶ 13 n.5 (2008)
(finding that the Board need not defer to an administrative judge’s
demeanor-based credibility findings when a hearing is conducted by telephone).
Nevertheless, the agency has not presented any persuasive reason for us to reach a
conclusion different than that of the administrative judge. During his hearing
testimony, the Deputy Director indicated that he reassigned the appellant because
of the findings in the February 2019 investigative report. HR (testimony of the
Deputy Director, part 1 at 14:00-19:30); IAF, Tab 10 at 31-40. That is consistent
with the agency’s position in this litigation. E.g., IAF, Tab 44 at 4; PFR File,
Tab 1 at 6. As the administrative judge recognized, the February 2019
investigative report referenced the appellant’s disclosures. IAF, Tab 10 at 31-40.
Specifically, the report provides that “it is also important to note that [the
appellant and the other MSA who would later be reassigned] expressed feelings
that they are the ones being targeted” and they “believe [the former Supervisory
MSA] was and still is trying to get them fired.” Id. at 36-37. It also alludes to a
lone attachment, the appellant’s written response, which discussed how the
appellant “knew [the Supervisory MSA] was threatening other employees,”
referenced “the complaint that [the appellant] made for threatening behavior” on
July 31, 2018, and expressed “concern about possible retaliation with regards to
[the Supervisory MSA].” Id. at 39. The agency has provided no explanation for8
this. It does not explain how the Deputy Director could have based the
appellant’s reassignment on the February 2019 investigative report without
having any knowledge of the disclosures discussed in that same February 2019
investigative report.
¶17Concerning his second rationale for finding the contributing factor criterion
satisfied, the agency argues that the administrative judge erred because the
Deputy Director made the decision to reassign the appellant on his own,
independently. PFR File, Tab 1 at 9-10. However, that assertion overlooks
testimony from the Deputy Director, in which he acknowledged discussing the
February 2019 investigative report with the two Human Resources officials
during his decision-making process. HR (testimony of the Deputy Director,
part 1 at 14:00-19:30); IAF, Tab 10 at 31-40. Consistent with the administrative
judge’s findings, the documentary evidence shows that the appellant emailed
those same officials to recount her protected disclosures and express concern
about possible retaliation weeks before her reassignment. IAF, Tab 52 at 6-10.
¶18Ultimately, we are not persuaded by the agency’s limited arguments
concerning the contributing factor criterion. We therefore discern no basis for
disturbing the administrative judge’s findings about the same.
The agency has failed to establish any basis for us to disturb the administrative
judge’s findings about the agency not meeting its burden.
¶19When an appellant presents a prima facie case of whistleblower reprisal, the
burden shifts to the agency. Supra ¶ 11. Under the agency’s heightened burden,
the Board will consider the three Carr factors. Id.
¶20For the first Carr factor, the strength of the agency’s evidence in support of
the reassignment, the administrative judge concluded that the agency’s evidence
was weak. ID at 30-33. In short, he found that the agency’s stated rationales for
the reassignment were inconsistent and not credible, particularly as it related to
rationales provided by the Deputy Director. Id.9
¶21For the second Carr factor, the existence and strength of any motive to
retaliate, the administrative judge found that the record disfavored the agency.
ID at 33-41. Specifically, he inferred a retaliatory motive on the part of
management officials for several reasons. Among other things, the administrative
judge indicated that there were problems with the Deputy Director’s testimony,
which would be explained by his favoring the individual implicated by the
appellant’s disclosures. ID at 34-35. The administrative judge also found that
other employees in the West Valley Clinic were motivated to retaliate against the
appellant, and that motivation could be imputed on those responsible for the
appellant’s reassignment. ID at 36-41.
¶22For the third Carr factor, any evidence the agency takes similar actions
against similarly situated employees that are not whistleblowers, the
administrative judge determined that the evidence presented did not favor the
agency. ID at 41-43. Among other things, he noted that although the Deputy
Director provided testimony about a single comparator, that testimony was
limited and without pertinent details. Id. The administrative judge ultimately
concluded, based on a weighing of these Carr factors, that the agency failed to
meet its burden of proof. ID at 43-44.
¶23On review, the agency disputes the administrative judge’s findings about its
burden. PFR File, Tab 1 at 12-15. It again asserts that the Deputy Director did
not have knowledge of the appellant’s disclosures. Id. at 12-13. As previously
discussed, we disagree. Supra ¶¶ 14-16. The agency also asserts that the
administrative judge ignored “uncontroverted” testimony from the Deputy
Director about legitimate nonretaliatory reasons for the appellant’s reassignment.
PFR File, Tab 1 at 13-14. To the contrary, the administrative judge did not ignore
that testimony. He simply found that it was not persuasive or credible. ID
at 31-33. The agency has not given us a reason to conclude otherwise. Moreover,
the legal question at hand is not whether the agency had any legitimate
non-retaliatory reasons for the appellant’s reassignment. Instead, the question is10
whether the agency met its burden of proving, by the heightened clear and
convincing standard, that it would have taken the same action in the absence of
the appellant’s protected disclosures. Supra ¶ 11. The agency’s limited
arguments on review do not convince us that the administrative judge erred in
finding that it failed to meet that burden.
ORDER
¶24We ORDER the agency to rescind its April 28, 2019 reassignment of the
appellant by returning her to the West Valley Clinic. 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.
¶25We 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).
¶26No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If11
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
disciplinary action shall be taken against any employee for any alleged prohibited12
activity under investigation or for any related activity without the approval of the
Special Counsel.” 5 U.S.C. § 1214(f).
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for 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.13
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any14
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s15
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 16
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.17 | Boyer_BethDE-1221-19-0357-W-1__Final_Order.pdf | 2024-04-26 | BETH BOYER v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-1221-19-0357-W-1, April 26, 2024 | DE-1221-19-0357-W-1 | NP |
1,640 | https://www.mspb.gov/decisions/nonprecedential/Brown_Tamela_M_AT-3443-19-0500-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TAMELA M. BROWN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-3443-19-0500-I-1
DATE: April 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tamela M. Brown , North Charleston, South Carolina, pro se.
Deetric M. Hicks , Esquire, Decatur, Georgia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her appeal concerning a nonselection for
promotion. On petition for review, the appellant argues that her appeal concerns
an employment practice and that the agency failed to conduct a proper job
analysis. However, a job analysis itself is not an employment practice. Rather, 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).
is a tool that agencies use to develop employment practices. Compare 5 C.F.R.
§ 300.101 (defining “employment practices”), with 5 C.F.R. § 300.103(a)
(requiring agencies to use job analyses to develop their employment practices).
Furthermore, the appellant’s argument appears to concern the agency’s rating and
handling of her individual application, which is a matter outside the Board’s
employment practices jurisdiction. See Banks v. Department of Agriculture ,
59 M.S.P.R. 157, 160 (1993), aff’d, 26 F.3d 140 (Fed. Cir. 1994) (Table).
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1).
By statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter. 2
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at3
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,4
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of5
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Brown_Tamela_M_AT-3443-19-0500-I-1__Final_Order.pdf | 2024-04-26 | TAMELA M. BROWN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-3443-19-0500-I-1, April 26, 2024 | AT-3443-19-0500-I-1 | NP |
1,641 | https://www.mspb.gov/decisions/nonprecedential/Medwid_TeddyNY-0831-18-0096-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TEDDY MEDWID,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
NY-0831-18-0096-I-1
DATE: April 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Nancy Medwid , Esquire, Plainfield, New Jersey, for the appellant.
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 that
affirmed the agency’s denial of his annuity recalculation request under the Civil
Service Retirement System (CSRS). 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).
2
BACKGROUND
In April 2018, the appellant filed an appeal with Board contesting the
agency’s denial of his annuity recalculation request under the CSRS. Initial
Appeal File (IAF), Tab 1. Specifically, the appellant contended that the lump
sum payment that he received as part of a settlement agreement with his former
employing agency was actually back pay and that it should be considered as
additional years of service for annuity calculation purposes. Id. at 5, 8, 12, 14.
The administrative judge issued an initial decision on June 20, 2018, affirming
the agency’s decision to deny the appellant’s request because he failed to prove
that the lump sum payment was designated as back pay. IAF, Tab 13, Initial
Decision (ID). The initial decision advised the parties that it would become the
final decision of the Board on the appeal, unless a party filed a petition for review
by July 25, 2018. ID at 3. The instructions and procedures for filing a petition
for review with the Board were included. ID at 3-7. Because the Board lacked a
quorum at the time the initial decision was issued, the initial decision notified the
parties that decisions on petitions for review could not be rendered by the Board
until a quorum was restored and stated that, “[t]he lack of a quorum does not
serve to extend the time limit for filing a petition or cross petition. Any party
who files such a petition must comply with the time limits specified herein.”
ID at 4.
The appellant filed his petition for review with the Board via U.S. mail on
August 13, 2018. Petition for Review (PFR) File, Tab 1. The Office of the Clerk
of the Board informed the appellant that his petition appeared untimely filed and
provided him with an opportunity to demonstrate that it was timely filed or that
good cause existed to waive the time limit. PFR File, Tab 2 at 1-3, 7-8. The
appellant, through his attorney representative, responded by stating that he did
not file his petition in a timely manner because the Board was not issuing
decisions on such petitions. PFR File, Tab 5 at 1. The agency moved to have the
appellant’s petition for review dismissed as untimely filed. PFR File, Tab 4 at 4.
3
ANALYSIS
The appellant bears the burden to prove by preponderant evidence that his
petition for review is timely filed. Perry v. Office of Personnel
Management, 111 M.S.P.R. 337, ¶ 5 (2009); 5 C.F.R. § 1201.56(b)(2)(i)(B). A
petition for review must generally be filed within 35 days after the date of
issuance of the initial decision or, if the petitioner shows that the initial decision
was received more than 5 days after the date of issuance, within 30 days after the
date the petitioner received the initial decision. Retzler v. Department of the
Navy, 114 M.S.P.R. 361, ¶ 4 (2010); 5 C.F.R. § 1201.114(e). The Board will
waive this time limit only upon a showing of good cause. Barker v. Department
of the Air Force , 98 M.S.P.R. 10, ¶ 7 (2004); 5 C.F.R. § 1201.114(g). To
establish good cause, a party must show that he exercised due diligence or
ordinary prudence under the particular circumstances of the case. Brame v.
Department of Veterans Affairs , 98 M.S.P.R. 224, ¶ 4 (2005). To determine
whether an appellant has shown good cause, the Board will consider the length of
the delay, the reasonableness of the appellant’s excuse and his showing of due
diligence, whether he is proceeding pro se, and whether he has presented
evidence of circumstances beyond his control, unavoidable casualty, or
misfortune that prevented him from timely filing his petition. Id.; Alonzo v.
Department of the Air Force , 4 M.S.P.R. 180, 184 (1980).
The initial decision was served on the appellant via U.S. mail on
June 20, 2018. IAF, Tab 14. The Board recognizes that documents placed in the
mail are presumed to be received within 5 days. Williamson v. U.S. Postal
Service, 106 M.S.P.R. 502, ¶ 7 (2007). The appellant has not set forth any
argument that he received the initial decision more than 5 days after its issuance.
Therefore, as correctly outlined in the initial decision, the appellant’s deadline
for filing his petition for review was July 25, 2018, which was 35 days after
the issuance of the initial decision. ID at 3; see Retzler, 114 M.S.P.R. 361, ¶ 4;
5 C.F.R. § 1201.114(e).
4
The appellant’s petition for review is postmarked August 13, 2018. PFR
File, Tab 1 at 4. The date of a filing by mail is determined by the postmark date,
meaning the appellant filed his petition 19 days beyond the deadline. 5 C.F.R.
§ 1201.4(l). This is not a minimal delay, especially considering that the appellant
was represented by counsel. See Gonzalez v. Department of Veterans Affairs ,
111 M.S.P.R. 697, ¶ 11 (2009) (finding that an 8-day filing delay was “not
minimal”); Lima v. Department of the Air Force , 101 M.S.P.R. 64, ¶ 8 (2006)
(finding that a 9-day delay in filing a petition for review by an appellant
represented by counsel was “not minimal”). Moreover, the appellant’s sole
argument to establish good cause was that the Board lacked a quorum during the
filing period, meaning no decisions on petitions were being issued. PFR File,
Tab 5 at 1. In the initial decision however, the appellant received explicit notice
that the Board’s lack of a quorum did not serve as justification to extend the
filing period of a petition for review. ID at 4. The appellant also received notice
to comply with the time limits despite the Board’s lack of a quorum. ID at 4. It
is not an exercise of due diligence or ordinary prudence when a party fails to take
heed of the instructions and deadline date contained in an initial decision
regarding the filing of a petition for review. McNevin v. Department of the Air
Force, 77 M.S.P.R. 108, 112 (1997). As a result, we find that the appellant has
not established good cause to justify waiving the 19-day filing delay.
Accordingly, we dismiss his petition for review as untimely filed.
This is the final decision of the Board concerning the timeliness of the
appellant’s petition for review. The initial decision remains the final decision of
the Board concerning the merits of the appeal. 5 C.F.R. § 1201.113(c).
5
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for 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.
6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
7
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
8
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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.
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. | Medwid_TeddyNY-0831-18-0096-I-1__Final_Order.pdf | 2024-04-26 | TEDDY MEDWID v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. NY-0831-18-0096-I-1, April 26, 2024 | NY-0831-18-0096-I-1 | NP |
1,642 | https://www.mspb.gov/decisions/nonprecedential/Harris_Jackie_L_DA-0845-22-0101-X-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JACKIE L. HARRIS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-0845-22-0101-X-1
DATE: April 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jackie L. Harris , DeKalb, Texas, pro se.
Kevin Beach , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
In an August 18, 2022 compliance initial decision, the administrative judge
found the agency noncompliant with the April 6, 2022 initial decision reversing
the reconsideration decision of the Office of Personnel Management (OPM) and
ordering appropriate relief. Harris v. Office of Personnel Management , MSPB
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Docket No. DA-0845-22-0101-C-1, Compliance File, Tab 3, Compliance Initial
Decision (CID); Harris v. Office of Personnel Management , MSPB Docket No.
DA-0845-22-0101-I-1, Tab 12, Initial Decision (ID). 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
On April 6, 2022, the administrative judge issued an initial decision
reversing OPM’s reconsideration decision and ordering OPM to halt collection of
the overpayment it had sought from the appellant and to refund to the appellant
any amounts it had deducted from her annuity to satisfy the overpayment. ID
at 3-4. Following the appellant’s petition for enforcement of this order, the
administrative judge issued a compliance initial decision on August 18, 2022,
finding OPM noncompliant because it had failed to respond to the petition for
enforcement. CID at 2. The administrative judge ordered OPM to submit
evidence showing that it had stopped the overpayment and had refunded
appropriate amounts to the appellant’s annuity. CID at 3.
In the compliance initial decision, the administrative judge informed OPM
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 has taken those actions. CID at 5-6; 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 January 24, 2023, the date on
which the findings of noncompliance would become final unless a petition for
review was filed. CID at 3-4; see 5 C.F.R. §§ 1201.114(e), 1201.183(a)(6)(ii),
1201.183(b). Neither party filed a petition for review. Accordingly, pursuant to
2
5 C.F.R. § 1201.183(b)-(c), the administrative judge’s findings of noncompliance
became final.
On August 31, 2022, OPM filed a statement of compliance asserting that it
had taken the actions ordered and providing a copy of a letter it had sent to the
appellant so informing her. Harris v. Office of Personnel Management , MSPB
Docket No. DA-0845-22-0101-X-1, Compliance Referral File (CRF), Tab 1 at 4.
The Clerk’s Office issued an acknowledgement order notifying the appellant of
her right to respond to OPM’s submission. CRF, Tab 2 at 2. On April 6, 2023,
the appellant filed a statement asserting that OPM had taken the actions ordered
by the administrative judge and that she was satisfied with the outcome. CRF,
Tab 4 at 3.
When 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).
Here, OPM has submitted a statement of compliance, and the appellant has
affirmatively stated that she is satisfied that OPM has complied. Accordingly, we
find OPM 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 | Harris_Jackie_L_DA-0845-22-0101-X-1__Final_Order.pdf | 2024-04-26 | JACKIE L. HARRIS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0845-22-0101-X-1, April 26, 2024 | DA-0845-22-0101-X-1 | NP |
1,643 | https://www.mspb.gov/decisions/nonprecedential/Weed_Alvern_C_DE-1221-09-0320-C-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALVERN C. WEED,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
DE-1221-09-0320-C-2
DATE: April 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bryan Charles Tipp , Esquire, Missoula, Montana, for the appellant.
Mary Thorson , Esquire, Chicago, Illinois, for the agency.
Patrick W. Carlson , Esquire, Baltimore, 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 compliance initial
decision, which dismissed his petition for enforcement as moot. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision.
5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant, a 10-point compensable preference-eligible veteran, filed a
2008 Board appeal (MSPB Docket No. DE-3330-08-0490-I-1) under the Veterans
Employment Opportunities Act of 1998 (VEOA) alleging that the agency violated
his veterans’ preference rights when it used the Federal Career Intern Program to
non-competitively fill four positions in its Kalispell, Montana office in 2006 and
2007.2 Weed v. Social Security Administration , 112 M.S.P.R. 323, ¶¶ 3-4
n.1 (2009).
In 2008, the appellant also filed a complaint with the Equal Employment
Opportunity Commission (EEOC) alleging that the agency discriminated against
him based on his age and retaliated against him for his prior equal employment
opportunity activity by precluding him from applying for the four positions at
2 The agency filled one of the positions (claims representative) on September 5, 2006; it
filled two positions (claims representative and contact representative) on July 8, 2007;
and it filled the remaining position (contact representative) on September 30, 2007. See
Weed v. Social Security Administration , MSPB Docket Nos. DE-1221-09-0320-B-1,
DE-3330-08-0490-B-2, DE-4324-09-0086-B-2, Final Order at 14 (Sept. 10, 2012).2
issue in this appeal. Weed v. Social Security Administration , MSPB Docket
No. DE-1221-09-0320-C-2, Compliance Appeal File (C-2 AF), Tab 2 at 79. On
February 15, 2011, an EEOC administrative judge issued a decision finding that
the agency had engaged in reprisal in violation of the Age Discrimination In
Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq., regarding the
three positions that it filled in July and September of 2007, and ordered the
agency to offer the appellant one of the positions it filled on July 8, 2007,
retroactive to that date. Id. at 80. On July 18, 2011, the agency offered the
appellant the claims representative position retroactive to July 8, 2007; however,
the appellant, who had retired in June 2008, declined the offer. Id. at 87, n.3;
Weed v. Social Security Administration , MSPB Docket No. DE-1221-09-0320-
C-1, Compliance File (CF), Tab 3 at 16, 19. In November 2011, the agency
provided the appellant back pay for the period from July 8, 2007, to August 13,
2011. C-2 AF, Tab 5 at 26.
In the meantime, on October 22, 2011, the administrative judge issued a
remand initial decision granting the appellant corrective action in the VEOA
appeal. Weed v. Social Security Administration , MSPB Docket No. DE-3330-08-
0490-B-2, Remand File, Tab 65, Remand Initial Decision at 23-26. In a
September 10, 2012 Final Order, the Board affirmed the finding in the remand
initial decision that the agency violated the appellant’s rights under VEOA and
ordered the agency to reconstruct the hiring process for the four positions at
issue. Weed v. Social Security Administration , MSPB Docket Nos. DE-1221-09-
320-B-1, DE-3330-08-0490-B-2, DE-4324-09-0086-B-2, Final Order at 2, 6-9,
12-14 (Sept. 10, 2012).
On October 9, 2012, the agency offered the appellant the claims
representative position it filled on September 5, 2006, retroactive to that date.
CF, Tab 3 at 14. The appellant effectively declined the offer on October 17,3
2012.3 Weed v. Social Security Administration , MSPB Docket No. 1221-09-0320-
P-2, Refiled Damages File (P-2 DF), Tab 36, Addendum Initial Decision (P-2
AID) at 5 n.3.
On November 1, 2012, the appellant filed a petition for enforcement
arguing that the agency failed to comply with the Board’s order to reconstruct the
hiring process for the four positions at issue, CF, Tab 1 at 2, and a petition for
damages seeking compensation for lost wages and benefits under the VEOA
pursuant to 5 U.S.C. § 3330c(a). Weed v. Social Security Administration , MSPB
Docket No. DE-1221-09-0320-P-1, Damages File (DF), Tab 1 at 1-8. On
March 6, 2013, the administrative judge issued an initial decision that dismissed
the appellant’s petition for damages as premature because there had not been a
determination as to whether the agency would have selected the appellant had the
VEOA violation not occurred. DF, Tab 6, Initial Decision.
On March 29, 2013, the agency conceded that, absent a violation of the
appellant’s veterans’ preference rights, he would have been selected for the
positions in question. CF, T ab 8 at 5-15, 19. The appellant filed a renewed
petition for damages on April 26, 2013. P-2 DF, Tab 1. On July 23, 2013, the
administrative judge issued a compliance initial decision that dismissed the
appellant’s petition for enforcement as moot and notified the appellant that his
damages claim was ripe for consideration. CF, Tab 12, Compliance Initial
Decision (CID) at 7-8. In finding the petition for enforcement moot, the
administrative judge noted that, in Marshall v. Department of Health and Human
Services, 587 F.3d 1310, 315-18 (Fed. Cir. 2009), our reviewing court held that,
when it is undisputed that the agency would have selected the appellant but for a
3 In the offer letter, the agency notified the appellant that failure to respond on or before
7 calendar days from his receipt of the offer would be considered a declination. CF,
Tab 3 at 14. It is undisputed that the appellant received the offer letter on October 10,
2012. Weed v. Social Security Administration , MSPB Docket No. 1221-09-0320-P-2,
Refiled Damages File (P-2 DF), Tab 36, Addendum Initial Decision at 5 n.3. Although
the appellant’s attorney indicated in an October 11, 2012 letter to the agency’s attorney
that the appellant was “generally inclined to accept the position offered,” he did not do
so. CF, Tab 4 at 13.4
veterans’ preference violation, VEOA requires the agency to offer him the same,
or a substantially equivalent, position. CID at 6. The administrative judge found
that, because the agency conceded that the appellant would have been selected for
the positions at issue but for its veterans’ preference violation, and offered him
the first position at issue retroactive to September 5, 2006, the agency was in
material compliance with the Board’s September 10, 2012 Final Order. CID
at 6-7.
In the damages proceeding, the administrative judge issued an addendum
initial decision on February 11, 2016, finding that, pursuant to 5 U.S.C. § 3330c,
the appellant was entitled to lost wages or benefits from the selection date that
violated his veterans’ preference rights until he was either placed in the position
at issue or declined the position at issue. P-2 AID at 3-4 (citing Marshall,
587 F.3d at 1318). Accordingly, the administrative judge granted the appellant
lost wages from the date the agency appointed an individual to the first of the
four positions at issue, September 5, 2006, until the date the appellant declined
the agency’s offer to appoint him to that position, October 17, 2012. P-2 AID
at 5, 8.
In a December 21, 2016 Opinion and Order, the Board affirmed the
addendum initial decision as modified to find that the appellant was also entitled
to lost benefits, and ordered the agency to pay the appellant lost wages and
benefits from September 5, 2006, until October 17, 2012, within 60 days of the
order. Weed v. Social Security Administration , 124 M.S.P.R. 71, ¶¶ 21, 24
(2016), aff’d, 711 F. App’x, 624 (Fed. Cir. 2017).
On March 13, 2017, the appellant filed a petition for enforcement alleging
that the agency had not complied with the Board’s order to pay him lost wages
and benefits from September 5, 2006, to October 17, 2012. C-2 AF, Tabs 1-2. In
its April 5, 2017 response, the agency asserted that it was in full compliance with
the Board’s final order and had provided the appellant lost wages and benefits for
the requisite period, although the need to work with other agencies to calculate5
the lost wages and benefits had delayed its compliance by approximately 30 days.
C-2 AF, Tab 5 at 5, 12.
On August 23, 2018, the administrative judge issued a compliance initial
decision that dismissed the petition for enforcement as moot. C-2 AF, Tab 24,
Compliance Initial Decision (C-2 CID) at 1, 13. The administrative judge found
that, “while the agency may not have been in compliance [with the Board’s
December 21, 2016 final order] initially, it has now shown compliance and the
appellant has received all of the relief that he could have received had he
prevailed.” C-2 CID at 9; see Laviene v. U.S. Postal Service , 53 M.S.P.R. 238,
243-44 (1992) (holding that, in light of the agency’s evidence of compliance, the
appellant’s petition for enforcement was moot). In support of this conclusion, the
administrative judge found that: it is undisputed that the agency processed the
appellant’s lost wages and benefits for the period inclusive of September 5, 2006,
to October 17, 2012, C-2 CID at 9 (citing C-2 AF, Tab 5 at 25-125); the appellant
acknowledged in an affidavit that he received the payment of lost wages and
benefits on March 31, 2017, C-2 CID at 11 (citing C-2 AF, Tab 13 at 10); and the
appellant does not dispute the agency’s line-item calculations, C-2 CID at 11.
The appellant has filed a petition for review of the compliance initial
decision, the agency has filed a response in opposition to the petition for review,
and the appellant has filed a reply to the agency’s response. Weed v. Social
Security Administration , MSPB Docket No. DE-1221-09-0320-C-2, Petition for
Review (C-2 PFR File), Tabs 1, 3, 6. The appellant also has filed a motion to
strike the agency’s response to his petition for review, and the agency has
opposed that motion. C-2 PFR File, Tabs 4-5.
ANALYSIS
We deny the appellant’s motion to strike the agency’s response to the petition
for review.
The appellant has filed a motion to strike the agency’s response to his
petition for review on the grounds that it exceeds the page limitation on such6
responses set forth in 5 C.F.R. § 1201.114(h). C-2 PFR File, Tab 4 at 5. In
support of his motion, the appellant asserts that 5 C.F.R. § 1201.114(h) specifies
that responses to petitions for review are limited to 15 pages, exclusive of any
table of contents, table of authorities, attachments, and certificate of service. Id.
The appellant has apparently misread 5 C.F.R. § 1201.114(h), which sets the page
limitation for both petitions for review and responses to petitions for review at
30 pages. The agency’s response is 25 pages, exclusive of any table of contents,
table of authorities, attachments, and certificate of service. C-2 PFR File, Tab 3
at 4-28. Therefore, t he agency’s response complies with the page limit set forth
in 5 C.F.R. § 1201.114(h), and we deny the appellant’s motion to strike.
We decline to consider the documents the parties submit on review.
Both parties have submitted documents on review. C-2 PFR File, Tab 1
at 26-27, Tab 3 at 31-72. The Board generally will not consider evidence
submitted for the first time on review absent a showing that the documents and
the information contained in the documents were unavailable before the record
closed despite due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211,
214 (1980). 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). To constitute new and material evidence, the
information contained in the documents, not just the documents themselves, must
have been unavailable despite due diligence when the record closed. Grassell v.
Department of Transportation , 40 M.S.P.R. 554, 564 (1989).
With his petition for review, the appellant submits an annuity statement
from the Office of Personnel Management (OPM) dated September 23, 2018,
which shows the amount of money that OPM deducted from the appellant’s
annuity payment for October 2018 to collect an overpayment that the appellant
received. C-2 PFR File, Tab 1 at 3. Although this statement is new evidence, it7
is not material, as it has no bearing on whether the agency complied with the
Board’s order in Weed, 124 M.S.P.R. 71, ¶ 24.. See Russo, 3 M.S.P.R. at 349.
Many of the documents that the agency submits on review are already part
of the record. Compare C-2 PFR File, Tab 3 at 44-46, 48, 50-52, 54, 56, 58, and
60-70, with C-2 AF, Tab 22 at 54-56, Tab 5 at 59, Tab 22 at 58-60, Tab 5 at 61,
62, and 60, and Tab 22 at 8-18. Evidence that is already a part of the record is
not new. Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980).
Further, none of the documents submitted on review is material to the outcome of
this appeal because they fail to show that any of the administrative judge’s
findings are erroneous or that a different outcome is warranted. Russo,
3 M.S.P.R. at 349. Therefore, they provide no basis to disturb the initial
decision.
The administrative judge properly dismissed the appellant’s petition for
enforcement as moot.
Mootness can arise at any stage of litigation. An appeal will be dismissed
as moot when, by virtue of an intervening event, the Board cannot grant any
effectual relief in favor of the appellant, as when the appellant, by whatever
means, obtained all of the relief he could have obtained had he prevailed before
the Board and thereby lost any legally cognizable interest in the outcome of the
appeal. Washburn v. Department of the Air Force , 119 M.S.P.R. 265, ¶ 12
(2013).
As the administrative judge found, there is no dispute that the agency paid
the appellant lost wages and benefits from September 5, 2006, to October 17,
2012, as ordered by the Board in Weed, 124 M.S.P.R. 71, ¶ 24. C-2 CID at 9, 11.
On review, the appellant explicitly acknowledges that the agency complied with
the Board’s order. See C-2 PFR File, Tab 1 at 12 (stating that he recognizes that
the agency was following the Board’s December 21, 2016 Opinion and Order “to
the letter” in calculating his back pay award) and 14 (stating that, after he filed a
supplement to his petition for enforcement, he realized that the Board specifically8
directed the agency to reset his imputed retroactive appointment date to
September 5, 2006).
Nevertheless, the appellant argues on review that he has not received all of
the relief that he could have received had he prevailed and, therefore, his petition
for enforcement is not moot. C-2 PFR File, Tab 1 at 17-18. In particular, he
contends that the Board could have ordered the agency to appoint him to the
claims representative position retroactive to July 8, 2007, id. at 17, and he alleges
that both the administrative judge and the Board selected September 5, 2006, as
the appropriate retroactive appointment date based on the agency’s false
representations that retroactively appointing the appellant to the claims
representative position as of September 5, 2006, would be “most advantageous”
for him. Id. at 16-18. The appellant asserts that the Board should remedy its
“fraudulently-induced order” of December 21, 2016, by directing the agency to
appoint him to the claims representative position effective July 8, 2007. Id. at 17,
23-24.
We find that the record does not support the appellant’s claim that the
administrative judge and the Board ordered the agency to pay the appellant lost
wages retroactive to September 5, 2006, based on the agency’s representations
that an imputed retroactive appointment date of September 5, 2006, was “most
advantageous” to the appellant. As previously discussed, the February 16, 2011
Addendum Initial Decision shows that the administrative judge granted the
appellant lost wages from September 5, 2006, to October 17, 2012, based on her
finding that, pursuant to 5 U.S.C. § 3330c, the appellant was entitled to lost
wages or benefits from the selection date that violated his veterans’ preference
rights until he was either placed in the position at issue or declined the position at
issue. P-2 AID at 3-4 (citing Marshall, 587 F.3d at 1318). Thus, this decision
clearly indicates that the administrative judge properly selected September 5,
2006, as the appropriate beginning date for calculating the appellant’s lost wages
based on the relevant statute, not on the agency’s representations as to which of9
the four positions at issue would have been most beneficial to the appellant.
Accordingly, to the extent that the appellant asks the Board to set aside the
portion of the Board’s December 21, 2016 Order directing the agency to pay the
appellant wages and benefits beginning on September 5, 2006, on the grounds
that it was “fraudulently-induced,” we deny that request.
On review, the appellant also reasserts his argument from below that
implementation of the Board’s December 21, 2016 Order diminished the remedy
previously ordered by the EEOC. C-2 PFR File, Tab 1 at 5, 12-13; C-2 AF,
Tab 16 at 19-21. In support of this claim, the appellant asserts that calculating
the back pay award based on a starting date of September 5, 2006, at the GS-11,
step 8 pay level, as the Board order required, results in a lower award than
calculating the back pay award based on a starting date of July 8, 2007, at the GS-
11, step 9 pay level, as the EEOC order required. C-2 PFR File, Tab 1 at 12-13.
He contends that the Board exceeded its authority by issuing the December 21,
2016 Order because the Board cannot issue an order that adversely affects a prior
EEOC order. Id. at 18-19.
The administrative judge addressed this argument in the compliance initial
decision. C-2 CID at 12. She found that any reduction of the EEOC award is a
matter outside the Board’s jurisdiction and does not alter the fact that the agency
is in material compliance with the Board’s final order to pay the appellant lost
wages and benefits from September 5, 2006, until October 17, 2012. Id.
We agree. It is well settled that the purpose of an enforcement proceeding
is to obtain compliance with the Board’s final order and that, once compliance is
obtained, the compliance matter is moot. See Henry v. Department of Veterans
Affairs, 108 M.S.P.R. 458, ¶¶ 24-25 (2008). T he consequences of the agency’s
compliance do not negate the compliance, nor do they have any bearing on
whether the compliance matter is moot. Thus, even if the implementation of the
Board’s final order effectively reduced the EEOC award, this provides no basis to
disturb the administrative judge’s findings that the agency is in material10
compliance with the Board’s order and that the petition for enforcement is,
therefore, moot.4
The appellant has failed to show adjudicatory error.
Lastly, the appellant argues on review that the administrative judge should
have ordered the parties to submit evidence on the issue of which position is most
advantageous to him, as that issue is critical to an equitable decision on damages.
C-2 PFR File, Tab 1 at 22. He contends that the administrative judge’s failure to
order evidence on this issue denied him the opportunity to refute the agency’s
false assertions and adversely affected his entitlement to back pay and benefits.
Id. at 22-23.
The appellant’s argument is unavailing. This is an enforcement
proceeding, not a damages proceeding, and the issue of which position was most
advantageous to the appellant has no bearing on whether the agency complied
with the Board’s order. Accordingly, we find that the administrative judge
properly did not order the submission of evidence about that issue.
In sum, because the agency provided the appellant the remedy ordered by
the Board in its December 21, 2016 Final Order, we agree with the administrative
judge’s determination that the petition for enforcement is moot.
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
4 Similarly, that the implementation of the Board’s December 21, 2016 Order resulted in
an overpayment of the appellant’s retirement annuity, which OPM is currently
collecting by deducting money from the appellant’s monthly annuity payments,
provides no basis to disturb the administrative judge’s finding that the agency is in
material compliance with the Board’s order. C-2 PFR File, Tab 1 at 13, 14 n.2.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.11
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at12
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal 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,13
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,14
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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. 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 | Weed_Alvern_C_DE-1221-09-0320-C-2__Final_Order.pdf | 1221-09-03 | ALVERN C. WEED v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. DE-1221-09-0320-C-2, April 26, 2024 | DE-1221-09-0320-C-2 | NP |
1,644 | https://www.mspb.gov/decisions/nonprecedential/Rather_Darrick_D_AT-0752-22-0222-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DARRICK D. RATHER,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-0752-22-0222-I-1
DATE: April 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Albert Lum , Brooklyn, New York, for the appellant.
Maryl R. Rosen , Esquire, St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The agency has filed a petition for review of the initial decision, which
reversed the agency’s demotion action on due process grounds. 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 with the agency as an EAS-22 Postmaster at
its Auburn, Alabama Post Office. Initial Appeal File (IAF), Tab 5 at 25. By
letter dated October 15, 2021, the agency proposed his demotion based on a
charge of unsatisfactory performance with 13 underlying specifications. Id.
at 39-46. The appellant responded in writing to the proposal notice.2 Id.
at 36-38. By letter dated February 8, 2022, the deciding official issued a decision
demoting the appellant from his EAS-22 Postmaster position to an EAS-17
Supervisor, Customer Services position, effective 30 days from the appellant’s
receipt of the decision letter. Id. at 26-32. In the decision, the deciding official
set forth the factors enumerated in Douglas v. Veterans Administration ,
5 M.S.P.R. 280, 305 -06 (1981), that he considered in reaching his decision. Id.
at 29-30. He acknowledged therein that “[he] considered [the appellant’s] past
discipline record.” Id. at 29.
The appellant filed this appeal to the Board, arguing that the agency
violated his due process rights. IAF, Tab 1. After holding a hearing, the
2 In the appellant’s response to the proposed demotion, he asserted that the agency’s
proposal notice failed to address the factors enumerated in Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305 -06 (1981). IAF, Tab 5 at 37.2
administrative judge issued an initial decision reversing the agency’s demotion
action on due process grounds. IAF, Tab 22, Initial Decision (ID) at 1, 5. The
administrative judge found that the agency considered ex parte information
without providing the appellant with notice and an opportunity to respond to that
information. ID at 3-5. Specifically, he noted that the deciding official, in his
testimony, identified numerous disciplinary actions that he requested to review
and considered in the penalty analysis that were not articulated in the proposal
notice. Id. Thus, the administrative judge ordered the agency to cancel the
demotion action and retroactively restore the appellant, effective March 13, 2022,
and pay him the appropriate amount of back pay with interest and other
adjustments. ID at 5.
The agency has filed a petition for review in which it argues that the
administrative judge erred in concluding that the agency violated the appellant’s
right to minimum due process. Petition for Review (PFR) File, Tab 1 at 4-16.
The appellant has filed a response in opposition to the petition for review,
arguing that the administrative judge correctly determined that the agency
deprived him of his right to minimum due process. PFR File, Tab 3 at 4-5. The
agency has filed a reply. PFR File, Tab 4 at 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The essential requirements of procedural due process are prior notice of the
charges against the employee and a meaningful opportunity to respond to those
charges. Cleveland Board of Education v. Loudermill , 470 U.S. 532, 546 (1985);
see 5 U.S.C. § 7513(b). Here, the administrative judge found that the appellant’s
past discipline was not raised in the proposal notice, the appellant did not have a
chance to respond to this new information, and it was material to the deciding
official’s decision to sustain the demotion. ID at 4-5. The administrative judge
therefore concluded that the deciding official’s consideration of such information
without notice to the appellant violated his due process rights. Id.3
In its petition for review, the agency argues that the administrative judge
erred when he determined that the deciding official violated the appellant’s due
process rights when considering the appellant’s past discipline in setting the
penalty, the appellant should have known that the deciding official would
consider his past discipline because the agency made this information available in
the materials it relied on, and the administrative judge incorrectly applied the rule
on ex parte communications. PFR File, Tab 1 at 4, 11-16.
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). Not every ex parte communication is a procedural defect
so substantial and so likely to cause prejudice that it undermines the due process
guarantee and entitles the claimant to an entirely new administrative proceeding;
rather, only ex parte communications that introduce new and material information
to the deciding official will violate the due process guarantee of notice. Id.
The Board will consider the following factors, among others, to determine
whether an ex parte contact is constitutionally impermissible: (1) whether the ex
parte communication introduces cumulative, as opposed to new, information;
(2) whether the employee knew of the information and had an opportunity to
respond; and (3) whether the communication was “of the type likely to result in
undue pressure upon the deciding official to rule in a particular manner.” Id.
at 1377. Ultimately, the inquiry of the Board is whether the ex parte
communication is so substantial and so likely to cause prejudice that no employee
can fairly be required to be subjected to a deprivation of property under such
circumstances. Id. The Board has held that this analysis applies to penalty
considerations. Wilson v. Department of Homeland Security , 120 M.S.P.R. 686,4
¶ 9 (2014), aff’d, 595 F. App’x 995 (Fed. Cir. 2015); see Lopes v. Department of
the Navy, 116 M.S.P.R. 470, ¶ 5 (2011) (observing that when a deciding official
considers either ex parte information provided to him or information personally
already known to him, the employee is no longer on notice of portions of the
evidence relied upon by the agency in imposing the penalty). We agree with the
administrative judge that the agency violated the appellant’s due process rights
for the following reasons.
The agency argues on review that under Alvarado v. Department of the Air
Force, 97 M.S.P.R. 389, ¶ 15 (2004), it satisfied its notice requirement because
“the prior discipline was in fact included in the documents relied on and used to
prepare the discipline and was made available to [the] [a]ppellant to review after
the proposed downgrade was issued.” PFR File, Tab 1 at 4, 11. It also cites
Harding v. U.S. Naval Academy , 567 F. App’x 920, 924-25 (Fed. Cir. 2014), an
unpublished Federal Circuit opinion, to support its argument that it afforded the
appellant minimum due process. PFR File, Tab 1 at 12. In Harding, 567 F.
App’x at 924-25, the court found that informing the appellant of her right to
access the materials the agency relied upon to support its action was sufficient to
satisfy any possible due process concerns when she did not allege that the agency
denied her the opportunity to review those materials or that the document at issue
was not included in them. We have considered the agency’s contention,
nonetheless we are not persuaded.
In the proposal notice, the proposing official identified 13 specifications of
unsatisfactory performance between September 26, 2020, and April 9, 2021. IAF,
Tab 5 at 39-46. The proposal notice did not specifically identify any Douglas
factors nor did it include any prior incidents of discipline. Id. However, as noted
above, the record shows that the deciding official considered the appellant’s past
discipline in determining the penalty. IAF, Tab 20, Hearing Audio (HA)
(testimony of the deciding official), Tab 5 at 29. Notably, as the administrative
judge explained in the initial decision, the deciding official testified that he5
requested the appellant’s prior disciplinary actions before making the penalty
determination. ID at 4; HA (testimony of the deciding official).
The agency contends on review that the administrative judge incorrectly
inferred that the deciding official “asked to be provided with [the] [a]ppellant’s
prior discipline to review as he weighed the penalty because he did not already
have these records.” PFR File, Tab 1 at 11. This argument is unavailing. Other
than the agency’s mere assertion, it provides no evidence that the appellant’s
prior discipline records were, in fact, provided to the appellant with the proposal.
We are also not persuaded that the agency included the appellant’s past
disciplinary actions with the materials relied on when the proposal notice was
silent as to prior discipline and the deciding official had to request those
documents to review before making his decision. Thus, we agree with the
administrative judge’s finding that the consideration of the appellant’s past
disciplinary record was an ex parte communication. ID at 4.
To the extent the agency argues that the administrative judge incorrectly
applied the rule on ex parte communication, we disagree. Regarding the first
Stone factor, the Board has held that additional, specific instances of misconduct,
although similar in nature to the charged misconduct, cannot be considered
merely cumulative. See Silberman v. Department of Labor , 116 M.S.P.R. 501,
¶ 12 (2011). The agency appears to argue that the appellant’s prior discipline was
cumulative because it was also based on unsatisfactory performance. PFR File,
Tab 1 at 7-9. However, there is little, if any, evidence that the appellant had any
meaningful knowledge that the agency would rely on his prior disciplinary
actions between August 2018 and March 2020 in its decision when the agency did
not mention them in the proposal notice. Thus, we believe the information is new
and meets the first Stone factor. Regarding the second Stone factor, based on the
deciding official’s testimony that he requested the appellant’s past discipline, it
does not appear that the agency gave the appellant notice or an opportunity to
respond to that new information. HA (testimony of the deciding official). We6
find that this meets the second Stone factor. Regarding the third Stone factor, the
undue pressure factor is only one of several enumerated factors and is not the
ultimate inquiry in the Stone analysis. See Silberman, 116 M.S.P.R. 501, ¶ 13
(citing Ward v. U.S. Postal Service , 634 F.3d 1274, 1280 n.2 (Fed. Cir. 2011)).
Our case law establishes that information is plainly material when the deciding
official admits that the information influenced his penalty determination. See id.,
¶¶ 12-13. Here, the deciding official acknowledged in his decision letter that he
considered “multiple corrective actions that are no longer live in [the appellant’s]
file” and testified to the same. HA (testimony of the deciding official); IAF,
Tab 5 at 29. Therefore, we find that the ex parte information was plainly
material.
Based on the foregoing, we find that the deciding official’s consideration
of new and material information undermined the appellant’s constitutional due
process guarantees of notice and the opportunity to respond. Accordingly, we
affirm the initial decision.
ORDER
We ORDER the agency to cancel the appellant’s demotion and restore him
to the position of EAS-22 Postmaster at the Auburn, Alabama Post Office,
effective March 13, 2022. See Kerr v. National Endowment for the Arts , 726 F.2d
730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days
after the date of this decision.
We also ORDER the agency to pay the appellant the correct amount of
back pay, interest on back pay, and other benefits under the Back Pay Act and/or
Postal Service regulations, as appropriate, 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, interest7
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.
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 fees8
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
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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.9
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on10
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or11
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 12
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13
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. | Rather_Darrick_D_AT-0752-22-0222-I-1 Final Order.pdf | 2024-04-26 | DARRICK D. RATHER v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0752-22-0222-I-1, April 26, 2024 | AT-0752-22-0222-I-1 | NP |
1,645 | https://www.mspb.gov/decisions/nonprecedential/Lopez_Luis_A_DE-0752-18-0098-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LUIS A. LOPEZ,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DE-0752-18-0098-I-1
DATE: April 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Steve Newman , Esquire, New York, New York, for the appellant.
Melinda Varszegi , Esquire, Sandy, Utah, 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 appellant’s removal. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
Effective November 22, 2017, the agency removed the appellant from his
position as a Sales and Services Distribution Associate with the agency’s Murray
Post Office in Salt Lake City, Utah, based on a charge of unacceptable conduct.
Initial Appeal File (IAF), Tab 7 at 11-16. In support of the charge, the agency
alleged that on October 11, 2017, one of the appellant’s coworkers (T.W.)
repeatedly asked him to excuse her because she did not have sufficient space to
move around him; however, he ignored her requests. Id. at 14. The agency
alleged that T.W. then crouched down and leaned over equipment in order to
proceed, and may have touched the appellant as she was moving past him. Id.
The agency further alleged that a few minutes later, the appellant and T.W.
were walking down an aisle in opposite directions when the appellant stepped
into T.W.’s path and collided with her, striking her body with such force that she
lost her balance, stumbled back a couple of steps, and sustained an injury. Id.
The agency alleged that T.W. then reported the appellant’s actions to an agency
manager, who instructed the appellant to leave the workroom floor; however,
instead of doing so, the appellant repeatedly shouted, “What did I do?” and left
the facility only after the manager told him that the police would be notified if he2
did not follow her instructions. Id. Later that day, T.W. sought medical
treatment for her injury and filed a police report. Id. at 56.
The appellant filed a Board appeal challenging his removal and he
requested a hearing. IAF, Tab 1. He did not raise any affirmative defenses. IAF,
Tab 5. After holding a hearing, the administrative judge issued an initial decision
that affirmed the appellant’s removal. IAF, Tab 25, Initial Decision (ID). The
administrative judge found that the agency proved the charge by preponderant
evidence, ID at 7-14, that there was a nexus between the charge and the efficiency
of the service, ID at 16, and that the penalty of removal was reasonable. ID
at 16-18.
The appellant has filed a petition for review in which he denies the alleged
misconduct and asserts that, in finding that the agency proved the charge, the
administrative judge failed to consider inconsistencies between T.W.’s hearing
testimony and statements she made during an October 16, 2017 interview with a
supervisor who was investigating the October 11, 2017 collision. Petition for
Review (PFR) File, Tab 1 at 3; IAF, Tab 7 at 41-43. He also argues that the
administrative judge improperly denied his witness requests and that the agency
withheld evidence from him. PFR File, Tab 1 at 2-3.
The agency has filed a response in opposition to the appellant’s petition.
PFR File, Tab 3. The appellant has filed a reply to the agency’s response. PFR
File, Tab 4.
ANALYSIS
The Board need not consider the documents the appellant submits on review.
The appellant submits several documents on review, including the
following: the police report filed by T.W. on October 11, 2017; the first page of
a 3-page summary of T.W.’s October 16, 2017 interview, in which she recounts
her history with the appellant; and two stalking injunctions and a summons that
were served on the appellant in April and May of 2018. PFR File, Tab 1 at 5-9,3
Tab 4 at 4-7. The Board will not consider evidence submitted for the first time on
review unless the appellant shows that the evidence was unavailable before the
record closed below despite the party’s due diligence. Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d)(1). Further, 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). To constitute new and material evidence, the information contained in
the documents, not just the documents themselves, must have been unavailable
despite due diligence when the record closed. Grassell v. Department of
Transportation, 40 M.S.P.R. 554, 564 (1989).
The excerpt from the summary of T.W.’s October 16, 2017 interview that
the appellant submits on review is already part of the record and thus is not new.
Compare PFR File, Tab 1 at 9, with IAF, Tab 7 at 41; see Meier v. Department of
the Interior, 3 M.S.P.R. 247, 256 (1980) (evidence that is already part of the
record is not new). Although the stalking injunctions and the summons postdate
the close of the record, these documents pertain to various criminal proceedings
against the appellant and have no bearing on this appeal. PFR File, Tab 4 at 5-7.
The rest of the documents that the appellant submits on review, including
the police report, are either undated or significantly predate the close of the
record, and the appellant has made no showing that any of those documents were
unavailable before the close of the record despite his due diligence. PFR File,
Tab 1 at 5-8, Tab 4 at 4. In that regard, we note that, although the appellant
contends that he was unaware that T.W. had filed a police report until he was
served with a stalking injunction on April 7, 2018, i.e., 5 days after the close of
the record below , documentation in the record explicitly states that T.W. filed a
police report following the collision. PFR File, Tab 1 at 2; IAF, Tab 7 at 56,
Tab 23 at 2. This information was provided to the appellant and his attorney in
January of 2018, more than 2 months before the record closed. IAF, Tab 7 at 63.4
Thus, the appellant was or should have been aware of the police report but made
no effort to obtain it before the record closed. Given these circumstances, we
find that the appellant failed to show that the police report was unavailable before
the close of the record despite his due diligence.
Moreover, the appellant indicates on review that he is submitting the police
report to impeach T.W.’s credibility. PFR File, Tab 1 at 2-3 (alleging that T.W.’s
statements to the police as to the location of the first incident are inconsistent
with her hearing testimony and that there are other unspecified discrepancies
between T.W.’s statements to the police and her statements to the agency official
during T.W.’s October 16, 2017 interview). It is well established that evidence
offered merely to impeach a witness’s credibility is not generally considered new
and material. Bucci v. Department of Education , 42 M.S.P.R. 47, 55 (1989).
Therefore, the Board need not consider any of the documents that the appellant
submits on review. Avansino, 3 M.S.P.R. 211, 214 (1980).
The administrative judge correctly found that the agency proved the charge by
preponderant evidence.
In finding that the agency proved the charge, the administrative judge fully
set forth the facts underlying the charge and considered the hearing testimony and
documentary evidence relevant to the charge, including the written statements of
the appellant, T.W., the manager who instructed the appellant to leave the
workroom floor on October 11, 2017, and several employees who witnessed the
appellant’s response to that instruction. ID at 2-14; IAF, Tab 7 at 17-20, 25-46.
The administrative judge observed that witness credibility was critical in this
appeal because the appellant and T.W. provided very different versions of their
collision and there were no eyewitnesses. ID at 8. Applying the factors for
resolving credibility issues set forth in Hillen v. Department of the Army ,
35 M.S.P.R. 453, 458 (1987), the administrative judge credited T.W.’s testimony
regarding the October 11, 2017 collision over the appellant’s conflicting
testimony, finding that the appellant’s version of events was inherently5
implausible and that T.W.’s description of the events leading to the collision, and
of the collision itself, was far more plausible than the appellant’s version. ID
at 11-12.
Moreover, contrary to the appellant’s assertion on review, in his Hillen
analysis, the administrative judge explicitly considered the inconsistencies
between T.W.’s hearing testimony and her October 16, 2017 account of her initial
encounter with the appellant on October 11, 2017. ID at 8-9. Specifically, the
administrative judge noted that T.W. testified that she “brushed past” the
appellant such that her “back and butt brushed passed him,” whereas she stated in
her written account of the incident, “I think our bodies may have touched
slightly.” Id.; IAF, Tab 7 at 42. The administrative judge found that the
difference between the two statements was insignificant because T.W.’s statement
and her hearing testimony both acknowledged the likelihood of bodily contact
during the first incident. ID at 9.
By contrast, the administrative judge found that there was a significant
inconsistency between the appellant’s testimony and the statement he provided
during the agency investigation regarding the issue of whether he refused to leave
the workroom floor in response to the manager’s directions. ID at 9.
Specifically, the administrative judge noted that, during the agency investigation,
the appellant “flatly denied” that he refused to leave the workroom floor;
however, he testified at the hearing that he clocked out because he did not want to
be arrested. Id.; IAF, Tab 7 at 34. The administrative judge found that this was a
significant inconsistency because the potential for arrest only arose because the
appellant refused to leave. ID at 9. The administrative judge concluded that the
appellant’s significant inconsistency far outweighed T.W’s minor inconsistency.
Id. Therefore, the administrative judge found, this credibility factor weighed in
favor of the agency. Id.
The administrative judge further found that T.W. and the agency’s other
witnesses, including the manager who asked him to leave the workroom floor6
following the collision, provided straightforward testimony that was consistent
and plausible, whereas the appellant’s testimony was disjointed and confused. ID
at 13. In sum, the administrative judge found that the Hillen factors significantly
weighed in favor of the agency and against the appellant, and that the agency
therefore proved the charge by preponderant evidence. ID at 14.
Although the appellant disagrees with the administrative judge’s credibility
findings, the initial decision reflects that the administrative judge considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions. Consequently, we discern no reason to reweigh the evidence or
substitute the Board’s own judgment on the issue of the credibility of the
witnesses. See Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir.
2002); Davison v. Department of Veterans Affairs , 115 M.S.P.R. 640, ¶ 9 (2011)
(finding that mere disagreement with an administrative judge’s explained findings
is not a basis to grant a petition for review). Accordingly, we find that the
appellant’s arguments on review do not provide a basis for disturbing the
administrative judge’s well-reasoned finding that the agency proved its charge.
The appellant’s remaining arguments are unpersuasive.
In support of his argument that the administrative judge improperly denied
his witness requests, the appellant asserts that his attorney informed him that the
administrative judge did not approve the witnesses he requested because they did
not “see anything.”2 PFR File, Tab 1 at 2. The appellant’s contention that the
administrative judge denied his witness requests is contradicted by the record,
which shows that the appellant requested three witnesses, all of whom were
2 In his reply to the agency’s response to the petition for review, the appellant asserts
that his attorney failed to adequately represent him, and he submits a witness list that he
purportedly provided his attorney, which includes several agency employees who were
not requested as witnesses for the appellant. PFR File, Tab 4 at 1, 4; IAF, Tab 13 at 5.
To the extent that the appellant blames his attorney for failing to request additional
witnesses, this argument provides no basis for disturbing the initial decision, as the
Board has long held that an appellant is responsible for the errors of his chosen
representative. Sofio v. Internal Revenue Service , 7 M.S.P.R. 667, 670 (1981).7
approved by the administrative judge;3 however, the appellant did not call these
witnesses at the hearing. IAF, Tab 23 at 1.
Lastly, the appellant asserts that he requested a copy of a file pertaining to
an investigation that the American Postal Workers’ Union conducted on his
behalf; however, they4 have denied him access to the file. PFR File, Tab 1 at 3.
We consider the appellant’s argument that the agency failed to provide him
documents that he requested as an allegation that the agency denied his discovery
request. Because the appellant did not file a motion to compel below, his
argument that he was denied discovery provides no basis for reversal of the initial
decision. Szejner v. Office of Personnel Management , 99 M.S.P.R. 275, ¶ 5
(2005) (finding that an appellant’s failure to file a motion to compel discovery
precluded him from raising an agency’s failure to respond to discovery for the
first time on petition for review), aff’d, 167 F. App’x 217 (Fed. Cir. 2006).
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
3 In the order approving the appellant’s requested witnesses, the administrative judge
also provided the appellant the opportunity to supplement his witness list; however, he
did not do so. IAF, Tab 13 at 5.
4 It is unclear whether the appellant is referring to the union or the agency; however, for
purposes of this appeal, we will assume that the appellant is referring to the agency.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.8
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 9
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 10
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.6 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 11
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Lopez_Luis_A_DE-0752-18-0098-I-1__Final_Order.pdf | 2024-04-26 | LUIS A. LOPEZ v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DE-0752-18-0098-I-1, April 26, 2024 | DE-0752-18-0098-I-1 | NP |
1,646 | https://www.mspb.gov/decisions/nonprecedential/Faris_Andrew_D_CH-0752-20-0205-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW D. FARIS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
CH-0752-20-0205-I-1
DATE: April 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew D. Faris , Indianapolis, Indiana, pro se.
Alison D. Alvarez , Esquire, 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 his appeal of an agency action removing him for violating a last chance
agreement (LCA) for lack of jurisdiction.2 On petition for review, the appellant
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).
2 As the agency observed below, it appears that the appellant prematurely filed his
Board appeal. See Initial Appeal File (IAF), Tab 8 at 15 n.1. The removal decision is
dated February 3, 2020, with an effective date of February 14, 2020. Id. at 67-69. The
appellant electronically filed his Board appeal on February 1, 2020, prior to the
February 14, 2020 effective date, and therefore his Board appeal was prematurely filed
argues that the LCA is a one-sided unconscionable contract, that he was denied
due process by the agency’s removal decision, and that his supervisors removed
him in retaliation for his union activity. Petition for Review (PFR) File, Tab 1 at
4. The appellant also challenges the merits of the agency’s November 20, 2019
absence without leave (AWOL) determination.3 Id. Finally, the appellant asserts
that his last day worked was January 3, 2020, not February 3, 2020, and he
provides copies of a number of earnings statements for the period from March
2019 through September 2019, along with a copy of a 14-day suspension dated
February 27, 2019. Id. at 4-36. However, the appellant has not challenged the
administrative judge’s findings that the Board lacks jurisdiction over this appeal
because the appellant waived his Board appeal rights in the LCA, and that waiver
of appeal rights was valid and enforceable. See Initial Appeal File, Tab 9, Initial
Decision (ID) at 8. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
by 13 days. See Initial Appeal File (IAF), Tab 1. Nevertheless, “[t]he Board’s practice
is to adjudicate an appeal that was premature when filed but becomes timely while
pending before the Board.” Wooten v. Department of Veterans Affairs , 96 M.S.P.R.
671, ¶ 9 (2004). Accordingly, any error by the administrative judge in failing to
dismiss the appeal was harmless because the appeal had become ripe for adjudication
upon the effective date of the removal, 13 days after the appeal was filed, and while the
appeal remained pending before the Board. See Gutierrez v. Department of the
Treasury, 99 M.S.P.R. 141, ¶ 3 n.1 (2005) (concluding that a premature probationary
termination appeal became timely upon the effective date of the termination); Groshans
v. Department of the Navy , 67 M.S.P.R. 629, 632-33 n.2 (1995) (determining that a
premature removal appeal became ripe for adjudication upon the effective date of the
removal).
3 As the agency notes in its response, the initial decision refers to 3.41 hours of AWOL,
instead of the 3.51 hours identified in the removal decision letter, which appears to be a
typographical error. PFR File, Tab 3 at 7 n.1; IAF, Tab 9, Initial Decision at 3, 6. This
typographical error is inadvertent, and this misstatement was harmless and did not
affect the outcome of the decision in any way. See Panter v. Department of the Air
Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that was not
prejudicial to a party’s substantive rights provided no basis for reversal of an initial
decision).2
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Regarding the appellant’s argument, raised for the first time on review, that
the LCA was unconscionable and one-sided, as the administrative judge noted
below, the appellant received consideration from the agency in the form of the
opportunity to remedy his attendance issues and retain his position in lieu of
removal. ID at 7; see Tetrault v. U.S. Postal Service , 71 M.S.P.R. 376, 380
(1996) (noting that consideration for an appellant’s waiver of his appeal rights
can include an agency’s agreement to reduce a removal to a suspension, or its
holding of a removal in abeyance for a period of time); Romano v. U.S. Postal
Service, 49 M.S.P.R. 319, 322 (1991) (finding valid consideration for waiver of
the appellant’s Board appeal right in the agency’s agreement to reduce the earlier
removal action to a suspension).
With respect to the earnings statements for the period from March 2019
through September 2019 and the copy of a 14-day suspension dated
February 27, 2019 that the appellant submitted with his petition for review, the
Board generally will not consider evidence submitted for the first time on review
absent a showing that: (1) the documents and the information contained in the
documents were unavailable before the record closed despite due diligence;
and (2) the evidence is of sufficient weight to warrant an outcome different from
that of the initial decision. Carson v. Department of Energy , 109 M.S.P.R. 213,
¶ 21 (2008), aff’d, 357 F. App’x 293 (Fed. Cir. 2009); Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d); see PFR File, Tab 13
at 4-36. All of the submitted documents predate the appellant’s February 1, 2020
appeal and thus are not new. 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);
Avansino, 3 M.S.P.R. at 214. The appellant also has not explained how the
submitted documents are material to the jurisdictional matter at issue in this
appeal, so we have not considered them. See Russo v. Veterans Administration ,
3 M.S.P.R. 345, 349 (1980).
Regarding the appellant’s arguments that he was denied due process and
that agency officials retaliated against him based on his union activity, because
the Board lacks jurisdiction over the appellant’s appeal of his removal due to the
valid waiver of appeal rights in the LCA, it has no authority to consider the
merits of any potential affirmative defenses raised by the appellant, such as his
due process and retaliation claims. See Martin v. Department of Defense ,
70 M.S.P.R. 653, 657 (1996); 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).
Finally, the appellant contends that he was sick on the day he was charged
with AWOL and alleges that, although he provided a doctor’s note, it was denied
by his supervisor and he was charged with AWOL instead of being marked tardy.
PFR File, Tab 1 at 4. The appellant did not raise this argument below and thus
we need not consider it. See Clay v. Department of the Army , 123 M.S.P.R. 245,
¶ 6 (2016) (noting that the Board generally will not consider an argument raised
for the first time in a petition for review absent a showing that it is based on new
and material evidence not previously available despite the party’s due diligence);
Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980) (same);
5 C.F.R. § 1201.115(d). 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). 4
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s7
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Faris_Andrew_D_CH-0752-20-0205-I-1 Final Order.pdf | 2024-04-26 | ANDREW D. FARIS v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-0752-20-0205-I-1, April 26, 2024 | CH-0752-20-0205-I-1 | NP |
1,647 | https://www.mspb.gov/decisions/nonprecedential/Arias_Domingo_J_SF-0752-19-0383-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DOMINGO J. ARIAS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-0752-19-0383-I-1
DATE: April 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Domingo J. Arias , Stockton, California, pro se.
Philip R. Ingram , 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 his 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
The appellant filed a petition for review of the initial decision dismissing
his involuntary resignation appeal for lack of jurisdiction. Petition for Review
(PFR) File, Tab 1 at 7-11, 13-14. Because the petition for review appeared to be
untimely filed by at least 3 months, the Office of 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 1-3. A blank sample motion was attached to the
acknowledgment letter. Id. at 7-8. The acknowledgment letter informed the
appellant that he must show good cause for the Board to waive his untimeliness
and instructed him on how to do so. Id. at 2, 7.
The appellant filed a motion to waive the filing time limit and included a
number of additional attachments. PFR File, Tab 3. In response, the agency filed
a motion to strike the appellant’s timeliness filing, arguing that the motion to
waive the filing time limit was, itself, untimely, or in the alternative, requested
leave to file a response to the petition for review, arguing that its response
timeline has lapsed due to the appellant’s delay. PFR File, Tab 4 at 4-6.
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). Here, the initial
decision stated that it would become final on July 11, 2019, unless a petition for
review was filed by that date. Initial Appeal File, Tab 6, Initial Decision (ID)
at 6. The appellant does not allege that he did not receive the initial decision or
that he received it more than 5 days after it was issued, and in fact appears to2
acknowledge that he received it on June 6, 2019. PFR File, Tab 3 at 51. The
appellant’s petition for review was sent by facsimile to the Western Regional
Office on October 11, 2019, and was referred to the Office of the Clerk of the
Board on October 15, 2019. PFR File, Tab 1 at 2, Tab 2 at 1. Therefore, the
appellant’s petition for review was filed at least 3 months 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 he 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 his excuse and the party’s 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.
We conclude that the appellant has failed to show good cause for a waiver
of the filing deadline. Even considering the appellant’s pro se status, his 3 -month
delay in filing his petition for review is not minimal. See Wright v. Department
of the Treasury, 113 M.S.P.R. 124, ¶ 8 (2010) (concluding that an 11-day delay is
not minimal); Allen v. Office of Personnel Management , 97 M.S.P.R. 665, ¶¶ 8,
10 (2004) (declining to excuse a pro se appellant’s 14-day, unexplained delay in
filing a petition for review); Crozier v. Department of Transportation ,
93 M.S.P.R. 438, ¶ 7 (2003) (noting that a 13-day delay in filing is not minimal).
Additionally, as discussed below, the appellant has not presented evidence of due
diligence or the existence of circumstances beyond his control that affected his
ability to file his petition. 3
In his motion to waive the petition for review filing time limit, the
appellant stated that he is suffering from financial hardship and a number of
illnesses that hampered his ability to timely file his petition for review, including
depression, anxiety, stress, sleeplessness, decreased motivation, and medical
issues, and provided a number of depression self-assessment tests and
questionnaires. PFR File, Tab 3 at 8-13, 51-52. As previously noted, the Board
will find good cause for waiver of its filing time limits where a party
demonstrates that he suffered from an illness that affected his ability to file on
time. See Lacy v. Department of the Navy , 78 M.S.P.R. 434, 437 (1998). The
Office of the Clerk of the Board’s notice informed the appellant of the
requirements for doing so. PFR File, Tab 2 at 7 n.1.
However, the appellant’s vague assertions of health problems do not
constitute good cause for his untimely filing, because he has not explained how
his health problems prevented him from filing a timely petition for review. See
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 appellant did not
submit any medical evidence to support his assertion that his delay in filing his
petition for review was caused by any of his identified conditions. See Lacy,
78 M.S.P.R. at 437. Moreover, while the appellant’s personal circumstances may
have been stressful or emotionally upsetting, he has not submitted any
corroborating evidence to show that his distress was of such a magnitude to
justify the 3-month delay in filing his petition for review. See Cunningham v.
Department of Transportation , 35 M.S.P.R. 674, 677-78 (1987) (finding that, in
the absence of corroborating evidence, an appellant’s allegation that he was
emotionally upset was insufficient to establish good cause for a 1-month filing
delay). Regarding the appellant’s assertion that he suffered from financial4
hardship and is not represented by an attorney, the Board has determined that an
allegation of difficult financial circumstances and an inability to afford an
attorney do not excuse an untimely filing. PFR File, Tab 1 at 13, Tab 3 at 52; see
Melville v. Department of the Air Force , 99 M.S.P.R. 233, ¶ 7 (2005); Alston v.
Department of the Treasury , 95 M.S.P.R. 460, ¶ 7 (2004); Wright v. Railroad
Retirement Board , 76 M.S.P.R. 330, 332 (1997).
Accordingly, we conclude that the appellant has failed to show that
he exercised due diligence or ordinary prudence in this case that would warrant
a finding of good cause for the delay in filing his petition for review.2 See
Shiflett v. U.S. Postal Service , 839 F.2d 669, 670-74 (Fed. Cir. 1988) (noting that
the Board may grant or deny the waiver of a time limit for filing an appeal, in the
2 The Office of the Clerk of the Board set November 6, 2019, as the deadline for the
appellant’s motion. PFR File, Tab 2 at 2. Because the appellant’s petition for review
did not provide any proof that a copy of the filing was served on the agency, the Clerk’s
Office informed the appellant that it would serve a copy of the petition for review on
the agency on that occasion but warned that future filings must be served on the agency
and the Board. Id. at 1-2; see 5 C.F.R. § 1201.114(j) (instructing that a party
submitting a pleading must serve a copy of it on each party and on each representative);
5 C.F.R. § 1201.26(b)(2) (providing that a certificate of service stating how and when
service was made must accompany each pleading served by a party). The appellant
filed his motion to waive the filing time limit on the Board by commercial overnight
delivery on November 6, 2019. PFR File, Tab 3 at 56-57; see 5 C.F.R. § 1201.4(i)
(noting that the date of filing by commercial overnight delivery “is the date the
document was delivered to the commercial overnight delivery service”). With his
filing, the appellant included a certificate of service dated October 30, 2019, affirming
that he served the filing on the agency via U.S. Mail and Fax/electronic mail. PFR File,
Tab 3 at 55. In its motion to strike, the agency asserts that the appellant did not send
the motion to waive the filing time limit until November 13, 2019—a week after the
November 6, 2019 deadline identified in the acknowledgement letter. PFR File, Tab 4
at 5, Tab 2 at 2. With its motion to strike, the agency includes what appears to be a
copy of the postal mail label for the filing it received with a postmark date of November
13, 2019. PFR File, Tab 4 at 7. Consequently, based on the current record, it is unclear
whether the appellant’s motion was timely filed pursuant to the instructions in the
Board’s October 22, 2019 acknowledgment letter. Nevertheless, we have considered
the appellant’s motion, and we still find that he has failed to establish that the time limit
should be waived for good cause, for the reasons previously discussed. Because we
have dismissed the petition for review as untimely filed without good cause shown for
the delay, we deny the agency’s motion to strike or for leave to file a response to the
petition for review. Id. at 4-6.5
interest of justice, after considering all the facts and circumstances of a particular
case).
Consequently, 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 involuntary resignation appeal.3
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection 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 In his petition for review the appellant also appears to argue that new and material
evidence exists that warrants reopening his appeal, and provides a number of documents
with his petition, including a privacy act authorization and waiver addressed to the
Office of Workers Compensation Program, a denial of benefits determination from the
state of California, a copy of a check from the U.S. Postal Service, an equal
employment opportunity (EEO) right to file letter from his former employing agency,
an alternative dispute resolution summary report, an Equal Employment Opportunity
Commission acknowledgement letter, and a letter dismissing a second formal EEO
complaint that was filed by the appellant after he was separated from the U.S. Postal
Service. PFR File, Tab 1 at 3, 5, 29; Tab 3 at 6, 20-22, 28, 31-35. Aside from the
second formal EEO complaint dismissal letter, all of the remaining documents are dated
prior to the close of record in this case, and therefore, they are not “new.” 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 generally 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 second EEO complaint dismissal is dated June 17, 2019, which is after
the June 6, 2019 initial decision in this case, so the document is “new.” PFR File,
Tab 3 at 35; ID at 1. However, the appellant has not explained how the formal EEO
complaint dismissal is “material” to the jurisdictional question at issue in this case.
Okello, 112 M.S.P.R. 563, ¶ 10. Accordingly, we have not considered any of the
documents the appellant has provided with his petition for review.
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
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit 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.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. 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 | Arias_Domingo_J_SF-0752-19-0383-I-1__Final_Order.pdf | 2024-04-26 | DOMINGO J. ARIAS v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0752-19-0383-I-1, April 26, 2024 | SF-0752-19-0383-I-1 | NP |
1,648 | https://www.mspb.gov/decisions/nonprecedential/Cayanan_Ramon_SF-0353-18-0582-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RAMON CAYANAN,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-0353-18-0582-I-1
DATE: April 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Guillermo Mojarro , Corpus Christi, Texas, for the appellant.
Catherine V. Meek , Long Beach, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his restoration appeal for lack of jurisdiction. On petition for review,
the appellant asserts the Board has jurisdiction over his appeal and that the
agency failed to restore him after his partial recovery from a compensable injury.
Petition for Review (PFR) File, Tab 3 at 4-5. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review.2 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).
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
2 The appellant’s petition for review includes a copy of an April 16, 2018 Work
Capacity Evaluation. This document was in the record below and does not provide any
basis to disturb the initial decision. PFR File, Tab 3 at 6; Initial Appeal File (IAF),
Tab 1 at 19; see Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980)
(observing that evidence that is already part of the record is not new); 5 C.F.R.
§ 1201.115(d).
3 The appellant filed a motion to compel discovery responses from the agency, which
the administrative judge never ruled on in the initial decision, or before its issuance.
IAF, Tab 15, Tab 16, Initial Decision. The appellant does not challenge on review the
administrative judge’s failure to address his motion to compel. 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).
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.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.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. 5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Cayanan_Ramon_SF-0353-18-0582-I-1__Final_Order.pdf | 2024-04-25 | RAMON CAYANAN v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0353-18-0582-I-1, April 25, 2024 | SF-0353-18-0582-I-1 | NP |
1,649 | https://www.mspb.gov/decisions/nonprecedential/McDermott_Lance_SF-0752-13-0633-C-1__Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LANCE MCDERMOTT,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-0752-13-0633-C-1
DATE: April 25, 2024
THIS ORDER IS NONPRECEDENTIAL1
Lance McDermott , Seattle, Washington, pro se.
Steven B. Schwartzman , Esquire, Seattle, Washington, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
ORDER
¶1The appellant has filed a petition for review of the compliance initial
decision, which granted his 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 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 compliance initial decision, referring 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
¶2At the time relevant to the appellant’s initial appeal, he was employed with
the agency as a maintenance mechanic. McDermott v. U.S. Postal Service , MSPB
Docket No. SF-0752-13-0633-I-1, Initial Appeal File (IAF), Tab 8 at 38.
Following his appeal of the agency’s May 30, 2013 decision to place him on
enforced leave, on April 28, 2015, an administrative judge issued an initial
decision sustaining the charge and the imposition of enforced leave, denying the
appellant’s affirmative defenses, and modifying the period of enforced leave.
IAF, Tab 52, Initial Decision (ID) at 9-26. Specifically, the initial decision
ordered the agency to, among other things, commence the enforced leave action
on June 7, 2013; to restore the annual leave the appellant used during the period
of May 30 to June 7, 2013; and to pay the appellant for the appropriate amount of
backpay, if any, with interest, no later than 60 calendar days after the date the
initial decision became final. ID at 25.
¶3The appellant filed a petition for review, and, following a remand order
from the Board concerning certain unaddressed affirmative defenses,
McDermott v. U.S. Postal Service , MSPB Docket No. SF-0752-13-0633-I-1,2
Remand Order (Oct. 13, 2015), the administrative judge issued a remand initial
decision, which denied the affirmative defenses at issue, McDermott v. U.S.
Postal Service , MSPB Docket No. SF-0752-13-0633-B-1, Remand Initial
Decision (Feb. 12, 2016) (RID); Remand File (RF), Tab 36. That decision
became the final decision of the Board on the merits of the appellant’s enforced
leave appeal after his petition for review was denied as untimely filed without
good cause shown. McDermott v. U.S. Postal Service , MSPB Docket No. SF-
0752-13-0633-B-1, Final Order at 1, 5 (Jan. 19, 2023). Accordingly, the
administrative judge’s original orders concerning the modified commencement
date of the enforced leave, the restoration of the appellant’s annual leave, and the
issuance of any relevant backpay with interest remained intact.
¶4In the time between the April 28, 2015 initial decision and the time the
remand initial decision became final, the appellant retired. His last day in a pay
status with the agency was December 10, 2019. Thus, as of that date, he became
entitled to the value of his restored leave through the issuance of backpay.
¶5On January 19, 2023, the appellant filed a petition for enforcement with the
Board. McDermott v. U.S. Postal Service , SF-0752-13-0633-C-1, Compliance
File (CF), Tab 1. In his petition for enforcement, he argued that the agency was
not in compliance with the administrative judge’s April 28, 2015 orders because it
did not: (1) pay him 30 days of back pay; (2) restore his 8 days’ worth of annual
leave; (3) place him on enforced leave consistent with agency and Office of
Personnel Management (OPM) regulations; or (4) give him written notice that it
had fully complied with the Board’s order. CF, Tab 1 at 5, Tab 6 at 6-7. After
developing the record, the administrative judge issued a compliance initial
decision2 finding that the agency is obligated to restore and pay the appellant for
the 8-day annual leave period “as an undisputed amount.” CF, Tab 18,
Compliance Initial Decision (CID) at 5-7. He considered the agency’s argument
2 Because the administrative judge who issued the original and remand initial decisions
retired, a different administrative judge issued the compliance initial decision. 3
that the appellant refused to complete the requisite forms necessary for it to
process the annual leave restoration and backpay amount, but he explained that
the agency’s compliance was “not contingent” upon the appellant completing the
relevant forms. CID at 5. He concluded that the agency failed to comply with the
Board’s order to restore the appellant’s annual leave for the period of May 30 to
June 7, 2013, and to pay the appellant for the appropriate amount of backpay, if
any, with interest, as ordered in the Board’s April 28, 2015 initial decision. CID
at 7. Accordingly, he granted the appellant’s petition for enforcement.
Additionally, he again ordered the agency to provide evidence that it complied
with the order and to provide a narrative explanation of how it arrived at its
calculations, with an accounting of any deductions and any other adjustments.
CID at 7-8.
¶6Consistent with Board practice, and as explained in the Office of the Clerk
of the Board’s June 8, 2023 order acknowledging the administrative judge’s
finding of noncompliance, the finding of noncompliance was assigned a new
docket number, MSPB Docket No. SF-0752-13-0633-X-1. McDermott v. U.S.
Postal Service, MSPB Docket No. SF-0752-13-0633-X-1, Compliance Referral
File (CRF), Tab 2. Evidence and argument regarding the finding of
noncompliance as it relates to the agency’s duty to comply are properly filed
under that docket number. Arguments regarding the scope of the administrative
judge’s finding of noncompliance and other arguments raised by the appellant on
review retain the SF-0752-13-0633-C-1 docket number.
¶7The appellant has filed a petition for review purporting to challenge the
compliance initial decision. McDermott v. U.S. Postal Service , MSPB Docket
No. SF-0752-13-0633-C-1, Compliance Petition for Review (CPFR) File, Tab 2.
He also states that he has new evidence that will demonstrate error in the Board’s
initial and final decisions regarding the merits of the enforced leave action. Id.
at 5-8, 19; CPFR File, Tab 3. Additionally, the appellant requests that the Board
join the instant compliance proceeding with his other appeals concerning his4
December 2019 separation from the agency. CPFR File, Tab 2 at 5. The agency
has responded to the appellant’s petition for review, to which the appellant has
replied. CPFR File, Tabs 5-6.3
¶8Around the same time as the appellant’s petition for review, the agency
filed a statement with the Board asserting that, by letters dated May 24, 2023, and
June 7, 2023, it sent the appellant checks representing backpay and interest,
respectively, and that it is therefore compliant with the Board’s orders. CRF,
Tab 1 at 4. The instant order concerns only the C-1 docket, which includes the
compliance initial decision and the appellant’s petition for review thereof.
DISCUSSION OF ARGUMENTS ON REVIEW
¶9The 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).
Here, the parties do not dispute, and we otherwise agree with the administrative
judge, that, as of the date of the issuance of the compliance initial decision, the
agency did not demonstrate that it complied with the Board’s April 28, 2015 order
to restore the appellant’s annual leave and pay him any relevant backpay with
interest. Accordingly, we do not disturb that administrative judge’s finding in
this regard.
3 In the agency’s response to the appellant’s petition for review, it asserts that the
appellant’s filing of a petition for review and a supplemental pleading motioning for
leave to submit new evidence is improper because it was meant to circumvent the page
length limitation set forth in a June 9, 2023 notice from the Office of the Clerk of the
Board and the Board’s regulations. CPFR File, Tab 5. We discern no impropriety in
the appellant’s filing of a petition for review and motion to file new evidence and find
those filings to be consistent with the Board’s regulations. See 5 C.F.R. § 1201.114(h)
(providing that a petition for review is limited to 30 pages or 7500 words, whichever is
less); see 5 C.F.R. § 1201.114(a)(5) (explaining that any pleading other than a petition
for review, cross petition for review, response to a petition for review, and reply to a
response to a petition for review, will not be accepted unless the party files a motion
with and obtains leave form the Clerk of the Board). Regarding the appellant’s motion
to file new evidence, he has not shown the need for such evidence in this compliance
proceeding, and, accordingly, his motion is denied. See 5 C.F.R. § 1201.114(a)(5). 5
¶10In his compliance petition for review, the appellant primarily discusses the
Board’s initial and final decisions concerning the underlying merits of his appeal
and the agency’s purported improper actions.4 CPFR, File 2. The Board usually
will not consider new evidence and argument regarding the merits of a case
during a compliance proceeding, and we decline to do so here. See, e.g., Senyszyn
v. Department of the Treasury , 110 M.S.P.R. 437, ¶ 2 n.* (2009)); Henry v.
Department of Veterans Affairs , 108 M.S.P.R. 458, ¶ 13 (2008).
¶11To the extent the appellant’s petition for review challenges any aspect of the
compliance initial decision, his challenges are without merit. For example, the
appellant appears to assert that the administrative judge did not consider all of his
allegations of noncompliance, such as his claim that the agency failed to provide
a statement of compliance as ordered in the April 28, 2015 initial decision on the
merits. CPFR File, Tab 2 at 5-6. However, the agency could only make such a
statement if it believed it was in compliance. Given its argument below that the
appellant refused to complete the requisite forms necessary for the issuance of
backpay, the agency was presumably aware that it was not in compliance with the
Board’s order.5 We find that the compliance initial decision appropriately
addressed the only order at issue in these proceedings: the restoration of the
appellant’s annual leave for the relevant time period and any related backpay with
interest. The appellant’s petition for review does not provide any basis to disturb
the compliance initial decision.
4 The appellant also discusses his December 2019 separation from the agency, which is
not at issue in these compliance proceedings. CPFR File, Tab 2. As such, we do not
address those arguments here.
5 In any event, the administrative judge’s failure to make a specific finding regarding
the agency’s failure to provide a statement of compliance did not prejudice the
appellant’s substantive rights, as the administrative judge found the agency in
noncompliance and the noncompliance is being referred to the Board’s Office of
General Counsel to obtain compliance. Panter v. Department of the Air Force ,
22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory error that is not prejudicial to
a party’s substantive rights provides no basis for reversal of an initial decision). 6
We deny the appellant’s request to join the instant appeal with other Board
appeals.
¶12The appellant renews his request to join the instant compliance matter with
two other appeals relating to his December 2019 separation from the agency that
were pending at the time, McDermott v. U.S. Postal Service , MSPB Docket
Nos. SF-0752-20-0705-I-1, an involuntary disability retirement appeal, and SF-
0353-21-0159-I-1, a denial of restoration appeal. CPFR File, Tab 2 at 5. Below,
the administrative judge denied the appellant’s request as “not appropriate.” CF,
Tab 15 at 1. We also conclude that joinder is not appropriate here. We have
since issued final decisions in those other matters. McDermott v. U.S. Postal
Service, MSPB Docket No. SF-0353-21-0159-I-1, Final Order (Apr. 17, 2024);
McDermott v. U.S. Postal Service , MSPB Docket No. SF-0752-20-0705-I-1, Final
Order (Feb. 29, 2024). Thus, they are no longer pending before the Board.
Accordingly, we deny the appellant’s joinder request as moot.
We refer the administrative judge’s finding of noncompliance to the Board’s
Office of General Counsel.
¶13As briefly explained above, following the administrative judge’s May 9,
2023 compliance initial decision finding the agency not in compliance, the agency
filed a statement with the Board on June 7, 2023, asserting that it sent the
appellant checks representing backpay and interest and that it is therefore
compliant with the Board’s orders. CRF, Tab 1 at 4. With this statement of
compliance, the agency included copies of the two letters it sent to the appellant
informing him that it issued him checks for the backpay and interest, photocopies
of the checks, and a copy of a backpay computation summary report
demonstrating how the interest was calculated. Id. at 6-11. In response, the
appellant has asserted, among other things, that the agency calculated the back
pay incorrectly, stating that the agency’s explanation of how it arrived at the
hours of restored annual leave “is not based on any of the [a]gency’s or OPM’s
[l]eave [r]estoration regulations or the official record.” CRF, Tab 3 at 7-8.7
Specifically, he asserts he was entitled to 72 hours of restored annual leave, as
opposed to the 45.5 hours of annual leave restored by the agency. Id.
¶14An agency’s assertion of compliance must be supported by relevant,
material, and credible evidence of compliance in the form of documentation or
affidavits. Cuevas v. U.S. Postal Service , 90 M.S.P.R. 391, ¶ 5 (2001). We have
reviewed the documents submitted by the agency and are unable to determine
based on the present record whether the appellant’s backpay and interest award is
correct and whether the agency is therefore compliant with the Board’s order.
Notably, the agency’s documentation does not include evidence, such as time and
attendance records, showing how much annual leave the appellant took between
May 30 and June 7, 2013, that he was entitled to have restored. Further, neither
the agency’s statement of compliance, nor its documentation in support thereof,
provides an explanation of the rate of pay it used to convert the appellant’s
restored annual leave to a monetary amount. Accordingly, we refer the
compliance matter to the Board’s Office of General Counsel for the agency to
submit additional evidence regarding its compliance. Given the nature of the
appellant’s arguments in response to the agency’s statement of compliance,
sufficient evidence of compliance should include the relevant time and attendance
records and a narrative explanation or additional documentary evidence of the
calculation of backpay. See 5 C.F.R. § 1201.183(a)(1)(i), (a)(6) (requiring an
agency to submit evidence of the relevant calculation and requiring that a
narrative statement explain in detail why the evidence of compliance satisfies the
requirements of the initial decision).
ORDER
¶15We 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’s8
submission shall demonstrate that it properly calculated the appellant’s backpay
according to the appropriate amount of restored annual leave and related interest.
The agency must serve all parties with copies of its submission.
¶16The agency’s submission should be filed under the docket number assigned
to the compliance referral matter currently pending with the Board’s Office of
General Counsel, MSPB Docket No. SF-0752-13-0633-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 MSPB’s e-Appeal site
(http://e-appeal/mspb.gov) in accordance with the Board’s regulation at 5 C.F.R.
§ 1201.14.
¶17The 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 he is satisfied with the agency’s actions
and dismiss the petition for enforcement.
¶18The 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(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). 9
¶19This 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 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.10 | McDermott_Lance_SF-0752-13-0633-C-1__Order.pdf | 2024-04-25 | LANCE MCDERMOTT v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0752-13-0633-C-1, April 25, 2024 | SF-0752-13-0633-C-1 | NP |
1,650 | https://www.mspb.gov/decisions/nonprecedential/Brown_Linda_C_CH-831M-22-0164-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LINDA BROWN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-831M-22-0164-I-1
DATE: April 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Linda C. Brown , Elizabethtown, Kentucky, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) on her Civil Service Retirement System (CSRS) annuity computation. On
petition for review, the appellant reraises her challenges to OPM’s annuity
computation and highlights several alleged inconsistencies in 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).
She also reraises her other complaints about OPM’s poor handling of her case.
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
(1) correct an apparent misstatement regarding the amount of her deposit
reduction, and (2) clarify that the Board has jurisdiction over the appellant’s
challenge to her unused sick leave amount , we AFFIRM the initial decision.
First, the appellant identifies, among other things, the following erroneous
statement in the initial decision: “[t]hus, the appellant’s retirement annuity is
reduced by $70 per year having calculated her annuity to include credit for her
non-deduct service.” Petition for Review (PFR) File, Tab 1 at 3; Initial Appeal
File (IAF), Tab 23, Initial Decision (ID) at 15. We agree with the appellant that
this statement was incorrect, and we expressly vacate it. Nevertheless, it appears
to be a mere typographical error summarizing an otherwise correct and thorough
discussion. The administrative judge’s discussion clearly sets forth that the
appellant’s retirement annuity was properly reduced by $23.20 per year, or 10%
of the difference between her non-deduct service ($302) and her excess
contributions (rounded in the appellant’s favor to $70). ID at 10-15; see 5 C.F.R.2
§ 831.303(a). Therefore, we see no reason to disturb the administrative judge’s
finding that OPM’s calculations are correct.
Second, we clarify that the Board has jurisdiction over the appellant’s
claim of “lost” sick leave. PFR File, Tab 5 at 3; IAF, Tab 6 at 4. The U.S. Court
of Appeals for the Federal Circuit has held that an employing agency’s
certification of an employee’s unused sick leave is reviewable by the Board when
it affects the employee’s entitlement under CSRS. See Billinger v. Office of
Personnel Management , 206 F.3d 1404, 1407 (Fed. Cir. 2000); Conner v. Office
of Personnel Management , 120 M.S.P.R. 670, ¶ 6 (2014), aff’d, 620 F. App’x 892
(Fed. Cir. 2015). Here, the appellant argues that the 2,479 hours—or 1 year,
2 months, and 8 days—of unused sick leave certified by her employing agency on
her Individual Retirement Record did not include sick leave accrued during the
2 months and 25 days of her temporary appointment or during the last pay period
of her career. IAF, Tab 5 at 239. However, she has presented no basis for
finding that OPM’s consideration of her sick leave was incorrect. IAF, Tab 6
at 4, Tab 12 at 11. Moreover, as only years and full months of service are used in
the annuity computation, any additional sick leave that would have accrued
during the less than 3-month period disputed by the appellant would not have
been more than 22 days and thus would not result in greater entitlement under
CSRS. IAF, Tab 5 at 43, Tab 12 at 11; see Credit for Unused Sick Leave Under
the Civil Service Retirement System,
https://www.opm.gov/retirement-center/publications-forms/pamphlets/ri83-8.pdf
(last visited Apr. 25, 2024).
Lastly, we note that the appellant presents another example of “OPM’s
failure to timely resolve an issue” that she appears to raise for the first time on
review. PFR File, Tab 1 at 6. She avers that OPM took over 2 years to resolve a
state income tax inquiry in 2013 from her state’s Department of Revenue. Id.
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 evidence3
not previously available despite the party’s due diligence, and the appellant has
not made such a showing here. See Pridgen v. Office of Management and Budget ,
2022 MSPB 31, ¶ 34 n. 10; Banks v. Department of the Air Force , 4 M.S.P.R.
268, 271 (1980). We further note that the Board’s jurisdiction is not plenary; it is
limited to those matters over which it has been given jurisdiction by law, rule, or
regulation. Maddox v. Merit Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir.
1985). Here, the Board’s jurisdiction is limited to OPM’s reconsideration
decision on her CSRS annuity. See 5 C.F.R. § 1201.3(a)(2).
Accordingly, except as expressly modified, we affirm the initial decision,
which affirmed OPM’s reconsideration decision.
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
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 | Brown_Linda_C_CH-831M-22-0164-I-1 Final Order.pdf | 2024-04-25 | LINDA BROWN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-831M-22-0164-I-1, April 25, 2024 | CH-831M-22-0164-I-1 | NP |
1,651 | https://www.mspb.gov/decisions/nonprecedential/McElligott_Patricia_C_DA-0831-23-0049-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PATRICIA C. MCELLIGOTT,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-0831-23-0049-I-1
DATE: April 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
John R. Kuna , Esquire, Tyler, Texas, for the appellant.
Carla Robinson and Jane Bancroft , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM) finding
her ineligible to receive lump-sum death benefits under the Civil Service
Retirement System (CSRS). Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
of material fact; the initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After
fully considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On review, the appellant asserts that she has filed a new application for
lump-sum death benefits as an executor or administrator of the deceased’s estate.
Initial Appeal File (IAF), Tab 11 at 6-11; Petition for Review (PFR) File, Tab 1
at 2. She requests that the Board make findings as to the statutory order of
precedence for the payment of benefits, to include her claim to entitlement as an
executor or administrator of the estate. PFR File, Tab 1 at 2. As the
administrative judge correctly explained in the initial decision, OPM’s final
decision concerns the appellant’s application to receive benefits as a designated
representative for the deceased. IAF, Tab 12, Initial Decision at 8 n.3. OPM has
not yet issued a final decision on the appellant’s entitlement to benefits as an
executor or administrator of the deceased’s estate, and the Board therefore lacks
jurisdiction over such a claim. See Morin v. Office of Personnel Management ,
107 M.S.P.R. 534, ¶ 8 (2007) (stating that the Board has jurisdiction over OPM
determinations affecting an appellant’s rights or interests under CSRS only after
OPM has issued a final decision), aff’d, 287 F. App’x 864 (Fed. Cir. 2008);2
5 C.F.R. § 831.110. If the appellant is dissatisfied with the outcome of any future
final decision by OPM, she may file a new Board appeal.2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
2 The appellant has filed a copy of a new application for CSRS lump-sum benefits with
the Board. IAF, Tab 11 at 6-11. It is unclear whether she has filed a copy of her
application with OPM. Any application for benefits must be filed directly with OPM.
OPM shall issue a final decision as to any new application for benefits, consistent with
its representations in a prehearing status conference held in this matter. IAF, Tab 10
at 3.
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 | McElligott_Patricia_C_DA-0831-23-0049-I-1__Final_Order.pdf | 2024-04-25 | PATRICIA C. MCELLIGOTT v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0831-23-0049-I-1, April 25, 2024 | DA-0831-23-0049-I-1 | NP |
1,652 | https://www.mspb.gov/decisions/nonprecedential/Alford_Carlos_A_DC-3443-23-0364-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARLOS ALGERNON ALFORD,
Appellant,
v.
NATIONAL AERONAUTICS AND
SPACE ADMIN,
Agency.DOCKET NUMBER
DC-3443-23-0364-I-1
DATE: April 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carlos Algernon Alford , Wilmington, North Carolina, pro se.
Bryan R. Diederich , 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 his nonselection and Veterans Employment Opportunities Act (VEOA)
appeal for lack of jurisdiction. On petition for review, the appellant challenges
the administrative judge’s finding that he did not exhaust his VEOA claim with
the Department of Labor, and he requests that the Board hold his 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 until a reconsideration decision is made concerning the timeliness of his
Equal Employment Opportunity complaint. 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. In addition, the appellant has not made any nonfrivolous jurisdictional
allegations on review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Alford_Carlos_A_DC-3443-23-0364-I-1__Final_Order.pdf | 2024-04-25 | CARLOS ALGERNON ALFORD v. NATIONAL AERONAUTICS AND SPACE ADMIN, MSPB Docket No. DC-3443-23-0364-I-1, April 25, 2024 | DC-3443-23-0364-I-1 | NP |
1,653 | https://www.mspb.gov/decisions/nonprecedential/Wilson_Ricardo_D_DA-0714-21-0194-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICARDO D. WILSON,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-0714-21-0194-I-1
DATE: April 25, 2024
THIS ORDER IS NONPRECEDENTIAL1
Stephen E. Jones , Esquire, Dallas, Texas, for the appellant.
Amanda J. Moreno , Houston, Texas, for the appellant.
Andrew Broad and Devora Mas , Esquire, Houston, Texas, for the agency.
Kacy Coble , Esquire, North Little Rock, Arkansas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal pursuant to 38 U.S.C. § 714 based on one charge of misuse
of Government equipment and one charge of lack of candor. For the reasons
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
discussed below, we GRANT the appellant’s petition for review, VACATE the
initial decision, and REMAND this matter to the Dallas Regional Office for
further adjudication in accordance with this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s arguments do not provide a basis to disturb the initial decision.
The appellant argues that the agency presented insufficient evidence to
support the sole specification underlying its charge of misuse of Government
equipment, i.e., that in violation of an agency directive, the appellant used his
Government-issued cellphone to transmit sexually explicit photos of himself.
Petition for Review (PFR) File, Tab 1 at 8-20; Initial Appeal File (IAF),
Tab 6 at 160, 229-35. To this end, he contends that the administrative judge
(1) relied solely on documentary evidence and written statements2 submitted by
the agency employee who had received the subject photos and (2) “improperly
overlooked” other evidence in the record. PFR File, Tab 1 at 9. He reasserts that
the agency’s witness harbored a retaliatory motive against him and doctored the
explicit photos at issue to make them appear to have been sent from his
Government cellphone.3 Id. at 10-16. The appellant’s arguments, however, do
not provide a basis to disturb the administrative judge’s reasoned conclusion that
the witness’s version of events was “far more logical.” IAF, Tab 29, Initial
Decision (ID) at 6 -12; 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
2 Although the appellant initially requested a hearing on the matter, IAF, Tab 1 at 2, he
subsequently withdrew his request in favor of a decision on the written record, IAF,
Tab 16 at 4-5. In his petition and reply, the appellant repeatedly asserts that the
administrative judge’s credibility determinations are not entitled to any deference
because she considered only the written record, e.g., PFR File, Tab 1 at 16, Tab 4
at 4-6; however, he does not identify any error with her determinations or otherwise
provide a basis for the Board to disturb her factual findings.
3 The appellant acknowledged before the administrative judge that he had sent explicit
photos of himself to the subject individual; however, he averred that he had done so
from his personal cellphone. IAF, Tab 23 at 29.2
reasoned conclusions); Broughton v. Department of Health & Human Services ,
33 M.S.P.R. 357, 359 (1987) (same); see also Marques v. Department of Health
& Human Services , 22 M.S.P.R. 129, 132 (1984) (explaining that
an administrative judge’s failure to discuss 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). Indeed, the administrative judge considered, but found unavailing, the
appellant’s argument that the witness had purposefully manipulated the illicit
photos. ID at 6-12. To this end, she found satisfactory the witness’s proffer that
any inconsistencies in the images provided were attributable to either iPhone
software updates or the witness having taken additional screenshots of her text
exchanges with the appellant in order to show a more complete view of her phone
screen.4 ID at 10. The administrative judge also fully considered both the
witness’s retaliatory motive and incredulous statements made by the witness but
concluded that she was nonetheless credible regarding the pertinent facts
underlying the agency’s charge. ID at 8-12, 13 n.9; see Mitchell v. Department of
the Air Force, 91 M.S.P.R. 201, ¶ 10 (2002) (stating that a witness who is not
credible about one matter may be credible about another matter). Thus, we find
the appellant’s assertions unavailing.5
4 The appellant draws the Board’s attention to the fact that the administrative judge
requested the agency to resubmit certain exhibits, including the explicit images at issue,
as they “need[ed] to be resized, or otherwise corrected.” PFR File, Tab 1 at 11; IAF,
Tab 15 at 5 & n.2. To the extent the appellant argues that this request was improper, we
find his assertion unavailing. Indeed, we discern no basis to disturb the administrative
judge’s conclusion that, with or without the additional images, the agency proved the
subject charge by substantial evidence. ID at 9 n.6. The appellant also draws the
Board’s attention to purported issues with certain text messages/images that he alleges
are not attributable to either a software update or subsequent screenshots being taken,
e.g., one screenshot purportedly appearing “ visibly crooked as if it were carelessly
photoshopped.” PFR File, Tab 1 at 14 (emphasis as in original); IAF, Tab 6 at 203. We
have considered all of the purported issues identified by the appellant; however, we find
that none warrant a different outcome. To this end, there are numerous explanations for
a screenshot appearing slightly askew apart from purposeful manipulation, e.g.,
imprecision in converting the image containing the screenshot to a Portable Document
Format file.3
The appellant asserts that the administrative judge erred in finding that he
failed to prove that the agency violated his due process rights. PFR File, Tab 1
at 21-25. To this end, he argues that, because the aforementioned witness
initially showed the agency’s fact-finding team the explicit photos from her
cellphone, the agency was required to provide the appellant with physical access
to the witness’s phone “during the predetermination period.” Id. at 23-25; PFR
File, Tab 4 at 8. We disagree. Indeed, the record does not indicate, nor does the
appellant allege, that the deciding official ever physically inspected the witness’s
cellphone; rather, it indicates that he viewed only what was provided in the
agency’s evidence file, i.e., screenshots of the images in question, all of which
were undisputedly provided to the appellant. IAF, Tab 22 at 20; see Ward v. U.S.
Postal Service, 634 F.3d 1274, 1280 (Fed. Cir. 2011) (explaining that a deciding
official violates an employee’s constitutional due process rights when he relies on
“new and material” ex parte information as a basis for his decision on either the
merits of a proposed charge or the penalty to be imposed). To the extent the
appellant believed that the witness’s cellphone or information contained therein
was relevant to his appeal, he could have sought to acquire the same through
means such as a nonparty discovery request or a subpoena; however, there is no
indication that he did so. See 5 C.F.R. §§ 1201.73, 1201.81. Thus, the
appellant’s assertion is unavailing.
The appellant contends that the agency committed harmful procedural error
by violating 38 U.S.C. § 714(c)(2), which provides, among other things, that the
5 The appellant also seemingly argues that the deciding official lacked credibility
because he stated in an affidavit that the appellant had apologized for his actions. PFR
File, Tab 1 at 20; IAF, Tab 22 at 19-20. The appellant avers that he “did not apologize
for sending the explicit images to [the witness] from his [G]overnment cell phone.”
PFR File, Tab 1 at 20. We find this argument unavailing. Indeed, the appellant stated,
among other things, “I am truly ashamed and regretful of my actions” and “I apologize
for my failure to maintain the integrity of my post” in response to the agency’s notice of
proposed removal. IAF, Tab 6 at 107-08. That the appellant did not explicitly identify
what he was ashamed of and/or apologizing for does not render the deciding official’s
statement inaccurate or otherwise call into question his credibility. 4
agency shall provide to an employee facing certain disciplinary actions “a file
containing all the evidence in support of the proposed action.” PFR File, Tab 1
at 26. To this end, the appellant avers that the agency failed to provide him with
(1) records allegedly obtained by the agency from his Government-issued
cellphone and (2) information provided to agency investigators by the agency’s
witness, i.e., a phone log and a PowerPoint presentation. Id. at 26-28. Again,
however, the appellant does not provide a basis to disturb the administrative
judge’s conclusion that the record was devoid of any indication that the deciding
official received or considered any of these items. ID at 19-20; IAF,
Tab 22 at 20. Thus, he has not identified any procedural error, much less one that
would likely have caused the agency to reach a different outcome. See Pumphrey
v. Department of Defense , 122 M.S.P.R. 186, ¶ 10 (2015) (explaining that a
procedural error is harmful when the record shows that an error by the agency
was likely to have caused the agency to reach a conclusion different from the one
it would have reached in the absence or cure of the error). Thus, the appellant’s
contention does not provide a basis to disturb the initial decision.
We remand the matter 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.
The deciding official here sustained the agency’s action because he found
that there was substantial evidence to support two of the charges levied against
the appellant, i.e., misuse of Government equipment and lack of candor. IAF,
Tab 6 at 18.6 After the initial decision in this case was issued, the U.S. Court of
Appeals for the Federal Circuit found in Rodriguez v. Department of Veterans
Affairs, 8 F.4th 1290, 1296-1301 (Fed. Cir. 2021), that the agency had erred by
applying the substantial evidence standard to its internal review of a disciplinary
action under 38 U.S.C. § 714. The Federal Circuit found that substantial
6 The agency also charged the appellant with conduct unbecoming a Federal employee;
however, the deciding official did not sustain this charge. IAF, Tab 6 at 18, 161.5
evidence7 is the standard of review to be applied by the Board, not the agency,
and that the agency’s deciding official must apply the preponderance of the
evidence8 standard in determining whether the appellant’s performance or
misconduct warrants the action at issue. Id. at 1298-1301; see Bryant v.
Department of Veterans Affairs , 26 F.4th 1344, 1347 (Fed. Cir. 2022) (agreeing
with the appellant’s contention 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 by Rodriguez).
The Federal Circuit’s decision in Rodriguez applies to all pending cases,
regardless of when the events at issue took place. Semenov v. Department of
Veterans Affairs , 2023 MSPB 16, ¶ 22. The administrative judge and the parties
here did not have the benefit of Rodriguez prior to the close of the record.9 We
therefore remand this case for adjudication of whether the agency’s application of
the substantial evidence standard was harmful. See id., ¶ 23 (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). On remand, the administrative judge
should provide the parties with an opportunity to present evidence and argument,
addressing whether the agency’s use of the substantial evidence standard
constituted harmful error. See 5 U.S.C. § 7701(a)(1), (b)(1); id., ¶ 24.
Regardless of whether the appellant proves harmful error in the agency’s
application of the substantial evidence burden of proof in the removal decision, if
any argument or evidence adduced on remand affects the administrative judge’s
7 Substantial evidence is the degree of relevant evidence 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).
8 Preponderant evidence is that degree of relevant evidence a reasonable person,
considering the record as a whole, would accept as sufficient to find a contested fact is
more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
9 The Federal Circuit issued Rodriguez on August 12, 2021, following the submission of
the appellant’s petition for review, but prior to the submission of both the agency’s
response and the appellant’s reply thereto. PFR File, Tabs 1, 3-4. Neither party
addressed Rodriguez in its final filing.6
analysis of the appellant’s affirmative defenses or the agency’s penalty, she
should address such argument or evidence in the remand initial decision. See
Semenov, 2023 MSPB 16, ¶ 25.
On remand, the administrative judge should allow the parties an opportunity to
present evidence and argument regarding whether the agency considered the
Douglas factors in determining the penalty.
In Connor v. Department of Veterans Affairs , 8 F.4th 1319, 1325-26 (Fed.
Cir. 2021), which was also issued subsequent to the initial decision, the Federal
Circuit found that the Board must consider and apply the 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 an action taken pursuant to 38 U.S.C.
§ 714. The Federal Circuit found 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,” id. at 1326, 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,” id.
at 1326-27 (citing Brenner v. Department of Veterans Affairs , 990 F.3d 1313,
1325 (Fed. Cir. 2021) (explaining that “if the [Board] concludes that the
[agency’s] removal decision is unsupported by substantial evidence, the [Board]
should remand to the [agency] for further proceedings”)). As we found with the
Rodriguez case, the Federal Circuit’s decision in Connor applies to all pending
cases, regardless of when the events at issue took place. See Semenov,
2023 MSPB 16, ¶¶ 22, 49-50.
Here, the administrative judge correctly relied on Sayers v. Department of
Veterans Affairs , 954 F.3d 1370, 1375 (Fed. Cir. 2020), for the proposition that
38 U.S.C. § 714 requires the Board to review for substantial evidence the entirety
of the agency’s adverse action decision, to include the penalty imposed. ID at 4,
14. However, although the administrative judge reasoned that the deciding7
official had provided an affidavit wherein he discussed why he believed that
mitigation of the penalty was inappropriate, she did not mention the Douglas
factors. ID at 14. The decision letter was similarly devoid of any mention of the
Douglas factors and contained only a brief statement indicating that the deciding
official had concluded that the penalty of removal did “not exceed the bounds of
reasonableness.” IAF, Tab 6 at 18. In the written affidavit relied upon by the
administrative judge, the deciding official averred generally that he had
“considered mitigation of the penalty”; however, he did not discuss any specific
mitigating factors. IAF, Tab 22 at 20. Thus, the record is unclear as to whether
the agency properly considered the Douglas factors in deciding to remove the
appellant. Because the administrative judge did not have the benefit of some of
the Federal Circuit’s recent decisions regarding the Board’s obligation to review
the penalty in an action taken under section 714, she did not provide guidance to
the parties on the penalty issue. On remand, she should permit the parties to
submit additional evidence and argument regarding the same. In reviewing the
penalty, 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, she should remand the
appellant’s removal to the agency for a new decision on the appropriate penalty.
See Connor, 8 F.4th at 1326-27. 8
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.10
FOR THE BOARD: ________________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
10 In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.9 | Wilson_Ricardo_D_DA-0714-21-0194-I-1__Remand_Order.pdf | 2024-04-25 | RICARDO D. WILSON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-0714-21-0194-I-1, April 25, 2024 | DA-0714-21-0194-I-1 | NP |
1,654 | https://www.mspb.gov/decisions/nonprecedential/Juppe_Mark_E_CH-315H-21-0143-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARK E. JUPPE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-315H-21-0143-I-1
DATE: April 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence Berger , Esquire, Glen Cove, New York, for the appellant.
Gregory White , Esquire, Detroit, Michigan, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his probationary termination 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
The appellant filed a Board appeal of the agency’s decision to terminate
him during his probationary period. Initial Appeal File (IAF), Tab 1. The
appellant elected to be an e-filer, and he designated an attorney representative.
Id. at 2-3. The administrative judge informed the appellant that his appeal
appeared untimely and ordered the appellant to file evidence and argument that
either his appeal was timely filed or that good cause existed for the delay in
filing. IAF, Tab 4 at 1-4. In a separate order, the administrative judge informed
the appellant of how to establish jurisdiction over his appeal and ordered the
appellant to provide evidence and argument nonfrivolously alleging jurisdiction.
IAF, Tab 3 at 1-7. The appellant failed to respond to either order.
The administrative judge subsequently scheduled a preliminary status
conference with the parties and provided the relevant contact information to join
the telephonic status conference. IAF, Tab 9 at 1. On the scheduled date of the
status conference, the agency’s representative was present, but the appellant
failed to appear. IAF, Tab 10 at 1. Accordingly, the administrative judge ordered
the appellant to respond and show cause as to why his appeal should not be
dismissed for failure to prosecute. Id. The administrative judge specifically
informed the appellant that if he failed to respond to the latest order his appeal2
would be dismissed for failure to prosecute without further notice. Id. The
appellant again did not respond.
After the deadline to respond passed, the administrative judge issued an
initial decision dismissing the appeal with prejudice for failure to prosecute. IAF,
Tab 11, Initial Decision (ID) at 1. Specifically, the administrative judge found
that the appellant had failed to respond to orders involving jurisdiction and
timeliness, failed to attend the status conference, and failed to contact the Board
after being advised that his appeal would be dismissed for failure to prosecute.
ID at 2-3. The administrative judge additionally noted that the appellant had
failed to contact either the Board or opposing counsel since filing his initial
appeal. Id.
The appellant has filed a petition for review asserting that neither he nor
his counsel received any of the Board’s orders. Petition for Review (PFR) File,
Tab 1 at 4. He asserts that he did not receive any notifications of deadlines, show
cause orders, or scheduled conferences. Id. The agency has responded to his
petition for review. PFR File, Tab 4.
We find unavailing the appellant’s assertions that he did not receive any of
the administrative judge’s orders. The Board’s regulations provide that, as a
registered e-filer, the appellant agreed to accept documents through electronic
service and, further, that he was required to monitor his case activity at the
Repository at e-Appeal Online to ensure that he received all case-related
documents. Rivera v. Social Security Administration , 111 M.S.P.R. 581, ¶ 5
(2009); 5 C.F.R. § 1201.14(e), (j)(3) (2021). Moreover, our regulations provide
that pleadings and Board documents served electronically on registered e-filers
are deemed received on the date of electronic submission. Rivera, 111 M.S.P.R.
581, ¶ 5; 5 C.F.R. § 1201.14(m)(2) (2021). When a statute or regulation “deems”
something to have been done, the event is considered to have occurred whether or
not it actually did. Rivera, 111 M.S.P.R. 581, ¶ 5. The evidence reflects that the
appellant elected to be an e-filer and consented to accept service of all pleadings3
at the email address he provided. IAF, Tab 1 at 1-3. The appellant has not
alleged that the contact information provided was somehow incorrect or that he
attempted to withdraw as an e-filer. Accordingly, we deem the appellant to have
received the relevant Board orders.
Based on this finding, we agree with the administrative judge that dismissal
for failure to prosecute was appropriate. The Board has held that the imposition
of such a severe sanction must be used only when necessary to serve the ends of
justice, as when a party has failed to exercise basic due diligence in complying
with an order or has exhibited negligence or bad faith in his efforts to comply.
Turner v. U.S. Postal Service , 123 M.S.P.R. 640, ¶ 14 (2016), aff’d, 681 F. App’x
934 (Fed. Cir. 2017). Although the failure to obey a single order does not
ordinarily justify dismissal for failure to prosecute, an appellant’s repeated failure
to respond to multiple Board orders reflects a failure to exercise basic due
diligence. Id., ¶¶ 14-15. Indeed, the sanction of dismissal with prejudice has
been found appropriate when an appellant completely failed to respond or comply
with any of the Board’s orders. Id., ¶ 15.
The appellant here failed to respond to the administrative judge’s
timeliness order and jurisdictional order, failed to appear for the preliminary
status conference, and failed to respond to the final order to show cause. ID
at 2-3. With the exception of his initial appeal, there is no evidence that the
appellant took any steps to pursue his appeal over a 2 to 3 month period.
Moreover, the appellant was specifically warned that his failure to respond could
result in the dismissal with prejudice for failure to prosecute. IAF, Tab 10 at 1.
We therefore agree with the administrative judge that the appellant failed to
exercise due diligence in prosecuting his appeal, and we affirm the dismissal with
prejudice for failure to prosecute. Turner, 123 M.S.P.R. 640, ¶ 16; see
Heckman v. Department of the Interior , 106 M.S.P.R. 210, ¶¶ 14-16 (2007)
(affirming a dismissal for failure to prosecute when the appellant failed to comply
with multiple orders over a period of nearly 2 1/2 months).4
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s7
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Juppe_Mark_E_CH-315H-21-0143-I-1__Final_Order.pdf | 2024-04-25 | MARK E. JUPPE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-315H-21-0143-I-1, April 25, 2024 | CH-315H-21-0143-I-1 | NP |
1,655 | https://www.mspb.gov/decisions/nonprecedential/Hooker_Carlton_E_AT-1221-21-0217-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARLTON EUGENE HOOKER, JR.,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-1221-21-0217-W-1
DATE: April 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carlton Eugene Hooker, Jr. , Clearwater, Florida, pro se.
Luis E. Ortiz-Cruz , 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 his appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant filed an appeal alleging that the agency committed a
prohibited personnel practice (PPP) pursuant to 5 U.S.C. § 2302(b)(4) when it
allegedly obstructed his right to compete for a Police Officer position in April
2017. Initial Appeal File (IAF), Tab 1 at 3, 5. With his appeal, he submitted,
among other documents, a letter from the Office of Special Counsel (OSC)
closing its investigation into the appellant’s PPP complaint. Id. at 12. Unsure of
the jurisdictional basis for the appeal, the administrative judge issued an order
stating that the appellant appeared to be claiming that the agency retaliated
against him because of his whistleblowing or other protected activity, and the
administrative judge explained the jurisdictional standards for an individual right
of action (IRA) appeal. IAF, Tab 3. The appellant submitted two responses
confirming that he did not intend to file an IRA appeal but was instead
challenging a PPP under 5 U.S.C. § 2302(b)(4). IAF, Tab 5, Tab 6 at 3.
Accordingly, the administrative judge issued an initial decision dismissing the
appeal for lack of jurisdiction, holding that PPP claims are not within the Board’s
jurisdiction unless raised in connection with an otherwise appealable action or
when the appellant claims retaliation for whistleblowing or other protected2
activity in violation of 5 U.S.C. § 2302(b)(8) or (9), in which case an appellant
may file an IRA appeal. IAF, Tab 7, Initial Decision at 3. The appellant has filed
a petition for review, and the agency has filed a response. Petition for Review
(PFR) File, Tabs 1, 3.
The appellant has not established jurisdiction over an IRA appeal.
In his petition for review, the appellant again asserts that he is not alleging
reprisal for whistleblowing. PFR File, Tab 1 at 10. However, he also asserts that
he engaged in protected activity pursuant to 5 U.S.C. § 2302(b)(8), (9) when he
filed a grievance with the agency on October 13, 2017, a complaint with the
agency’s Office of Inspector General on January 26, 2020, a Freedom of
Information Act (FOIA) appeal with the Office of Personnel Management in
March 2020, and a discrimination complaint with the agency on June 29, 2020.
PFR File, Tab 1 at 4-5.
To establish jurisdiction over an IRA appeal, an appellant must show by
preponderant evidence that he exhausted his 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 protected activity 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). Corthell v. Department of
Homeland Security , 123 M.S.P.R. 417, ¶ 8 (2016), overruled on other grounds by
Requena v. Department of Homeland Security , 2022 MSPB 39. A nonfrivolous
allegation is an assertion of fact that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
The appellant has not proved by preponderant evidence that he exhausted a
whistleblower retaliation claim with OSC. E.g., IAF, Tab 1 at 12. The letter
from OSC references a PPP claim but not a whistleblower retaliation claim. Id.
The appellant also has not nonfrivolously alleged that his alleged whistleblowing
or other protected activity was a contributing factor to the personnel action at3
issue, alleged obstruction of the right to compete for the Police Officer position.
The appellant complained that the agency obstructed his right to compete for the
position in April 2017. Id. at 5, 12. However, all of the protected activity
alleged in the petition for review occurred after April 2017 and thus could not
have been a contributing factor in that matter. See Davis v. Department of
Defense, 106 M.S.P.R. 560, ¶ 12 (2007) (“Because the personnel actions
complained about by the appellant predate his protected disclosures, there is no
way that the disclosures could have in any way contributed to the personnel
actions complained about by the appellant.”), aff’d, 278 F. App’x 1009 (Fed. Cir.
2008). For these reasons, we find that the appellant has not established
jurisdiction over an IRA appeal.
The Board lacks jurisdiction over the appellant’s PPP claim under 5 U.S.C.
§ 2302(b)(4).
PPP claims are not an independent source of Board jurisdiction and “are
cognizable by the Board only when they motivate an otherwise appealable
personnel action.” Brodt v. Merit Systems Protection Board , 11 F.3d 1060, 1061
(Fed. Cir. 1993). Because the appellant did not establish IRA jurisdiction over
his claim and he has not alleged an otherwise appealable action, the Board lacks
jurisdiction to hear his PPP claim.
The appellant has not established Board jurisdiction over any new claims asserted
in his petition for review.
In his petition for review, the appellant asserts that the agency “failed to
take action” against a human resources specialist who the appellant alleges
created a vacancy announcement in 2017 without the proper authority. PFR File,
Tab 1 at 5-6. 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. Clay v.
Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016). The appellant has not4
made such a showing.2 In any event, the appellant has not proved by
preponderant evidence that he exhausted this matter as an IRA claim with OSC,
and as explained above, the Board lacks jurisdiction to hear PPP claims absent
another source of Board jurisdiction. See Brodt, 11 F.3d at 1061 (holding that
PPP claims are not an independent source of Board jurisdiction); Corthell,
123 M.S.P.R. 417, ¶ 8 (explaining that, to establish jurisdiction in an IRA appeal,
an appellant must, among other things, prove by preponderant evidence that he
exhausted his remedies before OSC).
We have considered the appellant’s remaining arguments and find them
unavailing. We therefore deny the petition for review and affirm the initial
decision dismissing the appeal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing 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 Though the appellant states that he made a FOIA request for “new and material
evidence,” he has not presented any new and material evidence for the Board’s
consideration. PFR File, Tab 1 at 9.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you6
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Hooker_Carlton_E_AT-1221-21-0217-W-1__Final_Order.pdf | 2024-04-25 | null | AT-1221-21-0217-W-1 | NP |
1,656 | https://www.mspb.gov/decisions/nonprecedential/Ha_NhiSF-0714-18-0033-I-1 Remand Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NHI HA,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-0714-18-0033-I-1
DATE: April 25, 2024
THIS ORDER IS NONPRECEDENTIAL1
Debra D’Agostino , Esquire, and Sarah L. McKinin , Esquire, Washington,
D.C., for the appellant.
Thomas R. Beindorf , Los Angeles, 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
sustained his removal under 38 U.S.C. § 714(a). 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
The appellant was a GS-13 Supervisory Veterans Service Representative
for the agency. Initial Appeal File (IAF), Tab 6 at 12. On April 18, 2017, the
agency proposed the appellant’s reduction in grade and pay based on two
specifications of conduct unbecoming. Id. at 75-77. The first specification
pertained to the appellant’s ineffective handling of a subordinate’s allegation of
sexual harassment against another employee. Id. at 75. The second specification
pertained to the appellant’s inappropriate comments toward this same
subordinate. Id. at 76. The agency, however, rescinded the proposal the
following day. Id. at 73.
Subsequently, the agency convened an Administrative Investigation Board,
which found that the appellant engaged in numerous other instances of
misconduct and recommended that the agency take appropriate administrative
action against him. Id. at 54-71. On September 19, 2017, the agency proposed
the appellant’s removal under 38 U.S.C. § 714 based on one charge of
“Inappropriate conduct in the workplace” (nine specifications) and one charge of
“Lack of Candor” (five specifications). Id. at 36-39. After the appellant
responded, the deciding official issued a decision sustaining both charges and
removing the appellant effective October 18, 2017. Id. at 12, 14-17, 19-21,
23-33.
The appellant filed a Board appeal, challenging the removal chiefly on due
process grounds. IAF, Tab 1 at 4, 6, Tab 20. He waived his right to a hearing.
IAF, Tab 17. After the close of the record, the administrative judge issued an
initial decision sustaining the removal. IAF, Tab 24, Initial Decision (ID). She
found that the agency proved both charges (although not all specifications) by
substantial evidence. ID at 3-12. She also considered the appellant’s due process2
affirmative defenses, but found that the agency did not violate his due process
rights. ID at 12-18.
The appellant has filed a petition for review, contesting the penalty and
renewing his argument that the agency violated his due process rights in several
respects. Petition for Review (PFR) File, Tab 3. The agency has not filed a
response.
ANALYSIS
The appellant has not proven a due process violation.
In an appeal of an adverse action taken under 38 U.S.C. § 714(a), the
agency bears the burden of proving its charge by substantial evidence. 38 U.S.C.
§ 714(d)(2)(a). Nevertheless, the Board must reverse the agency’s action if the
appellant shows that the agency violated his right to due process. See Stephen v.
Department of the Air Force , 47 M.S.P.R. 672, 681 (1991). Minimum due
process of law entails prior notice and an opportunity to respond. Cleveland
Board of Education v. Loudermill , 470 U.S. 532, 546 (1985). On petition for
review, the appellant does not contest the administrative judge’s finding that the
agency proved its charges. He does, however, make several arguments
concerning an alleged violation of due process. PFR File, Tab 3 at 19-29. We
have considered these arguments, but for the reasons explained in the initial
decision, we agree with the administrative judge that the appellant has not proven
a due process violation based on the current record. ID at 12-18.2
The appellant also argues that the agency should not have considered his
prior alleged misconduct in its penalty determination because the misconduct was
unproven. PFR File, Tab 3 at 22. This is a challenge to the merits of the
agency’s penalty determination, which the administrative judge declined to
2 Even if an improper ex parte communication does not amount to a violation of due
process, the Board still must determine whether it constituted harmful error. Ward v.
U.S. Postal Service , 634 F.3d 1274,1281 (Fed. Cir. 2011). We have considered this
issue, but we find insufficient evidence to conclude that any procedural error in this
regard likely affected the outcome of the agency’s decision.3
consider because the Board lacks the authority to mitigate a penalty under
38 U.S.C. § 714(d)(2)(A), (3)(C). ID at 14. However, after the initial decision
was issued, the U.S. Court of Appeals for the Federal Circuit held that,
notwithstanding its lack of mitigation authority, the Board is nevertheless
required to review the agency’s penalty determination as part of its review of the
agency’s decision as a whole. Connor v. Department of Veterans Affairs , 8 F.4th
1319, 1323-27 (Fed. Cir. 2021); Brenner v. Department of Veterans Affairs ,
990 F.3d 1313, 1322-27 (Fed. Cir. 2021); Sayers v. Department of Veterans
Affairs, 954 F.3d at 1375-79 (Fed. Cir. 2020). Therefore, we remand this appeal
for the administrative judge to review the agency’s penalty determination
according to the standard set forth in Douglas v. Veterans Administration,
5 M.S.P.R. 280, 306 (1981). See Semenov v. Department of Veterans Affairs ,
2023 MSPB 16, ¶¶ 44-50.
In addition, the record shows that the deciding official sustained the
charges under a substantial evidence standard of proof. IAF, Tab 1 at 31, Tab 23
at 6. This was error. Although the Board reviews a section 714 action by
substantial evidence, the agency’s deciding official may only sustain the charge if
he finds it proven by preponderant evidence. Rodriguez v. Department of
Veterans Affairs , 8 F.4th 1290, 1298 1300 (Fed. Cir. 2021). Therefore, on
remand, the administrative judge shall determine whether the agency’s
application of the substantial evidence standard of proof was harmful error. See
Semenov, 2023 MSPB 16, ¶¶ 21-25 & n.5.
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 allow the parties to supplement the record with
additional evidence and argument on the issues of penalty and harmful error. She
shall then issue a new initial decision that addresses these issues. As to the issues4
of whether the agency presented substantial evidence to prove its charges before
the Board or violated the appellant’s right to due process, the administrative
judge may adopt the findings from her previous initial decision, as appropriate.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.5 | Ha_NhiSF-0714-18-0033-I-1 Remand Order.pdf | 2024-04-25 | NHI HA v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0714-18-0033-I-1, April 25, 2024 | SF-0714-18-0033-I-1 | NP |
1,657 | https://www.mspb.gov/decisions/nonprecedential/Mays_Dorothy_J_SF-0752-22-0547-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DOROTHY J. MAYS,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
SF-0752-22-0547-I-1
DATE: April 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dorothy J. Mays , Antioch, California, pro se.
Glenn R. Cascon , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her alleged involuntary retirement appeal for lack of jurisdiction. On
petition for review, the appellant reasserts that she had no choice but to retire
because her first- and second-level supervisors set her up for failure and would
have tried to fire her. Petition for Review (PFR) File, Tab 1 at 2. Generally, we
grant petitions such as this one only in the following circumstances: 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 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.
On review, the appellant does not identify any particular error in the initial
decision. Instead, she disagrees with the decision and contends that “[she is] by
‘law’ entitled to a hearing” on her appeal. PFR File, Tab 1 at 2. Her mere
disagreement with the administrative judge’s well-reasoned findings provides no
basis to disturb the initial decision. See Davison v. Department of Veterans
Affairs, 115 M.S.P.R. 640, ¶ 9 (2011). We also find no merit to the appellant’s
assertion that she is entitled by law to a hearing. In an involuntary retirement
appeal, an appellant must make nonfrivolous allegations of jurisdiction to be
entitled to a hearing. Putnam v. Department of Homeland Security , 121 M.S.P.R.
532, ¶ 21 (2014). A nonfrivolous allegation is an assertion that, if proven, could
establish the matter at issue. 5 C.F.R. § 1201.4(s). Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).2
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Mays_Dorothy_J_SF-0752-22-0547-I-1__Final_Order.pdf | 2024-04-25 | DOROTHY J. MAYS v. DEPARTMENT OF THE TREASURY, MSPB Docket No. SF-0752-22-0547-I-1, April 25, 2024 | SF-0752-22-0547-I-1 | NP |
1,658 | https://www.mspb.gov/decisions/nonprecedential/Kelly_InezAT-0752-18-0382-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
INEZ KELLY,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
AT-0752-18-0382-I-1
DATE: April 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Inez Kelly , Orlando, Florida, pro se.
Michael L. Torres , 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 for lack of jurisdiction her appeal that the agency subjected her to a
reduction in grade or pay. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
supplement and clarify the nature of the action at issue, we AFFIRM the initial
decision.
BACKGROUND
The appellant was employed under a Science and Technology Reinvention
Laboratory (STRL) Personnel Management Demonstration Project during the time
relevant to this appeal. She initially held the position of Supervisory General
Engineer, NM-05, in the competitive service at a basic pay rate of $112,319 in
Orlando, Florida. Initial Appeal File (IAF), Tab 4 at 11-12. On March 23, 2015,
the agency selected the appellant for a temporary detail assignment as a General
Engineer (Scientific Advisor), DP-05, also in the competitive service, for
U.S. Naval Forces Central Command, Fifth Fleet, in Manama, Bahrain, effective
November 1, 2015. Id. at 19-21, 22-29. The appellant’s basic pay rate of
$117,935 was set in accordance with the STRL performance plan. IAF, Tab 4
at 11-12, Tab 5 at 30-31. The agency extended the appellant’s temporary
assignment in Bahrain to January 25, 2018, by which point her basic pay rate had
increased to $133,736. IAF, Tab 4 at 11, 22-23, Tab 5 at 45-64.
On January 25, 2018, the agency returned the appellant to her position as a2
Supervisory General Engineer, NM-05, at a basic pay rate of $116,181.2
IAF, Tab 4 at 10, Tab 5 at 91-92.
The appellant filed an appeal with the Board alleging that the agency
“committed a prohibited personnel practice by violating the merit system
principles” when it reduced her basic pay by over 13%. IAF, Tab 1 at 3.
She indicated that she did not want a hearing. Id. at 2. The agency moved to
dismiss the appeal for lack of jurisdiction, arguing that the appellant did not
suffer an appealable reduction in pay. IAF, Tab 4. The appellant asserted that,
because the regulations cited by the agency apply to a temporary promotion,
which is not the action at issue, the Board has jurisdiction over her appeal.
IAF, Tab 5 at 6-7. In an Order to Show Cause, the administrative judge notified
the appellant that the Board may not have jurisdiction over her appeal and
ordered her to file evidence and argument showing that the Board has
jurisdiction. IAF, Tab 6 at 1-2. In her response, the appellant directed the
administrative judge to her earlier submission. IAF, Tab 7 at 4.
Based on the written record, the administrative judge dismissed the appeal,
finding that the Board lacks jurisdiction to consider the appellant’s claims
because she failed to show that she suffered a reduction in grade or pay within the
meaning of 5 U.S.C. § 7512. IAF, Tab 8, Initial Decision (ID) at 1, 4. In so
doing, the administrative judge cited to 5 C.F.R. § 752.401(b)(12) and 5 C.F.R.
§ 335.102(f)(1), which exclude from Board jurisdiction actions that terminate
temporary or term promotions. ID at 3-4. The administrative judge further found
that, absent an otherwise appealable action, the Board lacks jurisdiction over the
appellant’s allegations of discrimination and prohibited personnel practices.
ID at 5.
2 Upon her return to her permanent position, the appellant actually received an increase
in pay. While the re-addition of locality pay resulted in a higher adjusted basic pay of
$134,038, it is not the proper point of reference. IAF, Tab 5 at 72; see Campbell v.
Department of Veterans Affairs , 93 M.S.P.R. 70, ¶ 6 (2002) (stating that, for purposes
of determining whether an employee has suffered a reduction in pay, locality pay is not
considered part of an employee’s basic pay).3
The appellant has filed a petition for review of the initial decision.
Petition for Review (PFR) File, Tab 1. The agency has responded in opposition
to the petition for review, and the appellant has replied. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s overseas assignment as a DP-05 General Engineer
(Scientific Advisor) was a reassignment.
The appellant disputes the nature of the action at issue, alleging that her
overseas assignment as a DP-05 General Engineer (Scientific Advisor) was a
temporary reassignment, not a temporary promotion, as characterized by the
agency and the administrative judge. PFR File, Tab 1 at 5, Tab 4 at 5.
The appellant’s Standard Form 50 (SF -50) reflects that the action was taken
pursuant to 5 C.F.R. § 335.102, which addresses an agency’s authority to
promote, demote, or reassign an employee. IAF, Tab 4 at 11.
The agency argues that the legal authority cited on the appellant’s SF -50
authorizes its action to make a time-limited promotion to fill a temporary position
for a specified period. IAF, Tab 4 at 7-8; see 5 C.F.R. § 335.102(f).
Under 5 C.F.R. § 335.102(f)(1), “[an] employee may be returned at any time to
the position from which temporarily promoted, or to a different position of
equivalent grade and pay, and the return is not subject to the procedures in parts
351, 432, 752, or 771 of this chapter.” The Board lacks jurisdiction over such an
action, if the agency informed the employee that the promotion was to be limited
duration. ID at 3; see 5 C.F.R. § 752.401(b)(12).
The fact that the agency may have characterized the appellant’s overseas
assignment as a temporary promotion is not dispositive of whether a temporary
promotion actually occurred. It is the actual nature of the action appealed, not the
agency’s characterization of it, which determines whether the Board has
jurisdiction over that action. Robinson v. U.S. Postal Service , 63 M.S.P.R. 307,
327 (1994); see Russell v. Department of the Navy , 6 M.S.P.R. 698, 704 (1981)
(observing that the Board is not obligated to accept the assertion of a party as to4
the nature of a personnel action, but may make its own independent determination
regarding that matter).
Here, the appellant’s overseas assignment as a DP-05 General Engineer
(Scientific Advisor) is not that of a temporary promotion, even as contemplated
by the agency. The appellant’s SF-52s, SF-50s, and STRL Pay Setting
Worksheet, dated September 17, 2015, show that the agency designated the action
as a “reassignment.”3 IAF, Tab 5 at 30-31, 33-34, 38, 41, 42, 68-69, 72.
In addition, the agency refers to the action as a “detail assignment” throughout
the memorandum of agreement, dated August 28, 2015, thereby reinforcing its
classification as such. IAF, Tab 4 at 24-28.
Pursuant to the regulations governing the STRL Demonstration Project,
a reassignment, which is the action that best describes the appellant’s situation, is
the movement of an employee “to a different position or set of duties within
his/her pay band or to a position in a comparable pay band, or from a
non-demonstration project position to a demonstration project position at a
comparable level of work, on either a temporary or permanent basis.” IAF, Tab 5
at 27; see STRL Personnel Management Demonstration Project, Department of
Navy, Naval Air System Command, Naval Air Warfare Center, Aircrafts Division
(NAWCAD) and Naval Air Warfare Center, Weapons Division (NAWCWD),
76 Fed. Reg. 8530, 8549 (Feb. 14, 2011).4 By contrast, a promotion is the
3 The agency’s characterization of the action is not consistent, as evinced by a singular
reference to the action as a temporary promotion to a GS-15 (or equivalent) pay band in
the memorandum of agreement. IAF, Tab 4 at 25. Nonetheless, the record evidence
and the legal authority support a finding that the nature of the action is a reassignment.
4 Section 342(b) of the National Defense Authorization Act (NDAA) for Fiscal Year
(FY) 1995 authorizes the Secretary of Defense to conduct personnel demonstration
projects at Department of Defense laboratories designated as STRLs. 76 Fed. Reg.
at 8530. The NAWCAD and NAWCWD are listed in subsection 1105(a) of NDAA for
FY 2010 as newly designated STRLs. Id. The appellant is employed within the Naval
Air Warfare Center, Training Systems Division (NAWCTSD). IAF, Tab 4 at 11. The
agency clarified, however, that it set the appellant’s pay in the STRL Demonstration
Project in accordance with the referenced Federal Register Notice. IAF, Tab 5 at 30;
see 76 Fed. Reg. 8530. 5
movement of an employee to a higher pay band in the same or different
occupational family. Id.; see IAF, Tab 5 at 27. Here, the appellant was moved to
a position within the same pay band in a different occupational family. IAF,
Tab 5 at 30, 33. Her permanent position is in Band V of the Supervision and
Management occupational family (NM Pay Plan) and her temporary position was
in Band V of the Scientific and Engineering occupational family (DP Pay Plan).
Id. at 24-25, 30, 33.
Within the STRL Demonstration Project, the agency has “greater
managerial control over personnel functions through a more responsive and
flexible personnel system.” 76 Fed. Reg. at 8536. The appellant’s managers
adopted the flexibility of the STRL Demonstration Project to increase the
appellant’s pay by up to and including 5%—the designated maximum for a
reassignment within her pay band. IAF, Tab 5 at 30-31; see 76 Fed. Reg. at 8534,
8551. There is no indication in the record that the agency implemented the pay
setting guidelines for a promotion to a higher pay band, which states that “the
minimum base pay increase . . . [is] 6% or the minimum base pay rate of the new
pay band, whichever is greater.” 76 Fed. Reg. at 8550.
The appellant has not suffered an appealable reduction in pay or pay band.
The nature of the action at issue is a temporary reassignment. In order for
a reassignment to fall within the Board’s jurisdiction under 5 U.S.C. chapter 75, it
must result in a reduction in grade or a reduction in pay. Loggins v. U.S. Postal
Service, 112 M.S.P.R. 471, ¶ 10 (2009); Marcheggiani v. Department of Defense ,
90 M.S.P.R. 212, ¶ 7 (2001).
The appellant’s movement within the STRL Demonstration Project, namely
her return to her NM-05 position upon the expiration of her reassignment in the
DP-05 position, does not constitute an appealable reduction in grade.5 IAF, Tab 5
5 The appellant has not alleged that she suffered a reduction in grade due to a lowering
of her “virtual” General Schedule (GS) grade. She acknowledges that she was
temporarily reassigned to the DP-05 position (GS-15 equivalent) and then returned to
the NM-05 position (GS-14 equivalent) she initially held. IAF, Tab 5 at 11.6
at 72, 91. Grade means “a level of classification under a position classification
system.” 5 U.S.C. § 7511(a)(3). For purposes of the STRL Demonstration
Project, the term “grade” is replaced with “pay band.”6 76 Fed. Reg.
at 8558, 8561.
As her reassignment was temporary in nature, the appellant retained her
permanent position with its pay band level throughout the events at issue in this
appeal. The appellant remained within the STRL Demonstration Project; the
agency did not move the appellant across or between position classification
systems. Even if there was evidence to the contrary, we are not persuaded that a
reduction in pay band occurred. Cf. Arrington v. Department of the Navy ,
117 M.S.P.R. 301, ¶ 12 (2012) (finding no reduction in grade occurred based
solely on the appellant’s conversion from a YC-2 position within the NSPS to a
GS-13 position); 76 Fed. Reg. at 8561 (stating that, within the STRL
Demonstration Project, a reduction in pay band is not an adverse action if it
results from the employee’s rate of base pay being exceeded by the minimum rate
of base pay for her pay band).
The agency’s adjustment of her basic pay rate at the time she returned to
her NM-05 position does not constitute an appealable reduction in pay. IAF,
Tab 5 at 72, 91. The right to appeal a reduction in pay has been narrowly
construed and requires a demonstrable loss, such as an actual reduction in pay, to
establish jurisdiction. See Chaney v. Veterans Administration , 906 F.2d 697,
698 (Fed. Cir. 1990) (explaining that an appealable reduction in pay occurs only
when there is an ascertainable lowering of the employee’s pay at the time of the
Any “virtual” GS grade associated with the positions the appellant held plays no role in
determining whether she suffered a reduction in grade. See Ellis v. Department of the
Navy, 117 M.S.P.R. 511, ¶ 8 (2012).
6 In the STRL Demonstration Project, there are several occupational families with pay
bands designed to facilitate pay progression. 76 Fed. Reg. at 8537. Pay bands replace
individual grades. Id. at 8538. Each occupational family is divided into three to six
pay bands with each pay band covering the same basic pay rate range that would be
covered by one or more GS grades. Id.7
action). Pay is defined as the “rate of basic pay fixed by law or administrative
action for the position held by an employee.” 5 U.S.C. § 7511(a)(4).
The appellant argues that she is entitled to the higher basic pay rate of the
DP-05 position to which she was temporarily reassigned,7 given that
“the [a]gency illegally eliminated the step increases with pay awarded for
performance” in the STRL Demonstration Project. PFR File, Tab 1 at 6-7, Tab 4
at 5; IAF, Tab 5 at 14-17. An agency’s failure to increase an employee’s pay is
not an appealable reduction in pay. Gaydar v. Department of the Navy ,
121 M.S.P.R. 357, ¶ 7 (2014).
To the extent that the temporary reassignment may be considered a detail,8
as described in the memorandum of agreement dated August 28, 2015, we are not
persuaded that the appellant’s detail to the DP-05 position and her return to her
NM-05 position, with its accompanying variations in basic pay rate, are within
the Board’s jurisdiction. IAF, Tab 4 at 24-28. A detail by its very nature is
temporary and involves no formal appointment; the employee continues to be the
7 The appellant opines that the agency should have set her basic pay rate at $133,736, as
required by 5 C.F.R. §§ 531.205, 531.213, and 76 Fed. Reg. 8530, or $127,359, as
required by STRL Implementing & Operating Procedures. PFR File, Tab 1 at 6-8,
Tab 4 at 5-6. The record shows no action on the part of the agency to make changes to
her basic pay rate in the context of 5 C.F.R. § 531.205 (an official worksite change
action) or 5 C.F.R. § 531.213 (a lateral change in position). The agency’s readjustment
of the appellant’s basic pay rate merely reflected the reversion of her pay to that of her
NM-05 position upon the expiration of her reassignment to the DP -05 position, during
which she received a higher basic pay rate, as a result of salary adjustments, step
increases, and performance based pay increases. IAF, Tab 5 at 45-64, 91-92. Because
the Board lacks jurisdiction over the appeal, it need not address the issue of whether the
agency complied with the referenced pay setting guidelines.
8 The STRL Demonstration Project provides the NAWCAD and NAWCWD an
Expanded Detail and Temporary Promotion Authority “(1) to effect details up to one
year to specified positions at the same or similar level; and (2) to effect details or
temporary promotions to a higher pay band position up to one year within a 24-month
period without competition.” 76 Fed. Reg. at 8550. The memorandum of agreement,
however, states that the expected duration for the detail was 24 months and it may be
extended to no longer than 30 months. IAF, Tab 4 at 24. Thus, the detail does not
appear to fall within the said parameters; however, the appellant, as a NAWCTSD
employee, may not be subject to the time limitation of a detail under the expanded
authority. Id.8
incumbent of the position from which she was detailed. Rogers v. Department of
the Army, 88 M.S.P.R. 610, ¶ 8 (2001); Chambers v. U.S. Postal Service ,
77 M.S.P.R. 337, 343-44 (1998). Thus, the appellant officially remained the
incumbent of the NM-05 position while she was detailed to the DP-05 position.
Because the appellant’s position of record and basic pay rate did not change with
her detail, she did not suffer an appealable reduction in pay or pay band when her
detail concluded and she stopped receiving additional compensation above her
basic pay rate.
We find that the Board lacks jurisdiction to consider the agency’s action in
returning the appellant to the position she previously held at the same pay and
pay band when her temporary reassignment concluded. Accordingly, the
administrative judge properly dismissed the appeal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS9
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
9 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.9
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you10
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 11
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If
so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.10 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)
(1)(B).
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 12
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Kelly_InezAT-0752-18-0382-I-1__Final_Order.pdf | 2024-04-25 | INEZ KELLY v. DEPARTMENT OF THE NAVY, MSPB Docket No. AT-0752-18-0382-I-1, April 25, 2024 | AT-0752-18-0382-I-1 | NP |
1,659 | https://www.mspb.gov/decisions/nonprecedential/Nevarez_Benjamin_A_DE-0752-18-0109-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BENJAMIN A. NEVAREZ,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DE-0752-18-0109-I-1
DATE: April 25, 2024
THIS ORDER IS NONPRECEDENTIAL1
R. Chris Pittard , Esquire, San Antonio, Texas, for the appellant.
Casey W. Hinson , Esquire, Falls Church, 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
sustained his removal. For the reasons discussed below, we GRANT the
appellant’s petition for review. We AFFIRM the administrative judge’s findings
that the agency met its burden to prove the charge, nexus, and penalty, and that
the appellant failed to prove his Title VII discrimination and retaliation claims.
We VACATE the administrative judge’s findings as to the appellant’s claim 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).
reprisal for activity protected under 5 U.S.C. § 2302(b)(9)(C), and REMAND the
case to the field office for further adjudication in accordance with this Remand
Order.
BACKGROUND
Prior to his removal, the appellant was employed as a GS-07 Supervisory
Security Guard at the agency’s Test and Evaluation Command at the White Sands
Missile Range (WSMR) in New Mexico. Initial Appeal File (IAF), Tab 1 at 1,
Tab 10 at 41. The appellant’s job duties included performing as the shift
supervisor for the civilian guards tasked with providing protective measures at a
nuclear reactor. IAF, Tab 10 at 44-45. As a condition of his employment, he was
required to maintain Personnel Reliability Program (PRP) enrollment. Id. at 45.
The purpose of the PRP is to ensure that each employee who performs duties in
support of the nuclear weapons program or at agency nuclear facilities “meets the
highest possible standards of reliability.” Id. at 50.
In March 2011, the appellant made disclosures to the agency’s Office of the
Inspector General (OIG) and to his supervisors that he and his subordinates
should not have been charged leave after they were instructed to go home after
completing a training exercise that month. IAF, Tab 9 at 4, 70; Nevarez v.
Department of the Army , MSPB Docket No. DE-1221-13-0166-B-1, Remand
Initial Decision (0166 RID) at 3-4, 11 (Aug. 24, 2016). On February 13, 2012,
the appellant filed a complaint with the Office of Special Counsel (OSC), in
which he alleged that he had been subject to reprisal after he made his
March 2011 disclosures. IAF, Tab 9 at 70. He alleged that, in reprisal for his
whistleblowing, the agency proposed to suspend him for 30 days, which was later
changed to a letter of proposed removal, but was ultimately mitigated to a 3 -day
suspension. Id. at 68. He also alleged that he was given a lowered performance
appraisal rating and placed on administrative leave until October 31, 2012. Id.
On November 27, 2012, OSC closed its investigation and advised the appellant of2
his right to file an individual right of action (IRA) appeal before the Board. Id.
at 68-71.
In January 2013, the appellant filed an IRA appeal. Nevarez v. Department
of the Army, MSPB Docket No. DE-1221-13-0166-W-2, Initial Decision at 1
(May 15, 2014). The field office issued an initial decision denying the
appellant’s request for corrective action. Id. at 2, 10. The appellant filed a
petition for review of that initial decision, and the Board issued a remand order
vacating the initial decision and remanding the appeal for further adjudication.
Nevarez v. Department of the Army , MSPB Docket No. DE-1221-13-0166-W-2,
Remand Order (0166 RO) (Sept. 29, 2014). On remand, the field office found
that the agency retaliated against the appellant—by removing his ability to certify
time and attendance records for his subordinates in March 2011, lowering his
performance rating for the rating period from March 2011 to February 2012, and
proposing a 30-day suspension in August 2011—for his March 2011 disclosure.
0166 RID at 11, 14-22.
Meanwhile, in May 2013, the Chief of Security Operations at the WSMR
temporarily disqualified the appellant from continued enrollment in the PRP, and,
3 months later, recommended permanent disqualification to the WSMR’s
Commander. IAF, Tab 10 at 34-36, 40. As justification, this recommendation
alleged, among other reasons, that the appellant had failed to follow instructions,
showed an unwillingness to complete tasks, failed to attend a meeting with the
Chief of Security Operations in March 2013, failed to attend a meeting with the
Commander in May 2013, and made unsubstantiated claims alleging supervisors
violated rules in March 2013. Id. at 35-36. The Commander permanently
disqualified the appellant from the PRP as of September 10, 2013. Id. at 32-33.
On November 2, 2017, the agency proposed the appellant’s removal for failure to
meet a condition of employment due to his permanent disqualification from the
PRP in 2013. Id. at 30-31. On December 5, 2017, the deciding official removed
the appellant effective December 9, 2017. Id. at 23. 3
After holding the appellant’s requested hearing, the administrative judge
sustained the appellant’s removal. IAF, Tab 26, Initial Decision (ID) at 2.
Specifically, he found that the agency proved its charge that the appellant failed
to meet a condition of his employment due to his disqualification from the PRP.
ID at 8-11. The administrative judge denied the appellant’s affirmative defenses.
ID at 11-15. Specifically, he found that, while the three supervisors who were
characterized in the remand initial decision in the appellant’s prior appeal as
having a strong motive to retaliate against the appellant submitted materials in
support of the appellant’s PRP disqualification, the Commander did not greatly
rely on those materials when making his decision. ID at 12; 0166 RID at 16, 18,
23. Thus, he found that the appellant did not prove that his protected activity of
filing an OSC complaint was a contributing factor in his PRP disqualification. ID
at 11-13. He went on to find that the agency proved it would have removed the
appellant absent his protected activity. ID at 12-13. The administrative judge did
not address the appellant’s claim of reprisal for his March 2011 disclosure. Id.;
IAF, Tab 25 at 6. The administrative judge also found that the appellant did not
prove that his race or his 2014 and 2015 equal employment opportunity (EEO)
complaints were motivating factors in his removal. ID at 13-15.
The appellant has timely filed a petition for review. Petition for Review
(PFR) File, Tab 1. The agency has filed a response to the petition.2 PFR File,
Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant does not challenge the administrative judge’s
determination that the agency proved the charge, that the penalty of removal was
reasonable, and that he failed to prove his affirmative defenses of discrimination
2 The agency has titled its pleading as both a response to the petition for review and a
motion to dismiss. PFR File, Tab 3 at 4. However, the agency did not provide any
argument as to the dismissal of the petition for review. Thus, we discern that its
reference to a motion to dismiss was inadvertent. 4
based on his race and reprisal for filing prior EEO complaints. PFR File, Tab 1
at 5-8. Rather, he only contends that the administrative judge erred in rejecting
his affirmative defense of whistleblower reprisal. Id. Specifically, he alleges that
the Chief of Security Operations and the Commander, the certifying and
reviewing officials for the PRP disqualification, were aware of his “protected
activities” and failed to take action against the individuals who retaliated against
him. Id. at 5.3
We modify the initial decision to properly identify all of the protected activities
and disclosures at issue in this appeal.
In an adverse action appeal such as this, an appellant’s claim of reprisal for
making a disclosure protected under 5 U.S.C. § 2302(b)(8), or in engaging in
activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), is treated as an
affirmative defense.4 Campbell v. Department of the Army , 123 M.S.P.R. 674,
¶ 11 (2016) (analyzing a claim of whistleblower reprisal); Clay v. Department of
the Army, 123 M.S.P.R. 245, ¶ 10 (2016) (analyzing a claim of reprisal for filing
a prior Board appeal). Here, the administrative judge found that the appellant
engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C) when he filed his
OSC complaint in February 2012. ID at 7. We agree. However, the appellant’s
OSC complaint was not the only activity for which he alleged reprisal. He also
raised a claim of reprisal for making disclosures to his supervisors and the OIG in
March 2011. IAF, Tab 9 at 72, Tab 19 at 111, Tab 25 at 6. As to the appellant’s
OIG complaint, it is protected activity under 5 U.S.C. § 2302(b)(9)(C), regardless
of its content. Fisher v. Department of the Interior , 2023 MSPB 11, ¶ 8. As to
3 The appellant also makes various arguments regarding issues in his other Board
appeals, such as arguments regarding his petition for enforcement in Nevarez v.
Department of the Army , MSPB Docket No. DE-1221-13-0166-C-1. PFR File, Tab 1
at 6. These arguments are not relevant to the instant appeal, and we decline to address
them here.
4 When, as here, the protected activity occurred before, and the alleged personnel action
occurred after, the effective date of the Whistleblower Protection Enhancement Act of
2012 (WPEA), the Board applies the WPEA. Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶ 51. 5
the appellant’s disclosure to his supervisors in March 2011, the Board has
previously identified this disclosure as protected, and neither party disputed that
finding. IAF, Tab 19 at 111, Tab 25 at 6; 0166 RO, ¶ 5; 0166 RID at 11.
For the first time on review, the appellant also appears to make additional
disclosures of wrongdoing, such as the Chief of Security Operations causing
damage to Government vehicles. PFR File, Tab 1 at 5; IAF, Tab 1 at 3, Tab 25
at 6-11. He also raises additional personnel actions, including the agency’s
failure to prevent harassment by the supervisors who retaliated against him. PFR
File, Tab 1 at 5. The Board will not consider arguments 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); 5 C.F.R. § 1201.115(d). Here, the
appellant has failed to show that his arguments regarding additional disclosures of
wrongdoing and personnel actions were based on new and material evidence not
previously available despite his due diligence; accordingly, the Board will not
consider these arguments.5
5 The appellant also attaches documents for the first time with his petition for review.
PFR File, Tab 1 at 9-18, 25-32. The Board will not consider evidence submitted for
first time with a petition for review absent a showing that it was unavailable before the
record closed despite the party’s due diligence. Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d). Here, the documents are not new
because they are dated prior to the date of the initial decision. See Alexander v.
Department of Veterans Affairs , 90 M.S.P.R. 591, ¶ 8 (2002) (finding that, documents
that were available before the issuance of the initial decision did not constitute new
evidence). Because the appellant has not shown that the evidence he submitted for the
first time on review was unavailable before the record closed despite his due diligence,
we will not consider it. The appellant resubmits his response to the proposed removal,
which is already part of the record below, and thus is not new. Compare PFR File,
Tab 1 at 19-24, with IAF, Tab 10 at 24-29; s ee 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). 6
The appellant met his burden to prove that his protected activities and disclosure
were contributing factors in his disqualification from the PRP.
Next, the appellant must establish by preponderant evidence that he
engaged in protected activity that was a contributing factor in the personnel
action at issue. Elder v. Department of the Air Force , 124 M.S.P.R. 12, ¶ 39
(2016). One way of proving that an appellant’s prior protected activity was a
contributing factor is the knowledge/timing test. Alarid v. Department of the
Army, 122 M.S.P.R. 600, ¶ 13 (2015). This test allows an employee to
demonstrate that his prior protected activity was a contributing factor in the
challenged action by showing that the deciding official knew of the protected
activity and took the personnel action within a period of time such that a
reasonable person could conclude that the protected activity was a contributing
factor in the action. Id. An appellant may also satisfy the knowledge prong of
the knowledge/timing test by proving that the official taking the action had
constructive knowledge of the disclosure, even if he did not have actual
knowledge. 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 influenced the official accused of taking
the retaliatory action. Id. Once the knowledge/timing test has been met, an
administrative judge must find that the appellant has shown that his
whistleblowing was a contributing factor in the personnel action at issue, even if,
after a complete analysis of all of the evidence, a reasonable factfinder could not
conclude that his whistleblowing was a contributing factor in the personnel
action. Schnell v. Department of the Army , 114 M.S.P.R. 83, ¶ 21 (2010).
Regarding the knowledge prong of the test, the administrative judge did not
make a finding as to whether the Chief of Security Operations or the Commander,
who recommended and made the decision to permanently disqualify the appellant
from the PRP, were aware of the appellant’s OSC complaint.6 ID at 12.
6 The administrative judge did not evaluate contributing factor as to the appellant’s OIG
complaint or March 2011 disclosure because, as discussed above, he failed to identify7
However, he acknowledged that, at a minimum, the Commander relied on
materials and input from three supervisors that the administrative judge
previously found had some motive to retaliate against the appellant in the context
of his prior IRA appeal. ID at 12; 0166 RID at 16, 18, 23. The administrative
judge found that the “retaliatory actions of the three [prior] supervisors occurred
close enough in time that their continued retaliatory intent can be inferred.” ID
at 12. However, he then found that the Commander “did not greatly rely on
memorandums or other input from the three supervisors in permanently
disqualifying the appellant from the PRP.” Id. (emphasis added). He concluded
that the appellant did not prove that his OSC complaint was a contributing factor
in his disqualification from the PRP. ID at 13. We disagree.
The appellant made his disclosures to supervisors in March 2011, contacted
the agency OIG the same month, and filed his OSC complaint in February 2012.
IAF, Tab 9 at 68-71; 0166 RID at 3-4, 11. The Chief of Security Operations
temporarily disqualified the appellant from the PRP in May 2013 and
recommended his permanent disqualification in August 2013. IAF, Tab 10
at 34-36, 40. The Commander permanently disqualified the appellant from the
PRP in September 2013. Id. at 33. These personnel actions began within
approximately 2 years of the appellant’s protected disclosure to his supervisors
and filing his OIG and OSC complaints. The Board has found that comparable
periods of time between a protected disclosure and a personnel action can satisfy
the knowledge/timing test. See Agoranos v. Department of Justice , 119 M.S.P.R.
498, ¶¶ 21-23 (2013) (finding that the timing prong of the knowledge/timing test
was met when the first personnel action occurred within 2 years of an appellant’s
disclosure and other personnel actions occurring later were part of a continuum
flowing from the first action). We therefore find that the appellant has satisfied
the knowledge/timing test as to the 2013 PRP disqualification.
them as a protected activity and protected disclosure.8
The appellant’s removal, based on his failure to meet a condition of
employment due solely to his permanent disqualification from the PRP, occurred
in 2017. IAF, Tab 10 at 23, 30-31. In his written reply to his proposed removal,
the appellant provided detailed information arguing that his removal was reprisal
for the disclosures he made in March 2011 and his OIG and OSC complaints.
Id. at 24-26. The deciding official indicated that he had received and considered
the information contained in the appellant’s written reply. Id. at 23. Thus, the
deciding official had actual knowledge of the appellant’s protected activities and
disclosure. Further, because the appellant’s removal flowed from the PRP
decision, which was influenced by individuals with a retaliatory motive against
the appellant, both the proposing and deciding officials had constructive
knowledge of the protected activities and disclosure. Nasuti, 120 M.S.P.R. 588,
¶ 7.
The appellant has also met the timing prong of the knowledge/timing test.
His removal is the culmination of the PRP recommendation and decision, as to
which the timing prong is satisfied. Agoranos, 119 M.S.P.R. 498, ¶¶ 21-23.
As such, we find that the appellant proved by preponderant evidence that his
protected activities of filing OIG and OSC complaints and his March 2011
disclosure were contributing factors in an agency personnel action, his PRP
disqualification and subsequent removal. Thus, we vacate the administrative
judge’s finding that the appellant failed to prove that his whistleblowing activity
was a contributing factor in his disqualification from the PRP and subsequent
removal and remand the issue for further adjudication.
The appeal is remanded to the administrative judge to assess whether the agency
proved that it would have disqualified the appellant from the PRP and removed
him in the absence of his protected activity and disclosures under the clear and
convincing evidence standard.
Once an appellant establishes a prima facie case of whistleblowing, the
burden shifts to the agency to prove by clear and convincing evidence that it
would have taken the same personnel action in the absence of the appellant’s9
whistleblowing. 5 U.S.C. § 1221(e); see Jenkins v. Environmental Protection
Agency, 118 M.S.P.R. 161, ¶ 16 (2012). 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 its action; (2) the existence and strength of
any motive to retaliate on the part of the agency officials who were involved in
the decision; and (3) any evidence that the agency takes similar actions against
employees who are not whistleblowers but who are otherwise similarly situated.
Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999); see
Whitmore v. Department of Labor , 680 F.3d 1353, 1368 (Fed. Cir. 2012)
(recognizing that “[e]vidence only clearly and convincingly supports a conclusion
when it does so in the aggregate considering all the pertinent evidence in the
record, and despite the evidence that fairly detracts from that conclusion”).
Notwithstanding his determination that the appellant failed prove that his
protected activity of filing an OSC complaint in 2012 was a contributing factor in
his disqualification from the PRP, the administrative judge went on to find that
the agency showed by clear and convincing evidence that it would have taken the
same action in the absence of the appellant’s whistleblowing. ID at 13. The
administrative judge erred in determining whether the agency proved by clear and
convincing evidence that it would have taken the action despite finding that the
appellant did not prove contributing factor. See Scoggins v. Department of the
Army, 123 M.S.P.R. 592, ¶ 28 (2016) (explaining that it was error for an
administrative judge to find the appellant failed to prove his prima facie case of
whistleblower reprisal and nonetheless proceed to find that the agency proved its
affirmative defense). Accordingly, we vacate the administrative judge’s finding
that the agency proved by clear and convincing evidence that it would have
disqualified the appellant from the PRP absent his whistleblowing.
On remand, the administrative judge should conduct a new Carr factor
analysis and render a conclusion on whether the agency met its burden of proving
by clear and convincing evidence that it would have removed the appellant in the10
absence of his protected activities and disclosure. See Agoranos, 119 M.S.P.R.
498, ¶¶ 29-33 (ordering the administrative judge to conduct a new Carr factor
analysis on remand due to deficiency in her original analysis). Below, the
administrative judge was overly dismissive of any motive to retaliate by the
Commander and the Chief of Security Operations. ID at 12-13.
For example, the appellant contended below that the Chief of Security
Operations and the Commander were motivated to retaliate against him because
many of the documents they reviewed and relied upon in recommending and
making the decision to permanently disqualify him from the PRP originated from
the three prior supervisors who were previously found to have a strong motive to
retaliate against him. IAF, Tab 25 at 7-9. The administrative judge failed to
adequately consider in his analysis the effect that the three prior supervisors’
retaliatory motive had upon the Chief of Security Operations and the Commander.
Rather, the administrative judge focused on the fact that the Chief and
Commander arrived after the personnel actions in the prior IRA appeal occurred
and found that the appellant’s arguments were “mere conjecture.” ID at 12-13.
The administrative judge also did not consider in his analysis the strength of the
agency’s evidence in support of its actions. Id. Thus, on remand the
administrative judge must explicitly address all three Carr factors. See, e.g.,
Mithen v. Department of Veterans Affairs , 119 M.S.P.R. 215, ¶¶ 23-24 (2013)
(remanding the case to the administrative judge for an assessment of whether the
agency proved by clear and convincing evidence that it would have taken the
action, including rendering credibility determinations); Massie v. Department of
Transportation, 118 M.S.P.R. 308, ¶¶ 7-8 (2012) (remanding the case for
consideration of the evidence as a whole under Whitmore). 11
ORDER
For the reasons discussed above, we remand this case to the field office for
further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Nevarez_Benjamin_A_DE-0752-18-0109-I-1__Remand_Order.pdf | 2024-04-25 | BENJAMIN A. NEVAREZ v. DEPARTMENT OF THE ARMY, MSPB Docket No. DE-0752-18-0109-I-1, April 25, 2024 | DE-0752-18-0109-I-1 | NP |
1,660 | https://www.mspb.gov/decisions/nonprecedential/Rodriguez_BaldomeroDE-0752-18-0023-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BALDOMERO RODRIGUEZ,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DE-0752-18-0023-I-1
DATE: April 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Leticia Dominguez , Esquire, El Paso, Texas, for the appellant.
George Yu , White Sands Missile Range, 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 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).
2
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
supplement the initial decision regarding the appellant’s retaliation claim, we
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
The appellant was formerly a GS-9 Supervisory Security Guard at the
White Sands Missile Range. He was required, as a condition of employment, to
maintain certification under the agency’s Personnel Reliability Program (PRP).
Initial Appeal File (IAF), Tab 10 at 37. Following an investigation into
allegations of misconduct, the agency first temporarily, then permanently,
disqualified him from the PRP. Id. at 17-18, 28-29; IAF, Tab 12 at 11.
Following his permanent disqualification, the agency removed him effective
September 30, 2017, based on a charge of Failure to Meet a Condition of
Employment. IAF, Tab 10 at 11-15, 17-20, 27-29, 38; Tab 12 at 11. He appealed
and, after a hearing, the administrative judge issued an initial decision in which
he sustained the charge and found that the appellant failed to prove his
affirmative defenses of retaliation for equal employment opportunity activity and
harmful error; the agency proved nexus; there were no vacant positions for which
the appellant qualified to which he could be reassigned that did not require PRP
certification; and removal was within the tolerable bounds of reasonableness.
IAF, Tab 21, Initial Decision (ID) at 13-21.
3
The appellant petitions for review of the initial decision. Petition for
Review (PFR) File, Tab 1. The agency responds in opposition to the petition for
review and the appellant replies to the agency’s response. PFR File, Tabs 3-4.
The agency proved its charge by preponderant evidence.
Adjudication of a removal appeal requires the Board to determine whether
the agency has proven the charge on which the removal is based and, when the
charge consists of the employing agency’s withdrawal or revocation of its
certification or other approval of the employee’s fitness or other qualifications to
hold his position, the Board’s authority generally extends to a review of the
merits of that withdrawal or revocation. Adams v. Department of the Army ,
105 M.S.P.R. 50, ¶ 10 (2007), aff’d, 273 F. App’x. 947 (Fed. Cir. 2008). Thus,
under the circumstances of this appeal, the Board has authority to review the
appellant’s arguments regarding the agency’s decision to disqualify the appellant
from the PRP.
The appellant does not dispute that he committed the four acts that led to
his disqualification from the PRP. He contends that his infractions were all
relatively minor, that others had committed the same or similar offenses without
any serious consequences, and that none of his offenses merited his
disqualification. As the administrative judge correctly found, however, the
deciding official on the disqualification was concerned about the pattern of poor
judgment reflected by the aggregate effect of the appellant’s conduct rather than
the impact of any one instance of poor judgment alone. ID at 14-15; Hearing
Recording 1, Track 1 (testimony of the PRP deciding official). One other
supervisor committed one of the same acts as the appellant, but he did not have
multiple offenses as the appellant did. The deciding official on the
disqualification testified that he had never upheld the disqualification of an
employee for a single act, but that he would do so if the underlying act were
sufficiently serious. Id. He emphasized that, as to the appellant, it was not that
the individual acts were serious enough to warrant his disqualification from the
4
PRP; it was the combined effect of those individual acts that demonstrated a
pattern of poor judgment and that was disqualifying. That pattern of poor
judgment was absent in the other employees who were investigated at the same
time as the appellant. We agree with the administrative judge that the agency
proved that the appellant failed to meet a condition of employment.
The appellant failed to prove his affirmative defense of harmful error.
The Board cannot sustain an agency’s decision in any case if the employee
shows harmful error in the application of the agency’s procedures in making its
decision. Doe v. Department of Justice , 123 M.S.P.R. 90, ¶ 7 (2015);
Stephen v. Department of the Air Force , 47 M.S.P.R. 672, 681 (1991).
Reversal of an action for harmful error is warranted where the procedural error,
whether regulatory or statutory, likely had a harmful effect upon the outcome of
the case before the agency. Stephen, 47 M.S.P.R. at 681; see Doe, 123 M.S.P.R.
90, ¶ 7.
The appellant contends that the agency committed harmful error in several
respects. First, he asserts that the agency erred when his second-line supervisor
initially issued the temporary disqualification, because that was a decision
committed by agency regulation to the “certifying official,” his first-line
supervisor. Petition for Review (PFR) File, Tab 1 at 9-10. The appellant is
correct. The administrative judge found, however, that the error was harmless;
the second-line supervisor was new and issued the temporary disqualification by
mistake. ID at 19. The agency swiftly corrected the mistake and the first-line
supervisor issued a proper temporary disqualification. ID at 19; IAF, Tab 10
at 36, Tab 12 at 10-11. The appellant contends on review that the error was not
harmless because the second-line supervisor’s disqualification memorandum
instructed the appellant not to report to the worksite, and the appellant’s violation
of this instruction was one of the reasons underlying his permanent
disqualification from the PRP. PFR File, Tab 1 at 9-10. The second-line
supervisor may have lacked the authority to disqualify the appellant from the
5
PRP, but there is no indication that he lacked the authority to bar the appellant
from the work site. When the first-line supervisor reissued a proper temporary
disqualification, he neither rescinded nor reaffirmed the ban and bar, although he
did state that the appellant’s “access is restricted.” IAF, Tab 12 at 11. More
importantly, the appellant did not contend below that he considered the ban and
bar to be void because it was contained in the second-line supervisor’s
disqualification memorandum; he contended that he did not violate the
second-line supervisor’s instructions because he did not consider the
administrative building where he appeared to be part of the “work site” he was
not allowed to visit. IAF, Tab 10 at 25. The administrative judge correctly found
that the appellant has not shown that the outcome of his case likely would have
been different if the second-line supervisor had not mistakenly issued a temporary
disqualification memorandum before the first-line supervisor issued essentially
the same memorandum.
Second, the appellant contends that the first-line supervisor was not
permitted to conduct an independent investigation before issuing the permanent
disqualification memorandum. PFR File, Tab 1 at 7-9. The agency’s regulations
state that, as to temporary disqualifications , “The certifying official will promptly
investigate all circumstances that may impact the reliability of an individual.”
IAF, Tab 10 at 54, ¶ 2-29(b). There is no comparable investigation requirement
for permanent disqualifications. Id., ¶ 2-30. However, the regulations applying
generally to “Temporary and permanent removal from PRP duties,” provide that
“[i]t is not necessary to complete an investigation, to take disciplinary action
(either civil or military), or to complete other personnel actions before the
certifying official decides whether to disqualify or retain an individual in the
PRP. Determination of an individual’s reliability rests with the certifying
official.” Id. at 53, ¶ 2-27(b). Thus, contrary to the appellant’s assertion, the
first-line supervisor was not required to conduct an investigation prior to making
a decision on the appellant’s permanent disqualification, and the agency’s
6
regulations explicitly contemplated that it might not be appropriate to do so. In
fact, the agency had already conducted an investigation, the first-line supervisor
had the opportunity to review the investigatory report and supporting evidence,
and the first-line supervisor had independent knowledge of all four incidents
underlying the disqualification. ID at 19. The administrative judge found, based
on his assessment of witness demeanor, that the first-line supervisor was not a
credible witness when he claimed that he needed more time to conduct his own
investigation. The appellant has not proffered a sufficiently sound reason for
setting aside the administrative judge’s demeanor-based credibility findings.
Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002) (holding
that where an administrative judge’s credibility determinations are based 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).
Third, the appellant asserts that the second-line supervisor excessively
interfered with the issuance of the permanent disqualification memorandum. PFR
File, Tab 1 at 10-12. Specifically, he asserts, “the evidence shows that, if the
decision had been left up to [the first-line supervisor], . . . he might not have
recommended Appellant’s disqualification from the PRP.” Id. at 12. The
first-line supervisor’s first draft of the permanent disqualification memorandum
did not set forth the reasons for the disqualification and failed to meet the
minimum requirements for due process. Under the circumstances, it was entirely
appropriate for the second-line supervisor to step in to ensure that the first-line
supervisor issued a disqualification notice that met minimum standards of due
process. Compare IAF, Tab 10 at 27, with id. at 28-29. Otherwise, the first-line
supervisor simply seems to have been uncomfortable with his decision, but not
uncomfortable enough to attempt to make a different decision or to communicate
his discomfort to the deciding official who made the ultimate decision on the
disqualification. Even on review, the appellant does not argue that the first-line
7
supervisor likely would not have recommended the appellant’s disqualification
but for pressure from the second-line supervisor; he only argues that he “might
not have” done so. Cf. Doe, 123 M.S.P.R. 90, ¶ 7 (holding that harmful error
cannot be presumed; an agency error is harmful only where the record shows that
the procedural error was likely to have caused the agency to reach a conclusion
different from the one it would have reached in the absence or cure of the error);
Stephen, 47 M.S.P.R. at 681, 685 (same). Given the highly equivocal nature of
the first-line supervisor’s testimony and the administrative judge’s finding that
the second-line supervisor was generally more credible than the first-line
supervisor, we agree with the administrative judge that the appellant did not show
that there was any improper command influence or any error that likely affected
the outcome of his case.
The appellant failed to show that his removal was based on retaliation for his
prior equal employment opportunity (EEO) activity.
Following the issuance of the initial decision, the Board clarified that a Federal
employee proves retaliation in violation of Title VII by establishing that
retaliation was a motivating factor in the challenged action. Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶¶ 20-22, 30. The administrative judge
found that the appellant failed to introduce any evidence showing that his prior
EEO activity was a motivating factor in the decision to remove him. ID at 16-19.
The appellant summarily claims on review that the agency was hostile to EEO
claims, PFR File, Tab 1 at 20, but he has not identified any factual or legal error
in the initial decision. We agree with the administrative judge’s finding that the
appellant failed to prove his affirmative defense of EEO retaliation.2
We have considered the remainder of the arguments that the appellant
raises in his petition for review and find that none of them warrant an outcome
2 Because we affirm the administrative judge’s finding that the appellant failed to show
that any prohibited consideration was a motivating factor in the agency’s action, we
need not resolve the issue of whether the appellant proved that retaliation was a
“but-for” cause of the agency’s decision. See Pridgen, 2022 MSPB 31, ¶¶ 20-22, 33.
8
different from that of the initial decision. 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); Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98, 105-06 (1997) (same).
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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.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.
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. | Rodriguez_BaldomeroDE-0752-18-0023-I-1__Final_Order.pdf | 2024-04-25 | BALDOMERO RODRIGUEZ v. DEPARTMENT OF THE ARMY, MSPB Docket No. DE-0752-18-0023-I-1, April 25, 2024 | DE-0752-18-0023-I-1 | NP |
1,661 | https://www.mspb.gov/decisions/nonprecedential/Cobbs_Henry_L_AT-0752-18-0686-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HENRY LEE COBBS, JR.,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
AT-0752-18-0686-I-1
DATE: April 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Henry Lee Cobbs, Jr. , Miramar Beach, Florida, pro se.
Holly Buchanan and William V. Cochrane , Eglin Air Force Base, Florida,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
An attorney has filed a petition for review of the initial decision that
dismissed the appellant’s appeal for lack of jurisdiction. For the reasons set forth
below, we DISMISS the petition for review as deficient under the Board’s
regulations.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 administrative judge issued a September 25, 2018 initial decision in
which he dismissed the appellant’s appeal of his alleged involuntary retirement
for lack of jurisdiction. Initial Appeal File, Tab 8, Initial Decision at 1, 7. On
October 15, 2018, the appellant filed a document that the Clerk of the Board
acknowledged as a petition for review. Petition for Review (PFR) File, Tabs 1-2.
Thereafter, an attorney purporting to be the appellant’s representative filed a
petition for review on the appellant’s behalf.2 PFR File, Tab 3. The Clerk issued
a notice informing the parties that it had been mistaken in interpreting the
appellant’s initial pleading as a petition for review. PFR File, Tab 4 at 1. The
Clerk further informed the parties that the appellant was required to designate his
representative in writing, sent him a form to enable him to do so, and warned him
that the failure to return a signed designation of representative form could result
in the dismissal of his petition for review. Id. at 1, 7. The appellant did not
respond to the Clerk’s notice. The agency responded in opposition to the petition
for review. PFR File, Tab 5.
The Board’s regulations require that all submissions relating to a petition
for review must contain the signature of the party or of the party’s designated
representative. Schaberg v. U.S. Postal Service , 104 M.S.P.R. 621, ¶ 6 (2007);
5 C.F.R. § 1201.114(c). An appellant must designate his representative, if any, in
writing. Schaberg, 104 M.S.P.R. 621, ¶ 6; 5 C.F.R. § 1201.31(a).
The appellant’s initial pleading on review was clearly a discovery response;
it did not refer to the initial decision or challenge the initial decision in any
fashion. PFR File, Tab 1. We find that the Clerk properly determined that it was
not a petition for review. The pleading submitted by the attorney is a petition for
review. However, it is not signed by the appellant or by a properly designated
representative. The Clerk informed the appellant that his petition for review
2 In his initial appeal, the appellant designated an elected official as his representative.
This individual did not file any pleadings on the appellant’s behalf during the
proceedings before the administrative judge or before the Board during the petition for
review proceedings.2
could be dismissed if he did not properly designate his representative in writing,
PFR File, Tab 4 at 1, but the appellant failed to respond to the Clerk’s notice or
otherwise cure his deficient petition for review. Therefore, it is deficient under
the Board’s regulations and must be dismissed. Schaberg, 104 M.S.P.R. 621, ¶ 6.
Accordingly, we DISMISS the petition for review. This is the final
decision of the Merit Systems Protection Board regarding the dismissal of the
petition for review. The initial decision remains the final decision of the Board
regarding the dismissal of the appeal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,4
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If
so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)
(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Cobbs_Henry_L_AT-0752-18-0686-I-1__Final_Order.pdf | 2024-04-25 | null | AT-0752-18-0686-I-1 | NP |
1,662 | https://www.mspb.gov/decisions/nonprecedential/Farrington_DavidDC-1221-18-0532-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID FARRINGTON,
Appellant,
v.
DEPARTMENT OF STATE,
Agency.DOCKET NUMBER
DC-1221-18-0532-W-1
DATE: April 25, 2024
THIS ORDER IS NONPRECEDENTIAL1
David Farrington , Houston, Texas, pro se.
Henry Azar , Marianne Perciaccante , and Michael Dennis , Washington,
D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal 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).
2
BACKGROUND
The appellant is a Special Agent in the agency’s Bureau of Diplomatic
Security (DS). Initial Appeal File (IAF), Tab 1 at 1, 28, Tab 12 at 4. He filed a
complaint with the Office of Special Counsel (OSC) alleging that a certain
agency official, the Director of DS’s Overseas Criminal Investigations (OCI)
Division, prevented his selection for two bid assignments in the Foreign Service
in retaliation for his protected whistleblowing activities. IAF, Tab 1 at 28-29.
Specifically, he claimed that he was not selected for either his desired bid
assignment of Assistant Regional Security Officer-Investigator (ARSO-I) in
Cairo, Egypt, or his desired bid assignment of ARSO-I in Matamoros, Mexico,
due to his filing of an IRA appeal at the Board in 2015 and multiple grievances
raising whistleblower retaliation between 2012 and 2015. Id. OSC issued the
appellant a close-out letter informing him that it was closing the file on his
complaint and advising him of his right to file a Board appeal. Id. at 27.
This appeal followed.
The administrative judge issued an order explaining the appellant’s burden
to establish jurisdiction over an IRA appeal and directing him to submit evidence
and argument supporting his claim. IAF, Tab 3. Both parties replied.
IAF, Tabs 10, 12. Without holding the requested hearing, the administrative
judge issued an initial decision dismissing the appeal for lack of jurisdiction.
IAF, Tab 1 at 2, Tab 18, Initial Decision (ID) at 1. She found that the appellant
failed to show that he exhausted his administrative remedies before OSC because
he did not submit a copy of his OSC complaint or any other statement
summarizing his complaint. ID at 4. She further found that the appellant failed
to provide sufficient details to nonfrivolously allege that he engaged in protected
whistleblowing activity that was a contributing factor in his nonselections.
ID at 4-5.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 3. The agency has filed a response in opposition. PFR File, Tab 5.
3
DISCUSSION OF ARGUMENTS ON REVIEW
To establish jurisdiction in an IRA appeal, an appellant generally must
show by preponderant evidence that he exhausted his administrative remedies
before OSC, and make nonfrivolous allegations that (1) he made a disclosure
described under 5 U.S.C. § 2302(b)(8) or engaged in a protected activity
described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the
disclosure or protected activity was a contributing factor in the agency’s decision
to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a).2
Corthell v. Department of Homeland Security , 123 M.S.P.R. 417, ¶ 8 (2016),
overruled on other grounds by Requena v. Department of Homeland Security ,
2022 MSPB 39. Once an 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. Rebstock Consolidation v. Department of Homeland
Security, 122 M.S.P.R. 661, ¶ 9 (2015). For the reasons discussed below, we find
that the appellant established Board jurisdiction over his IRA appeal.
The appellant exhausted his administrative remedies before 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. Mason v.
Department of Homeland Security , 116 M.S.P.R. 135, ¶ 8 (2011). The Board may
only consider those disclosures of information and personnel actions that the
appellant raised before OSC. Id. 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.
2 The alleged personnel actions at issue here took place in 2015. IAF, Tab 1 at 28.
On December 12, 2017, the National Defense Authorization Act for Fiscal Year 2018
(NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law. Section 1097 of the
NDAA amended various provisions of title 5 of the United States Code. Our decision to
remand this appeal would be the same under both pre- and post-NDAA law.
4
Here, on March 13, 2018, OSC informed the appellant of its preliminary
determination not to take action on his complaint and provided him with an
opportunity to respond. IAF, Tab 1 at 27. On March 22, 2018, the appellant
responded, providing an 11-page letter plus attachments that detailed the specific
allegations of his whistleblowing complaint against the agency concerning the
nonselections for the two ARSO-I positions at issue. Id. at 11-26. In its
subsequent close-out letter, OSC stated that it considered his March 22, 2018
letter in deciding to close his case. Id. at 27. The appellant included a copy of
the March 22, 2018 letter to OSC with his initial appeal and it raised all of the
same claims of whistleblower retaliation concerning the nonselections for the
two ARSO-I positions that the appellant raised before the Board in response to
the administrative judge’s jurisdictional notice. Compare IAF, Tab 1 at 11-26,
with Tab 10 at 141-57. Accordingly, we find that the appellant demonstrated that
he exhausted his administrative remedies before OSC concerning the
nonselections for the two ARSO-I positions. See Rice v. Department of
Agriculture, 97 M.S.P.R. 501, ¶ 5 (2004) (finding that the appellant exhausted his
administrative remedies regarding personnel actions taken after his initial OSC
complaint because he submitted evidence concerning the personnel actions to
OSC before it terminated its investigation).
The appellant nonfrivolously alleged that he engaged in protected activity under
5 U.S.C. § 2302(b)((9)(A)(i).
Pursuant to the Whistleblower Protection Enhancement Act (WPEA), with
exceptions not applicable here, an employee may seek corrective action in an IRA
appeal for any personnel action taken after its December 27, 2012 enactment as a
result of a prohibited personnel practice described in 5 U.S.C. § 2302(b)(9)(A)(i),
(B), (C), or (D). See 5 U.S.C. § 1221(a); Miller v. Federal Deposit Insurance
Corporation, 122 M.S.P.R. 3, ¶¶ 14-15 (2014), aff’d, 626 F. App’x 261 (Fed. Cir.
2015). Under 5 U.S.C. § 2302(b)(9)(A)(i), an employee engages in protected
activity when he exercises any appeal, complaint, or grievance with regard to
5
remedying a violation of 5 U.S.C. § 2302(b)(8).3 See Miller, 122 M.S.P.R. 3,
¶ 14. Here, the appellant alleges that he engaged in protected activity when he
filed an IRA appeal with the Board in 2015 and several grievances between
2012 and 2015 that raised allegations of whistleblower retaliation. IAF, Tab 1
at 15, Tab 10 at 5-7, 9, 24, 79-83; see Farrington v. Department of State ,
MSPB Docket No. DA-1221-15-0371-W-1, Initial Decision (Aug. 19, 2015)
(dismissing his IRA appeal as settled). Because the alleged personnel actions
here took place after the WPEA’s enactment, we find that the appellant
nonfrivolously alleged that he engaged in protected activity under 5 U.S.C.
§ 2302(b)(9)(A)(i). See Miller, 122 M.S.P.R. 3, ¶ 15.
The appellant nonfrivolously alleged that the agency subjected him to a personnel
action.
Here, the appellant alleged that the agency subjected him to a personnel
action when it did not select him for either of his two desired bid assignments.
IAF, Tab 1 at 28-29. The agency claimed, however, that it did not subject him to
a personnel action under section 2302(a)(2)(A) because the appellant withdrew
his name from consideration prior to the selections in both assignments when he
accepted a handshake for another position.4 IAF, Tab 12 at 9. Specifically, the
agency claimed that the appellant accepted a handshake for an Assistant Regional
Security Officer (ARSO) position in Paris, France, on October 7, 2015, and that,
as a result, his bids on the ARSO-I positions in Cairo and Matamoros were
closed. Id. at 6, 13-14. It further stated that the selection for the Cairo position
was made on December 11, 2015, and that the selection for the Matamoros
position was made on January 29, 2016. Id. at 6.
3 Under 5 U.S.C. § 2302(b)(8), it is a prohibited personnel practice to take certain
personnel actions against an employee because of certain protected disclosures.
4 A handshake is an offer made by a bureau of the agency to a candidate for a position
within that bureau. When a candidate accepts the offer, the candidate’s Career
Development Officer records the acceptance and any other bids by the candidate for
other positions are closed out. IAF, Tab 10 at 98, n.1.
6
The appellant alleged, however, that he accepted the handshake for the
ARSO position in Paris because he had already been informed that he was not in
consideration for the Cairo ARSO-I position. IAF, Tab 10 at 12, 89-90, 149.
Indeed, the appellant submitted an email from the OCI manager, who he alleged
had significant input into the selection decisions, to his Career Development
Officer, dated September 11, 2015, stating that he “really can’t support him at
this point” for the Cairo ARSO-I position because what he had heard about the
appellant “has not been positive.” Id. at 89. The OCI manager further stated that
he would be “happy to reconsider” the appellant for the assignment if the
appellant contacted him and provided references. Id. The appellant alleged that
he believed that the OCI manager’s “mind was made up” and that he did not have
a chance at being selected for either position. Id. at 149. Thus, we find that the
appellant has nonfrivolously alleged that the agency had already determined that
he would not be selected for the ARSO-I positions prior to his acceptance of the
handshake for the Paris ARSO position. See Hessami v. Merit Systems Protection
Board, 979 F.3d 1362, 1369 (Fed. Cir. 2020) (stating that “[t]he 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.”). We
therefore find that the appellant nonfrivolously alleged that he was subjected to a
personnel action under 5 U.S.C. § 2302(a)(2)(A). See Johnson v. Department of
Health and Human Services , 87 M.S.P.R. 204, ¶ 9 (2000) (finding that a
nonselection is a covered personnel action under section 2302(a)(2)(A)).
The appellant nonfrivolously alleged that his protected activity was a contributing
factor in the agency’s decision to take a personnel action against him.
To satisfy the contributing factor criterion, an appellant need only raise a
nonfrivolous allegation that the fact or content of the protected disclosure or the
protected activity was one factor that tended to affect the personnel action in any
way. See Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶¶ 13 -14
7
(2016). One way to establish this criterion is the knowledge -timing test, under
which an employee may nonfrivolously allege that the disclosure or activity was a
contributing factor in a personnel action through circumstantial evidence, such as
evidence that the official taking the personnel action knew of the disclosure or
activity, and that the personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosure or activity was a
contributing factor in the personnel action. See id.
The appellant alleged that the OCI Director, who he named as a responsible
management official in his grievances and IRA appeal, encouraged the panel and
the OCI manager not to select him for the Cairo and Matamoro ARSO-I positions
in reprisal for engaging in protected activity. IAF, Tab 10 at 12, 32-33. At the
outset, the appellant produced a document in which the OCI Director admitted to
speaking with the individuals responsible for selecting the ARSO-I positions in
Cairo and Matamoros specifically regarding their selections. Id. at 112-13.
In addition, the appellant submitted an email from his Career Development
Officer instructing him to contact the OCI Director directly if he wanted to
consult someone other than the OCI manager about trying to secure the Cairo
ARSO-I position. Id. at 95. He also submitted an email concerning his bid for
the Cairo ARSO-I position from a Human Resources official to the OCI manager,
which the OCI manager then forwarded to the OCI Director. Id. at 88. Based on
the foregoing, we find that the appellant nonfrivolously alleged that the OCI
Director had influence over the selection decision for the ARSO-I Cairo position.
See Bradley v. Department of Homeland Security , 123 M.S.P.R. 547, ¶¶ 15-17
(2016) (finding, despite the appellant’s lack of specificity, that he nonfrivolously
alleged that his protected disclosures were a contributing factor in the
nonselection at issue given, among other things, the nature of nonselections in
which much of the information concerning the selection process is exclusively
within the agency’s possession).
8
The appellant further alleged that the OCI Director was aware of his
protected activity, and produced an agency email showing that he was consulted
during the discovery phase of one of the grievances against him. IAF, Tab 10
at 10-12, 106. He additionally alleged that he used his grievances to obtain
evidence through the discovery process about the OCI Director’s alleged corrupt
behavior and that he submitted that evidence in his 2015 Board appeal. Id. at 13.
The appellant settled his grievances and Board appeal on August 18, 2015.
Id. at 83. He learned that he was no longer in consideration for the Cairo ARSO-I
position on September 11, 2015. Id. at 89. Under these circumstances, we find
that the appellant has nonfrivolously alleged that the nonselections occurred
within a period of time such that a reasonable person could conclude that his
protected activity was a contributing factor in the nonselections under the
knowledge-timing test. See Schnell v. Department of the Army , 114 M.S.P.R. 83,
¶ 22 (2010) (finding that a personnel action taken within approximately
1 to 2 years of the appellant’s disclosures satisfies the knowledge -timing test);
see also Agoranos v. Department of Justice , 119 M.S.P.R. 498, ¶¶ 21-23 (2013).
Although the agency argued that the appellant failed to prove that the OCI
Director or anyone involved in the selection decisions on his bids for the ARSO-I
positions were negatively influenced by his whistleblowing activities, the
appellant need only make a nonfrivolous allegation that his protected activity was
a contributing factor in the nonselections at this stage. IAF, Tab 12 at 4-10;
see Mason, 116 M.S.P.R. 135, ¶ 26. We find that he has met this burden as to the
Cairo ARSO-I position. Accordingly, the appellant is entitled to a hearing on the
merits of his IRA appeal. See Salerno, 123 M.S.P.R. 230, ¶ 14.
9
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this remand order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Farrington_DavidDC-1221-18-0532-W-1__Remand_Order.pdf | 2024-04-25 | DAVID FARRINGTON v. DEPARTMENT OF STATE, MSPB Docket No. DC-1221-18-0532-W-1, April 25, 2024 | DC-1221-18-0532-W-1 | NP |
1,663 | https://www.mspb.gov/decisions/nonprecedential/Griffin_Velda_M_PH-0752-17-0041-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VELDA M. GRIFFIN,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
PH-0752-17-0041-I-1
DATE: April 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeff T. Schrameck , Esquire, and Joel J. Kirkpatrick , Canton, Michigan, for
the appellant.
Ileana Gomez and Katerina Koutrobis , Boston, Massachusetts, for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained her removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the appellant has not proven her claims of harmful error and laches, or
that the agency knowingly and unjustifiably treated alleged comparator
employees differently, we AFFIRM the initial decision.
BACKGROUND
The appellant was employed as a GS-15 Supervisory Auditor, Field
Director and managed field offices in Philadelphia, Pennsylvania, and Newark,
New Jersey. Initial Appeal File (IAF), Tab 1 at 14, Tab 15 at 5. On May 16,
2016, the agency proposed her removal on the basis of the following charges:
(1) submission of improper claims for mileage reimbursements supported by
32 specifications from September 7, 2011, to September 27, 2012;
(2) unauthorized use of Government property for private gain because she
admitted that she used her Government-purchased parking pass (the pass) on
several occasions to avoid a heightened parking rate for her personal vehicle
(POV) when she exited after 6:00 p.m., and, on September 4 and 14, 2015, when
she used the pass to get her POV out of a garage in order to avoid the daily
parking fee; and (3) lack of candor when, during a November 10, 2015
investigatory interview, she stated that she did not use the pass to enter the garage
in her POV. IAF, Tab 7 at 43-50. The appellant responded both orally and in2
writing. Id. at 21, 23-41. By letter dated September 26, 2016, the deciding
official sustained the charges and imposed the appellant’s removal. Id. at 17-20.
The appellant filed the instant appeal challenging her removal. IAF, Tab 1.
After conducting the appellant’s requested hearing, the administrative judge
sustained the removal. IAF, Tab 34, Initial Decision (ID). Specifically, he
sustained the charges, found nexus, and determined that the penalty did not
exceed the bounds of reasonableness. ID at 6-19.
The appellant has filed a petition for review, and the agency has responded
in opposition to her petition. Petition for Review (PFR) File, Tabs 1, 3.2
DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved its charges.
Charge 1: Submission of Improper Claims for Mileage
Reimbursements
In charge 1, the agency asserted that the appellant engaged in
32 specifications of misconduct by submitting improper claims for mileage
reimbursements from September 7, 2011, to September 27, 2012. IAF, Tab 7
at 43-47. Specifically, it asserted that, even though vehicle logs indicated that
her Government vehicle (GOV) was at her house and available for her use, she
used her POV and claimed the mileage rate applicable to POVs, which was higher
than that for GOVs. Id. It also asserted in some specifications that she indicated
on her travel vouchers that using her POV was advantageous to the Government,
she could not find the keys for the GOV, driving to get the keys would take too
much time, the GOV was unavailable, or she was trying to use available travel
funds at the end of the year. Id. at 44-47.
2 The administrative judge found that the agency proved nexus. ID at 14-15. The
appellant has not challenged this finding on review, and we find no reason to do so.
PFR File, Tab 1; see Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997) (finding
no reason to disturb the administrative judge’s findings when she considered the
evidence as a whole, drew appropriate inferences, and made reasoned conclusions on
issues of credibility).3
The administrative judge sustained charge 1, finding that the appellant did
not cast any doubt on the evidence that, for each of the dates in question, the
GOV was available in her driveway, but she instead decided to use her POV and
claim the highest mileage reimbursement rate. ID at 8-11; IAF, Tab 7 at 88-93,
Tab 8 at 45-42, Tab 9 at 4-23, Tab 12 at 95-105. He did not credit her testimony
that, although the GOV was in her driveway, the items she would have needed to
use it, such as car keys, were in Philadelphia. ID at 9. Instead, he found that this
explanation was implausible. Id. He also found that her statement that she kept
the keys in Philadelphia because she feared theft from her home was
unbelievable. Id. Additionally, he did not credit the appellant’s assertion that
she was attempting to use up travel funds at the end of the year because this
testimony was contrary to her other testimony that she kept a GOV at her home to
save travel funds. ID at 10. Further, he found that her testimony that she used
her POV because she had already otherwise achieved her savings goals for the
office was not worthy of belief as it was counterintuitive. Id. He also determined
that the appellant’s claims that her supervisor previously had approved her
vouchers and that she had survived an audit were unpersuasive because her
supervisor only generally reviewed her vouchers and the audit did not review the
propriety of the underlying mileage rates claims. ID at 10-11.
The appellant asserts that she did not have a nefarious intent regarding the
misconduct outlined in charge 1. PFR File, Tab 1 at 18. The administrative
judge stated that the deciding official was too generous when he stated that the
appellant’s actions regarding charge 1 were not intentionally deceptive and that
she felt entitled to take certain liberties to compensate for her efforts and long
hours. ID at 11. However, deception was not a part of this charge. Thus, his
statement was not necessary to his finding sustaining the charge and her challenge
regarding intent does not provide a reason for disturbing the initial decision. See
Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (stating that4
an adjudicatory error that is not prejudicial to a party’s substantive rights
provides no basis for reversal of an initial decision).
The appellant also asserts that her memory was not clear regarding this
charge because the agency questioned her in 2015 about matters that occurred in
2011 and 2012. PFR File, Tab 1 at 18. However, even accepting this argument
as true, her lack of memory does not mean that she did not commit the alleged
misconduct during the dates in question. The appellant’s remaining challenges to
the administrative judge’s decision to sustain charge 1, including that many days
she was unaware of whether the GOV vehicle had been checked out, she believed
that she was complying with instructions to use remaining travel funds for the
year, the administrative judge did not give proper weight to the fact that her
supervisor had approved her travel vouchers and they survived prior audits, there
had never been a problem with her vouchers prior to 2011, and an investigation in
2013 found nothing, constitute mere disagreement with the initial decision, and
thus, they do not provide a basis for disturbing it. PFR File, Tab 1 at 16-20; see
Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359
(1987) (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). Accordingly, we agree with the administrative judge’s
decision to sustain charge 1. See, e.g., Quarters v. Department of Veterans
Affairs, 97 M.S.P.R. 511, ¶ 4 (2004) (finding that, although he asserted that he
pulled the wrong credit card from his wallet, because he admitted that he
purchased tires on his Government credit card, the charge of misuse of a
Government credit card was sustained); Quillen v. Department of the Treasury ,
96 M.S.P.R. 154, ¶¶ 6-7 (2004) (sustaining the specification of misuse of
Government office equipment when the appellant used his agency computer to
support his commercial business), aff’d, 134 F. App’x 449 (Fed. Cir. 2005).5
Charge 2: Unauthorized Use of Government Property for Private
Gain
In the second charge, the agency asserted that the appellant engaged in
unauthorized use of Government property with respect to the
Government-purchased parking pass. IAF, Tab 7 at 47. In specification 1, it
asserted that she admitted in a November 10, 2015 investigatory meeting that she
used the pass to get her personal vehicle out of a parking lot on several occasions
in order to avoid a heightened parking fee on those dates when she stayed in the
office after 6:00 p.m. IAF, Tab 7 at 47, Tab 12 at 108-09. Further, it asserted
that it never authorized her to use the pass in such a manner, and thus, she was
using the pass in an unauthorized manner for private gain. IAF, Tab 7 at 47. In
specifications 2 and 3, the agency asserted that, on September 4 and 14, 2015, the
appellant used the pass to get her personal vehicle out of the Philadelphia Parking
Authority Auto Park at Olde City, and that, because she was not authorized to use
the pass, she used Government property in an unauthorized way for private gain.
Id. The administrative judge sustained this charge, noting that the appellant
ultimately stipulated to all three of its specifications and did not provide a
justification for using the pass. ID at 11 -13; IAF, Tab 12 at 108-09, Tab 25 at 7.
To the extent that the appellant attempts to challenge this charge again on
review on the basis of any alleged misunderstanding and lack of deceptive intent
during the agency’s interview or on the basis of her belief that she was entitled to
use the pass, we find that these arguments do not provide a reason for disturbing
the initial decision. PFR File, Tab 1 at 5-7; IAF, Tab 25 at 7. Specifically, the
Board has held that, generally, an agency is not required to prove intent to sustain
a charge of unauthorized use of Government property. See, e.g., Quarters,
97 M.S.P.R. 511, ¶ 4. Thus, the administrative judge properly sustained this
charge because the agency did not authorize the appellant to use the pass in such
a manner and she benefited monetarily by using it.6
Charge 3: Lack of Candor
To prove a charge of lack of candor, an agency must demonstrate the
following: (1) the employee gave incorrect or incomplete information; and
(2) she did so knowingly. Fargnoli v. Department of Commerce , 123 M.S.P.R.
330, ¶ 17 (2016). In charge 3, the agency asserted that the appellant lacked
candor when, in a November 10, 2015 interview, she specifically denied using the
pass to park her POV at the Philadelphia Parking Authority Auto Park at Olde
City. IAF, Tab 7 at 47, Tab 12 at 108-10. The agency observed that records
indicated that she used the pass to enter the garage on September 4 and 14, 2015.
IAF, Tab 7 at 47, Tab 9 at 49-50, 106, Tab 10 at 53-54.
The administrative judge sustained this charge because he found that,
although the appellant stated that she did not recall using the pass to get her POV
out of the space, she did not dispute videotape evidence of her entering and
leaving the parking garage in her POV. ID at 13-14. He considered her claims
that she made the denials at the end of a day -long interview, that the investigator
did not ask her specifically about the two dates mentioned in the charge, and that
she emphasized that she readily admitted to using the pass to get her car out of a
garage on other occasions. ID at 13; IAF, Tab 12 at 109-11. However, he did not
credit her claim that she suffered a lapse in memory. ID at 13. He stated that it
was undisputed that she denied the conduct approximately 2 months after its
occurrence and she readily recalled using the pass after working late during the
same time period.3 Id.; IAF, Tab 12 at 109. He also considered that the appellant
3 The administrative judge stated, “Given the short time between the actions and the
denial, I do credit any claim of a lapse in memory.” ID at 13 (emphasis added).
However, this appears to be an error as the sentence is contained in a paragraph
regarding those of the appellant’s allegations that he did not credit or that he found
unpersuasive. ID at 13-14. Thus, we have considered that the administrative judge did
not credit the appellant’s assertion regarding her lapse in memory and find that the
administrative judge’s typographical error is not prejudicial as it would not affect our
decision to sustain the charge. See Bivens v. Department of the Navy , 55 M.S.P.R. 662,
664, n.3 (1992) (finding that the administrative judge’s apparent typographical error in
stating two different amounts of attorney fees and reimbursable costs that he found
reasonable was inadvertent and did not affect the parties’ substantive rights).7
reviewed her statement and made multiple changes after the interview had
concluded. ID at 13-14. Further, he found that the appellant readily admitted
using the pass to exit the garage when she worked late because she felt justified
in using it in that situation. Id. Thus, he found her argument concerning the
implausibility of admitting to using the pass in one situation and not admitting
her use in the other situation to be unpersuasive. Id.
The appellant asserts that the administrative judge erred in sustaining a
false statement charge because she did not have the intent to defraud, deceive, or
mislead the agency for her own personal gain. PFR File, Tab 1 at 5-6, 21-22.
Lack of candor and falsification are distinct charges. See Ludlum v. Department
of Justice, 278 F.3d 1280, 1284 (Fed. Cir. 2002); O’Lague v. Department of
Veterans Affairs , 123 M.S.P.R. 340, ¶ 13 (2016), aff’d per curiam , 698 F. App’x
1034 (Fed. Cir. 2017). Whereas falsification “involves an affirmative
misrepresentation, and requires intent to deceive,” lack of candor, by contrast, “is
a broader and more flexible concept whose contours and elements depend upon
the particular context and conduct involved.” Ludlum, 278 F.3d at 1284; see
O’Lague, 123 M.S.P.R. 340, ¶ 13. The agency did not charge the appellant with
falsification, and thus, her argument that she did not have the intent to defraud,
deceive, or mislead the agency for her own personal gain does not provide a basis
to disturb the administrative judge’s findings.
Next, the appellant argues that her lack of recollection as to whether she
used the pass to place her POV in the garage does not establish the necessary
intent to prove the charge. PFR File, Tab 1 at 7. Although an agency need not
prove an intent to deceive in connection with a lack of candor charge, it
nonetheless must show that the misrepresentation or omission was made
knowingly. O’Lague, 123 M.S.P.R. 340, ¶ 13. The administrative judge
considered the appellant’s argument that she did not recall using the pass and did
not credit it. ID at 13. The Board must defer to an administrative judge’s
determinations when they are “necessarily intertwined” with an analysis of a8
witness’s demeanor. See Purifoy v. Department of Veterans Affairs , 838 F.3d
1367, 1373 (Fed. Cir. 2016). Here, the administrative judge stated that he had the
opportunity to observe each witness and carefully considered their demeanor. ID
at 6 (citing Hamilton v. Department of Veterans Affairs , 115 M.S.P.R. 673, ¶ 27
(2011)). Accordingly, we defer to his determination to not credit the appellant’s
claim of lack of recollection, which is implicitly based upon an analysis of her
demeanor during her testimony. Thus, this argument does not support a finding
that the agency failed to establish the necessary intent to prove the charge.
The appellant also asserts that she rightly or wrongly believed that she was
entitled to use the pass as this was “minimal use.” PFR File, Tab 1 at 6.
However, she could have stated that she used the pass and asserted this argument
during her interview, but she did not do so. IAF, Tab 12 at 108. Thus, her
argument does not change the fact that she gave inaccurate or incomplete
information as to her usage of the pass and did so knowingly. See Fargnoli,
123 M.S.P.R. 330, ¶ 17.
The appellant’s remaining arguments, including that the investigators
engaged in a “gotcha” investigatory technique, it defies common sense that she
admitted using the pass to exit the parking garage but did not admit using the pass
to enter, she was interviewed for 8 hours and she provided the answer about using
the pass at the end of the interview, and she and the interviewer were not on the
same page, constitute mere disagreement with the initial decision and do not
provide a basis for disturbing it. PFR File, Tab 1 at 6-7; 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,
drew appropriate inferences, and made reasoned conclusions on issues of
credibility). Thus, we find that the agency has proven the lack of candor charge
on the basis that the appellant knowingly provided inaccurate or incomplete
information regarding her usage of the pass. See Little v. Department of
Transportation, 112 M.S.P.R. 224, ¶ 20 (2009) (finding that the appellant lacked9
candor when, during an official inquiry, he claimed that he did not sign in to work
and then leave, when the underlying misconduct of signing in and leaving was
sustained).
We modify the initial decision to find that the appellant has not established
harmful error or laches.
The appellant challenges the agency’s reliance upon a 2013 investigation
and its interviewing her about stale information from that investigation despite
the fact that the investigation did not originally lead to any charges against her.
PFR File, Tab 1 at 20. In 2013, the agency’s Office of Internal Affairs
investigated the appellant on the basis of allegations such as misuse of a GOV
and time card fraud. IAF, Tab 28 at 5-14. The agency took no action after that
investigation. Another investigation that the agency conducted in 2015 formed
the basis of the charges at issue. ID at 7; IAF, Tab 7 at 53-63. The
administrative judge found that this chronology did not constitute “agency
misconduct.” ID at 7. Specifically, he found that the fact that only a small
portion of the total allegations led to charges against the appellant could be
attributed to caution on the part of the agency and that the charges that the agency
ultimately brought were readily proven. Id. We modify the initial decision to
consider the appellant’s arguments in the context of claims of harmful error and
laches and find that she has not proven these defenses.
Under the harmful error standard, reversal is only warranted if the
appellant proves, by preponderant evidence, that there was a procedural error that
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. See Holton v.
Department of the Navy , 123 M.S.P.R. 688, ¶ 11 (2016), aff’d, 884 F.3d 1142
(Fed. Cir. 2018); 5 C.F.R. §§ 1201.4(r), 1201.56(b)(2)(i)(C). A delay in
investigating allegations or initiating disciplinary action may constitute
procedural error if a law, regulation, or agency policy requires that allegations be
investigated and/or disciplinary action be taken within a certain time period. See,10
e.g., Salter v. Department of the Treasury , 92 M.S.P.R. 355, ¶¶ 8-9 (2002)
(finding that the agency committed procedural error when there was a 13-month
delay between the issuance of the proposal to remove and the decision to demote
as this contravened 5 U.S.C. § 4303(b)(2), (c)(1)). However, the appellant has
not pointed to any such law, regulation, or agency policy. Thus, we find that she
has not proven harmful error.
The Board also has considered “stale charge” claims as raising the
equitable defense of laches, which bars an action when an unreasonable delay in
bringing it prejudiced the subject of the action. See, e.g., Kirkland v. Department
of Homeland Security , 119 M.S.P.R. 74, ¶ 23 (2013). To establish the defense of
laches, an appellant must prove both that the delay in bringing the action was
unreasonable and that she was materially prejudiced by the delay. Id. The
appellant asserts that the agency could have charged her after the first
investigation when she had a clearer memory of the underlying misconduct from
charge 1 that occurred from 2011 to 2012. PFR File, Tab 1 at 20. However, we
agree with the administrative judge that the agency based the charge upon
undisputed documentary evidence, including reimbursement requests and the
vehicle logs. ID at 8; IAF, Tab 7 at 87-93, 125-30, Tab 8 at 4-52, Tab 9 at 4-29.
The appellant has not asserted that this evidence was unavailable. She has
otherwise not demonstrated that she was materially prejudiced, and there is no
evidence that she was unable to defend against the charges on the basis of any
delay. Thus, she has failed to demonstrate laches. See Kirkland, 119 M.S.P.R.
74, ¶ 23 (finding that the appellant did not prove laches when she failed to show
that the agency’s 14-month delay prejudiced her ability to defend against the
specification in any manner, much less materially prejudiced her); Hidalgo v.
Department of Justice , 93 M.S.P.R. 645, ¶ 19 (2003) (finding that the appellant
failed to demonstrate that the agency’s charge should be barred by laches when he
did not even allege that the agency’s delay affected his ability to defend himself).11
The removal penalty did not exceed the bounds of reasonableness.
The appellant challenges the penalty determination on the basis that it is
not consistent with the Douglas factors or the penalty imposed upon other
employees, not in accordance with law, and otherwise unsupported. PFR File,
Tab 1 at 8. When the Board sustains an agency’s charge, it will defer to the
agency’s penalty determination unless the penalty exceeds the range of allowable
punishment specified by statute or regulation, or unless the penalty is so harsh
and unconscionably disproportionate to the offense that it amounts to an abuse of
discretion. See Saiz v. Department of the Navy , 122 M.S.P.R. 521, ¶ 5 (2015).
The administrative judge found that the agency’s penalty was reasonable. ID
at 15-19. He considered that agencies could hold supervisors to a higher standard
and that the charges of unauthorized use of Government property for personal
gain and lack of candor are serious. ID at 15-16. Further, he cited the deciding
official’s testimony that the penalty was consistent with the agency’s table of
penalties. ID at 16.
According to the administrative judge, in making her penalty
determination, the deciding official was aware of some potential comparators, but
not of others. ID at 16. These previously unknown comparators differed from
the appellant in terms of their chains of command and duties, among other
respects. ID at 16; IAF, Tab 25 at 27-64. The administrative judge found, based
on the deciding official’s testimony, that she would have reached the same result
despite these additional alleged comparators because, unlike them, the appellant
effectively ran her own office. ID at 16-17.
The administrative judge did not credit the appellant’s arguments that her
actions were unintentional or that the amounts involved were de minimis. ID
at 17-18. Further, he focused on the deciding official’s testimony that she lost
trust in the appellant and that, considering the nature of her position, it would be
difficult to monitor her rehabilitation. ID at 18-19.12
In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 306 (1981), the
Board articulated a nonexhaustive list of 12 factors to be considered when
evaluating the penalty to be imposed for an act of misconduct. Among those
factors, the agency should consider the “consistency of the penalty with those
imposed upon other employees for the same or similar offenses.” Id. The
appellant argues that the deciding official did not review any comparator
evidence, did not request to see any such evidence, and may not have even known
that there was such evidence available. PFR File, Tab 1 at 23-24. Thus, she
asserts that the deciding official can only speculate as to her decision had she
reviewed any alleged comparators. Id. at 24.
After the initial decision was issued in this case, the Board issued Singh v.
U.S. Postal Service , 2022 MSPB 15. In that decision, the Board clarified the
analysis to undertake when an appellant makes a disparate penalty claim. In
assessing the agency’s penalty determination, the relevant inquiry is whether the
agency knowingly and unjustifiably treated employees differently. Id., ¶ 14; see
Facer v. Department of the Air Force , 836 F.2d 535, 539 (Fed. Cir. 1988)
(providing that a person does not have a legally protected interest in the evenness
of a misconduct penalty assessed on him compared to that assessed on others
unless employees are knowingly treated differently “in a way not justified by the
facts, and intentionally for reasons other than the efficiency of the service”).
Further, while the universe of potential comparators will vary from case to case,
employees from another work unit or supervisory chain generally will not be
proper comparators. Singh, 2022 MSPB 15, ¶ 13. To the extent that the appellant
presented valid comparators during the proceedings below that were not
previously considered by the deciding official, the administrative judge credited
the deciding official’s testimony that she would still have imposed a harsher
penalty on the appellant because of her greater level of independence. ID
at 16-17. In light of Singh, we vacate this finding as unnecessary. Instead, we
find that because the deciding official was not aware of the appellant’s alleged13
potential comparators at the time she made her decision, she did not knowingly
and unjustifiably treat the appellant differently.4 See Singh, 2022 MSPB 15, ¶ 14.
We have considered the appellant’s other arguments, including that the
agency did not adequately consider alternative sanctions, the agency had never
accused her of misconduct prior to that at issue here, she never had any negative
issues related to her duties and responsibilities as an agency employee or
supervisor, she had over 28 years of service, she received awards in the agency
and community, and the agency did not consider her potential for rehabilitation.
PFR File, Tab 1 at 8-12, 28. However, we agree with the deciding official that
the appellant’s misconduct was serious, particularly considering that she was a
Field Director who managed two Field Offices, she received reimbursements to
which she was not entitled, and her actions created an appearance of a conflict of
interest. IAF, Tab 7 at 17-18; see Ellis v. Department of Defense , 114 M.S.P.R.
407, ¶¶ 2, 11 (2010) (finding that the appellant’s actions, which included
misusing Government stationery in an attempt to vacate a rental property early,
constituted serious misconduct); Jackson v. Department of the Army , 99 M.S.P.R.
604, ¶¶ 2, 6 (2005) (observing that lack of candor is a serious offense and that
removal was a reasonable penalty for, as relevant here, the appellant’s false
denial of her knowledge that officers under her supervisor had failed their firearm
tests).
Further, the Board has consistently stated that an agency is entitled to hold
a supervisor to a higher standard of conduct compared to a nonsupervisory
4 To the extent that the appellant asserts that the agency violated her right to due
process by failing to review all relevant comparators, we find no such violation. PFR
File, Tab 1 at 23-24, 27-28. 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. See
Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368, 1375-76 (Fed. Cir.
1999). The appellant does not assert that the deciding official denied her the
information that she reviewed in making her penalty determination, and thus, this does
not constitute a due process violation.14
employee because supervisors occupy a position of trust and responsibility. See,
e.g., Hill v. Department of the Army , 120 M.S.P.R. 340, ¶ 15 (2013).
Accordingly, we find that the agency did not abuse its discretion in imposing the
removal penalty on the basis of the sustained charges of submission of improper
claims for mileage reimbursements, unauthorized use of Government property for
private gain, and lack of candor.5
In sum, we find that the agency has proven its charges, the appellant has
failed to demonstrate harmful error or laches, and the penalty does not exceed the
bounds of reasonableness. Thus, we affirm the initial decision and sustain the
removal.
NOTICE OF APPEAL RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
5 The appellant asserts that the administrative judge ignored significant evidence that
supported a finding that the agency did not prove its charges and that, even if it did
prove any of the charges, the penalty should be mitigated. PFR File, Tab 1 at 28. An
administrative judge’s failure to mention all of the evidence does not mean that he
improperly failed to consider it. Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365,
¶ 15 (2016). As a result, this argument does not provide a reason for disturbing the
initial decision.
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.15
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 16
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 17
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 18
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.19 | Griffin_Velda_M_PH-0752-17-0041-I-1__Final_Order.pdf | 2024-04-25 | VELDA M. GRIFFIN v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. PH-0752-17-0041-I-1, April 25, 2024 | PH-0752-17-0041-I-1 | NP |
1,664 | https://www.mspb.gov/decisions/nonprecedential/Donovan_AlysaPH-1221-18-0285-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALYSA DONOVAN,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
PH-1221-18-0285-W-1
DATE: April 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alysa Donovan , Halifax, Pennsylvania, pro se.
Christine Roark , Esquire, and Jeffrey Csokmay , Esquire, Columbus, Ohio,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the appellant exhausted with the Office of Special Counsel (OSC) her
claim that she made one protected disclosure and engaged in one protected
activity, and to find that she made a nonfrivolous allegation that she was
subjected to a hostile work environment sufficient to constitute a personnel
action, we AFFIRM the initial decision.
BACKGROUND
The appellant is employed as a GS-9 Human Resources Specialist with the
Defense Logistics Agency. Initial Appeal File (IAF), Tab 1 at 1. On October 30,
2017, the appellant filed a complaint with OSC alleging that agency officials took
several actions against her in retaliation for her participation in an agency Office
of Inspector General (OIG) investigation, and as a result of her disclosure to a
member of Congress. IAF, Tab 5 at 44-45. On February 9, 2018, the appellant
amended her OSC complaint to add a new claim of retaliation as a consequence of
receiving a letter of reprimand on or about January 29, 2018; OSC accepted her
amended claim on February 12, 2018. Id. at 57-61. Having grown frustrated with
the amount of time OSC was taking to review her complaint, on March 8, 2018,
the appellant asked OSC for a letter setting forth its “current findings and/or the
status of [her] complaints for the MSPB.” Id. at 57. Subsequently, on March 22,
3
2018, OSC issued a close-out letter providing the appellant with Board appeal
rights. Id. at 56. On April 19, 2018, the appellant filed the instant IRA appeal
alleging that agency officials retaliated against her for participating in an agency
OIG investigation into fraud, waste, abuse, and mismanagement. IAF, Tab 1 at 5.
The appellant subsequently filed a request for a “continuance” of the
proceedings for a period of 30 to 60 days in order to obtain representation, and
submitted a number of documents, including copies of two OSC complaints, an
OSC close-out letter, and copies of emails she exchanged with an OSC attorney.
IAF, Tab 5 at 4-72. In the provided OSC complaints, the appellant alleged that,
on August 8, 2016, she participated in an interview with an agency OIG
investigator in response to a complaint filed by a coworker purportedly related to
“mismanagement, [fraud, waste, and abuse], and a hostile work environment.” Id.
at 44-45. The appellant also alleged that she provided disclosures to a member of
Congress on May 22, 2017, and to the agency’s Human Resources (HR) Director
on March 21, 2017. Id. at 45-48, 54. In reprisal for these purported disclosures
and activities, the appellant claimed that she was subjected to adverse actions,
retaliation, and was “[r]epeatedly counseled, bullied, harassed, [and]
intimidated.” Id. at 45-46.
The administrative judge issued a jurisdictional order dated May 24, 2018,
in which he acknowledged that the appellant appeared to be claiming retaliation
because of whistleblowing or other protected activity, informed her of her burden
of establishing that she had exhausted her administrative remedies with OSC, and
instructed her to submit evidence and argument demonstrating exhaustion and
Board jurisdiction over her appeal. IAF, Tab 8. The administrative judge
instructed the appellant to file a statement, accompanied by evidence, specifically
identifying the following information: (1) her protected disclosures or activities;
(2) the dates she made any disclosures or engaged in any protected activities;
(3) to whom she made disclosures; (4) an explanation for why her belief in the
truth of her disclosures was reasonable; (5) the actions the agency took or failed
4
to take, or threatened to take or fail to take, because of her disclosures or
activities; (6) why she believed any disclosure or activity was a contributing
factor in an agency action taken against her; and (7) the date of her complaint to
OSC and the date she was notified it was terminating its investigation, or
evidence that at least 120 days had passed since she filed her complaint with
OSC. Id. at 7-8. The order also noted that the agency could file a response
within 20 days of the date of the order, and that the record on the issue of
jurisdiction would close as of the date the agency’s response was due. Id. at 8.
Nineteen days later, the appellant filed a second motion requesting a
30-day extension but did not address the administrative judge’s order or
otherwise address the jurisdictional issue. IAF, Tab 10. The administrative judge
issued an order denying the appellant’s second request for an extension. IAF,
Tab 11. Twelve days later, he issued an initial decision without holding the
appellant’s requested hearing, dismissing the appeal for lack of jurisdiction. IAF,
Tab 12, Initial Decision (ID) at 1, 9.
In the initial decision, the administrative judge determined that, based on
the provided evidence, the appellant failed to demonstrate that she exhausted her
administrative remedies with OSC regarding the letter of reprimand she received
on January 31, 2018, because she elected to challenge the reprimand through the
agency’s internal grievance procedure, or alternatively, because she withdrew her
complaint before OSC could fully investigate this claim. ID at 6, 8. Regarding
the appellant’s allegation that she was subjected to a hostile work environment in
response to her purported disclosures or activities, the administrative judge
concluded that the creation of a hostile work environment was not a covered
personnel action under the whistleblower protection statutes. ID at 5. Regarding
the remainder of the appellant’s allegations, the administrative judge concluded
that the appellant had proved that she exhausted her administrative remedies with
OSC. ID at 6.
5
After addressing the exhaustion question, the administrative judge
determined that the appellant failed to meet her burden of making a nonfrivolous
allegation that she made a protected disclosure. ID at 6-7. The administrative
judge acknowledged that the appellant submitted a statement to the OIG
investigator in connection with her coworker’s complaint, and that the appellant
alleged that the complaint concerned “mismanagement, (fraud, waste, and abuse),
and a hostile work environment.” ID at 7. He further noted that, in her OSC
complaint, the appellant identified the four main categories of topics addressed in
her statement to the OIG investigator as “her personnel actions, Learning
Management Systems, team meeting notes, and supplies,” but nevertheless
concluded that, because the appellant did not articulate her claims with
“reasonable clarity and precision,” she failed to meet her burden of making a
nonfrivolous allegation that she made a protected disclosure in connection with
her participation in the OIG investigation. Id.
Alternatively, the administrative judge concluded that, even if the appellant
met her burden of showing that she made a protected disclosure in connection
with her participation in the OIG investigation, she nevertheless failed to
demonstrate that her participation was a contributing factor in the agency’s
decision to take a personnel action. ID at 7-8. Elaborating, the administrative
judge determined that, aside from the previously addressed January 31, 2018
letter of reprimand, the only purported personnel action that took place after the
appellant provided information to the OIG investigator on August 8, 2016, was
the letter of reprimand she received dated June 23, 2017, for being absent without
leave. ID at 8; IAF, Tab 6 at 58-60. The administrative judge concluded that,
because the appellant had not provided any evidence that the deciding official
who issued the June 23, 2017 letter of reprimand had any knowledge of the
appellant’s participation in the OIG investigation, the appellant failed to
demonstrate that her participation was a contributing factor in the agency’s
decision to issue the letter of reprimand. ID at 8. Having determined that the
6
appellant either failed to exhaust her administrative remedies with OSC, or failed
to make a nonfrivolous allegation that she made a protected disclosure that was a
contributing factor in the agency’s decisions to take or fail to take any personnel
action, the administrative judge concluded that the appellant failed to establish
that the Board had jurisdiction over her IRA appeal, and consequently dismissed
the appeal. ID at 9.
The appellant has timely filed a petition for review of the initial decision,
as well as a supplement to the petition for review, which we have thoroughly
considered. Petition for Review (PFR) File, Tabs 1-2. On review, the appellant
argues that the administrative judge erred by denying her requests for an
extension of time in order to obtain counsel. PFR File, Tab 1 at 5-6. She also
argues that the administrative judge erred by determining that she failed to
establish Board jurisdiction over her IRA appeal. Id. at 6-20. Specifically, the
appellant argues that the administrative judge erroneously concluded that she
failed to exhaust her administrative remedies with respect to the January 31, 2018
letter of reprimand. Id. at 17-19. Additionally, the appellant makes several new
vague allegations that she made disclosures or engaged in protected activities
dating back to her initial hire with the agency in 2006, and argues that she
suffered retaliation as a result of these disclosures or activities. Id. at 6-17. The
agency has filed a response in opposition to the petition for review, and the
appellant has filed a reply. PFR File, Tabs 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
In her petition for review, the appellant once again references the “over
5,000 documents” she asserts she provided to OSC, which she argues prove that
she met her burden of demonstrating exhaustion, and includes nearly 300 pages of
emails and documents that were not part of the record below. IAF, Tab 5 at 58;
PFR File, Tab 1 at 25-184, Tab 2. Generally, the Board will not consider
evidence submitted for the first time with a petition for review absent a showing
7
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). Even
though none of these documents qualifies as new evidence, 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).
In OSC’s correspondence with the appellant, it acknowledged that she had
submitted “over 5,000 pages of documents” with her complaint. IAF, Tab 5
at 58. Here, because the appellant appears to assert that she provided these
documents to OSC as a part of her complaint, and because the documents
ultimately bear on the dispositive jurisdictional question in this IRA appeal (i.e.,
whether she has demonstrated that she exhausted her administrative remedies
with OSC), we have considered them. See Scoggins v. Department of the Army ,
123 M.S.P.R. 592, ¶ 9 (2016) (detailing the ways in which an appellant can
demonstrate OSC exhaustion); see also 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).
An appellant may establish jurisdiction over her IRA appeal if she proves
by preponderant evidence2 that she exhausted her administrative remedy before
OSC and makes nonfrivolous allegations3 of the following: (1) she made a
protected whistleblowing disclosure under 5 U.S.C. § 2302(b)(8) or engaged in
protected activity under 5 U.S.C. §2302(b)(9)(A)(i), (B), (C), or (D); and (2) the
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 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. Lewis v. Department of Defense , 123 M.S.P.R. 255, ¶ 7 (2016); 5 C.F.R.
§ 1201.4(s). An allegation generally will be considered nonfrivolous when, under oath
or penalty of perjury, an individual makes an allegation that is more than conclusory,
plausible on its face, and material to the legal issues in the appeal. Lewis, 123 M.S.P.R.
255, ¶ 7; 5 C.F.R. § 1201.4(s).
8
disclosure or activity was a contributing factor in the agency’s decision to take or
fail to take, or threaten to take or fail to take, a personnel action.4 5 U.S.C.
§§ 1214(a)(3), 1221(e)(1); Salerno v. Department of the Interior , 123 M.S.P.R.
230, ¶ 5 (2016); see Yunus v. Department of Veterans Affairs , 242 F.3d 1367,
1371 (Fed. Cir. 2001); 5 C.F.R. § 1201.57(a)(1), (b), (c)(1). The Board generally
treats OSC exhaustion as a threshold determination before considering whether
the appellant’s claims constitute nonfrivolous allegations of protected disclosures
or protected activities. See Carney v. Department of Veterans Affairs ,
121 M.S.P.R. 446, ¶¶ 4-5 (2014) (stating that the first element to Board
jurisdiction over an IRA appeal is exhaustion by the appellant of her
administrative remedies before OSC and that the next requirement is that the
appellant nonfrivolously allege that she made a made a protected disclosure or
engaged in protected activity). An appellant filing an IRA appeal has not
satisfied the exhaustion requirement unless she has filed a complaint with OSC
and either OSC has notified her that it was terminating its investigation of her
allegations or 120 calendar days have passed since she first sought corrective
action. Simnitt v. Department of Veterans Affairs , 113 M.S.P.R. 313, ¶ 8 (2010).5
Consequently, our analysis will look first to whether the appellant exhausted her
administrative remedy with OSC and, if that threshold requirement is met, then to
whether she made nonfrivolous allegations that she made a protected disclosure
or engaged in a protected activity that was a contributing factor to an agency
4 During the pendency of this appeal, the National Defense Authorization Act for Fiscal
Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on
December 12, 2017. Section 1097 of the NDAA amended various provisions of title 5
of the U.S. Code. Our decision here would be the same under both pre- and post-NDAA
law.
5 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.
9
personnel action. See Salerno, 123 M.S.P.R. 230, ¶ 5. Prior to addressing IRA
jurisdiction, however, we will address the appellant’s claim that the
administrative judge abused his discretion by not granting a “continuance” in
order for her to obtain legal counsel.
The appellant has failed to show that the administrative judge abused his
discretion in denying her request for an extension of time to file her jurisdictional
response.
Regarding the appellant’s argument that the administrative judge erred by
denying her request for an extension of time to file her jurisdictional response in
order to obtain counsel, we find no error. PFR File, Tab 1 at 5-6. Administrative
judges have substantial discretion to rule on motions, 5 C.F.R. § 1201.41(b)(8),
and a request for an extension of time may only be granted for good cause,
5 C.F.R. § 1201.55(c); see Fox v. Department of the Army , 120 M.S.P.R. 529,
¶ 42 (2014) (explaining that the Board will not reverse an administrative judge’s
rulings on discovery matters absent an abuse of discretion).
The record reflects that, in a filing dated May 18, 2018, the appellant first
stated that she was attempting to obtain representation and requested a
“continuance” of 30 to 60 days in order to do so. IAF, Tab 5 at 4. On May 24,
2018, the administrative judge issued a jurisdictional order instructing the
appellant to file a statement addressing the jurisdictional question within 10 days.
IAF, Tab 8 at 1, 7-8. Nineteen days later, or 9 days after the deadline set in the
administrative judge’s order, the appellant once again requested a 30 -day
extension of time in order to obtain representation, which the administrative
judge denied by written order the following day. IAF, Tabs 10-11.
As the administrative judge observed in the initial decision, by the time the
appellant filed her second request for an extension, more than 54 days had
elapsed since she filed her initial appeal, and the appellant had not identified any
progress in her efforts to obtain representation. ID at 3. On review, the appellant
has not provided any additional detail about any efforts she made to obtain
10
representation during the adjudication of her appeal. Additionally, although the
administrative judge failed to respond to the appellant’s first request for an
extension of time, the request was incorrectly identified as a “Designation of
Representative Change Request,” and, further, more than 30 of the “30 to 60
days” the appellant had originally requested had elapsed by the time the
administrative judge finally issued the initial decision, and the appellant had
provided no evidence of progress toward obtaining representation. IAF, Tabs 5,
12.
Consequently, we are not persuaded by the appellant’s argument that she
did not have adequate time in which to obtain representation or to adequately
respond to the jurisdictional order. Further, to the extent the appellant suggests
that she needed legal representation and that her pro se status hampered her
ability to adequately respond to the jurisdictional order, it is well-established that
an appellant’s inability to retain an attorney does not establish good cause. See
Huskins v. U.S. Postal Service , 100 M.S.P.R. 664, ¶ 6 (2006) (noting that an
appellant’s inability to retain or afford an attorney does not establish good cause
for a delay in filing); Dean v. U.S. Postal Service , 100 M.S.P.R. 556, ¶ 5 (2005)
(same). Accordingly, the appellant has not shown that the administrative judge
abused his discretion in denying her requests for an extension of time to respond
to the jurisdictional order or to obtain representation.
The appellant exhausted with OSC two claims that she made protected disclosures
or engaged in protected activities.
In an IRA appeal, the Board may consider only matters that the appellant
first raised before OSC. Mason v. Department of Homeland Security ,
116 M.S.P.R. 136, ¶ 8 (2011). The purpose of the requirement that an appellant
exhaust her remedies with OSC prior to filing an IRA appeal with the Board is to
give OSC “the opportunity to take corrective action before involving the Board in
the case.” Ward v. Merit Systems Protection Board , 981 F.2d 521, 526 (Fed. Cir.
1992). The whistleblower protection statutory scheme provides that, if OSC finds
11
that there is a substantial likelihood that the information it received discloses a
violation, it “shall transmit the information to the head of the agency involved for
investigation and report . . . .” Id.; see 5 U.S.C. § 1213(b), (c). These inquiries
by OSC, and their transmittal to agencies for remedial action, are a major
component of OSC’s work. Ward, 981 F.2d at 526. Thus, the substantive
requirements of exhaustion are met when an appellant has provided OSC with a
sufficient basis to pursue an investigation that might lead to corrective action.
Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 10.
An appellant may demonstrate exhaustion though her initial OSC complaint
or correspondence with OSC. Id., ¶ 11. In the alternative, exhaustion may be
proved through other sufficiently reliable evidence, such as an affidavit or
declaration attesting that the appellant raised with OSC the substance of the facts
in the Board appeal. Id.; Mason, 116 M.S.P.R. 135, ¶ 8 (2011). To establish
Board jurisdiction, the appellant must prove exhaustion with OSC by
preponderant evidence, not just present nonfrivolous allegations of exhaustion.
Chambers, 2022 MSPB 8, ¶ 11; 5 C.F.R. § 1201.57(c)(1). In the initial decision,
the administrative judge concluded that the appellant exhausted her
administrative remedies regarding her disclosures to the agency’s HR Director, a
member of Congress, and an agency OIG investigator. ID at 2, 5-6.
The appellant exhausted with OSC her participation in an agency
OIG investigation.
In her OSC complaint, the appellant alleged that she was interviewed by an
OIG investigator in connection with an ongoing investigation on August 8, 2016,
and that, in retaliation, the agency took an adverse action, and bullied, harassed,
and intimidated her. IAF, Tab 5 at 44-46. Additionally, the appellant specifically
identified as a protected disclosure or activity her participation in an OIG
investigation initiated by her coworker on August 8, 2016. Id. at 44-45.
Although the appellant indicated that she included a copy of her August 2016
OIG interview with her petition for review, and included a citation to her
12
supplemental filing, a copy of her interview was not included in the record. PFR
File, Tab 1 at 14, 23 (citing to “(APR), Tab 21,” which is not included in the
record), Tab 2. Nevertheless, participating in an OIG investigation is considered
protected activity under 5 U.S.C. § 2302(b)(9)(C) regardless of whether the
complaint was filed in connection with remedying a violation of section 2302(b)
(8). Fisher v. Department of the Interior , 2023 MSPB 11, ¶ 8 (explaining that
disclosing information to an agency’s OIG or to OSC is protected under the
broadly-worded provision of 5 U.S.C. § 2302(b)(9)(C) regardless of its content).
The appellant does, however, include copies of summaries of interviews that she
participated in on November 15, 2012, and February 26, 2013, in a different OIG
investigation. PFR File, Tab 1 at 144-50. Because the appellant’s claim before
OSC and the Board specifically related only to her August 8, 2016 OIG interview,
we have not considered the November 15, 2012 and February 26, 2013 OIG
interviews and we find that the appellant exhausted her claim only as it relates to
the August 8, 2016 OIG interview. IAF, Tab 1 at 5; Tab 5 at 44-45.
Consequently, we conclude that the appellant has sufficiently demonstrated that
she exhausted her claim that she engaged in protected activity by providing an
interview in support of an OIG investigation. See 5 U.S.C. § 2302(b)(9)(C)
(describing as a protected activity “cooperating with or disclosing information to
the Inspector General . . . of an agency . . . in accordance with applicable
provisions of law ”).
The appellant exhausted with OSC her disclosure to a member of
Congress.
The appellant also has restated her claim that she made a protected
disclosure to a member of Congress on May 22, 2017. PFR File, Tab 1 at 16;
IAF, Tab 5 at 45. In her supplement to the petition for review, the appellant
includes a copy of the letter she sent to a member of Congress detailing her
purported disclosures. PFR File, Tab 2 at 93-94. In that letter, the appellant
alleges a wide variety of misconduct by agency officials, including the use of
13
managerial discretion in place of official policy, unfair hiring practices, bullying
and harassment, misuse of Government travel cards and Government vehicles,
falsifying training data, and a number of other improper actions. Id. at 93.
The Board has held that harassment by a supervisor may constitute an
abuse of authority. See Ayers v. Department of the Army , 123 M.S.P.R. 11, ¶ 14
(2015). The use of unfair hiring practices can also constitute an abuse of
authority. See, e.g., Schaeffer v. Department of the Navy , 86 M.S.P.R. 606,
¶¶ 9-10 (2000) (holding that the appellants’ disclosures that agency officials in
charge of a reengineering study conducted it so as to reward friends and punish
perceived enemies constituted a nonfrivolous allegation of a disclosure of a
violation of law and abuse of authority), overruled on other grounds by
Covarrubias v. Social Security Administration , 113 M.S.P.R. 583, ¶ 9 n.2 (2010),
overruled on other grounds by Colbert v. Department of Veterans Affairs ,
121 M.S.P.R. 677, ¶ 12 n.5 (2014). Falsifying official training data or records
could constitute a violation of law under 18 U.S.C. § 1001(a)(3),6 misuse of a
Government vehicle could constitute a violation of law under 31 U.S.C.
§ 1349(b),7 and misuse of a Government travel credit card could constitute a
violation of laws, rules, and regulations regarding Government credit cards and
travel monies.8 Based on the appellant’s letter to a member of Congress, which
the appellant states that she included in her documentation to OSC, we conclude
that she has demonstrated that she exhausted her claim with OSC that she made
protected whistleblowing disclosures to a member of Congress. See 5 U.S.C.
§ 2302(b)(8)(A); Ward, 981 F.2d at 526.
6 See Luecht v. Department of the Navy , 87 M.S.P.R. 297, ¶ 13 (2000).
7 See Perkins v. Department of Veterans Affairs , 98 M.S.P.R. 250, ¶ 17 (2005) (finding
the disclosure of misuse of a Government-owned vehicle to be a protected disclosure).
8 See Shibuya v. Department of Agriculture , 119 M.S.P.R. 537, ¶ 21 (2013).
14
The appellant has not shown that she exhausted with OSC her
disclosure to the agency HR Director .
As previously noted, with her jurisdictional response, the appellant
provided copies of two documents she filed with OSC, a Form 12 disclosure she
submitted to OSC’s Disclosure Unit on May 1, 2017, and a Form 11 complaint of
reprisal for whistleblowing she submitted to OSC’s Complaints Examining Unit
on October 30, 2017. IAF, Tab 5 at 40, 50. In the initial decision, the
administrative judge considered the appellant’s allegations in both documents in
reaching his conclusion that the appellant failed to meet her burden of proving
Board jurisdiction. ID at 6-7. As discussed below, that was error.
To satisfy the exhaustion requirement in an IRA appeal, an appellant must
show that she exhausted her administrative remedy by filing a complaint with
OSC’s Complaints Examining Unit. See Scoggins, 123 M.S.P.R. 592, ¶ 9. Unlike
OSC’s Complaints Examining Unit, its Disclosure Unit does not review
allegations of prohibited personnel practices—such as claims of reprisal for
making protected disclosures or engaging in protected activity—and making a
disclosure to the disclosure unit does not satisfy the exhaustion requirement. See
Sabbagh v. Department of the Army , 110 M.S.P.R. 13, ¶¶ 10-15 (2008); Clemente
v. Department of Homeland Security , 101 M.S.P.R. 519, ¶¶ 7-13 (2006)
(dismissing an IRA appeal for lack of jurisdiction when the appellant failed to
show that he filed a complaint with OSC’s Examining Unit regarding potential
prohibited personnel actions and instead had filed a complaint solely with OSC’s
Disclosure Unit).
Most of the information the appellant provided in the two documents
submitted to OSC is substantially similar. Compare IAF, Tab 5 at 40-49, with id.
at 50-55. However, one of the purported disclosures—the disclosure to the
agency HR Director—only appears on the appellant’s Form 12 disclosure. Id.
at 54; ID at 5. Although some of the hundreds of pages of documents the
appellant has provided with her petition for review include various
15
correspondence and references to the agency HR Director, the appellant does not
specifically reference this purported disclosure in the narrative portion of her
petition for review. PFR File, Tab 1 at 4-20, 25-184, Tab 2 at 5-94.
Additionally, none of the correspondence with OSC that the appellant provided
below either gives any indication that she amended her Form 11 complaint to
include this purported disclosure or makes any reference to the purported
disclosure. See IAF, Tab 5 at 57-65. Accordingly, we conclude that the appellant
has not shown that she exhausted her administrative remedies with OSC regarding
her purported disclosure to the agency’s HR Director, and we vacate the
administrative judge’s finding in this regard.9 ID at 5-6.
In sum, we conclude that the appellant has demonstrated exhaustion with
respect to her disclosure to a member of Congress on May 22, 2017, and with
9 For the first time on review, the appellant appears to allege that she was retaliated
against for engaging in equal employment opportunity (EEO) activity at some time in
2012. PFR File, Tab 1 at 7-8. The Board has held that engaging in EEO activity is
considered protected activity under 5 U.S.C. § 2302(b)(9)(A)(i) only when the activity
seeks to remedy whistleblower reprisal under 5 U.S.C. § 2302(b)(8). 5 U.S.C.
§§ 1221(a), 2302(b)(9)(A); Edwards v. Department of Labor , 2022 MSPB 9, ¶¶ 24-25,
aff’d, 2023 WL 4398002 (Fed. Cir. July 7, 2023). The appellant’s OSC complaint did
not include any reference to her purported EEO disclosure, nor do any of the other
materials that the appellant provided in response to the administrative judge’s order on
jurisdiction. IAF, Tab 5 at 40-56. Accordingly, we conclude that the appellant has not
provided any evidence that she exhausted any claim of reprisal for EEO activity with
OSC. The appellant also appears to suggest for the first time on review that her
supervisor and other agency officials retaliated against her after she informed them of
her intent to file an OSC complaint. PFR File, Tab 1 at 16. The appellant’s assertion
that she told the agency that she was planning on reporting whistleblower reprisal to
OSC appears to be a claim that she engaged in, or the agency perceived that she
engaged in, the protected activity of disclosing information to OSC. 5 U.S.C. § 2302(b)
(9)(C); see Corthell v. Department of Homeland Security , 123 M.S.P.R. 417, ¶ 12
(2016) (recognizing that an appellant may pursue an IRA appeal on the theory that an
agency retaliated against her for its perception that she engaged in activity protected
under 5 U.S.C. § 2302(b)(9)(C)), overruled on other grounds by Requena v. Department
of Homeland Security , 2022 MSPB 39. However, as with her claim of EEO retaliation,
the appellant did not include any reference to this claim in her OSC complaint, or in any
of the materials she provided to OSC below or on review, and so she has failed to
demonstrate that she exhausted this claim with OSC.
16
respect to her claim that she engaged in protected activity when she participated
in an interview with an agency OIG investigator on August 8, 2016.
The appellant failed to show that she exhausted her administrative remedies with
OSC regarding three letters of reprimand.
The exhaustion requirement in 5 U.S.C. 1214(a)(3) applicable to whether
an appellant made a protected disclosure or engaged in protected activity is
applicable also to the purportedly retaliatory personnel actions raised by the
appellant so as to preclude the Board from considering a personnel action that
was not brought to the attention of OSC. Mason, 116 M.S.P.R. 135, ¶ 8. In her
OSC complaint, the appellant alleged that she suffered a number of “disciplinary
and adverse actions” as a consequence of her disclosures and activities, and stated
that she would provide documentation of the personnel actions to OSC. IAF,
Tab 5 at 45, 49. In the initial decision, the administrative judge considered the
following actions taken against the appellant: (1) a letter of reprimand dated
January 31, 2018 for unprofessional conduct and for failure to follow
instructions; (2) a letter of reprimand dated March 2, 2017 for issuing a certificate
under a coworker’s initials; and (3) a letter of reprimand dated June 23, 2017 for
absence without leave. ID at 2, 8. We turn now to consideration of each
purported personnel action.
The appellant has not shown that she exhausted with OSC the
January 31, 2018 letter of reprimand.
The Board has held that a letter of reprimand is a personnel action. E.g.,
Horton v. Department of Veterans Affairs , 106 M.S.P.R. 234, ¶ 18 (2007) (stating
that a letter of reprimand is a personnel action). As previously noted, in the
correspondence with OSC that the appellant provided below, she referenced the
January 31, 2018 letter of reprimand, and asked OSC to include it in her
complaint. IAF, Tab 5 at 57-60. As the administrative judge correctly observed,
the appellant amended her OSC complaint to add this letter of reprimand on
February 9, 2018, and subsequently requested to withdraw her OSC complaint on
17
March 8, 2018. Id.; ID at 3. OSC acquiesced to the appellant’s request and
issued a letter on March 22, 2018, stating that it had not completed its
investigation into her claim, but noting that she had requested to pursue her claim
with the Board. IAF, Tab 5 at 56.
The appellant subsequently filed the instant Board appeal on April 19,
2018. IAF, Tab 1. At that time, fewer than 120 days had elapsed since the date
the appellant amended her OSC complaint to include this letter of reprimand and,
therefore, she had not exhausted her administrative remedies with OSC. See
5 U.S.C. § 1214(a)(3)(B) (providing that an individual may file an IRA appeal
with the Board if 120 days have passed since she first sought corrective action
from OSC, and OSC has not notified her that it will seek corrective action on her
behalf). As previously noted, the purpose of the exhaustion requirement is to
allow OSC to fulfill its important function of taking corrective action before
involving the Board in a case. Ward, 981 F.2d at 526. Consequently, we
conclude that the appellant failed to demonstrate that she exhausted her
administrative remedies with respect to the January 31, 2018 letter of
reprimand.10
The appellant has not shown that she exhausted with OSC the
March 2, 2017 and June 23, 2017 letters of reprimand .
Regarding the two other letters of reprimand, dated March 2, 2017, and
June 23, 2017, although the administrative judge did not make detailed findings
concerning whether the appellant exhausted her remedies with OSC, it appears
that he concluded that the appellant exhausted her remedies with OSC, but
ultimately determined that she failed to prove that any of her protected
disclosures or activities were a contributing factor in the agency’s decision to
10 Because we agree with the administrative judge’s conclusion that the appellant failed
to prove OSC exhaustion with respect to the January 31, 2018 letter of reprimand, we
make no findings regarding his alternate conclusion that the appellant made a binding
election to challenge the letter of reprimand through the agency’s internal grievance
procedure. ID at 8.
18
take either personnel action. ID at 6, 8-9. However, in evaluating these
personnel actions, the administrative judge cited copies of the letters of
reprimand provided by the agency in its motion to dismiss. ID at 2, 8 (citing IAF,
Tab 6 at 56-57, 58). Reviewing the appellant’s OSC complaint, although she
generally referenced “adverse actions” in her complaint, she never specifically
identified the allegedly retaliatory personnel actions that she was challenging, or
identified March 2, 2017, or June 23, 2017, as the dates that she suffered
personnel actions. IAF, Tab 5 at 40-49. Additionally, the only letter of
reprimand the appellant provided with her jurisdictional response is the one dated
January 31, 2018. Id. at 28-38, 66-68. The appellant does not reference either of
the other letters of reprimand in the narrative section of her petition for review,
nor does she provide copies of either letter within the voluminous material she
included with her petition for review. PFR File, Tab 1 at 4-184, Tab 2. As
previously noted, the burden of proving OSC exhaustion rests with the appellant,
and the Board may consider only those protected disclosures and activities and
those personnel actions that the appellant first raised with OSC. See Mason,
116 M.S.P.R. 135, ¶ 8. Based on our review of the record, we conclude that the
appellant has failed to meet her burden with respect to the March 2, 2017 and
June 23, 2017 letters of reprimand, and we vacate the administrative judge’s
finding that the appellant exhausted her administrative remedies with OSC with
respect to these purported personnel actions.11
11 Regarding the number of vague allegations of wrongdoing the appellant raised for the
first time in her petition for review dating to the period from her initial hire in 2006,
through October 2017, she failed to exhaust these claims with OSC; therefore, we have
not considered them. PFR File, Tab 1 at 6-17. If the appellant would like to have these
allegations of wrongdoing considered, she may file a new complaint with OSC
addressing these allegations consistent with law and regulation.
19
The appellant made a nonfrivolous allegation that the agency subjected her to a
hostile work environment sufficient to constitute a personnel action under
5 U.S.C. § 2302(a)(2)(A)(xii).
The administrative judge also considered and rejected the appellant’s claim
that she was subjected to a hostile work environment in retaliation for her
protected disclosures or activities, concluding that the creation of a hostile work
environment was not a covered personnel action. ID at 5. However, after the
administrative judge issued his decision, the Board determined that the creation
of a hostile work environment may constitute a personnel action under 5 U.S.C.
§ 2302(a)(2)(A)(xii) to the extent that it represents a significant change in duties,
responsibilities, or working conditions. Skarada v. Department of Veterans
Affairs, 2022 MSPB 17, ¶ 16. To meet this standard, an agency’s actions must,
“individually or collectively, have practical and significant effects on the overall
nature and quality of an employee’s working conditions, duties, or
responsibilities.” Id. In determining whether a hostile work environment is
present, the Board will consider the totality of the circumstances, including
agency actions that may not individually rise to the level of a personnel action.
Id., ¶ 18.
In this case, the appellant alleged that agency officials created a hostile
work environment through the cumulative effect of a number of agency actions,
including the appellant’s supervisors setting up meetings for her with little to no
notice; subjecting her to repeated counseling, bullying, harassment, and
intimidation; failing to promote her; willfully engaging in a lack of transparency;
and misusing supervisory positions to encourage employee conflicts. IAF, Tab 5
20
at 45-46; ID at 2-3.12 We conclude that the appellant exhausted her claim that the
agency created a hostile work environment based on the above allegations.
Accordingly, we vacate the administrative judge’s finding with respect to the
appellant’s hostile work environment claim and find that the appellant has made a
nonfrivolous allegation that these circumstances comprised a hostile work
environment and therefore constitute a personnel action under 5 U.S.C. § 2302(a)
(2)(A)(xii). See Skarada, 2022 MSPB 17, ¶ 18.
The appellant has not made a nonfrivolous allegation that her disclosures or
activities were a contributing factor in the agency’s decision to take any of the
actions described in her hostile work environment claim.
The next jurisdictional inquiry is whether the appellant has nonfrivolously
alleged that a protected disclosure or activity was a contributing factor in the
agency’s decision to take, fail to take, or threaten to take or fail to take a
personnel action. Salerno, 123 M.S.P.R. 230, ¶ 5; see 5 U.S.C. §§ 1221(e)(1),
2302(b)(8), (b)(9)(A)(i), (B), (C), or (D). To satisfy the contributing factor
criterion, an appellant need only raise a nonfrivolous allegation that the fact or
content of the protected disclosure or the protected activity was one factor that
tended to affect the personnel action in any way. Salerno, 123 M.S.P.R. 230,
¶ 13. One way to establish this criterion is the knowledge-timing test, under
which an appellant may nonfrivolously allege that the disclosure or activity was a
contributing factor in a personnel action through circumstantial evidence, such as
evidence that the official 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
12 After the appellant filed her OSC complaint, it appears that, on February 9, 2018, the
appellant sought to amend her complaint to include several new claims related to her
hostile work environment claim as a consequence of receiving the January 31, 2018
letter of reprimand, telework restrictions, and changes in her job responsibilities and
performance elements. IAF, Tab 5 at 61-62. However, as was the case with the January
31, 2018 letter of reprimand, we conclude that the appellant has failed to demonstrate
that she exhausted her administrative remedies with OSC with respect to these new
claims.
21
contributing factor in the personnel action. 5 U.S.C. § 1221(e)(1); see Salerno,
123 M.S.P.R. 230, ¶ 13.
Because the administrative judge concluded that the appellant’s claim that
she was subjected to a hostile work environment was not a covered personnel
action, he did not consider whether any of the agency officials that the appellant
claims subjected her to a hostile work environment had any knowledge of her
participation in the OIG investigation. The paucity of relevant information the
appellant provided in her OSC complaint, her correspondence with OSC, and the
documents she has included with her petition for review make it exceedingly
difficult to discern what she disclosed, to whom, and when, and who was
responsible for each of the allegedly retaliatory actions taken against her. IAF,
Tab 5 at 44-48, 57-65; PFR File, Tab 1 at 25-184.
In her OSC complaint, the appellant’s discussion of what she told OIG is
vague and nonspecific. She broadly alleged retaliation, stating that she had been
“repeatedly subjected to [retaliation] for [her] participation in the DLA IG
complaint,” but did not specifically state that any of the agency officials that may
have been aware of her participation in the investigation were responsible for
taking any particular retaliatory action. IAF, Tab 5 at 45. In the section of the
complaint addressing who had knowledge of her purported disclosures and
activities, the appellant identified a number of agency officials that acted in some
managerial capacity over her during the period from 2016 to 2017, indicated that
“all were aware” of the ongoing OIG investigation, and accused two of the
supervisors of using meetings to “further retaliate[e]” against her. Id. at 48.
However, beyond this sparse characterization, the appellant did not offer any
specific information linking any of these individuals to any specific retaliatory
acts or even identify when they became aware that she had any involvement with
the OIG investigation, or how they purportedly learned of her participation in the
OIG investigation. Although some of the agency actions that comprise the
appellant’s hostile work environment claim may have the requisite temporal
22
proximity to her participation in the OIG investigation,13 the appellant failed to
identify which agency officials took which of the allegedly retaliatory acts, and
so it is impossible to discern whether they are the same officials that she claimed
were aware of the ongoing OIG investigation. Similarly, although the appellant
asserted that she disclosed information to a member of Congress and identified
the date of her disclosure, she did not reference the disclosure anywhere else in
her OSC complaint or assert that any agency official was aware of her disclosure.
Id. at 40-49.
We will not impute knowledge of the appellant’s protected disclosures and
activities to any agency official based only on a closeness in time between a
disclosure or 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 impute 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 either her
OIG interview or her disclosure to a member of Congress was a contributing
factor to any of the actions described in her hostile work environment claim. See
Rebstock Consolidation v. Department of Homeland Security , 122 M.S.P.R. 661,
¶ 12 (2015) (concluding that vague, conclusory, and unsupported allegations do
not meet the nonfrivolous allegation jurisdictional standard for whistleblower
retaliation claims); see also 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
13 Even this is difficult to discern, given that the appellant does not provide dates for
when the allegedly retaliatory actions took place. IAF, Tab 5 at 45-48.
23
that 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); see 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. Here,
even if we are to take at face value the appellant’s claim that the individuals she
identified in her OSC complaint were aware of her OIG interview, her conclusory
allegation that these individuals retaliated against her, without any degree of
specificity, does not meet the nonfrivolous pleading standard required to establish
jurisdiction in an IRA appeal, see El v. Department of Commerce , 123 M.S.P.R.
76, ¶ 6 (2015) (stating that vague, conclusory, unsupported, and pro forma
allegations of alleged wrongdoing do not meet the nonfrivolous pleading standard
needed to establish the Board’s jurisdiction over an IRA appeal), aff’d, 663 F.
App’x 921 (Fed. Cir. 2016); Keefer v. Department of Agriculture , 82 M.S.P.R.
687, ¶ 10 (1999), and she also has failed to nonfrivolously allege that those
individuals had a motive to retaliate against her.
We conclude therefore that the appellant failed to nonfrivolously allege
that she made a protected disclosure or engaged in protected activity that was a
contributing factor in a covered personnel action. Consequently, we affirm the
initial decision dismissing the appeal for lack of Board jurisdiction, as modified
by this Final Order.
24
NOTICE OF APPEAL RIGHTS14
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
14 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
25
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal 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
26
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.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
27
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.15 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
15 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
28
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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_AlysaPH-1221-18-0285-W-1__Final_Order.pdf | 2024-04-25 | ALYSA DONOVAN v. DEPARTMENT OF DEFENSE, MSPB Docket No. PH-1221-18-0285-W-1, April 25, 2024 | PH-1221-18-0285-W-1 | NP |
1,665 | https://www.mspb.gov/decisions/nonprecedential/Talley_Sharon_M_DE-1221-21-0175-W-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHARON M. TALLEY,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
DE-1221-21-0175-W-2
DATE: April 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David A. Branch , Esquire, James R. Klimaski , Esquire, and Steven J.
Silverberg , Esquire, Washington, D.C., for the appellant.
Dora Malykin , Esquire, Washington, D.C., for the agency.
Patricia McNamee , Esquire, Riverdale, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in her individual right of action (IRA)
appeal because she did not prove a prima facie case of whistleblower reprisal.
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. Except as expressly MODIFIED to
vacate the administrative judge’s finding in the alternative that the agency proved
by clear and convincing evidence that it would have taken the same personnel
actions in the absence of the appellant’s protected disclosure or activities, we
AFFIRM the initial decision.
The administrative judge found that, although the appellant did not prove
that she made protected disclosures under 5 U.S.C. § 2302(b)(8)(A), she proved
that she engaged in protected activities under 5 U.S.C. § 2302(b)(9)(C). Talley v.
Department of Agriculture , MSPB Docket No. DE-1221-21-0175-W-2, Refiled
Appeal File (RAF), Tab 31, Initial Decision (ID) at 6-22. However, she found
that the appellant did not prove that her protected activities were a contributing
factor in the covered personnel actions at issue, and thus, the appellant did not
establish a prima facie case of whistleblower reprisal.2 RAF, ID at 37-42. On
2 In her petition for review, the appellant asserts that her burden of proof to establish a
prima facie case of reprisal for whistleblowing was substantial evidence. Petition for
Review File, Tab 1 at 11. This is incorrect. To establish a prima facie case of reprisal
for whistleblowing, an appellant must prove by preponderant evidence that she made a
protected disclosure or engaged in protected activity that was a contributing factor in an
agency decision to take or fail to take a personnel action. See Salazar v. Department of
Veterans Affairs , 2022 MSPB 43, ¶ 23; Webb v. Department of the Interior ,
122 M.S.P.R. 248, ¶ 6 (2015).2
review, the appellant presents no evidence that would support a finding that any
of her alleged disclosures or activities, which occurred in 2012, were a
contributing factor in the agency’s decision to deny her a temporary promotion in
2019, or its failure to increase her pay or issue her a Standard Form 50 for a
temporary promotion she served in 2020.3 Thus, to the extent that the appellant
disputes the administrative judge’s findings regarding her disclosures and
activities, we need not reach this issue because, as the administrative judge
correctly found, the appellant did not meet the contributing factor standard. Id.
Because the appellant did not prove her prima facie case of whistleblower
reprisal, the Board may not proceed to the clear and convincing evidence test.
Clarke v. Department of Veterans Affairs , 121 M.S.P.R. 154, ¶ 19, n.10 (2014),
aff’d per curiam , 623 F. App’x 1016 (Fed. Cir. 2015). Therefore, we vacate the
administrative judge’s finding in the alternative, that the agency proved by clear
and convincing evidence that it would have taken the same personnel actions in
the absence of any protected disclosure or activities. RAF, ID at 42-60.
3 The administrative judge found that the appellant did not prove that the other alleged
retaliatory actions were covered personnel actions under 5 U.S.C. § 2302(a)(2)(A).
RAF, ID at 22-29. To the extent that the appellant challenges these findings on review,
because we find them to be well-reasoned and supported by fact and law, we discern no
basis to disturb them. Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997)
(stating that the Board will not disturb an administrative judge’s findings when she
considered the evidence as a whole, drew appropriate inferences, and made reasoned
conclusions on issues of credibility); Broughton v. Department of Health & Human
Services, 33 M.S.P.R. 357, 359 (1987) (same). Furthermore, the appellant did not
object to the administrative judge’s framing of the issues as set forth in her prehearing
order, despite being afforded the opportunity to do so. RAF, Tab 21 at 4-5, 10.
Accordingly, we discern no basis to disturb the administrative judge’s characterization
of the issues in this appeal. See Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365, ¶ 14
(2016) (declining to address on review matters excluded by the administrative judge in
orders to which the appellant was afforded the opportunity to object and did not do so);
Tarpley v. U.S. Postal Service , 37 M.S.P.R. 579, 581 (1988) (stating that the appellant’s
failure to timely object to rulings on witnesses precludes his doing so on petition for
review).3
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for 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.4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 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 | Talley_Sharon_M_DE-1221-21-0175-W-2__Final_Order.pdf | 2024-04-25 | SHARON M. TALLEY v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DE-1221-21-0175-W-2, April 25, 2024 | DE-1221-21-0175-W-2 | NP |
1,666 | https://www.mspb.gov/decisions/nonprecedential/Hughes_RebeccaDA-0752-18-0087-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
REBECCA HUGHES,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
DA-0752-18-0087-I-1
DATE: April 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Amanda L.E. Smith , Esquire, Buffalo, New York, for the appellant.
Joshua Norris Rose , Esquire, and Stephanye Snowden , Esquire,
Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained her 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 following facts are undisputed. The appellant was a GS-8 Consumer
Safety Inspector for the agency’s Food Safety Inspection Service, stationed at a
chicken slaughter facility owned by Peco Foods, Inc., which is an
agency-regulated entity. Initial Appeal File (IAF), Tab 1 at 4, Tab 10 at 16, 39,
Tab 33 at 5. The appellant’s job duties entailed observing the Peco facility’s
operations to ensure humane and sanitary poultry-handling practices. IAF,
Tab 33 at 5.
On June 7, 2017, the appellant removed a wire, a switch, and brackets
attached to a wooden pole next to the designated employee smoke break area.
She then placed these items in the bed of her truck. Id.; Hearing Transcript (Tr.),
Vol. 1 at 293 (testimony of the appellant). On August 4, 2017, the agency issued
the appellant a notice of proposed removal, based on one specification of
“Unauthorized Removal of Private Property.” IAF, Tab 10 at 25-30. The agency
specified that the appellant cut and removed cable from an electrical light pole
owned by Peco Foods, and that she did not have permission from Peco Foods to
do so. Id. at 25. After the appellant responded, the agency issued a decision
removing her effective October 24, 2017. Id. at 16-24.2
The appellant filed a Board appeal, challenging the merits of the removal
and raising affirmative defenses of harmful procedural error, disability
discrimination, and retaliation for grievance, whistleblower, and equal
employment opportunity activity. IAF, Tab 1, Tab 42 at 1-2. After a hearing, the
administrative judge issued an initial decision upholding the removal. IAF,
Tab 48, Initial Decision (ID). She found that the agency proved its charge and
established a nexus to the efficiency of the service, ID at 3-6, 26-27, that the
appellant failed to prove any of her affirmative defenses, ID at 6-26, and that
there was no basis to disturb the agency’s penalty determination, ID at 27-31.
The appellant has filed a petition for review, challenging the
reasonableness of the penalty. Petition for Review (PFR) File, Tab 3. The
agency has filed a response to the petition for review, and the appellant has filed
a reply to the agency’s response. PFR File, Tabs 5-6.
ANALYSIS
Where, as here, the agency’s charge is sustained, the Board will review an
agency-imposed penalty only to determine if the agency considered all the
relevant factors and exercised management discretion within tolerable limits of
reasonableness. Jacoby v. U.S. Postal Service , 85 M.S.P.R. 554 (2000). In
making such a determination, the Board must give due weight to the agency’s
primary discretion in maintaining employee discipline and efficiency, recognizing
that the Board’s function is not to displace management’s responsibility but to
ensure that managerial judgment has been properly exercised. Id. The Board
will, therefore, modify a penalty only when it finds that the agency failed to
weigh the relevant factors or that the agency’s judgment clearly exceeded the
bounds of reasonableness. Id. The Board has identified a list of twelve
nonexhaustive factors that are generally relevant in determining a penalty for
misconduct. Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981).3
The deciding official in this case considered each of these twelve factors in
deciding that removal was the appropriate penalty. IAF, Tab 10 at 18-20. The
appellant made numerous arguments concerning these factors and the deciding
official’s penalty determination, but the administrative judge found that there was
insufficient basis to mitigate. ID at 27-31. On petition for review, the appellant
addresses five of these factors: (1) the nature and seriousness of the offense,
(2) her disciplinary history, (3) her potential for rehabilitation, (4) the effect that
her offense had on her supervisors’ confidence in her ability to perform her
assigned duties, and (5) her length of service. PFR File, Tab 3 at 7-26.
Regarding the nature and seriousness of the offense, the deciding official
found that the appellant’s conduct was serious because it involved damage to the
property of a regulated entity, which required the agency to detail the appellant to
a different location at significant expense to the agency. IAF, Tab 10 at 18. The
appellant argued that the materials she removed from the pole were of de minimis
value and that her actions were neither malicious nor for personal gain, but the
administrative judge found that these facts, to the extent that they were true, were
insufficient to detract from the agency’s penalty determination overall. ID
at 28-31. On petition for review, the appellant again points out that the materials
she removed were of minimal monetary value, that her conduct was not malicious
or for personal gain, and that she removed the wire to remedy a safety concern.
PFR File, Tab 3 at 7-9, 17-23.
We have considered the appellant’s arguments, but we find that they
provide no basis to disturb the initial decision. As the administrative judge stated
in her initial decision, even though the appellant ostensibly removed the wires to
address a safety hazard, she herself created that hazard by moving a bench from
where Peco Foods had placed it to over near the electrical pole. ID at 29; Tr.,
Vol. 1 at 283-85 (testimony of the appellant). Although the appellant had her
reasons for doing so, i.e., to provide a more comfortable seat for an injured4
coworker, Tr., Vol. 1 at 283-84 (testimony of the appellant), her actions were
clearly imprudent.
As for the de minimis value of the materials that the appellant removed, we
agree with the appellant that this is a relevant consideration in the penalty
determination. PFR File, Tab 3 at 7-9, 17-21; see Miguel v. Department of the
Army, 727 F.2d 1081, 1084 (Fed. Cir. 1984); Skates v. Department of the Army ,
69 M.S.P.R. 366, 368 (1996). It is also relevant that the appellant’s intent does
not appear to have been to steal these materials but instead to get them out of the
way. See Harris v. Department of the Navy , 15 M.S.P.R. 464, 467 (1983)
(finding that unauthorized possession of government property is less serious than
theft or attempted theft of government property). The Board has held that theft
entails an intent to permanently deprive the owner of the possession or use of
property. Nazelrod v. Department of Justice , 50 M.S.P.R. 456, 459 (1991), aff’d
sub nom. King v. Nazelrod , 43 F.3d 663 (Fed. Cir. 1994). In this case, the
appellant was not charged with theft, and it does not appear that she had any
plans for the disposition of the materials because they were still in the bed of her
truck on Peco Foods property several days later when the agency confronted her
about the incident. Tr., Vol. 1 at 293-94 (testimony of the appellant).
However, we disagree with the appellant that the deciding official failed to
consider these factors in arriving at her decision. PFR File, Tab 3 at 8-9, 18-21;
cf. Brown v. Department of the Treasury , 91 M.S.P.R. 60, ¶ 17 (2002) (finding
that when a deciding official fails to consider the pertinent penalty factors, the
agency’s penalty determination is not entitled to deference). Although the
appellant cites excerpts of the deciding official’s hearing testimony that appear to
support her contention, the tenor of the decision letter and the deciding official’s
testimony as a whole is that the problem with the appellant’s conduct had less to
do with her intentions and the value of the property than it did with the strain that5
it put on the agency’s relationship with Peco Foods.2 IAF, Tab 10 at 18; Tr., Vol.
1 at 59-60, 64, 66-67, 81, 83 (testimony of the deciding official). We find that
this assessment of the facts was reasonable and distinguishes this case from
others involving theft or removal of agency property, where a de minimis
misappropriation might more easily be forgiven at the agency’s discretion. Cf.
Miguel, 727 F.2d 1081; Skates, 69 M.S.P.R. 366. The deciding official’s
testimony reflected this consideration, where she related that it was Peco Foods’s
authority to determine the value of its own property. Tr., Vol. 1 at 83 (testimony
of the deciding official). It is also consistent with Board and Federal Circuit
precedent, finding the de minimis value of property immaterial where there are
other overriding factors involved. See DeWitt v. Department of the Navy ,
747 F.2d 1442, 1445-46 (Fed. Cir. 1984) (finding the de minimis value of
property immaterial where the employee had custody and control over the
property); Underwood v. Department of Defense , 53 M.S.P.R. 355, 359 (same),
aff’d sub nom. Underwood v. Defense Logistics Agency , 980 F.2d 744 (Fed. Cir.
1992) (Table). Regarding the appellant’s intentions, although her actions might
not have been malicious or for personal gain, they were at least carried out with
reckless disregard for the rights of Peco Foods. The appellant did not, in a
moment, thoughtlessly dispose of corporate property that she found lying on the
ground. Rather, it took her 13 minutes and a set of tools to remove the materials
from the electrical pole. Tr., Vol. 1 at 91-92 (testimony of the deciding official),
285-87 (testimony of the appellant). For these reasons, we agree with the
administrative judge that the agency did not abuse its discretion in finding the
appellant’s misconduct to be of a serious nature. IAF, Tab 10 at 18.
The appellant also challenges the agency’s consideration of her disciplinary
record in arriving at its removal decision. It appears to be undisputed that the
appellant had two instances of prior discipline in her 24-year career with the
2 The appellant’s removal was precipitated by a complaint that Peco Foods made to the
agency about this incident. Tr., Vol. 1 at 18 (testimony of the proposing official); IAF,
Tab 10 at 43-44, 50.6
agency, both of which had occurred relatively recently. IAF, Tab 10 at 19.
Specifically, the agency issued the appellant a letter of reprimand on June 15,
2016, for falling asleep on the line and reporting to work late without following
the prescribed call-in procedures. IAF, Tab 11 at 26-29. The agency
subsequently suspended the appellant for 7 days effective January 8, 2017, for the
same type of misconduct. Id. at 10-22. The deciding official considered this
disciplinary record to be an aggravating factor. IAF, Tab 10 at 19. On petition
for review, the appellant argues that the deciding official erred in doing so
because the prior discipline was for dissimilar misconduct and was related to her
disability. PFR File, Tab 3 at 8, 10-17.
We agree with the appellant that the Board may discount a prior
disciplinary action that is unrelated in nature to the misconduct at issue in the
appeal. Id. at 11-15. However, the agency has primary discretion in assessing
the penalty factors, and we find that the deciding official did not abuse her
discretion in considering the appellant’s disciplinary history adversely. See
Devall v, Department of the Navy , 77 M.S.P.R. 468, 471 (1998) (finding that the
agency has primary discretion in selecting the appropriate penalty, and that the
Board will review the agency’s determination under an abuse of discretion
standard). We find that this case is factually similar to Howlett v. Department of
Veterans Affairs , 53 M.S.P.R. 604, 606 (1992), in which the Board found that the
appellant’s prior admonishment and suspension for absence without leave could
be properly considered in determining the appropriate penalty for theft, even
though the prior discipline was for a different type of misconduct.
As for the appellant’s disability, the record shows that she has a blood
condition that causes her fatigue, and she attributes the incidents underlying her
prior discipline to this condition. Tr. Vol. 1 at 265, 272-75 (testimony of the
appellant). Although the appellant’s explanation for the prior incidents is entirely
plausible, we find that it is not appropriate in this case to relitigate the propriety
of the appellant’s suspension and letter of reprimand. The Board's review of a7
prior disciplinary action is limited to determining whether that action is clearly
erroneous, if the employee was informed of the action in writing, the action is a
matter of record, and the employee was permitted to dispute the charges before a
higher level of authority than the one that imposed the discipline. Bolling v.
Department of the Air Force , 9 M.S.P.R. 335, 339 -40 (1981). We find that the
letter of reprimand and the 7-day suspension satisfy the Bolling criteria because
both of them were in writing and placed in the appellant’s Official Personnel File,
and the appellant was notified of her right to grieve both of them. IAF, Tab 10
at 10-15, 26-29; see Lambert v. Department of the Army , 44 M.S.P.R. 688, 699
(1990), aff’d, 928 F.2d 410 (Fed. Cir. 1991) (Table) . Although an argument
could perhaps be made on the current record that these prior disciplinary actions
were discriminatory, an equally strong argument could be made that they were
not, and we find that these disciplinary actions fall far short of being “clearly
erroneous” on that account. See Bolling, 9 M.S.P.R. at 339 (finding that a prior
disciplinary action is clearly erroneous when the Board is left with “the definite
and firm conviction that a mistake has been committed”). For these reasons, we
agree with the administrative judge that the deciding official properly considered
the appellant’s prior discipline as an aggravating factor. ID at 23, 30.
In connection with her argument about prior discipline, the appellant argues
that the deciding official failed to properly consider her rehabilitative potential.
PFR File, Tab 3 at 7, 10, 14-17, 19. The deciding official found that the appellant
lacked rehabilitative potential because she failed to express remorse for her
actions, which had become part of a “pattern of misconduct.” IAF, Tab 10 at 20;
Tr., Vol. 1 at 85 (testimony of the deciding official). The appellant, however,
argues that her prior discipline is a poor indicator of her rehabilitative potential
because it was unrelated to the misconduct at issue. She argues that, if anything,
she has demonstrated rehabilitative potential because the type of misconduct for
which she was previously disciplined has not recurred. PFR File, Tab 3 at 10,
14-17. We disagree. Although the appellant’s prior discipline may have little8
bearing on her propensity to commit the type of misconduct at issue in this
appeal, it does call into doubt her ability to follow the rules of the workplace in
general. The agency is not required to afford the appellant a new chance at
rehabilitation every time she commits a new type of misconduct. See Villela v.
Department of the Air Force , 727 F.2d 1574, 1577 (Fed. Cir. 1984). The
appellant further argues that the deciding official failed to consider her “clear
signs of contrition.” PFR File, Tab 3 at 7, 19. We have reviewed the record in
this regard and find the evidence of the appellant’s contrition to be equivocal at
best. The appellant testified that she “thought” she expressed remorse during her
oral reply to the notice of proposed removal, Tr., Vol. 1 at 319 (testimony of the
appellant), but neither the notes from her oral reply conference nor anything else
in the record give any indication that she did so, IAF, Tab 10 at 23 -24, 35-36,
46-48. In any event, under the totality of the circumstances, we find insufficient
basis to disturb the deciding official’s determination regarding the appellant’s
rehabilitative potential.
The appellant also disputes the administrative judge’s finding that her
“interference with Peco’s private property caused the agency to lose confidence
in the appellant’s ability to perform her duties.” PFR File, Tab 3 at 23-26; ID
at 27. The appellant argues that this Douglas factor pertains to the supervisor’s
confidence in her ability to carry out her assigned duties, and that the misconduct
at issue has no bearing on that. In fact, the appellant’s supervisor, the proposing
official in this case, expressed that the appellant was competent to perform in her
job. PFR File, Tab 3 at 23-26. To the extent that the appellant is advancing a
mechanistic approach to the application of this Douglas factor, we reject that
approach. 5 M.S.P.R. at 306. We find that, under the particular facts of this case,
the deciding official’s evaluation of this factor was wholly reasonable. She wrote
in her decision letter that, while the appellant had the technical skill to do her job,
her ability to be effective and to follow the directives, policies, and regulations9
consistently has suffered because of her conduct. IAF, Tab 10 at 19; see
Harrison v. Department of the Treasury , 22 M.S.P.R. 462, 456-66 & n.3 (1984).
Finally, the appellant argues that the deciding official failed to give weight
to her 24 years of good service, with no disciplinary actions prior to the
16 months leading up to her removal. PFR File, Tab 3 at 23-24. We agree with
the appellant that her service history is a significant mitigating factor. See Smith
v. U.S. Postal Service , 31 M.S.P.R. 508, 510 (1986). However, we cannot find
that the deciding official abused her discretion in finding that this factor did not
outweigh the gravity of the appellant’s misconduct or the other penalty
considerations as a whole. IAF, Tab 10 at 19; Tr., Vol. 1 at 81 (testimony of the
deciding official); see Suarez v. Department of Housing & Urban Development ,
96 M.S.P.R. 213, ¶ 51 (2004), aff’d, 125 F. App’x 1010 (Fed. Cir. 2005).
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.10
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal 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 obtain11
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 12
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a 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. 13
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.14 | Hughes_RebeccaDA-0752-18-0087-I-1__Final_Order.pdf | 2024-04-25 | REBECCA HUGHES v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DA-0752-18-0087-I-1, April 25, 2024 | DA-0752-18-0087-I-1 | NP |
1,667 | https://www.mspb.gov/decisions/nonprecedential/Chesser_Elizabeth_J_DA-0752-19-0188-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ELIZABETH J. CHESSER,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
DA-0752-19-0188-I-1
DATE: April 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stephen Goldenzweig , Esquire, Bellaire, Texas, for the appellant.
Elchonon Reizes , Esquire, Houston, Texas, for the appellant.
Janet Robinson Card , Kansas City, Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her removal appeal for failure to prosecute. On petition for review, the
appellant asserts that she was unaware of the multiple orders that the
administrative judge issued below due to her pro se status, her lack of familiarity
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
with the Board’s e-file system, and her medical conditions. She further asserts
that she expected to be notified of the administrative judge’s orders through “land
mail” despite the fact that she had elected to be an e-filer, that she exhibited good
faith in complying with the administrative judge’s orders when she retained
counsel and requested an extension to respond to the agency’s discovery request
after the administrative judge had dismissed the appeal, and that the
administrative judge abused her discretion in failing to “instruct Agency counsel
to reach out to [her] to inform her of the rescheduled date and time of the status
conference, as is customary in such situations.” Petition for Review File, Tab 4
at 6-7, 11. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
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.2
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Chesser_Elizabeth_J_DA-0752-19-0188-I-1__Final_Order.pdf | 2024-04-25 | ELIZABETH J. CHESSER v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DA-0752-19-0188-I-1, April 25, 2024 | DA-0752-19-0188-I-1 | NP |
1,668 | https://www.mspb.gov/decisions/nonprecedential/Smith_William_C_DC-0752-18-0485-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM C. SMITH,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-0752-18-0485-I-1
DATE: April 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kevin Crayon, Jr. , Esquire, Kennesaw, Georgia, for the appellant.
Laura Geigel , Esquire, and Sarah I. Grafton , Esquire, Arlington, Virginia,
for the agency.
Michael W. Gaches , Esquire, Springfield, Virginia, for the agency.
Steven J. Lewengrub , 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
sustained his indefinite suspension. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. For the reasons set forth
below, we VACATE the initial decision and DISMISS the appeal for lack of
jurisdiction.
BACKGROUND
The Department of Homeland Security indefinitely suspended the appellant
from the excepted service position of SV-0301-J Supervisory Program Specialist
with the Transportation Security Administration (TSA), effective June 29, 2016.
Initial Appeal File (IAF),2 Tab 8 at 10-13. The agency based the action on the
suspension of the appellant’s security clearance. Id. at 11. The appellant filed an
equal employment opportunity (EEO) complaint with the agency’s Office for
Civil Rights and Civil Liberties and, on September 1, 2017, the agency issued a
Final Agency Decision finding no discrimination. IAF, Tab 1 at 30-38. This
appeal followed. The administrative judge adjudicated the appeal on the merits
and affirmed the agency’s action. IAF, Tab 32. The appellant filed a petition for
review. Petition for Review (PFR) File, Tab 1.
2 The tab citations throughout this Final Order, with the exception of the initial
decision, refer to the tabs in the appeal file in Smith v. Department of Homeland
Security, MSPB Docket No. DC-0752-18-0003-I-1, which involves the appellant’s
subsequent removal.2
Notwithstanding the administrative judge’s adjudication of the merits of the
appeal, the issue of jurisdiction is always before the Board and may be raised at
any time in a Board proceeding. Ney v. Department of Commerce , 115 M.S.P.R.
204, ¶ 7 (2010). The Board’s jurisdiction is limited to those matters over which it
has been given jurisdiction by law, rule or regulation. See Maddox v. Merit
Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985).
Here, because the appellant worked for the TSA, the Aviation and
Transportation Security Act (ATSA) applies to this case. See Wilson v.
Department of Homeland Security , 122 M.S.P.R. 262 , ¶ 3 (2015). Under the
ATSA, TSA employees are covered by the personnel management system that is
applicable to employees of the Federal Aviation Administration (FAA), except to
the extent that the Administrator for TSA modifies that system. Id. Pursuant to
the FAA system, individuals who meet the definition of an “employee” under
5 U.S.C. § 7511(a)(1) generally are entitled to appeal adverse actions to the
Board. Id.
Under 5 U.S.C. § 7511(a)(1)(C)(ii), an individual in the excepted service
(other than a preference eligible) who has completed 2 years of current
continuous service in the same or similar positions in an Executive agency under
other than a temporary appointment limited to 2 years or less is an employee with
Board appeal rights. See 5 C.F.R. § 752.401(c)(5). Similarly, under the agency’s
regulations, TSA Handbook to Management Directive 1100.75–3, Addressing
Unacceptable Performance and Conduct, § J(2)(b) (Feb. 12, 2014), an employee
who is not a Transportation Security Officer (TSO) and is not preference eligible
may appeal to the Board only if he has at least 2 years of current continuous
service in the same or similar position. IAF, Tab 8 at 75, 96.
The appellant, a non-TSO who is not preference eligible, was promoted to
the excepted service SV-0301-J Supervisory Program Specialist position from a
SV-343-I Program Analyst position, effective July 26, 2015. IAF, Tab 8 at 35;
PFR File, Tab 5 at 30. He was indefinitely suspended effective June 29, 2016,3
IAF, Tab 8 at 10, and his removal was effected on February 20, 2017,
IAF, Tab 6 at 34. Therefore, even if all of the time between June 29, 2016, and
February 20, 2017, when the appellant was in a nonpay status, is credited to his
completion of the required 2 years in the same or similar position, he lacks
2 years of current continuous service in the Supervisory Program Specialist
position. Because the record failed to establish whether the Program Analyst and
Supervisory Program Specialist positions are the same or similar, the Board was
unable to determine whether the appellant has the 2 years of current continuous
service in the same or similar position necessary to establish Board jurisdiction
over his appeal. Thus, it ordered the parties to submit evidence and argument on
the issue of whether the appellant has 2 years of current continuous service in the
same or similar position. PFR File, Tab 4. The parties have responded.
PFR File, Tabs 5, 8.
ANALYSIS
The appellant has not made a nonfrivolous allegation of jurisdiction .
Because, as noted, the appellant did not have 2 years of current continuous
service in the Supervisory Program Specialist position, the Board’s jurisdiction
over this appeal turns on whether the Program Analyst3 and Supervisory Program
3 It appears that the appellant had more than 2 years of current continuous service in the
Program Analyst position when he applied for and accepted promotion to the
Supervisory Program Specialist position and likely had Board appeal rights in the
Program Analyst position under § 7511(a)(1)(C)(ii) when he was promoted. PFR File,
Tab 5 at 13, Tab 8 at 17. In Exum v. Department of Veterans Affairs , 62 M.S.P.R. 344,
349-50 (1994), the Board held that, when an employee moves to a new position within
the same agency and forfeits his Board appeal rights as a result, the agency must inform
the employee of the effect the move will have on his appeal rights; if the employee was
unaware of the loss of Board appeal rights that would result from accepting the new
position and he would not have accepted the new position had he known of the loss of
appeal rights, he is deemed not to have accepted the new appointment and to have
retained the rights incident to his former appointment. The U.S. Court of Appeals for
the Federal Circuit has specifically disapproved of the Exum rule for intra-agency
transfers and has held that an agency’s failure to inform an employee of the
consequences of a voluntary transfer cannot confer appeal rights on an employee in a
position which has no appeal rights by statute. Williams v. Merit Systems Protection
Board, 892 F.3d 1156, 1163 (Fed. Cir. 2018). Applying Williams, we find that the4
Specialist positions are the same or similar for purposes of § 7511(a)(1). If they
are not, then the appellant is not an employee under § 7511(a)(1)(C)(ii) and he
may not appeal his indefinite suspension to the Board. Alternatively, if the
positions are the same or similar, then the appellant qualifies as an employee
under subsection (C)(ii) and establishes his right of appeal. See Van Wersch v.
Department of Health & Human Services , 197 F.3d 1144, 1151 (Fed. Cir. 1999).
The regulations implementing 5 U.S.C. chapter 75, subchapter II, define
“similar positions” as “positions in which the duties performed are similar in
nature and character and require substantially the same or similar qualifications,
so that the incumbent could be interchanged between the positions without
significant training or undue interruption to the work.” 5 C.F.R. § 752.402.
Moreover, positions may be deemed “similar” if they are in the “same line of
work,” which has been interpreted as involving “related or comparable work that
requires the same or similar skills.” Mathis v. U.S. Postal Service , 865 F.2d
232, 234 (Fed. Cir. 1988). Our reviewing court has interpreted such language to
mean that positions are similar “if experience in [one] position demonstrates the
knowledge, skills, and abilities required to perform the work of the other job.”
Coradeschi v. Department of Homeland Security , 439 F.3d 1329, 1333 (Fed. Cir.
2006); accord Mathis, 865 F.2d at 234; Spillers v. U.S. Postal Service ,
65 M.S.P.R. 22, 26 (1994). In conducting this analysis, the Board must focus on
the employee’s actual duties and the work actually performed. Maibaum v.
Department of Veterans Affairs , 116 M.S.P.R. 234, ¶ 15 (2011). In determining
whether positions are the “same or similar,” a careful job analysis of the two
positions in question, not the job titles, must be made. Shobe v. U.S. Postal
Service, 5 M.S.P.R. 466, 471 (1981). The Board will consider the totality of the
circumstances in making its determination. Pagan v. U.S. Postal Service ,
111 M.S.P.R. 212, ¶ 6 (2009).
agency had no duty to inform the appellant that his promotion to the Supervisory
Program Specialist position could cause him to lose his Board appeal rights, and its
failure to so inform the appellant cannot confer appeal rights under § 7511(a)(1)(C)(ii).5
In his response to the Show Cause Order, the appellant asserts that the
positions in question are the same or similar. In support of his assertion, he
submits an affidavit comparing his duties as a Program Analyst documenting the
EEO process and his duties as a Supervisory Program Specialist documenting the
“Redress” process, and states that he had prior supervisory experience and would
not have been selected if the two positions were not similar. PFR File, Tab 5
at 13-16. He contends that there was no meaningful difference in the supervisory
duties of the positions because his Program Analyst position involved team
leadership roles. Id. at 16. He also submits the following: excerpts from
Position Classification Standards guidance highlighting the definition of the term
“series,” id. at 17-19; his application for the Supervisory Program Specialist
position, which emphasized his prior supervisory experience, id. at 20-24;
a Salary Increase Justification form, id. at 25; excerpts from the Handbook of
Occupational Groups and Families, describing series 0343 and 0301, id. at 26-29;
a 2015 appraisal form for the Program Analyst position, id. at 30-38; and a 2016
appraisal form for the Supervisory Program Specialist position, id. at 39-49.
The Program Analyst position is in the 0343 series. The Handbook of
Occupational Groups and Families, issued by the Office of Personnel
Management (OPM) and dated December 2018, describes the 0343 Management
and Program Analysis series as follows:
This series covers positions that primarily serve as analysts and
advisors to management on the evaluation of the effectiveness of
government programs and operations or the productivity and
efficiency of the management of Federal agencies or both. Positions
in this series require knowledge of: the substantive nature of agency
programs and activities; agency missions, policies, and objectives;
management principles and processes; and the analytical and
evaluative methods and techniques for assessing program
development or execution and improving organizational
effectiveness and efficiency. Some positions also require an
understanding of basic budgetary and financial management
principles and techniques as they relate to long range planning of
programs and objectives. The work requires skill in: application of6
fact-finding and investigative techniques; oral and written
communications; and development of presentations and reports.
Id. at 29.
The Supervisory Program Specialist position is in the 0301 series. OPM’s
Handbook describes the 0301 Miscellaneous Administration and Program Series
as follows:
This series covers positions the duties of which are to perform,
supervise, or manage two-grade interval administrative or program
work for which no other series is appropriate. The work requires
analytical ability, judgment, discretion, and knowledge of a
substantial body of administrative or program principles, concepts,
policies, and objectives.
Id. at 28.
OPM’s Handbook thus describes the two series very differently.
The appellant argues, however, that because both the Program Analyst and
Supervisory Program Specialist positions are in the “300 series,” they are similar.
However, the appellant’s evidence does not support that assertion. Classification
standards define “series” as a subdivision of an occupational group consisting of
positions similar as to specialized line of work and qualification requirements.
Id. at 18. Those standards define “occupational group” as a major subdivision of
the General Schedule, embracing a group of associated or related occupations;
e.g., the Accounting and Budget Group, GS−500; the Engineering and
Architecture Group, GS−800; the General Administrative, Clerical, and Office
Services Group, GS−300. Id. Thus, although the Program Analyst and
Supervisory Program Specialist are in the same 300 “occupational group,”
contrary to the appellant’s assertion, they are not in the same series.
Therefore, although the appellant’s submissions show that the Program Analyst
and Supervisory Program Specialist positions may be “associated or related,”
those submissions do not constitute a nonfrivolous allegation that they are
“similar.” 7
A comparison of the appellant’s 2015 appraisal form for the Program
Analyst position, id. at 30-38, and his 2016 appraisal form for the Supervisory
Program Specialist position, id. at 39-49, shows that the Program Analyst position
is in the I Band, has no requirement for a security clearance, and has six Core
Competencies as follows:
1. Accomplishes high volumes of work with daily and long term
priorities. Shifts among job tasks with competing priorities.
Operates within project deadlines;
2. Welcomes change and new information, ideas, and strategies.
Adapts work methods in response to new information, unexpected
obstacles, and changing conditions. Adjusts rapidly to new
situations warranting attention and resolution. Develops
contingency plans to ensure objectives can be met.
3. Applies policies, directives, and regulations that relate to TSA
operations and programs when making decisions. Ensures that
activities, services, or products reflect organizational goals and
objectives. Adjusts priorities to respond to pressing and changing
needs. Adapts work methods in response to new information and
changing conditions.
4. Identifies the existence of problems that impede accomplishing
tasks. Researches the cause of problems and offers a variety of
solutions to resolve problems. Explores new ways to accomplish
tasks. Implements solutions to problems to ensure completion of
affected tasks.
5. Listens actively and attends to non-verbal cues when
communicating with others. Provides information on products,
services, resources, or opportunities, as applicable. Explains,
defends, or justifies decisions, recommendations, and findings.
Discusses results, problems, plans, suggestions, terms, or
conditions with others. Persuades others to take a particular
course of action or to accept findings and recommendations. Acts
effectively as a liaison between work unit and customers.
Prepares reports, briefs, and studies. Explains technical or other
complex information.
6. Uses a variety of job-specific software systems and databases.
Verifies the accuracy of the data captured and transcribed.
Processes forms, records, documents, or other materials.
Collects, compiles, organizes, and transfers electronic8
information. Reviews reports, documents, or other materials to
verify correctness, compliance, or authenticity. Searches for and
extracts information from data repositories, file servers, Internet,
reports, and publications. Remains current on developments,
technologies, and work practices. Acquires and develops new job
skills and knowledge. Applies and maintains specialized job
skills and knowledge.
Id. at 31-33.
The Supervisory Program Specialist position, also referred to as a Redress
Operations Manager, is in the J Band, requires a secret security clearance,
IAF, Tab 8 at 23-29, and the performance plan for the position has seven core
competencies, PFR File, Tab 5 at 41-45. Of these core competencies, the first
four are identical to those of the Program Analyst position. The fifth is similar.
However, it also provides that the incumbent explains and defends management's
policies or practices. Id. at 43.
The sixth and seventh core competencies for the Supervisory Program
Specialist are wholly different from the core competencies for the Program
Analyst position. The sixth provides as follows:
Formulates effective strategies consistent with the agency's
organizational goals and objectives. Determines resource
requirements based on program objectives and operational needs.
Uses metrics and other data as part of the evaluative process to
identify problems and propose solutions. Adheres to, and
integrates knowledge of, all relevant directives and regulations to
address issues and resolve problems. Reviews and analyzes
programs, operational results, and policy to identify potential
areas of improvement.
Id. at 44. The seventh core competency provides as follows:
Creates a positive work environment by encouraging mutual
respect, communication, and innovation and manages conflict
constructively. Organizes and facilitates teams skillfully to
accomplish mutual goals. Administers performance management
responsibilities including completion of performance plans and
ratings, provision of meaningful feedback, and taking appropriate
measures to address performance and conduct issues. Involves
team members in decisions and problem solving. Communicates9
information on performance, work status, changes, issues, and
results effectively. Leads, develops, and manages a high
performing, diverse workforce, ensuring employment practices
are administered in a fair and equitable manner. Promotes and
fosters an inclusive workplace where diversity is valued and
leveraged to achieve the vision and mission of the organization.
Recruits, hires, transitions into Federal service, and retains
qualified employees, as applicable. Access, critically analyze,
evaluate and apply risk information to the decision making
process in support of organizational goals and objectives.
Id. at 45. These core competencies4 show material differences between the two
positions in that the Supervisory Program Specialist position has full supervisory
and managerial responsibilities while the Program Analyst position has none.
The appellant asserts that he has supervisory experience. We do not question his
assertion that he has such experience; however, he has not established that he
acquired supervisory experience in the Program Analyst position. In order for the
positions to be the same or similar, the appellant must show that both have the
same or similar supervisory and managerial responsibilities. The appellant’s
submission of his application for the Supervisory Program Specialist position
emphasizes the appellant’s prior supervisory experience, showing the importance
of that experience to the Supervisory Program Specialist position.
In his affidavit, the appellant states that he worked on a detail for the
Office of Civil Rights on loan from the Atlanta Airport Federal Security Airport
Staff. Id. at 14-15. He asserts that on that detail he documented the EEO process
as a Program Analyst. Id. He explains that the purpose of the process flow was
to determine the flow of hand-offs and decision points. Id. It included
processing time for each step. The process flow diagram depicted actions from
application submittal process to hearing. Id. Also, costs were determined for
each step to determine where most of the costs were being incurred in the TSA
process. Id. He argues that similarly, in the Supervisory Program Specialist
4 Although the appraisal forms set forth the core competencies for the respective
positions, the appellant has not submitted positions descriptions or other documents
showing the duties and responsibilities of the positions.10
position, he documented the Redress process, interviewing employees and the
Director in order to “determine all steps” of the Redress process. Id. However,
the detail position was not that from which the appellant was promoted, and thus
the duties described in that position would not establish that his Program Analyst
and Supervisory Program Specialist positions were the same or similar.
See Wafford v. U.S. Postal Service , 34 M.S.P.R. 691, 693-94 (1987); White v.
U.S. Postal Service , 34 M.S.P.R. 687, 690 (1987).
In sum, the appellant has failed through his submissions to make a
nonfrivolous allegation that the Program Analyst position, which has no
supervisory or managerial duties and is in the I Band and the 0343 series, is
similar to the Supervisory Program Specialist position in the J Band and the
0301 series, with its supervisory and managerial responsibilities.5 The appellant
has failed to nonfrivolously allege that the positions have duties that are similar
in nature and character and require substantially the same or similar
qualifications, so that the incumbent could be interchanged between the positions
without significant training or undue interruption to the work. See 5 C.F.R.
§ 752.402. The appellant has failed to make a nonfrivolous allegation that
experience in the Program Analyst position demonstrates the knowledge, skills,
and abilities required to perform the work of the Supervisory Program Specialist
position. See Coradeschi, 439 F.3d at 1333.6
5 The appellant relies on Martinez v. Department of Homeland Security , 118 M.S.P.R.
154 (2012), Sandoval v. Department of Agriculture , 115 M.S.P.R. 71 (2010), and a
nonprecedential Board Order in support of his arguments. We find that Martinez and
Sandoval are distinguishable because, among other things, they did not involve a
comparison of supervisory and non-supervisory positions. Moreover, nonprecedential
orders are generally not binding on the Board. 5 C.F.R. § 1201.117(c)(2).
6 To establish whether two positions are the same or similar for the purposes of 5 U.S.C.
§ 7511, the Board also looks to whether the positions are in the same competitive level
for reduction in force purposes. Beets v. Department of Homeland Security ,
98 M.S.P.R. 451, 455 (2005); Spillers, 65 M.S.P.R. at 26. Positions are in the same
competitive level if they: (1) are in the same grade or pay scale; (2) are in the same
classification series; (3) have similar duties; and (4) require the same skills and
qualifications. See Spillers, 65 M.S.P.R. at 26. The appellant does not assert that the11
Accordingly, we find that the appellant has failed to make a nonfrivolous
allegation that he is an individual in the excepted service who has completed
2 years of current continuous service in the same or similar positions in an
executive agency. Thus, he has failed to make a nonfrivolous allegation that he is
an employee under 5 U.S.C. § 7511(a)(1)(C)(ii)7 with appeal rights to the Board.
We dismiss his appeal of his indefinite suspension for lack of jurisdiction.8
NOTICE OF APPEAL RIGHTS9
This is 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
Program Analyst and Supervisory Program Special positions are in the same
competitive level. We note, however, that the two positions are in different pay bands,
in different classification series, and as explained have different duties, suggesting that
they are not in the same competitive level.
7 In his reply, the appellant incorrectly assumes that he qualifies as an employee under
5 U.S.C. § 7511(a)(1)(C)(i). PFR File, Tab 5 at 4 n.1. It is undisputed, however, that
the appellant had permanent status in the excepted service and was never under an
initial appointment pending conversion to the competitive service in either position.
Accordingly, 5 U.S.C. § 7511(a)(1)(C)(i) is not applicable here. See Pennington v.
Department of Veterans Affairs , 57 M.S.P.R. 8, 9-11 (1993).
8 The appellant requests that, if the Board dismisses his appeal for lack of jurisdiction,
the Board remand his “mixed case for unmixed processing pursuant to 29 C.F.R.
§ 1614.302(b) . . . .” PFR File, Tab 5 at 11. Section 1614.302(b) provides that, if a
person files a timely appeal with the Board from the agency’s processing of a
mixed-case complaint and the Board dismisses it for jurisdictional reasons, the agency
shall reissue a notice giving the individual the right to elect between a hearing before an
administrative judge and an immediate final decision. The appellant has identified no
provision under which the Board must “remand” an appeal for processing as a
non-mixed case.
9 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions to provide a comprehensive
summary of all available review options. As indicated in the notice, the Board cannot
advise which option is most appropriate in any matter. 12
situation and the rights described below do not represent a statement of how
courts will rule regarding which cases fall within their jurisdiction. If you wish
to seek review of this final decision, you should immediately review the law
applicable to your claims and carefully follow all filing time limits and
requirements. Failure to file within the applicable time limit may result in the
dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation13
for Merit Systems Protection Board appellants before the Federal 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 file14
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.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: 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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Smith_William_C_DC-0752-18-0485-I-1__Final_Order.pdf | 2024-04-24 | WILLIAM C. SMITH v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-0752-18-0485-I-1, April 24, 2024 | DC-0752-18-0485-I-1 | NP |
1,669 | https://www.mspb.gov/decisions/nonprecedential/Reilly_Keith_M_DC-1221-22-0093-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEITH REILLY,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.DOCKET NUMBER
DC-1221-22-0093-W-1
DATE: April 24, 2024
THIS ORDER IS NONPRECEDENTIAL1
Jacob Madison Small , Esquire, McLean, Virginia, for the appellant.
Alisa Reff and Ian Andrew Spreat , Esquire, Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
REVERSE the administrative judge’s finding that the appellant did not establish
jurisdiction over his claim as set forth below, AFFIRM the remainder 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).
initial decision as MODIFIED to supplement the administrative judge’s analysis
of contributing factor, and REMAND the appeal to the Atlanta Regional Office
for further adjudication in accordance with this Remand Order.
BACKGROUND
At the time relevant to this appeal, the appellant was employed as a
Criminal Investigator with the agency’s Office of Inspector General (OIG).
Initial Appeal File (IAF), Tab 9 at 40. In August of 2016, the appellant was
assigned a new first-line supervisor, who, according to the appellant, immediately
began harassing him, rejecting his work reports, taking credit for his
accomplishments, threatening him with a performance improvement plan, and
requiring him to engage in unnecessary travel. Id. at 5, 16-21, 26. Within a few
months, on January 10, 2017, the appellant contacted the OIG’s Internal Affairs
Office about his supervisor’s behavior and communicated to agency officials that
the stress of the alleged harassment was affecting his physical health. Id. at 6,
21. The next day, the Assistant Inspector General advised the appellant that,
based on his representations regarding his medical condition, his authority to
carry a firearm was restricted pending submission of medical documentation from
his physician and the results of a fitness for duty examination. Id. at 7-8, 21, 117.
Soon thereafter, the appellant submitted a letter from his physician requesting
that he be relieved of his duties due to anxiety and panic disorder. Id. at 37. The
appellant was also given a fitness-for-duty examination and was deemed
physically fit for duty but not mentally fit for duty based on Generalized Anxiety
Disorder, Panic Disorder, and Delusional Disorder. Id.; IAF, Tab 11 at 28.
Around the same time, the appellant submitted a claim for workers’
compensation benefits based on the above-referenced medical conditions. IAF,
Tab 9 at 7, 24, 37. Less than a month later, he emailed his U.S. senator asking
for assistance expediting his workers’ compensation claim and reporting that he
had complained of harassment to the agency. Id. at 7, 39. Thereafter, the Office
of Workers’ Compensation Programs (OWCP) denied his claim, and the agency,2
in May 2017, proposed his removal for his medical inability to perform his job.
Id. at 24, 40-42. However, the appellant and the agency agreed that the appellant
would be carried in a leave without pay status while he applied for disability
retirement and awaited a decision from the Office of Personnel Management
(OPM). Id. at 43-44. In January 2018, the appellant requested reinstatement,
asserting that his physicians felt that he could return to work, but a few days later,
OPM approved the appellant’s application for disability retirement. Id. at 45-46.
As such, the agency declined the appellant’s request for reinstatement. Id.
at 47-48.
The appellant filed a complaint with the Office of Special Counsel (OSC),
and, following OSC’s close-out letter on August 7, 2018, he filed an IRA appeal
with the Board. See Reilly v. Department of Labor , MSPB Docket No.
PH-1221-18-0492-W-1, Initial Appeal File, Tab 1. In that appeal, the appellant
asserted that the agency took the above-referenced actions, including declining to
reinstate him, in reprisal for his January 10, 2017 communication with the OIG
and for disclosing the alleged harassment by his supervisor to a U.S. senator. Id.
Following the appellant’s request to voluntarily withdraw the appeal, the
administrative judge in that matter issued an initial decision on January 31, 2019,
dismissing the appeal as withdrawn with prejudice. Id., Tab 11.
While that appeal was pending with the administrative judge, the appellant
filed a second complaint with OSC reiterating his claims from his first complaint
and additionally asserting that, beginning in 2018, the agency did not select him
for positions or limited the types of candidates who could apply for certain
positions to exclude him from being eligible to apply in reprisal for his
January 10, 2017 communication with OIG and February 2017 communication
with a U.S. senator. IAF, Tab 9 at 31-34. After OSC issued its close-out letter,
the appellant filed the instant appeal with the Board on November 24, 2021,
arguing that, in reprisal for his January 10, 2017 communications with OIG and
his February 2017 letter to a U.S. senator, the agency refused his request for3
reinstatement, failed to select him for one vacancy, and improperly limited the
types of candidates who could apply for three other vacancies. IAF, Tab 1 at 6,
Tab 9 at 10.
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 12, Initial Decision (ID). The appellant has filed a petition for review of the
initial decision, and the agency has responded. Petition for Review (PFR) File,
Tabs 1, 3. The appellant has replied to the agency’s response. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over an IRA appeal under the Whistleblower
Protection Enhancement Act if the appellant has exhausted his administrative
remedies before OSC and makes nonfrivolous allegations of the following: (1) he
engaged in whistleblowing activity by making a protected disclosure under
5 U.S.C. § 2302(b)(8), or engaged in protected activity described under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or 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). Edwards v. Department of
Labor, 2022 MSPB 9, ¶ 8; Salerno v. Department of the Interior , 123 M.S.P.R.
230, ¶ 5 (2016). One way to establish the contributing factor criterion is the
knowledge/timing test, under which an employee may nonfrivolously allege 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. Chambers v. Department of Homeland Security ,
2022 MSPB 8, ¶ 15; Salerno, 123 M.S.P.R. 230, ¶ 13.
In the initial decision, the administrative judge found that the appellant
exhausted his administrative remedy with respect to two of the four vacancy
announcements enumerated by the appellant in his Board appeal: Vacancy4
Announcement No. MS-19-HRC-SC-016, for which the appellant asserted he was
not selected, and Vacancy Announcement No. MS-19-OIG-OSI-13, for which the
appellant asserted the agency limited the types of candidates who could apply to
exclude him.2 ID at 6-7. The administrative judge further found that, although
the appellant nonfrivolously alleged that he engaged in protected activity with
respect to his January 10, 2017 OIG communication and made a protected
disclosure with respect to his February 2017 communication with a U.S. senator,
he failed to nonfrivolously allege that the disclosure or activity was a contributing
factor in a personnel action. ID at 7-10. Finally, he found that the appellant’s
allegation that the agency refused to reinstate him in reprisal for his disclosures
or activity was barred under the doctrine of res judicata based on his prior Board
appeal.3 ID at 11.
Specifically, regarding the contributing factor element, the administrative
judge found that the appellant failed to nonfrivolously allege that his February
2017 disclosure to a U.S. senator was a contributing factor in the agency’s actions
regarding the two vacancies because the appellant did not allege that any agency
official responsible for his nonselection for Vacancy Announcement No.
MS-19-HRC-SC-016 or the structuring of the eligibility criteria in Vacancy
Announcement No. MS-19-OIG-OSI-13 to exclude the appellant had knowledge
of the disclosure. ID at 9. Regarding the appellant’s January 2017
2 The appellant does not dispute the administrative judge’s finding that he only
exhausted two of the four vacancies. Rather, he indicates on review that he has since
exhausted the remaining vacancies with OSC and that he has filed another IRA appeal
concerning those vacancy announcements. PFR File, Tab 4 at 5-6. An administrative
judge dismissed that other IRA appeal without prejudice in an initial decision. Reilly v.
Department of Labor , MSPB Docket No. DC-1221-22-0531-W-2, Initial Decision
(Dec. 20, 2023). The appellant subsequently petitioned the U.S. Court of Appeals for
the Fourth Circuit for review. Reilly v. Merit Systems Protection Board , No. 24-1240
(4th Cir. pet. for review filed Mar. 21, 2024).
3 The appellant has not challenged this finding on review, and we discern no basis to
disturb it. See Brown v. Department of the Navy , 102 M.S.P.R. 377, ¶ 10 (2006 )
(finding that a dismissal with prejudice based on a withdrawal of an appeal generally is
considered a final decision, and relitigating such an appeal is barred by res judicata). 5
communication with the OIG, the administrative judge found that the official
responsible for the nonselection for Vacancy Announcement No.
MS-19-HRC-SC-016 did not have knowledge of the appellant’s communication
with OIG, and that the appellant therefore failed to nonfrivolously allege the
contributing factor element. Id. Finally, the administrative judge found that,
although the appellant nonfrivolously alleged that the agency official responsible
for structuring Vacancy Announcement No. MS-19-OIG-OSI-13 in a way that
precluded the appellant’s application had knowledge of the appellant’s January
2017 OIG activity, that vacancy announcement was issued 2 years after the OIG
communication, which the administrative judge concluded “is generally too
lengthy a time to satisfy the timing element.” ID at 10. He also concluded that
the vacancy announcement did “not appear to be part of a continuum of related
personnel actions” that began in closer proximity to the alleged protected activity.
Id.; see Agoranos v. Department of Justice , 119 M.S.P.R. 498, ¶ 23 (2013)
(reasoning that, for jurisdictional purposes, the timing component of the
knowledge/timing test may be satisfied when the agency engaged in a continuum
of related personnel actions that began shortly after the appellant’s alleged
disclosure or activity). Accordingly, he found that the appellant failed to
nonfrivolously allege the contributing factor element in this regard. ID at 10.
On review, the appellant only challenges the administrative judge’s finding
that he failed to nonfrivolously allege that his January 2017 OIG activity was a
contributing factor in the agency’s decision to limit the types of applicants who
could apply to Vacancy Announcement No. MS-19-OIG-OSI-13.4 PFR File,
4 We agree with the administrative judge that the appellant’s allegation that he disclosed
information to the agency’s OIG constitutes a nonfrivolous allegation of protected
activity under 5 U.S.C. § 2302(b)(9)(C). ID at 8. Regarding the appellant’s alleged
February 2017 disclosure to a U.S. senator, such a disclosure only became protected
under 5 U.S.C. § 2302(b)(8)(C) following the passage of the National Defense
Authorization Act for Fiscal Year 2020 and is otherwise only protected when it includes
allegations of wrongdoing that the employee 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 or safety. See Pub. L.6
Tab 1 at 11-15. Specifically, he disagrees with the administrative judge’s
discussion regarding the continuum of personnel actions, arguing that the agency
began to engage in reprisal against him within 6 months of his January 2017 OIG
activity when it restricted his ability to carry a firearm, required him to submit to
a fitness for duty examination, failed to support his OWCP claims, proposed his
removal for medical inability to perform his duties, and refused to reinstate him.
Id. Thus, based on an alleged continuum of related activity, he argues that he met
the timing prong of the knowledge/timing test.
We need not decide whether the administrative judge erred with respect to
whether the appellant nonfrivolously alleged a continuum of retaliatory actions
because we otherwise find that the appellant nonfrivolously alleged that the
agency issued Vacancy Announcement No. MS-19-OIG-OSI-13 within such a
time that a reasonable person could conclude that his January 2017 OIG activity
was a contributing factor to that action. Indeed, the appellant contacted OIG in
January 2017, and the agency issued the vacancy announcement in early January
2019—2 years after his alleged protected activity. IAF, Tab 9 at 50-51. The
Board has consistently found that personnel actions that occur within 1 -2 years of
an alleged protected disclosure or activity satisfy the timing prong of the
knowledge/timing test. See Salazar v. Department of Veterans Affairs,
No. 116-92, § 5721, 133 Stat. 1198, 2175 (2019). We need not determine whether this
provision is retroactive or whether the appellant’s disclosure involved allegations of
such wrongdoing, thereby making it protected, because, as explained below, we
otherwise agree that he failed to nonfrivolously allege that the disclosure was a
contributing factor to a personnel action. Similarly, we discern no error in the
administrative judge’s implicit finding that the appellant nonfrivolously alleged that the
nonselection for Vacancy Announcement No. MS-19-HRC-SC-016 and the agency’s
structuring of eligibility criteria in Vacancy Announcement No. MS-19-OIG-OSI-13
constitute personnel actions under 5 U.S.C. § 2302(a)(2)(A). See Weed v. Social
Security Administration , 113 M.S.P.R. 221, ¶¶ 13-17 (2010) (reasoning that an agency’s
use of a particular hiring process as a part of a scheme that would deny a whistleblower
the opportunity to seek an appointment constitutes a personnel action); Reeves v.
Department of the Army , 99 M.S.P.R. 153, ¶ 15 (2005) (explaining that a nonselection
is a personnel action for purposes of the whistleblower protection statutes).
Accordingly, these findings remain undisturbed upon remand. 7
2022 MSPB 42, ¶ 32; Wilson v. Department of Veterans Affairs , 2022 MSPB 7,
¶ 41; Salerno, 123 M.S.P.R. 230, ¶ 14; Mastrullo v. Department of Labor ,
123 M.S.P.R. 110, ¶ 21 (2015); Schnell v. Department of the Army , 114 M.S.P.R.
83, ¶ 22 (2010). Therefore, we find that the appellant nonfrivolously alleged the
timing prong of the knowledge/timing test.5 Because we agree with the
administrative judge that the appellant nonfrivolously alleged that the agency
official responsible for limiting the types of applicants who could apply for the
vacancy had knowledge of his OIG activity, ID at 10; IAF, Tab 9 at 11-12,
118-19, we conclude that the appellant nonfrivolously alleged both components of
the knowledge/timing test, thereby nonfrivolously alleging that his January 2017
OIG activity was a contributing factor in the agency’s decision to effectively
exclude him from the application pool for Vacancy Announcement No.
MS-19-OIG-OSI-13. See Chambers, 2022 MSPB 8, ¶ 15. Based on the
foregoing, we find that the Board has jurisdiction over this claim, and we remand
this appeal for a hearing on the merits.6 See Graves v. Department of Veterans
5 Because we find that the appellant met the timing prong of the knowledge/timing test
based on the initial communication with OIG, we need not address his argument on
review that his attorneys’ subsequent communications with OIG should control the
timing analysis. PFR File, Tab 1 at 16.
6 Regarding the administrative judge’s other findings that the appellant failed to
nonfrivolously allege that his February 2017 disclosure to a U.S. senator was a
contributing factor to either alleged personnel action, or that his January 2017 OIG
activity was a contributing factor in his nonselection for Vacancy Announcement
No. MS-19-HRC-SC-016, the administrative judge’s analyses for those findings appear
to be based on the appellant’s failure to nonfrivolously allege knowledge on the part of
a relevant agency official of the protected disclosure and activity, and thus, his failure
to meet the knowledge/timing test. ID at 9. However, the knowledge/timing test is not
the only way to satisfy the contributing factor standard. Dorney v. Department of the
Army, 117 M.S.P.R. 480, ¶ 14 (2012). Other relevant evidence includes 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 these individuals had a desire or motive to retaliate against the
appellant. Id., ¶ 15. The appellant has not alleged that his February 2017 disclosure to
a U.S. senator implicated any of the relevant agency officials or that the agency
officials responsible for either alleged personnel action had any desire or motive to
retaliate against the appellant. Additionally, the appellant has not alleged that the
agency’s reasons for not selecting him for one of the vacancy announcements and8
Affairs, 123 M.S.P.R. 434, ¶ 22 (2016) (explaining that an appellant is entitled to
a hearing on the merits if, after exhausting his remedy with OSC, he makes
nonfrivolous allegations that he engaged in protected activity that was a
contributing factor in a personnel action).
ORDER
For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
limiting the types of candidates who could apply for the other were particularly weak.
Accordingly, we ultimately agree with the administrative judge that the appellant failed
to nonfrivolously allege contributing factor with respect to these claims. 9 | Reilly_Keith_M_DC-1221-22-0093-W-1__Remand_Order.pdf | 2024-04-24 | KEITH REILLY v. DEPARTMENT OF LABOR, MSPB Docket No. DC-1221-22-0093-W-1, April 24, 2024 | DC-1221-22-0093-W-1 | NP |
1,670 | https://www.mspb.gov/decisions/nonprecedential/Burl_JoAnnCH-0752-10-0610-C-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOANN BURL,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
CH-0752-10-0610-C-1
DATE: April 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
JoAnn Burl , Abilene, Texas, pro se.
Daniel T. Raposa , Esquire, Des Plaines, Illinois, 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 her petition for enforcement.2 Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2 The appellant has also submitted a reply to the agency’s response to her petition for
review. Compliance Petition for Review File, Tabs 6-7. As discussed herein, the
appellant’s reply does not compel a different outcome; accordingly, we need not address
the timeliness of her reply.
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2We have considered all of the appellant’s assertions on review; however, we
find that none provides a basis to disturb the administrative judge’s conclusion
that, although the agency materially breached the terms of the parties’ settlement
agreement, it has since cured the breach, thereby rendering the appellant’s
petition for enforcement moot. Compliance Petition for Review (CPFR) File,
Tabs 1, 6; Compliance File, Tab 28, Compliance Initial Decision (CID) at 4-9; see
Bables v. Department of the Army , 86 M.S.P.R. 178, ¶¶ 19-20 (2000) (reasoning
that the appellant’s petition for enforcement was moot despite the agency’s
delayed compliance with a term of the parties’ settlement agreement because
there was no further corrective action that the Board could order). For example,
the appellant raises discovery issues on review, CPFR File, Tab 1 at 11-12;
however, these claims are unavailing because she did not file a motion to compel
before the administrative judge, see Szejner v. Office of Personnel Management ,
99 M.S.P.R. 275, ¶ 5 (2005) (stating that, if an appellant fails to file a motion to
compel before the administrative judge, the appellant is precluded from raising
discovery issues for the first time on review), aff’d, 167 F. App’x 217 (Fed. Cir.
2006). Moreover, the appellant does not explain how any alleged discovery2
issues would have resulted in a different outcome. To the extent the appellant
reasserts that the agency failed to correct her time and attendance records , CPFR
File, Tab 1 at 6, we discern no basis to disturb the administrative judge’s
conclusion that the settlement agreement did not address any such requirement,
CID at 9-10 & n.5; see Belmont v. U.S. Postal Service , 109 M.S.P.R. 505, ¶ 8
(2008) (declining to address an appellant’s claim that the agency owed him
annual leave because the underlying settlement agreement did not address the
issue). In any event, the appellant’s argument regarding her attendance records is
unclear. 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) . Lastly,
to the extent the appellant raises a claim of discrimination or retaliation, CPFR
File, Tab 6 at 4, 6, the Board is unable to consider such a claim in a compliance
proceeding, see King v. Reid, 59 F.3d 1215, 1218 -19 (Fed. Cir. 1995).
¶3Accordingly, 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
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
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 | Burl_JoAnnCH-0752-10-0610-C-1__Final_Order.pdf | 752-10-06 | JOANN BURL v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. CH-0752-10-0610-C-1, April 24, 2024 | CH-0752-10-0610-C-1 | NP |
1,671 | https://www.mspb.gov/decisions/nonprecedential/Shaw_David_R_DE-3330-18-0231-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID R. SHAW,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-3330-18-0231-I-1
DATE: April 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David R. Shaw , Wichita, Kansas, pro se.
Zane P. Schmeeckle , Kansas City, 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
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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to incorporate the Board’s finding in Oram v. Department of
Homeland Security , 2022 MSPB 30, into the initial decision’s analysis of the
opportunity-to-compete provision in 5 U.S.C. § 3304(f), and to address the
appellant’s claim as to the rating and ranking of applications, we AFFIRM the
initial decision.
BACKGROUND
The appellant is a preference-eligible veteran and was appointed to a
career-conditional appointment as a GS -12 IT Specialist (INFOSEC), effective
July 1, 2012. Initial Appeal File (IAF), Tab 7 at 33. The agency posted a
vacancy announcement for a competitive-service GS-13 IT Specialist (INFOSEC)
position, which was open from January 3 to 4, 2018. Id. at 15, 24-32.
The announcement identified the appointment type as permanent and stated that
the position was open to the public. Id. at 25. The announcement also indicated
that the position was being filled through “the Office of Personnel Management’s
(OPM) Government-Wide Direct-Hire Authority” and that, while traditional
veterans’ preference rules did not apply, qualified veterans would be given full
consideration for the position. Id. at 26, 29. The appellant did not apply to the
vacancy. IAF, Tab 1 at 5.
3
Subsequently, the appellant filed a VEOA complaint with the Department
of Labor (DOL). Id. at 7-10. After exhausting his remedies with DOL, id.
at 11-12, the appellant filed a Board appeal in which he argued that the agency
violated his veterans’ preference rights by not allowing him to apply and compete
for the job announcement in violation of his right to compete under 5 U.S.C.
§ 3304(f)(1).2 Id. at 1, 5. He requested a hearing. Id. at 2.
The administrative judge issued an order finding Board jurisdiction over
the appellant’s allegation that he was denied the opportunity to compete under
5 U.S.C. § 3304(f). IAF, Tab 8 at 1. The administrative judge determined that
there was no genuine dispute of material fact, and the appeal could be adjudicated
without a hearing. IAF, Tab 10.
Based on the written record, the administrative judge issued an initial
decision denying the appellant’s request for corrective action under VEOA. IAF,
Tab 11, Initial Decision (ID). He found that the appellant established that he had
exhausted his remedy with DOL; there was no dispute that he was a veteran
within the meaning of 5 U.S.C. § 3304(f)(1); and he established that the action
challenged took place after December 10, 2004. ID at 3-4. He further found that
neither 5 U.S.C. § 3304(f)(1), nor any other law or regulation related to veterans’
preference, was violated because the appellant had the opportunity to compete for
the vacancy, even though he did not submit an application before the vacancy
closed. ID at 5.
The appellant timely filed a petition for review.3 Petition for Review (PFR)
File, Tab 1. The agency filed a response to the petition. PFR File, Tab 3.
2 During the adjudication of this VEOA appeal, the appellant seemed to raise an
employment practices claim, which the administrative judge docketed as a
separate appeal. See Shaw v. Department of Veterans Affairs , MSPB Docket No.
DE-300A-18-0232-I-1.
3 The petition for review also contains the appellant’s arguments for his employment
practices appeal which we address in our decision in that separate appeal. See Shaw v.
Department of Veterans Affairs , MSPB Docket No. DE-300A-18-0232-I-1.
4
DISCUSSION OF ARGUMENTS ON REVIEW
In Kerner v. Department of the Interior , 778 F.3d 1336 (Fed. Cir. 2015),
the U.S. Court of Appeals for the Federal Circuit determined that the
opportunity-to-compete provision in 5 U.S.C. § 3304(f) is not applicable to a
veteran who is already employed in the Federal civil service. Kerner, 778 F.3d
at 1338-39. Here, it is undisputed that the appellant is a current Federal
employee with the agency. IAF, Tab 7 at 23, 33. Therefore, he is not entitled to
recovery on his claim as a matter of law. Oram v. Department of Homeland
Security, 2022 MSPB 30, ¶ 17; see Haasz v. Department of Veterans Affairs ,
108 M.S.P.R. 349, ¶ 9 (2008) (holding that the Board has authority to decide a
VEOA appeal on the merits, without holding a hearing, when one party is entitled
to prevail as a matter of law). Accordingly, we affirm the administrative judge’s
denial of corrective action, as modified to reflect that the basis for doing so is the
appellant’s status as a Federal employee.
On review, the appellant again contends that the agency’s use of direct-hire
authority violated his veterans’ preference rights. PFR File, Tab 1 at 4; IAF,
Tab 1 at 5. The administrative judge did not address this claim. It is undisputed
that the agency advertised the IT Specialist position under OPM’s Direct Hiring
Authority. IAF, Tab 7 at 26. When an agency exercises direct-hire authority
pursuant to 5 U.S.C. § 3304(a)(3), it is exempted from the provisions of
sections 3309 through 3318. These include the provisions regarding the rating
and ranking advantages for certain veterans to which the appellant seems to be
alluding. See 5 U.S.C. §§ 3309, 3313. Thus, the appellant’s claim is not a basis
for granting corrective action under VEOA. Furthermore, as the administrative
judge observed, although the appellant argues that the vacancy should have
remained open to give him an opportunity to apply, 5 U.S.C. §3304(f)(3)
explicitly provides that “[t]his subsection shall not be construed to confer an
entitlement to veterans’ preference that is not otherwise required by law.” ID
5
at 5. Thus, because the agency advertised the vacancy under direct-hire authority,
the appellant is unable to establish a violation under VEOA on this basis.
Accordingly, we affirm the administrative judge’s denial of the appellant’s
request for corrective action.
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
7
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
8
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
9
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Shaw_David_R_DE-3330-18-0231-I-1__Final_Order.pdf | 2024-04-24 | DAVID R. SHAW v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-3330-18-0231-I-1, April 24, 2024 | DE-3330-18-0231-I-1 | NP |
1,672 | https://www.mspb.gov/decisions/nonprecedential/Smith_William_C_DC-0752-18-0003-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM C. SMITH,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-0752-18-0003-I-1
DATE: April 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kevin Crayon, Jr. , Esquire, Kennesaw, Georgia, for the appellant.
Laura T. Geigel , Esquire, and Sarah I. Grafton , Esquire, Arlington,
Virginia, for the agency.
Michael W. Gaches , Esquire, Springfield, Virginia, for the agency.
Steven J. Lewengrub , 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
sustained his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. For the reasons set forth below, we
VACATE the initial decision and DISMISS the appeal for lack of jurisdiction.
BACKGROUND
The Department of Homeland Security removed the appellant from the
excepted service position of SV-0301-J Supervisory Program Specialist with the
Transportation Security Administration (TSA), effective February 20, 2017.
Initial Appeal File (IAF), Tab 6 at 34-44. The appellant filed an equal
employment opportunity (EEO) complaint with the agency’s Office for Civil
Rights and Civil Liberties and, on September 1, 2017, the agency issued a Final
Agency Decision finding no discrimination. IAF, Tab 1 at 28-36. This appeal
followed. The administrative judge adjudicated the appeal on the merits and
affirmed the agency’s action. IAF, Tab 32. The appellant filed a petition for
review. Petition for Review (PFR) File, Tab 1.
Notwithstanding the administrative judge’s adjudication of the merits of the
appeal, the issue of jurisdiction is always before the Board and may be raised at
any time in a Board proceeding. Ney v. Department of Commerce, 115 M.S.P.R.
204, ¶ 7 (2010). The Board’s jurisdiction is limited to those matters over which it2
has been given jurisdiction by law, rule or regulation. See Maddox v. Merit
Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985).
Here, because the appellant worked for the TSA, the Aviation and
Transportation Security Act (ATSA) applies to this case. See Wilson v.
Department of Homeland Security, 122 M.S.P.R. 262 , ¶ 3 (2015). Under the
ATSA, TSA employees are covered by the personnel management system that is
applicable to employees of the Federal Aviation Administration (FAA), except to
the extent that the Administrator for TSA modifies that system. Id. Pursuant to
the FAA system, individuals who meet the definition of an “employee” under
5 U.S.C. § 7511(a)(1) generally are entitled to appeal adverse actions to the
Board. Id.
Under 5 U.S.C. § 7511(a)(1)(C)(ii), an individual in the excepted service
(other than a preference eligible) who has completed 2 years of current
continuous service in the same or similar positions in an Executive agency under
other than a temporary appointment limited to 2 years or less is an employee with
Board appeal rights. See 5 C.F.R. § 752.401(c)(5). Similarly, under the agency’s
regulations, TSA Handbook to Management Directive 1100.75–3, Addressing
Unacceptable Performance and Conduct, § J(2)(b) (Feb. 12, 2014), a
Non-Transportation Security Officer (TSO) employee who is not preference
eligible may appeal to the Board only if he has at least 2 years of current
continuous service in the same or similar position. IAF, Tab 8 at 75, 96.
The appellant, a non-TSO who is not preference eligible, was promoted to
the excepted service SV-0301-J Supervisory Program Specialist position from a
SV-0343-I Program Analyst position, effective July 26, 2015. IAF, Tab 8 at 35;
PFR File, Tab 5 at 30. He was indefinitely suspended effective June 29, 2016,
IAF, Tab 8 at 10, and his removal was effected on February 20, 2017, IAF, Tab 6
at 34. Therefore, even if all of the time between June 29, 2016,
and February 20, 2017, when the appellant was in a nonpay status, is credited to
his completion of the required 2 years in the same or similar position, he lacks3
2 years of current continuous service in the Supervisory Program Specialist
position. Because the record failed to establish whether the Program Analyst and
Supervisory Program Specialist positions are the same or similar, the Board was
unable to determine whether the appellant has the 2 years of current continuous
service in the same or similar position necessary to establish Board jurisdiction
over his appeal. Thus, it ordered the parties to submit evidence and argument on
the issue of whether the appellant has 2 years of current continuous service in the
same or similar position. PFR File, Tab 4. The parties have responded.
PFR File, Tabs 5, 8.
ANALYSIS
The appellant has not made a nonfrivolous allegation of jurisdiction .
Because, as noted, the appellant did not have 2 years of current continuous
service in the Supervisory Program Specialist position, the Board’s jurisdiction
over this appeal turns on whether the Program Analyst2 and Supervisory Program
Specialist positions are the same or similar for purposes of § 7511(a)(1). If they
are not, then the appellant is not an employee under § 7511(a)(1)(C)(ii) and he
2 It appears that the appellant had more than 2 years of current continuous service in the
Program Analyst position when he applied for and accepted promotion to the
Supervisory Program Specialist position and likely had Board appeal rights in the
Program Analyst position under § 7511(a)(1)(C)(ii) when he was promoted. PFR File,
Tab 5 at 13, Tab 8 at 17. In Exum v. Department of Veterans Affairs, 62 M.S.P.R. 344,
349-50 (1994), the Board held that, when an employee moves to a new position within
the same agency and forfeits his Board appeal rights as a result, the agency must inform
the employee of the effect the move will have on his appeal rights; if the employee was
unaware of the loss of Board appeal rights that would result from accepting the new
position and he would not have accepted the new position had he known of the loss of
appeal rights, he is deemed not to have accepted the new appointment and to have
retained the rights incident to his former appointment. The U.S. Court of Appeals for
the Federal Circuit has specifically disapproved of the Exum rule for intra-agency
transfers, and has held that an agency’s failure to inform an employee of the
consequences of a voluntary transfer cannot confer appeal rights on an employee in a
position which has no appeal rights by statute. Williams v. Merit Systems Protection
Board, 892 F.3d 1156, 1163 (Fed. Cir. 2018). Applying Williams, we find that the
agency had no duty to inform the appellant that his promotion to the Supervisory
Program Specialist position could cause him to lose his Board appeal rights, and its
failure to so inform the appellant cannot confer appeal rights under § 7511(a)(1)(C)(ii).4
may not appeal his removal to the Board. Alternatively, if the positions are the
same or similar, then the appellant qualifies as an employee under subsection (C)
(ii) and establishes his right of appeal. See Van Wersch v. Department of Health
& Human Services, 197 F.3d 1144, 1151 (Fed. Cir. 1999).
The regulations implementing 5 U.S.C. chapter 75, subchapter II, define
“similar positions” as “positions in which the duties performed are similar in
nature and character and require substantially the same or similar qualifications,
so that the incumbent could be interchanged between the positions without
significant training or undue interruption to the work.” 5 C.F.R. § 752.402.
Moreover, positions may be deemed “similar” if they are in the “same line of
work,” which has been interpreted as involving “related or comparable work that
requires the same or similar skills.” Mathis v. U.S. Postal Service, 865 F.2d
232, 234 (Fed. Cir. 1988). Our reviewing court has interpreted such language to
mean that positions are similar “if experience in [one] position demonstrates the
knowledge, skills, and abilities required to perform the work of the other job.”
Coradeschi v. Department of Homeland Security, 439 F.3d 1329, 1333 (Fed. Cir.
2006); accord Mathis, 865 F.2d at 234; Spillers v. U.S. Postal Service,
65 M.S.P.R. 22, 26 (1994). In conducting this analysis, the Board must focus on
the employee’s actual duties and the work actually performed. Maibaum v.
Department of Veterans Affairs, 116 M.S.P.R. 234, ¶ 15 (2011). In determining
whether positions are the “same or similar,” a careful job analysis of the two
positions in question, not the job titles, must be made. Shobe v. U.S. Postal
Service, 5 M.S.P.R. 466, 471 (1981). The Board will consider the totality of the
circumstances in making its determination. Pagan v. U.S. Postal Service,
111 M.S.P.R. 212, ¶ 6 (2009).
In his response to the Show Cause Order, the appellant asserts that the
positions in question are the same or similar. In support of his assertion, he
submits an affidavit comparing his duties as a Program Analyst documenting the
EEO process and his duties as a Supervisory Program Specialist documenting the5
“Redress” process, and states that he had prior supervisory experience and would
not have been selected if the two positions were not similar. PFR File, Tab 5
at 13-16. He contends that there was no meaningful difference in the supervisory
duties of the positions because his Program Analyst position involved team
leadership roles. Id. at 16. He also submits the following: excerpts from
Position Classification Standards guidance highlighting the definition of the term
“series,” id. at 17-19; his application for the Supervisory Program Specialist
position, which emphasized his prior supervisory experience, id. at 20-24; a
Salary Increase Justification form, id. at 25; excerpts from the Handbook of
Occupational Groups and Families, describing series 0343 and 0301, id. at 26-29;
a 2015 appraisal form for the Program Analyst position, id. at 30-38; and a 2016
appraisal form for the Supervisory Program Specialist position, id. at 39-49.
The Program Analyst position is in the 0343 series. The Handbook of
Occupational Groups and Families, issued by the Office of Personnel
Management (OPM) and dated December 2018, describes the 0343 Management
and Program Analysis series as follows:
This series covers positions that primarily serve as analysts and
advisors to management on the evaluation of the effectiveness of
government programs and operations or the productivity and
efficiency of the management of Federal agencies or both. Positions
in this series require knowledge of: the substantive nature of agency
programs and activities; agency missions, policies, and objectives;
management principles and processes; and the analytical and
evaluative methods and techniques for assessing program
development or execution and improving organizational
effectiveness and efficiency. Some positions also require an
understanding of basic budgetary and financial management
principles and techniques as they relate to long range planning of
programs and objectives. The work requires skill in: application of
fact-finding and investigative techniques; oral and written
communications; and development of presentations and reports.
Id. at 29.6
The Supervisory Program Specialist position is in the 0301 series. OPM’s
Handbook describes the 0301 Miscellaneous Administration and Program Series
as follows:
This series covers positions the duties of which are to perform,
supervise, or manage two-grade interval administrative or program
work for which no other series is appropriate. The work requires
analytical ability, judgment, discretion, and knowledge of a
substantial body of administrative or program principles, concepts,
policies, and objectives.
Id. at 28.
OPM’s Handbook thus describes the two series very differently.
The appellant argues, however, that because both the Program Analyst and
Supervisory Program Specialist positions are in the “300 series,” they are similar.
However, the appellant’s evidence does not support that assertion. Classification
standards define “series” as a subdivision of an occupational group consisting of
positions similar as to specialized line of work and qualification requirements.
Id. at 18. Those standards define “occupational group” as a major subdivision of
the General Schedule, embracing a group of associated or related occupations;
e.g., the Accounting and Budget Group, GS−500; the Engineering and
Architecture Group, GS−800; the General Administrative, Clerical, and Office
Services Group, GS−300. Id. Thus, although the Program Analyst and
Supervisory Program Specialist are in the same 300 “occupational group,”
contrary to the appellant’s assertion, they are not in the same series.
Therefore, although the appellant’s submissions show that the Program Analyst
and Supervisory Program Specialist positions may be “associated or related,”
those submissions do not constitute a nonfrivolous allegation that they are
“similar.”
A comparison of the appellant’s 2015 appraisal form for the Program
Analyst position, id. at 30-38, and his 2016 appraisal form for the Supervisory
Program Specialist position, id. at 39-49, shows that the Program Analyst position7
is in the I Band, has no requirement for a security clearance, and has six Core
Competencies as follows:
1. Accomplishes high volumes of work with daily and long term
priorities. Shifts among job tasks with competing priorities.
Operates within project deadlines;
2. Welcomes change and new information, ideas, and strategies.
Adapts work methods in response to new information, unexpected
obstacles, and changing conditions. Adjusts rapidly to new
situations warranting attention and resolution. Develops
contingency plans to ensure objectives can be met.
3. Applies policies, directives, and regulations that relate to TSA
operations and programs when making decisions. Ensures that
activities, services, or products reflect organizational goals and
objectives. Adjusts priorities to respond to pressing and changing
needs. Adapts work methods in response to new information and
changing conditions.
4. Identifies the existence of problems that impede accomplishing
tasks. Researches the cause of problems and offers a variety of
solutions to resolve problems. Explores new ways to accomplish
tasks. Implements solutions to problems to ensure completion of
affected tasks.
5. Listens actively and attends to non-verbal cues when
communicating with others. Provides information on products,
services, resources, or opportunities, as applicable. Explains,
defends, or justifies decisions, recommendations, and findings.
Discusses results, problems, plans, suggestions, terms, or
conditions with others. Persuades others to take a particular
course of action or to accept findings and recommendations. Acts
effectively as a liaison between work unit and customers.
Prepares reports, briefs, and studies. Explains technical or other
complex information.
6. Uses a variety of job-specific software systems and databases.
Verifies the accuracy of the data captured and transcribed.
Processes forms, records, documents, or other materials.
Collects, compiles, organizes, and transfers electronic
information. Reviews reports, documents, or other materials to
verify correctness, compliance, or authenticity. Searches for and
extracts information from data repositories, file servers, Internet,
reports, and publications. Remains current on developments,
technologies, and work practices. Acquires and develops new job8
skills and knowledge. Applies and maintains specialized job
skills and knowledge.
Id. at 31-33.
The Supervisory Program Specialist position, also referred to as a Redress
Operations Manager, is in the J Band, requires a secret security clearance,
IAF, Tab 8 at 23-29, and the performance plan for the position has seven core
competencies, PFR File, Tab 5 at 41-45. Of these core competencies, the first
four are identical to those of the Program Analyst position. The fifth is similar.
However, it also provides that the incumbent explains and defends management's
policies or practices. Id. at 43.
The sixth and seventh core competencies for the Supervisory Program
Specialist are wholly different from the core competencies for the Program
Analyst position. The sixth provides as follows:
Formulates effective strategies consistent with the agency's
organizational goals and objectives. Determines resource
requirements based on program objectives and operational needs.
Uses metrics and other data as part of the evaluative process to
identify problems and propose solutions. Adheres to, and
integrates knowledge of, all relevant directives and regulations to
address issues and resolve problems. Reviews and analyzes
programs, operational results, and policy to identify potential
areas of improvement.
Id. at 44. The seventh core competency provides as follows:
Creates a positive work environment by encouraging mutual
respect, communication, and innovation and manages conflict
constructively. Organizes and facilitates teams skillfully to
accomplish mutual goals. Administers performance management
responsibilities including completion of performance plans and
ratings, provision of meaningful feedback, and taking appropriate
measures to address performance and conduct issues. Involves
team members in decisions and problem solving. Communicates
information on performance, work status, changes, issues, and
results effectively. Leads, develops, and manages a high
performing, diverse workforce, ensuring employment practices
are administered in a fair and equitable manner. Promotes and
fosters an inclusive workplace where diversity is valued and9
leveraged to achieve the vision and mission of the organization.
Recruits, hires, transitions into Federal service, and retains
qualified employees, as applicable. Access, critically analyze,
evaluate and apply risk information to the decision making
process in support of organizational goals and objectives.
Id. at 45. These core competencies3 show material differences between the two
positions in that the Supervisory Program Specialist position has full supervisory
and managerial responsibilities while the Program Analyst position has none.
The appellant asserts that he has supervisory experience. We do not question his
assertion that he has such experience; however, he has not established that he
acquired supervisory experience in the Program Analyst position. In order for the
positions to be the same or similar, the appellant must show that both have the
same or similar supervisory and managerial responsibilities. The appellant’s
submission of his application for the Supervisory Program Specialist position
emphasizes the appellant’s prior supervisory experience, showing the importance
of that experience to the Supervisory Program Specialist position.
In his affidavit, the appellant states that he worked on a detail for the
Office of Civil Rights on loan from the Atlanta Airport Federal Security Airport
Staff. Id. at 14-15. He asserts that on that detail he documented the EEO process
as a Program Analyst. Id. He explains that the purpose of the process flow was
to determine the flow of hand-offs and decision points. Id. It included
processing time for each step. The process flow diagram depicted actions from
application submittal process to hearing. Id. Also, costs were determined for
each step to determine where most of the costs were being incurred in the TSA
process. Id. He argues that, similarly, in the Supervisory Program Specialist
Position, he documented the Redress process, interviewing employees and the
Director in order to “determine all steps” of the Redress process. Id. However,
the detail position was not that from which the appellant was promoted, and thus
3 Although the appraisal forms set forth the core competencies for the respective
positions, the appellant has not submitted positions descriptions or other documents
showing the duties and responsibilities of the positions.10
the duties described in that position would not establish that his Program Analyst
and Supervisory Program Specialist positions were the same or similar.
See Wafford v. U.S. Postal Service, 34 M.S.P.R. 691, 693-94 (1987); White v.
U.S. Postal Service, 34 M.S.P.R. 687, 690 (1987).
In sum, the appellant has failed through his submissions to make a
nonfrivolous allegation that the Program Analyst position, which has no
supervisory or managerial duties and is in the I Band and the 0343 series,
is similar to the Supervisory Program Specialist position in the J Band and the
0301 series, with its supervisory and managerial responsibilities.4 The appellant
has failed to nonfrivolously allege that the positions have duties that are similar
in nature and character and require substantially the same or similar
qualifications, so that the incumbent could be interchanged between the positions
without significant training or undue interruption to the work. See 5 C.F.R.
§ 752.402. The appellant has failed to make a nonfrivolous allegation that
experience in the Program Analyst position demonstrates the knowledge, skills,
and abilities required to perform the work of the Supervisory Program Specialist
position. See Coradeschi, 439 F.3d at 1333.5
4 The appellant relies on Martinez v. Department of Homeland Security, 118 M.S.P.R.
154 (2012), Sandoval v. Department of Agriculture, 115 M.S.P.R. 71 (2010), and a
nonprecedential Board Order in support of his arguments. We find that Martinez and
Sandoval are distinguishable because, among other things, they did not involve a
comparison of supervisory and non-supervisory positions. Moreover, nonprecedential
orders generally are not binding on the Board. 5 C.F.R. § 1201.117(c)(2).
5 To establish whether two positions are the same or similar for the purposes of 5 U.S.C.
§ 7511, the Board also looks to whether the positions are in the same competitive level
for reduction in force purposes. Beets v. Department of Homeland Security,
98 M.S.P.R. 451, 455 (2005); Spillers, 65 M.S.P.R. at 26. Positions are in the same
competitive level if they: (1) are in the same grade or pay scale; (2) are in the same
classification series; (3) have similar duties; and (4) require the same skills and
qualifications. See Spillers, 65 M.S.P.R. at 26. The appellant does not assert that the
Program Analyst and Supervisory Program Special positions are in the same
competitive level. We note, however, that the two positions are in different pay bands,
in different classification series, and as explained have different duties, suggesting that
they are not in the same competitive level. 11
Accordingly, we find that the appellant has failed to make a nonfrivolous
allegation that he is an individual in the excepted service who has completed
2 years of current continuous service in the same or similar positions in an
executive agency. Thus, he has failed to make a nonfrivolous allegation that he is
an employee under 5 U.S.C. § 7511(a)(1)(C)(ii)6 with appeal rights to the Board.
We dismiss his appeal of his removal for lack of jurisdiction.7
NOTICE OF APPEAL RIGHTS8
This is 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
6 In his reply, the appellant incorrectly assumes that he qualifies as an employee under
5 U.S.C. § 7511(a)(1)(C)(i). PFR File, Tab 5 at 4 n.1. It is undisputed, however, that
the appellant had permanent status in the excepted service and was never under an
initial appointment pending conversion to the competitive service in either position.
Accordingly, 5 U.S.C. § 7511(a)(1)(C)(i) does not apply here. See Pennington v.
Department of Veterans Affairs, 57 M.S.P.R. 8, 9-11 (1993).
7 The appellant requests that, if the Board dismisses his appeal for lack of jurisdiction,
the Board remand his “mixed case for unmixed processing pursuant to 29 C.F.R.
§ 1614.302(b) . . . .” PFR File, Tab 5 at 11. Section 1614.302(b) provides that, if a
person files a timely appeal with the Board from the agency’s processing of a
mixed-case complaint and the Board dismisses it for jurisdictional reasons, the agency
shall reissue a notice giving the individual the right to elect between a hearing before an
administrative judge and an immediate final decision. The appellant has identified no
provision under which the Board must “remand” an appeal for processing as a
non-mixed case.
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. 12
applicable to your claims and carefully follow all filing time limits and
requirements. Failure to file within the applicable time limit may result in the
dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 13
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 14
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. The court of appeals must 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 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 | Smith_William_C_DC-0752-18-0003-I-1__Final_Order.pdf | 2024-04-24 | WILLIAM C. SMITH v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-0752-18-0003-I-1, April 24, 2024 | DC-0752-18-0003-I-1 | NP |
1,673 | https://www.mspb.gov/decisions/nonprecedential/Wolz_William_T_PH-3330-23-0031-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM WOLZ,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-3330-23-0031-I-1
DATE: April 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
William T. Wolz , Aliquippa, Pennsylvania, pro se.
Jillian Barry , Esquire, and Christine Beam , Esquire, Pittsburgh,
Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision that
dismissed his Veterans Employment Opportunities Act appeal without prejudice
to refiling. In the initial decision, the administrative judge stated that the appeal
would be refiled on his own motion on May 31, 2023. Initial Appeal File,
Tab 18, Initial Decision. As that date has passed, we decline to reach the issue 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).
whether the administrative judge abused his discretion in dismissing the appeal,
DENY the petition for review, and FORWARD this appeal to the Northeast
Regional Office for continued adjudication. See Henry v. Department of Veterans
Affairs, 110 M.S.P.R. 213, ¶¶ 6-7 (2008).
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.2
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal 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 on3
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.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) or4
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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. 5
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 | Wolz_William_T_PH-3330-23-0031-I-1__Final_Order.pdf | 2024-04-24 | WILLIAM WOLZ v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-3330-23-0031-I-1, April 24, 2024 | PH-3330-23-0031-I-1 | NP |
1,674 | https://www.mspb.gov/decisions/nonprecedential/Nunez_Julio_C_AT-0752-17-0702-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JULIO C. NUNEZ,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0752-17-0702-I-1
DATE: April 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Julio C. Nunez , Miami Beach, Florida, pro se.
Joved Gonzalez-Rivera , Esquire, Mayaguez, Puerto Rico, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
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).
2
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that 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
analyze the appellant’s allegation of discrimination under Pridgen v. Office of
Management and Budget , 2022 MSPB 31, we AFFIRM the initial decision.
BACKGROUND
The appellant was a Licensed Practical Nurse at an agency medical center
serving under an excepted-service appointment. Initial Appeal File (IAF), Tab 5
at 67. The agency proposed his removal based on the following charges:
(1) inappropriate conduct; (2) failure to timely renew his agency Privacy and
Information Security Awareness and Rules of Behavior certification; and
(3) failure to timely renew his Basic Life Support (BLS) certification. Id.
at 36-41. The appellant provided oral and written replies to his proposed
removal, and the agency sustained all the charges as specified and imposed his
removal effective August 7, 2017. Id. at 27-32.
The appellant filed a timely appeal with the Board challenging his removal
and requested a hearing. IAF, Tab 1 at 1. After conducting the hearing, the
administrative judge sustained his removal. IAF, Tab 21, Initial Decision (ID).
She found that the agency proved all three charges and their specifications, that
the appellant failed to prove his affirmative defense of race or national origin
discrimination, that there was a nexus between the appellant’s misconduct and the
efficiency of the service, and that the penalty of removal was reasonable. ID
3
at 2-17. The appellant has filed a petition for review, the agency has responded
in opposition to his petition, and the appellant has replied. Petition for Review
(PFR) File, Tabs 1, 4-5.
The administrative judge properly found that the agency proved the charges.
In the first charge, the agency specified that the appellant engaged in
inappropriate conduct when he had a loud personal conversation in a waiting
room for clients of the Disabled American Veterans (DAV) office on June 2,
2017, and he became argumentative with a DAV representative when she asked
him to leave. IAF, Tab 5 at 36. The DAV office was located within the agency
facility at which the appellant worked. Id. at 36, 43. The agency also specified
that the appellant screamed at his manager for opening his office door on May 25,
2017, refused his manager’s request to lower his voice, and continued screaming
that there were going to be problems. Id. at 36. The administrative judge found
that the agency proved by preponderant evidence that the appellant engaged in
inappropriate conduct on May 25, 2017, and on June 2, 2017, as specified. ID
at 5, 8. On review, the appellant does not challenge these findings. We find no
basis for reaching a different conclusion.
In the second charge, the agency specified that the appellant failed to renew
his agency Privacy and Information Security Awareness and Rules of Behavior
certification (cybersecurity training) prior to the expiration of his prior
certification on May 8, 2017. IAF, Tab 5 at 37. The administrative judge
considered the appellant’s argument that he took the cybersecurity training twice,
and his failure to provide evidence of completion, and found that the agency
proved the charge by preponderant evidence. ID at 9. On review, the appellant
appears to assert that he took cybersecurity training in November 2016, including
on November 9, 2016, and also argues that his May 9, 2017 training was within
the 6-month retraining period. PFR File, Tab 1 at 5. We are not persuaded by the
appellant’s argument on review.
4
Even assuming the retraining period is 6 months, as the appellant claims,
6 months from November 8, 2016, is May 8, 2017, the day prior to when the
appellant completed his training. As a result of his delay, his user account was
disabled on May 8, 2017, and he was unable to see patients that day. IAF, Tab 5
at 37, 53. In sustaining this charge, the administrative judge thoroughly
addressed the record evidence, including the hearing testimony concerning the
material issues on appeal, and provided a detailed explanation for why he found
the agency witnesses’ versions of events more credible. ID at 8 -9. The
administrative judge did not make an explicit finding that the appellant did not
take the training, as he claimed, in November 2016. Nonetheless, the
administrative judge’s determination that the agency proved the charge implicitly
discredits the appellant’s claim. Id. Because the administrative judge made his
findings after holding a hearing and observing the testimony of the appellant and
other witnesses, we defer to it. See Purifoy v. Department of Veterans Affairs ,
838 F.3d 1367, 1373 (Fed. Cir. 2016) (finding that the Board must defer to an
administrative judge’s determinations when they are “necessarily intertwined”
with an analysis of a witness’s demeanor). The appellant’s vague arguments on
review generally challenging the credibility of the agency’s witnesses are
insufficient to cause us to disturb the administrative judge’s well -reasoned
findings. Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016) (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 the issue of credibility); Broughton v. Department of Health and Human
Services, 33 M.S.P.R. 357, 359 (1987) (same).
In the third charge, the agency specified that the appellant failed to timely
renew his BLS certification. IAF, Tab 5 at 37. The administrative judge found
that the agency proved this charge by preponderant evidence. ID at 11. In
reaching this decision, the administrative judge considered the appellant’s
argument that he asked his supervisors for help completing the training required
5
to renew his certification but they would not help him. Id. The administrative
judge also considered the appellant’s supervisor’s testimony: BLS is mandatory
for anyone who works with patients; he had sent the appellant an email reminding
him of the requirement; and employees can take the training in the hospital at no
charge or with an outside provider. ID at 10; Hearing Compact Disc (HCD)
(testimony of the appellant’s supervisor). On review, the appellant does not
challenge the administrative judge’s findings. We find no basis for reaching a
different conclusion. See Haebe v. Department of Justice , 288 F.3d 1288, 1301
(Fed. Cir. 2002) (recognizing that the Board must defer to an administrative
judge’s credibility findings 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 therefore affirm the administrative judge’s finding that the agency
proved all three charges and all underlying specifications.
The administrative judge properly denied the appellant’s affirmative defense of
race and national origin discrimination.
Applying the burden-shifting standard set forth in cases such as Savage v.
Department of the Army , 122 M.S.P.R. 612 (2015), the administrative judge
found that the appellant failed to establish that his race or national origin was a
motivating factor in the agency’s removal action, ID at 14. We therefore need not
analyze whether the appellant could prove that the removal was a but-for cause of
the action, as that standard is a higher burden than motivating factor. Pridgen,
2022 MSPB 31, ¶¶ 20-22, 48; Desjardin v. U.S. Postal Service , 2023 MSPB 6,
¶ 31.
Here, the administrative judge considered the appellant’s argument that
Cuban-American employees were treated less favorably than African-American
and Caribbean employees in hiring and in attendance-related disciplinary actions,
and that only Latinos (especially Cubans) were fired. ID at 13. However, she
found the appellant’s allegations unsubstantiated. Id. In reaching her decision,
6
the administrative judge implicitly credited the agency’s witnesses’ testimony and
explanation of nondiscriminatory bases for removing the appellant and found that
the appellant’s version of events was not credible. ID at 3-11, 13-14. The
administrative judge also found that the evidence showed that he engaged in the
charged misconduct. ID at 29.
The appellant appears to suggest on review that the timing of the agency’s
actions was suspicious. PFR File, Tab 1 at 41-43. In particular, he points to the
closeness in time between the conduct that underlies his removal, beginning with
his failure to take his cybersecurity training on May 8, 2017, and the removal
itself, effective August 7, 2017. Id. We disagree that the timing here is
suspicious. Instead, it reflects the agency’s diligence in taking prompt corrective
action. We find that the administrative judge properly considered the witnesses’
testimony and the evidence as a whole in finding that the appellant failed to show
that discrimination based on race or national origin was a motivating factor in his
removal. ID at 14.
The appellant’s additional evidence and arguments on review do not provide a
reason to disturb the administrative judge’s decision to sustain his removal.
For the first time on review, the appellant asserts that the removal decision
was not in accordance with the law. PFR File, Tab 1 at 1. 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, 123 M.S.P.R. 245, ¶ 6; Banks v.
Department of the Air Force , 4 M.S.P.R. 268, 271 (1980). Here, the appellant
has not explained why this argument could not have been raised before the
7
administrative judge, and thus we need not consider it.2 See 5 C.F.R.
§ 1201.115(d).
On review, the appellant further claims that the agency’s action was based
on harmful error and reprisal for filing a Veterans Employment Opportunities Act
of 1998 complaint and whistleblowing. PFR File, Tab 1 at 1 -2, 4. He also
submits a list of alleged retaliatory actions taken against him, including but not
limited to his removal. Id. at 2. The appellant similarly did not make these
arguments before the administrative judge or explain his failure to do so;
therefore, we need not consider them either.3 See Clay, 123 M.S.P.R. 245, ¶ 6;
Banks, 4 M.S.P.R. at 271. Although unclear, the appellant appears to suggest that
his supervisors were, like him, late in taking cybersecurity training. PFR File,
Tab 1 at 4. However, he does provide any specific cites to the record or explain
his argument in a way that we can determine whether he raised it below and how
it factors into our decision here. Thus, we decline to consider it.
Moreover, at the beginning of the hearing, the administrative judge asked
the appellant if he wanted to make any additions, corrections, or objections to her
prehearing conference order, which summarized the material issues on appeal “ to
the exclusion of all others ” (emphasis in original), but he did not take advantage
2 On review, the appellant also reasserts his claim that he is appealing a negative
suitability determination. PFR File, Tab 1 at 2; IAF, Tab 1 at 2. The administrative
judge’s failure to consider this issue on appeal did not prejudice the appellant’s
substantive rights and does not require reversing the initial decision. Assuming that the
Board has jurisdiction to review a suitability action taken against the appellant, he
would be entitled to, at most, the same review he received here. See Odoh v. Office of
Personnel Management , 2022 MSPB 5, ¶¶ 15-16 (explaining that, at most, an employee
has the right to appeal a suitability determination as if it were a removal action, but
noting that the newly enacted 5 U.S.C. § 7512(F) prevented the Board from modifying a
suitability action taken by the Office of Personnel Management).
3 As proof that the agency’s action was based on harmful error, the appellant makes the
following assertions: that he was falsely accused of terrorism and someone broke into
his car on agency property; that the agency withheld evidence against him to win, such
as videos and email; that he was subjected to punishment without union representation;
that the agency lied to the unemployment office and denied his right to unemployment;
and that the agency locked up his computer so that he could not get paid. PFR File,
Tab 1 at 1, 4.
8
of that opportunity to raise these additional claims. IAF, Tab 15 at 6; Tab 20,
HCD (opening statement of the administrative judge). The appellant’s failure to
object and to make timely additions or corrections to the administrative judge’s
order setting forth the exclusive list of material issues on appeal precludes him
from doing so on review. See Miller v. U.S. Postal Service , 117 M.S.P.R.
557, ¶ 7 (2012).
The appellant refers to himself on review as a whistleblower, seemingly
based on his complaint about his manager’s alleged discriminatory hiring
practices. PFR File, Tab 1 at 2. Here, the pro se appellant may have raised a
nonspecific claim of reprisal for complaining that his manager was hiring only
Haitian and/or African-American nurses illegally. IAF, Tab 1 at 7. We construe
the appellant’s argument as a claim of equal employment opportunity (EEO)
reprisal not whistleblower reprisal. Edwards v. Department of Labor ,
2022 MSPB 9, ¶¶ 21-23, aff’d, No. 2022-1967, 2023 WL 4398002 (Fed. Cir.
July 7, 2023).4
To the extent that the appellant may have attempted to raise an affirmative
defense of EEO reprisal on appeal, which the administrative judge did not
identify or address below, we find that he has effectively waived or abandoned
this claim. In Thurman v. U.S. Postal Service , 2022 MSPB 21, ¶¶ 17-18, we
articulated relevant factors in determining whether a previously raised affirmative
defense has been effectively waived or abandoned by the appellant. These factors
include the clarity with which an appellant raised his affirmative defense,
4 During the pendency of this appeal, the National Defense Authorization Act for Fiscal
Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on
December 12, 2017. Section 1097 of the NDAA amended various provisions of Title 5
of the U.S. Code, including section 2302(b)(9)(C) to provide that, in addition to the
Inspector General of an agency or the Special Counsel, a disclosure to “any other
component responsible for internal investigation or review” is also a protected activity.
Edwards, 2022 MSPB 9, ¶ 29. However, all of the events relevant to this appeal
occurred prior to the enactment of the NDAA. The change to section 2302(b)(9)(C)
does not apply to cases arising prior to the enactment of the NDAA. Edwards,
2022 MSPB 9, ¶¶ 30-34. Accordingly, we need not decide whether the appellant
engaged in protected activity under the amendment to section 2302(b)(9)(C).
9
continued to pursue it, objected to orders that failed to identify it, and may have
been confused by misleading or incorrect information. Id., ¶ 18. The appellant’s
only reference to this reprisal claim on appeal was in a one-page submission
attached to his appeal form. IAF, Tab 1 at 7. Although he reasserts his claim of
EEO reprisal on review, he did not make a timely addition or correction to the
administrative judge’s order setting forth the exclusive list of material issues on
appeal when given the opportunity to do so at the commencement of the hearing.
PFR File, Tab 1 at 2, 29. The appellant does not argue on review that he
mistakenly believed that his EEO reprisal claim was part of what the
administrative judge identified as his discrimination claim in the prehearing
conference summary. IAF, Tab 15 at 3-6. We therefore find no reason to believe
that the apparent abandonment of this claim was the result of confusion or
misleading or incorrect information. IAF, Tab 19 at 29. Accordingly, we find
that the appellant’s EEO reprisal claim was effectively waived or abandoned.
The appellant also submits numerous documents with his petition for
review, including undated handwritten notes and documents ranging in date from
November 2016 to October 2017.5 PFR File, Tab 1 at 19-28, 31-39. The
appellant has not shown that the evidence in his submissions is new and material
or that the documents were not available prior to the close of the record despite
his due diligence. Therefore, we will not consider them. See Avansino v. U.S.
Postal Service, 3 M.S.P.R. 211, 214 (1980) (finding that, under 5 C.F.R.
§ 1201.115, the Board will not consider evidence submitted for the first time with
the petition for review absent a showing that it was unavailable before the record
was closed despite the party’s due diligence).
5 The appellant also submits several documents on review, including the Table of
Contents for the Agency’s Response to his appeal, pages from his performance
appraisals in 2015 and 2016, and a two-page statement that he submitted on appeal.
PFR File, Tab 1 at 7-19, 29-30, 41-43; IAF, Tab 1 at 7-8, 15-20, 24, Tab 5 at 4-6.
These documents are already part of the record and not new. See Easterling v. U.S.
Postal Service, 110 M.S.P.R. 41, ¶ 10 (2008) (explaining that the Board will not
consider evidence that is already part of the record because such evidence is not new).
10
The administrative judge properly addressed the agency’s chosen penalty.
When, as here, all of the charges have been sustained, the Board will
review an agency-imposed penalty only to determine if the agency considered all
of the relevant Douglas factors, and exercised management discretion within
tolerable limits of reasonableness. See Douglas v. Veterans Administration , 5
M.S.P.R. 280, 305-06 (1981) (providing a nonexhaustive list of factors relevant to
penalty determinations). In making this determination, the Board must give due
weight to the agency’s primary discretion in maintaining employee discipline and
efficiency, recognizing that the Board’s function is not to displace management’s
responsibility, but to ensure that managerial judgment has been properly
exercised. Campbell v. Department of the Army , 123 M.S.P.R. 674, ¶ 25 (2016);
Douglas, 5 M.S.P.R. at 306. The Board will modify the agency’s chosen penalty
only if it finds that the agency’s judgment clearly exceeded the limits of
reasonableness. Douglas, 5 M.S.P.R. at 306.
On review, the appellant asserts that the agency did not properly apply the
Douglas factors in determining the penalty. PFR File, Tab 1 at 1. For example,
he submits evidence and argument that his performance appraisal was fully
successful, and he claims that the agency asserted the opposite. PFR File, Tab 1
at 6-17. Contrary to the appellant’s argument on review, the record reflects that
the deciding official in the removal action considered the appellant’s successful
job performance in his Douglas factor penalty analysis. IAF, Tab 5 at 30.
Moreover, the administrative judge explicitly found that the appellant’s
acceptable work performance was a mitigating factor but agreed with the deciding
official that removal was warranted because the appellant’s acceptable job
performance and other mitigating factors did not outweigh the seriousness of his
misconduct and his lack of rehabilitative potential, considering his past
disciplinary record.6 IAF, Tab 5 at 30; ID at 16-17.
6 In applying the Douglas factors, both the administrative judge and the deciding
official also considered as a mitigating factor the appellant’s allegation that he was
harassed by his supervisor but concluded that it did not excuse his behavior. ID
11
Here, the removal decision letter shows that the deciding official
considered the relevant factors including the seriousness of the appellant’s
repeated misconduct, which he found unprofessional and disruptive to his work
and his coworkers. IAF, Tab 5 at 30-36. The deciding official considered that
the appellant’s misconduct was contrary to the behavior expected of a Licensed
Practical Nurse in a position of trust. Id. at 30-31. He further considered the
appellant’s prior discipline: a 7-day suspension in December 2016 for failure to
safeguard confidential patient information, and a reprimand in October 2016 for
loafing, willful idleness, failure to safeguard confidential patient information, and
unauthorized absence. Id. at 30. The deciding official determined that the
appellant’s supervisors had lost trust and confidence in him and his ability to be
rehabilitated. Id. at 30-32. He also determined that the proposed removal penalty
fell within the acceptable range of the agency’s table of penalties. Id. at 31.
The administrative judge found that the deciding official thoroughly
considered the relevant Douglas factors and exercised his discretion within the
tolerable limits of reasonableness in deciding to remove the appellant. ID
at 15-17. Recognizing that the Board must accord proper deference to the
agency’s primary discretion in managing its workforce, we see no reason to
disturb this finding.7 See Douglas, 5 M.S.P.R. at 306.
The appellant did not prove his claim of bias by the administrative judge.
The appellant also appears to allege bias by the administrative judge based
on his statement that he had the right to a fair hearing. PFR File, Tab 1 at 1. We
decline to grant review on this basis. The appellant submits no examples of the
at 16-17. In weighing this factor, the deciding official noted that the appellant’s
harassment claim was investigated by Patient Care Services and found to be
unsubstantiated. ID at 16; IAF, Tab 5 at 27, 32.
7 The appellant has not challenged the administrative judge’s finding that the agency
proved nexus and we find no reason to disturb this finding on review. ID at 14; see
Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb
the administrative judge’s findings when she considered the evidence as a whole, drew
appropriate inferences and made reasoned conclusions on issues of credibility).
12
alleged bias for the Board to consider, and his conclusory argument on review
does not show that the administrative judge’s conduct during the course of the
proceeding evidenced “a deep-seated favoritism or antagonism that would make
fair judgment impossible.” See Bieber v. Department of the Army, 287 F.3d
1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540,
555 (1994)).
We deny the appellant’s motion requesting proof that the agency lied and asking
the Board to open an investigation and interview various individuals to determine
the validity of his claims.
In reply to the agency’s response to his petition for review, the appellant
has filed a motion requesting proof that the agency lied to Federal investigators
and withheld proof to prevail in the removal action. PFR File, Tab 5 at 2-4. He
asks the Board to investigate his claims of misconduct at work, and he lists the
people that he would like the Board to question during the investigation. Id. In
addition, he asks for a copy of the Final Agency Decision (FAD) on his EEO
complaint, which he claims that he never received although he submits what
appears to be the first page of the FAD on review. PFR File, Tab 1 at 32, Tab 5
at 2. He argues for the first time that the administrative judge erred in her
credibility determinations. PFR File, Tab 4 at 5.
To the extent that the appellant’s reply raises new allegations of error, we
will not consider them. See 5 C.F.R. § 1201.114(a)(4) (stating that a reply is
limited to the factual and legal issues raised by another party in the response to
the petition for review and may not raise new allegations of error). Moreover, to
the extent he is alleging that the agency refused to voluntarily make pertinent
evidence reasonably available prior to the hearing on his appeal, his failure to file
a motion to compel precludes him from raising this issue for the first time on
petition for review. See Szejner v. Office of Personnel Management , 99 M.S.P.R.
275, ¶ 5 (2005) (declining to consider the appellant’s argument on review that the
agency failed to respond to his discovery requests because he did not file a
13
motion to compel below), aff’d, 167 F. App’x. 217 (Fed. Cir. 2006). We
therefore deny his motion requesting an investigation and additional documents
from the agency on review. Accordingly, we affirm the initial decision
as modified.
NOTICE OF APPEAL RIGHTS8
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
14
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal 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
15
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.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
16
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
17
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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. | Nunez_Julio_C_AT-0752-17-0702-I-1__Final_Order.pdf | 2024-04-24 | JULIO C. NUNEZ v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-17-0702-I-1, April 24, 2024 | AT-0752-17-0702-I-1 | NP |
1,675 | https://www.mspb.gov/decisions/nonprecedential/Patterson_MicahSF-1221-22-0263-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICAH PATTERSON,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
SF-1221-22-0263-W-1
DATE: April 24, 2024
THIS ORDER IS NONPRECEDENTIAL1
Micah Patterson , Springfield, Illinois, pro se.
Latriece Jones , Mobile, Alabama, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
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 appeal 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).
2
BACKGROUND
In December 2020, the agency appointed the appellant to a
competitive-service position as a GS-9 Agricultural Engineer in the agency’s
Natural Resources Conservation Service. Initial Appeal File (IAF), Tab 1
at 15-16, Tab 12 at 14. The agency terminated him in September 2021, prior to
the completion of his probationary period, for alleged misconduct occurring
between August and September 2021. IAF, Tab 1 at 7-8.
The appellant filed a complaint with the Office of Special Counsel (OSC)
alleging that the agency subjected him to a hostile work environment and
terminated him in reprisal for the following protected disclosures, most of which
he made in September 2021: (1) the agency failed to obtain approval from the
Office of Personnel Management (OPM) for its performance appraisal system;
(2) the appellant’s team leader, who was responsible for training the appellant,
violated the Privacy Act of 1974 (the Privacy Act) by disclosing details of the
appellant’s performance appraisal in front of coworkers who did not have a need
to know; (3) the team leader took incorrect measurements at a construction
project, allowing the project to “pass”; and (4) inconsistencies between the
“Worksheet for Determination of Hazards Classification and Job Class for Dams
and Structures” and external requirements made it unclear whether the team
leader had proper job approval authority. IAF, Tab 1 at 18-23, 29-30, 34, Tab 9
at 31-32. OSC closed its investigation and informed the appellant of his Board
appeal rights. IAF, Tab 1 at 34-35.
3
The appellant timely filed this IRA appeal raising the same claims.2
IAF, Tab 1 at 4, 19-23, Tab 7 at 4-9, 11-12, 14-23. The administrative judge
issued an order informing the appellant of his burden to establish Board
jurisdiction over his IRA appeal. IAF, Tab 3. In response, the appellant
submitted a narrative statement detailing each disclosure along with his
correspondence with, and additional information submitted to, OSC. IAF, Tab 7
at 4-55. The agency filed a motion to dismiss the appeal. IAF, Tab 12 at 5-13.
The administrative judge issued an initial decision dismissing the appeal
for lack of jurisdiction. IAF, Tab 20, Initial Decision (ID) at 1-2, 14. She found
that the appellant exhausted his administrative remedies with OSC, but that he
failed to make a nonfrivolous allegation that his disclosures were protected under
5 U.S.C. § 2302(b)(8). ID at 7-13.
The appellant has filed a petition for review of the initial decision, and the
agency has filed a response. Petition for Review (PFR) File, Tabs 3, 5. On
review, the appellant disputes the merits of his termination and disagrees with the
administrative judge’s findings regarding his disclosures.3 PFR File, Tab 3
at 9-30.
2 This is the second appeal that the appellant has filed regarding his termination. The
same administrative judge previously issued an initial decision dismissing his prior
appeal for lack of jurisdiction. Patterson v. Department of Agriculture , MSPB Docket
No. SF-315H-22-0049-I-1, Tab 9, Initial Decision (0049 ID) at 1, 7. She found that the
appellant failed to establish jurisdiction over his termination as an otherwise appealable
action or an IRA appeal. 0049 ID at 4-6. As relevant to the instant IRA appeal, she
reasoned that the appellant’s whistleblower reprisal claim was premature because he
had not yet exhausted his OSC remedy. 0049 ID at 6. That decision became final after
neither party filed a petition for review. 0049 ID at 7; see 5 C.F.R. § 1201.113 (stating
that an initial decision generally will become the Board’s final decision 35 days after
issuance unless a party files a petition for review).
3 The appellant also alleges for the first time on review that his second-level supervisor
made fraudulent and defamatory statements related to the accuracy of the appellant’s
work. PFR File, Tab 3 at 30-31. The Board lacks jurisdiction over these tort law
claims. See Paul v. Department of Agriculture , 66 M.S.P.R. 643, 650 (1995 ).
Therefore, we decline to consider this argument on review.
4
DISCUSSION OF ARGUMENTS ON REVIEW
To establish Board 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)(A).4 5 U.S.C. §§ 1214(a)
(3), 1221(a)-(b); Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5
(2016). Specifically, 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. 5 U.S.C.
§ 2302(b)(8); 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).
Pridgen, 2022 MSPB 31, ¶ 52.
On review, the appellant challenges the administrative judge’s findings
regarding each of his alleged protected disclosures. PFR File, Tab 3 at 8-16, 19,
4 The administrative judge stated that, in determining whether disclosures are protected,
the Board only reviews the appellant’s characterization of the disclosures to OSC, not
his later characterization of those statements. ID at 8. After the initial decision was
issued in this case, the Board clarified the substantive requirements of exhaustion.
Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 10. An appellant may
give a more detailed account of his whistleblowing activities before the Board than he
did to OSC. Id. (citing Briley v. National Archives and Records Administration ,
236 F.3d 1373, 1378 (Fed. Cir. 2001)). However, regardless of the standard the
administrative judge used, she determined that the appellant exhausted all of his alleged
protected disclosures. ID at 7 & n.5; IAF, Tab 7 at 4-10. The parties do not dispute
this finding and we discern no basis to disturb it.
5
21-25, 27-29. We agree with the administrative judge’s findings as to the
appellant’s disclosures regarding the agency allegedly failing to obtain OPM
approval of its performance appraisal system,5 the team leader allegedly taking
incorrect measurements at a construction project, and inconsistencies between the
“Worksheet for Determination of Hazards Classification and Job Class for Dams
and Structures” and external requirements. However, for the reasons set forth
below, we find that the appellant has established jurisdiction over his claims
arising out of his disclosure involving the Privacy Act.
The appellant nonfrivolously alleged that his team leader violated the Privacy Act
by criticizing the appellant within earshot of others.
The administrative judge found that the appellant stated only a vague
allegation of wrongdoing when he disclosed to his first-level supervisor that, in
September 2021, his team leader “breach[ed his] confidentiality” by “heavily
criticizing [the appellant] in terms of [his] ‘Performance Appraisal’ outside of
confidence and with other employees present.” ID at 10; IAF, Tab 9 at 32.
On review, the appellant argues that he provided specific details regarding this
disclosure. PFR File, Tab 3 at 19. We agree.
5 On review, the appellant argues that he raised additional agency wrongdoing relating
to the performance appraisal system with OSC. PFR File, Tab 3 at 10-15. In addition
to referencing his correspondence with OSC in the record below, the appellant also
attaches correspondence with OSC beginning in April 2022. We have considered the
appellant’s new evidence and argument to the extent they implicate the Board’s
jurisdiction, a matter that may be raised at any time during Board proceedings.
Pirkkala v. Department of Justice , 123 M.S.P.R. 288, ¶ 5 (2016). However, we find
that the appellant’s new evidence and argument do not establish jurisdiction. To the
extent the appellant alleges that he made disclosures to OSC beginning in April 2022
regarding information he learned during the course of this appeal, that information
could not have formed the basis of his belief that the agency had committed wrongdoing
at the time he made his disclosures in September 2021. Similarly, although the
appellant’s December 27, 2021 correspondence to OSC constitutes protected activity
under 5 U.S.C. § 2302(b)(9)(C), that activity could not have been a contributing factor
in his September 2021 termination. See Orr v. Department of the Treasury ,
83 M.S.P.R. 117, ¶ 15 (1999) (observing that protected disclosures made after the
agency took a personnel action could not have been a contributing factor in that
personnel action).
6
In order to be protected, the appellant must have had a reasonable belief
that he was disclosing a violation of law, rule, or regulation. See 5 U.S.C.
§ 2302(b)(8)(A); Hupka v. Department of Defense , 74 M.S.P.R. 406, 410 (1997) .
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 which a reasonable person in his position would
believe evidenced any of the situations specified in 5 U.S.C. § 2302(b)(8).
Hupka, 74 M.S.P.R. at 410 . The appellant, who is not a lawyer, may have
reasonably believed that his team leader violated the Privacy Act by discussing
his performance in a location where others could overhear. See id. (finding that
an appellant, who was not a lawyer and whose duties did not require him to be
familiar with the intricacies of the Privacy Act, reasonably believed that the
agency violated the Privacy Act when it disclosed his medical information before
he signed a medical release).
Here, the appellant’s disclosure, in its entirety, alleged “a breach of
confidentiality” by his team leader, who “was heavily criticizing [him] in terms of
[his] ‘Performance Appraisal’ outside of confidence and with other employees
present.” IAF, Tab 9 at 31-32. He did not indicate in his disclosure to his
first-level supervisor where or when the alleged conversation took place, what the
team leader stated, or who was present to overhear the discussion. Id.
On review, the appellant provides details regarding his disclosure, alleging the
team leader “directly cited the performance appraisal.” PFR File, Tab 3 at 17, 19.
He also relies on statements provided by the agency in support of its motion to
dismiss. Id. at 17-18. We consider these statements because they are integral to
the appellant’s claim, and he has referred to them in his petition for review. See
Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1369 n.5 (Fed. Cir.
2020) (stating that, although the Board may not deny jurisdiction by crediting the
agency’s interpretation of the evidence, “the Board may consider sources such as
7
‘matters incorporated by reference or integral to the claim, items subject to
judicial notice, [and] matters of public record’” (citation omitted)).
One of these statements was completed by the appellant’s team leader on
September 16, 2021, and is addressed to the appellant’s first-level supervisor.
IAF, Tab 12 at 151-52. The team leader recounted a disagreement with the
appellant during which he advised the appellant that his performance had
“regressed” since earlier in the month, that he needed to complete previously
identified items to be “fully successful at his current employment level,” and that
he was not “adequately support[ing] the . . . office.” Id. at 152. A second
statement from one of the appellant’s coworkers, who overheard some of the
conversation, also indicated that the team leader “brought up [the appellant’s]
overall work performance.” Id. at 154. It appears that the discussion did not take
place behind closed doors. Id.
The appellant made his disclosure to his first-level supervisor that
“confidentiality is breached” on September 17, 2021. IAF, Tab 9 at 31-32.
In evaluating the reasonableness of the appellant’s belief that his disclosure
evidenced wrongdoing, we look to the context in which he made his disclosures.
See Ontivero v. Department of Homeland Security , 117 M.S.P.R. 600, ¶¶ 15,
19-20 (2012) (considering the fact that an agency manager agreed with the
appellant’s concerns as supporting the conclusion that the appellant
nonfrivolously alleged that she disclosed wrongdoing). Any doubt or ambiguity
as to whether the appellant made a nonfrivolous allegation of reasonable belief
should be resolved in favor of finding jurisdiction. Id., ¶ 18.
Here, resolving any doubt in the appellant’s favor, we find that
he nonfrivolously alleged that, 1 day before he sent his email expressing concern
about a breach of confidentiality to his first-level supervisor, the same supervisor
received a statement from the appellant’s team leader reflecting that he advised
the appellant that his performance was less than satisfactory. IAF, Tab 12
at 151-52. Again resolving any doubt at this stage in the appellant’s favor, we
8
assume that the appellant’s first-level supervisor also received a statement from
his coworker around the same time reflecting that she overheard some of this
discussion. Id. at 154. With this background, we find that, although the
appellant’s disclosure was somewhat terse, his first-level supervisor had
sufficient information to flesh out the relevant facts. Therefore, we find that the
disclosure, in context, was specific and detailed.
Further, we find that a person in the appellant’s position could reasonably
believe that discussing his performance in a place where the discussion could be
overheard violated the Privacy Act. See 5 U.S.C. § 552a(a)(4)-(5), (b)
(prohibiting an agency from disclosing information about an individual that is in
a group of records retrievable by name or other personal identifier). In light of
our finding here, we find it unnecessary to address other pleadings and evidence
that the appellant cites on review as supporting his position that this disclosure
was protected. PFR File, Tab 3 at 17, 19 (citing IAF, Tab 1 at 20, Tab 8 at 62,
Tab 11 at 46-47, 52).
The appellant nonfrivolously alleged that his Privacy Act disclosure was a
contributing factor in his termination.
The appellant argues on review that the agency subjected him to a hostile
work environment and terminated him in retaliation for the above protected
disclosures. IAF, Tab 1 at 34, Tab 9 at 14, 23. In cases involving multiple
alleged disclosures or activities and multiple personnel actions, when an appellant
makes a nonfrivolous allegation that at least one personnel action was taken in
reprisal for at least one alleged protected disclosure or activity, he establishes
Board jurisdiction over his IRA appeal. Peterson v. Department of Veterans
Affairs, 116 M.S.P.R. 113, ¶ 8 (2011). As discussed above, we find that the
appellant nonfrivolously alleged that he made a protected disclosure concerning a
purported Privacy Act violation.
Because she found that the appellant failed to nonfrivolously allege that he
made a protected disclosure, the administrative judge did not reach the issue of
9
whether he nonfrivolously alleged that a disclosure was a contributing factor in a
personnel action. ID at 13. Therefore, we have considered these issues here.
As an initial matter, we find that the appellant nonfrivolously alleged that
the agency took a personnel action against him. A probationary termination is a
personnel action. 5 U.S.C. § 2302(a)(2)(A)(iii); Scalera v. Department of the
Navy, 102 M.S.P.R. 43, ¶ 15 (2006). The record contains the appellant’s
September 2021 notice of probationary termination, and the agency indicated
below that it had terminated the appellant’s employment that month. IAF,
Tab 1 at 7-10, Tab 12 at 6.
On review, the appellant argues that he proved contributing factor under
the knowledge-timing test. PFR File, Tab 3 at 31-32. To satisfy the contributing
factor criterion at the jurisdictional stage in an IRA appeal, an appellant need
only raise a nonfrivolous allegation that the fact or content of the protected
disclosure was one factor that tended to affect the personnel action in any way.
Abernathy v. Department of the Army , 2022 MSPB 37, ¶ 15. One way to establish
this criterion is the knowledge-timing test, under which an employee may
nonfrivolously allege that the disclosure was a contributing factor in a personnel
action through circumstantial evidence, such as evidence that the official taking
the personnel action knew of the disclosure and that the personnel action occurred
within a period of time such that a reasonable person could conclude that the
disclosure was a contributing factor in the personnel action. Id. The Board has
held that personnel actions occurring within 1 to 2 years after the protected
disclosures are sufficient to meet the timing portion of the test. Id. The
knowledge portion of the knowledge-timing test can be met with allegations of
either actual or constructive knowledge. Id. 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. Id.
10
As discussed above, on September 17, 2021, the appellant sent an email to
his first-level supervisor alleging that his team leader breached his
confidentiality. IAF, Tab 9 at 31-32. The agency’s State Conservationist
terminated the appellant 12 days later. IAF, Tab 1 at 6-10. The termination letter
references the confrontation during which the appellant alleges that his team
leader breached confidentiality as a basis for the appellant’s termination. IAF,
Tab 1 at 8. Further, around the same time as the appellant’s disclosure to his
first-level supervisor, it appears that his team leader submitted a statement to her
about the confrontation, discussed above, indicating that he had raised with the
appellant the issue of his performance. IAF, Tab 12 at 151-52. Therefore,
although the termination letter does not specifically reflect the involvement of the
appellant’s first-level supervisor in the termination decision, this information is
sufficient to constitute a nonfrivolous allegation that the appellant’s supervisor,
who was aware of his disclosures, influenced the State Conservationist, who
signed his termination letter. Therefore, we remand this appeal for a
determination of whether the appellant proved this claim on the merits.
At this time, we do not reach the issue of whether the appellant
nonfrivolously alleged that he was, leading up to his termination, subjected to a
hostile work environment. Under 5 U.S.C. § 2302(a)(2)(A)(xii), a “significant
change in duties, responsibilities or working conditions” is a personnel action.
To amount to a “significant change” under section 2302(a)(2)(A)(xii), an agency
action must have a significant impact on the overall nature or quality of an
employee’s working conditions, responsibilities, or duties. Skarada v.
Department of Veterans Affairs , 2022 MSPB 17, ¶ 15. We leave the
determination of whether the appellant nonfrivolously alleged he suffered such a
significant change, and whether his Privacy Act disclosure contributed to it, for
the administrative judge on remand. See Thurman v. U.S. Postal Service ,
2022 MSPB 21, ¶ 22 (recognizing that the Board’s administrative judges are in
11
the best position to, among other things, develop the record and simplify the
issues).
On remand, the administrative judge must first determine whether the
appellant nonfrivolously alleged that his Privacy Act disclosure was a
contributing factor in a hostile work environment. See Scmittling v. Department
of the Army, 219 F.3d 1332, 1336-37 (Fed. Cir. 2000) (holding that the Board
may not make findings on the merits of an IRA appeal unless it first determines
that it has jurisdiction over the matter). Following that determination, she should
hold the appellant’s requested hearing on the merits of his claims arising out of
his alleged Privacy Act disclosure. IAF, Tab 1 at 2; see Graves v. Department of
Veterans Affairs , 123 M.S.P.R. 434, ¶ 22 (2016) (explaining that once an
appellant establishes jurisdiction over his IRA appeal he is entitled to a hearing
on the merits).
ORDER
For the reasons discussed above, we remand this case to the Western
Regional Office for further adjudication in accordance with this Remand Order.
In the remand initial decision, the administrative judge may reincorporate
prior findings as appropriate, consistent with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Patterson_MicahSF-1221-22-0263-W-1__Remand_Order.pdf | 2024-04-24 | MICAH PATTERSON v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. SF-1221-22-0263-W-1, April 24, 2024 | SF-1221-22-0263-W-1 | NP |
1,676 | https://www.mspb.gov/decisions/nonprecedential/Rockwell_Kim_E_SF-0752-17-0405-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KIM E. ROCKWELL,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
SF-0752-17-0405-I-1
DATE: April 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kim E. Rockwell , Clovis, California, pro se.
Emily Urban , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her reduction-in-grade appeal as settled. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
Effective April 16, 2017, the agency reduced the appellant in grade from a
supervisory position to a nonsupervisory position for failure to follow managerial
directives and failure to follow disclosure policies. Initial Appeal File (IAF),
Tab 4 at 13-17. The appellant timely appealed her reduction in grade to the
Board, and the parties subsequently reached an agreement to settle the appeal.
IAF, Tabs 1, 10-11. Under the terms of the settlement agreement, the agency
agreed to place the appellant in a Supervisory Tax Examining Technician position
within a different division and provide back pay for the time she occupied a
nonsupervisory position. IAF, Tab 11 at 4. The appellant agreed, among other
things, that “even one instance of failing to meet” the enumerated Team Leader
Expectations attached to the settlement agreement during the 1 -year period would
constitute a violation of the last chance agreement (LCA) and warrant a demotion.
Id.
The administrative judge conducted a telephonic conference with the
appellant concerning the settlement agreement; the agency waived its right to
participate in the conference. IAF, Tab 13, Initial Decision (ID) at 2. During the
conference, the appellant affirmed that her entry into the settlement agreement
was voluntary and that she agreed with the date on which her reassignment would2
become effective. IAF, Tab 12; ID at 2. The administrative judge explained to
the appellant the consequences of the waiver of Board appeal rights agreed upon
by the parties in the LCA. IAF, Tab 11 at 5, Tab 12; ID at 2. The administrative
judge further clarified the limited basis for Board review of an LCA and advised
the appellant that the Board would have enforcement authority over the settlement
agreement. IAF, Tab 12; ID at 2. The appellant stated that she understood and
consented to the terms of the LCA. IAF, Tab 12; ID at 2.
In an August 4, 2017 initial decision, the administrative judge found that
the settlement agreement appeared lawful on its face and that the parties had
indicated that they understood and accepted the terms of the agreement. ID at 2.
Accordingly, the administrative judge entered the settlement agreement into the
record for purposes of enforcement and dismissed the appeal as settled. Id. The
administrative judge notified the parties that the initial decision would become
final on September 8, 2017, unless a petition for review was filed by that date.
ID at 4.
The appellant filed a pleading titled, “Response to Request for Reopening,”
on February 8, 2018, more than 6 months after the initial decision was issued.
Petition for Review (PFR) File, Tab 1. The Office of the Clerk of the Board
notified the appellant that the Board considered her submission to be a petition
for review and that the petition was untimely filed because it was not filed by
September 8, 2017. PFR File, Tab 2 at 1. The Clerk’s Office instructed the
appellant how to file a motion to accept the petition as timely or to waive the time
limit for good cause. Id. at 2. The appellant filed such a motion. PFR File,
Tab 3. The agency filed a response opposing the petition for review, arguing that
the appellant’s apparent request to rescind the settlement agreement lacks merit.
PFR File, Tab 4.3
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant states that, during a meeting on January 8, 2018,
an operation manager informed her that the agency was “demoting [her] back to
the tax examiner position” due to poor performance. PFR File, Tab 1 at 3. The
appellant asks the Board to review the recorded conversation between herself and
the administrative judge regarding the settlement agreement, arguing that her
“worst fears [had] happened” and that she had been “set up for failure.” Id. In
her “Motion to Waive the Time Limit,” the appellant does not address the
timeliness of her petition for review. PFR File, Tab 3 at 3. Rather, she repeats
her statements regarding the January 8, 2018 meeting, asserting that she had
believed she was performing well in the management position prior to the
meeting. Id. Regarding the settlement agreement, the appellant states that she
had “voice[d] her concerns” that she was “not comfortable with the wording of
the agreement” with the administrative judge during the telephonic conference,
who purportedly instructed the appellant to contact her with any problems
regarding the settlement agreement. Id. Finally, the appellant asserts that,
“[l]ooking back,” she should have asked to start the new position at a different
time due to seasonal differences in the office’s operations. Id.
We do not reach the issue of the apparent untimeliness of the appellant’s
petition for review because, for the following reasons, we find that the appellant
has failed to present any basis for disturbing the initial decision dismissing the
appeal as settled.
The party seeking to set aside a settlement agreement bears a heavy burden.
Owen v. U.S. Postal Service , 87 M.S.P.R. 449, ¶ 7 (2000). A party may challenge
the validity of a settlement agreement on the basis that the agreement is unlawful,
involuntary, or the result of fraud or mutual mistake. Brown v. Department of the
Interior, 86 M.S.P.R. 546, ¶ 11 (2000). Here, the appellant does not explicitly
challenge the settlement agreement on any of these bases. Rather, the appellant’s
brief statements on review implicitly challenge the terms of the settlement4
agreement, including the waiver of the right to receive advance notice of any
agency action taken pursuant to the LCA and the provision stating that even one
instance of failing to meet the expectations of the Supervisory Tax Examining
Technician position would constitute a violation of the LCA. PFR File, Tab 1
at 3, Tab 3 at 3; IAF, Tab 11 at 4-5.
Having reviewed the recording of the telephonic conference between the
appellant and the administrative judge, pursuant to the appellant’s request, we
find that the administrative judge clearly explained to the appellant the
consequences of waiving her Board appeal rights under the LCA. IAF, Tab 12;
PFR File, Tab 1 at 3, Tab 3 at 3. We further find that the appellant verbally
affirmed that she understood and consented to the terms of the LCA, including
the date on which her reassignment would become effective. IAF, Tab 12. The
appellant, who was represented by counsel during settlement negotiations,2 has
not submitted any evidence showing that she was unable to understand the nature
of the LCA or that her decision was not an informed one. See Wade v.
Department of Veterans Affairs , 61 M.S.P.R. 580, 584 (1994). As such, the
appellant’s dissatisfaction with the terms she agreed to is insufficient to warrant
setting aside the settlement agreement. See Hinton v. Department of Veterans
Affairs, 119 M.S.P.R. 129, ¶ 4 (2013); Henson v. Department of the Treasury ,
86 M.S.P.R. 221, ¶ 10 (2000). The appellant’s arguments about the favorability
of a different start date of her new position due to seasonal operational
differences do not evince any type of mutual mistake, misinformation, or agency
wrongdoing such as would be the basis for invalidating the settlement agreement.
See Washington v. Department of the Navy , 101 M.S.P.R. 258, ¶ 18 (2006)
2 Although the record contains no designation of representative on behalf of the
appellant, a union representative presented the appellant’s oral reply to the proposed
reduction in grade and otherwise represented the appellant in proceedings concerning
the agency action. IAF, Tab 4 at 19 -39, 58. The union representative also was involved
the settlement discussions and signed the LCA agreement as the appellant’s
representative. IAF, Tab 11 at 10; PFR File, Tab 4 at 5, 12 -13, 16-18, 31.5
(noting that the appellant’s unilateral misunderstanding of the consequences of
accepting the settlement would not be a basis for setting aside the agreement).
As the administrative judge explained to the appellant during the telephonic
conference discussing the settlement agreement, the Board lacks jurisdiction over
an action taken pursuant to an LCA in which an appellant waives her right to
appeal to the Board. ID at 2; see Rhett v. U.S. Postal Service , 113 M.S.P.R. 178,
¶ 13 (2010). However, an individual contesting an appealable adverse action
such as a reduction in grade can establish that a waiver of appeal rights in an
LCA should not be enforced by showing one of the following: (1) she complied
with the LCA; (2) the agency materially breached the LCA or acted in bad faith;
(3) she did not voluntarily enter into the LCA; or (4) the LCA resulted from fraud
or mutual mistake. See Rhett, 113 M.S.P.R. 178, ¶ 13. To the extent that the
appellant believes that she has been subjected to an adverse action taken by the
agency pursuant to the LCA and one of these exceptions applies to her
circumstances, she may file an initial appeal of that action with the appropriate
regional or field office; we make no finding whether the Board would have
jurisdiction over such an appeal or whether it would be timely. See 5 C.F.R.
§ 1201.22. Should the appellant believe that the agency has otherwise not
complied with the terms of the LCA, she may file a petition for enforcement of
the settlement agreement with the Board’s Western Regional Office. See Sharkey
v. Department of Transportation , 56 M.S.P.R. 156, 158 (1992) (holding that
allegations that a party has failed to comply with a settlement agreement are
properly a matter for initial consideration by the administrative judge on petition
for enforcement), aff’d, 11 F.3d 1070 (Fed. Cir. 1993) (Table); 5 C.F.R.
§ 1201.182(a).
Accordingly, we deny the petition for review and affirm the initial
decision.6
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 on8
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or9
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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 | Rockwell_Kim_E_SF-0752-17-0405-I-1__Final_Order.pdf | 2024-04-24 | KIM E. ROCKWELL v. DEPARTMENT OF THE TREASURY, MSPB Docket No. SF-0752-17-0405-I-1, April 24, 2024 | SF-0752-17-0405-I-1 | NP |
1,677 | https://www.mspb.gov/decisions/nonprecedential/Shaw_David_R_DE-300A-18-0232-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID R. SHAW,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-300A-18-0232-I-1
DATE: April 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David R. Shaw , Wichita, Kansas, pro se.
Zane P. Schmeeckle , Kansas City, 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 employment practices 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED as to the basis for the lack of jurisdiction over the
employment practices claim , we AFFIRM the initial decision.
BACKGROUND
The appellant is a preference-eligible veteran and was appointed to a
career-conditional appointment as a GS -12 IT Specialist (INFOSEC), effective
July 1, 2012. Initial Appeal File (IAF), Tab 6 at 33. The agency posted a
vacancy announcement for a competitive-service GS-13 IT Specialist (INFOSEC)
position, which was open from January 3 to 9, 2018. Id. at 15, 24-32.
The announcement also provided that it would close earlier if “an adequate pool
of at least 50 eligible applicants is reached.” Id. at 26. The agency closed the
announcement on January 4, 2018, after exceeding this number. Id. at 15-22, 24.
The appellant did not apply to the vacancy. IAF, Tab 1 at 5. However, he filed
an appeal with the Board challenging the agency’s actions related to the job
announcement.2 Id. at 1, 5. He requested a hearing. Id. at 2.
In an acknowledgment order, the administrative judge informed the
appellant of his burden of proving the Board’s jurisdiction over his appeal. IAF,
2 During the adjudication of a related Veterans Employment Opportunity Act of 1998
(VEOA) appeal, the appellant seemed to raise an employment practices claim.
See Shaw v. Department of Veterans Affairs , MSPB Docket No. DE-3330-18-0231-I-1.
The administrative judge docketed the employment practices claim as this separate
appeal. 2
Tab 2 at 3-4. He set forth the circumstances in which the Board may exercise
jurisdiction over an employment practices claim under 5 C.F.R. part 300,
subpart A. Id. He ordered the appellant to file evidence and argument on this
jurisdictional issue. Id. at 4-5. The appellant responded that by limiting the
number of applicants to 50 and closing the announcement after less than 24 hours,
the agency discriminated against disabled veterans in violation of 5 C.F.R.
§ 300.103(c). IAF, Tab 8 at 4.
Based on the written record, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction. IAF, Tab 11,
Initial Decision (ID). He found that the appellant failed to nonfrivolously allege
that the agency’s early closure of the vacancy announcement constituted a
violation of a basic requirement of 5 C.F.R. § 300.103. ID at 3-4.
The appellant timely filed a petition for review.3 Petition for Review (PFR)
File, Tab 1. The agency filed a response to the petition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge found that the appellant failed to establish
jurisdiction over his employment practices claim. ID at 1-2. We agree.
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). An applicant for employment who
believes that an employment practice applied to him by the Office of Personnel
Management (OPM) violates a basic requirement in 5 C.F.R. § 300.103 is entitled
to appeal to the Board under 5 C.F.R. § 300.104(a). Sauser v. Department of
Veterans Affairs , 113 M.S.P.R. 403, ¶ 6 (2010). The Board has jurisdiction under
5 C.F.R. § 300.104(a) when two conditions are met: first, the appeal must
concern an employment practice that OPM is involved in administering; and
3 The petition for review also contains the appellant’s arguments for his VEOA appeal,
which we address in our decision in that separate appeal. See Shaw v. Department of
Veterans Affairs, MSPB Docket No. DE-3330-18-0231-I-1. 3
second, the employment practice must be alleged to have violated one of the
“basic requirements” for employment practices set forth in 5 C.F.R. § 300.103.
Mapstone v. Department of the Interior , 110 M.S.P.R. 122, ¶ 7 (2008).
“Employment practices,” as defined in OPM’s regulations, “affect the
recruitment, measurement, ranking, and selection” of applicants for positions in
the competitive service. 5 C.F.R. § 300.101. The administrative judge found that
the appellant failed to meet his burden to nonfrivolously allege that the early
closure of the vacancy announcement prevented disabled veterans from applying
for jobs. ID at 4.
We modify this reasoning to find that the appellant failed to establish
jurisdiction for an even more fundamental reason. Here, the appellant’s concerns,
below and on review, are about the agency’s actions before he was able to apply
to the vacancy job announcement, not about how it arrived at its decision to select
one candidate over another. IAF, Tab 1 at 5, Tab 8 at 4; PFR File, Tab 1 at 4-5.
The alleged violations do not concern matters related to the appellant’s status as
an applicant for employment because, as is undisputed, he did not apply to the job
vacancy. IAF, Tab 1 at 5. However, only “candidates” may bring employment
practices appeals to the Board under 5 C.F.R. § 300.104(a). National Treasury
Employees Union v. Office of Personnel Management , 118 M.S.P.R. 83, ¶ 9
(2012). Because only a candidate for employment can file an employment
practices appeal, the fact that the appellant did not apply for the vacancy is fatal
to his appeal.4 Therefore, the appellant has not raised a cognizable employment
practices claim within the Board’s jurisdiction.
4 On review, the appellant reasserts his argument that the agency’s practices of
providing less than 24 hours for applicants to apply to a job vacancy announcement
violated 5 C.F.R. § 300.103(c). PFR File, Tab 1 at 4. However, in light of our finding
that the appellant is not a “candidate” who may bring employment practices appeals to
the Board under 5 C.F.R. § 300.104(a), we lack jurisdiction to consider whether the
alleged employment practice violated one of the “basic requirements” for employment
practices set forth in 5 C.F.R. § 300.103. 4
The appellant also alleges that the agency committed a prohibited personnel
practice under 5 U.S.C. § 2302(b) by “keeping the announcement open for less
than 24 hours in order to improve the chances of specific individuals that had
prior knowledge that the announcement would be posted.” PFR File, Tab 1 at 5.
However, general allegations of violations of merit system principles and
prohibited personnel practices do not constitute an independent source of Board
jurisdiction. See Wren v. Department of the Army , 2 M.S.P.R. 1, 2 (1980),
aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982). Therefore, in the absence of an
appealable action, the Board does not have jurisdiction to consider the appellant’s
allegations that the agency committed prohibited personnel practices.
Accordingly, we find that the administrative judge correctly dismissed the appeal
for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter. 5
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you6
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Shaw_David_R_DE-300A-18-0232-I-1__Final_Order.pdf | 2024-04-24 | DAVID R. SHAW v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-300A-18-0232-I-1, April 24, 2024 | DE-300A-18-0232-I-1 | NP |
1,678 | https://www.mspb.gov/decisions/nonprecedential/Kotsis_GabrielAT-0432-16-0006-B-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GABRIEL KOTSIS,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
AT-0432-16-0006-B-1
DATE: April 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gabriel Kotsis , Atlanta, Georgia, pro se.
Dolores Francis , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his performance-based removal. On petition for review, among other
things, the appellant attributes his failure to respond to the administrative judge’s
orders below to his representative’s failure to timely inform him of the
termination of his representation . Generally, we grant petitions such as this one
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
In the remand proceedings below, the administrative judge ordered the
parties to advise him whether additional discovery or reconvening of the hearing
would be required pursuant to the Board’s August 9, 2022 Remand Order. Kotsis
v. Department of Transportation , MSPB Docket No. AT-0432-16-0006-B -1,
Remand File (RF), Tab 5 at 1. Because neither party responded, the
administrative judge issued a close of record order setting a date by which
additional evidence and argument must be received. RF, Tab 6 at 1. Neither
party responded to this order either. The administrative judge then issued a
remand initial decision, affirming the appellant’s removal and finding his
affirmative defenses without merit.
In his pro se petition for review, the appellant appears to attribute his
failure to respond to the administrative judge’s orders to his representative’s
failure to timely inform him of the termination of his representation. Kotsis v.
Department of Transportation , MSPB Docket No. AT-0432-16-0006-B-1,2
Remand Petition for Review ( RPFR) File, Tab 1 at 4. Although an appellant is
bound by the errors of his chosen representative, the Board has held that, when an
appellant’s diligent efforts to prosecute his appeal were thwarted by his
representative’s negligence or malfeasance, the appellant and his representative
were not acting as one, and the representative’s negligence or malfeasance should
not be attributed to the appellant. Caracciolo v. Office of Personnel
Management, 86 M.S.P.R. 601, ¶ 5 (2000). Here, it is not clear from the petition
for review or the circumstances that the appellant’s prior representative
committed negligence or malfeasance such that relief would be appropriate. After
the appellant’s representative filed the petition for review in the initial appeal, the
appellant filed his reply to the agency’s response as well as the motion to excuse
the untimely filing of his reply, both pro se. Kotsis v. Department of
Transportation, MSPB Docket No. AT -0432-16-0006-I-1, Petition for Review
File, Tabs 4, 6. These pleadings indicate that the appellant should have been
aware when he filed them in 2016 that his prior representative had ceased
representing him. This was many years before the Board’s August 2022 Remand
Order and subsequent proceedings. Further, the circumstances indicate that the
appellant was less than diligent in prosecuting his appeal during the remand
proceedings.
In his petition for review, the appellant states that he was informed when
he visited his representative’s firm’s offices in person on October 11, 2022, after
the issuance of the remand initial decision, that his representative no longer
worked for the firm and the firm no longer represented him in his appeal.
RPFR File, Tab 1 at 4. Because the appellant was a registered e-filer, it can be
presumed that he received both the administrative judge’s September 6,
2022 Order inviting the parties to request discovery or a hearing and the
September 14, 2022 Close of Record Order stating that neither party had done so.
RF, Tabs 5-6; see 5 C.F.R. § 1201.14(m)(2) (documents served electronically on
registered e-filers are deemed received on the date of electronic submission). Yet3
the appellant’s statements indicate that he chose to wait until after the
October 6, 2022 Remand Initial Decision to first contact his representative about
the remand proceedings. RPFR File, Tab 1 at 1. It thus appears that the
appellant’s failures to respond to the administrative judge’s orders in the remand
proceedings were attributable foremost to his failure to diligently prosecute his
appeal. See Rowe v. Merit Systems Protection Board , 802 F.2d 434, 438 (Fed.
Cir. 1986) (stating that an appellant has a personal duty to monitor the progress of
his appeal at all times and not leave it entirely to his attorney). Under these
circumstances, we find that the appellant is not entitled to any relief regarding
this issue.2
2 The appellant raises several new arguments on review, namely what appears to
constitute an age discrimination affirmative defense and claims related to his
performance appraisals and his supervisor’s feedback. RPFR File, Tab 1 at 5-6. The
appellant failed to raise these claims below or show that they are based on new and
material evidence not previously available despite due diligence, and we thus decline to
consider them. Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016). In any
event, the evidence is insufficient to support an age discrimination affirmative defense
or the appellant’s claim regarding his 2017 performance appraisal, and the appellant’s
claim that the deciding official did not give him performance feedback has no bearing
on whether the agency proved the elements of a performance -based removal under
5 U.S.C. chapter 43. The appellant also appears to raise on review a national origin
discrimination affirmative defense, which he raised in his initial appeal but at no point
thereafter until the petition for review of the remand initial decision. RPFR File, Tab 1
at 5; Kotsis v. Department of Transportation , MSPB Docket No. AT -0432-16-0006-I-1,
Initial Appeal File (IAF), Tab 1 at 16. Pursuant to Thurman v. U.S. Postal Service,
2022 MSPB 21, ¶¶ 17-18, we find that the appellant has abandoned this affirmative
defense. In his “statement of the issues” in his prehearing submission in the initial
appeal, the appellant asserted affirmative defenses of equal employment opportunity
reprisal and disability discrimination, but none else. IAF, Tab 26 at 4. He did not
mention a national origin discrimination affirmative defense again after initially raising
it in his appeal, did not object to the summary of the prehearing conference omitting the
defense despite specifically being afforded the chance to object, was represented during
the course of the appeal at least until his reply in the initial appeal’s petition for review
proceedings, and there is no indication that his presumptive abandonment of the defense
was the product of confusion or information provided by the agency or the Board. IAF,
28 at 1, 5-10; Hearing Recording (opening remarks of the administrative judge). Thus,
we discern no reason to address this argument further. Thurman, 2022 MSPB 21, ¶ 17.
In addition, the record evidence does not support such an affirmative defense.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 | Kotsis_GabrielAT-0432-16-0006-B-1__Final_Order.pdf | 2024-04-24 | GABRIEL KOTSIS v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. AT-0432-16-0006-B-1, April 24, 2024 | AT-0432-16-0006-B-1 | NP |
1,679 | https://www.mspb.gov/decisions/nonprecedential/Magers_Joseph_D_CH-0752-21-0464-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH MAGERS,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
CH-0752-21-0464-I-1
DATE: April 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence Berger , Esquire, Glen Cove, New York, for the appellant.
Stacy Biney and Gregory Eyler , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed his removal from the Federal service. On petition for review, the
appellant argues that the misconduct charges underlying his removal should not
be sustained. In short, he asserts that some of his alleged conduct was
unavoidable or justified under the circumstances and that none of his actions
amount to misconduct. 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 | Magers_Joseph_D_CH-0752-21-0464-I-1__Final_Order.pdf | 2024-04-24 | JOSEPH MAGERS v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. CH-0752-21-0464-I-1, April 24, 2024 | CH-0752-21-0464-I-1 | NP |
1,680 | https://www.mspb.gov/decisions/nonprecedential/Gibbs_DorothyNY-0752-18-0047-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DOROTHY GIBBS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
NY-0752-18-0047-I-1
DATE: April 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Silas Burgess, III , New York, New York, for the appellant.
Anthony V. Merlino , Esquire, and David S. Friedman , Esquire, New York,
New York, for the agency
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained the agency’s decision demoting her from her position as a Postmaster to
a Full Time Mail Handler. 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).
2
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
By letter dated June 9, 2017, the agency proposed reducing the appellant in
grade and pay from her supervisory position as a Postmaster to a nonsupervisory
position as a Full Time Mail Handler, Level 4, based on the charge of conduct
unbecoming a supervisor. In the narrative description under the charge, the
agency alleged that the appellant failed to report an incident in which she was
sexually assaulted by one of her subordinates in July 2014, but reached an
out-of-court settlement agreement by which her subordinate would pay the
appellant $10,000 in exchange for her agreement not to file a civil lawsuit against
him. Initial Appeal File (IAF), Tab 7 at 18-21. The appellant provided a written
reply to the proposal. IAF, Tab 9 at 10-12. After considering the appellant’s
reply, the deciding official issued a decision letter sustaining the charge and the
demotion penalty. IAF, Tab 1 at 14-18.
The appellant timely filed the instant Board appeal challenging her
demotion, arguing that the agency committed harmful procedural error. Id. at 6.
In response to the administrative judge’s affirmative defense order, IAF, Tab 3,
the appellant elaborated on her claim, arguing that the charge was unsupported by
3
the record and that the demotion penalty was unreasonable. IAF, Tab 6 at 17-22;
Tab 10 at 11-12. Additionally, the appellant raised the following affirmative
defenses: (1) the agency committed harmful procedural errors by issuing the
proposed demotion without conducting a pre-disciplinary interview or an
independent investigation in violation of the agency collective bargaining
agreement, by denying the appellant’s request for a union representative to be
present when she received the proposal letter in violation of her Weingarten2
rights, by relying on a vague and inaccurate charge, and by failing to adequately
consider lesser alternative penalties; (2) the agency committed due process
violations when the proposing official relied on ex parte information obtained
during the agency’s Office of Inspector General (OIG) investigation related to the
sexual assault without providing the appellant with notice and an opportunity to
respond, and further, by preventing the appellant from participating in an
arbitration proceeding that the appellant argued impacted her rights, and relying
on the unfavorable arbitration decision as an unnoticed “aggravating” factor in
the demotion decision; and (3) that the demotion was taken in retaliation for the
appellant’s prior protected equal employment opportunity (EEO) activity, or that
the agency treated her disparately and discriminated against her. IAF, Tab 6
at 6-17, 22-23; Tab 10 at 6-11; Tab 30 at 8.
After holding the appellant’s requested hearing, the administrative judge
issued an initial decision concluding that the agency proved the conduct
unbecoming charge by preponderant evidence and that the appellant failed to
prove any of her affirmative defenses. IAF, Tab 43, Initial Decision (ID)
at 15-28, 29-33. Additionally, the administrative judge concluded that a nexus
2 Weingarten rights involve a private sector employee’s right, articulated in
National Labor Relations Board v. Weingarten , Inc., 420 U.S. 251, 260 (1975), to
request union representation at an investigatory interview that the employee reasonably
believes might result in disciplinary action. See Howard v. Office of Personnel
Management, 31 M.S.P.R. 617, 621 (1986), aff’d, 837 F.2d 1098 (Fed. Cir. 1987)
(Table). Congress granted Federal employees Weingarten-type rights in the Civil
Service Reform Act. 5 U.S.C. § 7114(a)(2)(B).
4
existed between the charge and the efficiency of the service, and that the agency’s
chosen demotion penalty did not exceed the bounds of reasonableness.
ID at 28-29, 33-35. Consequently, the administrative judge affirmed the
demotion decision. ID at 36.
The appellant has timely filed a petition for review of the initial decision,
and the agency has filed a response in opposition. Petition for Review (PFR)
File, Tabs 1, 3. The appellant has not filed a reply.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant generally challenges the administrative judge’s
credibility determinations, argues that the administrative judge incorrectly
concluded that the agency met its burden of proving the charge, and argues that
she did in fact alert the proper authorities of the sexual assault in a manner
consistent with agency policy. PFR File, Tab 1 at 4. However, she does not
challenge the administrative judge’s findings regarding her affirmative defenses.
Included as an attachment to her petition for review, the appellant provides
89 pages of filings, all of which were included in the record below, including a
copy of her post-hearing written closing brief and the initial decision. Id. at 5-93.
The Board has held that pleadings that do not raise specific arguments of error
and instead merely incorporate all arguments set forth in a brief submitted below
do not meet the criteria for Board review because they do not explain how or why
the administrative judge erred. See Mulroy v. Office of Personnel Management ,
92 M.S.P.R. 404, ¶15 (2002), overruled on other grounds by Clark v. Office of
Personnel Management , 120 M.S.P.R. 440, ¶ 12 (2013); Mawson v. Department
of the Navy, 48 M.S.P.R. 318, 321 (1991). The appellant has not provided any
new argument or allegation of error by the administrative judge related to these
documents, and therefore, we decline to reconsider the arguments contained in the
resubmitted documents.
5
Regarding the appellant’s argument on review that the agency failed to
prove the charge of conduct unbecoming, we find no error in the administrative
judge’s finding that the agency met its burden of proving the charge. PFR File,
Tab 1 at 4. When, as here, the agency’s charge contains a narrative explanation
for the basis of its action, the agency may sustain its charge by proving one or
more of the incidents described therein; proof of every incident is not required.
See Otero v. U.S. Postal Service , 73 M.S.P.R. 198, 204 (1997). A charge of
“conduct unbecoming” has no specific elements of proof but is established by
proving that the employee committed the acts alleged in support of the general
label of the charge. See Canada v. Department of Homeland Security ,
113 M.S.P.R. 509, ¶ 9 (2010); 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). Thus, to prove its charge, the agency
was required to demonstrate that the appellant engaged in the underlying conduct
described in support of the broad label “conduct unbecoming a supervisor.”
See Canada, 113 M.S.P.R. 509, ¶ 9. The Board has held that such a charge
typically involves conduct that is improper, unsuitable, or detracts from one’s
character or reputation. See Social Security Administration v. Long , 113 M.S.P.R.
190, ¶ 42 (2010), aff’d, 635 F.3d 526 (Fed. Cir. 2011), and overruled on other
grounds by Department of Health and Human Services v. Jarboe , 2023 MSPB 22.
In the initial decision, the administrative judge correctly identified the
required elements for proving the generic charge of “conduct unbecoming.” ID
at 5 (citing Miles v. Department of the Army , 55 M.S.P.R. 633, 637 (1992)).
Additionally, in reaching her conclusion that the agency met its burden, the
administrative judge considered the undisputed fact that the appellant failed to
report the sexual assault incident to any of the individuals identified in agency
Publication 552 governing workplace harassment reporting requirements for
supervisors, the fact that the appellant received a training outlining the proper
course of conduct for reporting such incidents, and the fact that she admitted to
6
settling the underlying incident by accepting $10,000 from her subordinate in
exchange for not filing a civil lawsuit against him. ID at 7-9. Consequently,
the administrative judge concluded that the agency proved by preponderant
evidence that the appellant had engaged in the specific conduct outlined in the
narrative charge and that said conduct was “was improper and detracted from [the
appellant’s] character or reputation,” and therefore was conduct unbecoming of a
supervisor. ID at 15.
The appellant also argues that the administrative judge erred in her
credibility determinations. PFR File, Tab 1 at 4. When an administrative judge
has held a hearing and has made credibility determinations that were explicitly or
implicitly based on the witness’s demeanor while testifying, the Board must defer
to those credibility determinations and 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). In the initial decision,
the administrative judge made detailed credibility findings, declining to credit the
appellant’s testimony that she reported the sexual assault to a supervisor
colleague, observing that the appellant had provided contrary information during
her interview with the agency’s OIG investigator, informing him that she had said
“nothing” to the colleague because he was already aware of the incident.
ID at 10; IAF, Tab 39, Hearing Transcript (HT) at 23-24. The administrative
judge also did not credit the appellant’s assertion that she had reported the
incident to the EEO office based on the fact that she could not initially provide
any information about who she allegedly reported the claim to in her interview
with the OIG investigator, and the fact that an EEO Data Analyst at the National
EEO Investigative Services Office testified at the hearing that there was no record
of the appellant filing a report during the relevant timeframe. ID at 10;
HT at 77-78. In making these determinations, the administrative judge relied on
the relevant factors set forth in Hillen v. Department of the Army , 35 M.S.P.R.
7
453, 458 (1987), to assess the credibility of the numerous witnesses as to the
disputed factual matters. ID at 8-15 (citing Hillen, 35 M.S.P.R. at 458;
Hawkins v. Smithsonian Institution , 73 M.S.P.R. 397, 403-04 (1997)). Given the
administrative judge’s demeanor-based findings, we find that the appellant has
failed to provide a sufficiently sound reason to disturb these conclusions.
See Purifoy, 838 F.3d at 1372-73. Based on the foregoing, we conclude that the
administrative judge sufficiently considered all the relevant evidence, and we see
no reason to disturb her conclusion that the agency met its burden of proving the
charge of conduct unbecoming a supervisor.3 Clay v. Department of the Army ,
123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason to disturb the administrative
judge’s findings where she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions on the issue of credibility); Crosby v.
U.S. Postal Service , 74 M.S.P.R. 98, 105 -06 (1997) (same).
Additionally, although the appellant has not challenged the administrative
judge’s findings regarding her discrimination affirmative defense, we take this
3 On review, the appellant does not challenge the administrative judge’s findings that
the agency met its burden of proving a nexus between its action and the efficiency of
the service, and that the penalty was within the tolerable bounds of reasonableness.
ID at 28-29, 33-35. We discern no reason to disturb either finding. Additionally, to the
extent the appellant is arguing that the deciding official failed to appropriately weigh or
consider the relevant factors for assessing the appropriateness of an agency -imposed
penalty, as articulated by the Board in Douglas v. Veterans Administration , 5 M.S.P.R.
280, 305-06 (1981), the administrative judge correctly found that the deciding official
specifically identified the relevant Douglas factors applicable to the appellant’s case,
including the appellant’s lack of past discipline, the effect of the offense on her ability
to perform her duties, her position as a supervisor, her lack of apparent remorse, and the
lack of effective alternative discipline. PFR File, Tab 1 at 4; ID at 33-35. The Board
has made clear that not every Douglas factor is relevant to a particular case. See
Nagel v. Department of Health and Human Services , 707 F.2d 1384, 1386 (Fed. Cir.
1983) (“The [B]oard never intended that each [ Douglas] factor be applied mechanically,
nor did it intend mandatory consideration of irrelevant factors in a particular case.”);
Douglas, 5 M.S.P.R. at 305-06 (stating that not all of the factors will be pertinent in
every case, and it must be borne in mind that the relevant factors are not to be evaluated
mechanistically). Further, on review, the appellant has not specifically identified which
relevant factors she believes the administrative judge failed to address. Accordingly,
we find no error in the administrative judge’s determination that the agency considered
the relevant Douglas factors in effectuating the demotion decision.
8
opportunity to clarify one part of the initial decision. In addressing the
appellant’s discrimination affirmative defense in the initial decision, the
administrative judge referred to the appellant’s claim as one of “disparate
penalties” on one occasion, and cited Ly v. Department of the Treasury ,
118 M.S.P.R. 481, ¶¶ 13-15 (2012), which concerns a claim of disparate
penalties. ID at 15, 31. An allegation that an appellant was treated less favorably
than others in the context of a discrimination claim is a claim of disparate
treatment that is analyzed under Title VII evidentiary standards. A claim of
disparate penalties, on the other hand, is a claim of unfair treatment
unaccompanied by a claim of discrimination. See Hooper v. Department of the
Interior, 120 M.S.P.R. 658, ¶ 8 (2014) (explaining that the standards for proving
an appellant was treated unfairly differ depending on whether an employee is
alleging discrimination or not).
Despite the administrative judge’s single reference to “disparate penalties”
and the citation to Ly, the remainder of the record makes clear that the appellant
was alleging disparate treatment on the basis of discrimination and in retaliation
for engaging in protected EEO activity. See IAF, Tab 6 at 22 (arguing that the
purported male comparator engaged in similar misconduct but was not reduced in
grade and pay, and that this constituted “disparate treatment”); Tab 28 at 6
(identifying the appellant’s affirmative defense as based on the “[d]isparity in
[t]reatment” based on the appellant’s gender); Tab 30 at 8 (correcting the
administrative judge’s status conference order summary, identifying that the
appellant was alleging that she was “treated disparately on account of her
sex . . .”); Tab 33 at 3 (accepting the appellant’s corrections to the status
conference summary, reflecting the “treated disparately” language); HT at 11,
265-65 (identifying the appellant’s affirmative defense as a claim that she was
treated disparately4). Additionally, the administrative judge cited and applied the
4 On two occasions, the hearing transcription misidentifies “disparately” as
“disputatively,” but it is clear based on the context in which the words appear that
“disparately” is the intended word. HT at 264-65.
9
correct legal standard for analyzing disparate treatment claims in finding that the
appellant failed to meet her burden of proving the affirmative defense. ID
at 31-32; see Fox v. Department of the Army , 120 M.S.P.R. 529, ¶ 37 (2014)
(stating that, 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). Accordingly, we conclude that the administrative judge correctly
adjudicated the appellant’s affirmative defense as an allegation of disparate
treatment.
Regarding the substance of the discrimination affirmative defense, in the
initial decision, the administrative judge determined that the appellant failed to
meet her burden of proving her affirmative defenses of disparate treatment on the
basis of discrimination and in retaliation for her prior EEO activity. ID at 29-33.
The administrative judge observed that the alleged comparator was not in the
same chain of command as the appellant and did not engage in the same or
substantially similar misconduct as the appellant. ID at 31-32. Consequently, the
administrative judge concluded that the appellant did not establish that
discrimination was a motivating factor in the agency’s decision to demote her.
ID at 33. Regarding the appellant’s claim of retaliation for prior EEO activity,
the administrative judge acknowledged that there was no dispute that the
appellant had participated in prior EEO activity, but concluded that the appellant
had not put forth any evidence that the deciding official was aware that the
appellant had done so at the time he issued his decision. ID at 27-28. Because
we affirm the administrative judge’s finding that the appellant failed to show
that any prohibited consideration was a motivating factor in the agency’s
action, we need not resolve the issue of whether the appellant proved that
discrimination or retaliation was a “but-for” cause of the agency’s decisions.
10
See Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 20-22,
29-33.
Therefore, for the reasons discussed above, 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 RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal 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
12
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
13
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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.
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. | Gibbs_DorothyNY-0752-18-0047-I-1__Final_Order.pdf | 2024-04-24 | DOROTHY GIBBS v. UNITED STATES POSTAL SERVICE, MSPB Docket No. NY-0752-18-0047-I-1, April 24, 2024 | NY-0752-18-0047-I-1 | NP |
1,681 | https://www.mspb.gov/decisions/nonprecedential/Gomez_RamonDE-0752-18-0219-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RAMON GOMEZ,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DE-0752-18-0219-I-1
DATE: April 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Scott E. Beemer , Tempe, Arizona, for the appellant.
Carolyn D. Jones , Esquire, Williston, Vermont, 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 appellant’s removal. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to apply the correct legal standard for a lack of candor charge and to
supplement the initial decision’s discrimination and disparate penalty analysis,
we AFFIRM the initial decision.
Effective March 8, 2017, the agency removed the appellant from his
deportation officer position based on three charges: (1) sleeping on duty on
May 3, 2016; (2) conduct unbecoming a Federal employee relating to his May 4,
2016 contact with a potential witness to the conduct alleged in the first charge;
and (3) lack of candor relating to a May 4, 2016 memorandum he wrote
concerning the conduct alleged in the first charge. Initial Appeal File (IAF),
Tab 10 at 23-31. The appellant appealed his removal, and, after a hearing, the
administrative judge issued an initial decision in which he sustained all three
charges and affirmed the removal. IAF, Tab 25, Initial Decision (ID). The
administrative judge further found that the appellant failed to prove his
affirmative defenses. ID at 16-21.
The appellant has filed a petition for review, and the agency has filed a
response in opposition to the appellant’s petition. Petition for Review (PFR) File,
Tabs 1, 5.
We decline to consider the documents the appellant submits on review.
On review, the appellant submits the deposition transcripts of six agency
employees. PFR File, Tab 1 at 33-309. These documents predate the close of the
3
record, and the appellant has not shown that these documents, or the information
contained therein, were unavailable before the record closed despite his due
diligence. Therefore, we have not considered them. See Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980).
The administrative judge correctly found that the agency proved its charges by
preponderant evidence.
The administrative judge found that the agency proved the first two charges
by preponderant evidence based largely on his assessment of the witnesses’
credibility. ID at 9-15. These findings are entitled to deference, and the
appellant has not proffered sufficiently sound reasons for overturning them. See
Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002). We find,
therefore, that the administrative judge correctly sustained the charges of sleeping
on duty and conduct unbecoming a Federal employee.
As the administrative judge correctly noted, a charge of lack of candor is a
flexible charge, and unlike a charge of falsification, it does not require proof of
intent to deceive. ID at 8; see Ludlum v. Department of Justice , 278 F.3d 1280,
1283-84 (Fed. Cir. 2002). However, the administrative judge did not apply the
proper legal standard for analyzing a lack of candor charge. ID at 15-16. In
Fargnoli v. Department of Commerce , 123 M.S.P.R. 330 (2016), relying on the
U.S. Court of Appeals for the Federal Circuit and Board precedent, the Board
held 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. Id., ¶ 17.
Although the administrative judge failed to explicitly rely on Fargnoli in
sustaining this charge, he nonetheless made findings regarding the requisite
elements of proof. Specifically, he found that the appellant on May 6, 2016,
submitted a memorandum dated May 4, 2016, stating “I do not recall [this] taking
place,” referring to the sleeping on duty incident. However, on May 4, he told a
coworker that he was “just resting [his] eyes and not sleeping” and also claimed
4
he was not snoring but was a “loud breather.” ID at 14-15. Given this May 4,
2016 conversation with his coworker, the appellant knew of the incident in which
he was allegedly sleeping on duty before he submitted his memorandum on
May 6, 2016. Id. at 15-16. The administrative judge found that the appellant was
therefore less than candid when he stated in his memorandum that he did not
recall the incident taking place. ID at 16. Thus, because the administrative judge
made findings regarding the issue of whether the appellant knowingly provided
incorrect information, his failure to rely on Fargnoli does not require remanding
the initial decision. Because the appellant had discussed the sleeping incident
before he submitted his May 4, 2016 memorandum, he clearly knew of the
incident when he submitted the memorandum. We therefore find that the
appellant knowingly provided incorrect information when he stated in his
memorandum that he did not recall the incident. Accordingly, we conclude that
the administrative judge correctly sustained the charge.
The administrative judge correctly found that the appellant failed to prove his
affirmative defenses.
Discrimination based on race, color, age, sex, and national origin
In his petition for review, the appellant reiterates his affirmative defenses
of discrimination based on his race, color, age, sex, and national origin. PFR
File, Tab 1 at 7. After the initial decision was issued, the Board clarified the
proper analytical framework for adjudicating discrimination claims under Title
VII and the Age Discrimination in Employment Act. Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶¶ 21-25. Under Pridgen, the appellant
bears the initial burden of proving by preponderant evidence that his race, color,
age, sex, or national origin were at least a motivating factor in his removal.
Pridgen, 2022 MSPB 31, ¶ 31.
Here, the administrative judge found that the appellant failed to prove any
of his discrimination claims. ID at 17. More specifically, the administrative
judge found that the appellant appeared to abandon his race, sex, and age
5
discrimination claims at the hearing, as he did not ask the witnesses any questions
related to those claims. Id. As for the appellant’s affirmative defenses of
discrimination based on his national origin and color, the administrative judge
found that there was no proof that anyone involved in the appellant’s removal
considered the appellant’s national origin or color. Id. Therefore, the
administrative judge found that the appellant failed to show that any of these
prohibited considerations was a motivating factor in his removal. Id.
On review, the appellant challenges the administrative judge’s finding that
he abandoned his discrimination claims at the hearing. PFR File, Tab 1 at 27. He
asserts that his counsel raised the “issue of color” several times during the
hearing by specifically stating that the witnesses who testified against the
appellant were “white in color.”2 Id. In addition, the appellant contends that his
counsel believed that the appellant’s race, color, age, sex, and national origin
discrimination claims were “implied affirmative defenses.” Id. These arguments
do not show error in the administrative judge’s findings. We therefore agree that
the appellant did not show that his race, color, age, sex, or national origin were
motivating factors in the agency’s decision to remove him.3
Disability discrimination
The appellant reasserts his disability discrimination claim on review,
alleging that the agency removed him from his position due to his disability
(sleep apnea). PFR File, Tab 1 at 6-11, 28-29. To the extent the appellant claims
disparate treatment disability discrimination, such claims are subject to the same
analytic framework as Title VII discrimination claims. Pridgen, 2022 MSPB 31,
¶ 40. At the beginning of the hearing, the appellant’s counsel admitted that the
2 Contrary to the appellant’s argument on review, the administrative judge did not find
that the appellant abandoned his affirmative defenses of discrimination based on his
color and national origin. ID at 17.
3 Because we discern no error with the administrative judge’s motivating factor analysis
or conclusions regarding the appellant’s discrimination claims, it is unnecessary for us
to address whether discrimination was a “but-for” cause of the removal action.
Pridgen, 2022 MSPB 31, ¶¶ 20-25.
6
appellant did not inform the agency that he had sleep apnea prior to his removal,
ID at 18, and, on review, he contends that he did not learn that he had sleep apnea
until after his removal. PFR File, Tab 1 at 7-11, 28-29. The administrative judge
found that there was no evidence that the agency either knew or reasonably
should have known that the appellant had a disability, and the appellant does not
challenge this finding on review. ID at 18. Under the circumstances, we find that
the appellant has not shown that his disability was a motivating factor in his
removal.
To the extent the appellant claims that the agency failed to accommodate
his disability, an agency must “make reasonable accommodation to the known
physical or mental limitations of an otherwise qualified . . . employee with a
disability.” 29 C.F.R. 1630.9(a). Even assuming that the appellant can show that
he is “otherwise qualified,” the agency had no obligation to accommodate a
disability of which it was unaware. Schulte v. Department of the Air Force ,
50 M.S.P.R. 126, 130 (1991). Thus, the administrative judge correctly found that
the appellant did not show that the agency engaged in disability discrimination
based on a failure to accommodate. ID at 18.
The administrative judge correctly found that removal is a reasonable penalty.
We agree with the administrative judge that the deciding official properly
considered the relevant Douglas4 factors and that the penalty of removal was
reasonable. ID at 21-23; IAF, Tab 6 at 26-27, 33-37. We have considered the
appellant’s arguments on review that the penalty is unreasonable, PFR File, Tab 1
at 16, 22, and we find them unpersuasive.
However, the administrative judge, relying on Lewis v. Department of
Veterans Affairs , 113 M.S.P.R. 657 (2010), also considered the appellant’s claim
that other agency employees were not removed for similar or more egregious
4 See Douglas v. Veterans Administration , 5 M.S.P.R. 280, 306 (1981) (setting forth a
nonexhaustive list of 12 factors that are relevant for assessing the appropriate penalty
for an act of misconduct).
7
misconduct. ID at 22-23. We have since overruled Lewis and subsequent cases
to clarify that, when analyzing disparate penalty claims, broad similarity between
employees is insufficient to establish that they are appropriate comparators, and
the relevant inquiry is whether the agency knowingly and unjustifiably treated
employees who engaged in the same or similar offenses differently. Singh v. U.S.
Postal Service, 2022 MSPB 5, ¶ 14; see Facer v. Department of the Air Force ,
836 F.2d 535, 539 (Fed. Cir. 1988) (finding that a person does not have a legally
protected interest in the evenness of a misconduct penalty assessed on him
compared to that assessed on others unless employees are knowingly treated
differently “in a way not justified by the facts, and intentionally for reasons other
than the efficiency of the service”). While the universe of potential comparators
will vary from case to case, it should be limited to those employees whose
misconduct and/or circumstances closely resemble those of the appellant. Singh,
2022 MSPB 15, ¶ 21. There is no evidence in this appeal that the employee
identified by the appellant as a potential comparator was sleeping on duty,
engaged in unbecoming conduct, and exhibited a lack of candor, as the appellant
did. Given these circumstances, we find that the appellant failed to show that the
employee is an appropriate comparator for purposes of the appellant’s disparate
penalties claim.5 In sum, we agree with the administrative judge that the penalty
of removal does not clearly exceed the bounds of reasonableness in this case.
See, e.g., Kamahele v. Department of Homeland Security , 108 M.S.P.R. 666, ¶¶ 2,
15 (2008) (finding the penalty of removal reasonable when the appellant
demonstrated lack of candor and inappropriate conduct).
Finally, we have considered the appellant’s claim that the administrative
judge was biased. The appellant’s allegations on review, which do not relate to
5 Although the appellant identified only one potential comparator during the
proceedings below, on review he identifies several agency employees who allegedly
were treated differently for their misconduct. PFR File, Tab 1 at 29-30. We have not
considered this information because the appellant has not shown that it was unavailable
before the record closed despite his due diligence. See Avansino, 3 M.S.P.R. at 214.
8
any extrajudicial conduct by the administrative judge, neither overcome the
presumption of honesty and integrity that accompanies an administrative judge
nor establish that he showed a deep-seated favoritism or antagonism that would
make fair judgment impossible. Simpkins v. Office of Personnel Management ,
113 M.S.P.R. 411, ¶ 4 (2010). We therefore find that the appellant has failed to
show that the administrative judge was biased in favor of the agency.
We have considered the appellant’s remaining arguments on review and
find no basis for disturbing the initial decision.
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.
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
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal 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
10
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.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:
11
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
12
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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. | Gomez_RamonDE-0752-18-0219-I-1__Final_Order.pdf | 2024-04-24 | RAMON GOMEZ v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DE-0752-18-0219-I-1, April 24, 2024 | DE-0752-18-0219-I-1 | NP |
1,682 | https://www.mspb.gov/decisions/nonprecedential/Gibson_TeddySF-0752-19-0385-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TEDDY GIBSON,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-0752-19-0385-I-1
DATE: April 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Teddy Gibson , Las Vegas, Nevada, pro se.
Vikas Jaitly , 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 for lack of jurisdiction the appeal of his notice of proposed removal.2
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2 A separate appeal was docketed to address the appellant’s apparent constructive
suspension claim. Gibson v. U.S. Postal Service , MSPB Docket No. SF-0752-19-0625-
I-1. The administrative judge dismissed the appeal with prejudice for failure to
prosecute. The initial decision became final when the appellant did not file a petition
for review.
On petition for review, the appellant asserts that he has not received any
documentation from the agency, he has not been paid since the agency proposed
his removal, he is homeless, and the union sent him a notice that his grievance is
in step 3. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Gibson_TeddySF-0752-19-0385-I-1__Final_Order.pdf | 2024-04-24 | TEDDY GIBSON v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0752-19-0385-I-1, April 24, 2024 | SF-0752-19-0385-I-1 | NP |
1,683 | https://www.mspb.gov/decisions/nonprecedential/Chavez_ToddDE-1221-22-0312-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TODD CHAVEZ,
Appellant,
v.
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Agency.DOCKET NUMBER
DE-1221-22-0312-W-1
DATE: April 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Todd Chavez , Pine, Colorado, pro se.
Anabia Hasan and Yolanda Bruce , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action appeal for lack of jurisdiction. On
petition for review, the appellant does not dispute the administrative judge’s
finding that the Board lacks jurisdiction over his claims and we discern no basis
to disturb it. Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 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 | Chavez_ToddDE-1221-22-0312-W-1__Final_Order.pdf | 2024-04-24 | TODD CHAVEZ v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, MSPB Docket No. DE-1221-22-0312-W-1, April 24, 2024 | DE-1221-22-0312-W-1 | NP |
1,684 | https://www.mspb.gov/decisions/nonprecedential/Gannelli_SamuelAT-0752-22-0454-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SAMUEL GANNELLI,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
AT-0752-22-0454-I-1
DATE: April 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joel J. Kirkpatrick , Esquire, Canton, Michigan, for the appellant.
Clairanne Wise , Esquire, and Luke Archer , Springfield, Virginia, for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1The agency has filed a petition for review of the initial decision, which
mitigated the appellant’s removal to a letter of reprimand. 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 of the
lack of candor charge and her penalty analysis, we AFFIRM the initial decision.
BACKGROUND
¶2The appellant was a GS-1811-13 Criminal Investigator (Special Agent) for
the agency’s Drug Enforcement Administration (DEA), assigned to the West Palm
Beach District Office in Florida. Initial Appeal File (IAF), Tab 1 at 1, Tab 4
at 19. On or around July 2020, the appellant was selected for reassignment to the
Mazatlan, Mexico office, which is part of the North and Central American Region
that was then-headed by Senior Executive Service (SES) Regional Director (RD),
N. Palmeri. Hearing Transcript (HT) at 240 (testimony of N. Palmeri), 264
(testimony of the appellant). The appellant began attending Spanish language
school, handing off his West Palm Beach investigative work, and going on a
series of temporary duty assignments in Mazatlan. HT at 264-65 (testimony of
the appellant). On February 25, 2021, while the appellant was still assigned to
the West Palm Beach District Office, the appellant and RD Palmeri met with a
Confidential Source (CS)2 and conducted a debrief at the CS’s residence in
Miami, Florida. IAF, Tab 1 at 9. On March 25, 2021, an agency official reported
that RD Palmeri had met with a CS and other individuals despite a directive
2 CS and Confidential Informant are used interchangeably. IAF, Tab 1 at 10.2
prohibiting the meetings and requested an investigation. Id. The appellant was
interviewed in connection with this investigation on April 30, May 26, and
September 8, 2021. IAF, Tab 5 at 227-278, 406-490; Tab 7 at 4-57.
¶3On December 22, 2021, the agency proposed the appellant’s removal based
on the charges of improper association with a CI/Suspect, lack of candor, failure
to follow written or oral instructions, and false statements/documents. IAF, Tab 1
at 9-23. The charges alleged that the appellant engaged in improper association
with a CS when he conducted a debriefing in a social setting at the CS’s
residence, in the presence of the CS’s spouse and friends, and where the CS
provided food and drinks; that the appellant knowingly provided less than candid
responses to questions as to whether he consumed alcohol during the debriefing;
that the appellant failed to timely submit a DEA-6 form documenting the
debriefing; and that the appellant knowingly provided false statements to
investigators regarding a violation of a confidentiality agreement. Id. On
May 24, 2022, the deciding official, S. Sutherland, issued a decision letter
sustaining the charges and removing the appellant effective the next day. IAF,
Tab 1 at 24-26, Tab 4 at 19.
¶4The appellant timely filed the instant petition for review. IAF, Tab 1. After
holding the requested hearing, the administrative judge issued an initial decision
mitigating the agency’s action. IAF, Tab 46, Initial Decision (ID) at 1. The
administrative judge concluded that the agency did not prove its charges of
improper association with a CI/Suspect, ID at 3-13, lack of candor, ID at 13-16,
and false statements/documents, ID at 16-20. However, she sustained the third
charge of failure to follow written or oral instructions. ID at 16. The
administrative judge thereafter found that the agency proved nexus, ID at 20, but
that the penalty of removal was beyond the maximum reasonable penalty for the
sustained charge, ID at 20-23. The administrative judge mitigated the penalty to
the maximum reasonable penalty warranted for the charge of failure to follow3
written or oral instructions, which in this case she found to be a letter of
reprimand. ID at 23.
¶5The agency has filed a petition for review. Petition for Review (PFR) File,
Tab 1. The appellant filed a response, PFR File, Tab 3, and the agency filed a
reply, PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6On review, the agency argues that the administrative judge erred in finding
that the agency did not prove its charges of improper association with a
CI/Suspect, lack of candor, and false statements/documents, and that the
administrative judge erred in mitigating the penalty of removal to a letter of
reprimand. PFR File, Tab 1 at 9-23. We address these arguments below.
The administrative judge properly found that the agency did not prove the first
charge, improper association with a CI/Suspect.
¶7In the notice of proposed removal (NOPR), the agency alleged:
[O]n February 25, 2021, you engaged in improper association with a CS
when you met with a CS at the CS’s residence, and conducted a
debriefing while the CS’s spouse was seated at the table with you, as
well as RD Palmeri, and RD Palmeri’s spouse. In addition, while at
the CS’s residence, you participated in a social setting where food
and drinks, including alcohol, were provided by the CS. In the
multiple hours you spent at the CS’s residence, there were other
non-law enforcement personnel present on the CS’s property,
including the CS’s family members, as well as a male and female
friend of the CS’s, who were preparing the food. By your own
admission, DEA sensitive law enforcement information was
discussed during the CS debriefing, and the CS’s spouse was within
hearing distance of the conversation.
IAF, Tab 1 at 10. The agency cited two internal policies in support of its charge,
which state that:
DEA employees are prohibited from associating with individuals
known or suspected to be involved in illegal drug trafficking or other
criminal activity in other than a strictly professional capacity. This
prohibition also applies to CSs and former CSs. Extrinsic social,
financial or business contacts with individuals of this nature are4
expressly prohibited. DEA employees are to strictly maintain only
the highest standards of conduct with respect to informants, known
criminals, or with individuals engaged in criminally violative
activity.
. . .
A Controlling Investigator shall not socialize with a CS except to the
extent necessary and appropriate for operational reasons. Personal
business, social, or romantic relationships between DEA employees
or other authorized personnel and CSs are strictly prohibited.
Id. at 12-13. In the proposal, the agency also further discussed several statements
that the appellant made in his investigative interviews regarding the above
allegations and his alleged improper association with the CS, including the
appellant’s testimony that he and RD Palmeri were at the CS’s property for
approximately 3 -4 hours, during which the CS showed them around the property;
the CS served food, wine, and beer; RD Palmeri brought his wife, and the wife
and the CS’s spouse were “within earshot” when the appellant and RD Palmeri
debriefed the CS about drug trafficking information. Id. at 10-13.
¶8In the initial decision, the administrative judge thoroughly discussed the
allegations and testimony cited in the NOPR regarding the circumstances of the
February 25 debriefing, as well as the hearing testimony of S. Sutherland, the
deciding official; the appellant; RD Palmeri; and J. Hunt, an expert in DEA
policy and procedures relating to federal narcotic investigations, including
control of cooperating sources and the implementing chain of command for
special agents. ID at 3-9. Among other things, the administrative judge noted
that the appellant testified that he had previously worked with the CS and
RD Palmeri, and that, in early 2021, RD Palmeri ordered him to go to a
debriefing of the CS because the appellant had knowledge of the inner workings
in Mexico. ID at 6-7. The administrative judge noted that the appellant
recognized that it “was not good” when RD Palmeri arrived at the debriefing with
his wife but that he explained that RD Palmeri was a senior executive and agents
are told to never to leave another agent alone with a CS. ID at 7; HT at 284-855
(testimony of the appellant). The administrative judge also noted that the
appellant testified that because the three individuals had not seen each other in a
while, there was time spent communicating on a personal level and the CS was
excited to show them around his property. ID at 7. She also explained that both
the appellant and RD Palmeri testified that during the debriefing, the appellant,
RD Palmeri, and the CS sat down at one end of two 6-feet long picnic tables
pushed together with the wives at the other end. ID at 7; HT at 271-72 (testimony
of the appellant). The administrative judge also discussed J. Hunt’s testimony
that informants are not “robots” and that agents cannot help having a certain level
of social interaction with an informant who is trusting the agent with their life.
ID at 9.
¶9In analyzing the charge, the administrative judge reviewed the language of
the two internal policies cited above and found, among other things, that a “fair
reading” of the two provisions is that the DEA prohibits its agents from engaging
in a personal, social relationship with a CS outside of the professional one, but
that “some socialization with a CS is allowed as long as the agent is acting in a
‘strictly professional capacity’ and ‘to the extent it is necessary and appropriate
for operational reasons.’” ID at 10; IAF, Tab 1 at 12-13. The administrative
judge concluded that the appellant went to the February 25 debriefing in a
“strictly professional capacity” because he was ordered to attend by a highly
ranked superior in charge of his future placement and because there was no
evidence that the appellant otherwise had a social friendship with the CS. ID
at 10. In addition, the administrative judge found that the appellant’s conduct did
not go beyond what she considered necessary and appropriate for operational
reasons because she credited J. Hunt’s testimony that it is routine for agents to
meet at an informant’s residence; she found that the appellant’s acquiescence to a
tour of the CS’s property appeared to be nothing more than being congenial; and
she found that although the spouses may have been within “earshot” of the
debriefing, J. Hunt testified that he had met informants literally hundreds of times6
in restaurants where a debriefing could be conducted in a manner where others
cannot hear what is being said, and that this was no different. ID at 9-13. The
administrative judge also found that the agency did not show that the appellant
drank any alcohol during the debriefing or that the appellant’s presence alone
while others were drinking showed that the appellant violated the agency’s
improper association policies. ID at 12. Additionally, the administrative judge
discussed the fact that although S. Sutherland testified that the appellant should
have disengaged himself from the debrief at some point and violated DEA policy
by not doing so, S. Sutherland’s “failure to acknowledge at least some of the facts
that support[ed] the appellant’s position show[ed] a demeanor of a determined
bias against him, which render[ed] S. Sutherland’s testimony unpersuasive.” ID
at 11 (citing Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987)).
The administrative judge thus concluded that the agency did not prove the charge.
ID at 13.
¶10On review, the agency first argues that the administrative judge erroneously
interpreted and applied the two above-noted DEA policies by ignoring in her
analysis the fact that the first policy states that DEA employees are to “strictly
maintain only the highest standards of conduct with respect to informants” and
that the second policy states that “[p]ersonal business, social, or romantic
relationships between DEA employees or other authorized personnel and CSs are
strictly prohibited.” PFR File, Tab 1 at 11-13; IAF, Tab 1 at 12-13. To this end,
the agency claims that the administrative judge’s “selective” interpretation of
these policies to mean improper association is “no personal social relationship
outside of the professional one,” is contradictory to the plain language of the
policies, and that DEA policy clearly prohibits more than simply a “relationship
with informants outside of the DEA relationship.” PFR File, Tab 1 at 12-13; ID
at 10. However, the agency’s arguments are unpersuasive. The administrative
judge correctly cited the language of the policies the agency referenced in its
NOPR in her initial decision. ID at 3; IAF, Tab 1 at 12-13. The administrative7
judge did not, as the agency argues, find that improper association simply means
no relationship with a CS outside of the DEA relationship. The administrative
judge explained that the agency could prove its improper association charge by
showing that the appellant’s conduct at the debriefing went beyond what is
considered necessary and appropriate for operational reasons. ID at 13.
Although the administrative judge may have focused on a specific phrase in the
first policy that states that DEA employees are prohibited from associating with
CSs in “other than a strictly professional capacity,” and a phrase in the second
policy that states that investigators shall not socialize with a CS “except to the
extent necessary and appropriate for operational reasons,” a full reading of her
analysis demonstrates that she correctly understood and applied the language of
the two DEA policies. ID at 9-13. Her discussion encompassed an analysis of
whether the appellant “strictly maintain[ed] only the highest standards of
conduct” with respect to the debriefing. ID at 3, 9-13. We see no error in the
administrative judge’s interpretation and application of the two DEA policies.3
See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997) (finding no reason
to disturb the administrative judge’s findings when she considered the evidence
as a whole, drew appropriate inferences, and made reasoned conclusions on issues
of credibility).
¶11The agency also puts forth that it believes that the appellant’s conduct at the
February 25 debriefing was an extrinsic social contact with a CS, an association
in “other than a strictly professional capacity,” was not of the “highest standards
of conduct,” and was not “necessary and appropriate for operational reasons.”
PFR File, Tab 1 at 13-14. The agency reiterates that it believes that the
3 In addition, the second policy that the agency cited in its notice of proposed removal
appears to apply only to “controlling investigators.” IAF, Tab 1 at 13. As the
administrative judge noted, the agency did not present evidence that the appellant was a
“controlling investigator.” ID at 9 n.4. However, we agree with the administrative
judge that there is no need to address this discrepancy because the agency did not show
that the appellant engaged in improper association as defined by either policy. ID at 9
n.4.8
appellant’s actions of touring the CS’s property, engaging in conversation
unrelated to DEA business, and having dinner where both alcohol and the spouses
were present, as a whole, are “material evidence” that the appellant improperly
associated with the CS. Id. at 13. However, the agency’s arguments clearly
constitute mere disagreement with the administrative judge’s weighing of the
evidence and provide no reason for disturbing the initial decision. See
Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359
(1987) (the appellant’s mere disagreement with the administrative judge’s
weighing of the evidence does not establish a basis for review).
¶12The agency also contends that the administrative judge erroneously looked
at each aspect of the February 25 meeting separately, instead of looking at the
entirety of the circumstances. PFR File, Tab 1 at 14 n.4. We disagree. Although
the administrative judge considered in turn the various allegations the agency
made in its NOPR as to why the appellant improperly associated with the CS, the
administrative judge still implicitly considered the totality of the circumstances.
ID at 9-13. Additionally, the agency argues that the administrative judge ignored
J. Hunt’s testimony that it was not “operationally necessary” for non-DEA
personnel to be present at a CS debriefing or to have dinner with the spouses
present. PFR File, Tab 1 at 13; HT at 218-19 (testimony of J. Hunt). However,
the administrative judge’s failure to mention all of the extensive testimony and
evidence does not mean that she did not consider it in reaching her decision. See
Marques v. Department of Health and Human Services , 22 M.S.P.R. 129, 132
(1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
¶13With regard to the first charge, the agency also argues in its petition for
review that the administrative judge erroneously focused on whether the two
spouses had “overheard” the debriefing in her analysis of whether the agency
showed improper association, instead of that it was inappropriate for the spouses
to be present at the briefing at all. PFR File, Tab 1 at 14-15. To this end, the
agency emphasizes that the NOPR did not conclude that the spouses overheard9
the debriefing; rather, it noted that the spouses were within “earshot” when the
debriefing occurred, which was inappropriate as those non-DEA personnel could
have potentially overheard sensitive, confidential information. Id. at 15. The
agency argues that the administrative judge erred in concluding that the spouses
seated at the end of the table was no different than a restaurant setting, because
her conclusion ignored an important distinction that, here, the “others” were
spouses, in a venue hosted by the CS, where food and alcoholic drinks were
present. Id.
¶14The agency’s arguments are unpersuasive. In support of the first charge in
the NOPR, the agency repeatedly discussed testimony from its investigative
interviews regarding how the “CS’s spouse was seated at the table,” that “the
CS’s spouse was within hearing distance,” “whether there were other people at
the table,” and “whether the spouses were in earshot.” IAF, Tab 1 at 10-11. In
the initial decision, the administrative judge noted that the proposed removal gave
the “impression that the CS’s spouse was participating in the debriefing itself,”
and she discussed testimony on this issue and stated that “the agency’s conclusion
that [the spouses] overheard the details of the debriefing” was not supported. ID
at 12. We discern no error in the administrative judge expounding on her reading
of the proposed removal on this issue. Furthermore, the administrative judge
considered the agency’s argument as to the appropriateness of the spouses’
presence because she specifically discussed hearing testimony on this issue,
including S. Sutherland’s unpersuasive testimony that “it was highly improper to
have a family member or others present while the debriefing was occurring,” ID
at 5, the appellant’s consistent testimony that he has previously met a CS at their
home with family members present, ID at 7, RD Palmeri’s testimony that the
debriefing was limited to himself, the appellant, and the CS, ID at 8, and J.
Hunt’s testimony that it was not apparent that the spouses overheard the
debriefing and that it would have been worse for the appellant to have left
RD Palmeri with the CS, ID at 9. Although the agency disputes the10
administrative judge’s conclusion that the presence of the spouses was similar to
that of a debriefing being conducted near other patrons at a restaurant, the
agency’s argument, as do its other contentions, simply disagrees with the
administrative judge on this point. See Yang v. U.S. Postal Service , 115 M.S.P.R.
112, ¶ 12 (2010) (stating that arguments that constitute mere disagreement with
the initial decision do not provide a basis to grant the petition for review).
¶15Finally, the agency argues on review that the administrative judge
erroneously found that “the meal and drinks with the CS” did not violate agency
policy. PFF File, Tab 1 at 16. In the initial decision, the administrative judge
addressed the fact that the CS served food at the February 25 debriefing and
stated that “there is no evidence that [the meal] was anything other than some
bar-b-que ribs, which in and of itself appears somewhat harmless, [and] not
violative of the agency’s policy,” citing in a footnote the agency’s policy
regarding exchanging gifts and engaging in a financial transaction with a CS. ID
at 12. The administrative judge also found that the agency did not show that the
appellant drank any alcohol and that his presence while others were drinking was
not unlike a restaurant setting and did not show that he violated the agency’s
improper association policy. ID at 12. In its petition, the agency claims that the
administrative judge “incorrectly relied” on its provision regarding gifts because
the appellant was not charged with violating that policy. PFR File, Tab 1 at 16.
However, the agency included this provision in the agency file, and the deciding
official, S. Sutherland, testified that he believed an informant providing a meal
was “tantamount to a gift.” IAF, Tab 8 at 37; HT at 43 (testimony of S.
Sutherland). Furthermore, such an analysis goes to the issue of whether the
appellant engaged in conduct with the CS that was “expressly prohibited.” IAF,
Tab 1 at 12. The agency also reargues that the administrative judge failed to
examine the meal “in the context of the totality of the circumstances,” and that
the meal was not “somewhat harmless” because in combination with it being at
the CS’s residence, with the spouses and alcohol present, the situation was not of11
the “highest standards of conduct” or “necessary and appropriate for operation
reasons.” PFR File, Tab 1 at 16. However, these arguments, again, also provide
no basis for disturbing the initial decision. See Yang, 115 M.S.P.R. 112, ¶ 12; see
also Crosby, 74 M.S.P.R. at 106.
The administrative judge properly found that the agency did not prove the second
charge, lack of candor.
¶16To prove a charge of lack of candor, the agency must prove that (1) the
appellant gave incorrect or incomplete statements and (2) that he did so
knowingly. Fargnoli v. Department of Commerce , 123 M.S.P.R. 330, ¶ 17
(2016). Unlike falsification, lack of candor does not require an intent to deceive.
Id., ¶ 16. A lack of candor charge may involve a failure to disclose something
that, under the circumstances, should have been disclosed to make the given
statement accurate and complete. Ludlum v. Department of Justice , 278 F.3d
1280, 1284 (Fed. Cir. 2002). Lack of candor is a broader and more flexible
concept whose contours and elements depend upon the particular context and
conduct involved. Id.
¶17In the NOPR, the agency alleged that during the appellant’s May 26, 2021
supplemental interview, he “knowingly provided less than candid responses to
[Office of Professional Responsibility (OPR)] Inspectors[’] questions as to
whether [he] consumed alcohol during a CS debriefing, resulting in a lack of
candor.” IAF, Tab 1 at 13. The proposal described the appellant’s responses to
the questions of whether he brought or drank alcohol at the February 25
debriefing as evasive, such as when he responded with answers like: “I’m a Bud
Light drinker, sir. So, I don’t drink wine. If the CS had, I know the CS had other
beer there, I just can’t remember what type exactly;” “To my recollection, no,
sir;” “To my recollection, I can’t recall, sir, because typically when I meet with
the CS, in particular, I always bring a big Diet Coke, because I know, I’ve known
for years, CS drinks red wine, and I’m not a wine drinker. And, obviously, in my
OGV I’m not going to drink.” Id. The NOPR also noted that in response to the12
investigators’ questions regarding whether the appellant brought alcohol, his
answer included, “sir, if the CI said that I drank, yes, sir, I drank. I just don’t
recall whether – I know that I don’t drink red wine. I know I don’t drink –,” IAF,
Tab 1 at 13, and that in response to a later question as to “whether, if it was the
CS that told them that [the appellant] drank alcohol, was it still [the appellant’s]
statement that [he] did not drink alcohol, that [he] only drank soft drinks and
water,” and the appellant replied “Sir, to my recollection, I do not recall if I drank
alcohol. If this CS told you that I had alcohol at that meeting, then I had alcohol
at that meeting,” Id. at 14; IAF, Tab 5 at 431, 457.
¶18In the initial decision, the administrative judge discussed that while S.
Sutherland testified that he did not find the appellant credible because the
appellant provided qualified and rambling responses rather than merely saying
“yes or no,” the appellant testified that he did not bring or drink alcohol during
the entirety of the February 25 meeting and RD Palmeri testified that he did not
see the appellant drink alcohol. ID at 14. In her analysis, the administrative
judge concluded that the agency did not prove the first prong of the lack of
candor test, that the appellant in fact gave false information, because the agency
did not present any testimonial or documentary evidence that the appellant in fact
drank alcohol during the debriefing. ID at 15. She also explained that she was
“not convinced” the appellant lacked candor when he stated, “well if the CS said I
drank, I drank,” because, although she found it a strange reply, she credited the
appellant’s testimony that he was frustrated with the interview and exasperated
with the number of times he was asked the same question. ID at 15-16. She also
pointed out that when asked if the appellant had a beer or a glass of wine, the CS
said “Yes. I think yes,” which she noted was hardly definitive and misrepresented
by the investigators. ID at 16; IAF, Tab 5 at 367-68.
¶19On review, the agency argues that the administrative judge erroneously
discounted the fact that the appellant provided three conflicting responses as to
whether he consumed alcohol and that the appellant admitted he made an13
inaccurate statement, which shows that it proved the appellant was not truthful.
PFR File, Tab 1 at 17. In this regard, the agency points out that the appellant first
said “No, sir” in response to the question of whether he consumed alcohol,” and
then said, “Sir, to my recollection, I do not recall if I drank alcohol,” followed by,
“If this CS told you that I had alcohol at that meeting then I had alcohol at that
meeting.” Id.; IAF, Tab 1 at 13-14, Tab 5 at 431, 457. The agency also disputes
the appellant’s contention that he was frustrated by being asked the same question
numerous times, noting that the appellant first stated “sir, if the CI said that I
drank, yes, sir, I drank” in response to the agency’s questioning about whether the
appellant brought alcohol, not whether he drank alcohol, which “directly
contradicts” his frustration about being asked the same question repeatedly. PFR
File, Tab 1 at 19; IAF, Tab 1 at 13, Tab 5 at 431. Additionally, the agency
contends that the administrative judge erred by failing to address the second
prong of the lack of candor test, and it reargues that it proved the appellant’s
intent to give an inaccurate statement concerning his own alcohol consumption.
PFR File, Tab 1 at 18.
¶20We are not convinced by the agency’s arguments. The administrative judge
thoroughly reviewed the agency’s charge, the hearing testimony related to this
issue, and the case law regarding lack of candor in her initial decision. ID
at 13-16. Each of the appellant’s responses that the agency points out above were
specifically discussed in the NOPR that the administrative judge reviewed. IAF,
Tab 1 at 13-14. We agree with the administrative judge that the record does not
show that the appellant in fact consumed alcohol during the February 25
debriefing. ID at 15. Contrary to the agency’s assertions, the administrative
judge’s focus on this issue was necessary to the analysis because the agency
charged the appellant with lack of candor as to whether he “consumed” alcohol
during the debriefing. PFR File, Tab 1 at 17 n.5; IAF, Tab 1 at 13. Further,
although the agency contends that the appellant admitted his comment of “if the
CS said I drank alcohol, then I must have had alcohol” was “inaccurate,” he14
actually testified, “I was wrong in saying that, Your Honor. But at that point, I
didn’t want to use profanity and be charged with unprofessional conduct.” PFR
File, Tab 1 at 18; HT at 332 (testimony of the appellant). Although we
understand the agency’s arguments about the appellant’s responses and the timing
of those responses, it is not obvious, and we do not agree, that the appellant
necessarily made false statements as to whether he consumed alcohol given the
repeated and convoluted nature of the agency’s questions during the investigative
interview and after considering the appellant’s answers in context. IAF, Tab 5
at 406-490.
¶21In any case, we find that the appellant did not knowingly give an incorrect
or incomplete statement. Although the administrative judge may not have made
an explicit finding as to this second prong of the lack of candor test because she
found that the appellant did not give a false statement, she made credibility
findings that are sufficient to satisfy the same. Specifically, as noted above, the
administrative judge concluded that she was “not convinced” the appellant lacked
candor when he stated, “if the CS said I drank, I drank,” because she credited his
testimony that he was frustrated with the investigative interview. ID at 15-16.
We find that this is an implicit finding that the appellant did not give a knowingly
false statement. Although the agency challenges the appellant’s contention that
he was frustrated by the interview, its argument really boils down to disagreement
with the administrative judge’s credibility determinations. PFR File, Tab 1
at 18-19. However, the Board must give deference to an administrative judge’s
credibility determinations when they are based, explicitly or implicitly, on
observing the demeanor of witnesses testifying at a hearing, and the Board may
overturn such determinations only when it has “sufficiently sound” reasons for
doing so. Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002).
The agency has not presented sufficiently sound reasons here. Furthermore, in
this regard we note that the two “conflicting” responses the agency alleges the
appellant gave as to whether he consumed alcohol at the debriefing—“Sir, to my15
recollection, I do not recall if I drank alcohol,” followed by, “If this CS told you
that I had alcohol at that meeting then I had alcohol at that meeting”—were both
made during the interaction in which the administrative judge credited the
appellant’s testimony that he was frustrated. PFR File, Tab 1 at 17; IAF, Tab 1
at 13-14, Tab 5 at 457. Consequently, we find the agency’s arguments unavailing
and affirm as modified her decision to not sustain the lack of candor charge.
The administrative judge properly found that the agency did not prove the fourth
charge, false statement/documents.
¶22To establish a charge of misrepresentation, falsification, or lying, an agency
must prove that an appellant (1) supplied wrong information; and (2) knowingly
did so with the intention of defrauding, deceiving, or misleading the agency for
his own private material gain. Boo v. Department of Homeland Security ,
122 M.S.P.R. 100, ¶¶ 10-12 (2014). In the NOPR, the agency alleged that during
the appellant’s third supplemental investigative interview on September 8, 2021,
the appellant “knowingly provided false statements to OPR Inspectors’ questions
regarding whether [he] spoke with anyone about [his] OPR interview, or theirs,
with the intent to deceive DEA and evade the consequences for violating the
[O]PR Confidentiality Agreement.” IAF, Tab 1 at 17. The NOPR explained that
during the appellant’s first OPR interview on April 30, 2021, the appellant signed
a confidentiality agreement prohibiting him from disclosing to anyone that he had
been interviewed by OPR or that OPR was conducting an investigation into the
meeting with the CS, that the agency later questioned the appellant about whether
he had discussed the information from his OPR interview with anyone else or if
anyone else discussed their OPR interview with him and that the appellant
answered in the negative, and that the appellant’s statements that he did not
violate the confidentiality agreement were false because RD Palmeri signed a
sworn statement admitting that he and the appellant had discussed the appellant’s
OPR interview. Id. at 17-18. 16
¶23In the initial decision, the administrative judge thoroughly reviewed the
NOPR and the testimony related to this charge, including the appellant’s and
RD Palmeri’s testimony that RD Palmeri called the appellant on April 30, 2021,
and directly asked him whether he had been interviewed by OPR, that the
appellant responded affirmatively, and that no other details of the interview were
discussed. ID at 16-19. She also noted that the appellant testified that he did not
believe telling RD Palmeri about his OPR interview was a violation of the
confidentiality agreement because RD Palmeri was his SES supervisor and
employees are required to notify their supervisors when being interviewed by
OPR; that he did not discuss the contents of his interview with anyone; and that
he believed that he was providing truthful responses to OPR’s questions. ID
at 18-19. The administrative judge thereafter concluded that although there was
no doubt that the appellant supplied incorrect information to OPR, he did not do
so knowingly. ID at 19-20. The administrative judge credited the appellant’s
testimony that he believed he was answering the OPR’s interview questions
truthfully, including because his demeanor at the hearing was “straightforward
without dissimulation” and his “testimony was direct and matter of fact with no
pretense.” ID at 19. She also found that because the appellant informed his West
Palm Beach supervisors that he had been interviewed by OPR, it was
“understandable” that he believed he needed to inform RD Palmeri when directly
asked, and because she credited the appellant’s testimony that he interpreted
OPR’s questions as going to the content of his previous interviews rather than the
mere fact that he was interviewed at all. ID at 19-20.
¶24On review, the agency recognizes that the administrative judge made
explicit demeanor-based credibility determinations with respect to this charge and
that our reviewing court has held, as noted above, that the Board must defer to an
administrative judge’s findings regarding credibility when those findings are
based on the demeanor of the testifying witnesses and that it may overturn
demeanor based credibility findings only if the Board has sufficiently sound17
reasons for doing so. Haebe, 288 F.3d at 1301; PFR File, Tab 1 at 20. Here, the
administrative judge appropriately relied on the factors set forth in Hillen,
35 M.S.P.R. at 458, to assess witness credibility and found the appellant to be
credible. ID at 19. The agency does not challenge the administrative judge’s
demeanor-based credibility findings, but instead argues that because the
administrative judge’s two “remaining reasons” for finding that the appellant did
not knowingly supply incorrect information are erroneous, her finding that the
agency did not prove this charge is “untenable.” PFR File, Tab 1 at 19-22.
Nevertheless, the fact remains that the administrative judge’s conclusion is based
on her demeanor-based credibility findings and that the agency has failed to
provide a basis for disturbing those credibility findings. Therefore, we do not
disturb the administrative judge’s determination that the agency did not prove the
charge of false statement/documents.
We discern no error in the administrative judge’s decision to mitigate the penalty
to a letter of reprimand.
¶25As discussed above, although the administrative judge did not sustain three
of the agency’s charges, she did sustain the charge of failure to follow written or
oral instructions, which alleged that the appellant failed to follow written
instructions when he failed to prepare and submit a DEA-6 form documenting the
February 25, 2021 debriefing within 10 business days of the debriefing. ID at 16;
IAF, Tab 1 at 15. When, as here, not all of the agency’s charges are sustained,
the Board will consider carefully whether the sustained charges warrant the
penalty imposed by the agency. Blank v. Department of the Army , 85 M.S.P.R.
443, ¶ 9 (2000), aff’d, 247 F.3d 1225 (Fed. Cir. 2001). In doing so, the Board
must first examine whether the agency has indicated either in its final decision or
during proceedings before the Board that it desires a lesser penalty in the event
not all of the charges are sustained. LaChance v. Devall , 178 F.3d 1246, 1260
(Fed. Cir. 1999). If the agency has not so indicated, the Board may presume that
the agency desires the maximum reasonable penalty and must examine whether18
the agency-imposed penalty is within the maximum limits of reasonableness. Id.
The Board is ultimately required to independently balance the relevant Douglas
factors with heightened sensitivity when reviewing agency penalties upon fewer
charges than those brought by the agency. Id. at 1257; see Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981) (articulating a nonexhaustive list
of 12 relevant factors to be considered in determining the appropriateness of an
imposed penalty).
¶26Here, the administrative judge reviewed the testimonial and documentary
evidence and found that, although the deciding official testified that the failure to
follow instructions charge was the least serious charge, the agency never stated
that it desired that a lesser penalty be imposed if only one of the four charges was
sustained. ID at 22; HT at 154 (testimony of S. Sutherland). The administrative
judge therefore reviewed the penalty determination to determine whether removal
was the maximum reasonable penalty for the single, sustained charge.4 ID at 22.
The administrative judge discussed S. Sutherland’s testimony that the appellant’s
failure to timely submit a DEA-6 form was serious because that form documents
not only the contents of the interview but the fact that it occurred, and the fact
that he did not credit the fact that RD Palmeri instructed the appellant to delay
preparing the DEA-6 form until after the appellant completed language school
and could return to the CS for a follow-up interview. ID at 22. While the
administrative judge acknowledged the agency’s need to keep timely and accurate
records, she concluded that S. Sutherland’s assessment of the charge was
erroneous because he did not consider as mitigating the fact that an SES directed
the appellant not to submit a report at the time of the February 25 debriefing and
that the appellant eventually submitted a DEA-6 form memorializing the
information obtained during the debriefing. ID at 22-23. The administrative
judge concluded that considering the appellant had no prior disciplinary record
4 In the initial decision, the administrative judge stated that her analysis turned on
“whether demotion was in fact the maximum reasonable penalty,” instead of removal,
however this seems to be a simple editing error. ID at 22 (emphasis added). 19
and a good performance, removal was beyond the maximum reasonable penalty
based on the sustained charge and that mitigation to a letter of reprimand was
warranted. ID at 23.
¶27On review, the agency argues that the administrative judge erred in
mitigating the penalty because the record shows that the RD Palmeri never
directed the appellant not to submit a DEA-6 form, and instead only directed him
to conduct a full debrief of the CS when he was done with language school, and
because the appellant’s later-submitted DEA-6 report did not mention the actual
February 25 meeting and such information was needed to verify that the interview
actually occurred. PFR File, Tab 1 at 22-23. However, the administrative judge
considered all of these points in the initial decision. ID at 16, 22-23. The
agency’s arguments again disagree with the administrative judge’s evaluation of
the evidence, which provides no basis for granting its petition for review. See
Broughton, 33 M.S.P.R. at 359.
¶28The agency also argues that the administrative judge “abused her
discretion” and erred in her application of the law in mitigating the penalty
because she did not indicate that she balanced the Douglas factors and she did not
express how she concluded that a letter of reprimand was warranted. PFR File,
Tab 1 at 23. Contrary to the agency’s assertion, however, the administrative
judge explicitly discussed Douglas and recited the list of factors to be determined
in considering the appropriateness of the penalty. ID at 21-22. In her penalty
analysis, the administrative judge also explicitly considered Douglas factors such
as the nature and seriousness of the offense, the appellant’s past disciplinary
record, the appellant’s past work record and his performance on the job, and
numerous mitigating circumstances surrounding the charge. ID at 22-23; see
Douglas, 5 M.S.P.R. at 305. The agency has not pointed us to any specific
Douglas factor that is especially relevant here that the administrative judge failed
to consider or that supports a different penalty. PFR File, Tab 1 at 23; see20
Douglas, 5 M.S.P.R. at 306 (explaining that not all of the 12 factors will be
pertinent in every case).
¶29To the extent the agency suggests that a more severe penalty is warranted
and contends that the administrative judge only presented a cursory analysis in
deciding that a letter of reprimand was appropriate in this case, although we
supplement the administrative judge’s penalty analysis herein, we are not
persuaded that the administrative judge erred. PFR File, Tab 1 at 22-23. In
addition to the Douglas factor findings above that the administrative judge
properly discussed, we have considered, as did the deciding official, that the
appellant has over 24 years of Federal service and 17 years of service as a Special
Agent, that the appellant’s misconduct did not negatively affect the DEA’s
reputation, and that a letter of reprimand is consistent with the agency’s table of
penalties, which provides for a reprimand to removal for a first offense of failure
to follow written or oral instructions. See Douglas, 5 M.S.P.R. at 305-06; IAF,
Tab 4 at 23-25. Although we note that the Board has long recognized that law
enforcement officers are held to a higher standard of conduct than other
employees, we find that here, the appellant’s singular failure to follow
instructions in timely completing the DEA-6 form does not bear on his integrity,
truthfulness, credibility, or ability to perform his duties at a satisfactory level, or
indicate that he has a poor potential for rehabilitation. Cantu v. Department of
the Treasury, 88 M.S.P.R. 253, ¶ 8 (2001); see Douglas, 5 M.S.P.R. at 305-06;
IAF, Tab 4 at 23-29. Upon balancing all of the relevant Douglas factors, we
agree with the administrative judge’s decision to mitigate the penalty to a letter of
reprimand.
ORDER
¶30We ORDER the agency to cancel the removal action and substitute it with a
letter of reprimand. See Kerr v. National Endowment for the Arts , 726 F.2d 73021
(Fed. Cir. 1984). The agency must complete this action no later than 20 days
after the date of this decision.
¶31We 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.
¶32We 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).
¶33No 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).
¶34For 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 the22
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
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.23
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 24
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 25
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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. 26
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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.C27
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. | Gannelli_SamuelAT-0752-22-0454-I-1__Final_Order.pdf | 2024-04-24 | SAMUEL GANNELLI v. DEPARTMENT OF JUSTICE, MSPB Docket No. AT-0752-22-0454-I-1, April 24, 2024 | AT-0752-22-0454-I-1 | NP |
1,685 | https://www.mspb.gov/decisions/nonprecedential/Fred_James_F_CH-0752-17-0556-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES F. FRED,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
CH-0752-17-0556-I-1
DATE: April 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Charles Allenberg , Esquire, Virginia Beach, Virginia, for the appellant.
Leslie J. Hackett , Tomah, Wisconsin, for the appellant.
David D. Gorman and Danielle Vice , Springfield, 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 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).
2
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
clarify the administrative judge’s disparate penalty analysis to comport with our
recent holding in Singh v. U.S. Postal Service , 2022 MSPB 15, we AFFIRM the
initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was a Surface Maintenance Mechanic, WG-10. Initial
Appeal File (IAF), Tab 4 at 41. In 2009, and again in 2014, he successfully
completed “Travel Card 101” training, which is a training program used to outline
the proper use and limitations of a Government Travel Charge Card (GTCC). Id.
at 91, 104. He also twice completed forms acknowledging, among other
responsibilities, that the GTCC was for official travel expenses only and that
misuse could result in discipline. Id. at 90, 103. On June 7, 2017, the agency
proposed his removal for “[d]eliberate or negligent Travel Card misuse, abuse,
delinquency and fraud.” Id. at 41. The specifications include 113 unauthorized
charges between January 12, 2015, and May 18, 2017, while the appellant was not
on official travel. Id. Items improperly charged included cell phones, meals,
fuel, and ATM cash advances. Id. The charges totaled $522.58. Id.
The appellant subsequently responded to the proposed removal. IAF, Tab 4
at 75-76. According to the appellant, in 2014, he received a personal credit card
3
that looked identical to his GTCC. Id. at 75. He claimed that, as a result, he
mistakenly used his GTCC on a few occasions thinking it was his personal card.
Id. He further alleged that the first time he did so he contacted an agency finance
office and was told to “just pay it off no big deal.” Id. He made the same error a
number of times. Id. Because he did not receive any reprimand or counseling for
these incidents, he “began to believe” that it was an acceptable practice so long as
he paid the balance on time. Id. The appellant additionally claimed that it was
his understanding that he could use his GTCC a few days prior to being on travel
status to ensure that the card was working and to make purchases for the
upcoming travel, such as for fuel, snacks, and personal hygiene products. Id.
The appellant further admitted to receiving the GTCC training, but claimed that,
during the 2014 time period, he was on medication for mild post-traumatic stress
disorder, anxiety, and sleep disorder. Id. This medication affected his ability to
absorb and retain the travel card training information. Id. Finally, the appellant
argued that, because this was a first offense and most of the charges would not
have occurred had he been initially warned, the punishment of removal was
unwarranted. Id. at 76.
On August 21, 2017, after reviewing the appellant’s response, the agency
issued a final decision. Id. at 81. The deciding official conducted an analysis of
the Douglas factors and, despite mitigating factors weighing in the appellant’s
favor, decided to uphold the removal. Id. at 84-89; see Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981) (setting forth a non-exhaustive list
of relevant factors to consider in determining the appropriateness of a penalty).
The appellant filed an appeal with the Board. IAF, Tab 1. In his appeal, he
claimed that the penalty of removal was arbitrary and excessive. Id. at 6. He also
claimed that the deciding official failed to properly consider the Douglas factors,
other employees received lesser penalties for the same conduct, and the agency
did not attempt to determine if he fully understood the proper GTCC usage
4
procedures. Id. The appellant waived his right to a hearing and requested that
the matter be decided on the written record. IAF, Tab 21 at 1.
The administrative judge issued an initial decision affirming the appellant’s
removal. IAF, Tab 28, Initial Decision (ID). She construed the charge as
“whether the appellant knew, or should have known, he was misusing the
Government travel card issued to him.” ID at 4-5. The administrative judge
found that the agency proved its charge. ID at 9. In reaching her conclusion, she
found that the appellant’s excuses for using the card were not credible. ID at 7-8.
According to the administrative judge, the appellant’s responses varied over the
course of the appeal. Id. He claimed that he used the GTCC in error because it
looked identical to his personal card, he thought he could use the card a few days
before official travel to prepare for it, he thought he had to occasionally use the
card to prevent it from being deactivated, and it was his impression that the use of
the card for personal reasons was “no big deal” so long as he paid it off. Id.
Because the appellant occupied a position of trust and responsibility, and his
misuse of the GTCC negatively impacted the agency’s confidence in his ability to
perform his duties, the administrative judge found that the agency established a
nexus between the misconduct and the agency’s mission. ID at 9-10.
The administrative judge affirmed the removal penalty. ID at 11-14. She
determined that the deciding official appropriately considered the relevant
Douglas factors and reasonably exercised management discretion in making the
penalty determination. ID at 13-14. Although the appellant alleged that others
were subject to lesser penalties, the administrative judge found that he did not
present evidence of any employee whose misconduct was as egregious. ID at 14.
Accordingly, she found that the penalty imposed was reasonable. Id.
The appellant has filed a petition for review, to which the agency has
responded. Petition for Review (PFR) File, Tabs 1, 3. The appellant does not
dispute the finding that he inappropriately used his GTCC, or that a nexus exists
between the misconduct and the agency’s mission. Rather, the appellant’s
5
argument on review is that the penalty of removal is beyond the bounds of
reasonableness. PFR File, Tab 1 at 4. The appellant seeks a lesser penalty for
numerous reasons. He argues that, although he inappropriately used the card over
a 2-½ year time span, had he been disciplined when he first misused the card, he
would not have repeated the misconduct. Id. at 5. He reasserts that, because
other similar employees engaged in similar misconduct but did not receive such a
harsh penalty, the agency must prove a legitimate reason exists for the difference
in treatment. Id. at 6. He cites several cases in which the Board has found that,
although misuse of a GTCC is a serious offense, it does not warrant removal. Id.
at 6-7. Finally, he provides his own analysis of the Douglas factors and claims
that the deciding official here failed to weigh the relevant mitigating factors. Id.
at 7-8.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has not challenged the administrative judge’s findings that
the agency proved its charge and established a nexus between the charge and the
efficiency of the service. In fact, the appellant admits that he bears responsibility
for the misuse of his GTCC. PFR File, Tab 1 at 4. Therefore, we discern no
reason to disturb the administrative judge’s well-reasoned findings as to the
charge and nexus. The appellant only disputes that his removal was within the
tolerable limits of reasonableness. We are not persuaded and affirm the removal
penalty.
When, as here, the Board sustains all of the charges in an adverse action, it
will review an agency-imposed penalty only to determine if the agency
considered all of the relevant factors and exercised management discretion within
the tolerable limits of reasonableness. Raco v. Social Security Administration ,
117 M.S.P.R. 1, ¶ 13 (2011). In determining whether the selected penalty is
reasonable, the Board gives due deference to the agency’s discretion in exercising
its managerial function of maintaining employee discipline and efficiency. Id.
6
The Board recognizes that its function is not to displace management’s
responsibility or to decide what penalty it would impose, but to assure that
management judgment has been properly exercised and that the penalty selected
by the agency does not exceed the maximum limits of reasonableness. Id.
The Board has identified several factors as relevant in determining the
appropriateness of a penalty. Id., ¶ 14 (citing Douglas, 5 M.S.P.R. at 305-06).
Of the non-exhaustive factors listed, the Board has held that the most important
of the Douglas factors is the nature and seriousness of the offense. Id. As the
agency determined, and the administrative judge agreed, the appellant’s offense
was serious. ID at 13-14; IAF, Tab 4 at 84; see Brown v. Department of the
Army, 96 M.S.P.R. 232, ¶ 11 (2004) (finding no question that the appellant’s
instances of unauthorized use of a Government credit card, which included
permitting the account to remain delinquent, was serious).
The appellant cites several decisions in which the Board mitigated a
removal of an employee charged with travel card misuse. PFR File, Tab 1 at 6-7.
However, these cases are distinguishable from the appellant’s case. In Johnson v.
Department of the Treasury , 15 M.S.P.R. 731 (1983), aff’d, 770 F.2d 181 (Fed.
Cir. 1983) (Table), the Board mitigated the penalty to a demotion because, in
large part, the appellant was charged with unintentional misuse of a credit card.
Johnson, 15 M.S.P.R. at 736. Here, the appellant’s misuse was intentional.
ID at 4-9. Additionally, the record indicated that the appellant in Johnson was
not specifically on notice that his conduct was in violation of any agency
regulations. Johnson, 15 M.S.P.R. at 735-36. Likewise, in Nelson v. Veterans
Administration, 22 M.S.P.R. 65 (1984), the Board found a 30-day suspension was
the maximum reasonable penalty for personal use of a Government credit card
when the agency did not prove that the appellant had been put on notice that his
conduct violated the agency’s policies. Nelson, 22 M.S.P.R. at 70-71. Here, the
appellant was specifically on notice of the policies surrounding use of his GTCC,
7
and even admitted to initially reporting its misuse. IAF, Tab 4 at 75, 90-91,
103-104.
The appellant further claims that the deciding official here failed to
appropriately weigh the mitigating factors. PFR File, Tab 1 at 8. Among those
factors listed by the appellant is that the agency suffered no financial loss. Id.
at 7. Generally, a deciding official need not show that he considered all of the
mitigating factors. Batara v. Department of the Navy , 123 M.S.P.R. 278, ¶ 5
(2016). The Board will independently weigh the relevant factors only if the
deciding official failed to demonstrate that he considered any specific, relevant
mitigating factors before deciding the penalty. Id. Here, the deciding official
stated, as to the seriousness of the offense, that the appellant “did not exceed his
time limitation” for paying the card balance. IAF, Tab 4 at 84. Thus, he
considered not only that the appellant paid off his card, but also that he did so on
time, eliminating any fee for late payment. Id. Nonetheless, he found the
seriousness of the appellant’s misconduct to be an aggravating penalty factor
given the nature of the misconduct and that it occurred 113 times over a 2-½ year
period. Id. Because the deciding official specifically considered the costs
averted by the appellant’s payment of his card, we find he considered that the
agency suffered no financial loss; thus, we are not persuaded by the appellant’s
argument to the contrary.
The remainder of the mitigating factors cited by the appellant were
appropriately analyzed by the deciding official. PFR File, Tab 1 at 7-8; IAF,
Tab 4 at 84-89. In fact, he considered as mitigating factors the appellant’s lack of
prior discipline, past record of performance and years of service, potential for
rehabilitation, and personal circumstances. IAF, Tab 4 at 85-88. The appellant
here is merely trying to substitute his weighing of the factors for that of the
deciding official, an exercise the Board will not conduct in deciding whether a
given penalty is appropriate. See Adam v. U.S. Postal Service , 96 M.S.P.R. 492,
¶ 7 (2004) (explaining that it is not the Board’s role to decide what penalty it
8
would impose, but rather whether the penalty selected by the agency exceeds the
maximum reasonable penalty), aff’d, 137 F App’x 352 (Fed. Cir. 2005).
In doing so, the appellant argues that his immediate supervisor stated that
he still has confidence in the appellant and the appellant has rehabilitative
potential. PFR File, Tab 1 at 7; IAF, Tab 10 at 20. The penalty judgment
belongs to the agency, not to an appellant’s supervisor, and a supervisor’s
opinions are insufficient to overcome the agency’s judgment concerning the
seriousness of the misconduct and the appropriateness of the agency-imposed
penalty. Batara, 123 M.S.P.R. 278, ¶ 7. The deciding official clearly stated that
the appellant’s misconduct caused a loss in confidence. IAF, Tab 4 at 86. We
discern nothing improper in this determination.
The appellant further claims that, had he been punished earlier, or received
progressive discipline, his misconduct would have stopped and the amount and
length of time of his GTCC misuse would not have been so severe. PFR File,
Tab 1 at 5. However, this argument was similarly weighed by the deciding
official. IAF, Tab 4 at 87. He considered the appellant’s claim that he received
“mixed messages” when the finance office allegedly told him to pay off his card
after the first instance of misuse and he suffered no penalty. Id. However, he
found that the appellant was on clear notice that his conduct was unacceptable
because he received training and acknowledged that the GTCC was for official
travel expenses only. Id. at 87, 90-91, 103-104.
Finally, the appellant reasserts his claim that the agency treated similarly
situated employees more favorably. PFR File, Tab 1 at 6. The administrative
judge found that none of the appellant’s alleged comparators were similar in
terms of the length of time or number of instances of misuse. ID at 3. We agree.
We clarify the administrative judge’s reasoning to comport with the Board’s
recent decision in Singh. As the Board held in Singh, while no single factor is
outcome determinative, the fact that two employees come from different work
units and/or supervisory chains remains an important factor in determining
9
whether it is appropriate to compare the penalties they are given. Singh,
2022 MSPB 15, ¶ 13. In most cases, employees from another work unit or
supervisory chain will not be proper comparators. Id. Accordingly, there must be
a close connection between the misconduct or some other factor for an employee
from another work unit or supervisory chain to be a proper comparator for
disparate penalty purposes. Id. The universe of potential comparators will vary
from case to case, but it should be limited to those employees whose misconduct
and/or other circumstances closely resemble those of the appellant. Id.
Here, the employees cited by the appellant are both from different work
units and different supervisory chains. IAF, Tab 4 at 105-114. Although charged
with similar offenses, there is no common factor the appellant shares with the
employees, such as conspiring with them to misuse their cards, to make them
proper comparators for a disparate penalty analysis. See Williams v. Social
Security Administration , 586 F.3d 1365, 1368-69 (Fed. Cir. 2009) (finding the
employees comparators when, despite their different supervisors, the agency’s
discipline stemmed from both employees’ involvement in the same tax fraud
scheme). As such, the deciding official’s analysis of this factor was proper when
he indicated that “[n]o other employee under [his] supervision has committed
offenses similar to those alleged.” IAF, Tab 4 at 86. As he further explained, the
examples provided by the appellant “did not have the [same high] volume of
transactions or length of time” over which those transactions were conducted as
the appellant. Id. at 87.
Based on the foregoing, we agree with the administrative judge that the
deciding official properly considered the relevant Douglas factors and that the
penalty of removal is within the tolerable limits of reasonableness for the
sustained misconduct.
10
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for 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.
11
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal 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
12
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.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
13
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a 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.
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. | Fred_James_F_CH-0752-17-0556-I-1__Final_Order.pdf | 2024-04-24 | JAMES F. FRED v. DEPARTMENT OF THE ARMY, MSPB Docket No. CH-0752-17-0556-I-1, April 24, 2024 | CH-0752-17-0556-I-1 | NP |
1,686 | https://www.mspb.gov/decisions/nonprecedential/Stockton_ShamarcusDA-0752-13-1025-B-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHAMARCUS STOCKTON,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DA-0752-13-1025-B-2
DATE: April 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael D.J. Eisenberg , Esquire, Washington, D.C., for the appellant.
Gloria Briseno , Texarkana, 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 remand initial decision,
which found that he failed to prove his affirmative defense of equal employment
opportunity (EEO) retaliation and readopted the previous findings that the agency
proved its charges and the penalty was reasonable. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to clarify the analysis of the appellant’s affirmative defense of
retaliation for EEO activity, we AFFIRM the initial decision.
BACKGROUND
The appellant was employed as an Information Technology (IT) Specialist
(Network/Infosec). Stockton v. Department of the Army , MSPB Docket No. DA-
0752-13-1025-I-1, Initial Appeal File (IAF), Tab 3 at 8. In November 2012, he
told an agency employee responsible for processing personnel matters that he
applied for a noncompetitive promotion and questioned why he was not on the list
of best-qualified candidates. Id. at 76, 101. Upon hearing that the agency could
not locate his application, he submitted both what he claimed was a letter
acknowledging his application and a screenshot indicating that the status for his
application to the position was unavailable. Id.; Stockton v. Department of the
Army, MSPB Docket No. DA-0752-13-1025-I-3, Appeal File (I-3 AF), Tab 5
at 19-20.
On January 15, 2013, the appellant initiated contact with an agency EEO
counselor. Id. at 33. He asserted that the agency did not select him for the
promotion because of discrimination on the basis of race and age. Id. at 33-37.
He later elected not to file a formal EEO complaint. Id. at 26. He also testified2
in February 2013 in his coworker’s Board appeal, in which his coworker raised a
discrimination claim. Stockton v. Department of the Army , MSPB Docket
No. DA-0752-13-1025-B-2, Remand File (B-2 RF), Tab 24, Hearing Compact
Disc (B-2 HCD) at 28:00-28:50 (testimony of the appellant).2
The agency ordered an inquiry to determine whether the appellant provided
altered or falsified documents in an attempt to obtain eligibility for consideration
for the promotion. IAF, Tab 3 at 57-61. The appellant told the inquiry officer
and another agency employee that he failed to receive consideration for the
promotion because of a computer glitch. Id. at 58; I-3 AF, Tab 5 at 65. After
conducting the inquiry, the inquiry officer concluded that preponderant evidence
established that the appellant submitted an altered acknowledgment letter in an
attempt to obtain eligibility for consideration for the promotion and that the
appellant’s assertion that a computer glitch had affected his application
submission and acknowledgment letter was not credible. IAF, Tab 3 at 60.
On April 10, 2013, the agency proposed to remove the appellant on the
basis of the following charges: (1) he provided the agency with an altered email,
“Subject: Re: Acknowledgment of Occupational Questionnaire,” to support his
assertion that he applied, but failed to receive consideration, for a position; and
(2) lack of candor when he told an agency official and an inquiry officer that a
computer glitch was the reason his acknowledgment email appeared different
from those of other applicants. Id. at 20, 55-56. The appellant responded both
orally and in writing. Id. at 15-54. After considering the responses, the agency
imposed the appellant’s removal, effective June 29, 2013. Id. at 9-14. He filed
the instant appeal challenging his removal. IAF, Tab 1.
After conducting the appellant’s requested hearing, the administrative
judge issued an initial decision sustaining the removal. Stockton v. Department of
the Army, MSPB Docket No. DA-0752-13-1025-I-3, Initial Decision (I-3 ID)
2 On cross-examination, the administrative judge clarified that the appellant testified in
a mixed-case before the Board. I-3 HCD at 45:03-45:15 (statement of the
administrative judge).3
(May 29, 2015); I-3 AF, Tab 30. The appellant filed a petition for review, and
the agency responded in opposition to his petition. Stockton v. Department of the
Army, MSPB Docket No. DA-0752-13-1025-I-3, Petition for Review (PFR) File,
Tabs 1, 3.
The Board issued a remand order granting the appellant’s petition for
review, vacating the initial decision, and remanding the appeal for further
adjudication. Stockton v. Department of the Army , MSPB Docket No. DA-0752-
13-1025-I-3, Remand Order (Oct. 9, 2015) (Remand Order); PFR File, Tab 4.
The Board determined that the administrative judge assigned to the appeal at the
time properly sustained the charges and found that the agency established nexus.
Remand Order, ¶ 6-18. Citing Gath v. U.S. Postal Service , 118 M.S.P.R. 124,
¶ 11 (2012), which in turn cites Wynn v. U.S. Postal Service , 115 M.S.P.R. 146,
¶ 10 (2010), the Board found that the administrative judge failed to identify the
appellant’s affirmative defense of EEO retaliation in his prehearing conference
summary, provide the appellant with notice of his burden for establishing this
defense, or address it in the initial decision. Id., ¶ 19-21. Thus, the Board
vacated the administrative judge’s decision sustaining the removal and remanded
the appeal for adjudication of the affirmative defense, stating that, if the
administrative judge denied the affirmative defense, he could readopt the
previous findings concerning the charges and the penalty.3 Id., ¶ 21.
3 After the issuance of the remand order, the Board issued Thurman v. U.S. Postal
Service, 2022 MSPB 21. In Thurman, the Board overruled the underlying finding in
Wynn that the Board must sua sponte raise the issue of whether an appellant waived or
abandoned an affirmative defense. Thurman, 2022 MSPB 21, ¶ 17 n.6. Instead, the
Board stated that, in determining whether an administrative judge erred in not
addressing an appellant’s affirmative defenses such that remand is necessary, the Board
will examine a number of factors that are instructive as to the ultimate question of
whether an appellant demonstrated his intent to continue pursuing his affirmative
defense, and whether he conveyed that intent after filing the initial appeal. Id.,
¶¶ 17-18. We find it unnecessary to revisit the Board’s remand order in the instant
appeal. Regardless of whether Thurman would have precluded the appellant from
further pursuing his EEO retaliation claim, we find that he failed to establish this claim
on remand. 4
On remand, the case was assigned to a new administrative judge. She
provided the appellant with notice of his burden for establishing EEO retaliation
and ordered the parties to submit specific evidence and argument in support of
their burdens of proof with respect to the defense. B-2 RF, Tab 4. Both the
appellant and the agency responded. B-2 RF, Tabs 11, 14. After conducting a
hearing on the issue of EEO retaliation, the administrative judge found that the
appellant failed to establish this affirmative defense and adopted the previous
findings sustaining the charges and determining that the penalty was reasonable.
Stockton v. Department of the Army , MSPB Docket No. DA-0752-13-1025-B-2,
Remand Initial Decision (RID) at 4-11 (Feb. 20, 2018); B-2 RF, Tab 25.
The appellant has filed a petition for review, and the agency has responded
in opposition to his petition. Stockton v. Department of the Army , MSPB Docket
No. DA-0752-13-1025-B-2, Remand Petition for Review (RPFR) File, Tabs 1, 3.
The appellant has filed an untimely reply, which, as described in further detail
below, we have not considered. RPFR File, Tab 18.
DISCUSSION OF ARGUMENTS ON REVIEW
We have not considered the appellant’s untimely reply.
Any reply to a response to a petition for review must be filed within
10 days after the date of service of the response to the petition for review.
5 C.F.R. § 1201.114(e). The Board will grant a motion for extension of time to
file a pleading, such as a reply, only if the party submitting the motion shows
good cause. 5 C.F.R. § 1201.114(f). The Board has the discretion to grant or
deny such a motion. Id. Motions for extensions must be filed with the Clerk of
the Board on or before the date on which the petition or other pleading is due. Id.
Additionally, any untimely pleading that is filed late must be accompanied by a
motion that shows good cause for the untimely filing, unless the Board has
specifically granted an extension of time or a motion for extension is pending
before the Board. 5 C.F.R. § 1201.114(g).5
The agency filed its response via e-Appeal, and it was served electronically
on the appellant on April 16, 2018. RPFR File, Tab 3. Thus, the appellant’s
reply was due on April 26, 2018. See 5 C.F.R. § 1201.114(e). In the ensuing
period, the appellant timely filed, and the Office of the Clerk of the Board
granted, four motions for extensions of time through July 5, 2018. RPFR File,
Tabs 4-5, 7, 9, 10-13.
On July 5, 2018, the appellant filed a motion in which his attorney asked
that the Office of the Clerk of the Board grant him until July 9, 2018, to file his
reply. RPFR File, Tab 14. His attorney asserted that he did not receive the
hearing transcript until June 27, 2018, and that he had a “24-hour bug” that he
caught, beginning July 3, 2018, that diminished his ability to work on the reply.
Id. at 4-5. On the day of the appellant’s request, the Office of the Clerk of the
Board denied the request and stated that the reply was due on that date. RPFR
File, Tab 15. The appellant did not timely file his reply on July 5, 2018, and
instead, on July 9, 2018, he filed a reply, accompanied by a motion to file out of
time or reopen the record. RPFR File, Tabs 16-18.
In his motion to file out of time or reopen the record, the appellant’s
attorney argued that we should grant his previously requested extension and
consider his reply on the basis of the extraordinary circumstances of his
nonreceipt of the hearing transcripts until June 27, 2018, and the “24-hour bug.”
RPFR File, Tab 16 at 4-5. We find that the appellant has not demonstrated good
cause for his untimely filing because, even if we excluded 1 day for his attorney’s
illness, the attorney still had 7 calendar days after its receipt to prepare his reply.
See Moyer v. Office of Personnel Management , 67 M.S.P.R. 378, 380-81 (1995)
(finding that the appellant did not establish good cause for the 3-day delay in
filing her petition for review on the basis of her attorney’s assertion that she had a
heavy workload and was ill when the attorney did not explain why her various
medical conditions prevented her from filing on time and she worked on other6
cases during the week that the petition was due). Accordingly, we have not
considered the appellant’s reply in rendering our decision.
The administrative judge properly found that the appellant failed to prove his
affirmative defense of EEO retaliation.
The appellant asserts that the administrative judge failed to articulate and
apply the “convincing mosaic” test and did not consider all relevant factors.
RPFR File, Tab 1 at 5-6. He asserts that the administrative judge failed to
consider all of the facts in the context of one another as is required by Savage v.
Department of the Army , 122 M.S.P.R. 612 (2015) , clarified by Gardner v.
Department of Veterans Affairs , 123 M.S.P.R. 647, ¶¶ 30-31 (2016), and clarified
by Pridgen v. Office of Management and Budget , 2022 MSPB 31, including
suspect timing, rushed decisions, and a questionable investigation.4 Id. at 6. In
fact, the administrative judge applied the former burden-shifting standard, which
has been superseded by intervening case law. We therefore modify the initial
decision to apply the correct standard.
The appellant may prove his affirmative defense of retaliation for opposing
race and age discrimination by showing that his protected activity was a
4 For the first time on remand, the appellant appeared to argue that the agency
discriminated against him on the basis of race and age when it removed him. B -2 RF,
Tab 11 at 8-9. On review, he argues that he was assigned work outside of his job
description and the agency denied his request for a job audit. RPFR File, Tab 1
at 7 n.3. He also asserts that he was “one of few minorities” in his workplace. Id. He
asserts that, despite his having raised these issues in his declaration, the administrative
judge did not fully develop them. Id. The appellant’s declaration does not address
these allegations. IAF, Tab 3 at 30-32. Further, he did not raise these issues in his
initial appeal, his closing argument, or his first petition for review. IAF, Tab 1; I-3 AF,
Tab 29; PFR File, Tab 1. The remand order limited the administrative judge’s
consideration to the EEO retaliation issue. Remand Order, ¶ 21. Thus, the
administrative judge was not required to address the appellant’s claims of age and race
discrimination, and we also do not consider these claims. See Sanchez v. Department of
Justice, 14 M.S.P.R. 79, 82 (1982) (stating that, when the appellant only raised a claim
of discrimination on the basis of national origin in his original appeal and the Board’s
remand order only referred to an assertion of discrimination on this basis, the presiding
official did not err when, on remand, he refused to accept evidence related to a claim of
discrimination on a different basis).7
motivating factor in the agency’s decision to remove him. Pridgen, 2022 MSPB
31, ¶¶ 20-22. The appellant may meet this burden by submitting any combination
of direct or indirect evidence, including: (a) evidence of “suspicious timing,
ambiguous statements oral or written, behavior toward or comments directed at
other employees in the protected group, and other bits and pieces from which an
inference of discriminatory intent might be drawn,” also known as “convincing
mosaic”; (b) comparator evidence, consisting of “evidence, whether or not
rigorously statistical, that employees similarly situated to the plaintiff other than
in the characteristic . . . on which an employer is forbidden to base a difference in
treatment received systematically better treatment;” or (c) evidence that the
agency’s stated reason for its action is “unworthy of belief, a mere pretext for
discrimination.”5 Pridgen, 2022 MSPB 31, ¶¶ 23-24.
The appellant asserts that the agency’s timing is suspicious because the
agency launched an investigation against him 1 week after he initiated contact
with an EEO counselor. RPFR File, Tab 1 at 6; I-3 AF, Tab 5 at 33. He also
asserts that he testified on behalf of his coworker in the coworker’s mixed-case
Board appeal on February 3, 2013, and was informed of the investigation shortly
thereafter on February 15, 2013. RPFR File, Tab 1 at 6-7. We agree with the
administrative judge that, although the appellant’s EEO complaint and testimony
at the coworker’s hearing were close in time to the agency’s investigation into his
misconduct and his removal, this timeline did not, in itself, establish that his EEO
activity was a motivating factor in these agency actions. RID at 9-10. As the
5 To the extent that the administrative judge informed the appellant that he could
establish his claim of EEO retaliation through direct evidence or any of the three types
of circumstantial evidence, the Board has since clarified that an appellant may establish
his claim through direct or circumstantial evidence, alone or in combination. Pridgen,
2022 MSPB 31, ¶ 24. In any event, the record reflects that the administrative judge
properly considered the evidence as a whole and did not disregard any evidence because
of its direct or circumstantial nature, or hold the appellant to too high a standard. RID
at 4-10. Therefore, we discern no basis to grant review because of this error.
Karapinka v. Department of Energy , 6 M.S.P.R. 124, 127 (1981) (stating 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).8
administrative judge found, the agency investigation was prompted by the Office
of Personnel Management (OPM) indicating in late January 2013 that the letter
from the appellant appeared to be altered, and there is no evidence that OPM was
aware of the appellant’s EEO activity. RID at 10; IAF, Tab 3 at 78-81. Further,
as the administrative judge stated, it was reasonable for the agency to act shortly
after it received information from OPM. Id. Thus, we agree with her finding that
this timing alone was insufficient to prove that the agency was motivated by
retaliation.
Next, the appellant argues that, in addressing his claim of discrimination,
the administrative judge did not consider that the agency failed to search
nationwide for similarly situated employees. RPFR File, Tab 1 at 7-8 (citing
Woebcke v. Department of Homeland Security , 114 M.S.P.R. 100 (2010),
abrogated on other grounds as recognized in Bowman v. Small Business
Administration, 122 M.S.P.R. 217, ¶¶ 10-11 (2015)). However, Woebcke
addressed the appropriate standard for a claim of disparate penalties, i.e., a claim
that an agency imposed a greater penalty on an appellant than another employee
without a claim of prohibited discrimination. Woebcke, 114 M.S.P.R. 100, ¶ 20.
Here, to be similarly situated for purposes of his disparate treatment claim
alleging discrimination or EEO retaliation, 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. See Hooper v. Department of the Interior , 120 M.S.P.R. 658,
¶¶ 6, 8 (2014). Thus, the agency was not required to conduct a nationwide search
for similarly situated employees.6
The appellant also challenges the agency’s legitimate security interest in
removing him because the appellant argues that the individual that the agency
6 Furthermore, the Board has recently overruled Woebcke in Singh v. U.S. Postal
Service, 2022 MSPB 15, and concluded that, as pertinent here, relevant comparators for
purposes of a disparate penalties analysis generally work in the same unit and
supervisory chain, id., ¶ 13.9
appointed to investigate his misconduct was inexperienced and admitted that if he
had done a more thorough investigation, his opinion in his report would have
changed. RPFR File, Tab 1 at 9-10. The record does not support his contention.
When the Chief of Skills Development, who served as the investigator, was asked
during the hearing whether additional information would have changed his
conclusion that the appellant had submitted an altered acknowledgment letter in
an attempt to obtain consideration for the position, he testified that he did not feel
his inquiry was incomplete and additional information would not have changed
his conclusion. I -3 HCD at 04:11:50-04:13:55. On remand, the appellant’s
counsel asked the Chief of Skills Development whether he testified in the prior
hearing that his opinion would have changed had he done a more thorough
investigation, and he again answered in the negative. B -2 HCD
at 01:45:48-01:46:03 (testimony of the Chief of Skills Development). Thus, the
appellant’s assertion that the Chief of Skills Development admitted that his
opinion would have changed is not supported by the record. Further, there is no
evidence that any alleged lack of experience as an investigator affected the result
of the investigation. Thus, the appellant’s arguments regarding the investigator
are not persuasive.
Additionally, the appellant asserts that the administrative judge failed to
consider all of the evidence, such as his allegation that he was receiving an unfair
and perhaps discriminatory workload and his participation in the Board appeal of
his coworker, who he identifies as a minority employee.7 RPFR File, Tab 1 at 11.
The administrative judge considered that the appellant participated in the other
employee’s Board appeal. RID at 6-10. Further, her failure to mention all of the
evidence of record does not mean that she did not consider it in reaching her
7 The appellant has not asserted a claim of whistleblower retaliation under 5 U.S.C.
§ 2302(b)(9)(B) for testifying for or otherwise lawfully assisting any individual in the
exercise of rights under 5 U.S.C. § 2302(b)(9)(A)(i) or (ii), and the Board did not
remand the appeal for consider of such a claim. Remand Order, ¶¶ 19-20; IAF, Tab 1;
see Sanchez, 14 M.S.P.R. at 82.10
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).
The appellant presents a number of other arguments challenging the remand
initial decision. He asserts that the agency targeted him for extreme punishment
by beginning a full-blown investigation against him rather than contacting human
resources to get clarification regarding his job application. RPFR File, Tab 1
at 7. Additionally, he points to the declaration of a coworker, different from the
one on whose behalf he testified, in which the second coworker stated that he felt
the appellant was fired in retaliation for his testimony on behalf of the first
coworker.8 Id. at 7 n.3; I-3 AF, Tab 16 at 104. The appellant also contends that
the deciding official’s argument that she lost trust in his ability to perform his
duties is belied by the fact that he was able to carry on his duties, which included
access to classified information, for over 4 months after the alleged incident.
RPFR File, Tab 1 at 8. He observes that the agency did not file any criminal
actions against him. Id. at 8-9. Further, he states that if the deciding official was
concerned about trusting him, she should have assigned his case to a more
experienced investigator or scrutinized the investigative report. Id. at 9-10.
Finally, the appellant points to further evidence of retaliation in that, although the
penalty of removal was appropriate under the agency’s table of penalties, it was
an extreme action considering the lack of strong evidence against him. Id.
at 11-12.
The administrative judge found that the agency acted reasonably, the record
supported its conclusions from the investigation, the sustained charges were
serious and directly related to the appellant’s duties and responsibilities as an IT
Specialist, and, although agency officials knew of the appellant’s EEO activity,
8 The second coworker’s declaration actually characterized that the appellant was being
retaliated against for “not testifying against” his first coworker regarding illegal use of
wireless devices and stated that the regulation was violated by almost all personnel
within the Red River Army Depot, Directorate of Information Management when they
used their cellular phones within the walls of the building. I-3 AF, Tab 16 at 104.11
they credibly denied that they were motivated by retaliation. RID at 9-10. The
appellant’s arguments largely reflect disagreement with the administrative judge’s
findings, and thus they do not provide a reason for disturbing the initial decision.9
RID at 9-10; see Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir.
2002) (stating 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 and may overturn such
determinations only when it has “sufficiently sound” reasons for doing so);
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). We
agree with the administrative judge’s conclusion that the appellant failed to show
that his EEO activity was a motivating factor in the agency’s decision to remove
him.10
NOTICE OF APPEAL RIGHTS11
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
9 The appellant asserts that another employee stated that the Director of Information
Management and other members of management told him that the appellant was too
young for his position. RPFR File, Tab 1 at 7, n.3. Pursuant to the Age Discrimination
in Employment Act of 1967, to establish an affirmative defense of age discrimination,
an employee must prove, inter alia, that he is 40 years old or older. 29 U.S.C.
§ 633a(a); see Wingate v. U.S. Postal Service , 118 M.S.P.R. 566, ¶ 7 (2012). Because
the appellant is under 40 years of age, to the extent that he is asserting a claim of age
discrimination that we could consider, such a claim would not succeed. B-2 RF, Tab 14
at 41.
10 Because we affirm the administrative judge’s finding that the appellant failed to show
that any prohibited consideration was a motivating factor in the agency’s action, we
need not resolve the issue of whether the appellant proved that discrimination or
retaliation was a “but -for” cause of the agency’s decisions. See Pridgen, 2022 MSPB
31, ¶¶ 20-22, 29-33.
11 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.12
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular13
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal 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 . 14
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.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 court15
of appeals of competent jurisdiction.12 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
12 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 16
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.17 | Stockton_ShamarcusDA-0752-13-1025-B-2__Final_Order.pdf | 2024-04-23 | SHAMARCUS STOCKTON v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-0752-13-1025-B-2, April 23, 2024 | DA-0752-13-1025-B-2 | NP |
1,687 | https://www.mspb.gov/decisions/nonprecedential/Morley_ThomasPH-0714-18-0023-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THOMAS MORLEY,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-0714-18-0023-I-1
DATE: April 23, 2024
THIS ORDER IS NONPRECEDENTIAL1
Edward Clement Sweeney , Esquire, Exton, Pennsylvania, for the appellant.
Angela Madtes , Esquire, Pittsburgh, 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 his removal pursuant to 38 U.S.C. § 714. For the reasons discussed
below, we GRANT the appellant’s petition for review, VACATE the initial
decision, and REMAND the case to the Northeastern Regional Office for further
adjudication in accordance with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
Effective October 13, 2017, the agency removed the appellant from his
licensed practical nurse position at its medical center in Coatesville, Pennsylvania
pursuant to 38 U.S.C. § 714, the Department of Veterans Affairs Accountability
and Whistleblower Protection Act of 2017, Pub. L. No. 115-41, § 202(a),
131 Stat. 362 (DVAAWPA). Initial Appeal File (IAF), Tab 4 at 27. According to
the agency, in or around July 2017, the appellant’s supervisor learned of a
Facebook post showing that the appellant was working as a real estate agent for
Long & Foster Real Estate while on approved leave for a serious health condition
pursuant to the Family and Medical Leave Act. Id. at 160. Thereafter, the
agency tasked two agency police officers with investigating the appellant’s real
estate activities. Id. at 147. The police officers contacted the appellant
undercover, pretended to be interested in buying a house, and had the appellant
show them a house that was for sale. Id. Subsequently, the agency proposed the
appellant’s removal based on three charges of unauthorized absence, obtaining
leave under false pretense, and lack of candor. Id. at 30-32. After affording the
appellant an opportunity to respond, the deciding official issued a removal
decision, finding that the charges were supported by substantial evidence.
Id. at 34-36.
The appellant filed a Board appeal, challenging his removal and raising
affirmative defenses of disability discrimination and harmful procedural error
based on the agency’s alleged improper investigation of him. IAF, Tab 1 at 3;
Tab 21 at 13-14; Tab 23 at 2. After holding the appellant’s requested hearing, the
administrative judge issued an initial decision, sustaining the appellant’s removal.
IAF, Tab 38, Initial Decision (ID). During the course of the hearing, the agency
withdrew its charge of obtaining leave under false pretense after failing to
produce an agency policy that provided it authority to conduct its off-site
investigation into the appellant’s real estate activities and conceding that it lacked2
the requisite authority.2 ID at 4-6. The administrative judge found that the
agency proved its lack of candor charge but did not prove its unauthorized
absence charge. ID at 11-19. He further found that the appellant failed to prove
his affirmative defenses. ID at 11, 20-22.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has not responded to the appellant’s petition.
DISCUSSION OF ARGUMENTS ON REVIEW
We remand the appeal for the administrative judge to provide the parties with an
opportunity to present evidence and argument regarding whether the agency’s
error in reviewing the proposed removal for substantial evidence was harmful.
The agency’s deciding official sustained the appellant’s removal based on
her conclusion that substantial evidence supported the charges. IAF, Tab 4 at 34.
After the initial decision in this case was issued, the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) decided Rodriguez v. Department of Veterans
Affairs, 8 F.4th 1290, 1296-1301 (Fed. Cir. 2021) , 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 found that
substantial evidence is the standard of review to be applied by the Board, not the
burden of proof to be applied by the agency. Id. at 1298-1300. The Court
reasoned that, because 38 U.S.C. § 714 requires that an agency’s deciding official
“determine” whether “the performance or misconduct . . . warrants” the action at
issue, the deciding official must use a preponderance of the evidence burden of
proof. Id. at 1297-99. The Federal Circuit’s decision in Rodriguez applies to all
2 In Sayers v. Department of Veterans Affairs , 954 F.3d 1370, 1380-82 (Fed. Cir.
2020), the U.S. Court of Appeals for the Federal Circuit held that the DVAAWPA
cannot be used to discipline an employee for misconduct that occurred before June 23,
2017, the effective date of the Act. The material events underlying the obtaining leave
under false pretense charge occurred both before and after the effective date of the Act.
IAF, Tab 4 at 30. Because the agency withdrew the charge, however, we need not
address the effect of Sayers on the charge. There is not a similar problem with the other
two charges, both of which involve events that took place after the effective date of the
Act. Id. at 30-31.3
pending cases, regardless of when the events at issue took place. Semenov v.
Department of Veterans Affairs , 2023 MSPB 16, ¶ 22; see Lee v. Department of
Veterans Affairs , 2022 MSPB 11, ¶ 16 (recognizing that a new precedential
Federal Circuit decision applied to all cases pending with the Board).
The administrative judge and the parties did not have the benefit
of Rodriguez and therefore were unable to address its impact on this appeal.
Accordingly, we remand this appeal for adjudication of whether the agency’s
application of the substantial evidence standard of proof was harmful error.
See Semenov, 2023 MSPB 16, ¶ 22. A harmful error is an error by the agency in
the application of its procedures that is likely to have caused the agency to reach
a different conclusion from the one it would have reached in the absence or cure
of the error. Ronso v. Department of the Navy , 122 M.S.P.R. 391, ¶ 14 (2015);
5 C.F.R. § 1201.4(r). The appellant bears the burden of proving his affirmative
defenses by preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(C). On remand,
the administrative judge shall provide the parties with an opportunity to present
additional evidence and argument, including 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 determine, if applicable, whether the
agency proved by substantial evidence that the penalty of removal was
reasonable.
The administrative judge found that, under the DVAAWPA, no analysis of
the factors set forth in Douglas v. Veterans Administration , 5 M.S.P.R. 280
(1981) (Douglas factors) was required or allowed because the agency need not
establish that the charges have a connection to the efficiency of the service and
the Board may not mitigate the agency’s chosen penalty. ID at 7. At the time of
the initial decision, however, the administrative judge did not have the benefit of
the Federal Circuit’s decision in Sayers v. Department of Veterans Affairs ,
954 F.3d 1370, 1379 (Fed. Cir. 2020), in which the Court held that,4
notwithstanding the lack of authority to mitigate the penalty, the Board is
required to review the entirety of the decision, including the penalty in section
714 cases. See Connor v. Department of Veterans Affairs , 8 F.4th 1319, 1325-27
(Fed. Cir. 2021); Brenner v. Department of Veterans Affairs , 990 F.3d 1313, 1323
(Fed. Cir. 2021). Accordingly, the Board must apply the Douglas factors in
considering the reasonableness of the penalty and, if it finds that the agency
failed to consider the Douglas factors or that the penalty the agency imposed is
unreasonable, it must remand the appeal to the agency for redetermination of the
penalty. Connor, 8 F.4th at 1326-27. On remand, the administration judge shall
permit the parties to submit additional evidence and argument, including a
supplemental hearing, if requested by the appellant, on the penalty issue. The
administrative judge shall then review the penalty and determine whether the
agency proved by substantial evidence that it applied the relevant Douglas
factors, and that the penalty was reasonable.
ORDER
For the reasons discussed above, we remand this appeal to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order.
As outlined above, the administrative judge shall address whether the agency’s
error in applying the substantial evidence burden of proof to its action was
harmful. See Semenov, 2023 MSPB 16, ¶ 24. If the administrative judge
determines that the agency’s error in applying the incorrect burden of proof was
not harmful, then he shall determine whether the agency proved by substantial
evidence that it applied the relevant Douglas factors, and the penalty was
reasonable.3 The administrative judge may, if appropriate, incorporate into the
remand decision his prior findings concerning the agency’s proof of its charges
and the appellant’s affirmative defense of harmful error based on the agency’s
3 If the administrative judge finds that the agency committed harmful error such that the
disciplinary action is not sustained, he need not address the penalty issue.5
alleged improper investigation.4 He may also incorporate into the remand
decision, if appropriate, his prior findings regarding disability discrimination, but
in doing so he must apply the analytical framework set forth in Pridgen v. Office
of Management and Budget , 2022 MSPB 31, which was issued by the Board after
the administrative judge issued the initial decision and changed the analytical
framework for addressing discrimination claims.5
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
4 If any argument or evidence adduced on remand affects the administrative judge’s
prior analysis of any issue in this appeal, he should address such argument or evidence
in the remand decision.
5 The change in analytical framework articulated in Pridgen does not appear to provide
a basis to disturb the administrative judge’s findings. Regarding the appellant’s claim
of status-based disability discrimination, which was based on the appellant’s allegation
that an agency investigator mocked him and “laughed” at his mental illness, the
administrative judge, after carefully considering the evidence, including the hearing
testimony, found that the appellant’s claim was “simply a fabrication.” ID at 21. Thus,
regarding this claim, the appellant clearly failed to establish motivating factor, and the
administrative judge correctly denied it. We discern no basis to disturb that finding.
Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002) (stating 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).6 | Morley_ThomasPH-0714-18-0023-I-1__Remand_Order.pdf | 2024-04-23 | THOMAS MORLEY v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-0714-18-0023-I-1, April 23, 2024 | PH-0714-18-0023-I-1 | NP |
1,688 | https://www.mspb.gov/decisions/nonprecedential/Nevarez_Benjamin_A_DE-1221-13-0166-C-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BENJAMIN A. NEVAREZ,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DE-1221-13-0166-C-1
DATE: April 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
R. Chris Pittard , Esquire, San Antonio, Texas, for the appellant.
Casey W. Hinson , Esquire, Falls Church, Virginia, for the agency.
Alvin Donald Pieper , White Sands Missile Range, 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 compliance initial
decision, which denied his petition for enforcement of the Board’s order granting
corrective action in the underlying individual right of action (IRA) appeal.
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 compliance initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
In this IRA appeal, the administrative judge issued a remand initial
decision granting corrective action in part and ordering the agency to change the
appellant’s performance ratings from Fair to Successful for the rating period
March 1, 2012, through February 28, 2013. Nevarez v. Department of the Army ,
MSPB Docket No. DE-1221-13-0166-B-1, Remand Initial Decision (RID)
(Aug. 24, 2016). The remand initial decision became the Board’s final decision
in the appellant’s IRA appeal on September 26, 2016, when neither party filed a
petition for review. Id. at 27; see 5 C.F.R. § 1201.113 (providing that initial
decisions generally become final 35 days after issuance absent a petition for
review). The appellant filed a January 30, 2018 petition for enforcement, arguing
that the agency was not in compliance with the remand initial decision.
Compliance Appeal File (CAF), Tab 1. The appellant also contended that the
agency failed to notify him in writing of the actions it took to comply with the
remand initial decision. Id. at 1. Additionally, he raised issues concerning the2
agency’s subsequent decision to remove him, effective December 9, 2017.2 Id.
at 1-2.
The agency filed a motion to dismiss the appellant’s petition for
enforcement as untimely filed and submitted evidence of its compliance with the
remand initial decision. CAF, Tab 5. The administrative judge denied the
petition for enforcement, finding that the agency’s response established that it
had made the ordered change to the appellant’s performance ratings. CAF, Tab 7,
Compliance Initial Decision (CID) at 4. Concerning the appellant’s claim that the
agency failed to timely notify him that it had done so, as ordered in the remand
initial decision, the administrative judge found that, even if the agency had failed
to provide the required notice in a timely fashion, there was no meaningful relief
available to the appellant. Id. As to any further relief that the appellant
requested in his petition for enforcement, the administrative judge determined
that no further corrective action was required as a consequence of the remand
initial decision. Id. at 5.
The appellant has filed a petition for review of the compliance initial
decision. Compliance Petition for Review (CPFR) File, Tab 1. The agency has
filed a response in opposition to the appellant’s petition for review, and the
appellant has filed a reply to the agency’s response. CPFR File, Tabs 4, 6.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency is in compliance with the remand initial decision .
In his petition for review of the compliance initial decision, the appellant
claims that the agency “never changed” his performance ratings.3 CPFR File,
2 The appellant filed an appeal of his removal. Nevarez v. Department of the Army ,
MSPB Docket No. DE-0752-18-0109-I-1. The administrative judge issued an initial
decision affirming the removal, and the appellant’s petition for review of the initial
decision is pending and will be resolved in a separate decision.
3 Although the agency moved to dismiss the petition for enforcement as untimely filed,
CAF, Tab 5 at 7-8, the administrative judge did not rule on the agency’s motion, instead
finding the agency in compliance with the remand initial decision, RID at 4. The
agency reraises the timeliness issue on review, but we discern no basis to grant review3
Tab 1 at 4. It is the agency’s 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 understandable documentary evidence. Id. The
appellant may rebut the agency’s evidence of compliance by making specific,
nonconclusory, and supported assertions of continued noncompliance. Id.
We agree with the administrative judge that the agency has established
compliance by providing a copy of the appellant’s performance rating for the
period in question and a sworn affidavit attesting that it changed his rating as
ordered. RID at 3; CAF, Tab 5 at 11, 14. The updated performance appraisal
does not contain any reference to the appellant’s previous “fair” rating, and
reflects that he demonstrated “success” on each of his responsibilities and was
“successful” overall. CAF, Tab 5 at 11; see Vaughan, 116 M.S.P.R. 319, ¶¶ 3,
6-7 (agreeing with an administrative judge that an agency’s documentation that it
issued an appellant a new performance appraisal without cross-outs and notations,
as ordered, proved that it had corrected the appraisal). We also agree with the
administrative judge that the record shows that there was no back pay that
accrued as a result of the agency’s action and the remedy ordered by him in the
remand initial decision. RID at 3; CAF, Tab 5 at 14. The appellant provides no
specific assertions rebutting the agency’s evidence, and therefore we find no basis
to disturb the administrative judge’s finding that the agency corrected the
appellant’s performance rating.
The appellant asserts that the agency did not notify him of the date when it
had taken all actions to comply with the order, as required by the remand initial
decision. CPFR File, Tab 1 at 4; RID at 26. The agency disputes this contention.
based on the administrative judge’s decision to address the merits of the appellant’s
petition for enforcement instead of timeliness. See, e.g., Donovan v. U.S. Postal
Service, 101 M.S.P.R. 628, ¶¶ 9-11 & n.3 (2006) (declining to address the timeliness of
a petition for enforcement when concrete evidence supported the administrative judge’s
finding that the petitioner had not prevailed on the merits).4
PFR File, Tab 2 at 5; IAF, Tab 5 at 14. The administrative judge considered this
argument below, but found that, even if true, he could order no meaningful relief.
CID at 4.
The appellant also appears to argue that the administrative judge abused his
discretion in granting the agency an additional 7 days to respond to his order to
show proof of compliance. CPFR File, Tab 1 at 4; CAF, Tab 2 at 1-2, Tab 4.
After the agency did not respond to the administrative judge’s first order to
demonstrate compliance, the administrative judge issued a second order providing
the agency with an additional 7 days. CAF, Tab 4. He warned that failure to
comply could result in sanctions. Id. The agency responded within the period
allotted. CID at 4; CAF, Tab 5 at 11, 14. We discern no abuse of discretion by
the administrative judge. See Scoggins v. Department of the Army , 123 M.S.P.R.
592, ¶ 20 (2016) (observing that an administrative judge has broad discretion to
control the proceedings before her). In any event, the appellant has alleged no
harm based on the agency’s delays in its compliance or in responding to the
administrative judge’s first order, and thus these issues are moot. See Bables v.
Department of the Army , 86 M.S.P.R. 171, ¶ 20 (2000) (finding that the issue of
the agency’s temporary noncompliance was moot because the agency had since
complied and there was no remedy under the circumstances for its delayed
compliance); see also 5 U.S.C. § 1204(e)(2)(A) (providing that the Board may
order the withholding of pay from an employee charged with complying with a
Board order during the period of noncompliance).
The appellant contends that his “petition for review is not just about an
evaluation” and reiterates that he suffered reprisal at the hands of agency
employees, reviewing his allegations of protected whistleblowing activity in
detail. CPFR File, Tab 1 at 4-6. The appellant also asserts that the agency failed
to remove the agency officials who retaliated against him by giving him a bad
performance appraisal. Id. at 4. However, the Board only has the authority in an
IRA appeal to order the agency to provide relief—it does not have any authority5
over individual wrongdoers.4 5 U.S.C. § 1221(g). To the extent the appellant
seeks to reargue the merits of his IRA appeal, we decline to revisit them here.
See Henry v. Department of Veterans Affairs , 108 M.S.P.R. 458, ¶ 24 (2008)
(finding that an administrative judge erred in revisiting the merits of the appeal
during compliance proceedings). If he is claiming compensatory damages, the
Whistleblower Protection Enhancement Act has provided the Board with the
authority to order such damages. King v. Department of the Air Force ,
119 M.S.P.R. 663, ¶ 15 (2013). However, we cannot order such damages when,
as here, the underlying events occurred prior to the December 27, 2012 effective
date of the Whistleblower Protection Enhancement Act of 2012. RID at 25; see
King, 119 M.S.P.R. 663, ¶¶ 17-18, 21, 29.
The appellant alleges that the administrative judge was biased because his
decisions favored the agency. PFR File, Tab 1 at 4. 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 case-related rulings. Vaughn v.
Department of the Treasury , 119 M.S.P.R. 605, ¶ 18 (2013). An administrative
judge’s conduct during the course of a Board proceeding warrants a new
adjudication only if his comments or actions evidence a deep-seated favoritism or
antagonism that would make fair judgment impossible. Id. Here, the appellant
points to no specific improper comments or actions by the administrative judge
that indicated favoritism or antagonism, and we find his broad allegations of bias
4 On December 12, 2017, the President signed into law the National Defense
Authorization Act of 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283. In pertinent
part, the Act requires that agencies propose disciplinary action against supervisors
whom the Board has determined have taken an action in reprisal for protected
whistleblowing. RID at 13 -14, 16-19, 25; see Pub. L. No. 115-91, § 1097(e), 131 Stat.
at 1621-22 (codified at 5 U.S.C. § 7515). All of the relevant events here predate the
enactment of the NDAA. Regardless of whether this provision would apply to those
events, section 1097(e) requires agencies, not the Board, to take action. 5 U.S.C.
§ 7515(b). It does not grant the Board the authority to order disciplinary action as a
form of relief in an IRA appeal.6
insufficient to rebut the presumption of judicial honesty and integrity. Id., ¶ 19
(reaching the same conclusion under such circumstances).
Accordingly, we affirm the compliance initial decision.
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on8
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or9
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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 | Nevarez_Benjamin_A_DE-1221-13-0166-C-1__Final_Order.pdf | 2024-04-23 | BENJAMIN A. NEVAREZ v. DEPARTMENT OF THE ARMY, MSPB Docket No. DE-1221-13-0166-C-1, April 23, 2024 | DE-1221-13-0166-C-1 | NP |
1,689 | https://www.mspb.gov/decisions/nonprecedential/Morris_Schonna_R_AT-0845-19-0007-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SCHONNA RENEE MORRIS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0845-19-0007-I-1
DATE: April 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Schonna Renee Morris , Seymour, Tennessee, pro se.
Jane Bancroft , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for failure to prosecute her appeal of the agency’s decision finding that
she received an overpayment in retirement benefits and was not entitled to a
waiver of the debt. On petition for review, the appellant argues that she was
unable to argue her case because she never received notice of a hearing and her
call to the Board’s Washington office was not returned, and that she is unable 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).
repay the debt. 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 to provide a comprehensive
summary of all available review options. As indicated in the notice, the Board cannot
advise which option is most appropriate in any matter. 2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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. The court of appeals must 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
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Morris_Schonna_R_AT-0845-19-0007-I-1__Final_Order.pdf | 2024-04-23 | SCHONNA RENEE MORRIS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0845-19-0007-I-1, April 23, 2024 | AT-0845-19-0007-I-1 | NP |
1,690 | https://www.mspb.gov/decisions/nonprecedential/Harrison_Nicholas_A_DC-1221-18-0302-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NICHOLAS ALEXANDER
HARRISON,
Appellant,
v.
SMALL BUSINESS
ADMINISTRATION,
Agency.DOCKET NUMBER
DC-1221-18-0302-W-1
DATE: April 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Nicholas Alexander Harrison , Washington, D.C., pro se.
Claudine Landry , Esquire, and Sherrie Abramowitz , 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 that
dismissed his individual right of action (IRA) appeal for lack of Board
jurisdiction. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 September 26, 2017, the appellant applied for a Veterans Affairs
Specialist position with the agency. Initial Appeal File (IAF), Tab 4 at 9. The
appellant then applied for a Business Opportunity Specialist position with the
agency on October 25, 2017. IAF, Tab 6 at 36. The appellant filed a complaint
with the Office of Special Counsel (OSC) on November 21, 2017, alleging that
the agency did not select him for either of these positions in reprisal for previous
whistleblowing disclosures.2 IAF, Tab 1 at 6-7, 10. OSC informed the appellant
on January 31, 2018, that the investigation into his complaint was closed without
further action and that he could file an IRA appeal with the Board. Id. at 10-11.
The agency informed the appellant on January 31, 2018, that it did not select him
for the Business Opportunity Specialist position and informed him on
February 27, 2018, that it did not select him for the Veterans Affairs Specialist
2 In the initial decision, the administrative judge stated that the record does not reflect
when the appellant filed his complaint with OSC. IAF, Tab 7, Initial Decision at 4.
However, the appellant indicated that he filed his complaint with OSC on November 21,
2017. IAF, Tab 1 at 6. Any error by the administrative judge regarding this fact did
not prejudice the appellant’s substantive rights nor did it create any grounds to depart
from the conclusions in the initial decision. See Panter v. Department of the Air Force ,
22 M.S.P.R. 281, 282 (1984) (holding that an adjudicatory error that is not prejudicial
to a party’s substantive rights provides no basis for reversal of an initial decision).2
position. IAF, Tab 6 at 25-26. The appellant filed his Board appeal on
February 5, 2018. IAF, Tab 1. After the parties responded to the jurisdictional
order, the administrative judge issued an initial decision dismissing this appeal
for lack of jurisdiction, as the appellant failed to demonstrate exhaustion of his
administrative remedies with OSC prior to filing his IRA appeal with the Board.
IAF, Tab 4, Tab 6, Tab 7, Initial Decision (ID) at 1-6.
In the absence of an action directly appealable to the Board, only
allegations of protected disclosures of information or protected activity, along
with personnel actions, that an appellant first raises and exhausts with OSC may
be considered by the Board in an IRA appeal. Mason v. Department of Homeland
Security, 116 M.S.P.R. 135, ¶ 8 (2011); see 5 U.S.C. §§ 1214(a)(3), 2302(b)(8),
(b)(9). This requirement is met when an appellant has provided OSC with a
sufficient basis to pursue an investigation that might lead to corrective action.
Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶¶ 10-11.
As the administrative judge found in the initial decision, the appellant
could not have provided OSC with a sufficient basis to pursue an investigation
into his allegation that the nonselections were in reprisal for his prior
whistleblowing, as he had yet to even learn that he was not selected for the
positions when he filed his complaint with OSC. ID at 3-6. Due to the
appellant’s premature complaint to OSC, he failed to exhaust his administrative
remedies.
On review, the appellant claims to have learned of his nonselection for the
Veterans Affairs Specialist position before the agency sent him notice on
February 27, 2018. Petition for Review (PFR) File, Tab 1 at 5. However, the
appellant does not provide the date that he supposedly gained this knowledge.
Relatedly, the appellant asserts that due to the length of time that passed after he
applied for the positions and the lack of response from the agency, it was
reasonable to assume that he was not selected for either position when he filed his
complaint with OSC. PFR File, Tab 1 at 5-6, Tab 4 at 5. The appellant did not3
raise this argument below in response to the administrative judge’s jurisdictional
order. IAF, Tab 4 at 4-10. The Board will generally not consider an argument
raised for the first time in a petition for review absent a showing that it is based
on new and material evidence not previously available despite the party’s due
diligence. Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980).
There has been no showing of these circumstances; thus, we need not consider the
appellant’s argument.
Notwithstanding, the evidence does not support the appellant’s contention,
as the agency contacted him in between the dates that he applied for each position
and November 21, 2017, to advise him that the hiring managers for each position
were further considering his applications. IAF, Tab 6 at 33-34. The amount of
time between the appellant’s applications and the communications from the
agency was not so excessive to support the finding that the appellant reasonably
inferred that the agency did not select him prior to November 21, 2017, the date
that he filed his complaint with OSC. IAF, Tab 1 at 6. On November 28, 2017,
the agency also scheduled an interview with the appellant for the Business
Opportunity Specialist position. IAF, Tab 6 at 28. Contrary to the appellant’s
assertion on review, there was no reasonableness standard for the administrative
judge to apply when assessing the amount of time between the appellant’s
application and notice from the agency regarding the status of his application.
PFR File, Tab 4 at 5.
On review, the appellant contends that he must be allowed to challenge his
nonselections as the nonselections have now occurred. PFR File, Tab 1 at 6. In
the initial decision, the administrative judge observed that, because the appellant
has now learned of his nonselections for the positions in question, he may file a
new complaint with OSC and pursue a new IRA appeal if OSC does not pursue
corrective action. ID at 6. In fact, the appellant filed a second IRA appeal4
regarding these claims after he exhausted his administrative remedies with OSC.3
In an April 20, 2018 initial decision, an administrative judge dismissed that
appeal for lack of jurisdiction because the appellant failed to nonfrivolously
allege that he made disclosures protected by the whistleblower protection statutes.
Harrison v. Small Business Administration , MSPB Docket No. DC -1221-18-0400-
W-1, Initial Decision (Apr. 20, 2018). The appellant has not filed a petition for
review of that initial decision, and thus, it is the final decision of the Board. See
5 C.F.R. § 1201.113 (stating that an initial decision issued by an administrative
judge becomes the Board’s final decision 35 days after issuance if no petition for
review is filed).
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.
3 See Bump v. Department of the Interior , 64 M.S.P.R. 326, 331-33 (1994) (holding that
a jurisdictional dismissal of a prior IRA appeal for failure to exhaust administrative
remedies with OSC did not bar a second IRA appeal of the same claim after OSC
remedies were exhausted).
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
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you6
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Harrison_Nicholas_A_DC-1221-18-0302-W-1__Final_Order.pdf | 2024-04-23 | NICHOLAS ALEXANDER HARRISON v. SMALL BUSINESS ADMINISTRATION, MSPB Docket No. DC-1221-18-0302-W-1, April 23, 2024 | DC-1221-18-0302-W-1 | NP |
1,691 | https://www.mspb.gov/decisions/nonprecedential/Leonard_Christopher_W_AT-0752-21-0185-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTOPHER W. LEONARD,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
AT-0752-21-0185-I-1
DATE: April 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Vicki S. Fuller , Redstone Arsenal, Alabama, for the appellant.
Katherine Yourth , Esquire, Richmond, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his indefinite suspension following the interim suspension of his access
to classified information and/or assignment to duties designated national security
sensitive. On petition for review, the appellant argues the following: (1) his
position did not require a security clearance; (2) the agency should have
reassigned him to a nonsensitive position; and (3) the administrative judge failed
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
to address his claims regarding discrimination, equal employment opportunity
(EEO) reprisal, and a hostile work environment. Petition for Review (PFR) File,
Tab 1 at 4-5, Tab 4 at 3. The appellant also references a prior indefinite
suspension imposed by the agency. PFR File, Tab 1 at 5. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
An indefinite suspension lasting more than 14 days is an adverse action
appealable to the Board under 5 U.S.C. § 7513(d). 5 U.S.C. § 7512(2); Palafox v.
Department of the Navy , 124 M.S.P.R. 54, ¶ 8 (2016). An agency may
indefinitely suspend an appellant when his access to classified information has
been suspended and he needs such access to perform his job. Palafox,
124 M.S.P.R. 54, ¶ 8. In such a case, the Board lacks the authority to review the
merits of the decision to suspend the employee’s access. Id. Instead, the Board
will only review whether (1) the appellant’s position required access to classified
information, (2) his access to classified information was suspended, and (3) he
was provided with the procedural protections specified in 5 U.S.C. § 7513. Id.
The Board will also consider whether the agency provided the appellant with
3
minimum due process in taking the indefinite suspension action and whether the
agency provided the procedural protections required under its own regulations.
Id.
The appellant challenges the administrative judge’s conclusion that his
position required a security clearance. PFR File, Tab 1 at 5. To this end, he
avers that his position was merely designated noncritical sensitive. Id. The
appellant’s unsubstantiated disagreement with the administrative judge’s
conclusion regarding the requisite security clearance for his position, however,
does not provide a basis to disturb the same. See Riggsbee v. Office of Personnel
Management, 111 M.S.P.R. 129, ¶ 11 (2009) (explaining that an appellant’s mere
disagreement with the administrative judge’s explained factual findings and legal
conclusions therefrom does not provide a basis to disturb the initial decision).
Moreover, the appellant concedes that his position was designated noncritical
sensitive, and the agency’s action here was premised on his suspension from
access “to classified information and/or assignment to duties designated national
security sensitive .” Initial Appeal File (IAF), Tab 4 at 16, 20, 40 (emphasis
added); see Flores v. Department of Defense , 121 M.S.P.R. 287, ¶¶ 4, 8 (2014)
(sustaining a charge based on the denial of eligibility to occupy a sensitive
position when the appellant’s position was designated noncritical sensitive and he
was denied eligibility to occupy a sensitive position). Thus, a different outcome
is not warranted.
The appellant argues that, following the interim suspension of his access to
classified information and/or assignment to duties designated national security
sensitive, the agency should have reassigned him to a nonsensitive position in lieu
of indefinitely suspending him. PFR File, Tab 1 at 5, Tab 4 at 3. To this end, he
asserts that he “believe[s] that [the a]gency ha[s reassigned] other employees who
had security clearance issues.” PFR File, Tab 1 at 5. The Board may consider
whether an agency has a formal policy requiring reassignment and, if so, whether
a position to which an appellant could have been reassigned existed. See
4
Blagaich v. Department of Transportation , 90 M.S.P.R. 619, ¶ 16 (2001), aff’d,
63 F. App’x 476 (Fed. Cir. 2003). Here, however, the appellant’s apparent belief
that a policy existed does not provide a basis to disturb the administrative judge’s
conclusion, based on witness testimony, that the agency did not have a formal
reassignment policy. IAF, Tab 19, Initial Decision (ID) at 4; see Haebe v.
Department of Justice , 288 F.3d 1288, 1301-02 (Fed. Cir. 2002) (explaining that,
when an administrative judge’s credibility findings 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). Thus, the appellant’s assertion
regarding reassignment is unavailing.2
The appellant contends that the administrative judge erred by failing to
consider his allegations regarding discrimination, EEO reprisal, and a hostile
work environment. PFR File, Tab 1 at 5, Tab 4 at 3. We disagree. Indeed, as
correctly set forth in the initial decision, ID at 4 n.3, the Board is not permitted to
adjudicate whether an adverse action premised on the revocation of access to
classified information constitutes impermissible discrimination or reprisal,
Putnam v. Department of Homeland Security , 121 M.S.P.R. 532, ¶ 18 (2014).
Thus, a different outcome is not warranted.
Last, the appellant references a prior, rescinded suspension action taken by
the agency and seemingly alleges that the agency failed to properly cancel this
prior action before initiating the subject action. PFR File, Tab 1 at 5. This vague
allegation, however, does not provide a basis to disturb the initial decision. 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 and concluding that the
2 To the extent the appellant argues that the agency’s purported reassignment of other
employees is indicative of disparate treatment, the Board lacks the authority to consider
his argument.
5
appellant’s petition contained neither evidence nor argument demonstrating error
by the administrative judge).
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
7
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.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
8
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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.
9
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Leonard_Christopher_W_AT-0752-21-0185-I-1__Final_Order.pdf | 2024-04-23 | CHRISTOPHER W. LEONARD v. DEPARTMENT OF DEFENSE, MSPB Docket No. AT-0752-21-0185-I-1, April 23, 2024 | AT-0752-21-0185-I-1 | NP |
1,692 | https://www.mspb.gov/decisions/nonprecedential/Davis_Sonja_L_AT-0752-22-0529-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SONJA LENETTE DAVIS,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
AT-0752-22-0529-I-1
DATE: April 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Amanda L. E. Smith , Esquire, Buffalo, New York, for the appellant.
Lydia Taylor , Esquire, and Shaun C. Southworth , Esquire, Atlanta,
Georgia, for the appellant.
David L. Mannix , Esquire, and Jennifer L. Anthony , Falls Church,
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 her removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review 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 | Davis_Sonja_L_AT-0752-22-0529-I-1__Final_Order.pdf | 2024-04-23 | SONJA LENETTE DAVIS v. DEPARTMENT OF THE NAVY, MSPB Docket No. AT-0752-22-0529-I-1, April 23, 2024 | AT-0752-22-0529-I-1 | NP |
1,693 | https://www.mspb.gov/decisions/nonprecedential/DiStefano_Nicole_M_SF-0752-17-0670-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NICOLE M. DISTEFANO,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-0752-17-0670-I-1
DATE: April 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael Stichler , Santa Barbara, California, for the appellant.
Steven B. Schwartzman , 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
affirmed her removal for unacceptable conduct. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The agency employed the appellant as an EAS-21 Customer Services
Manager at River Road Station in Eugene, Oregon. Initial Appeal File (IAF),
Tab 7 at 92. Due to allegations of erroneous scanning and improper entries of
time records and/or clock rings, the Office of Inspector General (OIG) conducted
a series of investigative interviews in March 2017. IAF, Tab 5 at 33, 36, 41.
During the course of the investigation, the OIG discovered that the appellant
made changes to the time records and/or clock rings for S.M., a Postal Support
Employee who was dating the appellant’s son, even though she had not approved
1260s in support of those changes. IAF, Tab 5 at 31, 34-35, 42-46, Tab 7
at 34, 37-38, Tab 15 at 5.
In a letter dated April 6, 2017, the agency proposed the appellant’s removal
based on the charge of unacceptable conduct. IAF, Tab 5 at 19-21. In its seven
specifications, the agency stated that, from February 2016 to October 2016, the
appellant had improperly deleted time records and/or entered clock rings for S.M.
without appropriate supporting documentation (1260s). Id. at 19. In her response
to the proposed removal, the appellant asserted that she lacked the training on the
Time and Attendance Control System (TACS) operation and policy typically
provided to managers at the EAS-21 level, given her direct promotion from a2
GS-13 to an EAS-21 position, and that it was common practice in Eugene for
managers and supervisors to enter or edit time in TACS for employees who
moved between stations or completed tours at other stations, such as S.M., based
solely on verbal requests of other managers or supervisors without supporting
documentation (1260s). IAF, Tab 5 at 17-18. Nevertheless, the agency removed
the appellant from her position. IAF, Tab 5 at 12-14; Hearing Compact Disc
(HCD).
The appellant filed a Board appeal challenging her removal and requesting
a hearing. IAF, Tabs 1, 4. She did not raise any affirmative defenses. IAF,
Tab 14 at 2. After holding a hearing, the administrative judge affirmed the
appellant’s removal. IAF, Tab 17, Initial Decision (ID) at 1, 13. The
administrative judge found that the agency proved the charge by preponderant
evidence, that nexus existed between the charge and the efficiency of the service,
and that the penalty was reasonable. ID at 5-13.
The appellant has filed a petition for review, and the agency has responded
in opposition to her petition. Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant alleges on review that the administrative judge erred in
failing to read an intent requirement into the agency’s charge of unacceptable
conduct. PFR File, Tab 1 at 4. According to the appellant, intent should be
considered as an element of the agency’s charge because the proposing official
referenced sections of the Employee and Labor Relations Manual (ELM),
including ELM 665.44, which stated, in pertinent part, “Recording the time for
another employee constitutes falsification of a report.” HCD (testimony of the
appellant); IAF, Tab 5 at 20. We disagree. While the charge of falsification, by
its very nature, requires a showing of intent, the agency did not charge the
appellant with falsification in its proposal notice and did not reference the
aforementioned ELM section in its decision notice. IAF, Tab 5 at 12-14, 19-21;3
see Rackers v. Department of Justice , 79 M.S.P.R. 262, 276 (1998) (holding that
the Board adjudicates the charge as it is described in the proposal and decision
notices), aff’d, 194 F.3d 1336 (Fed. Cir. 1999) (Table). The Board is bound to
evaluate the charge as written and not to remake it to a charge that could have
been brought but was not. Reynolds v. Department of Agriculture , 54 M.S.P.R.
111, 113 (1992).
In order to prove a charge of unacceptable conduct, the agency is required
to demonstrate that the appellant engaged in the underlying conduct alleged in
support of the broad label. See generally Raco v. Social Security Administration ,
117 M.S.P.R. 1, ¶ 7 (2011); Canada v. Department of Homeland Security ,
113 M.S.P.R. 509, ¶ 9 (2010). We agree with the administrative judge that the
agency proved its charge by preponderant evidence.2 ID at 7. The record shows,
and the appellant does not deny, that she engaged in the charged conduct. HCD
(testimony of the appellant); IAF, Tab 5 at 19, 43-46. The OIG investigative
report contains TACS records for S.M. showing that the appellant deleted time
records and/or entered clock rings on 14 occasions during the period of
February 2, 2016, to October 21, 2016, as set forth in the charge.3 E.g., IAF,
Tab 5 at 19, 82, 95, 102, 127, 139, 144, 150, 156-57, 166, 169, Tab 7 at 31-33.
There is no indication in the record that the appellant had supporting
documentation for any of these changes, as required. IAF, Tab 7 at 34, 37-38.
The OIG investigative report contains six 1260s for S.M. during the period of
August 2016 to October 2016 retained at River Road. Id. None of these 1260s
were signed by the appellant. Id. They were all signed by the same person—
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 When there is more than one event or factual specification supporting a single charge,
proof of one or more, but not all, of the supporting specifications is sufficient to sustain
the charge. See Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir.
1990). Here, the TACS records for S.M. correspond with the conduct ascribed to the
appellant in specifications A to G, evidenced by the timestamps and the appellant’s
employee identification number.4
M.A.—the supervisor S.M. identified as her primary contact for issues related to
timekeeping at River Road. Id.; HCD (testimony of S.M.).
The appellant challenges the administrative judge’s finding that she was
not credible. PFR File, Tab 1 at 4. In finding that the appellant was not credible,
the administrative judge properly considered the Hillen factors,4 including the
appellant’s demeanor, the inconsistencies between the appellant’s hearing
testimony and her responses in the investigative interviews, and the inherent
improbability of the appellant’s description of events. ID at 3-4. The Board must
give deference to an administrative judge’s credibility findings when they are
based, explicitly or implicitly, on the observation of the demeanor of witnesses
testifying at a hearing. Haebe v. Department of Justice , 288 F.3d 1288, 1301
(Fed. Cir. 2002); see Purifoy v. Department of Veterans Affairs , 838 F.3d 1367,
1372-73 (Fed. Cir. 2016) (finding that the Board should have deferred to the
administrative judge’s demeanor-based credibility determinations, which were
implicitly intertwined with her findings about the appellant’s potential for
rehabilitation). The Board may overturn such determinations only when it has
“sufficiently sound” reasons for doing so. Haebe, 288 F.3d at 1301. The
appellant has not provided such reasons in this case.
While the appellant maintains that it was common practice for supervisors
and managers to make changes in employees’ time records without 1260s, as
evidenced by the practices of S.M.’s home station, Westside, PFR File, Tab 1
at 4, the administrative judge did not credit such a statement because it was
4 To resolve credibility issues, an administrative judge must identify the factual
questions in dispute, summarize the evidence on each disputed question, state which
version he believes, and explain in detail why he found the chosen version more
credible, considering such factors as: (1) the witness’s opportunity and capacity to
observe the event or act in question; (2) the witness’s character; (3) any prior
inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the
contradiction of the witness’s version of events by other evidence or its consistency
with other evidence; (6) the inherent improbability of the witness’s version of events;
and (7) the witness’s demeanor. Hillen v. Department of the Army , 35 M.S.P.R. 453,
458 (1987).5
controverted or otherwise rendered improbable by her other statements in the
investigative interview and at the hearing. ID at 3-4. The appellant affirmed that
she “pushed [S.M.] the hardest” to complete and submit her 1260s at River Road,
where she was often assigned, to ensure that she was compensated for the time
she worked. HCD (testimony of the appellant, S.M.); IAF, Tab 5 at 43. The
appellant also articulated an assumption that other offices maintained 1260s for
the time records and/or clock rings that she changed. IAF, Tab 5 at 43, 45. That
M.A. made changes to S.M.’s time records and/or clock rings based on 1260s, in
contrast to the appellant’s actions, further undercuts her claim. IAF, Tab 7 at 34,
37-38, Tab 5 at 45. We discern no reason to reweigh the hearing testimony or
substitute our assessment of the testimony for that of the administrative judge.
In alleging that the administrative judge was harsh and aggressive in her
questioning at the hearing, the appellant appears to be raising a claim of bias.
PFR File, Tab 1 at 4. There is a presumption of honesty and integrity on the part
of administrative judges, and 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). An administrative judge’s conduct
during the course of a Board proceeding warrants a new adjudication only if her
comments or actions evidence “a deep-seated favoritism or antagonism that would
make fair judgment impossible.” Bieber v. Department of the Army , 287 F.3d
1358, 1362 63 (Fed. Cir. 2002). Even if the administrative judge was somewhat
abrupt and impatient with an appellant, such conduct would not establish bias.
Tyler v. U.S. Postal Service , 90 M.S.P.R. 545, ¶ 8 (2002). Here, the appellant’s
allegation is insufficient to establish bias.
The appellant argues that the administrative judge improperly denied her
request for a witness who was expected to testify as to his knowledge regarding
the compliance of other EAS-level officials in Eugene with the guidelines
pertaining to the use of the 1260s and the penalties imposed on such officials for
conduct akin to that of the appellant. PFR File, Tab 1 at 4; IAF, Tab 13 at 10.6
The administrative judge issued a written summary of the prehearing conference
that stated, among other things, that she did not approve the National Association
of Postal Supervisors representative as a witness and provided the parties with an
opportunity to raise an objection to the summary. IAF, Tab 14 at 2. There is no
indication in the record that the appellant objected to the administrative judge’s
ruling, even though she was advised that any objection, if not timely raised,
would be deemed waived, and thus she is precluded from doing so on review.
IAF, Tab 14; see Tarpley v. U.S. Postal Service , 37 M.S.P.R. 579, 581 (1988).
The appellant claims that the administrative judge ignored or otherwise
minimized the testimony of three witnesses: C.B., L.B., and S.M. PFR File,
Tab 1 at 4. Contrary to her allegation, the administrative judge found S.M. to be
credible because she was forthright, responsive, and provided testimony that was
consistent with her prior written communications and statements. ID at 4-5. The
administrative judge further considered, and found unpersuasive, the appellant’s
testimony for which C.B. and L.B. provided corroboration, that it was common
practice in Eugene to change time entries for employees based on text messages,
phone calls, and emails (instead of 1260s). ID at 7; HCD (testimony of the
appellant, C.B., L.B.); IAF, Tab 5 at 43-45, 61-62, Tab 13 at 20. By implication,
therefore, the administrative judge also found the testimony of C.B. and L.B. to
be unpersuasive. Even if the administrative judge had minimized the testimony
of certain witnesses, as the appellant argues, her failure to mention all of the
evidence of record does not mean that she did not consider it in reaching her
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).
The appellant observes that the administrative judge failed to consider the
OIG investigative report and the letters written by supervisors on her behalf. PFR
File, Tab 1 at 4. These documents are part of the evidence of record; thus, the
administrative judge had the opportunity to consider these documents. IAF,
Tab 5 at 66-199, Tab 6 at 4-236, Tab 7 at 4-91, Tab 13 at 19-21. As already7
discussed, the OIG investigative report supports a finding that the appellant
engaged in the charged conduct. Moreover, an administrative judge’s failure to
mention all of the evidence of record does not mean that she did not consider it.
Marques, 22 M.S.P.R. at 132.
Finally, the appellant makes a conclusory assertion that the penalty “should
have been mitigated to less than a removal.” PFR File, Tab 1 at 4. When, as
here, the agency’s charge has been sustained, the Board will review an
agency-imposed penalty only to determine if the agency considered all of the
relevant Douglas factors5 and exercised management discretion within tolerable
limits of reasonableness. Campbell v. Department of the Army , 123 M.S.P.R.
674, ¶ 25 (2016). In making this determination, the Board must give due weight
to the agency’s primary discretion in maintaining employee discipline and
efficiency, recognizing that the Board’s function is not to displace management’s
responsibility, but to ensure that managerial judgment has been properly
exercised. Id. It is not the Board’s role to decide what penalty it would impose
but, rather, to determine whether the penalty selected by the agency exceeds the
maximum reasonable penalty. Id. Here, the administrative judge properly found
that the deciding official gave adequate consideration to the relevant factors and
that the agency’s chosen penalty of removal was reasonable. ID at 9-13.
We find no basis upon which to disturb the administrative judge’s
conclusion that the agency has proven its charge by preponderant evidence, that
nexus exists between the appellant’s misconduct and the efficiency of the service,
and that removal was a reasonable penalty. ID at 3-9; see Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the
administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions); Broughton v.
Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987) (same).
5 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board
provided a nonexhaustive list of 12 factors that are relevant in assessing the appropriate
penalty for an act of misconduct. 8
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.9
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any10
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s11
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 12
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | DiStefano_Nicole_M_SF-0752-17-0670-I-1__Final_Order.pdf | 2024-04-23 | NICOLE M. DISTEFANO v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0752-17-0670-I-1, April 23, 2024 | SF-0752-17-0670-I-1 | NP |
1,694 | https://www.mspb.gov/decisions/nonprecedential/Warner_Kimberly_L_DC-0752-18-0204-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KIMBERLY L. WARNER,
Appellant,
v.
GOVERNMENT PUBLISHING
OFFICE,
Agency.DOCKET NUMBER
DC-0752-18-0204-I-1
DATE: April 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Keisha Williams , Esquire, Washington, D.C., for the appellant.
Nate Nelson , Petersburg, Virginia, for the appellant.
LaTonya D. Hayes , 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 withdrawn with prejudice. 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 DISMISS the appeal for lack of jurisdiction, we AFFIRM the
initial decision.
BACKGROUND
The appellant, a Deposit Account Collection Analyst, filed an appeal with
the Board challenging the agency’s 45-day suspension action. Initial Appeal File
(IAF), Tab 1 at 2. On February 23, 2018, the agency filed a motion to dismiss the
appeal in accordance with 5 C.F.R. § 1201.154(c) because the appellant had
initially filed a formal complaint of discrimination with the agency. IAF, Tab 18
at 4-8. The appellant did not respond to the motion to dismiss. Instead, on
February 28, 2018, the appellant’s attorney withdrew the appeal during a
teleconference. IAF, Tab 22 (recording of withdrawal request). The
administrative judge subsequently issued an initial decision dismissing the
appellant’s appeal as withdrawn, with prejudice. IAF, Tab 23, Initial Decision
(ID).2
The appellant timely filed a petition for review.2 Petition for Review (PFR)
File, Tab 5. The agency has filed a response. PFR File, Tab 9.
DISCUSSION OF ARGUMENTS ON REVIEW
Ordinarily, an appellant’s withdrawal of an appeal is an act of finality, and
in the absence of unusual circumstances such as misinformation or new and
material evidence, the Board will not reinstate an appeal once it has been
withdrawn merely because the appellant wishes to proceed before the Board or to
cure an untimely petition for review. Small v. Department of Homeland Security ,
112 M.S.P.R. 191, ¶ 4 (2009). However, a relinquishment of one’s right to appeal
to the Board must be by clear, unequivocal, and decisive action. Rose v. U.S.
Postal Service, 106 M.S.P.R. 611, ¶ 7 (2007). Further, the Board may relieve an
appellant of the consequences of her decision to withdraw an appeal when the
appellant’s decision was based on misleading or incorrect information provided
by the Board or the agency. Id.
On review, the appellant asserts that she did not give her attorney
permission to withdraw her Board appeal.3 PFR File, Tab 5 at 1, 23. It is well
2 The Board will not grant a petition for review based on new evidence absent a
showing that it is of sufficient weight to warrant an outcome different from that of the
initial decision. Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980). The
appellant submits various documents for the first time on review, but because she has
not shown that the documents are material to the outcome of her case, we need not
consider them. PFR File, Tab 5 at 10-11, 16-17, 26-30, 32, 41. The appellant also
submits documents that were included in the record below, PFR File, Tab 5 at 13-14,
34-39, but these documents do not constitute new evidence. See Meier v. Department of
the Interior, 3 M.S.P.R. 247, 256 (1980).
3 The appellant also asserts that the withdrawal of her appeal was based on
misinformation because the agency misled her then-attorney and the administrative
judge by filing a motion to dismiss that included misrepresentation of the truth and false
evidence. PFR File, Tab 5 at 1, 24. She alleges that it was the motion to dismiss that
“misled the judge and all others to conclude with an unjust dismissal with prejudice.”
Id. at 1. However, this argument appears to misconstrue the standard by arguing that
the allegedly false information from the agency misled her attorney and the
administrative judge, when instead the standard is whether the administrative judge or
agency misled the appellant in making her decision to withdraw her appeal. Rose,
106 M.S.P.R. 611, ¶ 7. Furthermore, the administrative judge did not dismiss the3
settled that an appellant is responsible for the actions of her chosen
representative. Sofio v. Internal Revenue Service , 7 M.S.P.R. 667, 670 (1981).
However, the Board has also held that where an appellant’s diligent efforts to
prosecute her appeal were thwarted by her representative’s negligence or
malfeasance, the appellant should not be bound by her representative’s actions.
See Simon v. Department of Justice , 112 M.S.P.R. 169, ¶¶ 7-9 (2009) (remanding
for a determination on whether the appellant’s withdrawal of her appeal was
voluntary when she claimed she had not authorized her representative to withdraw
the appeal, she did not sign the withdrawal motion, and she was not on the
certificate of service); Caracciolo v. Office of Personnel Management ,
86 M.S.P.R. 601, ¶¶ 5-8 (2000).
The record reflects that, during the audio recording of the teleconference,
the administrative judge stated that he had explained to the appellant’s attorney,
who had explained it to the appellant, that a withdrawal of a Board appeal is an
act of finality, which means that the appellant will not be able to file a Board
appeal in the future for the same suspension action. IAF, Tab 22. During the
recorded teleconference, the appellant’s attorney affirmatively stated that the
withdrawal of the appeal was consistent with her conversations with the
appellant. Id. On review, the appellant submits an affidavit affirming, under
penalty of perjury, that “no one explained to me about the concept of With
Prejudice or Without Prejudice prior to the withdrawal of my MSPB appeal ,”
“the judge or my attorney never explained to me about concept of Finality or
dismissed with prejudice meant,” and “I did not give my attorney permission to
withdraw my MSPB appeal with prejudice.” PFR File, Tab 5 at 23 (emphasis in
the original). However, regardless of whether the appellant authorized the
appeal with prejudice based on the merits of the motion to dismiss—he based it on the
appellant’s withdrawal of the appeal. ID at 2. Thus, to the extent the appellant intends
to assert that she was misled by the agency or the administrative judge, we find that the
appellant has not shown that she was misinformed by either.4
withdrawal of her appeal below, we find, for the reasons discussed below, that the
appeal lies outside the Board’s jurisdiction.
The appellant made a valid election to file a formal EEO complaint with her
agency, as amended to include her 45 - day suspension, before she appealed to the
Board.
Although not raised directly by either party on review, the issue of Board
jurisdiction is always before the Board and may be raised by either party or sua
sponte by an administrative judge or the Board at any time during a Board
proceeding. Checketts v. Department of the Treasury , 91 M.S.P.R. 89, ¶ 4, aff’d,
50 F. Appx. 979 (Fed. Cir. 2002).
When an appellant has been subjected to an action that is appealable to the
Board, and alleges that the action was effected, in whole or in part, because of
discrimination on the basis of race, color, religion, sex, national origin, disability,
or age, she may initially file a mixed-case complaint with her employing agency,
or a mixed-case appeal with the Board, but not both, and whichever is filed first
is deemed to be an election to proceed in that forum. 5 U.S.C. § 7702(a); Moore
v. Department of Justice , 112 M.S.P.R. 382, ¶ 12 (2009); 29 C.F.R.
§ 1614.302(b); 5 C.F.R. § 1201.154(a)-(b). An election is not valid unless the
agency has properly informed the appellant of the election requirement and its
consequences. Dawson v. U.S. Postal Service , 45 M.S.P.R. 194, 197 (1990).
Once an appellant makes an informed election to proceed through the agency’s
equal employment opportunity (EEO) process, she is bound to exhaust that
process prior to filing a Board appeal. Checketts, 91 M.S.P.R. 89, ¶ 5. 5
Here, the agency’s November 21, 2017 suspension decision notice clearly
informed the appellant that she could file an appeal with the Board or file an EEO
complaint. The notice stated, in part:
Where an agency action is one that may be appealed to the MSPB
and an employee believes that action was based on race, color,
religion, sex, national origin, age, disability, or genetic information,
the employee may file a mixed case EEO complaint with the Agency
or a mixed case appeal to the MSPB, but not to both on the same
matter. If an employee attempts to file both an EEO complaint with
the Agency and an appeal to the MSPB, whichever of the two is filed
first shall be considered an election to proceed in that forum.
IAF, Tab 15 at 13. Thus, contrary to the appellant’s assertions, the agency duly
informed her of the consequences of her election.
The record reflects that the appellant filed a formal EEO complaint
regarding, among other things, a recommendation for corrective action in June
2017. IAF, Tab 14 at 49-56. On October 26, 2017, she sought to amend her
complaint to include her proposed 90-day suspension. IAF, Tab 18 at 28. As
noted above, the agency advised the appellant in the November 21, 2017 decision
notice that if she filed under more than one procedure, the procedure under which
she timely filed first would effectively be her election. IAF, Tab 15 at 13.
Thereafter, on November 22, 2017, she sought a second amendment to her
complaint to include the November 21, 2017 suspension decision. IAF, Tab 18
at 31-32, Tab 15 at 9-25. Thus, contrary to the appellant’s assertions, we find
that her November 22, 2017 amendment to her EEO complaint was an informed
election by the appellant to proceed in that forum. See Moore, 112 M.S.P.R. 382,
¶ 14.
The appellant, however, withdrew her timely filed EEO complaint
amendment, IAF, Tab 20 at 8-9, before either of the events occurred that would
have exhausted the agency’s EEO process, i.e., she withdrew her complaint
before the agency issued a final decision resolving the complaint and before
120 days had passed since she filed her complaint. See 5 C.F.R. § 1201.154(b);6
29 C.F.R. § 1614.302(d). The appellant’s withdrawal of her complaint prior to
the exhaustion of the EEO process was at her own peril. Checketts, 91 M.S.P.R.
89, ¶ 6. Given that the appellant failed to exhaust the agency’s mixed-case EEO
procedure after making an informed election to proceed in that forum, the Board
does not have jurisdiction over her appeal. Id., ¶ 7.
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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.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. 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 | Warner_Kimberly_L_DC-0752-18-0204-I-1__Final_Order.pdf | 2024-04-23 | KIMBERLY L. WARNER v. GOVERNMENT PUBLISHING OFFICE, MSPB Docket No. DC-0752-18-0204-I-1, April 23, 2024 | DC-0752-18-0204-I-1 | NP |
1,695 | https://www.mspb.gov/decisions/nonprecedential/Willis_CharisseAT-0731-22-0627-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARISSE WILLIS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0731-22-0627-I-1
DATE: April 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Charisse Willis , Stockbridge, Georgia, pro se.
Tabitha G. Macko , Esquire, and Whitney Railey , 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
affirmed the negative suitability determination of the Office of Personnel
Management (OPM) and the appellant’s 3-year debarment. On petition for
review, the appellant requests that the removal from her former employing 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).
which OPM had proposed prior to her resignation be mitigated to a suspension.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On review, the appellant submits Board decisions in chapter 75 cases from
over 30 years ago to support her request for a mitigation of OPM’s proposed
removal to a suspension. Petition for Review (PFR) File, Tab 1 at 4, 6-29. The
appellant has not shown that these decisions were unavailable to her before the
record closed below despite due diligence, and we thus do not consider them.2
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980). Even if we did
consider them, however, they would not affect the outcome of the appeal. First,
the appellant resigned before OPM could instruct her former employing agency to
remove her, so there is no removal to mitigate. Initial Appeal File (IAF), Tab 6
at 10, 29. Second, even if the appellant had been removed, when OPM makes a
suitability determination pursuant to its regulations, the Board does not have the
2 The appellant only explained that the cases were not submitted below because “it took
some time to locate evidence before [the] record closed.” PFR File, Tab 1 at 3-4. We
find that this explanation does not demonstrate that the appellant acted with due
diligence in locating the cases.2
authority to adjudicate the matter as a chapter 75 adverse action. Instead, the
Board’s jurisdiction over a negative suitability determination is limited to that
provided under 5 C.F.R. § 731.501, which does not extend to reviewing or
modifying the ultimate action taken as a result of a suitability determination.
Odoh v. Office of Personnel Management , 2022 MSPB 5, ¶ 16. Under 5 C.F.R.
§ 731.501(b)(1), if the Board determines that one or more of the charges brought
by OPM is supported by a preponderance of the evidence, regardless of whether
all specifications are sustained, it must affirm the suitability determination.
Having found its charge supported by preponderant evidence, the administrative
judge’s affirmance of OPM’s suitability determination was thus appropriate .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.
3 We observe that the administrative judge canceled the hearing requested by the
appellant as a sanction for the appellant’s absences at two status conferences. IAF,
Tab 1 at 2, Tab 9 at 1. Because the appellant did not challenge the sanction below nor
does so on review, we do not consider it further. See Washington v. U.S. Postal
Service, 35 M.S.P.R. 195, 198-99 (1987) (declining to consider a procedural objection
which the appellant did not timely raise before an administrative judge).
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
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal 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.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. 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 | Willis_CharisseAT-0731-22-0627-I-1__Final_Order.pdf | 2024-04-23 | CHARISSE WILLIS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0731-22-0627-I-1, April 23, 2024 | AT-0731-22-0627-I-1 | NP |
1,696 | https://www.mspb.gov/decisions/nonprecedential/Thompson_SemoneDA-0714-21-0112-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SEMONE THOMPSON,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-0714-21-0112-I-1
DATE: April 23, 2024
THIS ORDER IS NONPRECEDENTIAL1
Donald Boyte , Bernice, Oklahoma, for the appellant.
Jamelda W. Burton-Domino and April Garrett , Houston, 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 under the authority of the Department of Veterans Affairs
Accountability and Whistleblower Protection Act of 2017 (VA Accountability
Act), Pub. L. No. 115-41, § 202(a), 131 Stat 862, 869-73 (2017) (codified
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
at 38 U.S.C. § 714). For the reasons discussed below, we GRANT the appellant’s
petition for review , VACATE the initial decision , and REMAND the appeal to the
Dallas Regional Office for further adjudication in accordance with this Remand
Order.
BACKGROUND
The appellant was employed as a GS-12 Social Worker with the Veterans
Health Administration in Tulsa, Oklahoma. Initial Appeal File (IAF), Tab 10
at 224. On December 10, 2020, the deciding official sustained by substantial
evidence two specifications under the charge of failure to follow instructions, and
two specifications under the charge of inappropriate conduct. Id. at 23, 148. He
removed the appellant from Federal service effective December 15, 2020. Id.
at 23. The appellant filed a Board appeal of her removal, and after holding a
hearing, the administrative judge issued an initial decision, sustaining one
specification of the failure to follow instructions charge and one specification of
the inappropriate conduct charge. IAF, Tab 73, Initial Decision (ID) at 13-17.
Specifically, under the failure to follow instructions charge, the administrative
judge sustained the first specification, which stated that the appellant failed to
notify her supervisor or the Program Support Assistant of any Return to Clinic
Orders despite being directed to do so. ID at 13-15. She did not sustain the
second specification, which alleged that the appellant failed to follow instructions
when she used a specific conference code for her spirituality group, finding that
the agency failed to establish that she acted contrary to valid supervisory
instructions. ID at 15. Regarding the inappropriate conduct charge, the
administrative judge did not sustain the first specification, which alleged that the
appellant engaged in inappropriate conduct by emailing a request for production
of documents to her supervisor and a Registered Nurse as part of her Equal
Employment Opportunity Commission case. ID at 16. She sustained the second
specification, finding that the agency had established that the appellant engaged2
in inappropriate conduct when she requested a change of “ownership” of group
conference calls to herself. ID at 16-17. Thus, because the administrative judge
sustained one of the two specifications under each charge, she concluded that the
agency had established the two charges by substantial evidence. ID at 15, 17.
Then, acknowledging the decision by the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) in Sayers v. Department of Veterans Affairs ,
954 F.3d 1370, 1379 (Fed. Cir. 2020) (finding that § 714 requires the Board to
review for substantial evidence the entirety of the agency’s removal decision,
including the penalty), the administrative judge found that the agency proved by
substantial evidence that removal was supported. ID at 17. After finding that the
appellant did not prove her affirmative defenses of retaliation for prior equal
employment opportunity (EEO) activity, discrimination based on age, race,
national origin, or religion, a disparate impact claim based on race, a failure to
accommodate religion claim, whistleblower reprisal, violation of her due process
rights, and harmful error, the administrative judge affirmed the agency’s action.
ID at 18-37.
The appellant filed a petition for review contesting, among other things, the
administrative judge’s findings that the charges were supported by substantial
evidence. Petition for Review (PFR) File, Tab 11 at 5-22. The agency responded
in opposition to the appellant’s petition for review,2 PFR File, Tab 14, and the
appellant filed a reply to the agency’s response, PFR File, Tab 15.
2 In its response, the agency requested that we dismiss the appellant’s petition for
review as untimely. PFR File, Tab 14 at 6. The appellant’s petition for review was due
on October 12, 2021, PFR File, Tab 10, and the appellant, who resides in the Central
Time Zone, filed her petition for review at 12:01 a.m. Central Time on October 13,
2021, PFR File, Tab 11. Pursuant to 5 C.F.R. § 1201.114(g), we find that the appellant
established that there is good cause for waiving the 1-minute filing delay, as she
explained under penalty of perjury that she experienced technical difficulties with the
Board’s e-Appeal system which resulted in the delay. PFR File, Tab 13 at 4-5.3
ANALYSIS
Remand is required to address whether the agency’s error in sustaining the
removal based on substantial evidence harmed the appellant.
As noted, the deciding official sustained the action based on his conclusion
that there was substantial evidence to do so. IAF, Tab 10 at 23. After the initial
decision in this case was issued, the Federal Circuit decided Rodriguez v.
Department of Veterans Affairs , 8 F.4th 1290, 1296-1301 (Fed. Cir. 2021), in
which it determined that the agency erred by applying a substantial evidence
burden of proof to its internal review of a disciplinary action under 38 U.S.C.
§ 714. The court 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, using a preponderance of the evidence burden of proof. Id. at 1298-1301.
The Federal Circuit’s decision in Rodriguez applies to all pending cases,
regardless of when the events at issue took place. See Lee v. Department of
Veterans Affairs , 2022 MSPB 11, ¶ 16 (recognizing that a new precedential
Federal Circuit decision applied to all cases pending with the Board). The
administrative judge and the parties did not have the benefit of Rodriguez, and
therefore were unable to address its impact on this appeal. We therefore remand
this case for adjudication of whether the agency’s apparent error in applying the
substantial evidence standard of proof was harmful. See Semenov v. Department
of Veterans Affairs , 2023 MSPB 16, ¶ 23 (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).
Remand is required to address the agency’s penalty determination.
In Connor v. Department of Veterans Affairs , 8 F.4th 1319, 1325-26 (Fed.
Cir. 2021), issued after the initial decision in this case, the Federal Circuit
determined that the Board must consider and apply the factors set forth in
Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), in its review4
of an agency’s penalty selection under the VA Accountability Act. The court
held that, although the Act 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, while 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 Brenner v.
Department of Veterans Affairs , 990 F.3d 1313, 1325 (Fed. Cir. 2021) (explaining
that “if the [Board] concludes that the [agency’s] removal decision is unsupported
by substantial evidence, the [Board] should remand to the [agency] for further
proceedings”)). As we found with the Rodriguez case, the Federal Circuit’s
decision in Connor applies to all pending cases, regardless of when the events at
issue took place. See Lee, 2022 MSPB 11, ¶ 16.
Here, in reviewing the agency’s penalty, the administrative judge did not
cite to Douglas, and except in summarizing the deciding official’s testimony, did
not mention the factors set forth by the Board in Douglas, 5 M.S.P.R. at 306. ID
at 17. In the deciding official’s decision letter upholding the proposed removal,
he did not reference Douglas, but he alluded to Douglas factors when discussing
the penalty, including the nature of the appellant’s job responsibilities, her
previous discipline, and her lack of rehabilitative potential. IAF, Tab 10 at 23.
Thus, the record is unclear as to whether the agency considered the Douglas
factors in making the decision to remove the appellant. For that reason, and
because the administrative judge and the parties did not have the benefit of
Connor, and therefore were unable to address its impact on this appeal, remand is
required for this issue as well.
Instructions for the administrative judge on remand.
On remand, the administrative judge should provide the parties with an
opportunity to present evidence and argument addressing whether the deciding
official’s use of the substantial evidence standard constituted harmful error and5
whether the agency properly considered the Douglas factors.3 The administrative
judge should hold a supplemental hearing, if requested by the appellant, to
address these two issues. The administrative judge should then issue a new initial
decision fully addressing the issues in this appeal. The administrative judge
should also address the appellant’s affirmative defenses of discrimination and
EEO retaliation in accordance with the Board’s decision in Pridgen v. Office of
Management and Budget , 2022 MSPB 31. To the extent that it is appropriate, the
administrative judge may adopt her original findings on the merits of the charges,
nexus, and the appellant’s remaining affirmative defenses, but if any of the
evidence and argument developed on remand causes the administrative judge to
reassess her previous findings, she should explain that in her 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).
3 In considering the penalty, the administrative judge should be mindful that when all of
the agency’s charges are sustained, but some of the underlying specifications are not
sustained, the agency’s penalty determination is entitled to deference and should only
be reviewed to determine whether it is within the parameters of reasonableness in light
of the sustained misconduct. Payne v. U.S. Postal Service , 72 M.S.P.R. 646, 650-51
(1996). Thus, in reviewing the penalty, 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, she
should remand the appellant’s removal to the agency for a new decision on the
appropriate penalty. See Connor, 8 F.4th at 1326; Sayers, 954 F.3d at 1376, 1379
(identifying the Board’s scope of review of the penalty in an action taken under the VA
Accountability Act as substantial evidence). 6
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.
7 | Thompson_SemoneDA-0714-21-0112-I-1__Remand_Order.pdf | 2024-04-23 | SEMONE THOMPSON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-0714-21-0112-I-1, April 23, 2024 | DA-0714-21-0112-I-1 | NP |
1,697 | https://www.mspb.gov/decisions/nonprecedential/Sutton_Tafoya_L_DC-0841-22-0513-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TAFOYA L. SUTTON, SR.,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0841-22-0513-I-1
DATE: April 23, 2024
THIS ORDER IS NONPRECEDENTIAL1
Tafoya L. Sutton , Sr. , Alexandria, Virginia, 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
dismissed for lack of jurisdiction his appeal of the alleged error by the Office of
Personnel Management (OPM) in calculating the amount he needed to deposit to
obtain credit for military service. For the reasons discussed below, we GRANT
the appellant’s petition for review, VACATE the initial decision, and REMAND
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 case to the Washington Regional Office for further adjudication in accordance
with this Remand Order.
BACKGROUND
The appellant filed an application with OPM for immediate retirement
under the Federal Employees’ Retirement System (FERS). Initial Appeal File
(IAF), Tab 4 at 6-7. OPM denied the appellant FERS retirement credit for his
military service in a reconsideration decision dated November 30, 2021. IAF,
Tab 1 at 16. He appealed that decision to the Board. Sutton v. Office of
Personnel Management , MSPB Docket No. DC-0842-22-0118-I-1, Initial
Decision (Feb. 3, 2022). OPM rescinded the decision, and an administrative
judge dismissed the appeal for lack of jurisdiction. Id. at 2. In doing so, she
relied on OPM’s statement that it would issue the appellant a new reconsideration
decision “with due process.” Id.; Sutton v. Office of Personnel Management ,
MSPB Docket No. DC-0842-22-0118-I-1, Initial Appeal File, Tab 6.
By letter dated June 27, 2022, OPM advised the appellant that he needed to
pay $8,132.87 to obtain credit for his prior military service. IAF, Tab 1 at 8-9.
The letter did not notify the appellant of how to request reconsideration or of his
right to appeal to the Board. Id. The appellant filed the instant appeal alleging
that OPM erred in calculating the amount he needed to deposit to obtain credit for
his military service. IAF, Tab 1. The administrative judge issued an order to the
parties to address the Board’s jurisdiction over the appeal, advising them that the
record on jurisdiction would close in 20 days. IAF, Tab 3. The appellant
submitted a timely response. IAF, Tab 4. The agency did not. Instead, after the
record on jurisdiction closed, it requested an extension of time.2 IAF, Tabs 5-6.
2 The administrative judge did not issue a ruling on the agency’s motion. Because the
initial decision was issued on the same day the agency’s motion was submitted, it
appears that the administrative judge did not receive the agency’s motion before issuing
her initial decision. IAF, Tab 7, Initial Decision at 1, Tabs 5-6. 2
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 1 at 2, Tab 7, Initial Decision (ID) at 1, 5. She reasoned that the June 27,
2022 letter was not a reconsideration decision. ID at 3-5. To the extent that the
appellant sought to appeal the November 30, 2021 reconsideration decision, the
administrative judge noted that the decision had been rescinded, and that the
June 27, 2022 letter came to a different conclusion. ID at 4-5. She further
reasoned that the June 27, 2022 letter did not imply that OPM would not
reconsider its determination of the deposit amount upon the appellant’s request to
do so. ID at 4.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tabs 1-2. On review, he again disagrees with the amount OPM indicated he
needed to pay for his military service credit. PFR File, Tab 1 at 5-6. OPM has
submitted a pro forma response stating only that the appellant has not met the
criteria for review. PFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over appeals from final decisions of OPM in
administering retirement benefits under FERS. Lua v. Office of Personnel
Management, 102 M.S.P.R. 108, ¶ 8 (2006); see 5 U.S.C. § 8461(e)(1) (stating
that “an administrative action or order affecting the rights or interests of an
individual” under FERS may be appealed to the Board).3 An applicant may
request a final decision from an OPM decision advising him of his right to request
reconsideration. 5 C.F.R. §§ 841.305(a), 841.306(a), (e). Generally, a final
decision “must be in writing, must fully set forth the findings and conclusions of
3 The administrative judge erroneously cited to regulations relevant to establishing
jurisdiction over a retirement matter under the Civil Service Retirement System
(CSRS). ID at 3. But this error did not impact the administrative judge’s analysis. The
applicable laws and regulations under both FERS and CSRS require the issuance of a
final decision by OPM for the Board to have jurisdiction over a retirement matter.
Compare 5 U.S.C. § 8461(e), and 5 C.F.R. § 841.308, with 5 U.S.C. § 8347(d), and
5 C.F.R. § 831.110.3
the reconsideration, and must contain notice of the right to request an appeal”
with the Board. 5 C.F.R. § 841.306(e). However, when OPM does not inform an
appellant of his right to request reconsideration of its decision and does not state
its intent to issue a reconsideration decision in its submissions to the Board, the
Board will not require a final decision as a prerequisite for Board review. Powell
v. Office of Personnel Management , 114 M.S.P.R. 580, ¶ 9 (2010); see Scallion v.
Office of Personnel Management , 72 M.S.P.R. 457, 461 (1996) (“[T]he absence
of a reconsideration decision does not preclude Board review of a retirement
decision when OPM fails to advise the appellant of his right to request a
reconsideration decision and does not intend to issue any further decision on the
appellant’s application.”).
OPM’s June 27, 2022 letter directed the appellant regarding how to pay his
$8,132.87 service deposit if he chose to do so. IAF, Tab 1 at 8-9. The letter did
not advise him of his right to either request reconsideration from OPM or appeal
to the Board, stating only “[i]f you have any questions or need further assistance,
please let us know.” Id. Further, OPM did not state during the proceedings
below, and has not indicated on review, that it intends to issue a final decision.
In fact, OPM has made no substantive response to the appellant’s claims.
Accordingly, we find that OPM’s June 27, 2022 letter constitutes an appealable
final decision and that the Board has jurisdiction to consider the merits of the
appellant’s claim.
We therefore remand this appeal for adjudication on the merits.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 | Sutton_Tafoya_L_DC-0841-22-0513-I-1__Remand_Order.pdf | 2024-04-23 | null | DC-0841-22-0513-I-1 | NP |
1,698 | https://www.mspb.gov/decisions/nonprecedential/Walcott_ElizabethDA-3443-19-0344-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ELIZABETH WALCOTT,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DA-3443-19-0344-I-1
DATE: April 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Elizabeth Walcott , Killeen, Texas, pro se.
Linda K. Webster , Esquire, Fort Hood, Texas, for the agency.
Nora E. Hinojosa , Fort Cavazos, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her appeal of the agency’s denial of her request
for reasonable accommodation. On petition for review, the appellant renews her
argument that the agency improperly denied her request for reasonable
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
accommodation. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you3
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 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 | Walcott_ElizabethDA-3443-19-0344-I-1__Final_Order.pdf | 2024-04-23 | ELIZABETH WALCOTT v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-3443-19-0344-I-1, April 23, 2024 | DA-3443-19-0344-I-1 | NP |
1,699 | https://www.mspb.gov/decisions/nonprecedential/Pardo_Esmerehildo_G_DA-0432-16-0114-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ESMEREHILDO G. PARDO,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DA-0432-16-0114-I-1
DATE: April 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christina Borgobello , Esquire, Joshua N. Archer , Esquire, and Nathan M.
Rymer , Esquire, Houston, Texas, for the appellant.
Daniel N. Vara, Jr. , Esquire, Coral Springs, Florida, for the appellant.
Judith Homich , Esquire, Tampa, 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
affirmed his demotion. For the reasons set forth below, the appellant’s petition
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
for review is DISMISSED as untimely filed without good cause shown. 5 C.F.R.
§ 1201.114(e), (g).
BACKGROUND
The appellant filed an appeal of the agency’s action demoting him for
unacceptable performance from the position of Supervisory Immigration Services
Officer, GS-1801-14, to the position of Immigration Services Officer III,
GS-1810-13, effective November 15, 2015. Initial Appeal File (IAF), Tab 1,
Tab 8 at 17-20, 151-56. After holding a hearing, the administrative judge issued
a March 8, 2017 initial decision in which she found that the agency established
the unacceptable performance charge and that the appellant failed to prove his
affirmative defenses of disparate treatment based on his race and sex, and
retaliation for prior equal employment opportunity (EEO) activity. IAF, Tab 24,
Initial Decision (ID) at 16-22. The administrative judge also found that the
appellant failed to establish that the agency violated his due process rights and
affirmed the agency’s action. ID at 22-25. The initial decision became the
Board’s final decision when neither party filed a petition for review by
April 12, 2017. 5 C.F.R. § 1201.113 (providing that initial decisions generally
become final 35 days after issuance absent a petition for review).2
On July 6, 2018, the appellant filed a petition for review. Petition for
Review (PFR) File, Tab 1. Because he filed his petition for review more than
35 days after the issuance of the initial decision, the Clerk of the Board gave the
appellant notice of the Board’s requirement for him to file a motion to either
accept the filing as timely or waive the time limit for good cause. PFR File,
Tab 2. The appellant filed a Motion to Waive Time Limit for Good Cause, in
2 The initial decision erroneously indicates a finality date of April 17, 2017, which is
40 days past the March 8, 2017 issuance date of the initial decision. ID at 1, 25.
Based on the date that the administrative judge issued the initial decision, it became the
Board’s final decision 35 days later, on April 12, 2017. ID at 1; see 5 C.F.R.
§ 1201.113. The administrative judge’s error is of no legal consequence because the
difference of 5 days does not affect our finding, below, that the petition for review was
untimely filed. Karapinka v. Department of Energy , 6 M.S.P.R. 124, 127 (1981).2
which he asserts that he had discovered new evidence during the litigation of
related Equal Employment Opportunity Commission (EEOC) complaints filed by
him and two coworkers. PFR File, Tab 5 at 3. He contended that the evidence,
which he set forth in his petition for review, was new, material, and established
good cause for the Board to reopen the appeal. Id. at 3-4. The agency filed a
response in opposition to the appellant’s petition for review and motion seeking a
waiver of untimeliness, and the appellant replied. PFR File, Tabs 6-7.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant bears the burden of proof with regard to timeliness, which he
must prove by preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(B). A petition
for review must be filed within 35 days after the date of issuance of the initial
decision or, if the party shows that he received the initial decision more than
5 days after it was issued, within 30 days of his receipt. Williams v. Office of
Personnel Management , 109 M.S.P.R. 237, ¶ 7 (2008); 5 C.F.R. § 1201.114(e).
The appellant concedes that his petition for review is untimely. PFR File,
Tab 5 at 3. We agree. The record shows that the administrative judge issued his
initial decision on March 8, 2017. ID at 1. The appellant alleges that he received
the initial decision on March 21, 2017. PFR File, Tab 5 at 3. However, because
the appellant and one of his attorneys were e -filers, they are deemed to have
received the initial decision on the date of electronic submission, March 8, 2017.
IAF, Tab 3 at 2, Tabs 16, 25; see Palermo v. Department of the Navy ,
120 M.S.P.R. 6, ¶ 3 (2014). Thus, the decision became final 35 days later, on
April 12, 2017, when neither party filed a petition for review. 5 C.F.R.
§ 1201.113. The appellant filed his petition for review on July 6, 2018, making it
451 days late. PFR File, Tab 1.
Because the appellant’s explanation for the untimeliness of his petition for
review is not submitted in the form of an affidavit or a statement signed under
penalty of perjury, it is insufficient to establish the assertions it contains.3
PFR File, Tab 1 at 2-13; see Wyeroski v. Department of Transportation ,
106 M.S.P.R. 7, ¶ 8, aff’d per curiam , 253 F. App’x 950 (Fed. Cir. 2007);
5 C.F.R. § 1201.114(f). An attorney who did not represent the appellant below,
but does on review, has provided an affidavit with the appellant’s motion for
waiver of the time limit. PFR File, Tab 5 at 6. However, we do not find this
affidavit sufficient. The attorney does not assert that he has any personal
knowledge of the relevant facts. Id.; see Anderson v. Government Printing
Office, 55 M.S.P.R. 548, 550 n.1 (1992) (finding that an affidavit that was not
based on personal knowledge could not support the facts alleged therein).
Further, the “facts” to which he attests are, for the most part, statements that the
appellant met his legal burden for waiving the time limit. PFR File, Tab 5 at 3-4.
For example, he states without explanation that the appellant “discovered new
evidence” based on information obtained during his EEOC litigation and that of
his coworkers. Id. at 3. As another example, he asserts that the “evidence could
not have reasonably been discovered” during the proceedings below. Id. at 4.
Even assuming the appellant’s unsworn assertions were sufficient to satisfy
the Board’s regulations at 5 C.F.R. § 1201.114(f), he has failed to establish good
cause for the filing delay in this case. The discovery of new evidence may
establish good cause for the untimely filing of a petition for review if the
evidence was not readily available before the close of the record below and is of
sufficient weight to warrant an outcome different from that of the initial decision.
Wyeroski, 106 M.S.P.R. 7, ¶ 9. The appellant’s petition for review asserts that
new evidence establishes that the testimony of the individuals who proposed and
decided his demotion is not credible. He offers the following evidence: an
undated “brief rationale for finding of discrimination” that he asserts was
completed by the administrative judge in his EEOC case, reflecting the
administrative judge’s belief that agency witnesses, including the officials
proposing and deciding the appellant’s demotion, were not credible; a decision in
a coworker’s EEOC case finding, in pertinent part, that the proposing and4
deciding officials retaliated against the coworker for his prior EEO activity; a
second coworker’s statements from his own Board appeal that the deciding
official retaliated against the appellant for his EEO activity; and excerpts of the
testimony of the proposing and deciding officials reflecting that they were
reassigned in January 2017. PFR File, Tab 1 at 14-52. This evidence, which is
offered merely to impeach witnesses’ credibility, generally is not considered new
and material. Wyeroski, 106 M.S.P.R. 7, ¶ 9.
Further, at the hearing in the instant appeal, the administrative judge
observed the testimony of the proposing and deciding official. She found that
they credibly denied that they were motivated by discrimination or retaliation
based on their demeanor. ID at 21. She also considered and discussed the
testimony of the appellant’s two coworkers in her initial decision. ID at 17-18.
We must give deference to the administrative judge’s credibility determinations
because they were based, explicitly and implicitly, on her observation of the
demeanor of witnesses testifying at a hearing. Haebe v. Department of Justice ,
288 F.3d 1288, 1301 (Fed. Cir. 2002). The appellant’s “new” evidence is not a
“sufficiently sound” reason to disturb these findings. See id.; Wyeroski,
106 M.S.P.R. 7, ¶¶ 3, 9 (determining that an appellant’s evidence of subsequent
misconduct by the individual who removed him was insufficient to overturn the
administrative judge’s post-hearing credibility findings).
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 appeal of his November 15, 2015 demotion. 5
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.6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any7
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s8
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 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 | Pardo_Esmerehildo_G_DA-0432-16-0114-I-1__Final_Order.pdf | 2024-04-23 | ESMEREHILDO G. PARDO v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DA-0432-16-0114-I-1, April 23, 2024 | DA-0432-16-0114-I-1 | NP |
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